[Federal Register Volume 77, Number 238 (Tuesday, December 11, 2012)]
[Notices]
[Pages 73677-73678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29815]



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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 12-45]


Stephanie A. Tarapchak, M.D.; Decision and Order

    On May 1, 2012, Administrative Law Judge (ALJ) Timothy D. Wing 
issued the attached recommended decision. Neither party filed 
exceptions to the decision. Having reviewed the entire record, I have 
decided to adopt the ALJ's rulings, findings of fact, his ultimate 
conclusion of law, and recommended Order. However, because the ALJ's 
decision does not adequately explain the legal basis for the Agency's 
Order, additional clarification is provided below.
    As this Agency has repeatedly explained, DEA's longstanding rule 
that a practitioner may not hold a registration if he lacks authority 
under state law to dispense controlled substances and that the loss of 
such authority subjects a practitioner's registration to revocation, is 
not based solely on 21 U.S.C. 824(a)(3), which is a grant of authority 
to either suspend or revoke a registration ``upon a finding'' that a 
registrant ``has had his State license or registration suspended, 
revoked, or denied by competent State authority and is no longer 
authorized by State law to engage in the . . . dispensing of controlled 
substances.'' See, e.g., Richard H. Ng, 77 FR 29694 (2012); Segun M. 
Rasaki, 77 FR 29692 (2012); David W. Wang, 72 FR 54297 (2007). Rather, 
DEA's rule derives primarily from two other provisions of the 
Controlled Substances Act (CSA), 21 U.S.C. 802(21), which defines the 
term ``practitioner,'' and 21 U.S.C. 823(f), which sets forth the 
requirements for obtaining a registration as a practitioner.
    More specifically, the CSA defines ``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). 
Consistent with this definition, Congress, in setting the requirements 
for obtaining a practitioner's registration, provided 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 one cannot obtain a practitioner's registration unless one 
holds authority under state law to dispense controlled substances, and 
because where a registered practitioner's state authority has been 
revoked or suspended, the practitioner no longer meets the statutory 
definition of a practitioner, 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 both obtaining and maintaining 
a practitioner's registration. See Hooper v. Holder, 2012 WL 2020079, 
*2 (4th Cir. 2012) (unpublished) (``Because Sec.  823(f) and Sec.  
802(21) make clear that a practitioner's registration is dependent upon 
the practitioner having state authority to dispense controlled 
substances, the [DEA]'s decision to construe Sec.  824(a)(3) as 
mandating revocation upon suspension of a state license is not an 
unreasonable interpretation of the CSA.''); see also ALJ at 4 (citing 
cases).\1\
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    \1\ This citation is to the slip opinion as issued by the ALJ.
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    Accordingly, the Agency has consistently held that ```the CSA 
requires the revocation of a registration issued to a practitioner * * 
* even where a state board has suspended (as opposed to revoked) a 
practitioner's authority with the possibility that the authority may be 
restored at some point in the future.''' Hooper, 2012 WL 2020079, at *2 
(quoting Calvin Ramsey, M.D., 76 FR 20034, 20036 (2011)). See also 
Kamal Tiwari, M.D., 76 FR 71604, 71606 (2011) (``revocation is 
warranted even where a practitioner's state authority has been 
summarily suspended and the State has yet to provide the practitioner 
with a hearing to challenge the State's action at which he may 
ultimately prevail''); Bourne Pharmacy, Inc., 72 FR 18273, 18274 
(2007); Anne Lazar Thorn, 62 FR 12847 (1997). I therefore adopt the 
ALJ's recommended order.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration BT9132008, issued to Stephanie A. Tarapchak, M.D., be, and 
it hereby is, revoked. I further order that any pending application of 
Stephanie A. Tarapchak, M.D., to renew or modify her registration, be, 
and it hereby is, denied. This Order is effective January 10, 2013.

    Dated: December 3, 2012.
Michele M. Leonhart,
Administrator.

