Javaid A. Perwaiz, M.D.; Decision and Order, 20732-20734 [2021-08173]
Download as PDF
<![CDATA[
khammond on DSKJM1Z7X2PROD with NOTICES
20732
Federal Register / Vol. 86, No. 75 / Wednesday, April 21, 2021 / Notices
endanger[s] the public health and
safety.’’ George D. Osafo, M.D., 58 FR
37508, 37509 (1993).
The Government’s evidence does not
provide details concerning Dr. Jones’s
criminal misconduct; however, the
District Court’s judgment offers
sufficient information to find that Dr.
Jones committed fraudulent activity
related to medical services. Dr. Jones
was convicted of seven counts of
violating 18 U.S.C. 1347 (‘‘Health care
fraud’’). Gov’t Summ. Disp., Exh. 2, at
1. The elements of this statute require
proof that an individual knowingly or
willfully executed a scheme ‘‘to defraud
any health care benefit program,’’ or ‘‘to
obtain, by means of false or fraudulent
pretenses, representations, or promises,
any of the money or property owned by,
or under the custody or control of, any
health care benefit program.’’ 18 U.S.C.
1347(a). Dr. Jones was further convicted
of one count of violating 18 U.S.C. 371
(‘‘Conspiracy to commit offense or to
defraud United States’’), which subjects
persons who conspire ‘‘to commit any
offense against the United States, or to
defraud the United States,’’ to a
maximum prison sentence of five years,
or to payment of a fine, or both. The
District Court’s judgment specifies that
Dr. Jones’s violation of 18 U.S.C. 371
involved conspiracy to pay and receive
illegal health care kickbacks. Gov’t
Summ. Disp., Exh. 2, at 1. The District
Court sentenced Dr. Jones to three years’
imprisonment, to be served, if
practicable, after the term of
imprisonment of his co-defendant. Id. at
2. The District Court further imposed
two years of supervised release after Dr.
Jones serves his prison term, and
ordered him to pay $347,525 to
Medicare in restitution. Id. at 3, 6.
Despite the lack of evidence that Dr.
Jones’s criminal misconduct involved
controlled substances, the District
Court’s judgment shows that Dr. Jones
defrauded Medicare of hundreds of
thousands of dollars. This type of
criminal misconduct raises serious
concerns about Dr. Jones’s integrity and
honesty, especially in his dealings with
government agencies, and justifies
revocation even if his misconduct did
not involve controlled substances.
Anibal P. Herrera, M.D., 61 FR at 65078;
Nelson Ramirez-Gonzalez, M.D., 58 FR
at 52788; George D. Osafo, M.D., 58 FR
at 37509; see also Jeffrey Stein, M.D., 84
FR at 46972.
In fact, DEA has previously revoked
registrations for misconduct comparable
to Respondent’s. See Dan E. Hale, D.O.,
69 FR 69402, 69406 (2004) (denying
application based on material
falsification and mandatory exclusion
which resulted from fraud convictions);
VerDate Sep<11>2014
18:12 Apr 20, 2021
Jkt 253001
Johnnie Melvin Turner, M.D., 67 FR at
71204 (revocation based on exclusion
from Medicare program after federal
fraud conviction); Stanley Dubin,
D.D.S., 61 FR 60727, 60727 (1996)
(revocation for exclusion from federal
health care programs after state fraud
conviction).
Furthermore, the exclusion letter
notes that HHS/OIG deemed Dr. Jones’s
criminal misconduct to be egregious
enough to warrant an exclusion period
in excess of the statutory minimum.
Gov’t Summ. Disp., Exh. 3, at 1–2. The
exclusion letter explains that HHS/OIG
excluded Dr. Jones for ten years instead
of the statutory minimum of five years,
because (1) Dr. Jones’s fraudulent
activity was intended to cause financial
loss to a government agency of more
than $50,000; (2) he committed the
fraudulent activity over a period of six
years; and (3) the District Court’s
sentence included imprisonment. Id. at
2.
