[Federal Register Volume 77, Number 97 (Friday, May 18, 2012)]
[Notices]
[Pages 29691-29692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12096]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Matthew J. Kachinas, M.D.; Decision and Order

    On September 27, 2011, the Deputy Assistant Administrator, Office 
of Diversion Control, Drug Enforcement Administration, issued an Order 
to Show Cause to Matthew J. Kachinas, M.D. (hereinafter, Registrant), 
of Ft. Myers and Venice, Florida. The Show Cause Order proposed the 
revocation of Respondent's DEA Certificates of Registration, s 
FK1795624 and FK1794305, and the denial of any applications to renew or 
modify the registrations, on two grounds. Show Cause Order at 1 (citing 
21 U.S.C. 823(f), 824(a)(3) & (4)).
    First, the Order alleged that as a result of an action taken by the 
Florida Board of Medicine, Registrant no longer holds authority to 
dispense controlled substances in Florida, the State in which he holds 
his registrations. Show Cause Order at 2. Second, the Order alleged 
that ``DEA's investigation revealed that [Registrant] stored and later 
abandoned controlled substances at an unregistered location, in 
violation of 21 CFR 1301.12(a).'' Id. The Order also notified 
Registrant of his right to request a hearing on the allegations or to 
submit a written statement in lieu of a hearing, the procedures for 
doing either, and the consequences for failing to do either. See id. 
(citing 21 CFR 1301.43(a), (c), (d), & (e)).
    As evidenced by the signed return receipt card, on December 5, 
2011, service was accomplished on Registrant by certified mail 
addressed to him at his residence. GX 7. Since the date of service, 
more than thirty days have now passed and neither Registrant, nor 
anyone purporting to represent him, has requested a hearing or 
submitted a written statement in lieu of a hearing. Accordingly, I find 
that Registrant has waived both his right to a hearing and his right to 
submit a written statement in lieu of a hearing. 21 CFR 1301.43(e). 
Accordingly, I issue this Decision and Order based on relevant evidence 
contained in the Investigative Record submitted by the Government. I 
make the following findings.

Findings

    Registrant is the holder of two DEA Certificates of Registration, 
which authorize him to dispense controlled substances in schedules II 
through V as a practitioner: (1) FK1795624, with the 
registered address of 13100 Westlinks Terrace, Suite 12, Ft. Myers, 
Florida; and (2) FK1794305, with the registered address of 401 
Commercial Ct., Suite D, Venice, Florida. Both of these registrations 
do not expire until December 31, 2012.\1\
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    \1\ Registrant also held a third registration, which expired on 
December 31, 2011. However, the Government states that Registrant 
did not file a renewal application for this registration. Request 
for Final Agency Action at 7.
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    Registrant formerly held a license to practice medicine which was 
issued by the Florida Board of Medicine. However, on April 16, 2010, 
the Board of Medicine issued a Final Order which adopted the 
recommended order of a state Administrative Law Judge and revoked 
Registrant's medical license. GX 5, at 10-11. Accordingly, I find that 
Registrant is without authority under the laws of Florida to practice 
medicine and dispense controlled substances.
    The Government also submitted various Incident Reports it obtained 
from the Longboat Key, Florida Police Department. According to these 
reports, on July 6, 2011, a police officer was summoned to a home 
located at 1590 Harbor Cay Lane based on ``a complaint of some type of 
hazardous materials located in a repossessed home.'' GX 6, at 1. 
According to the report, the responding officer spoke with one Ms. O. 
of Field Asset Services, an Austin, Texas based firm, who stated that 
the home had been recently repossessed from a former physician and that 
she was hired to clean up the property. Id. at 3. Ms. O. showed the 
officer items that she believed to be narcotics, a large amount of 
needles, and a lab specimen medium. Id. The officer took possession of 
the items suspected of being

[[Page 29692]]

controlled substances and advised Ms. O. that the needles and other 
medical supplies should be declared bio-hazards and removed by a 
professional disposal firm. Id. Another portion of the report lists the 
confiscated items and includes five vials of injectable Diazepam 5mg/ml 
(a schedule IV controlled substance), 11 vials of injectable midazolam 
50mg/10ml (also a schedule IV controlled substance), 1 vial of ketamine 
500gm/10ml (a schedule III controlled substance), as well as one 
partially used vial of each of these drugs, and one vial of brevital 
sodium (a schedule IV controlled substance). Id. at 2. The police 
report, however, contains no further information explaining how the 
determination was made that the vials contained the above listed drugs. 
See generally id. Nor does any other evidence in the record establish 
how this determination was made.
    In addition, the record includes a document which provides Master 
Information for Registrant's expired registration and lists the same 
1590 Harbor Cay Lane address as his mailing address. GX 3. While this 
document creates a reasonable suspicion that Registrant brought the 
above items to this address, the record contains no further evidence 
sufficient to move beyond suspicion and into the realm of substantial 
evidence necessary to establish this as a fact. See NLRB v. Columbian 
E. & S. Co., 306 U.S. 292, 300 (1939) (``Substantial evidence is more 
than a scintilla, and must do more than create a suspicion of the 
existence of the fact to be established.''). More specifically, while 
the police report notes that the home had ``recently been repossessed 
from'' Registrant, no other evidence establishes the declarant's basis 
of knowledge, let alone such facts as the respective dates on which 
Registrant vacated the premises and the home was repossessed, whether 
the home was secured after Registrant vacated the premises and was in 
that state when Ms. O. entered it and found the items, and whether 
Registrant was the only person who stayed in the home and who had 
access to controlled substances.

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 ``upon a 
finding that the registrant * * * has had his State license * * * 
suspended [or] revoked * * * by competent State authority and is no 
longer authorized by State law to engage in the * * * dispensing of 
controlled substances.'' Moreover, DEA has repeatedly held that the 
possession of authority to dispense controlled substances under the 
laws of the State in which a practitioner engages in professional 
practice is a fundamental condition for obtaining and maintaining a 
practitioner's registration.
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined ``the term `practitioner' [to] mean[] a * * * 
physician * * * or other person 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.'' 21 U.S.C. 802(21). Second, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed that ``[t]he Attorney General shall register 
practitioners * * * 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). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the Act, DEA has held repeatedly that revocation of 
a practitioner's registration is the appropriate sanction whenever he 
is no longer authorized to dispense controlled substances under the 
laws of the State in which he practices medicine. See, e.g., Calvin 
Ramsey, 76 FR 20034, 20036 (2011); Dominick A. Ricci, 58 FR 51104, 
51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988).
    As found above, on April 16, 2010, the Florida Board of Medicine 
revoked Registrant's medical license and accordingly, he is no longer 
authorized under Florida law to dispense controlled substances. Because 
Registrant no longer satisfies the CSA's requirement for maintaining 
his registrations, I will order that his registrations be revoked and 
that any pending applications be denied.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a)(3), as well as 28 CFR 0.100(b), I order that DEA Certificates of 
Registration FK1795624 and FK1794305, issued to Matthew J. Kachinas, 
M.D., be, and they hereby are, revoked. I further order that any 
pending application of Matthew J. Kachinas, M.D., to renew or modify 
either registration, be, and it hereby is, denied. This Order is 
effective June 18, 2012.

    Dated: May 4, 2012.
Michele M. Leonhart,
Administrator.
[FR Doc. 2012-12096 Filed 5-17-12; 8:45 am]
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