Robert W. Walker, Esq., for the Government
Stephanie A. Tarapchak, M.D., Pro Se

Recommended Ruling, Findings of Fact, Conclusions of Law and Decision 
of the Administrative Law Judge

    Timothy D. Wing, Administrative Law Judge. This proceeding is an 
adjudication governed by the Administrative Procedure Act, 5 U.S.C. 
Sec.  551 et seq., to determine whether Respondent's Certificate of 
Registration (COR) with the Drug Enforcement Administration (DEA) 
should be revoked, and any pending applications for renewal or 
modification of that registration and any applications for additional 
registrations should be denied. Without this registration, Stephanie A. 
Tarapchak, M.D. (Respondent) would be unable to lawfully possess, 
prescribe, dispense or otherwise handle controlled substances.

I. Procedural Posture

    On February 10, 2012, the Administrator, Drug Enforcement 
Administration (DEA or Government), issued an Order to Show Cause and 
Immediate Suspension of Registration (OSC/IS) relating to Certificate 
of Registration (COR) BT9132008, and served on Respondent on February 
14, 2012. The OCS/IS alleged that Respondent's continued registration 
constitutes an imminent danger to the public health and safety. The 
OSC/IS also provided notice to Respondent of an opportunity to show 
cause as to why the DEA should not revoke Respondent's DEA COR 
BT9132008, pursuant to 21 U.S.C. Sec.  824(a)(4), on the grounds that 
Respondent's continued registration would be inconsistent with the 
public interest under 21 U.S.C. Sec.  823(f).
    On April 13, 2012, Respondent, acting pro se, filed an untimely 
request for hearing with the DEA Office of Administrative Law Judges 
(OALJ) in the above-captioned matter. Acknowledging that her request 
for hearing was untimely, she requested an extension of time to file 
her request for hearing pursuant to 21 C.F.R. Sec.  1316.47(b). (Req. 
for Hr'g at 6.) On April 16, 2012, OALJ sent a letter to Respondent 
informing her of her right to representation under 21 C.F.R. Sec.  
1316.50.
    On April 16, 2012, I issued an Order for Prehearing Statements in 
which I ordered the parties to file statements addressing whether good 
cause exists

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for Respondent's untimely request for hearing. Upon receipt of those 
statements, on April 24, 2012, I issued a Memorandum and Order 
Regarding Timeliness of Respondent's Request for Hearing. Although I 
found good cause for Respondent's untimely request for hearing, I 
stayed the proceedings and ordered the parties to file, no later than 
May 1, 2012, a statement addressing whether Respondent has state 
authority to handle controlled substances.\1\
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    \1\ In Respondent's Statement of Good Cause Existing in which 
she addressed good cause for her untimely hearing request, 
Respondent noted that her former counsel ``received the Order 
suspending [Respondent]'s license on April 11, 2012 and did not 
place it in the mail to her until April 16, 2012, with an attendant 
twenty-day deadline to respond.'' (Resp't April 23, 2012 Stmt. at 
11.)
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    On May 1, 2012, the Government filed a Motion for Summary 
Disposition on the grounds that Respondent currently lacks state 
authority to handle controlled substances. On May 1, 2012, Respondent 
filed her Statement Addressing Whether Respondent has State Authority 
to Handle Controlled Substances, in which she concedes that she lacks 
state authority.

II. The Parties' Contentions

A. The Government

    In support of its motion for summary disposition, the Government 
asserts that on April 11, 2012, the Pennsylvania State Board of 
Osteopathic Medicine (Board) issued a Notice of disciplinary action and 
Preliminary Order indefinitely suspending Respondent's state medical 
license for no less than three (3) years, and that Respondent 
consequently lacks authority to possess, dispense or otherwise handle 
controlled substances in Pennsylvania, the jurisdiction in which she 
maintains her DEA registration. (Mot. at 2.) The Government contends 
that such state authority is a necessary condition for maintaining a 
DEA COR and therefore asks that I summarily recommend to the 
Administrator that Respondent's DEA COR be revoked. (Id. at 2-3.) In 
support of its motion, the Government cites Agency precedent and 
attaches the Board's Notice and Preliminary Order referred to above.

