[Federal Register Volume 76, Number 209 (Friday, October 28, 2011)]
[Notices]
[Pages 66968-66969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27929]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Abelardo E. Lecompte-Torres, M.D. Decision and Order

    On April 29, 2010, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Abelardo E. Lecompte-Torres, M.D. (Respondent), of Ponce, 
Puerto Rico. The Show Cause Order proposed the denial of Respondent's 
application for a DEA Certificate of Registration, on the ground that 
his registration ``would be inconsistent with the public interest, as 
that term is defined in 21 U.S.C. 823(f).'' Show Cause Order at 1.
    The Show Cause Order specifically alleged that ``[o]n or about 
April 7, 2009, [Respondent] filed an application for registration[,] 
seeking a DEA Certificate of Registration as a practitioner in 
Schedules II through V * * * at the registered location of 620 Lady Di 
Street, Apartment 10, Parque Los Almendros, Ponce, Puerto Rico 
00716.'' Id. The Show Cause Order then alleged that on August 21, 2006, 
Respondent had voluntarily surrendered his previous DEA registration 
pursuant to a Memorandum of Understanding he entered into with DEA on 
July 11, 2006. Id.
    The Show Cause Order further alleged that on May 2, 2007, 
Respondent was indicted in the United States District Court for the 
District of Puerto Rico and charged with violations of 18 U.S.C. 2; 
1349; 1956(h) and (a)(1)(A)(i); as well as 21 U.S.C. 841(a)(1) and 846. 
Show Cause Order at 2. The Show Cause Order also alleged that the 
indictment alleged that Respondent had authorized multiple 
prescriptions for controlled substances, including hydrocodone, for 
internet customers who resided in jurisdictions where he was not 
authorized to practice medicine. Id. The Order further alleged that the 
indictment had charged him with authorizing ``prescriptions for 
individuals with whom [he] did not establish a valid doctor-patient 
relationship'' because he ``(1) fail[ed] to establish a sufficient 
patient history; (2) fail[ed] to perform an adequate physical or mental 
exam; (3) fail[ed] to use appropriate diagnostic or laboratory testing; 
and (4) fail[ed] to provide a means to monitor medication response.'' 
Id.
    Finally, the Show Cause Order alleged that on January 10, 2008, 
Respondent pled guilty to one count of conspiracy to possess with 
intent to distribute hydrocodone, a violation of 21 U.S.C. 841(a)(1) 
and 846. Id. The Order then alleged that Respondent was subsequently 
convicted and sentenced to three years probation. Id.
    On May 22, 2010, the Show Cause Order, which also notified 
Respondent of his right to request a hearing on the allegations or to 
submit a written statement in lieu of a hearing, the procedure for 
doing either, and the consequence for failing to do either, was served 
on him by certified mail as evidenced by the signed returned receipt 
card. See id. at 2 (citing 21 CFR 1301.43(a)); see also GX 10. 
Thereafter, on June 22, 2010, Respondent's counsel timely submitted a 
letter to the Office of Administrative Law Judges (ALJ) wherein he 
waived his right to a hearing but requested the opportunity to file a 
written statement. See GX 11. Respondent further stated that he did not 
contest the numbered allegations of the Show Cause Order (which are set 
forth above), but that he would ``bring to [the Agency's] attention 
facts that particularize and expand said findings.'' Id. Respondent 
also stated that he would like to bring to the Agency's attention 
``extenuating circumstances which should attenuate the agency's final 
determination.'' Id.
    However, when, as of September 21, 2010, the Government had not 
received his statement, it filed its Request for Final Agency Action 
and forwarded the Investigative Record to this Office. Subsequently, on 
December 17, 2010, the Government filed an Addendum to its Request for 
Final Agency Action, stating that it had since learned that Respondent 
had entered into an agreement with the Puerto Rico Board of Licensing 
and Medical Discipline (Board), and that on September 22, 2010, the 
Board had issued a resolution, the terms of which include, inter alia, 
that Respondent surrender his authority to prescribe controlled 
substances for a term of three years, effective September 29, 2010.
    On December 17, 2010, the Government served the Addendum on 
Respondent's counsel by first class mail. Since Respondent's June 2010 
letter, DEA has not received any other correspondence from Respondent 
or his counsel.
    I therefore find that Registrant has waived his right to a hearing 
and to submit a written statement beyond that contained in his June 
2010 letter. See 21 CFR 1301.43(e). Accordingly, I issue this Decision 
and Final Order based on relevant evidence contained in the record 
submitted by the Government, including Respondent's statement that he 
does not contest the allegations

[[Page 66969]]

contained in the Order to Show Cause. See 21 CFR 1301.46; 1316.49. I 
make the following findings of fact.

