[Federal Register Volume 59, Number 149 (Thursday, August 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19057]


[[Page Unknown]]

[Federal Register: August 4, 1994]


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DEPARTMENT OF JUSTICE
[Docket No. 94-8]

 

James H. Sanders, M.D.; Revocation of Registration

    On October 12, 1993, the Deputy Assistant Administrator, (then-
Director), Office of Diversion Control, Drug Enforcement Administration 
(DEA), issued an Order to Show Cause to James H. Sanders, M.D. 
(Respondent), of Barbourville, Kentucky. The Order to Show Cause 
proposed to revoke Dr. Sanders' DEA Certificate of Registration, 
AS6935918, and deny any pending applications for renewal of such 
registration. The Order to Show Cause alleged that Respondent was not 
currently authorized to handle controlled substances in the 
Commonwealth of Kentucky and that Respondent's continued registration 
would be inconsistent with the public interest, as that term is used in 
21 U.S.C. 823(f) and 824(a)(4).
    The Order to Show Cause alleged that: Since 1986, DEA received 
complaints regarding Respondent's excessive prescribing of controlled 
substances to individuals for no legitimate medical reason; between 
December 1991 and September 1992, DEA conducted an undercover 
investigation during which Respondent prescribed controlled substances 
to undercover agents upon request without performing any physical 
examination or taking a medical history; during the investigation, 
Respondent was observed prescribing controlled substances to other 
individuals in the same manner as he issued prescriptions to the 
undercover agents; in October 1992, DEA conducted a prescription survey 
of five pharmacies in Barbourville, Kentucky, which revealed that 
between April 1, 1992 and October 29, 1992, Respondent prescribed 
229,090 dosage units of controlled substances; and on December 9, 1992, 
the Commonwealth of Kentucky, State Board of Medical Licensure (Board) 
seized 43 patient records from Respondent's office.
    The Order to Show Cause further alleged that on January 21, 1993, 
the Board issued an Order of Temporary Suspension suspending 
Respondent's license to practice medicine in the Commonwealth of 
Kentucky. On March 2, 1993, the Board lifted the suspension of 
Respondent's medical license, however, his controlled substances 
privileges remained suspended. As a result, Respondent is no longer 
authorized by state law to handle controlled substances.
    Respondent, through counsel, filed a request for a hearing on the 
issues raised by the order to Show Cause, and the matter was docketed 
before Administrative Law Judge Mary Ellen Bittner. On November 19, 
1993, the Government filed a motion for summary disposition, which was 
accompanied by a letter from the General Counsel to the Board, dated 
October 20, 1993, as to the status of Respondent's controlled substance 
privileges in Kentucky. The Government argued that since Respondent is 
not currently authorized in the Commonwealth of Kentucky to handle 
controlled substances, DEA could not continue to maintain his 
registration.
    On December 14, 1993, Respondent filed a response to the 
Government's motion, asserting, in substance, that Respondent's state 
license had been temporarily restricted to limit his ability to 
prescribe controlled substances and that on February 22, 1994, the 
Board would reach a final decision regarding Respondent's privileges to 
practice medicine in Kentucky.
    On December 20, 1993, the administrative law judge issued a 
Memorandum to Counsel affording Respondent until March 15, 1994, to 
file a statement as to the status of his authority to handle controlled 
substances in Kentucky. No such statement has been filed.
    On April 7, 1994, in her opinion and recommended decision, the 
administrative law judge found that the Respondent did not deny that 
his state license to practice medicine has been restricted. The 
administrative law judge therefore, granted the Government's motion for 
summary disposition and recommended that Respondent's DEA Certificate 
of Registration be revoked.
    On May 10, 1994, the administrative law judge transmitted the 
record to the Deputy Administrator. The Deputy Administrator has 
carefully considered the entire record in this matter and, pursuant to 
21 CFR 1316.67, hereby issues his final order in this matter based upon 
findings of fact and conclusions of law as hereinafter set forth.
    The Deputy Administrator adopts the opinion and recommended 
decision of the administrative law judge in its entirety. The Drug 
Enforcement Administration cannot register or maintain the registration 
of a practitioner who is not duly authorized to handle controlled 
substances in the state in which he conducts his business. 21 U.S.C. 
802(21), 823(f) and 824(a)(3). This prerequisite has been consistently 
upheld. See James H. Nickens, M.D., 57 FR 59847 (1992); Elliott Monroe, 
M.D., 57 FR 23246 (1992); Bobby Watts, M.D., 53 FR 11919 (1988).
    The administrative law judge properly granted the Government's 
motion for summary disposition. It is well-settled that when no 
question of fact is involved, or when the facts are agreed upon, a 
plenary, adversary administrative proceeding involving evidence and 
cross-examination of witnesses is not obligatory. The rationale is that 
Congress does not intend administrative agencies to perform meaningless 
tasks. Phillip E. Kirk, M.D., 48 FR 32887 (1983), aff'd sub nom Kirk v. 
Mullen, 749 F. 2d 297 (6th Cir. 1984); Alfred Tennyson Smurthwaite, 
N.D., 43 FR 11873 (1978); see also, NLRB v. International Association 
of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, 549 F. 2d 
634 (9th Cir. 1977); United States v. Consolidated Mines and Smelting 
Co., Ltd., 455 F. 2d 432, 453 (9th Cir. 1971).
    Since Respondent is not currently authorized to handle controlled 
substances in the Commonwealth of Kentucky, it is not necessary to 
reach a conclusion regarding whether his continued registration is 
inconsistent with the public interest.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 824 and 28 CFR 0.100(b) and 0.104 (59 FR 23637), hereby orders 
that DEA Certificate of Registration, AS6935918, previously issued to 
James H. Sanders, M.D., be, and it hereby is, revoked and that any 
pending applications for renewal of such registration be, and they 
hereby are, denied, This order is effective September 6, 1994.

    Dated: July 28, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-19057 Filed 8-3-94; 8:45 am]
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