Registrant Actions - 2013
[Federal Register Volume 78, Number 60 (Thursday, March 28, 2013)]
[Notices]
[Pages 19012-19015]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07195]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 13-13]
Pawan Kumar Jain, M.D.; Decision And Order
On February 12, 2013, Administrative Law Judge (ALJ) Gail A.
Randall 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.
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 BJ5128067, issued to Pawan Kumar Jain, M.D., be, and it
hereby is, revoked. I further order that any pending application of
Pawan Kumar Jain, M.D., to renew or modify his registration, be, and it
hereby is, denied. This Order is effective immediately.
[[Page 19013]]
Dated: March 21, 2013.
Michele M. Leonhart,
Administrator.
Dedra S. Curteman, Esq., for the Government
Jeffrey C. Grass, Esq., for the Respondent
Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision
of the Administrative Law Judge
I. Facts
Gail A. Randall, Administrative Law Judge. The Deputy Assistant
Administrator, Drug Enforcement Administration ("DEA" or
"Government"), issued an Order to Show Cause ("Order") dated
December 13, 2012,\1\ proposing to revoke the DEA Certificate of
Registration, Number BJ5128067, of Pawan Kumar Jain, M.D., ("Dr.
Jain" or "Respondent"), as a practitioner, pursuant to 21 U.S.C.
824(a)(3)-(4) (2006), and deny any pending applications for renewal or
modification of such registration because the Respondent does "not
have authority to practice medicine or handle controlled substances in
the State of New Mexico" and Respondent's "continued registration is
inconsistent with the public interest." [Order at 1].
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\1\ The Order to Show Cause was served on the Respondent on
December 17, 2012. See Government's Notice of Service.
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Specifically, the Order alleged that the New Mexico State Medical
Board took action against the Respondent on June 28, 2012. [Id.]. The
Order further alleged that as a result of the action by the New Mexico
State Medical Board, the Respondent is without authority to handle
controlled substances in the state of New Mexico, the state in which
the Respondent is registered with the DEA. [Id.] Thus, the DEA must
revoke Respondent's DEA registration based on his lack of authority to
handle controlled substances in the state of New Mexico. [Id.].
Additionally, the Order alleged that on April 3, 2012, during the
execution of a federal search warrant, DEA personnel located controlled
substances and prescription bottles at the Respondent's premises after
the Respondent had previously stated on February 22, 2012, that he
"did not order controlled substances for dispensing or administering
at [his] registered location" nor did he maintain controlled
substances on his premises. [Id. at 1-2]. In relation to this
allegation, the Order asserted that the Respondent did not maintain an
inventory log for the controlled substances located at his registered
location and thus, he violated 21 CFR 1304.11(a). Lastly, the Order
alleged that from June 2008 through September 2011 at least twenty-one
of the Respondent's patients died as a result of 'multiple drug
toxicity.' [Id. at 2]. Moreover, the Order alleged that a medical
expert reviewed ten of the Respondent's patient records, seven of which
were deceased patients, and determined that the Respondent's care
deviated from the standard of care, and in some cases resulted in the
death of the Respondent's patients. [Id.]. In relation to this
allegation, the Order stated that the Respondent provided strong and
dangerous controlled substances to patients who posed a risk of
diversion, the Respondent post-dated prescriptions, the Respondent
failed to properly complete prescriptions, and the Respondent did not
issue prescriptions for a legitimate medical purpose in the usual
course of professional practice. [Id.].
On January 16, 2013, the Respondent, through counsel, filed a
request for a hearing in the above-captioned matter. Concurrently with
his request for hearing, Respondent filed a Motion for Stay of the
Order to Show Cause Hearing ("Respondent's Motion"). Therein,
Respondent moved to stay the scheduled hearing in this matter pending
the resolution of Respondent's "Petition for Judicial Review of the
New Mexico State Medical Board's revocation of his medical license."
[Respondent's Motion at 1]. Respondent argued that a stay of the
administrative hearing will not harm the public interest because Dr.
Jain is currently unable to handle controlled substances. [Id.].
On January 22, 2013, the Court issued an Order directing the
Government to respond to Respondent's Request for Hearing and Motion
for Stay of the Hearing on or before January 29, 2013.
On January 28, 2013, the Government filed its Motion for Summary
Disposition and Response to Respondent's Request for Hearing and Motion
for Stay of the Hearing (Government's Motion").\2\ Therein, the
Government opposed the Respondent's Motion for Stay of the Hearing and
moved this Court to summarily dismiss the above-captioned matter.
[Government's Motion at 1].