Findings

    Respondent previously held a DEA registration as a practitioner. 
However, on September 19, 2005, Respondent was issued an Order to Show 
Cause and Immediate Suspension of Registration based on allegations 
that he had issued controlled-substance prescriptions over the internet 
to persons he neither saw nor physically examined and with whom ``he 
had no prior doctor-patient relationship,'' and on whom he did not 
maintain patient records. GX 3, at 5. The 2005 Show Cause Order thus 
alleged that Respondent acted outside of the usual course of 
professional practice and lacked a legitimate medical purpose in 
issuing the prescriptions. Id. at 6-7.
    Thereafter, Respondent and DEA settled the matter by entering into 
a Memorandum of Agreement (MOA), which became effective on July 11, 
2006, and which is to remain in effect for five years. GX 4, at 8. 
Pursuant to the MOA, Respondent agreed to surrender his registration 
and the Government agreed that it would approve his application for a 
new registration ``after the expiration of twenty-four (24) months from 
service of the'' 2005 Show Cause Order ``barring any unforeseen or 
heretofore unknown basis to deny the application,'' and that ``no act 
that formed the basis for * * * paragraphs 15-17'' of the 2005 Show 
Cause Order ``shall form the sole basis for [the] denial of 
Registration.'' \1\ Id. at 4-5. On August 21, 2006, Respondent 
surrendered his registration. GX 5.
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    \1\ The MOA also provided that:
    DEA is not precluded from introducing this Agreement, violations 
of this Agreement and any other relevant allegations, whether 
enumerated herein or not, that preceded or may ensue during or after 
the effective period of this Agreement in any future administrative 
proceedings. Further, nothing in this Agreement shall be construed 
as a waiver to use any other grounds for revocation or denial of a 
DEA registration, including, but not limited to, the admissibility 
of this Agreement and/or any violations of this Agreement in the 
event that future administrative proceedings become necessary.
    GX 4, at 5-6.
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    On May 2, 2007, a Federal grand jury sitting in the District of 
Puerto Rico, issued a superseding indictment, which charged Respondent 
with conspiring to distribute controlled substances, in violation of 21 
U.S.C. 846; unlawfully distributing a controlled substance 
(hydrocodone), in violation of 21 U.S.C. 841(a)(1); conspiracy to 
commit wire fraud, in violation of 18 U.S.C. 1349; and conspiracy to 
commit money laundering, in violation of 18 U.S.C. 1956(h) and 
1956(a)(1)(A)(i). See GX 7. On January 10, 2008, Respondent pled guilty 
to one count of Conspiracy to Possess with Intent to Distribute 
Hydrocodone, in violation of 21 U.S.C. 841(a)(1) and 846; on August 8, 
2008, the United States District Court entered its judgment finding him 
guilty of the offense and sentenced him to three years' probation and 
288 hours of community service. See GX 8.
    On April 7, 2009, Respondent submitted an online application for a 
new DEA Certificate of Registration as a Practitioner in schedules II-
V. Respondent sought registration at the address of 620 Lady Di Street, 
Apt. 10, Parque Los Almendros, Ponce, Puerto Rico 00716. GX 1, 
at 1.
    On May 26, 2010, the Puerto Rico Board issued a complaint against 
Respondent's license on the ground that he had been convicted of a 
crime involving moral turpitude. Declaration of Diversion Investigator, 
at 2. On September 2, 2010, Respondent and the Board's Investigator 
agreed to a settlement; on September 22, the Board voted to adopt the 
settlement. Id.
    Pursuant to the settlement, Respondent was allowed to continue 
practicing medicine. Id. at 3. However, Respondent ``[s]urrender[ed] 
his capacity to prescribe controlled substances for a term of three 
years.'' Id. I therefore find that Respondent is currently without 
authority to handle controlled substances in the Commonwealth of Puerto 
Rico, the jurisdiction in which he has sought registration.

Discussion

    Section 303(f) of the Controlled Substances Act (CSA) provides that 
``[t]he 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.'' 21 U.S.C. 823(f). Moreover, the CSA defines 
``[t]he term `practitioner' [to] mean[] a physician * * * licensed, 
registered, or otherwise permitted, by the United States or 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). See also id. Sec.  
824(a)(3) (authorizing 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'').
    As these provisions make plain, possessing authority under state 
law (or in the case of Puerto Rico, the law of the Commonwealth) to 
handle controlled substances is an essential condition for obtaining 
and maintaining a DEA registration. Steven B. Brown, 75 FR 65660, 65663 
(2010) (citing John B. Freitas, 74 FR 17524, 17525 (2009)); Dominick A. 
Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 
(1988).
    It is undisputed that the Puerto Rico Board has suspended 
Respondent's authority to dispense controlled substances in the 
Commonwealth, the jurisdiction in which he practices, for a period of 
three years, and that he does not satisfy the CSA's requirement for 
obtaining a registration. See 21 U.S.C. 802(21) & 823(f). Accordingly, 
his pending application will be denied.\2\
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    \2\ While the Government contends that Respondent's application 
should also be denied based on his involvement in an additional 
internet prescribing scheme and his felony conviction for 
participating in this scheme, see Request for Final Agency Action, 
at 7-9; for the reason stated above, I conclude that it is 
unnecessary to address whether this conduct provides a further 
ground for denying his application.
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well 
as 28 CFR 0.100(b) and 0.104, I order that the pending application by 
Abelardo E. Lecompte-Torres, M.D., for DEA Certificate of Registration 
as a practitioner, be, and it hereby is, denied. This Order is 
effective immediately.

    Dated: October 17, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2011-27929 Filed 10-27-11; 8:45 am]
BILLING CODE 4410-09-P