[Federal Register Volume 75, Number 157 (Monday, August 16, 2010)]
[Notices]
[Pages 49978-49979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20194]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Nicholas J. Jerrard, M.D.; Revocation of Registration

    On September 30, 2009, the Deputy Assistant Administrator, Office 
of Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Nicholas J. Jerrard, M.D. (Respondent), of San 
Diego, California. The Show Cause Order proposed the revocation of 
Respondent's DEA Certificate of Registration, BJ6361036, which 
authorizes him to dispense controlled substances as a practitioner, on 
the ground that he does not ``have authority to practice medicine or 
handle controlled substances in the state of California.'' Show Cause 
Order at 1. The Order also proposed the denial of ``any pending 
applications for renewal or modification of'' Respondent's 
registration. Id.
    Specifically, the Order alleged that the Medical Board of 
California (MBC) had ``revoked [Respondent's] State medical license'' 
and that he is ``currently without authority to handle controlled 
substances in the State of California.'' Id. The Order also alleged 
that the Board based its revocation of his license ``on a report from 
the Oregon Board of Medical Examiners'' which indicated that he 
``failed a pre-employment drug screen by testing positive for two 
Schedule IV controlled substances and failed to provide proof of valid 
prescriptions for the medications.'' Id. at 2. Finally, the Order 
alleged that in an interview with an MBC investigator in June 2008, 
Respondent ``admitted that [he] had used methamphetamine approximately 
every two months since 2005.'' Id. Finally, the Order notified 
Respondent of his right to request a hearing on the allegations, the 
procedure for doing so, and the consequences for failing to do so. Id.
    On December 10, 2009, a DEA Diversion Investigator (DI) served 
Respondent by leaving a copy of the Show Cause Order at Respondent's 
registered address. Moreover, on December 22, 2009, the DI left a copy 
of Show Cause Order at an address in San Diego for Respondent which he 
had obtained from the MBC.\1\
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    \1\ In addition, the DI had previously gone to Respondent's 
registered address and met its ``current occupant,'' who stated that 
he was in contact with Respondent but that the latter ``had been out 
of the country for a few years.'' The DI gave this person his 
contact information and asked that he have Respondent contact him; 
however, Respondent did not contact the DI. The DI also performed an 
Internet search for Respondent's ``possible practice locations'' but 
was ``unable to locate any pertinent information.''
    As regards the sufficiency of service of the Order to Show 
Cause, I conclude that notwithstanding that Respondent was not 
personally served, the Government has met the requirements of the 
Due Process Clause. As to notice, due process is satisfied when 
``[t]he means employed [are] such as one desirous of actually 
informing the absentee might reasonably adopt to accomplish.'' 
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 
(1950). More recently, the Supreme Court has held that ``[d]ue 
process does not require that a property owner receive actual notice 
before the government may take his property.'' Jones v. Flowers, 547 
U.S. 220, 226 (citing Dusenbery v. United States, 543 U.S. 161, 170 
(2002)). Furthermore, due process does not require ``heroic 
efforts,'' Dusenbery, 534 U.S. at 170, but rather only that ``the 
government * * * provide `notice reasonably calculated, under all 
the circumstances to apprise interested parties of the pendency of 
the action and afford them an opportunity to present their 
objections.' '' 547 U.S. at 226 (quoting Mullane, 339 U.S. at 314). 
I accordingly find that the DI's efforts to serve the Order on 
Respondent satisfied due process notwithstanding the Government's 
inability to effectuate personal service as the DI's efforts were 
``reasonably calculated, under all the circumstances, to apprise 
[Respondent] of the pendency of the action.'' Mullane, 339 U.S. at 
314.

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[[Page 49979]]

    Since the date of service of the Show Cause Order, more than thirty 
days have passed and neither Respondent, nor anyone purporting to 
represent him, has requested a hearing. I therefore find that 
Respondent has waived his right to a hearing and issue this Decision 
and Final Order based on the record submitted by the Government. 21 CFR 
1301.43. I make the following findings.

