Hil Rizvi, M.D.; Decision and Order, 73804-73806 [2020-25527]

Download as PDF 73804 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Notices because there was ‘‘no evidence that [respondent] recognized the extent of his misconduct and was prepared to remedy his prescribing practices’’); see also T.J. McNichol, M.D., 77 FR 57,133 (2012) (stating that ‘‘it is appropriate to draw an adverse inference from Respondent’s failure to testify.’’). Indeed, the facts on the record irrefutably demonstrate that Respondent cannot be entrusted to amend her behavior. The State of Florida Administrative Complaint, dated January 20, 2017, notified Respondent that she should discontinue prescribing after learning that a patient is diverting. RX 11, at 19. Days later, on January 25, 2017, Respondent prescribed to Y.H. following an admission of diversion. See supra II(G)(3). On or about February 8, 2017, Respondent signed a Settlement Agreement (which became a Final Order on April 21, 2017), wherein Respondent agreed to not violate Chapters 456, 458 or 893 of the Florida Statutes or any other state or federal law relating to the practice of medicine. RX 11, at 15. Yet, on both July 18, 2017, and on August 30, 2017, Respondent violated those laws when she again issued prescriptions (this time to L.G.) following an admission of diversion. See supra II(H)(2) and (3). The Agency also looks to the egregiousness and extent of the misconduct which are significant factors in determining the appropriate sanction. Garrett Howard Smith, M.D., 83 FR at 18,910 (collecting cases). In this case, I agree with the ALJ that Respondent’s actions can be characterized as ‘‘particularly egregious.’’ RD, at 100. On six separate occasions over an elevenmonth period, Respondent issued twelve prescriptions to confidential sources without having conducted a physical exam or warning of the potential risks in violation of state law. Supra III(A)(2)(a); RD, at 104. Furthermore, Respondent issued prescriptions to the confidential sources immediately after those confidential sources admitted to diverting the medication. Supra III(A)(2)(a)(i); Tr. 221. As a separate matter, the medical records that Respondent maintained on the confidential sources not only contained false information, but they did not document any physical examinations, medical history, or periodic reviews. See supra II(I). I agree with the ALJ’s finding ‘‘that [Respondent’s] misconduct of diversion and falsifying records to cover it up, as proven in the Administrative Record, is egregious and supports the revocation of her registration.’’ RD, at 104. In sanction determinations, the Agency has historically considered its VerDate Sep<11>2014 19:40 Nov 18, 2020 Jkt 253001 interest in deterring similar acts, both with respect to the respondent in a particular case and the community of registrants. See Joseph Gaudio, M.D., 74 FR 10,083, 10,095 (2009); Singh, 81 FR at 8248. I agree with the ALJ who found ‘‘that considerations of both specific and general deterrence weigh in favor of revocation in this case.’’ RD, at 105. There is simply no evidence that Respondent’s egregious behavior is not likely to recur in the future such that I can entrust her with a CSA registration; in other words, the factors weigh in favor of revocation as a sanction. I will therefore order that Respondent’s registration be revoked and that any pending applications be denied as contained in the Order below. 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. FG0560765 issued to Jeanne E. Germeil, M.D. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby deny any pending application of Jeanne E. Germeil, M.D. to renew or modify this registration, as well as any other pending application of Jeanne E. Germeil, M.D. for registration in Florida. This Order is effective December 21, 2020. Timothy J. Shea, Acting Administrator. [FR Doc. 2020–25528 Filed 11–18–20; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration Hil Rizvi, M.D.; Decision and Order On July 20, 2020, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, Government), issued an Order to Show Cause (hereinafter, OSC) to Hil Rizvi, M.D. (hereinafter, Registrant) of Tyrone, Pennsylvania. OSC, at 1, 3. The OSC proposed the revocation of Registrant’s Certificate of Registration No. BR4988599. It alleged that Registrant is without ‘‘authority to handle controlled substances in Pennsylvania, the state in which [Registrant is] registered with DEA.’’ Id. at 1 (citing 21 U.S.C. 823(f) and 824(a)(3)). Specifically, the OSC alleged that the Pennsylvania State Board of Medicine (hereinafter, the Board) revoked Registrant’s license to practice medicine PO 00000 Frm 00135 Fmt 4703 Sfmt 4703 effective October 28, 2018.1 Id. The OSC concluded that ‘‘DEA must revoke [Registrant’s] DEA registration based on [his] lack of authority to handle controlled substances in the State of Pennsylvania.’’ Id. at 2. 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. Id. at 3 (citing 21 U.S.C. 824(c)(2)(C)). Adequacy of Service In a Declaration dated August 20, 2020, the Chief of Police for the Borough of Tyrone Police Department, stated that on July 22, 2020, he, another police officer, and two DEA Diversion Investigators (hereinafter, DIs) traveled to Registrant’s registered address located at 910 Pennsylvania Avenue, Tyrone, PA 16686. Request for Final Agency Action dated July 10, 2019 (hereinafter, RFAA), Exhibit (hereinafter, RFAAX) 8, at 2 (Chief of Police’s Declaration). The Chief of Police stated that upon arrival at the registered address, ‘‘[he] knocked repeatedly on the office door to no response.’’ Id. The team then proceeded to Registrant’s residence and again, ‘‘knock[ed] repeatedly on the front door of the residence,’’ but there was no answer. Id. The Chief of Police then stated that ‘‘[a]fter unsuccessful attempts at reaching [Registrant] on his landline and cell telephone numbers, [he] left [his] business card in the front door slot of the residence.’’ Id. Later that afternoon, the Chief of Police received a phone call from Registrant at the telephone number on his business card. Id. at 3. The Chief of Police stated that he had a letter to deliver, but Registrant ‘‘insisted’’ that he was not in town ‘‘despite placing a call to [the Chief of Police] at the business card [he] left at the residence earlier that day.’’ Id. Following the phone call, the Chief of Police ‘‘immediately returned to [Registrant’s] office location. When [he] knocked on the front door of the office, [Registrant] answered. [He] then handed the envelope containing the [OSC] to [Registrant] and left the premises.’’ Id. The DEA DI assigned to the case stated that ‘‘[s]tarting immediately after his July 22, 2020 receipt of the [OSC], and on several occasions since, [the DI has] received numerous calls and an 1 It is noted that the effective date of the Order was September 12, 2018. See Request for Final Agency Action, at 1 n.1; Exhibit 3, at 12. E:\FR\FM\19NON1.SGM 19NON1 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Notices email from [Registrant], all with regard to his disagreement with being served with the OTSC.’’ RFAAX 12, at 4 (Declaration of DEA DI, dated September 2, 2020). The Government’s evidence includes an email from Registrant on July 22, 2020, which was sent to the email address provided for submission of a Corrective Action Plan (hereinafter, CAP). RFAAX 6 (Email from Registrant on July 22, 2020). The Assistant Administrator for Diversion treated the email from Registrant as a proposed CAP and denied the CAP on July 23, 2020. RFAAX 7, at 1 (Letter Denying CAP). Based on all of the above, I find that the OSC was served on July 22, 2020. The Government forwarded its RFAA, along with the evidentiary record, to this office on September 3, 2020. 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 . . . Aside from the aforementioned CAP request, and sporadic, nonpertinent communications with DEA personnel (outlined below), Registrant has not otherwise filed a response with the agency following the issuance of the [OSC].’’ RFAA, at 2. The Government asserts that DEA cannot ‘‘maintain the registration of a practitioner not duly authorized to handle controlled substances in the state in which he conducts business’’ and requests revocation. Id. at 6. Based on the DI’s and the Chief of Police’s Declarations, the Government’s written representations, and my review of the record, I find that the Government accomplished service of the OSC on Registrant on July 22, 2020. I also find that more than thirty days have now passed since the Government accomplished service of the OSC. 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). Although it is unclear whether the email that DEA received from Registrant is a written statement or a Proposed Corrective Action Plan from Registrant in accordance with 21 CFR 1301.43(c), I have considered it under both. RFAAX 6, at 12. In the email, Registrant stated that the license dispute is pending in Pennsylvania court and that ‘‘the license dispute is NOT about clinical issues or malpractice or drug diversion.’’ Id. (emphasis in original). 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 also agree with the Assistant Administrator of the Diversion VerDate Sep<11>2014 19:40 Nov 18, 2020 Jkt 253001 Control Division, that if the email was intended to be a Proposed Corrective Action Plan, it provides no basis for me to discontinue or defer this proceeding. See RFAAX 7, at 1. 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. BR4988599 at the registered address of 910 Pennsylvania Avenue, Tyrone, PA 16686. RFAAX 1 (Registrant’s Certificate of Registration). Pursuant to this registration, Registrant is authorized to dispense controlled substances in schedules II through V as a practitionerDW/275. RFAAX 2 (Certification of Registration History). Registrant’s registration expires on April 30, 2023, and is ‘‘in an active pending status until the resolution of administrative proceedings.’’ Id. at 1. The Status of Registrant’s State License On September 12, 2018, the Commonwealth of Pennsylvania State Board of Medicine issued an Order (hereinafter, Board Order) revoking Registrant’s license to practice medicine in Pennsylvania effective immediately. RFAAX 3, at 12. According to the Board Order, Registrant’s Ohio license to practice medicine was revoked and his Maine application to practice medicine was denied. Id. at 8. The Board stated that those state actions ‘‘indicate that [Registrant] has engaged in a multi-year and multi-state history of providing false, misleading or knowingly incomplete information in association with his applications for licensure and renewal and that he failed to properly advise a board of negative information regarding arrests as required.’’ Id. The Board therefore concluded that Registrant was ‘‘essentially an individual who cannot be effectively regulated by the Board.’’ Id. at 9. According to Pennsylvania’s online records, of which I take official notice, Registrant’s license is still revoked.2 2 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 PO 00000 Frm 00136 Fmt 4703 Sfmt 4703 73805 Pennsylvania Licensing System Verification Service, https:// www.pals.pa.gov/#/page/search (last visited October 27, 2020). Accordingly, I find that Registrant currently is not licensed to engage in the practice of medicine in Pennsylvania, 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 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 motion and response shall be filed and served by email to the other party and to the Office of the Administrator at dea.addo.attorneys@dea.usdoj.gov. E:\FR\FM\19NON1.SGM 19NON1 73806 Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Notices 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. Pennsylvania law defines a ‘‘practitioner’’ as ‘‘(i) a physician . . . licensed, registered or otherwise permitted to distribute, dispense . . . or to administer a controlled substance . . . in the course of professional practice or research in the Commonwealth of Pennsylvania.’’ 35 Pa. Stat. and Cons. Stat. Ann. § 780–102 (West 2020). Pennsylvania law further defines a ‘‘physician,’’ as a ‘‘medical doctor,’’ and a ‘‘medical doctor,’’ as an ‘‘individual who has acquired’’ a license ‘‘to practice medicine and surgery issued by the board.’’ Pa. Stat. and Cons. Stat. Ann. § 422.2 (West 2019). Pennsylvania law prohibits ‘‘[t]he administration, dispensing, delivery, gift or prescription of any controlled substance by any practitioner . . . unless done (i) in good faith in the course of his professional practice; (ii) within the scope of the patient relationship; (iii) in accordance with treatment principles accepted by a responsible segment of the medical profession.’’ 35 Pa. Stat. and Cons. Stat. Ann. § 780–113(14) (West 2019). Additionally, the statute prohibits ‘‘knowingly or intentionally possessing a controlled . . . substance by a . . . practitioner not registered or licensed by the appropriate state board.’’ Id. at § 780–113(15). Here, the undisputed evidence in the record is that Registrant currently lacks authority to practice medicine and surgery in Pennsylvania. A practitioner, who is a physician and a medical doctor, must be licensed and cannot prescribe or possess controlled substances in his professional practice without a license. Id. § 780–113(14), (15). Because Registrant lacks authority to practice medicine in Pennsylvania and, therefore, is not authorized to possess or prescribe controlled substances in Pennsylvania, Registrant is not eligible to maintain a DEA registration. 