[Federal Register Volume 72, Number 147 (Wednesday, August 1, 2007)]
[Notices]
[Pages 42126-42127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14819]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 07-23]


Newcare Home Health Services; Revocation of Registration

    On February 21, 2007, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Newcare Home Health Services (Respondent), of Baltimore, 
Maryland. The Show Cause Order proposed the revocation of Respondent's 
DEA Certificate of Registration, BN3795892, as a retail pharmacy, on 
the ground that the Maryland State Board of Pharmacy had suspended 
Respondent's state pharmacy license.\1\ See id.
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    \1\ The Show Cause Order also alleged that Respondent had 
committed acts which rendered its registration ``inconsistent with 
the public interest.'' Show Cause Order at 1 (citing 21 U.S.C. 
823(f) & 824(a)(4)). More specifically, the Show Cause Order alleged 
that Respondent ``illegally distributed vast quantities of 
hydrocodone and other controlled substances'' by filling 
prescriptions that were issued over the internet and which were 
issued by physicians who did not establish ``a doctor-patient 
relationship with the customers.'' Id. In light of the disposition 
of this case, a more detailed recitation of the allegations of the 
Show Cause Order is not necessary.
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    On or about February 23, 2007, the Show Cause Order was served on 
Respondent. On March 9, 2007, Respondent, through its counsel, 
requested a hearing. The matter was assigned to Administrative Law 
Judge (ALJ) Gail Randall, who, on March 15, 2007, ordered the parties 
to file pre-hearing statements.
    On March 19, 2007, the Government moved for summary disposition and 
to stay the filing of pre-hearing statements. The basis for the 
Government's motion was that on January 5, 2007, the Maryland Board of 
Pharmacy had summarily suspended Respondent's state pharmacy and 
distributor permits. Mot. for Summ. Disp. at 2. In support of its 
motion, the Government attached a copy of the Maryland Board's Order 
for Summary Suspension. Upon receipt of the motion, the ALJ granted the 
Government's motion to stay the proceeding and ordered Respondent to 
reply to the motion for summary disposition. See Order Staying 
Proceedings at 1-2.
    On March 29, 2007, Respondent submitted its reply. Respondent 
acknowledged that summary disposition would be appropriate but asked 
the ALJ ``to stay all proceedings * * * while the criminal prosecution 
of [its] owners proceeds through the U.S. District Court.'' Resp.'s 
Reply at 1. Respondent further argued that ``[i]f the outcome of the 
criminal case is favorable to [its] owners, then the posture and merits 
of this matter * * * will be substantially different than if one or 
more convictions are obtained.'' Id. at 2. Respondent further stated 
that it had appealed the State Board's suspension of its pharmacy 
license and had ``asked the Board to defer any hearing on the appeal 
until the criminal case concludes.'' Id. Respondent further stated that 
it would agree to the suspension of its registration in the interim. 
Id.
    On April 3, 2007, the ALJ issued her recommended decision. Noting 
that state authority is ``a prerequisite to DEA registration,'' the ALJ 
held that Respondent was not entitled to maintain its registration 
because there was no dispute that Respondent currently lacks 
``authority to handle controlled substances in the jurisdiction where 
it seeks to maintain its DEA registration.'' ALJ at 4. The ALJ also 
denied Respondent's request for a stay. The ALJ thus granted the 
Government's motion for summary disposition, lifted her stay order, and 
denied Respondent's request for a continued stay of the proceeding. The 
ALJ also recommended that Respondent's registration be revoked and 
forwarded the record to me for final agency action.
    Having considered the record as a whole, I adopt the ALJ's decision 
and recommended order in its entirety. As the ALJ found, Respondent 
does not currently possess authority under the laws of Maryland to 
handle controlled substances.
    Under the Controlled Substances Act (CSA), ``a practitioner must be 
currently authorized to handle controlled substances in `the 
jurisdiction in which [it] practices' in order to maintain its DEA 
registration.'' Bourne Pharmacy, Inc., 72 FR 18273, 18274 (2007) 
(quoting 21 U.S.C. 802(21)). See also 21 U.S.C. 802(21) (``[t]he term 
`practitioner' means a * * * pharmacy * * * licensed, registered, or 
otherwise permitted, by * * * the jurisdiction in which [it]

[[Page 42127]]

practices * * * to * * * dispense * * * a controlled substance in the 
course of professional practice''). See also id. 823(f) (``The Attorney 
General shall register practitioners * * * if the applicant is 
authorized to dispense * * * controlled substances under the laws of 
the State in which [it] practices.'').
    State authority is thus an essential prerequisite to maintaining a 
DEA registration.\2\ Moreover, this Agency has repeatedly revoked the 
DEA registrations of those registrants who no longer hold state 
authority to handle controlled substances, regardless of whether that 
authority has been revoked or suspended pending further proceedings. 
See Bourne Pharmacy, 72 FR at 18274; The Medicine Shoppe, 71 FR 42878, 
42879 (2006); Rx Network of South Florida, LLC, 69 FR 62093 (2004); 
Wingfield Drugs, Inc., 52 FR 27070 (1987). Because Respondent is not 
currently authorized to handle controlled substances in the State in 
which it engages in the practice of pharmacy, it is not entitled to 
maintain its DEA registration.\3\ Therefore, its registration will be 
revoked and any pending applications for renewal or modification of its 
registration will be denied.
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    \2\ The ALJ properly rejected Respondent's request for a stay. 
It is not DEA's policy to stay proceedings under section 304 while 
registrants litigate in other forums. See Bourne Pharmacy, Inc., 72 
FR 18273 (2007); Oakland Medical Pharmacy, 71 FR 50100 (2006); 
Kennard Kobrin, M.D., 70 FR 33199 (2005). As the ALJ explained, 
Respondent can always apply for a new registration if it prevails in 
the pending state administrative proceeding.
    \3\ Based on this Agency's records, I find that Respondent is 
the holder of DEA Certificate of Registration, BN3795892, which does 
not expire until October 31, 2008.
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 
824(a), as well as 28 CFR 0.100(b) and 0.104, I hereby order that DEA 
Certificate of Registration, BN3795892, issued to Newcare Home Health 
Services, 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 August 31, 
2007.

    Dated: July 20, 2007.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E7-14819 Filed 7-31-07; 8:45 am]
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