[Federal Register Volume 62, Number 52 (Tuesday, March 18, 1997)] [Notices] [Pages 12847-12848] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 97-6794] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE [Docket No. 96-31] Anne Lazar Thorn, M.D. Revocation of Registration On April 15, 1996, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA) issued an Order to Show Cause to Anne Lazar Thorn, M.D. (Respondent), of Lafayette, Louisiana, notifying her of an opportunity to show cause as to why DEA should not revoke her DEA Certificate of Registration, AT6512152, pursuant to 21 U.S.C. 824(a)(3), and deny any pending applications for renewal of such registration as a practitioner pursuant to 21 U.S.C. 823(f), for reason that effective October 18, 1993, the Louisiana State Board of Medical Examiners indefinitely suspended her license to practice medicine and as a result, she is not currently authorized to handle controlled substances in the State of Louisiana. By letter dated April 29, 1996, Respondent, acting pro se, filed a timely request for a hearing, and the matter was docketed before Administrative Law Judge Mary Ellen Bittner. On May 3, 1996, Judge Bittner issued an Order for Prehearing Statements. On May 24, 1996, in lieu of filing such a statement, the Government filed a Motion for Summary Disposition and to Stay Proceedings, asserting that ``Respondent is without state authorization to handle controlled substances at this time.'' Attached to the motion was a copy of the Louisiana State Board of Medical Examiner's (Board) decision dated October 18, 1993, indefinitely suspending Respondent's license to practice medicine and a copy of a letter from the Board notifying DEA that Respondent's license to practice medicine in the State of Louisiana was suspended. On June 3, 1996, the Administrative Law Judge received a letter from an attorney indicating that he had been retained to represent Respondent, and on June 21, 1996, counsel for Respondent filed a Memorandum in Opposition to Government's Motion for Summary Disposition and Motion to Stay Proceedings. Respondent did not deny that she is currently without authority to handle controlled substances in the State of Louisiana. However, she argued that 21 U.S.C. 824(a) provides for the Deputy Administrator to use his discretion in determining whether to revoke or suspend a registration because of lack of state authority to handle controlled substances and that a hearing is necessary to determine what action should be taken against Respondent's registration. Respondent further argues that this matter is not yet ripe for determination since Respondent has not ``had the opportunity to present her evidence with supporting testimony concerning her current fitness to practice medicine, or the steps which she is taking to seek the reinstatement of her license to practice medicine in the State of Louisiana.'' On July 25, 1996, Judge Bittner issued her Opinion and Recommended Decision, finding that Respondent is not currently authorized to handle controlled substances in the State of Louisiana; that she is bound by DEA's interpretation of the Controlled Substances Act that, pursuant to 21 U.S.C. 823(f) and 802(21), a petitioner may not hold a DEA registration without state authority to handle controlled substances; that since no material question of fact is involved, a hearing is not necessary; and that while the statue provides for the revocation or suspension, revocation is appropriate in this case since there is no indication that Respondent's state license will be reinstated any time soon. Accordingly, Judge Bittner granted the Government's Motion for Summary Disposition and recommended that the Respondent's DEA Certificate of Registration be revoked. On August 8, 1996, Respondent filed with the Administrative Law Judge a Motion for Reconsideration and/or to Alter or Amend Judgment (Motion for Reconsideration). Respondent argued that the Board suspended her license indefinitely, rather than revoking it entirely, and that it would remain suspended until further order of the Board. Respondent asserted that the only evidence before the Administrative Law Judge in rendering her recommended decision was the order of the Board dated October 18, 1993 and that ``a great deal has transpired with respect to Respondent's license to practice medicine and the steps she has taken to have her license reinstated.'' Respondent argued that she should be given an opportunity for a hearing regarding her DEA registration in order to outline the steps she has taken to have her state license reinstated, and that the evidence which would have been presented at a hearing would have aided the Administrative Law Judge in deciding whether to recommend revocation or suspension of