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Peter A. Ahles, M.D.; Revocation of Registration
FR Doc E6-14050 [Federal Register: August 24, 2006 (Volume 71, Number
164)] [Notices] [Page 50097-50099] From the Federal Register Online via
GPO Access [wais.access.gpo.gov] [DOCID:fr24au06-77]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Peter A. Ahles, M.D.; Revocation of Registration
On August 15, 2005, I, the Deputy Administrator of the Drug
Enforcement Administration, issued an Order to Show Cause and further
ordered the immediate suspension of DEA Certificate of Registration,
AA0092558, issued to Peter A. Ahles, M.D. (Respondent), of Anaheim,
California. The Show Cause Order proposed to revoke Respondent's
registration as a practitioner and to deny any pending applications for
renewal or modification of the registration, on the ground that
Respondent's continued registration would be inconsistent with the
public interest. See 21 U.S.C. 823(f) and 824(a)(4). The Show Cause
Order also immediately suspended Respondent's registration based on my
preliminary finding that his continued registration "would constitute
an immediate danger to the public health and safety because of the
substantial likelihood that [he would] continue to acquire large amounts
of narcotic controlled substances and * * * illegally distribute these
narcotic controlled substances to potential abusers and other
unauthorized persons in exchange for cash." Show Cause Order at 3.
The
Show Cause Order specifically alleged that based on a review of
transaction reports filed by DEA registrants, Respondent, during the
period March 2004 to March 2005, had received "nearly 570,000 tablets
of Schedule III hydrocodone and codeine tablets, most of which were
packaged in 500 and 1000 count bottles." Id. at 1-2. The Show Cause
Order alleged that "[t]hese are excessive amounts of narcotics to be
legitimately dispensed or administered from a single practitioner's
office in a one-year period." Id. The Show Cause Order further alleged
that in the thirteen month period ending in April 2005, Respondent "had
purchased over one million dosage units of Schedule II through V
controlled substances, [which were] predominately narcotic tablets." Id. at 2.
The Show Cause Order also alleged that on three occasions
during May 2005, a DEA Special Agent and a cooperating source (CS) had
visited Respondent's office and made undercover buys of hydrocodone, a
Schedule III controlled substance. Id. The Show Cause Order alleged that
on two occasions, the Special Agent observed the CS pay Respondent $500
in cash and receive a plastic bag containing approximately 500 tablets
of hydrocodone. Id. The Show Cause Order alleged that on the other
occasion, the Special Agent observed the CS pay Respondent $600 and
receive a plastic bag containing 500 tablets of Norco, another
hydrocodone product. Id. The Show Cause Order further alleged that
Respondent made each of the dispensings without asking the CS for his
medical complaint, taking a medical history, or conducting a physical
examination. The Show Cause Order thus alleged that the distributions
were made "without any legitimate medical purpose and [were] not in the
course of legitimate medical practice" and violated 21 U.S.C.
841(a)(1). Id.
Finally, the Show Cause Order alleged that Respondent
had, in submitting his DEA renewal application, answered
[[Page 50098]]
"No" the question whether his state license had ever been revoked,
suspended, or placed on probation. Id. The Show Cause Order alleged that
the Medical Board of California had, in fact, placed Respondent's state
license on probation three different times and that Respondent had thus "materially falsified [his] application for registration in violation
of 21 U.S.C. 843(a)(4)(A)." Id. at 2-3. Based on evidence in the
investigative file supporting the above allegations, I further made the
preliminary finding that Respondent had "grossly avoided [his]
responsibilities as a registrant and [had] been responsible for the
actual diversion of controlled substances into other than legitimate
channels in violation of 21 U.S.C. 841(a)(1)."1
1The Show Cause Order also notified Respondent of his right to a
hearing and the procedure for requesting one.
On August 16, 2005, a DEA Diversion Investigator (DI) personally
served the Show Cause Order on Respondent. Since that time, neither
Respondent, nor anyone purporting to represent him, has responded.
Because (1) more than thirty days have passed since Respondent's receipt
of the Show Cause Order, and (2) no request for a hearing has been
received, I conclude that Respondent has waived his right to a hearing.
