[Federal Register Volume 72, Number 18 (Monday, January 29, 2007)]
[Notices]
[Pages 4031-4032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1320]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 06-39]


Gerald E. Dariah, M.D.; Revocation of Registration

    On October 12, 2005, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Gerald E. Dariah, M.D. (Respondent) of Albany, Ga. The 
Show Cause Order proposed the revocation of Respondent's Certificate of 
Registration, BD4754683, as a practitioner, and to deny any pending 
application for renewal of the registration, on the grounds that 
Respondent's state medical license had been revoked, and that 
Respondent had committed acts that rendered his registration 
inconsistent with the public interest. See 21 U.S.C. 824(a)(3) & (4); 
id. section 823(f).
    The Show Cause Order specifically alleged that Respondent had 
engaged in the pre-signing of prescriptions for controlled substances 
which were then issued to patients by Respondent's nurse. Show Cause 
Order at 2. The Show Cause Order further alleged that investigators 
from DEA and the Georgia Board of Medical Examiners (Board) had 
subsequently executed a search warrant at Respondent's office and 
seized approximately thirty blank pre-signed prescriptions. See id. The 
Show Cause Order also alleged that Respondent's nurse told 
investigators that each morning, Respondent provided her with four 
pages of blank, pre-signed prescriptions. See id.
    The Show Cause Order next alleged that Respondent had authorized 
his staff to fill in and issue numerous pre-signed prescriptions 
between November 23rd and December 29, 2003, when he was traveling 
abroad. See id. The Show Cause Order alleged that during this period, 
Respondent's staff issued prescriptions for Schedule II controlled 
substances to several patients. See id.
    Finally, the Show Cause Order alleged that on September 21, 2004, 
the Board issued an order which summarily suspended Respondent's 
medical license, that the order had not been stayed, and that his 
license had not been reinstated. See id. at 3. The Show Cause order 
thus alleged that Respondent was ``not currently authorized to handle 
controlled substances in the State of Georgia.'' Id. The Show Cause 
Order also informed Respondent of his right to a hearing. Id.
    On November 15, 2005, Respondent, through his counsel, timely 
requested a hearing. Respondent's counsel also moved to stay the 
proceedings until a pending criminal case brought against him by the 
State of Georgia was resolved. Respondent's counsel further noted that 
Respondent had been out of the country for ``the past five and a half 
months'' and that ``[h]e anticipate[d] returning next month.'' Letter 
from Respondent's Counsel to Hearing Clerk (Nov. 15, 2005). 
Alternatively, Respondent's counsel sought an extension of time to 
respond to the Show Cause Order. ALJ Dec. at 1. The case was assigned 
to Administrative Law Judge (ALJ) Mary Ellen Bittner; the ALJ then 
issued a memorandum which offered the Government the opportunity to 
respond.
    On January 9, 2006, the Government opposed Respondent's motions. 
Specifically, the Government noted that Respondent had failed to 
provide any information regarding the dates of his return to the 
country and the resolution of the State criminal proceeding. Gov. Resp. 
at 2. The Government further argued that because Respondent was unable 
to participate in a hearing he should be deemed to have waived his 
right to a hearing. Id. The Government urged the ALJ to deny 
Respondent's motions, to hold that Respondent had waived his right to a 
hearing, and to issue an order terminating the proceeding. Id. at 3.
    On January 18, 2006, the ALJ denied Respondent's motions. The ALJ 
specifically noted that the motion had been filed more than two months 
earlier and that Respondent had subsequently failed to provide any 
information regarding ``the duration of his stay abroad'' and ``when 
the criminal matters will be resolved.'' ALJ Memorandum and Ruling 1 
(Jan. 18, 2006). The ALJ thus denied both of Respondent's motions and 
issued an Order for Prehearing Statements. Id. at 2.
    Thereafter, on February 8, 2006, the Government moved for summary 
disposition. The basis of the Government's motion was that Respondent's 
state medical license had been summarily suspended by the Georgia 
Board, the suspension had not been lifted, and it was undisputed that 
Respondent was not authorized to handle controlled substances in 
Georgia, the State in which he holds his DEA registration. Gov. Mot. 
for Summary Disposition at 2. The Government attached to its motion a 
copy of the Georgia Board's Order of Summary Suspension. Upon receipt 
of the Government's motion, the ALJ offered Respondent the opportunity 
to respond.
    On March 15, 2006, Respondent filed a response. Respondent 
acknowledged that his state license had been

[[Page 4032]]

