Eric R. Shibley, M.D.; Decision and Order, 16783-16784 [2021-06582]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 86, Number 60 (Wednesday, March 31, 2021)]
[Notices]
[Pages 16783-16784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06582]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Eric R. Shibley, M.D.; Decision and Order

    On October 16, 2020, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to Eric 
R. Shibley, M.D. (hereinafter, Registrant) of Seattle, Washington. OSC, 
at 1. The OSC proposed the revocation of Registrant's Certificate of 
Registration No. FN1977290. It alleged that Registrant is without 
``authority to handle controlled substances in the State of Washington, 
the state in which [Registrant is] registered with the DEA.'' Id. at 2 
(citing 21 U.S.C. 824(a)(3)).
    Specifically, the OSC alleged that the Washington Medical 
Commission issued an Ex Parte Order of Summary Suspension on August 17, 
2020. Id. at 1. This Order, according to the OSC, summarily suspended 
Registrant's state Physician and Surgeon License because of 
Registrant's ``improper prescribing of controlled substances.'' Id. at 
1-2. The OSC concluded that because Registrant's medical license was 
suspended, Registrant lacks the authority to handle controlled 
substances in the State of Washington. 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. 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

    A DEA Diversion Investigator (hereinafter, DI) served the OSC on 
Registrant's legal counsel on October 19, 2020. Request for Final 
Agency Action, dated December 31, 2020 (hereinafter, RFAA), Exhibit 
(hereinafter, RFAAX) 9 (DI's Declaration). By email dated November 2, 
2020, Registrant's counsel informed the DI that ``he forwarded a copy 
of the [OSC] to [Registrant]'' and that Registrant ``did not plan to 
contest the matters raised in the [OSC].'' Id. at 2; see also RFAAX 5 
(Email chain--DEA and Registrant's counsel), at 1.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on December 31, 2020. In its RFAA, the 
Government represented that ``more than 30-days have passed since 
Registrant received the [OSC]; however, Registrant has not submitted to 
DEA a request for hearing.'' \1\ RFAA, at 2. The Government requested 
an issuance of an agency final order that ``(1) holds that Registrant 
has waived his opportunity for a hearing, and otherwise failed to 
respond to the OTSC; and (2) revokes Registrant's DEA COR pursuant to 
21 U.S.C. 802(21), 823(f) and 824(a)(3).'' Id. at 2.
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    \1\ The Government also represents that the Registrant has not 
``otherwise filed a response with the agency following the issuance 
of the OTSC.'' RFAA, at 2.
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    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 by November 2, 
2020. 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. 
FN1977290 at the registered address of 4700 36th Avenue SW, Seattle, 
Washington 98126. RFAAX 1, at 1. Pursuant to this registration, 
Registrant is authorized to dispense controlled substances in schedules 
II through V as a practitioner. Id.

The Status of Registrant's State License

    On August 17, 2020, the State of Washington Department of Health 
Washington Medical Commission (hereinafter, Commission) issued an Ex 
Parte Order of Summary Suspension (hereinafter, Order of Summary 
Suspension) suspending Registrant's license to practice as a physician 
and surgeon in Washington State. RFAAX 3, at 1. According to the Order 
of Summary Suspension, Registrant prescribed controlled substances on 
multiple occasions from January 2, 2020, to July 1, 2020, while under 
an Order of Summary Restriction issued by the Commission. Id. at 2.
    The Order of Summary Restriction issued on January 2, 2020, 
``demonstrated Respondent's substandard care of patients with regard to 
his prescribing of controlled substances posed an immediate risk to 
patients and the public welfare.'' Id. at 2. The Order of Summary 
Suspension concluded that ``[b]ecause [Registrant] has continued to 
prescribe controlled substances in direct violation of the Commission's 
Order, he remains an imminent threat to public safety.'' Id.
    The Order of Summary Suspension ordered the summary suspension of 
Registrant's license to practice as a physician and surgeon ``pending 
further disciplinary proceedings by the Commission.'' Id. at 3.
    According to Washington's online records, of which I take official 
notice, Registrant's license is still summarily suspended.\2\ 
Washington State Department of Health Provider Credential Search, 
https://fortress.wa.gov/doh/providercredentialsearch/ (last visited 
date of signature of this Order). Washington's online records show that 
Registrant's medical license remains revoked. Id.
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    \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 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].
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    Accordingly, I find that Registrant currently is neither licensed 
to engage in the practice of medicine nor registered to dispense 
controlled substances in Washington, 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

[[Page 16784]]

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 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 Washington statute, ``A practitioner may dispense or 
deliver a controlled substance to or for an individual or animal only 
for medical treatment or authorized research in the ordinary course of 
that practitioner's profession.'' Wash. Rev. Code Sec.  69.50.308(j) 
(West, Westlaw current with effective legislation through Chapter 5 of 
the 2021 Regular Session of the Washington Legislature). Additionally, 
a `` `prescription' means an order for controlled substances issued by 
a practitioner duly authorized by law or rule in the state of 
Washington to prescribe controlled substances within the scope of his 
or her professional practice for a legitimate medical purpose.'' Wash. 
Rev. Code Sec.  69.50.101(nn) (West, Westlaw current with effective 
legislation through Chapter 5 of the 2021 Regular Session of the 
Washington Legislature). Further, ``practitioner,'' as defined by 
Washington statute, includes, ``[a] physician under chapter 18.71 
RCW.'' Id. at 69.50.101(mm)(1).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in Washington. As 
already discussed, a physician must be a licensed practitioner to 
dispense or prescribe a controlled substance in Washington. Thus, 
because Registrant lacks authority to practice medicine in Washington 
and, therefore, is not authorized to handle controlled substances in 
Washington, 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. 
FN1977290 issued to Eric R. Shibley. 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 Eric R. Shibley to renew or modify this 
registration, as well as any other application of Eric R. Shibley, for 
additional registration in Washington. This Order is effective April 
30, 2021.

D. Christopher Evans,
Acting Administrator.
[FR Doc. 2021-06582 Filed 3-30-21; 8:45 am]
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