See 21 CFR 1309.53(c). I therefore enter this final order without a
hearing based on information contained in the investigative file.
Findings
Respondent is the holder of DEA Certificate of Registration No.
AA0092588, which expired on June 30, 2005. On May 5, 2005, Respondent
applied for a renewal of his registration and sought authority to
prescribe Schedule II through V controlled substances including Schedule
II and III narcotics. On his renewal application, Respondent answered "No" the question:
"Has the applicant ever surrendered (for cause) or
had a state professional license or controlled substance registration
revoked, suspended, denied, restricted, or placed on probation?"
According to the Medical Board of California's records, at the time
Respondent filed his renewal application, he had been the subject of
three separate disciplinary proceedings. In each of these cases, the
California Board placed Respondent on probation.\2\ I also take official
notice of the records of the California Board which indicate that on
February 24, 2006, Respondent surrendered his state license.
2The proceedings were commenced in June 1975, September 1992, and
October 1996.
The investigative file further establishes that between March 2004
and April 2005, Respondent purchased over one million dosage units of
Schedule III through Schedule V controlled substances from ANDA
Pharmaceuticals. Respondent obtained hydrocodone 7.5 and 10 mg. tablets,
codeine 4, Stadol (butorphanol tartrate), and Phenergan with codeine.
The investigative file also establishes that in April 2005, a DEA
Special Agent and a DEA Diversion Investigator debriefed a cooperating
source (CS). The CS stated that he/she had purchased various controlled
substances including hydrocodone, Norco, and Xanax from Respondent.
During the interviews, the CS related that Respondent performed little
to no medical examination and did not require that the CS give a medical
reason before selling the drugs to the CS. The CS further asserted that
Respondent charged $500 cash for 500 pills/tablets of controlled
substances, but charged $600 for 500 pills/tablets of Norco. The CS also
stated that Respondent would prescribe any drug including Schedule II
controlled substances such as Oxycontin to persons he knows well.
Finally, the CS related that Respondent had few legitimate patients and
that most of the people he saw visited him to obtain prescription drugs
either for personal use or to resell the drugs on the street.
The
investigative file further establishes that following the interviews, a
DEA special agent accompanied the CS to Respondent's office on three
separate dates. On May 12, 2005, the Special Agent observed as the CS
paid Respondent $500 and received a black plastic bag containing
approximately 500 hydrocodone tablets. Respondent did not perform a
physical examination on the CS and did not discuss with the CS a medical
reason for the dispensing. Moreover, Respondent did not give the CS any
directions for use of the drugs. The Special Agent further observed that
Respondent appeared to be under the influence of some substance.
On May
18, 2005, the same Special Agent and the CS returned to Respondent's
office. On this occasion, the CS paid $600 and received from Respondent
a black plastic bag containing 500 tablets of Norco. While on this
occasion Respondent weighed the CS, the CS offered no medical complaint
and Respondent did not perform a physical exam. Respondent also failed
to give the CS any directions for use of the drugs.
Finally, on May 19,
2005, the Special Agent and the CS returned to Respondent's office. On
this occasion, the Special Agent paid Respondent $500 and requested 500
hydrocodone tablets. Respondent handed the Special Agent a black plastic
bag containing approximately 500 Norco tablets. The Special Agent did
not complain of any medical symptoms and Respondent did not perform a
physical examination.
Discussion
As pertinent here, Section 304 of the Controlled Substances Act (CSA)
provides that a registration to:
Dispense a controlled substance * * * may be suspended or revoked * *
* upon a finding that the registrant--
(1) Has materially falsified any
application filed pursuant to or required by this subchapter or
subchapter II of this chapter;
* * * * *
(3) 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 * *
* distribution, or dispensing of controlled substances * * *;
(4) Has
committed such acts as would render his registration under section 823
of this title inconsistent with the public interest as determined under
such section[.]
21 U.S.C. 824(a).
In this case, I conclude that each of the above provisions provide
independent grounds for revoking Respondent's registration.