The DEA ‘‘carefully consider[s]
mitigating evidence provided by the
respondent’’ when deciding the
appropriate sanction in a Medicare
exclusion case. Jeffrey Stein, M.D., 84
FR at 46970. Dr. Jones, however, has
failed to provide any mitigating
evidence for the DEA to consider. Dr.
Jones’s failure to present mitigating
evidence is the reason why granting
summary disposition in the
Government’s favor is appropriate. It is
also the reason why, in light of the
egregiousness of his fraudulent activity,
revocation is the appropriate sanction.
In the face of Dr. Jones’s exclusion, he
has not presented any evidence to
convince DEA that it can trust him with
the privilege and responsibility to
handle controlled substances. Dr. Jones
fraudulently obtained hundreds of
thousands of dollars from a United
States government agency over a period
of six years. Based on several
aggravating circumstances, HHS/OIG
found Dr. Jones’s criminal activity to be
sufficiently egregious to justify
imposing a longer exclusion period than
statutorily required. Dr. Jones has not
responded with any indication that he
intends to accept responsibility at the
DEA hearing or that he feels remorse for
his misconduct. In fact, Dr. Jones pled
not guilty to the criminal charges and
his position on appeal is that the
prosecution failed to present enough
evidence at trial. Gov’t Summ. Disp.,
Exh. 2, at 1; Resp’t Opposition, at 1.
Pleading not guilty and then attacking
the conviction on appeal is inconsistent
with a respondent who accepts
responsibility and feels remorse for his
misconduct. Furthermore, Dr. Jones has
not presented any mitigation evidence,
PO 00000
Frm 00081
Fmt 4703
Sfmt 4703
to include evidence that he has taken
steps to assure DEA that he will not
engage in fraudulent activity in the
future. In the absence of mitigation
evidence demonstrating that DEA can
entrust Dr. Jones with a registration,
revocation is appropriate.
Recommendation
For these reasons, it is recommended
that Dr. Jones’s DEA Certificate of
Registration, Number BJ5665281/
XJ5665281, be revoked, and that any of
Dr. Jones’s applications for renewal or
modification of such registration, and
any application by Dr. Jones for any
other DEA registration, be denied.5
Dated: September 19, 2019.
Charles Wm. Dorman,
U.S. Administrative Law Judge.
[FR Doc. 2021–08169 Filed 4–20–21; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Javaid A. Perwaiz, M.D.; Decision and
Order
On June 1, 2020, the Assistant
Administrator, Diversion Control
Division, Drug Enforcement
Administration (hereinafter,
Government), issued an Order to Show
Cause (hereinafter, OSC) to Javaid A.
Perwaiz, M.D. (hereinafter, Registrant)
of Chesapeake, Virginia. OSC, at 1. The
OSC proposed the revocation of
Registrant’s Certificate of Registration
No. AP1844287. It alleged that
Registrant is without ‘‘authority to
handle controlled substances in
Virginia, 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
according to the records of the Virginia
Department of Health Professionals,
Registrant’s Virginia Medicine &
Surgery license expired on March 31,
2020. OSC, at 2. The OSC further
alleged that because Registrant’s
medical license was expired, Registrant
no longer held authority to handle
controlled substances in Virginia. 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
5 Pursuant to 21 CFR 1316.66, a party may file
exceptions to this Recommended Decision
‘‘[w]ithin twenty days after the date upon which a
party is served a copy of’’ this Recommended
Decision. * [No exceptions were timely filed.]
E:\FR\FM\21APN1.SGM
21APN1
Federal Register / Vol. 86, No. 75 / Wednesday, April 21, 2021 / Notices
khammond on DSKJM1Z7X2PROD with NOTICES
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 August 5, 2020,
a Diversion Investigator (hereinafter, DI)
assigned to the Norfolk Resident Office
of the Washington Field Division stated
that she first attempted service of the
OSC by forwarding a copy of the OSC
to Registrant’s legal counsel via email
on June 2, 2020. Request for Final
Agency Action (hereinafter RFAA),
App. 8 (Declaration of DI), at 2. After
nine days with no response, the DI
called the office of Registrant’s legal
counsel and left a message with his staff
regarding the OSC. Id. On June 19, 2020,
the DI called the office of Registrant’s
legal counsel a second time after having
still not received a response to the first
phone call or the initial email. Id. at 3.
