Registrant Actions - 2012
[Federal Register Volume 77, Number 97 (Friday, May 18, 2012)]
[Notices]
[Pages 29692-29694]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12119]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 12-28]
Segun M. Rasaki, M.D.; Decision and Order
On January 27, 2012, Administrative Law Judge (ALJ) Timothy D. Wing
issued the attached recommended decision. Neither party filed
exceptions to the decision. Having reviewed the entire record, I have
decided to adopt the ALJ's rulings, findings of fact, conclusions of
law, and recommended Order.
To make clear, DEA's longstanding rule that a practitioner may not
hold a registration if he lacks authority under state law to dispense
controlled substances and that the loss of such authority subjects a
practitioner's registration to revocation is not based solely on 21
U.S.C. 824(a)(3), which is a grant of authority to either suspend or
revoke a registration "upon a finding" that a registrant "has had
his State license or registration suspended, revoked, or denied by
competent State authority and is no longer authorized by State law to
engage in the * * * dispensing of controlled substances." As explained
in numerous cases, DEA's rule derives primarily from two other
provisions of the CSA, 21 U.S.C. 802(21), which defines the term
"practitioner," and 21 U.S.C. 823(f), which sets forth the
requirements for obtaining a registration as a practitioner.
More specifically, the CSA defines "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).
Consistent with this definition, Congress, in setting the requirements
for obtaining a practitioner's registration, provided 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). Accordingly,
because one cannot obtain a practitioner's registration unless one
holds authority under state law to dispense controlled substances, and
because where a registered practitioner's state authority has been
revoked or suspended, the practitioner no longer meets the statutory
definition of a practitioner, DEA has repeatedly held that the
possession of authority to dispense controlled substances under the
laws of
[[Page 29693]]
the State in which a practitioner engages in professional practice is a
fundamental condition for both obtaining and maintaining a
practitioner's registration. See ALJ at 4 (citing cases).\1\ So too,
"revocation is warranted even where a practitioner's state authority
has been summarily suspended and the State has yet to provide the
practitioner with a hearing to challenge the State's action at which he
may ultimately prevail." Kamal Tiwari, M.D., 76 FR 71604, 71606
(2011); see also Bourne Pharmacy, Inc., 72 FR 18273, 18274 (2007); Anne
Lazar Thorn, 62 FR 12847 (1997). Accordingly, I adopt the ALJ's
recommended order.
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\1\ This citation is to the slip opinion as issued by the ALJ.
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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), I order that DEA Certificate of
Registration BR9738595, issued to Segun M. Rasaki, M.D., be, and it
hereby is, revoked. I further order that any pending application of
Segun M. Rasaki, M.D., to renew or modify his registration, be, and it
hereby is, denied. This Order is effective immediately.\2\
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\2\ For the same reasons which led me to order the Immediate
Suspension of Respondent's registration, I conclude that the public
interest necessitates that this Order be effective immediately. See
21 CFR 1316.67.
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Dated: May 4, 2012.
Michele M. Leonhart,
Administrator.
Paul E. Soeffing, Esq., for the Government
Brian J. Lutz, Esq., for 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.
Sec. 551 et seq., to determine whether a practitioner's Certificate of
Registration (COR) with the Drug Enforcement Administration (DEA,
Government or Agency) should be revoked. Without this registration,
Segun M. Rasaki, M.D. (Respondent) would be unable to lawfully possess,
prescribe, dispense or otherwise handle controlled substances.
I. Procedural Posture
The Administrator, DEA, issued an Order to Show Cause and Immediate
Suspension of Registration (OSC/IS) relating to Certificate of
Registration (COR) BR9738595, served on Respondent on December 21,
2011. On January 19, 2012, Respondent, through counsel, filed a request
for hearing with the DEA Office of Administrative Law Judges (OALJ) in
the above-captioned matter.
On January 20, 2012, I issued an Order for Prehearing Statements,
ordering that the parties file their respective prehearing statements
no later than January 27, 2012.
On January 24, 2012, the Government filed a Motion for Summary
Disposition on the grounds that Respondent is not duly authorized to
handle controlled substances in the State of Indiana, the jurisdiction
in which he is registered with the Drug Enforcement Administration.