First, it is
clear that Respondent materially falsified his May 5, 2005 application
for renewal of his registration. On that application, Respondent was
asked whether he had "ever surrendered (for cause) or had a state
professional license or controlled substance registration revoked,
suspended, denied, restricted, or placed on probation?" (emphasis
added). Respondent answered "No," notwithstanding that the Medical
Board of California had placed him on probation on three separate
occasions. Given that the question specifically asked Respondent whether
his medical license had ever been "placed on probation," it is
indisputable that Respondent's answer was a material falsification.
The
CSA requires DEA to determine whether the issuance of a registration
would be consistent with the public interest. See 21 U.S.C. 823(f). The
provision of truthful information on applications is absolutely
essential to effectuating this statutory purpose. See 21 U.S.C.
824(a)(1); see also VI Pharmacy, Rushdi Z. Salem, 69 FR 5584, 5585
(2004); Terrance E. Murphy, M.D., 61 FR 2841, 2845 (1996). As the
[[Page 50099]]
Sixth Circuit recently observed: "Candor during DEA investigations *
* * is considered by the DEA to be an important factor when assessing
whether a physician's registration is consistent with the public
interest." Hoxie v. DEA, 419 F.3d 477, 483 (2005). Our cases
accordingly hold that "'falsification cannot be tolerated."' VI
Pharmacy, 69 FR at 5585 (quoting Murphy, 61 FR at 2845) (other citation
omitted). Respondent's failure to truthfully answer the question
regarding prior state disciplinary actions is thus reason alone to
revoke his registration.
Respondent's drug dealing provides an
additional ground for revoking his registration. Such conduct clearly
constitutes acts which "render his registration * * * inconsistent with
the public interest." See 21 U.S.C. 824(a)(4). Moreover, while the CSA
sets forth five factors to be considered in determining the public
interest, see id. Sec. 823(f), I am "not required to make findings as
to all of the factors, and can give each factor the weight [I]
determine[] is appropriate." Hoxie, 419 F.3d at 482; see also Morall v.
DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005). Where, as here, a registrant
has engaged in such egregious misconduct as drug dealing, a lengthy
analysis of each of the factors is unnecessary.
It is indisputable that
Respondent did not comply with applicable State and Federal laws "relating to controlled
substances" and that his conduct "threaten[s]
public health and safety." 21 U.S.C. 823(f)(4) and (5). Furthermore,
while the investigative file does not contain evidence establishing what
action the Medical Board of California took in response to this
investigation, see id. Sec. 823(f)(1), I have taken official notice of
the fact that on February 24, 2006, Respondent surrendered his
California medical license in response to the State Board's accusation
that Respondent committed unprofessional conduct for, inter alia,
violating state and federal drug laws.3 See also id.
Sec. 824(a)(3).
Thus, it is clear that Respondent "has committed such acts as would
render his registration * * * inconsistent with the public interest as
determined under" section 823(f). Id. Sec. 824(a)(4). The revocation of
Respondent's registration is therefore necessary to protect the public
interest.
3Although the Show Cause Order did not allege Respondent's loss of
state authority as a ground for this proceeding, the CSA does not
authorize DEA "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 FR 39130, 39131 (2006). DEA
has consistently applied this rule. Id.; see also Dominick A. Ricci,
M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 11919 (1988). Because
Respondent no longer has authority under California law to handle
controlled substances, he is not entitled to maintain his DEA
registration and revocation of his registration is warranted for this
reason as well. Furthermore, an allegation that a practitioner has
committed acts that render his continued registration inconsistent with
the public interest incorporates the statutory factors of 21 U.S.C.
823(f). See 21 U.S.C. 824(a)(4). The first factor requires consideration
of "[t]he recommendation of the appropriate State licensing board or
professional disciplinary authority." See id. Sec. 823(f)(1). An
allegation brought under section 824(a)(4) thus provides adequate notice
that a loss of a State license may be considered during the proceeding.
Order
Accordingly, 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) and 0.104, I hereby order
that DEA Certificate of Registration, AA0092558, issued to Peter A.
Ahles, M.D., be, and it hereby is, revoked. I further order that any
pending applications for renewal or modification of such registration
be, and they hereby are, denied. This order is effective September 25,
2006.
Dated: August 15, 2006.
Michele M. Leonhart, Deputy Administrator.
[FR Doc. E6-14050 Filed 8-23-06; 8:45 am]
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