Jeffrey M. Wolk, M.D.; Decision and Order, 73781-73782 [2020-25526]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 85, Number 224 (Thursday, November 19, 2020)]
[Notices]
[Pages 73781-73782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25526]



[[Page 73781]]

-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Jeffrey M. Wolk, M.D.; Decision and Order

    On February 14, 2020, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, 
Government), issued an Order to Show Cause (hereinafter, OSC) to 
Jeffrey M. Wolk, M.D. (hereinafter, Registrant) of Sierra Vista, 
Arizona. OSC, at 1. The OSC proposed the revocation of Registrant's 
Certificate of Registration No. BW2472051. Id. It alleged that 
Registrant is without ``authority to handle controlled substances in 
the State of Arizona, the state in which [Registrant is] registered 
with DEA.'' Id. (citing 21 U.S.C. 823(f) and 824(a)(3)).
    Specifically, the OSC alleged that, on December 3, 2019, the 
Arizona Medical Board (hereinafter, Arizona Board) issued an ``Order 
for Surrender of License and Consent to the Same.'' Id. at 2. Pursuant 
to this Order, Registrant ``agreed to the immediate surrender of [his] 
license to practice allopathic medicine,'' and Registrant's ``Arizona 
license to practice allopathic medicine remains in a surrendered 
status.'' Id. Therefore, the OSC alleged that Registrant currently 
lacks authority to practice medicine in Arizona. Id.
    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. (citing 21 CFR 
1301.43). The OSC also notified Registrant of the opportunity to submit 
a corrective action plan. OSC, at 3 (citing 21 U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated May 28, 2020, a Diversion Investigator 
(hereinafter, the DI) assigned to the Tucson District office, Phoenix 
Field Division, stated that she spoke with Registrant on the phone on 
December 13, 2019, and after verifying his identity, ``requested that 
he voluntarily surrender his DEA Certificate of Registration (`COR') 
because he was no longer authorized to handle controlled substances in 
the state in which he held a DEA registration.'' Request for Final 
Agency Action, dated June 2, 2020 (hereinafter, RFAA), Exhibit 
(hereinafter, RFAAX) 11 (DI's Declaration), at 2. The DI stated that 
she told Registrant that if he decided not to surrender his 
registration, DEA would issue an OSC, but that ``[Registrant] declined 
to surrender his DEA registration.'' Id. On February 24, 2020, the DI 
stated that she and another DI traveled to Registrant's registered 
address located at 3410 Canyon De Flores, Suite B, Sierra Vista, 
Arizona 8650 to serve him with an OSC. Id. The DI stated that there was 
a sign on the door at the registered address stating that the ``office 
was permanently closed.'' Id. The DI then called Registrant's business 
telephone number, but the ``number was no longer in service.'' Id. 
Later that day, the DIs traveled to Registrant's last known residence, 
but there was no answer. The DI also tried to call his cell phone twice 
and left a voicemail. Id. The DI stated, ``After multiple unsuccessful 
attempts at reaching [Registrant] to personally serve him with the 
[OSC], on April 14, 2020, [she] forwarded a copy of the [OSC] document 
to [Registrant] at his email address [ ] and captioned the email 
`OTSC.' '' Id. She stated that she tracked the email and ``obtained a 
confirmation record from the internet Mail Delivery system that the 
OTSC document had been delivered to the recipient on April 14.'' Id.; 
RFAAX 5 (Delivery Confirmation). Later that day, Registrant responded 
to the DI's email. RFAAX 11; RFAAX 6 (Email from Registrant). Further, 
on April 17, 2020, Registrant forwarded the email and attachment to DEA 
attorneys along with a written statement explaining his the 
circumstances surrounding the underlying state action regarding the 
surrender of his medical license. RFAAX 7, at 1; RFAAX 11. He stated 
that he ``agreed to the Surrender as [he] had already retired.'' RFAAX 
7, at 1.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on June 3, 2020. In its RFAA, the Government 
represented that ``more than thirty days have passed since Registrant 
received the [OSC]; however, Registrant has not submitted to DEA a 
request for a hearing . . . or otherwise submitted a response with the 
agency following the issuance of the [OSC].'' \1\ RFAA, at 2. The 
Government requested ``a DEA Final Order for the revocation'' of 
Registrant's Certificate of Registration. Id. at 6.
---------------------------------------------------------------------------

    \1\ It is noted that the Government's Exhibits included an email 
from Registrant, which includes statements regarding the underlying 
surrender as discussed herein.
---------------------------------------------------------------------------

