Registrant Actions - 2012
[Federal Register Volume 77, Number 119 (Wednesday, June 20, 2012)]
[Notices]
[Pages 37068-37070]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15061]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Muzaffer Aslan, M.D.; Decision and Order
On December 14, 2011, I, the Administrator of the Drug Enforcement
Administration, issued an Order to Show Cause and Immediate Suspension
of Registration to Muzaffer Aslan, M.D. (hereinafter, Respondent), of
Los Angeles, California. GX 2. The Show Cause Order proposed the
revocation of Respondent's DEA Certificate of Registration AA0044040,
which authorizes him to dispense controlled substances as a
practitioner, on the ground that Respondent does not possess authority
under the laws of the State of California, the State in which he is
registered with DEA, to dispense controlled substances. Id. at 1
(citing 21 U.S.C. 824(a)(3)). The Order further proposed the denial of
any applications to renew or modify Respondent's registration, as well
as for any additional registration, on the ground that his "continued
registration is inconsistent with the public interest." Id. (citing 21
U.S.C. 823(f)).
The Show Cause Order specifically alleged that on December 2, 2010,
the Medical Board of California had revoked Respondent's State medical
license and that the Board had found, inter alia, that Respondent had,
on multiple occasions, prescribed controlled substances "without
performing a prior good faith examination." Id. at 1-2. The Order thus
alleged that Respondent is currently without authority to handle
controlled substances in California. Id. at 2.
The Show Cause Order further alleged that notwithstanding that
Respondent is "prohibited from practicing medicine in * * *
California," he has continued to prescribe controlled substances as
evidenced by data from the State's prescription monitoring program. Id.
Based on the forgoing, I concluded that Respondent's continued
registration during the pendency of the proceedings would constitute an
"imminent danger to the public health and safety." Id. (citing 21
U.S.C. 824(a)(4)). I therefore authorized the immediate suspension of
Respondent's registration. Id.
On or about December 15, 2011, a DEA Diversion Investigator
personally served the Order on Respondent by hand-delivering a copy to
his residence.\1\ GX 7, at 2. The DI also mailed a copy of the Order to
Respondent. Id.
---------------------------------------------------------------------------
\1\ The Order further explained the procedures available to
Respondent to contest the allegations. GX 2, at 2-3. These included
his right to request a hearing, his right to submit a written
statement regarding the matters of fact and law alleged in the Show
Cause Order while waiving his right to a hearing, and finally, the
consequences for failing to do either within the thirty-day time
limit. See id. (citing 21 CFR 1301.43 and 1316.47).
---------------------------------------------------------------------------
On December 28, 2011, Respondent submitted a letter to the Hearing
Clerk, Office of Administrative Law Judges. GX 3. Therein, Respondent
stated that he was waiving his right to a hearing but submitting a
written statement of his position regarding the allegations. GX 3.
Pursuant to 21 CFR 1301.43(c), Respondent's statement has been made a
part of the record of this proceeding and has been considered in this
decision.
On February 7, 2012, the Government submitted its Request for Final
Agency Action and forwarded the record to me. Having considered the
entire record, I find that substantial evidence supports a finding that
Respondent no longer possesses authority under the laws of the State of
California to dispense controlled substances. I also find that
substantial evidence supports a finding that Respondent dispensed
controlled substances even after the Medical Board of California
revoked his state license, and was no longer lawfully authorized to
dispense controlled substances under his CSA registration. I thus
conclude that the Government has made out a prima facie case for
revocation of Respondent's registration. Finally, because nothing in
Respondent's statement refutes the Government's prima facie case, I
will order that his registration be revoked and that any application be
denied. I make the following findings of fact.
Findings
Respondent is the holder of DEA Certificate of Registration
AA0044040, which authorized him (prior to the Immediate Suspension
Order), to dispense controlled substances in schedules II through V as
a practitioner at the registered location of 11847 Wilshire Blvd.,
Suite 303-A, Los Angeles, CA 90025. GX 1. Respondent's registration
does not expire until June 30, 2012. Id.
