[Federal Register Volume 73, Number 17 (Friday, January 25, 2008)]
[Notices]
[Pages 4630-4633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1241]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Nasim F. Khan, M.D.; Denial of Application

    On June 8, 2007, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Nasim F. Khan, M.D. (Respondent), of Houston, Texas. The 
Show Cause Order proposed the denial of Respondent's pending 
application for a DEA Certificate of Registration as a practitioner on 
two grounds: (1) That she lacked authority under state law to handle 
controlled substances, and (2) that her ``registration would be 
inconsistent with the public interest.'' Show Cause Order at 1; see 
also 21 U.S.C. 823(f).
    The Show Cause Order specifically alleged that ``[o]n June 26, 
2006, [Respondent's] Texas Controlled Substance Registration was 
terminated,'' and that she was therefore ``not currently authorized by 
the State of Texas to prescribe, dispense, or otherwise handle 
controlled substances.'' Show Cause Order at 1. The Show Cause Order 
further alleged that Respondent had committed acts inconsistent with 
the public interest because she had ``allowed [her] DEA registration to 
be used to dispense controlled substances for other than legitimate 
medical purposes'' and had ``engage[ed] in self-prescribing of 
controlled substances, in violation of the Texas Controlled Substances 
Act.'' Id.
    On June 15, 2007, the Show Cause Order, which also notified 
Respondent of her right to request a hearing on the allegations, was 
served on Respondent by Federal Express delivered to her residence. 
Because: (1) More than thirty days have passed since service of the 
Show Cause Order, and (2) neither Respondent, nor anyone purporting to 
represent her, has requested a hearing, I conclude that Respondent has 
waived her right to a hearing. See 21 CFR 1301.43(d). I therefore enter 
this Final Order without a hearing based on relevant material contained 
in the

[[Page 4631]]

investigative file, see id. 1301.43(e), and make the following 
findings.

