Registrant Actions - 2011
[Federal Register Volume 76, Number 222 (Thursday, November 17, 2011)]
[Notices]
[Pages 71374-71375]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29692]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 10-54]
Joseph Giacchino, M.D.; Decision and Order
On July 9, 2010, Administrative Law Judge (ALJ) Timothy D. Wing,
issued the attached recommended decision. The Respondent did not file
exceptions to the decision.
Having reviewed the record in its entirety including the ALJ's
recommended decision, I have decided to adopt the ALJ's rulings,
findings of fact, conclusions of law, and recommended Order.
Respondent contends that because the State of Illinois has not
issued a final determination as to whether his licenses should be
suspended or revoked, DEA lacks authority to revoke his registration.
Respondent's Resp. to Mot. for Summ. Disp., at 2. He argues that 21
U.S.C. 824(a)(3) "expressly contemplates a final decision of the state
agency, as it contains the plain and ordinary language that the
physician is 'no longer authorized"' to handle controlled substances,
that "the future status of [his] license is uncertain and subject to
procedural safeguards before a final determination is made," and that
interpreting the statute "to apply to 'temporary' suspensions, which
are uncertain and transitory, is not consistent with the language" of
the statute. Id. at 3.
Respondent ignores that the Controlled Substances Act (CSA) defines
"[t]he term 'practitioner' [to] mean[] a physician * * * licensed,
registered, or otherwise permitted, by * * * the jurisdiction in which
he practices * * * to dispense * * * a controlled substance in the
course of professional practice." 21 U.S.C. 802(21). He also ignores
that the CSA expressly requires, as a condition of obtaining a
registration, that a practitioner be "authorized to dispense * * *
controlled substances under the laws of the State in which he
practices." Id. Sec. 823(f).
Furthermore, in 21 U.S.C. 824(a)(3), Congress expressly authorized
the revocation of a DEA registration issued to a registrant whose
"State license or registration [has been] suspended * * * by competent
State authority and is no longer authorized by State law to engage in
the * * * dispensing of controlled substances * * * or has had the
suspension, revocation, or denial of his registration recommended by
competent State authority." Thus, the CSA expressly grants the Agency
authority to revoke where a practitioner's state authority is under a
suspension, which by definition is a sanction of finite duration. See
Merriam-Webster's Collegiate Dictionary 1187 (10th ed. 1998) (defining
"suspend" as "to debar temporarily from a privilege * * * or
function").
Nothing in the statute precludes DEA from revoking a registration
in those cases where a practitioner's state authority has been
summarily suspended. Indeed, that Congress has authorized revocation
where the suspension or revocation of a practitioner's state license or
registration has merely been recommended by state authority,
demonstrates that DEA is not required to await a final decision from
the State before acting to revoke his registration. Thus, for purposes
of the CSA, it does not matter that Illinois suspended Respondent's
medical license and state registration prior to a hearing, at which he
may ultimately prevail. See, e.g., Bourne Pharmacy, 72 FR 18,273,
18,274 (2007); Agostino Carlucci, M.D., 49 FR 33,184, 33,184-85 (1984).
Rather, what matters--as DEA has repeatedly held--is whether Respondent
is without authority under Illinois law to dispense a controlled
substance. See Oakland Medical Pharmacy, 71 FR 50,100, 50,102 (2006)
("a registrant may not hold a DEA registration if it is without
appropriate authority under the laws of the state in which it does
business"); Accord Rx Network of South Florida, LLC, 69 FR 62,093
(2004); Wingfield Drugs, Inc., 52 FR 27,070 (1987). Because it is
undisputed that Respondent currently lacks authority under Illinois law
to dispense controlled substances, I reject Respondent's argument.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 28 CFR 0.100(b) and 0.104, I order that DEA
Certificate of Registration, BG6335485, issued to Joseph Giacchino,
M.D., be, and it hereby is, revoked. I further order that any pending
application of Joseph Giacchino, M.D., to renew or modify his
registration, be, and it hereby is, denied. This Order is effective
immediately.\1\
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\1\ In suspending Respondent's state licenses, the Illinois
Department of Financial and Professional Regulation found that the
public interest and safety "imperatively require emergency
action." Department of Fin. and Prof. Reg. v. Joseph Giacchino,
M.D., No. 2009-04502 (Ill. Dep't Fin. & Prof. Reg. Apr. 22, 2010)
(suspension order at 1). For the same reason, I conclude that the
public interest requires that this Order be effective immediately. 21 CFR 1316.67.
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[[Page 71375]]
Dated: November 8, 2011.
Michele M. Leonhart,
Administrator.
James Hambuechen, Esq., for the Government
Gerald G. Goldberg, Esq., for the Respondent
Recommended Ruling, Findings of Fact, Conclusions of Law, and Decision
of the Administrative Law Judge
Timothy D. Wing, Administrative Law Judge. This proceeding is an
adjudication governed by the Administrative Procedure Act, 5 U.S.C. 551
et seq. to determine whether Respondent's Certificate of Registration
with the Drug Enforcement Administration (DEA) should be revoked and
any pending applications for renewal or modification of that
registration denied. Without this registration, Respondent, Joseph
Giacchino, M.D., would be unable to lawfully possess, prescribe,
dispense or otherwise handle controlled substances.