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\2\ Government concurrently filed its Notice of Service, which
stated that the December 13, 2012 Order to Show Cause was served on
Respondent on December 17, 2012 by DEA investigators. See
Government's Notice of Service. Thus, the Respondent's January 16,
2013 Request for Hearing was timely filed. See 21 CFR 1301.43(a)
(2012).
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The Government argued that summary disposition is warranted in this
case because the Respondent currently lacks authority to handle
controlled substances in the State of New Mexico and thus lacks
authority to possess a DEA registration. [Id. at 2-3]. The Government
attached to its motion, a Decision and Order from the New Mexico
Medical Board, dated December 17, 2012, in which the New Mexico Medical
Board revoked the Respondent's medical license.\3\ [Id. at Exhibit C].
The Government argues, therefore, that in accordance with Agency
precedent, the DEA is barred by statute from continuing the
Respondent's registration because his state medical license has been
revoked. [Id. at 2-3]. In addition, the Government argues that summary
disposition is appropriate even though the Respondent intends to
contest the New Mexico Board's decision to revoke his authority to
practice medicine or handle controlled substances in the state of New
Mexico. [Id. at 3-5]. The Government argues that summary disposition is
warranted, even though the Respondent's privileges may be reinstated at
a later date, because Agency precedent allows for the revocation of a
registrant's registration when a state license has been suspended.
[Id.]. Therefore, the Government requested that this Court grant its
Motion for Summary Disposition and recommend that the Respondent's DEA
registration be revoked because the Respondent lacks state authority to
handle controlled substances. [Id. at 5]. In addition, the Government
requested that this Court deny Respondent's Motion for Stay of the
Hearing. [Id.].
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\3\ In addition, the Government provided a June 28, 2012 Summary
Suspension Order of the Respondent's New Mexico license to practice
as a "physician assistant" [sic] from the New Mexico Medical
Board, see Government Motion at Exh. A, a July 6, 2012 Amended
Summary Suspension Order of the Respondent's New Mexico license to
practice as a physician from the New Mexico Medical Board, see
Government Motion at Exh. B, and a November 5, 2012 Hearing Officers
Report from the New Mexico Medical Board, see Government Motion at
Exh. D.
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On January 29, 2013, the Court issued an Order directing the
Respondent to respond to Government's Motion for Summary Disposition on
or before February 5, 2013. The Respondent failed to respond to the
Government's Motion for Summary Disposition by the Court's set date of
February 5, 2013.
For the reasons set forth below, I will grant the Government's
Motion and recommend that the Administrator revoke the Respondent's DEA
Certificate of Registration. But, I note that, pursuant to 21
CFR1301.13(a) (2012), the Respondent may apply for a new DEA
Certificate of Registration at any time.
I will also deny the Respondent's Motion for a Stay.
[[Page 19014]]
II. Discussion
A. Respondent Currently Lacks Authority To Handle Controlled Substances
In New Mexico
The DEA will not maintain a controlled substances registration if
the registrant is without state authority to handle controlled
substances in the state in which the registrant practices. The
Controlled Substances Act ("CSA") provides that obtaining a DEA
registration is conditional on holding a state license to handle
controlled substances. See 21 U.S.C. 802(21) (2006) (defining
"practitioner" as "a physician * * * 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. 823(f)
(2006) ("the Attorney General shall register practitioners * * * if
the applicant is authorized to dispense * * * controlled substances
under the laws of the State in which he practices"). The DEA,
therefore, has consistently held that the CSA requires the DEA to
revoke the registration of a practitioner who no longer possesses a
state license to handle controlled substances. See 21 U.S.C. 824(a)(3)
(2006) (stating "a registration may be suspended or revoked by the
Attorney General upon a finding that the registrant has had his State
license or registration suspended, revoked or denied by competent State
authority"); Beverley P. Edwards, M.D., 75 FR 49,991 (DEA 2010);
Joseph Baumstarck, M.D., 74 FR 17,525 (DEA 2009).
In this case, the Government has provided adequate documentation
that the Respondent's New Mexico medical license was suspended on July
6, 2012, and further revoked on December 17, 2012. See Government's
Motion at Exh. B and C. Furthermore, although the Respondent failed to
file a response to the Government's Motion for Summary Disposition, the
Respondent admitted in his January 16, 2013 Request for Hearing that
"Dr. Jain does not have authority to practice medicine or handle
controlled substances in the State of New Mexico." [Respondent's
Request for Hearing at 1]. Although the Respondent is seeking review of
the New Mexico Medical Board's decision to revoke his medical
license,\4\ this is not a sufficient reason to stay these proceedings.
The law is clear that when the Respondent is without state authority to
practice medicine, his DEA registration must be revoked. See 21 U.S.C.
824(a)(3); Edwards, 75 FR 49,991; Baumstarck, 74 FR 17,525.
