[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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