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Alan H. Olefsky, M.D.; Denial of Application
FR Doc E7-14820 [Federal Register: August 1, 2007 (Volume 72, Number
147)] [Notices] [Page 42127-42129] From the Federal Register Online via
GPO Access [wais.access.gpo.gov] [DOCID:fr01au07-103]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Alan H. Olefsky, M.D.; Denial of Application
On May 25, 2005, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Alan H. Olefsky, M.D. (Respondent), of Chicago, Illinois.
The Show Cause Order proposed to revoke Respondent's DEA Certificate of
Registration, BO3661104, as a practitioner, and to deny any pending
applications for renewal or modification of his registration, on the
ground that the Illinois Department of Financial and Professional
Regulation had suspended his state medical license and state controlled
substance license. Show Cause Order at 1. The Show Cause Order thus
alleged that Respondent was not authorized to handle controlled
substances in the State where he was registered and was thus not
entitled to maintain his registration. Id. (citing 21
U.S.C. 824(a)(3)).
The Show Cause Order also alleged that Respondent had committed acts
which rendered his registration inconsistent with the public interest.
Id. (citing 21 U.S.C. 824(a)(4)). More specifically, the Show Cause
Order alleged that from December 2002 through October 2004, Respondent
had "issued false prescriptions for controlled substances in the names
of'' three individuals, and that the prescriptions were for his "personal
use.'' Id. The Show Cause Order also notified Respondent of his right to
request a hearing on the allegations.
On June 8, 2005, the Show Cause Order was served on Respondent by
certified mail as evidenced by the signed return receipt card. Neither
Respondent, nor anyone purporting to represent him, requested a hearing
on the allegations within the time period set forth in 21 CFR 1301.43(a)
and the Show Cause Order.
The matter was held in abeyance after the State restored Respondent's
medical license. On March 30, 2007, the State again suspended
Respondent's medical license. Accordingly, on May 10, 2007, the
investigative file was forwarded to my Office for final agency action.
As an initial matter, I find that because Respondent did not request
a hearing within thirty days of receipt of the Show Cause order he has
waived his right to hearing. See 21
CFR 1301.43(d). I therefore enter this Final Order without a hearing
based on relevant material in the investigative file and make the
following findings.
Findings
Respondent was the holder of DEA Certificate of Registration,
BO3661104, which authorized him to handle schedule II through V
controlled substances as a practitioner. Respondent's registration
expired on December 31, 2004. According to the investigative file,
Respondent did not submit a renewal application until February 24, 2005,
nearly two months after his registration expired. Accordingly, I find
that Respondent's renewal application was not timely submitted and his
registration expired on December 31, 2004. See 5 U.S.C. 558(c)
(requiring submission of a "timely and sufficient application for a
renewal'' in order for a registration to be continued until the Agency
makes a "final determin[ation]'' on the application). I further find,
however, that Respondent does have an application pending before the
agency.
According to the investigative file, on February 18, 2005, the
Illinois Department of Financial and Professional Regulation summarily
suspended Respondent's state medical license and controlled substance
registrations. In support of the suspension, the State alleged, inter
alia, that "Respondent issued false prescriptions for controlled
substances under other names for personal use.'' Pet. For Temp. Susp. 1.
The petition was supported by the sworn affidavit of Larry G. McClain,
M.D., the Chief Medical Coordinator of the Illinois Department of
Financial and Professional Regulation. In his affidavit, Dr. McClain
averred that "the Department has learned that Respondent has repeatedly
issued false prescriptions for Xanax, Dilaudid and Viagra. He calls in
these prescriptions in the names of [M.G., V.G. and T.C.] He obtains
these prescriptions for personal use and pays cash to remain
untraceable.'' Dr. McClain further averred that "Respondent was arrested
for a DUI in June of 2004 and * * * has an extensive criminal history.''
In September 2006, Respondent and the State entered into a consent
order under which his medical license was restored based on his having
entered a treatment program and an Aftercare Agreement. Consent Order at
2. In the order, "Respondent admit[ted] the allegations raised by the
Department.'' Id. The consent order, which became effective on November
21, 2006, placed Respondent on "Indefinite Probation,'' and also imposed
various conditions including that he comply with the terms
[[Page 42128]]
of an Aftercare Agreement and abstain from the use of alcohol and "mood
altering and/or psychoactive drugs'' except as "prescribed by a primary
care and/or treating physician.'' Id. at 3.
