Peter John Ulbrich, M.D.; Decision and Order, 42013-42014 [2019-17621]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 84, Number 159 (Friday, August 16, 2019)]
[Notices]
[Pages 42013-42014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17621]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Peter John Ulbrich, M.D.; Decision and Order

    On March 4, 2019, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, Government), 
issued an Order to Show Cause to Peter John Ulbrich, M.D., 
(hereinafter, Registrant), of Peachtree City, Georgia. Order to Show 
Cause (hereinafter, OSC), at 1. The OSC proposes the revocation of 
Registrant's Certificate of Registration No. FU2662523 on the ground 
that Registrant does ``not have authority to handle controlled 
substances in Georgia, the state in which [Registrant is] registered 
with the DEA.'' Id. (citing 21 U.S.C. 823(f) and 824(a)(3)).
    Specifically, the OSC alleges that the Georgia Composite Medical 
Board (hereinafter, Board) issued an Initial Decision indefinitely 
suspending Registrant's medical license on February 9, 2018. Id. at 1.
    The OSC notified Registrant of the right to request a hearing on 
the allegations or to submit a written statement, while waiving the 
right to a hearing, the procedures for electing each option, and the 
consequences for failing to elect either option. Id. at 2 (citing 21 
CFR 1301.43). The OSC also notified Registrant of the opportunity to 
submit a corrective action plan. OSC, at 2-3 (citing 21 U.S.C. 
824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated June 24, 2019, a Diversion Investigator 
(hereinafter, DI) assigned to the Atlanta Division Office stated that 
on May 7, 2019, he and another DI met with Registrant at an agreed 
location and he personally served him with the OSC. Government's 
Request for Final Agency Action (hereinafter, RFAA), GX 10 (Declaration 
of the Diversion Investigator (hereinafter DI's Declaration)), at 2-3. 
Registrant signed a DEA Form 12, Receipt for Cash or Other Items, to 
acknowledge his receipt of the Show Cause Order. Id. at 3; see also GX 
6.
    In its RFAA, the Government represents that ``more than [thirty] 
days have passed since Registrant received the [OSC]; however, 
Registrant has not submitted to DEA a request for a hearing . . . nor 
has he corresponded in writing or otherwise'' regarding a hearing. RFAA 
at 2. The Government requests the issuance of a revocation order on the 
basis that ``Registrant has waived his opportunity for a hearing'' and 
his registration should be revoked pursuant to 21 U.S.C. 802(21), 
823(f) and 824(a)(3). Id. at 2.
    Based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government accomplished service of the OSC on Registrant on May 7, 
2019. I also find that more than thirty days have now passed since the 
Government accomplished service of the OSC. Further, based on the 
Government's written representations, I find that neither Registrant, 
nor anyone purporting to represent the Registrant, requested a hearing, 
submitted a written statement while waiving Registrant's right to a 
hearing, or submitted a corrective action plan. Accordingly, I find 
that Registrant has waived the right to a hearing and the right to 
submit a written statement and corrective action plan. 21 CFR 
1301.43(d) and 21 U.S.C. 824(c)(2)(C).
    I, therefore, issue this Decision and Order based on the record 
submitted by the Government, which constitutes the entire record before 
me. 21 CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
FU2662523 at the registered address of Cosmedical, 401 Highway 74 
North, Peachtree City, Georgia 30269. RFAA, GX 1 (Facsimile of 
Registrant's DEA Certificate of Registration); GX 2 (Certification of 
Registration Status). Pursuant to this registration, Registrant is 
authorized to dispense controlled substances in schedules II through V 
as a practitioner. Id. Registrant's registration expires on May 31, 
2020, and is ``in an active pending status.'' GX 2 (Certification of 
Registration Status) at 1.