According to the DI, Registrant’s legal
counsel returned the second phone call
later that day and ‘‘acknowledged
receiving a copy of the [OSC]’’ and
‘‘confirmed that [Registrant] had
received a copy of the [OSC] (although
he could not remember the exact date).’’
Id. Registrant’s legal counsel also said
that he ‘‘planned on filing a response to
the [OSC] on behalf of [Registrant].’’ Id.
The DI concluded that, following the
phone call on June 19, 2020, neither she
nor her office ‘‘received any other
written correspondence, telephonic
communication, or any other
communication from [Registrant], or any
representative on his behalf in response
to the [OSC].’’ Id.
The Government forwarded its RFAA,
along with the evidentiary record, to
this office on August 6, 2020. In its
RFAA, the Government represents that
‘‘despite [Registrant’s legal counsel’s]
assurances to DEA personnel that a
response would filed [sic] in response to
the [OSC], more than [thirty days] have
passed since Registrant received the
[OSC]; however, Registrant has not
submitted to DEA a request for
hearing.’’ 1 RFAA, at 2; see also RFAA,
Apps. 5 and 6. The Government
requests that Registrant’s Certificate of
Registration be revoked based on
Registrant’s lack of state authority to
handle controlled substances. RFAA, at
5 and 6.
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 or before
1 The Government also represents that Registrant
has not ‘‘otherwise filed a response with the agency
following the issuance of the [OSC].’’ RFAA, at 2.
VerDate Sep<11>2014
18:12 Apr 20, 2021
Jkt 253001
June 19, 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.
AP1844287 at the registered address of
3003 Churchland Boulevard,
Chesapeake, VA 23321. RFAA, App. 1.
Pursuant to this registration, Registrant
is authorized to dispense controlled
substances in schedules II through V as
a practitioner. Id. Registrant’s
registration expired on March 31,
2021.2 Id.
The Status of Registrant’s State License
According to the records of the
Virginia Department of Health
Professionals, Registrant’s Virginia
Medicine & Surgery License expired on
March 31, 2020. RFAA, App. 3, at 1.
Additionally, Registrant’s license
remained expired as of the date of the
OSC. RFAA, App. 7, at 1.
According to Virginia’s online
records, of which I take official notice,
Registrant’s license is still
expired.3 https://dhp.virginia
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 68474 (2019).
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 and response
shall be filed and served by email to the other party
and to Office of the Administrator, Drug
PO 00000
Frm 00082
Fmt 4703
Sfmt 4703
20733
interactive.org/lookup (last visited date
of signature of this Order). Virginia’s
online records show that Registrant’s
medical license remains expired and
that Registrant is not authorized in
Virginia to practice medicine. Id.
Accordingly, I find that Registrant is
not currently licensed to engage in the
practice of medicine in Virginia, 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 71371
(2011), pet. for rev. denied, 481 F. App’x
826 (4th Cir. 2012); Frederick Marsh
Blanton, M.D., 43 FR 27616, 27617
(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 71371–72;
Enforcement Administration at
dea.addo.attorneys@dea.usdoj.gov.
E:\FR\FM\21APN1.SGM
21APN1
20734
Federal Register / Vol. 86, No. 75 / Wednesday, April 21, 2021 / Notices
Sheran Arden Yeates, M.D., 71 FR
39130, 39131 (2006); Dominick A. Ricci,
M.D., 58 FR 51104, 51105 (1993); Bobby
Watts, M.D., 53 FR 11919, 11920 (1988);
Frederick Marsh Blanton, 43 FR at
27617.
Under the Virginia Drug Control Act,
a practitioner ‘‘shall only prescribe,
dispense, or administer controlled
substances in good faith for medicinal
or therapeutic purposes within the
course of his professional practice.’’ Va.