Findings

    Respondent holds DEA Certificate of Registration BJ6361036, which 
was last renewed on January 1, 2008. The registration does not expire 
until December 31, 2010.
    On March 24, 2009, the MBC adopted a Default Decision and Order in 
a case brought against a Respondent's State medical license. In re 
Nicholas Joseph Jerrard, M.D., No. 10-2006-179554, Decision at 1 (Med. 
Bd. Cal. 2009). According to the decision, in November 2006, the MBC 
received a report from the Oregon Board of Medical Examiners (Oregon 
Board) which indicated that Respondent ``had failed a pre-employment 
drug screen by testing positive for nordiazepam and temazepam and had 
failed to provide proof of a valid prescription for the medication.'' 
In re Jerrard, Default Decision and Order at 5. After an investigation, 
the Oregon Board allowed Respondent to withdraw his application to 
reactivate his medical license and closed the matter with no action 
taken. Id.
    On June 10, 2008, an Investigator from the MBC interviewed 
Respondent. During the interview, Respondent admitted that ``he had 
used methamphetamines approximately every two months since 2005.'' Id. 
at 6.
    The MBC further found that following the pre-employment drug screen 
which he failed, Respondent was evaluated at the Betty Ford Center. Id. 
The Center recommended that he undergo six months of inpatient 
treatment. Id. Because of financial reasons and his fear of losing two 
jobs, Respondent did not follow through with the recommendation. Id.
    However, around January 2008, he underwent some ten weeks of 
treatment at Rancho L'Abri, another inpatient facility. Id. After his 
discharge, Respondent found out that he had been fired from both his 
jobs and experienced a relapsed. Id. Thereafter, he was readmitted to 
Rancho L'Abri for one month and discharged to a 90-day outpatient 
program. Id. Respondent, nevertheless, participated in the program for 
only one day, indicating that he did not ``feel comfortable there.'' 
Id. Subsequently, he joined another outpatient treatment program from 
which he graduated in September 2008. Id.
    The MBC further concluded that Respondent had ``[s]elf-administered 
controlled substances'' in violation of California Business and 
Professions Code section 2239(a), and that he ``[e]ngaged in conduct 
which breaches the rules or ethical code of the medical profession, or 
conduct which is unbecoming to a member in good standing of the medical 
profession, and which demonstrates an unfitness to practice medicine'' 
in violation of California Business and Professional Code section 2234. 
Id. at 7. The MBC then revoked Respondent's license to practice 
medicine effective April 23, 2009. Decision at 1.

Discussion

    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) (defining the term ``practitioner'' 
as a person ``licensed, registered, or otherwise permitted, by the 
United States or the jurisdiction in which he practices * * * to 
distribute, dispense * * * [or] administer * * * a controlled 
substance''); id. Sec.  823(f) (``The Attorney General shall register 
practitioners * * * to dispense * * * controlled substances * * * if 
the applicant is authorized to dispense * * * controlled substances 
under the laws of the State in which he practices.'').
    Accordingly, DEA has held repeatedly that the CSA requires the 
revocation of a registration issued to a practitioner whose State 
license has been suspended or revoked. David Wang, 72 FR 54297, 54298 
(2007); 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''). Because Respondent is no longer 
licensed to practice medicine and therefore cannot dispense controlled 
substances in California, the State in which he is registered with DEA, 
under the CSA, he is no longer entitled to hold his registration. 
Accordingly, his registration will be revoked.

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) & 0.104, I order that DEA 
Certificate of Registration, BJ6361036, issued to Nicholas J. Jerrard, 
M.D., be, and it hereby is, revoked. I further order that any pending 
application of Nicholas J. Jerrard, M.D., to renew or modify his 
registration, be, and it hereby is denied. This Order is effective 
September 15, 2010.

    Dated: July 30, 2010.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 2010-20194 Filed 8-13-10; 8:45 am]
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