B. Respondent

    Respondent concedes that ``at this time [she] does not have state 
authority to handle controlled substances.'' (Resp't May 1, 2012 Stmt. 
at 1.) Respondent submits that in October 2011, she entered into a 
Consent Agreement with the Board, which ``subjected her to very 
restrictive and imposing terms and conditions that were not fully 
disclosed in the Agreement.'' (Id. at 2.) According to Respondent, on 
April 11, 2012, the Board filed a Petition for Appropriate Relief, a 
Preliminary Order, and a Notice of formal disciplinary action, alleging 
that Respondent violated the terms and conditions of the October 2011 
Consent Agreement. (Id. at 3.) The April 11, 2012 Preliminary Order 
``suspended [Respondent]'s license to practice osteopathic medicine 
indefinitely pending the disposition of a hearing.'' (Id.) Respondent 
also attached the Preliminary Order to her statement.

III. Discussion

    At issue is whether Respondent may maintain her DEA COR given that 
Pennsylvania has suspended her state license to practice medicine.
    Under 21 U.S.C. 824(a)(3), a practitioner's loss of state authority 
to engage in the practice of medicine and to handle controlled 
substances is grounds to revoke a practitioner's registration. 
Accordingly, this agency has consistently held that a person may not 
hold a DEA registration if she is without appropriate authority under 
the laws of the state in which she does business. See Scott Sandarg, 
D.M.D., 74 FR 17,528 (DEA 2009); David W. Wang, M.D., 72 FR 54,297 (DEA 
2007); Sheran Arden Yeates, M.D., 71 FR 39,130 (DEA 2006); Dominick A. 
Ricci, M.D.,> 58 FR 51,104 (DEA 1993); Bobby Watts M.D., 53 FR 11,919 
(DEA 1988).
    Summary disposition in a DEA revocation case is warranted even if 
the period of suspension of a respondent's state medical license is 
temporary, or even if there is the potential for reinstatement of state 
authority because ``revocation is also appropriate when a state license 
had been suspended, but with the possibility of future reinstatement.'' 
Stuart A. Bergman, M.D., 70 FR 33,193 (DEA 2005); Roger A. Rodriguez, 
M.D., 70 FR 33,206 (DEA 2005).
    It is well-settled that when no question of fact is involved, or 
when the material facts are agreed upon, a plenary, adversarial 
administrative proceeding is not required, under the rationale that 
Congress does not intend administrative agencies to perform meaningless 
tasks. See Layfe Robert Anthony, M.D., 67 FR 35,582 (DEA 2002); Michael 
G. Dolin, M.D., 65 FR 5661 (DEA 2000); see also Philip E. Kirk, M.D., 
48 FR 32,887 (DEA 1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 
(6th Cir. 1984). Accord Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 
F.3d 600, 605 (1st Cir. 1994).
    In the instant case, the Government asserts, and Respondent 
concedes, that Respondent's Pennsylvania medical license is presently 
suspended. This allegation is confirmed by the attachments to the 
Government's motion, as well as Respondent's own admission and 
attachments. I therefore find there is no genuine dispute as to any 
material fact, and that substantial evidence shows that Respondent is 
presently without state authority to handle controlled substances in 
Pennsylvania.
    Because ``DEA does not have statutory authority under the 
Controlled Substances Act to maintain a registration if the registrant 
is without state authority to handle controlled substances in the state 
in which he practices,'' Yeates, 71 Fed. Reg. at 39,131, I conclude 
that summary disposition is appropriate. It is therefore
    ORDERED that the hearing in this case is hereby CANCELLED; and it 
is further
    ORDERED that all proceedings before the undersigned are STAYED 
pending the Agency's issuance of a final order.
Recommended Decision
    I grant the Government's motion for summary disposition and 
recommend that Respondent's DEA COR BT9132008 be revoked and any 
pending applications for renewal or modification of that registration 
and any applications for additional registrations be denied.

    Dated: May 1, 2012.
Timothy D. Wing
Administrative Law Judge
[FR Doc. 2012-29815 Filed 12-10-12; 8:45 am]
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