Code 54.1–3408. The Virginia Drug
Control Act also defines a
‘‘practitioner,’’ as ‘‘a physician . . .
licensed, registered, or otherwise
permitted to distribute, dispense,
prescribe and administer, or conduct
research with respect to a controlled
substance in the course of professional
practice or research in the
Commonwealth.’’ Va. Code 54.1–3401.
Further, under Virginia state law, a
‘‘physician’’ is defined as ‘‘a person
licensed to practice medicine in the
Commonwealth of Virginia or in the
jurisdiction where the health care is to
be rendered or withheld.’’ Va. Code
54.1–2981; see also: Va. Code 54.1–2902
(‘‘It shall be unlawful for any person to
practice medicine . . . in the
Commonwealth without a valid
unrevoked license issued by the Board
of Medicine.’’).
Here, the undisputed evidence in the
record is that Registrant currently lacks
authority to practice medicine in
Virginia. As already discussed, a
physician must be a licensed
practitioner to dispense a controlled
substance in Virginia. Thus, because
Registrant lacks authority to practice
medicine in Virginia and, therefore, is
not authorized to handle controlled
substances in Virginia, 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. AP1844287 issued to
Javaid A. Perwaiz. 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
Javaid A. Perwaiz to renew or modify
this registration, as well as any other
pending application of Javaid A.
Perwaiz, for additional registration in
Virginia. This Order is effective May 21,
2021.
D. Christopher Evans,
Acting Administrator.
[FR Doc. 2021–08173 Filed 4–20–21; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. DEA–816]
Importer of Controlled Substances
Application: Research Triangle
Institute
Drug Enforcement
Administration, Department of Justice.
ACTION: Notice of application.
AGENCY:
Research Triangle Institute
has applied to be registered as an
SUMMARY:
importer of basic class(es) of controlled
substance(s). Refer to SUPPLEMENTARY
INFORMATION listed below for further
drug information.
Registered bulk manufacturers of
the affected basic class(es), and
applicants therefore, may file written
comments on or objections to the
issuance of the proposed registration on
or before May 21, 2021. Such persons
may also file a written request for a
hearing on the application on or before
May 21, 2021.
DATES:
Written comments should
be sent to: Drug Enforcement
Administration, Attention: DEA Federal
Register Representative/DPW, 8701
Morrissette Drive, Springfield, Virginia
22152. All requests for a hearing must
be sent to: Drug Enforcement
Administration, Attn: Administrator,
8701 Morrissette Drive, Springfield,
Virginia 22152. All requests for a
hearing should also be sent to: (1) Drug
Enforcement Administration, Attn:
Hearing Clerk/OALJ, 8701 Morrissette
Drive, Springfield, Virginia 22152; and
(2) Drug Enforcement Administration,
Attn: DEA Federal Register
Representative/DPW, 8701 Morrissette
Drive, Springfield, Virginia 22152.
ADDRESSES:
In
accordance with 21 CFR 1301.34(a), this
is notice that on March 18, 2021,
Research Triangle Institute, 3040 East
Cornwallis Road, Hermann Building,
Room 106, Research Triangle Park,
North Carolina 22709–0000, applied to
be registered as an importer of the
following basic class(es) of controlled
substance(s):
SUPPLEMENTARY INFORMATION:
Drug
code
khammond on DSKJM1Z7X2PROD with NOTICES
Controlled substance
3-Fluoro-N-methylcathinone (3–FMC) .....................................................................................................................................
Cathinone ................................................................................................................................................................................
Methcathinone .........................................................................................................................................................................
4-Fluoro-N-methylcathinone (4–FMC) .....................................................................................................................................
Pentedrone (a-methylaminovalerophenone) ...........................................................................................................................
Mephedrone (4-Methyl-N-methylcathinone) ............................................................................................................................
4-Methyl-N-ethylcathinone (4–MEC) .......................................................................................................................................
Naphyrone ...............................................................................................................................................................................
N-Ethylamphetamine ...............................................................................................................................................................
