Registrant Actions - 2010
[Federal Register: August 16, 2010 (Volume 75, Number 157)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Nicholas J. Jerrard, M.D.; Revocation of Registration
On September 30, 2009, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Nicholas J. Jerrard, M.D. (Respondent), of San Diego, California. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration, BJ6361036, which authorizes him to dispense controlled substances as a practitioner, on the ground that he does not "have authority to practice medicine or handle controlled substances in the state of California." Show Cause Order at 1. The Order also proposed the denial of "any pending applications for renewal or modification of" Respondent's registration. Id.
Specifically, the Order alleged that the Medical Board of California (MBC) had "revoked [Respondent's] State medical license" and that he is "currently without authority to handle controlled substances in the State of California." Id. The Order also alleged that the Board based its revocation of his license "on a report from the Oregon Board of Medical Examiners" which indicated that he "failed a pre-employment drug screen by testing positive for two Schedule IV controlled substances and failed to provide proof of valid prescriptions for the medications." Id. at 2. Finally, the Order alleged that in an interview with an MBC investigator in June 2008, Respondent "admitted that [he] had used methamphetamine approximately every two months since 2005." Id. Finally, the Order notified Respondent of his right to request a hearing on the allegations, the procedure for doing so, and the consequences for failing to do so. Id. On December 10, 2009, a DEA Diversion Investigator (DI) served Respondent by leaving a copy of the Show Cause Order at Respondent's registered address. Moreover, on December 22, 2009, the DI left a copy of Show Cause Order at an address in San Diego for Respondent which he had obtained from the MBC.\1\
\1\ In addition, the DI had previously gone to Respondent's registered address and met its "current occupant," who stated that he was in contact with Respondent but that the latter "had been out of the country for a few years." The DI gave this person his contact information and asked that he have Respondent contact him; however, Respondent did not contact the DI. The DI also performed an Internet search for Respondent's "possible practice locations" but was "unable to locate any pertinent information."
As regards the sufficiency of service of the Order to Show Cause, I conclude that notwithstanding that Respondent was not personally served, the Government has met the requirements of the Due Process Clause. As to notice, due process is satisfied when "[t]he means employed [are] such as one desirous of actually informing the absentee might reasonably adopt to accomplish." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950). More recently, the Supreme Court has held that "[d]ue process does not require that a property owner receive actual notice before the government may take his property." Jones v. Flowers, 547 U.S. 220, 226 (citing Dusenbery v. United States, 543 U.S. 161, 170 (2002)). Furthermore, due process does not require "heroic efforts," Dusenbery, 534 U.S. at 170, but rather only that "the government * * * provide 'notice reasonably calculated, under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " 547 U.S. at 226 (quoting Mullane, 339 U.S. at 314). I accordingly find that the DI's efforts to serve the Order on Respondent satisfied due process notwithstanding the Government's inability to effectuate personal service as the DI's efforts were "reasonably calculated, under all the circumstances, to apprise [Respondent] of the pendency of the action." Mullane, 339 U.S. at 314.
Since the date of service of the Show Cause Order, more than thirty days have passed and neither Respondent, nor anyone purporting to represent him, has requested a hearing. I therefore find that Respondent has waived his right to a hearing and issue this Decision and Final Order based on the record submitted by the Government. 21 CFR 1301.43. I make the following findings.
Respondent holds DEA Certificate of Registration BJ6361036, which was last renewed on January 1, 2008. The registration does not expire until December 31, 2010.
On March 24, 2009, the MBC adopted a Default Decision and Order in a case brought against a Respondent's State medical license. In re Nicholas Joseph Jerrard, M.D., No. 10-2006-179554, Decision at 1 (Med. Bd. Cal. 2009). According to the decision, in November 2006, the MBC received a report from the Oregon Board of Medical Examiners (Oregon Board) which indicated that Respondent "had failed a pre-employment drug screen by testing positive for nordiazepam and temazepam and had failed to provide proof of a valid prescription for the medication." In re Jerrard, Default Decision and Order at 5. After an investigation, the Oregon Board allowed Respondent to withdraw his application to reactivate his medical license and closed the matter with no action taken. Id.
On June 10, 2008, an Investigator from the MBC interviewed Respondent. During the interview, Respondent admitted that "he had used methamphetamines approximately every two months since 2005." Id. at 6.
The MBC further found that following the pre-employment drug screen which he failed, Respondent was evaluated at the Betty Ford Center. Id. The Center recommended that he undergo six months of inpatient treatment. Id. Because of financial reasons and his fear of losing two jobs, Respondent did not follow through with the recommendation. Id.
However, around January 2008, he underwent some ten weeks of treatment at Rancho L'Abri, another inpatient facility. Id. After his discharge, Respondent found out that he had been fired from both his jobs and experienced a relapsed. Id. Thereafter, he was readmitted to Rancho L'Abri for one month and discharged to a 90-day outpatient program. Id. Respondent, nevertheless, participated in the program for only one day, indicating that he did not "feel comfortable there." Id. Subsequently, he joined another outpatient treatment program from which he graduated in September 2008. Id.
The MBC further concluded that Respondent had "[s]elf-administered controlled substances" in violation of California Business and Professions Code section 2239(a), and that he "[e]ngaged in conduct which breaches the rules or ethical code of the medical profession, or conduct which is unbecoming to a member in good standing of the medical profession, and which demonstrates an unfitness to practice medicine" in violation of California Business and Professional Code section 2234. Id. at 7. The MBC then revoked Respondent's license to practice medicine effective April 23, 2009. Decision at 1.
Under the Controlled Substances Act (CSA), a practitioner must be currently authorized to handle controlled substances in "the jurisdiction in which he practices" in order to maintain a DEA registration. See 21 U.S.C. 802(21) (defining the term "practitioner" as a person "licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices * * * to distribute, dispense * * * [or] administer * * * a controlled substance"); id. Sec. 823(f) ("The Attorney General shall register practitioners * * * to dispense * * * controlled substances * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.").
Accordingly, DEA has held repeatedly that the CSA requires the revocation of a registration issued to a practitioner whose State license has been suspended or revoked. David Wang, 72 FR 54297, 54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988). See also 21 U.S.C. 824(a)(3) (authorizing the revocation of a registration "upon a finding that the registrant * * * has had his State license or registration suspended [or] revoked * * * and is no longer authorized by State law to engage in the * * * distribution [or] dispensing of controlled substances"). Because Respondent is no longer licensed to practice medicine and therefore cannot dispense controlled substances in California, the State in which he is registered with DEA, under the CSA, he is no longer entitled to hold his registration. Accordingly, his registration will be revoked.
Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 824(a), as well as 28 CFR 0.100(b) & 0.104, I order that DEA Certificate of Registration, BJ6361036, issued to Nicholas J. Jerrard, M.D., be, and it hereby is, revoked. I further order that any pending application of Nicholas J. Jerrard, M.D., to renew or modify his registration, be, and it hereby is denied. This Order is effective September 15, 2010.
Dated: July 30, 2010.
Michele M. Leonhart,
[FR Doc. 2010-20194 Filed 8-13-10; 8:45 am]
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