On April 22, 2010, the State of Illinois Department of Financial
and Professional Regulation, Division of Professional Regulation,
ordered that Respondent's Physician and Surgeon License and Controlled
Substance License be temporarily suspended pending further state
proceedings. On April 30, 2010, the Deputy Assistant Administrator,
Office of Diversion Control, DEA, issued an Order to Show Cause why DEA
should not revoke Respondent's DEA Certificate of Registration,
BG6335485, on the ground that Respondent lacked authority to handle
controlled substances in Illinois, the state in which he maintained his
DEA registration. Respondent, through counsel, timely requested a
hearing on the issues raised in the Order to Show Cause.
The Government subsequently filed a Motion for Stay of Proceedings
and Summary Disposition, asserting that on April 22, 2010, the State of
Illinois Department of Financial and Professional Regulation, Division
of Professional Regulation, ordered that Respondent's Physician and
Surgeon License and Controlled Substance License be suspended and that
Respondent consequently did not have authority to possess, dispense or
otherwise handle controlled substances in Illinois, the jurisdiction in
which he maintained his DEA registration. The government contended that
such state authority is a necessary condition for DEA registration and
therefore asked that I issue an order of temporary stay with regard to
further filing deadlines in the instant case. The Government further
requested that I grant the Government's motion for summary disposition
and recommend to the Deputy Administrator that Respondent's
registration be revoked. Counsel for the Government attached to the
motion a copy of the Notice of Temporary Suspension issued to
Respondent by the State of Illinois Department of Financial and
Professional Regulation, Division of Professional Regulation. The
notice included an Order that suspended Respondent's Illinois Physician
and Surgeon License and Controlled Substance License, effective April
22, 2010, "pending proceedings before an Administrative Law Judge at
the Department of Financial and Professional Regulation and the Medical
Disciplinary Board of the State of Illinois."
Respondent replied to the Government's motion on June 23, 2010,
asserting that because the suspension of Respondent's Illinois
Physician and Surgeon License and Controlled Substances License is
merely temporary, the status of Respondent's state license is
uncertain. Respondent argues that the Government's motion is therefore
premature.
Discussion
Loss of state authority to engage in the practice of medicine and
to handle controlled substances is grounds to revoke a practitioner's
registration under 21 U.S.C. 824(a)(3). Accordingly, this agency has
consistently held that a person may not hold a DEA registration if he
is without appropriate authority under the laws of the state in which
he does business. See Scott Sandarg, DMD, 74 FR 17528 (DEA 2009); David
W. Wang, M.D., 72 FR 54297 (DEA 2007); Sheran Arden Yeates, M.D., 71 FR
39130 (DEA 2006); Dominick A. Ricci, M.D., 58 FR 51104 (DEA 1993);
Bobby Watts M.D., 53 FR 11919 (DEA 1988). In the instant case, the
Government asserts, and Respondent does not deny, that Respondent's
Illinois Physician and Surgeon License and Controlled Substance License
are temporarily suspended.
Summary disposition is warranted if the period of suspension is
temporary, or if there is the potential for reinstatement of state
authority because "revocation is also appropriate when a state license
has been suspended, but with the possibility of future reinstatement."
Stuart A. Bergman, M.D., 70 FR 33193 (DEA 2005); Roger A. Rodriguez,
M.D. 70 FR 33206 (DEA 2005). Respondent's argument that 21 U.S.C.
824(a)(3) "expressly contemplates a final decision of the state
agency" is not supported by agency precedent.
It is well settled that when no questions of fact is involved, or
when the material facts are agreed upon, a plenary, adversarial
administrative proceeding is not required, under the rationale that
Congress does not intend administrative agencies to perform meaningless
tasks. See Layfe Robert Anthony, M.D., 67 FR 35582 (DEA 2002); Michael
G. Dolin, M.D., 65 FR 5661 (DEA 2000). See also Philip E. Kirk, M.D.,
48 FR 32887 (DEA 1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297
(6th Cir. 1984); Puerto Rico Aqueduct and Sewer Auth. v. EPA, 35 F.3d
600, 605 (1st Cir. 1994).
As noted above, in the instant case it is clear that there are no
material disputed facts. The Government asserted and Respondent did not
deny that Respondent is without state authority to handle controlled
substances in Illinois at the present time. In these circumstances, I
conclude that further delay in ruling on the Government's motion for
summary disposition is not warranted. I therefore find that the motion
of summary disposition is properly entertained and granted.
Recommended Decision
I grant the Government's Motion for Summary Disposition and
recommend that Respondent's DEA registration be revoked and any pending
applications denied.
Dated: July 9, 2010.
Timothy D. Wing,
Administrative Law Judge.
[FR Doc. 2011-29692 Filed 11-16-11; 8:45 am]
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