Thereafter, on March 30, 2007, the State again imposed a summary
suspension of Respondent's medical license, which remains in effect. See
Notice of Temporary Suspension. In the Complaint, the State alleged that
in January 2007, Respondent had been hospitalized with "a blood alcohol
level of 327.'' Complaint at 2. The State also alleged that in February
2007, Respondent had been admitted to Rush Behavioral Care to be treated
for "alcohol dependence.'' Id. The State further alleged that in
February 2007, Respondent had applied for a new state Controlled
Substance Registration. Id. Finally, the Complaint alleged that
Respondent had failed to comply with the conditions of Consent Order.\1\
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\1\ I also take official notice of the fact that on
January 9, 1992, the Administrator of this Agency ordered the
revocation of Respondent's registration based on his having presented
fraudulent prescriptions for Percocet and Halcion to a pharmacy. See
Alan H. Olefsky, 57 FR 928, 929 (1992).
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There is no evidence in the file that the State has granted
Respondent a new Controlled Substance Registration. Moreover, the
State's summary suspension further ordered Respondent to "immediately
surrender all indicia of licensure to the Department.'' March 30, 2007
Summary Suspension Order at 1-2. I therefore find that Respondent does
not hold a current Illinois Controlled Substance Registration.
Discussion
Section 303(f) of the Controlled Substances Act provides that "[t]he
Attorney General shall register practitioners * * * to dispense * * *
controlled substances in schedule II, III, IV, or V, 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). Section 303(f) further provides that "[t]he Attorney
General may deny an application for such registration if he determines
that the issuance of such registration would be inconsistent with the
public interest.'' Id. In making the public interest determination, the
Act requires the consideration of 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.
Id.
"[T]hese factors are * * * considered in the disjunctive.'' Robert A.
Leslie, M.D., 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 a registration should be revoked.''
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).
In this case, I conclude that there are two independent grounds for
denying Respondent's application. First, Respondent is not currently
authorized under Illinois law to handle controlled substances and thus
does not meet an essential requirement for a registration under the CSA.
Second, Respondent's experience in dispensing controlled substances and
his record of compliance with applicable laws make clear that granting
him a registration would be inconsistent with the public interest.
Respondent's Lack of State Authority
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) ("[t]he term `practitioner' means 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''). See
also id. 823(f)
("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.''). Relatedly, DEA has held
repeatedly that the CSA requires the revocation of a registration issued
to a practitioner who no longer possesses authority under state law to
handle controlled substances. See 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'').
Here, the investigative file establishes that Respondent's Illinois
controlled substance registrations were suspended pursuant to the
State's February 18, 2005 order. Moreover, there is no evidence that the
State has issued a new controlled substance registration to him, and in
any event, the State's March 30, 2007 order directed him to "immediately
surrender all indicia of licensure to the Department.'' Therefore,
Respondent is without authority to handle controlled substances in
Illinois, the State in which he seeks registration. Respondent thus does
not meet an essential prerequisite for a new DEA registration and his
application will be denied on that basis. See 21 U.S.C. 823(f).
The Public Interest Analysis
Because the State's summary suspension is not a final order, review
of Respondent's application under the public interest factors is also
warranted. Here, Dr. McClain's affidavit establishes that Respondent "repeatedly
issued false prescriptions'' in the names of other persons for Xanax (alprazolam),
a schedule IV controlled substance, see 21
CFR 1308.14(c), and Dilaudid (hydromorphone), a schedule II
controlled substance. See id. 1308.12(b)(1).
Respondent then filled the prescriptions and personally abused the
drugs. Respondent admitted to this conduct in the Consent Order. I thus
find that Respondent violated Federal law. See 21
U.S.C. 843(a)(3) (rendering it "unlawful for any person knowingly or
intentionally * * * to acquire or obtain possession of a controlled
substance by misrepresentation, fraud, forgery, deception, or
subterfuge'').
Moreover, as noted above, this is not the first time that Respondent
has engaged in such criminal behavior. See Olesky, 57 FR at 928-29.
Accordingly, Respondent's experience in dispensing controlled substances
and his record of compliance with Federal law amply demonstrate that
granting his application for registration would be "inconsistent with
the public interest.'' 21 U.S.C. 823(f). Therefore, even if the State
were to restore his medical license and grant him a new state controlled
substance registration, I would still deny his application.
Order
Pursuant to the authority vested in me by 21
U.S.C. 823(f), as well as 28 CFR 0.100(b) & 0.104, I order that
the application of Alan H. Olefksy, M.D., for a DEA Certificate of
Registration as a
[[Page 42129]]
practitioner be, and it hereby is, denied. This order is effective
August 31, 2007.
Dated: July 20, 2007.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E7-14820 Filed 7-31-07; 8:45 am]
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