Registrant Actions - 2012
[Federal Register Volume 77, Number 238 (Tuesday, December 11, 2012)]
[Notices]
[Pages 73677-73678]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29815]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 12-45]
Stephanie A. Tarapchak, M.D.; Decision and Order
On May 1, 2012, Administrative Law Judge (ALJ) Timothy D. Wing
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, his ultimate
conclusion of law, and recommended Order. However, because the ALJ's
decision does not adequately explain the legal basis for the Agency's
Order, additional clarification is provided below.
As this Agency has repeatedly explained, DEA's longstanding rule
that a practitioner may not hold a registration if he lacks authority
under state law to dispense controlled substances and that the loss of
such authority subjects a practitioner's registration to revocation, is
not based solely on 21 U.S.C. 824(a)(3), which is a grant of authority
to either suspend or revoke a registration "upon a finding" that a
registrant "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 . . . dispensing of controlled
substances." See, e.g., Richard H. Ng, 77 FR 29694 (2012); Segun M.
Rasaki, 77 FR 29692 (2012); David W. Wang, 72 FR 54297 (2007). Rather,
DEA's rule derives primarily from two other provisions of the
Controlled Substances Act (CSA), 21 U.S.C. 802(21), which defines the
term "practitioner," and 21 U.S.C. 823(f), which sets forth the
requirements for obtaining a registration as a practitioner.
More specifically, the CSA defines "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).
Consistent with this definition, Congress, in setting the requirements
for obtaining a practitioner's registration, provided 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).
Because one cannot obtain a practitioner's registration unless one
holds authority under state law to dispense controlled substances, and
because where a registered practitioner's state authority has been
revoked or suspended, the practitioner no longer meets the statutory
definition of a practitioner, 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 both obtaining and maintaining
a practitioner's registration. See Hooper v. Holder, 2012 WL 2020079,
*2 (4th Cir. 2012) (unpublished) ("Because Sec. 823(f) and Sec.
802(21) make clear that a practitioner's registration is dependent upon
the practitioner having state authority to dispense controlled
substances, the [DEA]'s decision to construe Sec. 824(a)(3) as
mandating revocation upon suspension of a state license is not an
unreasonable interpretation of the CSA."); see also ALJ at 4 (citing
cases).\1\
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\1\ This citation is to the slip opinion as issued by the ALJ.
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Accordingly, the Agency has consistently held that "'the CSA
requires the revocation of a registration issued to a practitioner * *
* even where a state board has suspended (as opposed to revoked) a
practitioner's authority with the possibility that the authority may be
restored at some point in the future.'" Hooper, 2012 WL 2020079, at *2
(quoting Calvin Ramsey, M.D., 76 FR 20034, 20036 (2011)). See also
Kamal Tiwari, M.D., 76 FR 71604, 71606 (2011) ("revocation is
warranted even where a practitioner's state authority has been
summarily suspended and the State has yet to provide the practitioner
with a hearing to challenge the State's action at which he may
ultimately prevail"); Bourne Pharmacy, Inc., 72 FR 18273, 18274
(2007); Anne Lazar Thorn, 62 FR 12847 (1997). I therefore adopt the
ALJ's 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 BT9132008, issued to Stephanie A. Tarapchak, M.D., be, and
it hereby is, revoked. I further order that any pending application of
Stephanie A. Tarapchak, M.D., to renew or modify her registration, be,
and it hereby is, denied. This Order is effective January 10, 2013.
Dated: December 3, 2012.
Michele M. Leonhart,
Administrator.
Robert W. Walker, Esq., for the Government
Stephanie A. Tarapchak, M.D., Pro Se
Recommended Ruling, Findings of Fact, Conclusions of Law and Decision
of the Administrative Law Judge
Timothy D. Wing, Administrative Law Judge. This proceeding is an
adjudication governed by the Administrative Procedure Act, 5 U.S.C.
Sec. 551 et seq., to determine whether Respondent's Certificate of
Registration (COR) with the Drug Enforcement Administration (DEA)
should be revoked, and any pending applications for renewal or
modification of that registration and any applications for additional
registrations should be denied. Without this registration, Stephanie A.
Tarapchak, M.D. (Respondent) would be unable to lawfully possess,
prescribe, dispense or otherwise handle controlled substances.
I. Procedural Posture
On February 10, 2012, the Administrator, Drug Enforcement
Administration (DEA or Government), issued an Order to Show Cause and
Immediate Suspension of Registration (OSC/IS) relating to Certificate
of Registration (COR) BT9132008, and served on Respondent on February
14, 2012. The OCS/IS alleged that Respondent's continued registration
constitutes an imminent danger to the public health and safety. The
OSC/IS also provided notice to Respondent of an opportunity to show
cause as to why the DEA should not revoke Respondent's DEA COR
BT9132008, pursuant to 21 U.S.C. Sec. 824(a)(4), on the grounds that
Respondent's continued registration would be inconsistent with the
public interest under 21 U.S.C. Sec. 823(f).
On April 13, 2012, Respondent, acting pro se, filed an untimely
request for hearing with the DEA Office of Administrative Law Judges
(OALJ) in the above-captioned matter. Acknowledging that her request
for hearing was untimely, she requested an extension of time to file
her request for hearing pursuant to 21 C.F.R. Sec. 1316.47(b). (Req.
for Hr'g at 6.) On April 16, 2012, OALJ sent a letter to Respondent
informing her of her right to representation under 21 C.F.R. Sec.
1316.50.
