Registrant Actions - 2012
[Federal Register Volume 77, Number 97 (Friday, May 18, 2012)]
[Notices]
[Pages 29691-29692]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12096]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Matthew J. Kachinas, M.D.; Decision and Order
On September 27, 2011, the Deputy Assistant Administrator, Office
of Diversion Control, Drug Enforcement Administration, issued an Order
to Show Cause to Matthew J. Kachinas, M.D. (hereinafter, Registrant),
of Ft. Myers and Venice, Florida. The Show Cause Order proposed the
revocation of Respondent's DEA Certificates of Registration, s
FK1795624 and FK1794305, and the denial of any applications to renew or
modify the registrations, on two grounds. Show Cause Order at 1 (citing
21 U.S.C. 823(f), 824(a)(3) & (4)).
First, the Order alleged that as a result of an action taken by the
Florida Board of Medicine, Registrant no longer holds authority to
dispense controlled substances in Florida, the State in which he holds
his registrations. Show Cause Order at 2. Second, the Order alleged
that "DEA's investigation revealed that [Registrant] stored and later
abandoned controlled substances at an unregistered location, in
violation of 21 CFR 1301.12(a)." Id. The Order also notified
Registrant of his right to request a hearing on the allegations or to
submit a written statement in lieu of a hearing, the procedures for
doing either, and the consequences for failing to do either. See id.
(citing 21 CFR 1301.43(a), (c), (d), & (e)).
As evidenced by the signed return receipt card, on December 5,
2011, service was accomplished on Registrant by certified mail
addressed to him at his residence. GX 7. Since the date of service,
more than thirty days have now passed and neither Registrant, nor
anyone purporting to represent him, has requested a hearing or
submitted a written statement in lieu of a hearing. Accordingly, I find
that Registrant has waived both his right to a hearing and his right to
submit a written statement in lieu of a hearing. 21 CFR 1301.43(e).
Accordingly, I issue this Decision and Order based on relevant evidence
contained in the Investigative Record submitted by the Government. I
make the following findings.
Findings
Registrant is the holder of two DEA Certificates of Registration,
which authorize him to dispense controlled substances in schedules II
through V as a practitioner: (1) FK1795624, with the
registered address of 13100 Westlinks Terrace, Suite 12, Ft. Myers,
Florida; and (2) FK1794305, with the registered address of 401
Commercial Ct., Suite D, Venice, Florida. Both of these registrations
do not expire until December 31, 2012.\1\
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\1\ Registrant also held a third registration, which expired on
December 31, 2011. However, the Government states that Registrant
did not file a renewal application for this registration. Request
for Final Agency Action at 7.
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Registrant formerly held a license to practice medicine which was
issued by the Florida Board of Medicine. However, on April 16, 2010,
the Board of Medicine issued a Final Order which adopted the
recommended order of a state Administrative Law Judge and revoked
Registrant's medical license. GX 5, at 10-11. Accordingly, I find that
Registrant is without authority under the laws of Florida to practice
medicine and dispense controlled substances.
The Government also submitted various Incident Reports it obtained
from the Longboat Key, Florida Police Department. According to these
reports, on July 6, 2011, a police officer was summoned to a home
located at 1590 Harbor Cay Lane based on "a complaint of some type of
hazardous materials located in a repossessed home." GX 6, at 1.
According to the report, the responding officer spoke with one Ms. O.
of Field Asset Services, an Austin, Texas based firm, who stated that
the home had been recently repossessed from a former physician and that
she was hired to clean up the property. Id. at 3. Ms. O. showed the
officer items that she believed to be narcotics, a large amount of
needles, and a lab specimen medium. Id. The officer took possession of
the items suspected of being
[[Page 29692]]
controlled substances and advised Ms. O. that the needles and other
medical supplies should be declared bio-hazards and removed by a
professional disposal firm. Id. Another portion of the report lists the
confiscated items and includes five vials of injectable Diazepam 5mg/ml
(a schedule IV controlled substance), 11 vials of injectable midazolam
50mg/10ml (also a schedule IV controlled substance), 1 vial of ketamine
500gm/10ml (a schedule III controlled substance), as well as one
partially used vial of each of these drugs, and one vial of brevital
sodium (a schedule IV controlled substance). Id. at 2. The police
report, however, contains no further information explaining how the
determination was made that the vials contained the above listed drugs.
See generally id. Nor does any other evidence in the record establish
how this determination was made.
In addition, the record includes a document which provides Master
Information for Registrant's expired registration and lists the same
1590 Harbor Cay Lane address as his mailing address. GX 3. While this
document creates a reasonable suspicion that Registrant brought the
above items to this address, the record contains no further evidence
sufficient to move beyond suspicion and into the realm of substantial
evidence necessary to establish this as a fact. See NLRB v. Columbian
E. & S. Co., 306 U.S. 292, 300 (1939) ("Substantial evidence is more
than a scintilla, and must do more than create a suspicion of the
existence of the fact to be established."). More specifically, while
the police report notes that the home had "recently been repossessed
from" Registrant, no other evidence establishes the declarant's basis
of knowledge, let alone such facts as the respective dates on which
Registrant vacated the premises and the home was repossessed, whether
the home was secured after Registrant vacated the premises and was in
that state when Ms. O. entered it and found the items, and whether
Registrant was the only person who stayed in the home and who had
access to controlled substances.
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 "upon a
finding that the registrant * * * has had his State license * * *
suspended [or] revoked * * * by competent State authority and is no
longer authorized by State law to engage in the * * * dispensing of
controlled substances." Moreover, DEA has repeatedly 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.
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 Act, 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 medicine. See, e.g., Calvin
Ramsey, 76 FR 20034, 20036 (2011); Dominick A. Ricci, 58 FR 51104,
51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988).
As found above, on April 16, 2010, the Florida Board of Medicine
revoked Registrant's medical license and accordingly, he is no longer
authorized under Florida law to dispense controlled substances. Because
Registrant no longer satisfies the CSA's requirement for maintaining
his registrations, I will order that his registrations be revoked and
that any pending applications be denied.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a)(3), as well as 28 CFR 0.100(b), I order that DEA Certificates of
Registration FK1795624 and FK1794305, issued to Matthew J. Kachinas,
M.D., be, and they hereby are, revoked. I further order that any
pending application of Matthew J. Kachinas, M.D., to renew or modify
either registration, be, and it hereby is, denied. This Order is
effective June 18, 2012.
Dated: May 4, 2012.
Michele M. Leonhart,
Administrator.
[FR Doc. 2012-12096 Filed 5-17-12; 8:45 am]
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NOTICE: This is an unofficial version. An official version of this publication may be obtained
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