Respondent previously held Physician's and Surgeon's Certificate
Number A18999, which was issued by the Medical Board of California
(MBC). However, on November 3, 2010, the
[[Page 37069]]
MBC adopted the Proposed Decision of a State Administrative Law Judge
(ALJ) regarding the MBC's Accusation and Petition to Revoke Probation;
the MBC's order became effective on December 2, 2010. GX 4, at 1.
As set forth in the Proposed Decision, Respondent and the MBC had
previously entered into a Stipulated Settlement and Disciplinary Order,
which placed Respondent on probation and required that he comply with
various terms and conditions, including that he "maintain a record of
all controlled substances ordered, prescribed, dispensed, administered,
or possessed by him." Id. at 3. While following the MBC's Order,
Respondent continued to prescribe controlled substances, he failed to
comply with the Order and yet filed reports with the MBC, under the
penalty of perjury, stating that he was doing so. Id. at 4-6. Indeed,
at the state hearing, he asserted that he was not required to keep the
log even though he was warned on various dates by MBC inspectors that
he was required to do so. Id.
The State ALJ found that Respondent's "affirmations under penalty
of perjury that he had complied with all the terms and conditions of
his probation were knowingly false." Id. at 6. The State ALJ further
found that Respondent had refused to admit wrongdoing and had provided
no assurances that he would comply with the condition in the future.
Id. at 6-7. The State ALJ thus concluded that "the public health,
safety and welfare cannot be protected by any discipline short of
revocation" and thus proposed that Respondent's medical license be
revoked. Id. at 7-8.
The Government also submitted printouts it obtained from the
California Substance Utilization Review & Evaluation System showing
Respondent's prescribing history. However, this document does not show
the actual date on which the prescriptions were written, but rather,
the dates on which they were filled. Even so, because under the CSA, a
prescription cannot be filled more than six months after the date on
which it was written, see 21 U.S.C. 829(b), the printouts establish
that Respondent issued prescriptions for such drugs as hydrocodone/
acetaminophen, a schedule III controlled substance, as well as zolpidem
tartrate and diethylproprion hcl, both being schedule IV controlled
substances, after his state license was revoked.\2\ See GXs 5 & 6; see
also 21 CFR 1308.13(e); id. 1308.14(c) & (e).
---------------------------------------------------------------------------
\2\ Because the document does not list the actual date of
issuance, but rather, only the fill date of the prescriptions, many
of the prescriptions listed as having been filled or refilled after
the effective date of the Board's revocation order may have actually
been written before the effective date. Accordingly, in making this
finding, I have relied only on those prescriptions which were
initially filled after June 2, 2011.
---------------------------------------------------------------------------
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). And because Congress has clearly
mandated that a practitioner possess state authority in order to be
deemed a practitioner under the Act, DEA has repeatedly held that
revocation is the appropriate sanction whenever a practitioner is no
longer authorized to dispense controlled substances, regardless of
whether the practitioner's state authority has been revoked or is
subject only to a suspension of fixed duration. See James L. Hooper, 76
FR 71371, 71373 (2011) (collecting cases).
In his written statement, Respondent does not dispute that his
state license has been suspended. Rather, he asserts that the MBC's
order "is the result of the exaggerated reports of two young
inexperienced doctors (who are not internal medicine specialists such
as [him]self, but are preventive medicine and family medicine
specialists, and are therefore unqualified to make a report) each paid
$150 per hour for their work of review of seven of my patients'
charts." GX 3, at 1. Respondent further asserts that the MBC's order
of revocation "is essentially the result of a disagreement between the
Medical Board and myself" and that all the information regarding his
prescriptions "was kept in the Progress Notes of the patients'
charts" and "therefore[,] there was no reason to ask me to keep" the
log. Id. at 1-2.
Respondent's argument is a collateral attack on the validity of the
MBC's Revocation Order. However, DEA has held repeatedly that a
registrant cannot collaterally attack the result of a state criminal or
administrative proceeding in a proceeding under section 304, 21 U.S.C.