Respondent's registration. Respondent contended that ``the decision to permanently revoke a physician's registration to distribute drugs is a serious sanction, and is one which should not be rendered without considering all of the evidence in a particular case.'' Therefore, Respondent requested that the Administrative Law Judge reconsider her decision to deny Respondent the opportunity for a hearing, or in the alternative, that the Administrative Law Judge alter her recommendation from revocation to [[Page 12848]] suspension of Respondent's registration. On August 14, 1996, Judge Bittner issued a Ruling denying Respondent's Motion for Reconsideration as lacking in merit. Neither party filed exceptions to her Opinion and Recommended Decision, and on August 26, 1996, Judge Bittner transmitted the record of these proceedings to the Deputy Administrator. The Acting Deputy Administrator has considered the record in its entirety, and pursuant to 21 C.F.R. 1316.67, hereby issues his final order based upon findings of fact and conclusions of law as hereinafter set forth. The Acting Deputy Administrator adopts in full the Opinion and Recommended Decision of the Administrative Law Judge. DEA has consistently interpreted the Controlled Substances Act to preclude a practitioner from holding a DEA registration if the practitioner is without authority to handle controlled substances in the state in which he/she practices. See 21 U.S.C. 823(f) (authorizing the Attorney General to register a practitioner to dispense controlled substances only if the applicant is authorized to dispense controlled substances under the laws of the state in which he or she practices); and 21 U.S.C. 802(21) (defining a practitioner as one authorized by the United States or the state in which he or she practices to handle controlled substances in the course of professional practice or research). This prerequisite has been consistently upheld. See Rita M. Coleman, M.D., 61 FR 35,816 (1996); Dominick A. Ricci, M.D., 58 FR 51,104 (1993); Roy E. Hardman, M.D., 57 FR 49,195 (1992); and Bobby Watts, M.D., 53 FR 11,919 (1988). The Acting Deputy Administrator finds that the controlling question is not whether a practitioner's license to practice medicine in the state is suspended or revoked; rather, it is whether the Respondent is currently authorized to handle controlled substances in the state. In the instant case, it is undisputed that Respondent is not currently authorized to handle controlled substances in the State of Louisiana. Therefore, as Judge Bittner notes, Respondent ``is not currently entitled to a DEA registration.'' The Acting Deputy Administrator concludes that Judge Bittner properly granted the Government's Motion for Summary Disposition. Here, the parties did not dispute the fact that Respondent was unauthorized to handle controlled substances in Louisiana. Therefore, it is well- settled that when no question of material fact is involved, a plenary, adversary administrative proceeding involving evidence and cross- examination of witnesses is not obligatory. See Philip E. Kirk, M.D., 48 FR 32,887 (1983), aff'd sub nom. Kirk versus Mullen, 749 F.2d 279 (6th Cir. 1984); Alfred Tennyson Smurthwaite, M.D., 43 FR 11,873 (1978); see also NLRB versus International Association of Bridge, Structural and Ornamental Ironworks, AFL-CIO, 549 F.2d 634 (9th Cir. 1977); United States versus Consolidated Mines & Smelting Co., 44 F.2d 432 (9th Cir. 1971). In her Motion for Reconsideration, Respondent argued that the permanent revocation of a registration is a serious sanction and ``should not be rendered without considering all of the evidence in a particular case.'' The Acting Deputy Administrator notes that the revocation of Respondent's registration is not permanent. Respondent may reapply for a new DEA registration when her state privileges to handle controlled substances are reinstated. Further, the Acting Deputy Administrator recognizes that he has the discretionary authority to either revoke or suspend a DEA registration. However, given the indefinite nature of the suspension of Respondent's state license to practice medicine, the Acting Deputy Administrator agrees with Judge Bittner that revocation is appropriate in this case. Accordingly, the Acting Deputy Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 824, and 28 C.F.R. 0.100(b) and 0.104, hereby orders that the DEA Certificate of Registration AT6512152, issued to Anne Lazar Thorn, M.D., be, and it hereby is, revoked, and that any pending applications for the renewal of such registration be, and they hereby are, denied. This order is effective April 17, 1997. Dated: March 4, 1997. James S. Milford, Acting Deputy Administrator. [FR Doc. 97-6794 Filed 3-17-97; 8:45 am] BILLING CODE 4410-09-M