N,N-Dimethylamphetamine ......................................................................................................................................................
Fenethylline .............................................................................................................................................................................
Aminorex ..................................................................................................................................................................................
4-Methylaminorex (cis isomer) ................................................................................................................................................
Gamma Hydroxybutyric Acid ...................................................................................................................................................
Methaqualone ..........................................................................................................................................................................
Mecloqualone ..........................................................................................................................................................................
JWH–250 (1-Pentyl-3-(2-methoxyphenylacetyl) indole) ..........................................................................................................
SR–18 (Also known as RCS–8) (1-Cyclohexylethyl-3-(2-methoxyphenylacetyl) indole) ........................................................
ADB–FUBINACA (N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(4-fluorobenzyl)-1H-indazole-3-carboxamide) .....................
5-Fluoro-UR–144 and XLR11 [1-(5-Fluoro-pentyl)1H-indol-3-yl](2,2,3,3-tetramethylcyclopropyl)methanone ........................
AB–FUBINACA (N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-(4-fluorobenzyl)-1H-indazole-3-carboxamide) .............................
FUB–144 (1-(4-fluorobenzyl)-1H-indol-3-yl)(2,2,3,3-tetramethylcyclopropyl)methanone) .......................................................
JWH–019 (1-Hexyl-3-(1-naphthoyl)indole) ..............................................................................................................................
MDMB–FUBINACA (Methyl 2-(1-(4-fluorobenzyl)-1H-indazole-3-carboxamido)-3,3-dimethylbutanoate) ..............................
VerDate Sep<11>2014
18:12 Apr 20, 2021
Jkt 253001
PO 00000
Frm 00083
Fmt 4703
Sfmt 4703
E:\FR\FM\21APN1.SGM
21APN1
1233
1235
1237
1238
1246
1248
1249
1258
1475
1480
1503
1585
1590
2010
2565
2572
6250
7008
7010
7011
7012
7014
7019
7020
Schedule
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
]]>Agencies
[Federal Register Volume 86, Number 75 (Wednesday, April 21, 2021)]
[Notices]
[Pages 20732-20734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08173]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Javaid A. Perwaiz, M.D.; Decision and Order
On June 1, 2020, the Assistant Administrator, Diversion Control
Division, Drug Enforcement Administration (hereinafter, Government),
issued an Order to Show Cause (hereinafter, OSC) to Javaid A. Perwaiz,
M.D. (hereinafter, Registrant) of Chesapeake, Virginia. OSC, at 1. The
OSC proposed the revocation of Registrant's Certificate of Registration
No. AP1844287. It alleged that Registrant is without ``authority to
handle controlled substances in Virginia, 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 according to the records of the
Virginia Department of Health Professionals, Registrant's Virginia
Medicine & Surgery license expired on March 31, 2020. OSC, at 2. The
OSC further alleged that because Registrant's medical license was
expired, Registrant no longer held authority to handle controlled
substances in Virginia. 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
[[Page 20733]]
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 August 5, 2020, a Diversion Investigator
(hereinafter, DI) assigned to the Norfolk Resident Office of the
Washington Field Division stated that she first attempted service of
the OSC by forwarding a copy of the OSC to Registrant's legal counsel
via email on June 2, 2020. Request for Final Agency Action (hereinafter
RFAA), App. 8 (Declaration of DI), at 2. After nine days with no
response, the DI called the office of Registrant's legal counsel and
left a message with his staff regarding the OSC. Id. On June 19, 2020,
the DI called the office of Registrant's legal counsel a second time
after having still not received a response to the first phone call or
the initial email. Id. at 3. According to the DI, Registrant's legal
counsel returned the second phone call later that day and
``acknowledged receiving a copy of the [OSC]'' and ``confirmed that
[Registrant] had received a copy of the [OSC] (although he could not
remember the exact date).'' Id. Registrant's legal counsel also said
that he ``planned on filing a response to the [OSC] on behalf of
[Registrant].'' Id. The DI concluded that, following the phone call on
June 19, 2020, neither she nor her office ``received any other written
correspondence, telephonic communication, or any other communication
from [Registrant], or any representative on his behalf in response to
the [OSC].'' Id.
