[Federal Register Volume 72, Number 147 (Wednesday, August 1, 2007)]
[Notices]
[Pages 42127-42129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14820]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Alan H. Olefsky, M.D.; Denial of Application

    On May 25, 2005, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Alan H. Olefsky, M.D. (Respondent), of Chicago, Illinois. 
The Show Cause Order proposed to revoke Respondent's DEA Certificate of 
Registration, BO3661104, as a practitioner, and to deny any pending 
applications for renewal or modification of his registration, on the 
ground that the Illinois Department of Financial and Professional 
Regulation had suspended his state medical license and state controlled 
substance license. Show Cause Order at 1. The Show Cause Order thus 
alleged that Respondent was not authorized to handle controlled 
substances in the State where he was registered and was thus not 
entitled to maintain his registration. Id. (citing 21 U.S.C. 
824(a)(3)).
    The Show Cause Order also alleged that Respondent had committed 
acts which rendered his registration inconsistent with the public 
interest. Id. (citing 21 U.S.C. 824(a)(4)). More specifically, the Show 
Cause Order alleged that from December 2002 through October 2004, 
Respondent had ``issued false prescriptions for controlled substances 
in the names of'' three individuals, and that the prescriptions were 
for his ``personal use.'' Id. The Show Cause Order also notified 
Respondent of his right to request a hearing on the allegations.
    On June 8, 2005, the Show Cause Order was served on Respondent by 
certified mail as evidenced by the signed return receipt card. Neither 
Respondent, nor anyone purporting to represent him, requested a hearing 
on the allegations within the time period set forth in 21 CFR 
1301.43(a) and the Show Cause Order.
    The matter was held in abeyance after the State restored 
Respondent's medical license. On March 30, 2007, the State again 
suspended Respondent's medical license. Accordingly, on May 10, 2007, 
the investigative file was forwarded to my Office for final agency 
action.
    As an initial matter, I find that because Respondent did not 
request a hearing within thirty days of receipt of the Show Cause order 
he has waived his right to hearing. See 21 CFR 1301.43(d). I therefore 
enter this Final Order without a hearing based on relevant material in 
the investigative file and make the following findings.

Findings

    Respondent was the holder of DEA Certificate of Registration, 
BO3661104, which authorized him to handle schedule II through V 
controlled substances as a practitioner. Respondent's registration 
expired on December 31, 2004. According to the investigative file, 
Respondent did not submit a renewal application until February 24, 
2005, nearly two months after his registration expired. Accordingly, I 
find that Respondent's renewal application was not timely submitted and 
his registration expired on December 31, 2004. See 5 U.S.C. 558(c) 
(requiring submission of a ``timely and sufficient application for a 
renewal'' in order for a registration to be continued until the Agency 
makes a ``final determin[ation]'' on the application). I further find, 
however, that Respondent does have an application pending before the 
agency.
    According to the investigative file, on February 18, 2005, the 
Illinois Department of Financial and Professional Regulation summarily 
suspended Respondent's state medical license and controlled substance 
registrations. In support of the suspension, the State alleged, inter 
alia, that ``Respondent issued false prescriptions for controlled 
substances under other names for personal use.'' Pet. For Temp. Susp. 
1. The petition was supported by the sworn affidavit of Larry G. 
McClain, M.D., the Chief Medical Coordinator of the Illinois Department 
of Financial and Professional Regulation. In his affidavit, Dr. McClain 
averred that ``the Department has learned that Respondent has 
repeatedly issued false prescriptions for Xanax, Dilaudid and Viagra. 
He calls in these prescriptions in the names of [M.G., V.G. and T.C.] 
He obtains these prescriptions for personal use and pays cash to remain 
untraceable.'' Dr. McClain further averred that ``Respondent was 
arrested for a DUI in June of 2004 and * * * has an extensive criminal 
history.''
    In September 2006, Respondent and the State entered into a consent 
order under which his medical license was restored based on his having 
entered a treatment program and an Aftercare Agreement. Consent Order 
at 2. In the order, ``Respondent admit[ted] the allegations raised by 
the Department.'' Id. The consent order, which became effective on 
November 21, 2006, placed Respondent on ``Indefinite Probation,'' and 
also imposed various conditions including that he comply with the terms

[[Page 42128]]

of an Aftercare Agreement and abstain from the use of alcohol and 
``mood altering and/or psychoactive drugs'' except as ``prescribed by a 
primary care and/or treating physician.'' Id. at 3.
    Thereafter, on March 30, 2007, the State again imposed a summary 
suspension of Respondent's medical license, which remains in effect. 
See Notice of Temporary Suspension. In the Complaint, the State alleged 
that in January 2007, Respondent had been hospitalized with ``a blood 
alcohol level of 327.'' Complaint at 2. The State also alleged that in 
February 2007, Respondent had been admitted to Rush Behavioral Care to 
be treated for ``alcohol dependence.'' Id. The State further alleged 
that in February 2007, Respondent had applied for a new state 
Controlled Substance Registration. Id. Finally, the Complaint alleged 
that Respondent had failed to comply with the conditions of Consent 
Order.\1\
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    \1\ I also take official notice of the fact that on January 9, 
1992, the Administrator of this Agency ordered the revocation of 
Respondent's registration based on his having presented fraudulent 
prescriptions for Percocet and Halcion to a pharmacy. See Alan H. 
Olefsky, 57 FR 928, 929 (1992).
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    There is no evidence in the file that the State has granted 
Respondent a new Controlled Substance Registration. Moreover, the 
State's summary suspension further ordered Respondent to ``immediately 
surrender all indicia of licensure to the Department.'' March 30, 2007 
Summary Suspension Order at 1-2. I therefore find that Respondent does 
not hold a current Illinois Controlled Substance Registration.