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. BR4988599 issued to VerDate Sep<11>2014 19:40 Nov 18, 2020 Jkt 253001 Hil Rizvi, M.D. This Order is effective December 21, 2020. Timothy J. Shea, Acting Administrator. [FR Doc. 2020–25527 Filed 11–18–20; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 20–24] Jonathan Rosenfield, M.D.; Decision and Order On June 18, 2020, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to Jonathan Rosenfield, M.D. (hereinafter, Respondent) of Houston, Texas, and Grand Forks, North Dakota. OSC, at 1. The OSC proposed the revocation of Respondent’s Certificates of Registration Nos. FR7251642 and FR5327285. Id. It alleged that Respondent is without ‘‘authority to handle controlled substances.’’ Id. (citing 21 U.S.C. 824(a)(3)). Specifically, the OSC alleged that on ‘‘October 10, 2019, the Texas Medical Board issued an Order of Temporary Suspension, suspending [Respondent’s] Texas medical license. That order remains in effect.’’ Id. at 2. The OSC further stated that ‘‘[s]ubsequently, on December 30, 2019, [Respondent] entered into a Stipulation and NonPractice Agreement with the North Dakota Board of Medicine in which [Respondent] agreed not to practice medicine in the State of North Dakota and in which [Respondent] agreed that [his] North Dakota medical license will be inactive for all purposes.’’ Id. The OSC concluded that ‘‘DEA must revoke [Respondent’s] DEA registrations based on [his] lack of authority to handle controlled substances in the State of Texas and the State of North Dakota.’’ Id. (citing 21 U.S.C. 824(a)(3); 21 CFR 1301.37(b)). The OSC notified Respondent 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 2–3 (citing 21 CFR 1301.43). The OSC also notified Respondent of the opportunity to submit a corrective action plan. Id. at 3 (citing 21 U.S.C. 824(c)(2)(C)). On July 30, 2020, Respondent, through counsel, requested a hearing, PO 00000 Frm 00137 Fmt 4703 Sfmt 4703 stating that his ‘‘medical license in Texas is only temporarily suspended’’ and he ‘‘maintains an active medical license in Ohio and Georgia.’’ Request for a Hearing, at 1. The Office of Administrative Law Judges put the matter on the docket and assigned it to Chief Administrative Law Judge John J. Mulrooney II (hereinafter, Chief ALJ), who issued an Order Directing the Filing of Government Evidence Regarding its Lack of State Authority Allegation and Briefing Schedule on July 30, 2020, with which the Government complied by filing a Motion for Summary Disposition (hereinafter, Govt Motion) on August 10, 2020. In its Motion, the Government submitted evidence that the ‘‘Texas Medical Board issued an Order of Temporary Suspension, suspending Respondent’s Texas Medical License,’’ and ‘‘Respondent entered into a Stipulation and Non-practice agreement with the North Dakota Board of Medicine in which Respondent agreed not to practice medicine in the State of North Dakota.’’ Govt Motion, at 3–4. In light of these facts, the Government argued that DEA must revoke Respondent’s registration. Id. at 5. On August 20, 2020, Respondent filed a ‘‘Memorandum Contra to the Government’s Motion for Summary Disposition’’ (hereinafter, Resp Opposition), in which he argued that ‘‘[t]he matter in Texas is temporary in nature, as it is a Temporary Suspension.’’ Resp Opposition, at 1. He also argued that he has active medical licenses in Georgia and Ohio and that Respondent ‘‘contends that he does’’ have state authority in Texas. Id. at 2. On August 25, 2020, the Chief ALJ issued an Order Granting the Government’s Motion for Summary Disposition, and Recommended Rulings, Findings of Fact, Conclusions of Law, and Recommended Decision of the Administrative Law Judge (hereinafter, Summary Disposition or SD). The Chief ALJ noted that, ‘‘Respondent has made the confusing assertion that he ‘has the authority to handle controlled substances’ because the suspension imposed by Texas is temporary and ‘can be lifted at any time’ . . . .’’ SD, at 4 (quoting Resp Opposition, at 1). However, he also noted that ‘‘[t]he Respondent has represented that no superseding order from the Texas Board has been issued.’’ Id. at 3 (citing Resp Opposition, at 1). Therefore, the ALJ determined that ‘‘in view of the Respondent’s current lack of state authority, revocation of the Respondent’s [registrations] stands as the only legally available resolution.’’ E:\FR\FM\19NON1.SGM 19NON1

