[Federal Register Volume 61, Number 44 (Tuesday, March 5, 1996)]
[Notices]
[Pages 8664-8665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5006]



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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 95-45]


Gilbert Ross, M.D.; Revocation of Registration

    On May 24, 1995, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Gilbert Ross, M.D., (Respondent) of Great Neck, 
New York, notifying him of an opportunity to show cause as to why DEA 
should not revoke his DEA Certificate of Registration, AR5677060, under 
21 U.S.C. 824(a)(5), and deny any pending applications for renewal of 
such registration as a practitioner under 21 U.S.C. 823(f). 
Specifically, the Order to Show Cause alleged in substance that: (1) On 
November 19, 1992, the Respondent was indicated by a federal grand jury 
in the Southern District of New York on a 131-count indictment on 
charges of racketeering (RICO), mail fraud and money laundering arising 
from the operation of four sham medical clinics in upper Manhattan and 
the Bronx; (2) on November 10, 1993, after judgment was entered against 
the Respondent, following a jury trial, on one count of racketeering 
(RICO) in violation of 18 U.S.C. 1962(d), one count of conspiracy in 
violation of 18 U.S.C. 1962(c), ten counts of mail fraud in violation 
of 18 U.S.C. 1341 and 1342, and one count of money laundering in 
violation of 18 U.S.C. 982 (a)(1) and (b)(1)(A), he was sentenced to 46 
months incarceration followed by three years of supervised release and 
ordered to make restitution to the State of New York in the amount of 
$612,855.00; and (3) on June 10, 1994, the Respondent was notified by 
the Department of Health and Human Services of his ten-year mandatory 
exclusion from participation in the Medicare/Medicaid program pursuant 
to 42 U.S.C. 1320a-7(a), as a result of the above-referenced 
conviction.
    On June 26, 1995, the Respondent, through counsel, filed a timely 
request for a hearing, and the matter was docketed before 
Administrative Law Judge Mary Ellen Bittner. On July 28, 1995, Counsel 
for the Government filed a Motion to Amend Order to Show Cause and for 
Summary Disposition, alleging, additionally, that on or about July 20, 
1995, DEA received notice from the Administrative Review Board for 
Professional Medical Conduct of the Department of Health for the State 
of New York (Medical Board), that the Respondent's license to practice 
medicine in New York had been revoked effective July 24, 1995. The 
motion was supported by a copy of the Medical Board's Decision and 
Order.
    On August 10, 1995, the Respondent filed a request for an 
adjournment of this matter, asserting that judicial review of the 
Medical Board's decision was pending before a State court. Judge 
Bittner denied that request on August 11, 1995. The Respondent did not 
subsequently file a response to the Government's Motion for Summary 
Disposition. Further, the Respondent did not deny that his State 
license had been revoked.
    On August 24, 1995, Judge Bittner issued her Opinion and 
Recommended Decision, Conclusions of Law and Recommended Ruling, in 
which she (1) found that the Respondent lacked authorization to 
practice medicine in New York; (2) found that the Respondent therefore 
lacked authorization to handle controlled substances in New York; (3) 
granted the Government's Motion for Summary Disposition, and (4) 
recommended that the Respondent's DEA Certificate of Registration be 
revoked. Neither party filed exceptions to her decision, and on 
September 25, 1995, Judge Bittner transmitted her opinion and the 
record 

[[Page 8665]]
of these proceedings to the Deputy Administrator.
    The Deputy Administrator has considered the record in its entirety, 
and pursuant to 21 CFR 1316.67, hereby issues his final order based 
upon findings of fact and conclusions of law as hereinafter set forth. 
The Deputy Administrator adopts, in full, the decision of the 
Administrative Law Judge. 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), 832(f), and 824(a)(3). This 
prerequisite has been consistently upheld. See Dominick A. Ricci, M.D., 
58 FR 51104 (1993); James H. Nickens, M.D., 57 FR 59847 (1992); Roy E. 
Hardman, M.D., 57 FR 49195 (1992); Myong S. Yi, M.D., 54 FR 30618 
(1989); Bobby Watts, M.D., 53 FR 11919 (1988).
    Judge Bittner also properly granted the Government's motion for 
summary disposition. Here, the parties did not dispute that the 
Respondent was unauthorized to practice medicine and to handle 
controlled substances in New York, the State in which he maintains his 
DEA Certificate of Registration. Although the Respondent disagreed with 
the action of the Medical Board, he presented no evidence to contradict 
the fact that he is currently without authorization to handle 
controlled substances. Therefore, it is well-settled that when no 
question of fact is involved, a plenary, adversary administrative 
proceeding involving evidence and cross-examination of witnesses is not 
obligatory. See Dominick A. Ricci, M.D., 58 FR at 51104 (finding it 
``well settled that where there is no material question of fact 
involved, a plenary, adversarial administrative hearing [was] not 
required. Congress did not intend administrative agencies to perform 
meaningless tasks.''); see also 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, M.D., 43 FR 11873 (1978); NLRB v. 
International Association of Bridge, Structural and Ornamental 
Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1977).
    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 AR5677060, previously issued to Gilbert 
Ross, 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 April 4, 1996.

    Dated: February 28, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-5006 Filed 3-4-96; 8:45 am]
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