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\4\ In Respondent's January 16, 2012 Request for Hearing, he
contends that he has a pending request before the New Mexico Medical
Board to reopen his case and that this request "will be heard and
ruled on by the Board within 60 days of the date of this letter."
[Respondent's Request for Hearing at 2].
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Although it is not disputed that the Respondent currently lacks
state authority to practice medicine and handle controlled substances,
the Respondent contends that his continued DEA registration is within
the public interest. See Respondent's Request for Hearing at 2-4.
Respondent argues that even though his state medical license has been
revoked, a decision which he is appealing, he is entitled to a hearing
in this matter because there are "genuine issues of material fact"
that will be introduced through expert testimony, records, and other
documents that demonstrate "that given the totality of the facts and
circumstances in the record, revoking his DEA COR registration would
not be appropriate or justified." [Id. at 3]. Additionally, the
Respondent contends that he has over 40 years of experience in the
medical field and "has never been the subject of any allegations that
his medical practice is inconsistent with the public interest." [Id.].
The Respondent also asserts that he has no conviction record and has
always complied with federal and state laws relating to controlled
substances. [Id. at 3-4]. Lastly, the Respondent asserts that the
allegations in the Order to Show Cause are "in dispute and not
accurate." [Id. at 4]. Moreover, the Respondent argues that his expert
witness will be able to prove that the Respondent's practices were for
a legitimate medical purpose and "within acceptable limits of the
recognized standard of care in the field of pain management." [Id.].
While the Respondent may have raised genuine disputes of fact
concerning the allegations in the Government's Order to Show Cause,
those disputes are immaterial in light of the Respondent's current lack
of state registration. Indeed, the CSA and Agency precedent make clear
that as a prerequisite to DEA registration the Respondent must have
state authority to handle controlled substances, and that without such
authority all other issues before this forum are moot. See 21 U.S.C.
802(21); 21 U.S.C. 823(f); Joseph Baumstarck, M.D., 74 FR at 17,527
(DEA 2009). Thus, because there is no dispute that the Respondent lacks
state authority to practice medicine and handle controlled substances,
the Respondent's registration must be revoked.
Moreover, because there is no genuine dispute as to any material
fact and substantial evidence shows that Respondent is presently
without state authority to practice medicine and handle controlled
substances in New Mexico, summary disposition is warranted. It is well
settled that when there is no question of material fact involved, there
is no need for a plenary administrative hearing and that summary
disposition is appropriate. See Layfe Robert Anthony, M.D., 67 FR
35,582 (DEA 2002); Michael G. Dolin, M.D., 65 FR 5,661 (DEA 2000);
Jesus R. Juarez, M.D., 62 FR 14,945 (DEA 1997). Accordingly, both the
plain language of the CSA and Agency interpretive precedent dictate
that summary disposition is appropriate and the Respondent's DEA
registration must be revoked because Respondent is without state
authority to practice medicine and handle controlled substances.
B. Respondent Is Entitled To Reapply for Registration With the DEA
Any person who is required to register with the DEA may apply for
registration at any time. 21 CFR 1301.13(a) (2012) ("Any person who is
required and who is not registered may apply for registration at any
time. No person required to be registered shall engage in any activity
for which registration is required until the application for
registration is granted and a Certificate of Registration is issued by
the Administrator to such person").
The Respondent is permitted to reapply for a Certificate of
Registration with the DEA at any time in the future. 21 CFR 1301.13(a).
However, the Respondent will not be permitted to engage in activity for
which a registration is required until his application is granted by
the DEA. Id.
III. Conclusion, Order, and Recommendation
Consequently, there is no genuine dispute of material fact
regarding the Respondent's lack of state authority to practice medicine
and handle controlled substances. Thus, summary disposition for the
Government is appropriate. It is well settled that when there is no
question of material fact involved, there is no need for a plenary,
administrative hearing. See Dolin, 65 FR 5,661. Here, there is no
genuine dispute that the Respondent currently lacks state authority to
practice medicine and to handle controlled substances in New Mexico.
Accordingly, I hereby
Deny the Respondent's Motion for a Stay; further I
Grant the Government's Motion for Summary Disposition.
I also forward this case to the Deputy Administrator for final
disposition. I
[[Page 19015]]
recommend that the Respondent's DEA Certificate of Registration, Number
BJ5128067, be revoked.\5\
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\5\ The sole basis of my recommendation is the loss of
Respondent's state licensure. I make no findings or conclusions
concerning the other allegations asserted in the Order to Show
Cause.
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Dated: February 12, 2013.
Gail A. Randall,
Administrative Law Judge.
[FR Doc. 2013-07195 Filed 3-27-13; 8:45 am]
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