824, of the CSA. Calvin Ramsey, 76 FR 20034, 20036 (2011) (other
citations omitted); Brenton D. Glisson, 72 FR 54296, 54297 n.2 (2007);
Shahid Musud Siddiqui, 61 FR 14818, 14818-19 (1996). Rather,
Respondent's challenge to the validity of the MBC's Revocation Order
must be litigated in the forums provided by the State of California,
and his contentions regarding the validity of the MBC's Order are not
material to this Agency's resolution of whether he is entitled to
maintain his DEA registration in California.
Because it is undisputed that Respondent currently lacks authority
to dispense controlled substances in California, the State in which he
holds his DEA registration, Respondent no longer meets the definition
of a practitioner under the CSA and therefore, he is not entitled to
maintain his registration. Accordingly, his registration will be
revoked.\3\
---------------------------------------------------------------------------
\3\ The record also supports a finding that Respondent continued
prescribing controlled substances following the revocation of his
state license. This conduct is actionable under 21 U.S.C. Sec.
824(a)(4), which authorizes the revocation of a registration where a
registrant has committed acts which "render his registration * * *
inconsistent with the public interest." In determining the public
interest, the Agency is required to consider the following factors:
(1) The recommendation of the appropriate State licensing board
or professional disciplinary authority.
(2) The applicant's experience in dispensing * * * controlled
substances.
(3) The applicant's conviction record under Federal or State
laws relating to the manufacture, distribution, or dispensing of
controlled substances.
(4) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health and
safety.
21 U.S.C. 823(f). The public interest factors are considered in
the disjunctive. Robert A. Leslie, 68 FR 15227, 15230 (2003). I may
rely on any one or a combination of factors and may give each factor
the weight I deem appropriate in determining whether to revoke an
existing registration or to deny an application for a registration.
Id. Moreover, I am "not required to make findings as to all of the
factors." Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see also
Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005). See also
MacKay v. DEA, 664 F.3d 808, 816 (10th Cir. 2011).
In this matter, I have considered all of the factors. With
respect to factor one, the same considerations as set forth above in
the discussion of my authority under 21 U.S.C. 824(a)(3) apply.
Furthermore, while there is no evidence that Respondent has been
convicted of an offense falling within factor three, under DEA
precedent, this is not dispositive. See MacKay, 664 F.3d at 817-18
(quoting Dewey C. MacKay, 75 FR 49956, 49973 (2010)).
However, I further find that evidence, which is relevant under
factor two (Respondent's experience in dispensing controlled
substances) and factor four (Respondent's compliance with applicable
laws related to controlled substances), establishes that Respondent
issued controlled substance prescriptions after the State revoked
his medical license. This is a violation of 21 U.S.C. 1306.03(a)(1),
which provides that "[a] prescription for a controlled substance
may be issued only by an individual practitioner who is * * *
[a]uthorized to prescribe controlled substances by the jurisdiction
in which he is licensed to practice his profession" and thus
constitutes a violation of 21 U.S.C. 841(a)(1). Moreover, while
Respondent stated in his letter that "[t]his is not accurate" and
that two MBC investigators "talked to me about it," GX 3, at 1, he
offered no probative evidence to refute the allegation.
---------------------------------------------------------------------------
[[Page 37070]]
Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a)(3) &
(4), as well as 28 CFR 0.100(b), I order that DEA Certificate of
Registration AA0044040, issued to Muzaffer Aslan, M.D., be, and it
hereby is, revoked. I further order that any pending application of
Muzaffer Aslan, M.D., to renew or modify his registration, be, and it
hereby is, denied. This Order is effective immediately.\4\
---------------------------------------------------------------------------
\4\ For the same reason that 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.
---------------------------------------------------------------------------
Dated: June 8, 2012.
Michele M. Leonhart,
Administrator.
[FR Doc. 2012-15061 Filed 6-19-12; 8:45 am]
BILLING CODE 4410-09-P
NOTICE: This is an unofficial version. An official version of this publication may be obtained
directly from the Government Printing Office (GPO).
|