suspended but asserted that the state superior court had ruled that his 
alleged offenses were misdemeanors and not felonies and that he was 
currently in negotiations with the Board for the reinstatement of his 
license. Respondent's Response at 1. Respondent further contended that 
notwithstanding the suspension of his medical license, ``Georgia law 
allows unlicensed individuals to work as subordinates and laborers in 
the manufacturing, distributing, and dispensing of controlled 
substances.'' Id. at 3. Respondent further asserted that he was ``still 
eligible to apply for employment in the state as a physician's 
assistant, pharmacy technician, drug manufacturing employee or drug 
representative, among other occupations involving the handling of 
controlled substances.'' Id. Respondent maintained that ``[t]he fact 
that [21 U.S.C. 824(a)(3)] requires both action on the Respondent's 
license and an inability to engage in the manufacture, distribution, 
and dispensing of drugs would seem to indicate that suspension of one's 
license does not necessarily render the individual unable to handle 
controlled substances.'' Id. Respondent thus contended that there was 
an issue of fact presented and an evidentiary hearing was required. Id.
    On April 17, 2006, the ALJ issued her opinion and recommended 
decision. The ALJ rejected Respondent's argument explaining that 
``[i]mplicit in'' DEA's long-standing interpretation of the Controlled 
Substances Act ``is the assumption that the authority at issue is that 
inuring to the registrant as a practitioner, not whatever authority the 
state grants to individuals who do not hold a license to practice 
medicine.'' ALJ Dec. at 3. The ALJ further explained that ``[t]o hold 
otherwise would permit unlicensed physicians to maintain DEA 
registrations, contrary to the plain purpose of the CSA.'' Id.
    The ALJ also found that it was undisputed that Respondent's state 
license was suspended and that he was without authority to handle 
controlled substances as a practitioner. Id. Because there was no 
factual issue in dispute, the ALJ granted the Government's motion for 
summary disposition and recommended that Respondent's DEA registration 
be revoked. Id. at 4.
    Having considered the record as a whole, I hereby issue this 
decision and final order. I adopt the ALJ's opinion and recommended 
decision.
    Respondent's contention that he is entitled to maintain his DEA 
registration notwithstanding that he lacks authority under Georgia law 
to practice medicine is easily dismissed. Even assuming that Georgia 
law allows Respondent to engage in some activities involving controlled 
substances, the CSA makes plain that one must be currently authorized 
by the State to engage in the specific activities for which he holds a 
DEA registration.\1\
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    \1\ Contrary to the understanding of Respondent's counsel, the 
word ``handle'' as used in DEA cases interpreting the CSA is a term 
of art. It refers to a registrant's authority to perform the 
specific activities for which registration is required.
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    The CSA's definition of the ``[t]he term `practitioner' means a 
physician * * * licensed, registered, or otherwise permitted, by * * * 
the jurisdiction in which he practices * * * to distribute, dispense, 
[or] administer * * * a controlled substance in the course of 
professional practice.'' 21 U.S.C. 802(21) (emphasis added). Relatedly, 
the CSA directs that ``[t]he Attorney General shall register 
practitioners * * * if the applicant is authorized to dispense * * * 
controlled substances under the laws of the State in which he 
practices.'' Id. section 823(f). See also id. section 802(10) (``the 
term `dispense' means to deliver a controlled substance to an ultimate 
user * * * pursuant to the lawful order of a practitioner'') (emphasis 
added).
    As the CSA's definition of the term ``practitioner'' makes plain, a 
physician must be currently authorized to dispense a controlled 
substance ``in the course of professional practice.'' Id. section 
802(21). A physician whose state license has been suspended or revoked 
does not have authority under state law to engage in the ``professional 
practice'' of medicine and cannot lawfully issue an order to dispense a 
controlled substance. Accordingly, section 304 of the CSA authorizes 
the revocation of a registration ``upon a finding that the registrant * 
* * has had his State license or registration suspended or revoked * * 
* and is no longer authorized by State law to engage in the * * * 
dispensing of controlled substances.'' Id. Sec.  section824(a)(3).\2\ 
DEA has consistently held that the CSA requires the revocation of a 
registration issued to a practitioner whose state license has been 
suspended or revoked. See Sheran Arden Yeates, 71 FR 39130, 39131 
(2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 
FR 11919, 11920 (1988).
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    \2\Even if it is true, Respondent's ``contention that he is 
still authorized by state law to engage in the manufacturing [and] 
distribution * * * of controlled substances,'' Respondent Resp. at 
3, is irrelevant. Respondent was registered under the CSA as a 
practitioner and not as a manufacturer or distributor. The Act 
specifically defines ``the term `distribute''' to exclude 
``dispensing.'' 21 U.S.C. Sec.  802(11). The only activity which is 
relevant in assessing whether Respondent can maintain his 
practitioner's registration is dispensing. See id. Sec.  823(f); see 
also 21 CFR 1301.13(e) (table) (distributing and dispensing are 
independent activities and require separate registrations).
    Finally, even if ``Georgia law allows unlicensed individuals to 
work as subordinates * * * in the * * * dispensing of controlled 
substances,'' Resp. Resp. at 3, Respondent does not maintain that he 
can lawfully issue a prescription for a controlled substance under 
state law, which is what matters for purposes of the CSA.
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    I therefore conclude that Respondent's argument is without merit. 
Because Respondent has produced no evidence that the Georgia's Board's 
summary suspension order has been set aside or stayed, I conclude that 
Respondent lacks authority under Georgia law to handle controlled 
substances as a practitioner and is not entitled to maintain his DEA 
registration.

Order

    Accordingly, pursuant to the authority vested in me by 21 U.S.C. 
823(f) & 824(a), as well as 28 CFR 0.100(b) & 0.104, I order that DEA 
Certificate of Registration, BD4754683, issued to Gerald E. Dariah, 
M.D., be, and it hereby is, revoked. I further order that any pending 
applications for renewal or modification of such registration be, and 
they hereby are, denied. This order is effective February 28, 2007.

    Dated: January 19, 2007.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E7-1320 Filed 1-26-07; 8:45 am]
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