    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 April 14, 
2020, as demonstrated by Registrant's specific acknowledgment of 
receipt of the OSC via reply email to the DI. 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 or submitted a 
corrective action plan. Accordingly, I find that Registrant has waived 
the right to a hearing and corrective action plan. 21 CFR 1301.43(d) 
and 21 U.S.C. 824(c)(2)(C). I consider the email that DEA received from 
Registrant to be a written statement from Registrant in accordance with 
21 CFR 1301.43(c). RFAAX 7, at 1. In the email, Registrant confirmed 
the underlying surrender of his Arizona state license and stated that 
``it was never [his] intention to maintain a DEA license after 
retirement.'' Id. Although I have considered Registrant's statement, it 
does not present any issue of fact or law that could affect my final 
decision, as explained herein. I issue this Decision and Order based on 
the record submitted by the Government, including Registrant's 
statement, 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. 
BW2472051 at the registered address of Arizona Urology Center PLLC, 
3410 Canyon de Flores, Suite B, Sierra Vista, Arizona 85650. RFAAX 1. 
Pursuant to this registration, Registrant is authorized to dispense 
controlled substances in schedules II-V as a practitioner. Id. 
Registrant's registration expired on May 31, 2020, and ``is in acting 
pending status until the resolution of administrative proceedings.'' 
\2\ RFAAX 2 (Certification of Registration History).
---------------------------------------------------------------------------

    \2\ The fact that a Registrant allows his registration to expire 
during the pendency of an OSC does not impact my jurisdiction or 
prerogative under the Controlled Substances Act (hereinafter, CSA) 
to adjudicate the OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 
68,474 (2019).
---------------------------------------------------------------------------

The Status of Registrant's State License

    On December 3, 2019, the Registrant entered into a Consent to Entry 
of Order (hereinafter, Consent Order) with the Arizona Board. RFAAX 3, 
at 2 (Consent Order). On December 11, 2019, the Arizona Board issued an 
Order for Surrender of License and Consent to the Same (hereinafter, 
Surrender Order). RFAAX 3, at 1 (Surrender Order). According to the 
Surrender Order, Registrant ``state[d] that he has retired from 
professional practice and wishe[d] to surrender his license.'' Id. The 
Order

[[Page 73782]]

further stated that ``[t]he Board possesses statutory authority to 
enter into a consent agreement with a physician who admits to 
committing an act of unprofessional conduct.'' Id. at 2. The Order 
therefore ordered the immediate surrender of Registrants License. Id.
    According to Arizona's online records, of which I take official 
notice, Registrant's license is still surrendered.\3\ https://gls.azmd.gov/glsuiteweb/clients/azbom/public/webverificationsearch.aspx 
(last visited October 27, 2020).
---------------------------------------------------------------------------

    \3\ 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 of finding of fact 
within fifteen 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 fifteen calendar days to 
file a response. Any such motion and response shall be filed and 
served by email to the other party and to Office of the 
Administrator, Drug Enforcement Administration at 
[email protected].
---------------------------------------------------------------------------

    Accordingly, I find that Registrant currently is not licensed to 
engage in the practice of medicine in Arizona, the state in which 
Registrant is registered with the DEA.

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 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 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 F. App'x 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., James L. Hooper, 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); Frederick Marsh Blanton, 43 
FR at 27,617.
    According to Arizona statute, ``[e]very person who manufactures, 
distributes, dispenses, prescribes or uses for scientific purposes any 
controlled substance within this state or who proposes to engage in the 
manufacture, distribution, prescribing or dispensing of or using for 
scientific purposes any controlled substance within this state must 
first: (1) Obtain and possess a current license or permit as a medical 
practitioner as defined in Sec.  32-1901 . . .'' Ariz. Rev. Stat. Ann. 
Sec.  36-2522(A) (2020). Arizona Statute Sec.  32-1901 defines a 
``[m]edical practitioner'' as ``any medical doctor . . . or other 
person who is licensed and authorized by law to use and prescribe drugs 
and devices for the treatment of sick and injured human beings or 
animals or for the diagnosis or prevention of sickness in human beings 
or animals in this state or any state, territory or district of the 
United States.'' Ariz. Rev. Stat. Ann. Sec.  32-1901 (2020). Arizona 
regulations further clarify that ``[a] physician who wishes to dispense 
a controlled substance as defined in Ariz. Rev. Stat. Sec.  32-
1901(12),\4\ a prescription-only drug as defined in Ariz. Rev. Stat. 
Sec.  32-1901(65), or a prescription-only device as defined in Ariz. 
Rev. Stat. Sec.  32-1901(64), shall be currently licensed to practice 
medicine in Arizona.'' Ariz. Admin. Code Sec.  R4-16-301(A) (2020).
---------------------------------------------------------------------------

    \4\ The subsection citations for the referenced sections of the 
statute moved since the publication of the regulation, but the 
intent of the regulation is clear.
---------------------------------------------------------------------------

    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in Arizona, as he no 
longer retains a medical license in that state. As already discussed, a 
physician can only dispense controlled substances if he is licensed to 
practice medicine in Arizona. Thus, because Registrant lacks authority 
to practice medicine in Arizona and, therefore, is not authorized to 
dispense controlled substances in Arizona, Registrant is not eligible 
to maintain a DEA registration in Arizona. Accordingly, 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. 
BW2472051 issued to Jeffrey M. Wolk. This Order is applicable December 
21, 2020.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-25526 Filed 11-18-20; 8:45 am]
BILLING CODE 4410-09-P