On April 16, 2012, I issued an Order for Prehearing Statements in
which I ordered the parties to file statements addressing whether good
cause exists
[[Page 73678]]
for Respondent's untimely request for hearing. Upon receipt of those
statements, on April 24, 2012, I issued a Memorandum and Order
Regarding Timeliness of Respondent's Request for Hearing. Although I
found good cause for Respondent's untimely request for hearing, I
stayed the proceedings and ordered the parties to file, no later than
May 1, 2012, a statement addressing whether Respondent has state
authority to handle controlled substances.\1\
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\1\ In Respondent's Statement of Good Cause Existing in which
she addressed good cause for her untimely hearing request,
Respondent noted that her former counsel "received the Order
suspending [Respondent]'s license on April 11, 2012 and did not
place it in the mail to her until April 16, 2012, with an attendant
twenty-day deadline to respond." (Resp't April 23, 2012 Stmt. at
11.)
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On May 1, 2012, the Government filed a Motion for Summary
Disposition on the grounds that Respondent currently lacks state
authority to handle controlled substances. On May 1, 2012, Respondent
filed her Statement Addressing Whether Respondent has State Authority
to Handle Controlled Substances, in which she concedes that she lacks
state authority.
II. The Parties' Contentions
A. The Government
In support of its motion for summary disposition, the Government
asserts that on April 11, 2012, the Pennsylvania State Board of
Osteopathic Medicine (Board) issued a Notice of disciplinary action and
Preliminary Order indefinitely suspending Respondent's state medical
license for no less than three (3) years, and that Respondent
consequently lacks authority to possess, dispense or otherwise handle
controlled substances in Pennsylvania, the jurisdiction in which she
maintains her DEA registration. (Mot. at 2.) The Government contends
that such state authority is a necessary condition for maintaining a
DEA COR and therefore asks that I summarily recommend to the
Administrator that Respondent's DEA COR be revoked. (Id. at 2-3.) In
support of its motion, the Government cites Agency precedent and
attaches the Board's Notice and Preliminary Order referred to above.
B. Respondent
Respondent concedes that "at this time [she] does not have state
authority to handle controlled substances." (Resp't May 1, 2012 Stmt.
at 1.) Respondent submits that in October 2011, she entered into a
Consent Agreement with the Board, which "subjected her to very
restrictive and imposing terms and conditions that were not fully
disclosed in the Agreement." (Id. at 2.) According to Respondent, on
April 11, 2012, the Board filed a Petition for Appropriate Relief, a
Preliminary Order, and a Notice of formal disciplinary action, alleging
that Respondent violated the terms and conditions of the October 2011
Consent Agreement. (Id. at 3.) The April 11, 2012 Preliminary Order
"suspended [Respondent]'s license to practice osteopathic medicine
indefinitely pending the disposition of a hearing." (Id.) Respondent
also attached the Preliminary Order to her statement.
III. Discussion
At issue is whether Respondent may maintain her DEA COR given that
Pennsylvania has suspended her state license to practice medicine.
Under 21 U.S.C. 824(a)(3), a practitioner's loss of state authority
to engage in the practice of medicine and to handle controlled
substances is grounds to revoke a practitioner's registration.
Accordingly, this agency has consistently held that a person may not
hold a DEA registration if she is without appropriate authority under
the laws of the state in which she does business. See Scott Sandarg,
D.M.D., 74 FR 17,528 (DEA 2009); David W. Wang, M.D., 72 FR 54,297 (DEA
2007); Sheran Arden Yeates, M.D., 71 FR 39,130 (DEA 2006); Dominick A.
Ricci, M.D.,> 58 FR 51,104 (DEA 1993); Bobby Watts M.D., 53 FR 11,919
(DEA 1988).
Summary disposition in a DEA revocation case is warranted even if
the period of suspension of a respondent's state medical license is
temporary, or even if there is the potential for reinstatement of state
authority because "revocation is also appropriate when a state license
had been suspended, but with the possibility of future reinstatement."
Stuart A. Bergman, M.D., 70 FR 33,193 (DEA 2005); Roger A. Rodriguez,
M.D., 70 FR 33,206 (DEA 2005).
It is well-settled that when no question of fact is involved, or
when the material facts are agreed upon, a plenary, adversarial
administrative proceeding is not required, under the rationale that
Congress does not intend administrative agencies to perform meaningless
tasks. See Layfe Robert Anthony, M.D., 67 FR 35,582 (DEA 2002); Michael
G. Dolin, M.D., 65 FR 5661 (DEA 2000); see also Philip E. Kirk, M.D.,
48 FR 32,887 (DEA 1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297
(6th Cir. 1984). Accord Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35
F.3d 600, 605 (1st Cir. 1994).
In the instant case, the Government asserts, and Respondent
concedes, that Respondent's Pennsylvania medical license is presently
suspended. This allegation is confirmed by the attachments to the
Government's motion, as well as Respondent's own admission and
attachments. I therefore find there is no genuine dispute as to any
material fact, and that substantial evidence shows that Respondent is
presently without state authority to handle controlled substances in
Pennsylvania.
Because "DEA does not have statutory authority under the
Controlled Substances Act to maintain a registration if the registrant
is without state authority to handle controlled substances in the state
in which he practices," Yeates, 71 Fed. Reg. at 39,131, I conclude
that summary disposition is appropriate. It is therefore
ORDERED that the hearing in this case is hereby CANCELLED; and it
is further
ORDERED that all proceedings before the undersigned are STAYED
pending the Agency's issuance of a final order.
Recommended Decision
I grant the Government's motion for summary disposition and
recommend that Respondent's DEA COR BT9132008 be revoked and any
pending applications for renewal or modification of that registration
and any applications for additional registrations be denied.
Dated: May 1, 2012.
Timothy D. Wing
Administrative Law Judge
[FR Doc. 2012-29815 Filed 12-10-12; 8:45 am]
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NOTICE: This is an unofficial version. An official version of this publication may be obtained
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