Agencies

[Federal Register Volume 85, Number 224 (Thursday, November 19, 2020)]
[Notices]
[Pages 73804-73806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25527]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Hil Rizvi, M.D.; Decision and Order

    On July 20, 2020, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, Government), 
issued an Order to Show Cause (hereinafter, OSC) to Hil Rizvi, M.D. 
(hereinafter, Registrant) of Tyrone, Pennsylvania. OSC, at 1, 3. The 
OSC proposed the revocation of Registrant's Certificate of Registration 
No. BR4988599. It alleged that Registrant is without ``authority to 
handle controlled substances in Pennsylvania, the state in which 
[Registrant is] registered with DEA.'' Id. at 1 (citing 21 U.S.C. 
823(f) and 824(a)(3)).
    Specifically, the OSC alleged that the Pennsylvania State Board of 
Medicine (hereinafter, the Board) revoked Registrant's license to 
practice medicine effective October 28, 2018.\1\ Id. The OSC concluded 
that ``DEA must revoke [Registrant's] DEA registration based on [his] 
lack of authority to handle controlled substances in the State of 
Pennsylvania.'' Id. at 2.
---------------------------------------------------------------------------

    \1\ It is noted that the effective date of the Order was 
September 12, 2018. See Request for Final Agency Action, at 1 n.1; 
Exhibit 3, at 12.
---------------------------------------------------------------------------

    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. Id. at 3 (citing 21 U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated August 20, 2020, the Chief of Police for the 
Borough of Tyrone Police Department, stated that on July 22, 2020, he, 
another police officer, and two DEA Diversion Investigators 
(hereinafter, DIs) traveled to Registrant's registered address located 
at 910 Pennsylvania Avenue, Tyrone, PA 16686. Request for Final Agency 
Action dated July 10, 2019 (hereinafter, RFAA), Exhibit (hereinafter, 
RFAAX) 8, at 2 (Chief of Police's Declaration). The Chief of Police 
stated that upon arrival at the registered address, ``[he] knocked 
repeatedly on the office door to no response.'' Id. The team then 
proceeded to Registrant's residence and again, ``knock[ed] repeatedly 
on the front door of the residence,'' but there was no answer. Id. The 
Chief of Police then stated that ``[a]fter unsuccessful attempts at 
reaching [Registrant] on his landline and cell telephone numbers, [he] 
left [his] business card in the front door slot of the residence.'' Id. 
Later that afternoon, the Chief of Police received a phone call from 
Registrant at the telephone number on his business card. Id. at 3. The 
Chief of Police stated that he had a letter to deliver, but Registrant 
``insisted'' that he was not in town ``despite placing a call to [the 
Chief of Police] at the business card [he] left at the residence 
earlier that day.'' Id. Following the phone call, the Chief of Police 
``immediately returned to [Registrant's] office location. When [he] 
knocked on the front door of the office, [Registrant] answered. [He] 
then handed the envelope containing the [OSC] to [Registrant] and left 
the premises.'' Id.
    The DEA DI assigned to the case stated that ``[s]tarting 
immediately after his July 22, 2020 receipt of the [OSC], and on 
several occasions since, [the DI has] received numerous calls and an

[[Page 73805]]

email from [Registrant], all with regard to his disagreement with being 
served with the OTSC.'' RFAAX 12, at 4 (Declaration of DEA DI, dated 
September 2, 2020). The Government's evidence includes an email from 
Registrant on July 22, 2020, which was sent to the email address 
provided for submission of a Corrective Action Plan (hereinafter, CAP). 
RFAAX 6 (Email from Registrant on July 22, 2020). The Assistant 
Administrator for Diversion treated the email from Registrant as a 
proposed CAP and denied the CAP on July 23, 2020. RFAAX 7, at 1 (Letter 
Denying CAP). Based on all of the above, I find that the OSC was served 
on July 22, 2020.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on September 3, 2020. 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 . . . Aside from the aforementioned CAP 
request, and sporadic, nonpertinent communications with DEA personnel 
(outlined below), Registrant has not otherwise filed a response with 
the agency following the issuance of the [OSC].'' RFAA, at 2.
    The Government asserts that DEA cannot ``maintain the registration 
of a practitioner not duly authorized to handle controlled substances 
in the state in which he conducts business'' and requests revocation. 
Id. at 6.
    Based on the DI's and the Chief of Police's Declarations, the 
Government's written representations, and my review of the record, I 
find that the Government accomplished service of the OSC on Registrant 
on July 22, 2020. I also find that more than thirty days have now 
passed since the Government accomplished service of the OSC. 
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). Although it is unclear whether the email that DEA 
received from Registrant is a written statement or a Proposed 
Corrective Action Plan from Registrant in accordance with 21 CFR 
1301.43(c), I have considered it under both. RFAAX 6, at 12. In the 
email, Registrant stated that the license dispute is pending in 
Pennsylvania court and that ``the license dispute is NOT about clinical 
issues or malpractice or drug diversion.'' Id. (emphasis in original). 
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 also agree with the Assistant Administrator of the 
Diversion Control Division, that if the email was intended to be a 
Proposed Corrective Action Plan, it provides no basis for me to 
discontinue or defer this proceeding. See RFAAX 7, at 1. 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. 
BR4988599 at the registered address of 910 Pennsylvania Avenue, Tyrone, 
PA 16686. RFAAX 1 (Registrant's Certificate of Registration). Pursuant 
to this registration, Registrant is authorized to dispense controlled 
substances in schedules II through V as a practitioner-DW/275. RFAAX 2 
(Certification of Registration History). Registrant's registration 
expires on April 30, 2023, and is ``in an active pending status until 
the resolution of administrative proceedings.'' Id. at 1.