Discussion

    Section 303(f) of the Controlled Substances Act provides that 
``[t]he Attorney General shall register practitioners * * * to dispense 
* * * controlled substances in schedule II, III, IV, or V, if the 
applicant is authorized to dispense * * * controlled substances under 
the laws of the State in which he practices.'' 21 U.S.C. 823(f). 
Section 303(f) further provides that ``[t]he Attorney General may deny 
an application for such registration if he determines that the issuance 
of such registration would be inconsistent with the public interest.'' 
Id. In making the public interest determination, the Act requires the 
consideration of the following factors:

    (1) The recommendation of the appropriate State licensing board 
or professional disciplinary authority.
    (2) The applicant's experience in dispensing * * * controlled 
substances.
    (3) The applicant's conviction record under Federal or State 
laws relating to the manufacture, distribution, or dispensing of 
controlled substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.

Id.

    ``[T]hese factors are * * * considered in the disjunctive.'' Robert 
A. Leslie, M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or 
a combination of factors, and may give each factor the weight [I] deem[ 
] appropriate in determining whether a registration should be 
revoked.'' Id. Moreover, I am ``not required to make findings as to all 
of the factors.'' Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see 
also Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005).
    In this case, I conclude that there are two independent grounds for 
denying Respondent's application. First, Respondent is not currently 
authorized under Illinois law to handle controlled substances and thus 
does not meet an essential requirement for a registration under the 
CSA. Second, Respondent's experience in dispensing controlled 
substances and his record of compliance with applicable laws make clear 
that granting him a registration would be inconsistent with the public 
interest.

Respondent's Lack of State Authority

    Under the Controlled Substances Act (CSA), a practitioner must be 
currently authorized to handle controlled substances in ``the 
jurisdiction in which he practices'' in order to maintain a DEA 
registration. See 21 U.S.C. 802(21) (``[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''). 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 he practices.''). Relatedly, DEA has held repeatedly that the CSA 
requires the revocation of a registration issued to a practitioner who 
no longer possesses authority under state law to handle controlled 
substances. See Sheran Arden Yeates, 71 FR 39130, 39131 (2006); 
Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 
11920 (1988). See also 21 U.S.C. 824(a)(3) (authorizing 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 * * * distribution 
[or] dispensing of controlled substances'').
    Here, the investigative file establishes that Respondent's Illinois 
controlled substance registrations were suspended pursuant to the 
State's February 18, 2005 order. Moreover, there is no evidence that 
the State has issued a new controlled substance registration to him, 
and in any event, the State's March 30, 2007 order directed him to 
``immediately surrender all indicia of licensure to the Department.'' 
Therefore, Respondent is without authority to handle controlled 
substances in Illinois, the State in which he seeks registration. 
Respondent thus does not meet an essential prerequisite for a new DEA 
registration and his application will be denied on that basis. See 21 
U.S.C. 823(f).

The Public Interest Analysis

    Because the State's summary suspension is not a final order, review 
of Respondent's application under the public interest factors is also 
warranted. Here, Dr. McClain's affidavit establishes that Respondent 
``repeatedly issued false prescriptions'' in the names of other persons 
for Xanax (alprazolam), a schedule IV controlled substance, see 21 CFR 
1308.14(c), and Dilaudid (hydromorphone), a schedule II controlled 
substance. See id. 1308.12(b)(1). Respondent then filled the 
prescriptions and personally abused the drugs. Respondent admitted to 
this conduct in the Consent Order. I thus find that Respondent violated 
Federal law. See 21 U.S.C. 843(a)(3) (rendering it ``unlawful for any 
person knowingly or intentionally * * * to acquire or obtain possession 
of a controlled substance by misrepresentation, fraud, forgery, 
deception, or subterfuge'').
    Moreover, as noted above, this is not the first time that 
Respondent has engaged in such criminal behavior. See Olesky, 57 FR at 
928-29. Accordingly, Respondent's experience in dispensing controlled 
substances and his record of compliance with Federal law amply 
demonstrate that granting his application for registration would be 
``inconsistent with the public interest.'' 21 U.S.C. 823(f). Therefore, 
even if the State were to restore his medical license and grant him a 
new state controlled substance registration, I would still deny his 
application.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well 
as 28 CFR 0.100(b) & 0.104, I order that the application of Alan H. 
Olefksy, M.D., for a DEA Certificate of Registration as a

[[Page 42129]]

practitioner be, and it hereby is, denied. This order is effective 
August 31, 2007.

    Dated: July 20, 2007.
Michele M. Leonhart,
Deputy Administrator.
 [FR Doc. E7-14820 Filed 7-31-07; 8:45 am]
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