The Status of Registrant's State License

    On May 17, 2018, the Georgia Composite Medical Board (hereinafter, 
Board) issued a Final Decision and Order (hereinafter, Order) 
indefinitely suspending [Registrant's] license to practice medicine in 
the State of Georgia, effective on that date. RFAA, GX 4 (Order), at 2. 
The Order provided that after two years the ``[Registrant] may request 
his suspension be lifted following treatment by a Board-approved 
physician and advocacy from a physician.'' Id. The Order upheld an 
Initial Decision (hereinafter, Initial Decision) issued after a hearing 
by a state administrative law judge (hereinafter, ALJ) on February 9, 
2018. The ALJ's Initial Decision found that, based on unrebutted expert 
testimony, ``[Registrant's] history of sexual misconduct, receipt of 
intensive inpatient and outpatient treatment, `relapse' behaviors, lack 
of transparency, poor insight and judgment demonstrates that, without 
further treatment, he cannot practice with reasonable skill and 
safety.'' Id. at 18. Therefore, the ALJ recommended Registrant's 
``license to practice medicine in the State of Georgia be indefinitely 
suspended until [Registrant] undergoes any treatment ordered by the 
Board and it is determined that he can practice with reasonable skill 
and safety.'' RFAA, GX 3 (Initial Decision), at 19.
    According to the website of the Georgia Composite Medical Board, of 
which I take official notice, Registrant's license is still 
indefinitely suspended. https://gcmb.mylicense.com/verification/ (last 
visited August 5, 2019).\1\ The State of Georgia online records show 
that Registrant's medical license remains suspended and that Registrant 
is not authorized in the State of Georgia to prescribe controlled 
substances. Id.
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    \1\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Registrant may dispute my finding by filing 
a properly supported motion for reconsideration within 15 calendar 
days of the date of this Order. Any such motion shall be filed with 
the Office of the Administrator and a copy shall be served on the 
Government. In the event Registrant files a motion, the Government 
shall have 15 calendar days to file a response.
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Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of the 
Controlled Substances Act (hereinafter, CSA), ``upon a finding that the 
registrant . . . has had his State license or registration suspended . 
. . [or] revoked . . . by competent State authority and is no longer 
authorized by State law to engage

[[Page 42014]]

in the . . . dispensing of controlled substances.'' With respect to a 
practitioner, the DEA has also long held that the possession of 
authority to dispense controlled substances under the laws of the State 
in which a practitioner engages in professional practice is a 
fundamental condition for obtaining and maintaining a practitioner's 
registration. See, e.g., James L. Hooper, M.D., 76 FR 71,371 (2011), 
pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); Frederick 
Marsh Blanton, M.D., 43 FR 27,616, 27,617 (1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined the term ``practitioner'' to mean ``a physician 
. . . or other person licensed, registered, or otherwise permitted, by 
. . . the jurisdiction in which he practices . . ., to distribute, 
dispense, . . . [or] administer . . . a controlled substance in the 
course of professional practice.'' 21 U.S.C. 802(21). Second, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed that ``[t]he Attorney General shall register 
practitioners . . . if the applicant is authorized to dispense . . . 
controlled substances under the laws of the State in which he 
practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess State authority in order to be deemed a 
practitioner under the CSA, the DEA has held repeatedly that revocation 
of a practitioner's registration is the appropriate sanction whenever 
he is no longer authorized to dispense controlled substances under the 
laws of the State in which he practices. See, e.g., Hooper, supra, 76 
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby 
Watts, M.D., 53 FR 11,919, 11,920 (1988); Blanton, supra, 43 FR at 
27,617.
    The Georgia Controlled Substances Act requires that ``every person 
who manufactures, distributes, or dispenses any controlled substances 
within this state or who proposes to engage in the manufacture, 
distribution, or dispensing of any controlled substance within this 
state must obtain annually a registration issued by the State Board of 
Pharmacy in accordance with its rules.'' Ga. Code Ann. Sec.  16-13-
35(a) (West 1982). The Act exempts from separate controlled substance 
registration requirements, ``persons licensed as a physician, dentist, 
or veterinarian under the laws of the state to use, mix, prepare, 
dispense, prescribe, and administer drugs in connection with medical 
treatment to the extent provided by the laws of this state.'' Id. at 
16-13-35(g)(2).
    According to the Medical Practice Act of the State of Georgia, the 
definition of a ``physician'' is a ``person licensed to practice 
medicine under this article,'' and the definition of ``to practice 
medicine'' is ``to hold oneself out to the public as being engaged in 
the diagnosis or treatment of disease, defects, or injuries of human 
beings; or the suggestion, recommendation, or prescribing of any form 
of treatment for the intended palliation, relief, or cure of any 
physical, mental, or functional ailment or defect of any person.'' Ga. 
Code Ann. Sec. Sec.  43-34-21(2), (3) (West 1981).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in Georgia. As already 
discussed, a person must be registered to dispense a controlled 
substance in Georgia, unless he is licensed as a physician. Thus, 
because Registrant is no longer a licensed physician in Georgia and, 
therefore, is no longer registered to or authorized to dispense 
controlled substances in Georgia, I will order that Registrant's DEA 
registration be revoked.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. 
FU2662523 issued to Peter John Ulbrich, M.D. This Order is effective 
September 16, 2019.

    Dated: August 2, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-17621 Filed 8-15-19; 8:45 am]
 BILLING CODE 4410-09-P