The Status of Registrant's State License

    On September 12, 2018, the Commonwealth of Pennsylvania State Board 
of Medicine issued an Order (hereinafter, Board Order) revoking 
Registrant's license to practice medicine in Pennsylvania effective 
immediately. RFAAX 3, at 12. According to the Board Order, Registrant's 
Ohio license to practice medicine was revoked and his Maine application 
to practice medicine was denied. Id. at 8. The Board stated that those 
state actions ``indicate that [Registrant] has engaged in a multi-year 
and multi-state history of providing false, misleading or knowingly 
incomplete information in association with his applications for 
licensure and renewal and that he failed to properly advise a board of 
negative information regarding arrests as required.'' Id. The Board 
therefore concluded that Registrant was ``essentially an individual who 
cannot be effectively regulated by the Board.'' Id. at 9.
    According to Pennsylvania's online records, of which I take 
official notice, Registrant's license is still revoked.\2\ Pennsylvania 
Licensing System Verification Service, https://www.pals.pa.gov/#/page/search (last visited October 27, 2020).
---------------------------------------------------------------------------

    \2\ 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 motion and response shall be filed and served 
by email to the other party and to the Office of the Administrator 
at [email protected].
---------------------------------------------------------------------------

    Accordingly, I find that Registrant currently is not licensed to 
engage in the practice of medicine in Pennsylvania, 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

[[Page 73806]]

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.
    Pennsylvania law defines a ``practitioner'' as ``(i) a physician . 
. . licensed, registered or otherwise permitted to distribute, dispense 
. . . or to administer a controlled substance . . . in the course of 
professional practice or research in the Commonwealth of 
Pennsylvania.'' 35 Pa. Stat. and Cons. Stat. Ann. Sec.  780-102 (West 
2020). Pennsylvania law further defines a ``physician,'' as a ``medical 
doctor,'' and a ``medical doctor,'' as an ``individual who has 
acquired'' a license ``to practice medicine and surgery issued by the 
board.'' Pa. Stat. and Cons. Stat. Ann. Sec.  422.2 (West 2019). 
Pennsylvania law prohibits ``[t]he administration, dispensing, 
delivery, gift or prescription of any controlled substance by any 
practitioner . . . unless done (i) in good faith in the course of his 
professional practice; (ii) within the scope of the patient 
relationship; (iii) in accordance with treatment principles accepted by 
a responsible segment of the medical profession.'' 35 Pa. Stat. and 
Cons. Stat. Ann. Sec.  780-113(14) (West 2019). Additionally, the 
statute prohibits ``knowingly or intentionally possessing a controlled 
. . . substance by a . . . practitioner not registered or licensed by 
the appropriate state board.'' Id. at Sec.  780-113(15).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine and surgery in 
Pennsylvania. A practitioner, who is a physician and a medical doctor, 
must be licensed and cannot prescribe or possess controlled substances 
in his professional practice without a license. Id. Sec.  780-113(14), 
(15). Because Registrant lacks authority to practice medicine in 
Pennsylvania and, therefore, is not authorized to possess or prescribe 
controlled substances in Pennsylvania, Registrant is not eligible to 
maintain a DEA registration. 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. 
BR4988599 issued to Hil Rizvi, M.D. This Order is effective December 
21, 2020.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-25527 Filed 11-18-20; 8:45 am]
BILLING CODE 4410-09-P
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