[Federal Register Volume 60, Number 19 (Monday, January 30, 1995)]
[Notices]
[Pages 5699-5700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2190]



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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 94-60]


Diane E. Shafer, M.D.; Revocation of Registration Denial of 
Application

    On June 27, 1994 the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Diane E. Shafer, M.D. (Respondent). The Order to 
Show Cause proposed to revoke Dr. Shafer's DEA Certificate of 
Registration, AS7495624, issued to her in the Commonwealth of Kentucky, 
and deny her July 29, 1993, application for registration as a 
practitioner in the State of West Virginia.
    The Order to Show Cause alleged that: In November 1987, the 
Commonwealth of Kentucky, Board of Medical Licensure (Kentucky Board) 
filed a complaint against Respondent charging her with giving false 
testimony in a deposition, falsely billing insurance carriers, and 
excessively and improperly prescribing controlled substances, and 
although in 1990 the presiding officer recommended that the charges 
against Respondent be dismissed, Respondent failed to disclose to the 
Kentucky Board the fact that she married the presiding hearing officer 
ten days prior to his recommendation; in May 1990, the Kentucky Board 
brought a second complaint against the Respondent, alleging that she 
gave false testimony in a sworn deposition, and as a result, 
Respondent's Kentucky medical license was placed on probation for five 
years, and she was fined $2,500; on July 16, 1992, the Kentucky Board 
reinstated the 1987 charges against Respondent based in part on her 
improper billing of the West Virginia workers' compensation fund, 
ordered Respondent's medical license be placed on probation for five 
years, fined her $2,500, and filed a complaint against Respondent for 
unprofessional and unethical conduct based upon her failure to disclose 
her relationship with the Kentucky Board's hearing officer and 
providing him with money; on July 14, 1993, Respondent was convicted of 
bribery in the Jefferson Circuit Court, sentenced to five years 
imprisonment, and is currently appealing the conviction; on June 17, 
1993, the Kentucky Board ordered the temporary suspension of 
Respondent's medical license, and on April 23, 1994, the Kentucky Board 
revoked her license to practice medicine; Respondent continued to 
prescribe controlled substances to patients several months after her 
Kentucky license was suspended; on June 12, 1993, Respondent untimely 
filed an application for renewal of her DEA Certificate of Registration 
that had expired on February 28, 1993, falsified her address, and 
provided false information regarding her practice at a West Virginia 
Hospital; and effective November 12, 1993, the West Virginia Board of 
Medicine suspended Respondent's license to practice medicine.
    Respondent, through counsel, requested a hearing on the issues 
raised by the Order to Show Cause, and the matter was placed on the 
docket of Administrative Law Judge Mary Ellen Bittner. On August 9, 
1994, the Government filed a motion for summary disposition, alleging 
that Respondent was not authorized to handle controlled substances in 
Kentucky or West Virginia. On September 6, 1994, Respondent responded 
to the Government's motion, and filed her motion for summary 
disposition.
    On September 16, 1994, in her opinion and recommended decision, the 
administrative law judge granted the Government's motion for summary 
disposition and recommended that Respondent's DEA Certificate of 
Registration, AS7495624, issued to her in the Commonwealth of Kentucky, 
be revoked and that her pending application for registration in West 
Virginia be denied. On September 26, 1994, Respondent filed exceptions 
to the opinion and recommended decision of the administrative law 
judge. On October 18, 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 administrative law judge found that the Government's motion for 
summary disposition alleged that Respondent is not authorized to handle 
controlled substances in Kentucky or West Virginia. The Government's 
motion was based on the April 23, 1994 revocation of Respondent's 
medical license in Kentucky and the November 12, 1993 suspension of her 
medical license in West Virginia. The administrative law judge also 
found that Respondent's response to the Government's motion did not 
deny that she was without authority to handle controlled substances in 
either Kentucky or West Virginia, but simply alleged that Respondent's 
West Virginia medical license was temporarily suspended, and that she 
was licensed to practice medicine in Pennsylvania. The administrative 
law judge concurred with the Government's motion regarding Respondent's 
lack of state authorization to handle controlled substances in Kentucky 
and West Virginia.
    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. Philip 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.d 432, 453 (9th Cir. 1971).
    Consequently, the administrative law judge recommended that 
Respondent's DEA Certificate of Registration, AS7495624, issued to her 
in the Commonwealth of Kentucky, be revoked and that her pending 
application for registration in West Virginia be denied. In her 
exceptions to the opinion and recommended decision of the 
administrative law judge, the Respondent argued, inter alia, that 
matters alleged in the Government's Order to Show Cause, and restated 
in the administrative law judge's recommended decision were in error or 
on appeal. Respondent urged that the grounds alleged in her exceptions 
be given consideration, and that she be [[Page 5700]] allowed to 
present evidence in this regard.
    The Respondent acknowledged in her exceptions that she is without 
authority to handle controlled substances in Kentucky and West 
Virginia, thus supporting the Government's contention. State 
authorization to handle controlled substances where Respondent is 
registered with DEA or seeks registration with DEA is the only relevant 
issue in this proceeding. As outlined above, DEA cannot register the 
Respondent to handle controlled substances without such authority. 
Therefore, the Deputy Administrator has not considered Respondent's 
other arguments as set forth in her exceptions. The Deputy 
Administrator hereby adopts the opinion and recommended decision of the 
administrative law judge in its entirety.
    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, hereby orders that DEA 
Certificate of Registration, AS7495624, previously issued to Diane E. 
Shafer, M.D., be, and it hereby is, revoked, and that her pending 
application for registration in West Virginia be denied. This order is 
effective March 1, 1995.

    Dated: January 24, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-2190 Filed 1-27-95; 8:45 am]
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