The Government forwarded its RFAA, along with the evidentiary
record, to this office on August 6, 2020. In its RFAA, the Government
represents that ``despite [Registrant's legal counsel's] assurances to
DEA personnel that a response would filed [sic] in response to the
[OSC], more than [thirty days] have passed since Registrant received
the [OSC]; however, Registrant has not submitted to DEA a request for
hearing.'' \1\ RFAA, at 2; see also RFAA, Apps. 5 and 6. The Government
requests that Registrant's Certificate of Registration be revoked based
on Registrant's lack of state authority to handle controlled
substances. RFAA, at 5 and 6.
---------------------------------------------------------------------------
\1\ The Government also represents that Registrant has not
``otherwise filed a response with the agency following the issuance
of the [OSC].'' RFAA, 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 or before
June 19, 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.
AP1844287 at the registered address of 3003 Churchland Boulevard,
Chesapeake, VA 23321. RFAA, App. 1. Pursuant to this registration,
Registrant is authorized to dispense controlled substances in schedules
II through V as a practitioner. Id. Registrant's registration expired
on March 31, 2021.\2\ Id.
---------------------------------------------------------------------------
\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
68474 (2019).
---------------------------------------------------------------------------
The Status of Registrant's State License
According to the records of the Virginia Department of Health
Professionals, Registrant's Virginia Medicine & Surgery License expired
on March 31, 2020. RFAA, App. 3, at 1. Additionally, Registrant's
license remained expired as of the date of the OSC. RFAA, App. 7, at 1.
According to Virginia's online records, of which I take official
notice, Registrant's license is still expired.\3\ https://dhp.virginiainteractive.org/lookup (last visited date of signature of
this Order). Virginia's online records show that Registrant's medical
license remains expired and that Registrant is not authorized in
Virginia to practice medicine. Id.
---------------------------------------------------------------------------
\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 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 is not currently licensed to
engage in the practice of medicine in Virginia, 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 71371 (2011),
pet. for rev. denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh
Blanton, M.D., 43 FR 27616, 27617 (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 71371-72;
[[Page 20734]]
Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick A.
Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby Watts, M.D., 53 FR 11919,
11920 (1988); Frederick Marsh Blanton, 43 FR at 27617.
Under the Virginia Drug Control Act, a practitioner ``shall only
prescribe, dispense, or administer controlled substances in good faith
for medicinal or therapeutic purposes within the course of his
professional practice.'' Va. Code 54.1-3408. The Virginia Drug Control
Act also defines a ``practitioner,'' as ``a physician . . . licensed,
registered, or otherwise permitted to distribute, dispense, prescribe
and administer, or conduct research with respect to a controlled
substance in the course of professional practice or research in the
Commonwealth.'' Va. Code 54.1-3401. Further, under Virginia state law,
a ``physician'' is defined as ``a person licensed to practice medicine
in the Commonwealth of Virginia or in the jurisdiction where the health
care is to be rendered or withheld.'' Va. Code 54.1-2981; see also: Va.
Code 54.1-2902 (``It shall be unlawful for any person to practice
medicine . . . in the Commonwealth without a valid unrevoked license
issued by the Board of Medicine.'').
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice medicine in Virginia. As already
discussed, a physician must be a licensed practitioner to dispense a
controlled substance in Virginia. Thus, because Registrant lacks
authority to practice medicine in Virginia and, therefore, is not
authorized to handle controlled substances in Virginia, 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.
AP1844287 issued to Javaid A. Perwaiz. 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 Javaid A. Perwaiz to renew or modify
this registration, as well as any other pending application of Javaid
A. Perwaiz, for additional registration in Virginia. This Order is
effective May 21, 2021.
D. Christopher Evans,
Acting Administrator.
[FR Doc. 2021-08173 Filed 4-20-21; 8:45 am]
BILLING CODE 4410-09-P