Findings

    Respondent is a physician with a specialty in psychiatry and 
pathology. Respondent previously held a DEA Certificate of Registration 
as a practitioner at the registered location of Houston Medical Clinic, 
10881 Richmond Ave., Apt. 412, Houston, Texas. In July 2004, DEA 
Diversion Investigators with the Houston Field Division received 
information that Respondent was prescribing promethazine with codeine 
cough syrup, a schedule V controlled substance, see 21 CRR 1308.15(c), 
to an individual who had been arrested three times by the Houston 
Police Department for unlawfully possessing controlled substances.
    In August 2005, DEA Diversion Investigators (DIs) received 
information that two unlicensed individuals (F.K. and V.V.), who worked 
at the Main Medical Clinic (which was located in Jacinto City, Texas), 
were using Respondent's DEA registration to issue controlled-substance 
prescriptions for drugs which included Lorcet 10/650 (a branded drug 
combining hydrocodone and acetaminophen and a schedule III controlled 
substance, see 21 CFR 1308.13(e), Xanax (alprazolam), a schedule IV 
controlled substance, see id. 1308.14(c), and promethazine with codeine 
cough syrup. Id. 1308.15(c). F.K. and V.V. charged $100 for each 
prescription.
    The DIs subsequently went to the clinic and interviewed several 
people. While the DIs were told that Respondent had terminated her 
employment at the clinic, they also obtained a stack of prescription 
carbons. The copies indicated the patient's name, the name of a 
controlled substance, and Respondent's DEA number. During other 
interviews, the DIs determined that Respondent had seen only one or two 
``patients'' each day, and that most of the clinic's ``patients'' were 
seen by other people including several foreign graduate students who 
were not licensed in any field of medical practice. The DIs also 
confirmed that V.V. had sold a stack of prescriptions, which bore a 
signature similar to Respondent's, for a large amount of cash.
    Thereafter, on August 11, 2005, the DIs interviewed Respondent at 
the location of a clinic (named the ``45 Clinic'') which she was 
opening in Houston and for which she needed to change the address of 
her registered location.\1\ During the interview, Respondent stated 
that she had seen approximately forty patients a day at the Main 
Medical Clinic and that the cost for a controlled-substance 
prescription was $80 cash. Respondent further stated that at the 
clinic, foreign graduate students worked under her supervision and 
wrote the prescriptions which she then signed. Respondent also stated 
that she had taken a continuing medical education class in pain 
management and that the only controlled substances she prescribed were 
Vicodin, Lorcet, and Lortab.\2\
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    \1\ According to the investigative file, Respondent did not own 
the clinic.
    \2\ Respondent also stated that she prescribed Ritalin for her 
child psychiatric patients who had Attention Deficit Disorder.
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    In the course of the investigation, the DIs had previously 
determined that Respondent had obtained controlled substances based on 
117 prescriptions issued to her under her DEA number. During the 
interview, Respondent denied that she had self-prescribed and claimed 
that her son was also a physician and had prescribed the controlled 
substances for her. Subsequently, the DIs searched the Texas Medical 
Board's website and found that there was no listing for her son.
    The DIs had also previously determined that between January 1, 
2004, and August 11, 2005, Respondent had obtained approximately 474 
twenty-five ml. bottles of schedule V cough medicines. When asked as to 
why she had ordered the drugs, Respondent maintained that they were 
small containers of cough syrup which she used when she was unable to 
sleep.
    While at Respondent's new clinic, the DIs interviewed V.V., the 
same individual who had been implicated in selling controlled-substance 
prescriptions at Respondent's former employer. V.V. told the 
investigators that she had first met Respondent on that very day (when 
she had purportedly interviewed for a position at the clinic) and that 
her duties at Respondent's clinic would include scheduling 
appointments, taking vital signs, and other duties performed by 
receptionists.
    Thereafter, on August 30, 2005, a registration technician changed 
Respondent's registered location to the address of her new clinic. 
Approximately three weeks later, on September 19, 2005, Respondent 
notified a DI that V.V. was using her DEA number to write unauthorized 
prescriptions for unknown individuals.
    Later that day, two DIs interviewed Respondent at her residence. 
Respondent told the DIs that she had terminated her employment at the 
Main Medical Clinic because she suspected that its owner was involved 
in illegal activities. Respondent stated that she had contacted DEA 
because she had received information that the Corpus Christi, Texas 
Police Department was looking for her regarding prescriptions she had 
written. Respondent further stated that during the previous week, she 
had gone to her new clinic and attempted to retrieve her prescriptions 
but was told that the pads belonged to the clinic. Respondent added 
that she had become concerned that someone was using her DEA number to 
issue prescriptions without her consent. Because of the unauthorized 
use of her number, Respondent then agreed to voluntarily surrender her 
DEA registration. She also surrendered her state controlled-substances 
registration.
    On September 30, 2005, Respondent applied for a new registration 
using the address of the 45 Clinic for her proposed registered 
location. Several days later, two DIs went to Respondent's residence 
and attempted to interview her. Upon opening the door, Respondent 
started screaming at the DIs and stated that they should contact her 
attorney. When one of the DIs asked Respondent for her attorney's phone 
number, Respondent stated that she would get the number and slammed the 
door. Several minutes later, Respondent opened the door, threw a piece 
of paper at the DI, and stated in a loud voice that ``the White House 
knew who her father was and that she was his daughter.'' After the DIs 
told Respondent that they were there to speak to her about her 
application, Respondent stated that ``there would be no trick or 
treating here today.'' One of the DIs again asked Respondent whether 
she had applied for a new registration. Respondent answered ``yes'' and 
again slammed the door shut.
    Thereafter, a local pharmacist notified DEA investigators that on 
October 3 and 4, he had received two prescriptions which were written 
under Respondent's DEA number. The pharmacist told the DIs that when he 
had attempted to verify one the prescriptions, Respondent did not 
return the call. Respondent, in a subsequent interview, denied issuing 
the prescriptions.
    On January 5, 2006, a detective with the Garland, Texas Police 
Department notified one of the DIs that numerous prescriptions written 
under Respondent's former DEA registration had been presented at a 
local pharmacy. The prescriptions bore the name and address of the Main 
Medical Clinic, Respondent's former employer.