(Mot. Summ. Disp. at 1.) The Government attached a letter issued by the
Director of the Medical Licensing Board of Indiana stating that
Respondent's state controlled substance registration has been placed on
suspended status pursuant to Ind. Code Sec. 35-48-3-5(e). That section
provides as follows:
(e) If the Drug Enforcement Administration terminates, denies,
suspends or revokes a federal registration for the manufacture,
distribution, or dispensing of controlled substances, a registration
issued by the board under this chapter is automatically suspended.
Because the State of Indiana automatically suspended Respondent's
state controlled substance registration based solely on the OSC/IS
issued by DEA, I ordered that "counsel for each party shall file a
written statement addressing the due process implications of granting
summary disposition in this matter, specifically indicating whether the
Medical Licensing Board of Indiana has provided or will provide
Respondent with a hearing." (Memo & Order at 2 (citing Barry M.
Schultz, M.D., 76 Fed. Reg. 78,695, 78,696-97 (DEA 2011) (discussing a
respondent's right to hearing and due process))).
On January 26, 2012, the Government filed a written statement
addressing Respondent's right to due process before the Board. On
January 27, 2012, Respondent filed a response to the Government's
motion for summary disposition, in which he also addressed his due
process rights.
II. The Parties' Contentions
A. The Government
In support of its Motion for Summary Disposition, the Government
asserts that on January 3, 2012, the Medical Licensing Board of Indiana
(the Board) issued a letter to Respondent notifying him that his state
controlled substance registration was suspended as of December 22,
2011. (Gov't Mot. Summ. Disp. at 1.) The Government contends that such
state authority is a necessary condition for maintaining a DEA COR and,
therefore, asks that I grant its motion and forward the matter to the
Administrator. (Id. at 2-3.) In support of its motion, the Government
cites Agency precedent and attaches the January 3, 2012 letter issued
by the Board.
The Government asserts that Respondent's due process rights are not
violated, noting that Respondent "can avail himself of a hearing at
the state level . . . pursuant to Ind. Code Sec. 35-48-3-5(f)."
(Gov't Written Stmt. Ordered by ALJ at 2.) In support of this
assertion, the Government cites Agency precedent and state law, and
attaches Respondent's request for hearing before the Board.
B. Respondent
Respondent does not dispute that his state controlled substance
registration is currently suspended, but rather concedes that it was
suspended "as a result of the DEA's immediate suspension" of his DEA
registration. (Resp't Resp. to Gov't Mot. Summ. Disp. at 1.) Respondent
concedes that "[a]fter speaking with the Indiana Professional
Licensing Agency and the Indiana Board of Pharmacy[, Respondent] will
be afforded a hearing on the reinstatement of his state Controlled
Substances Registration." (Id.) Nonetheless, Respondent contends that
if the Government's motion for summary disposition is granted, he will
not be afforded any due process in the present case. Thus, Respondent
requests that his DEA hearing be postponed "to allow for the state
administrative process to be completed as this is the only way that the
respondent will be afforded due process to address the merits of his
suspension." (Id.)
III. Discussion
At issue is whether Respondent may maintain his DEA COR given that
Indiana, the State in which Respondent maintains his DEA COR, has
suspended Respondent's state controlled substance registration, and
whether Respondent has been or will be afforded adequate due process.
A. Respondent's State Authority
Under 21 U.S.C. Sec. 824(a)(3), a practitioner's loss of state
authority to engage in the practice of medicine and to handle
controlled substances is grounds to revoke a practitioner's
registration. Accordingly, this Agency has consistently held that a
person may not hold a DEA registration if he is without appropriate
authority under the
[[Page 29694]]
laws of the state in which he does business. See Scott Sandarg, D.M.D.,
74 Fed. Reg. 17,528 (DEA 2009); David W. Wang, M.D., 72 Fed. Reg.
54,297 (DEA 2007); Sheran Arden Yeates, M.D., 71 Fed. Reg. 39,130 (DEA
2006); Dominick A. Ricci, M.D., 58 Fed. Reg. 51,104 (DEA 1993); Bobby
Watts M.D., 53 Fed. Reg. 11,919 (DEA 1988).