[[Page 4632]]

    Thereafter, on March 28, 2006, an official of the Texas Department 
of Public Safety (DPS) notified a DI that the State intended to 
terminate Respondent's state controlled-substances registration. The 
state official further told the DI that Respondent's application had 
been erroneously granted because at the time the application was 
approved, the State was upgrading its computer system and was unable to 
access her history.
    Subsequently, on June 26, 2006, DPS terminated Respondent's state 
controlled-substances registration on the ground that she was 
prohibited under the State's rules for re-applying for a period of one 
year following her surrendering of her state registration. I further 
find that the State has not re-instated her controlled-substances 
registration.
    I also find that on August 24, 2007, Respondent entered into an 
Agreed Order with the Texas Medical Board. Under the order, Respondent 
voluntarily and permanently surrendered her medical license. According 
to the Texas Medical Board's website, ``[t]he action was based on 
[Respondent's] failure to meet the standard of care due [to] her non-
therapeutic prescription of controlled substances to four patients and 
to herself.''

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 (DC 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 Texas law to handle controlled substances and thus 
does not meet an essential requirement for a registration under the 
CSA. Second, while it appears that Respondent will not be returning to 
medical practice anytime soon, her experience in dispensing controlled 
substances and her record of compliance with applicable laws make clear 
that granting her a registration ``would be inconsistent with the 
public interest.'' 21 U.S.C. 823(f).
    Under the Controlled Substances Act (CSA), a practitioner must be 
currently authorized to handle controlled substances in ``the 
jurisdiction in which [she] 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. section 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 repeatedly held 
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 Texas 
controlled-substances registration was terminated on June 26, 2006. 
Moreover, there is no evidence that the State has issued a new 
controlled substance registration to her, and the Agreed Order which 
Respondent entered into with the Texas Medical Board suggests that the 
State will not grant her a new controlled-substances registration any 
time soon. Because Respondent is without authority to handle controlled 
substances in Texas, the State in which she seeks a DEA registration, 
she does not meet an essential prerequisite for a new DEA registration. 
Accordingly, her application is denied on that basis. See 21 U.S.C. 
823(f).
    I further note that even if Respondent possessed a state 
registration, the record would still support the denial of her 
application on the ground that her registration would be ``inconsistent 
with the public interest.'' 21 U.S.C. 823(f). As the State found, 
Respondent has engaged in the non-therapeutic prescription of 
controlled substances both to herself and others.
    With respect to her self-prescribing, the record establishes that 
Respondent issued to herself 117 prescriptions for narcotic-cough 
syrups, which are schedule V controlled substances. The record further 
establishes that Respondent's statements to investigators that the 
prescriptions were issued to her by her son, and that her son was a 
physician, were false.
    Moreover, there is also substantial and disturbing evidence that 
Respondent failed to exercise proper control over her prescriptions 
pads and allowed unlicensed and un-registered individuals at the Main 
Medical Clinic to write prescriptions under her DEA registration. This 
conduct violates federal law and regulations, which require that a 
prescription be ``issued for a legitimate medical purpose by an 
individual practitioner acting in the usual course of [her] 
professional practice,'' 21 CFR 1306.04(a), and that each person 
writing a prescription be ``[a]uthorized to prescribe controlled 
substances by the jurisdiction in which he is licensed to practice his 
profession and * * * [e]ither registered or exempted from 
registration.'' Id. Sec.  1306.03(a). Accordingly, even if Respondent 
held a state registration, her abysmal experience in dispensing 
controlled substances and her record of non-compliance with federal and 
state laws related to controlled substances would nonetheless require 
the denial of her 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 Nasim F. 
Khan, M.D., for

[[Page 4633]]

a DEA Certificate of Registration as a practitioner be, and it hereby 
is, denied. This order is effective February 25, 2008.

    Dated: January 17, 2008.
Michele M. Leonhart,
Deputy Administrator.
 [FR Doc. E8-1241 Filed 1-24-08; 8:45 am]
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