Summary disposition in a DEA revocation case is warranted even if
the period of suspension of a respondent's state medical license is
temporary, or even if there is the potential for reinstatement of state
authority because "revocation is also appropriate when a state license
had been suspended, but with the possibility of future reinstatement."
Stuart A. Bergman, M.D., 70 Fed. Reg. 33,193 (DEA 2005); Roger A.
Rodriguez, M.D., 70 Fed. Reg. 33,206 (DEA 2005).
It is well-settled that when no question 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 35,582 (DEA 2002); Michael
G. Dolin, M.D., 65 Fed. Reg. 5661 (DEA 2000); see also Philip E. Kirk,
M.D., 48 Fed. Reg. 32,887 (DEA 1983), aff'd sub nom. Kirk v. Mullen,
749 F.2d 297 (6th Cir. 1984). Accord Puerto Rico Aqueduct & Sewer Auth.
v. EPA, 35 F.3d 600, 605 (1st Cir. 1994).
In the instant case, the Government asserts, and Respondent
concedes, that Respondent's Indiana controlled substance registration
is suspended. This allegation is confirmed by the January 3, 2012
letter from the Board to Respondent. I therefore find there is no
genuine dispute as to any material fact, and that substantial evidence
shows that Respondent is presently without state authority to handle
controlled substances in Illinois.
B. Respondent's Right to Due Process
"[W]here the state has revoked a registrant's license to handle
controlled substances, summary revocation of the registrant's DEA
registration is only appropriate if the registrant will be afforded a
state hearing on the merits of the state revocation or suspension."
Schultz, 76 Fed. Reg. at 78,697; cf. Odette Louise Campbell, M.D., No.
09-62 (DEA May 11, 2010) (order remanding for further proceedings where
it did not appear that state law provided registrant with opportunity
to challenge merits of state suspension based solely upon DEA immediate
suspension).
In the present case, the Board suspended Respondent's state
controlled substance registration based upon Ind. Code Sec. 35-48-3-
5(e), which states:
(e) If the Drug Enforcement Administration terminates, denies,
suspends or revokes a federal registration for the manufacture,
distribution, or dispensing of controlled substances, a registration
issued by the board under this chapter is automatically suspended.
Section 35-48-3-5(f) further provides, however, that "[t]he board may
reinstate a registration that has been suspended under subsection (e),
after a hearing, if the board is satisfied that the applicant is able
to manufacture, distribute, or dispense controlled substances with
reasonable skill and safety to the public * * *." Thus, Respondent is
entitled to a hearing to challenge the Board's automatic suspension of
his state controlled substance registration. Furthermore, not only has
Respondent requested such a hearing, but he concedes that the Board has
confirmed that he will be afforded such a hearing.
Because Respondent is afforded adequate due process under state
law, and because "DEA does not have statutory authority under the
Controlled Substances Act to maintain a registration if the registrant
is without state authority to handle controlled substances in the state
in which he practices," Sheran Arden Yeates, M.D., 71 Fed. Reg.
39,130, 39,131 (DEA 2006), I conclude that summary disposition is
appropriate. See Kamal Tiwari, M.D., 76 Fed. Reg. 71,604 (DEA 2011)
(summarily revoking the respondents' DEA registrations for lack of
state authority where the state summarily suspended the registrants'
state controlled substance registrations based upon DEA's immediate
suspension, noting that the registrants "are entitled to a hearing to
challenge the underlying allegations before the State board"). It is
therefore
ORDERED that the hearing in this case, scheduled to commence on
February 21, 2012, is hereby CANCELLED; and it is further
ORDERED that all proceedings before the undersigned are STAYED pending the Agency's issuance of a final order.
Recommended Decision
I grant the Government's Motion for Summary Disposition and
recommend that Respondent's DEA COR BR9738595 be revoked and any
pending applications for renewal or modification be denied.
Dated: January 27, 2012
Timothy D. Wing,
Administrative Law Judge.
[FR Doc. 2012-12119 Filed 5-17-12; 8:45 am]
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