[Federal Register Volume 78, Number 60 (Thursday, March 28, 2013)]
[Notices]
[Pages 19012-19015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07195]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 13-13]


Pawan Kumar Jain, M.D.; Decision And Order

    On February 12, 2013, Administrative Law Judge (ALJ) Gail A. 
Randall 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, conclusions of 
law, and 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 BJ5128067, issued to Pawan Kumar Jain, M.D., be, and it 
hereby is, revoked. I further order that any pending application of 
Pawan Kumar Jain, M.D., to renew or modify his registration, be, and it 
hereby is, denied. This Order is effective immediately.


[[Page 19013]]


    Dated: March 21, 2013.
Michele M. Leonhart,
Administrator.

Dedra S. Curteman, Esq., for the Government
Jeffrey C. Grass, Esq., for the Respondent

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

I. Facts

    Gail A. Randall, Administrative Law Judge. The Deputy Assistant 
Administrator, Drug Enforcement Administration (``DEA'' or 
``Government''), issued an Order to Show Cause (``Order'') dated 
December 13, 2012,\1\ proposing to revoke the DEA Certificate of 
Registration, Number BJ5128067, of Pawan Kumar Jain, M.D., (``Dr. 
Jain'' or ``Respondent''), as a practitioner, pursuant to 21 U.S.C. 
824(a)(3)-(4) (2006), and deny any pending applications for renewal or 
modification of such registration because the Respondent does ``not 
have authority to practice medicine or handle controlled substances in 
the State of New Mexico'' and Respondent's ``continued registration is 
inconsistent with the public interest.'' [Order at 1].
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    \1\ The Order to Show Cause was served on the Respondent on 
December 17, 2012. See Government's Notice of Service.
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    Specifically, the Order alleged that the New Mexico State Medical 
Board took action against the Respondent on June 28, 2012. [Id.]. The 
Order further alleged that as a result of the action by the New Mexico 
State Medical Board, the Respondent is without authority to handle 
controlled substances in the state of New Mexico, the state in which 
the Respondent is registered with the DEA. [Id.] Thus, the DEA must 
revoke Respondent's DEA registration based on his lack of authority to 
handle controlled substances in the state of New Mexico. [Id.]. 
Additionally, the Order alleged that on April 3, 2012, during the 
execution of a federal search warrant, DEA personnel located controlled 
substances and prescription bottles at the Respondent's premises after 
the Respondent had previously stated on February 22, 2012, that he 
``did not order controlled substances for dispensing or administering 
at [his] registered location'' nor did he maintain controlled 
substances on his premises. [Id. at 1-2]. In relation to this 
allegation, the Order asserted that the Respondent did not maintain an 
inventory log for the controlled substances located at his registered 
location and thus, he violated 21 CFR 1304.11(a). Lastly, the Order 
alleged that from June 2008 through September 2011 at least twenty-one 
of the Respondent's patients died as a result of `multiple drug 
toxicity.' [Id. at 2]. Moreover, the Order alleged that a medical 
expert reviewed ten of the Respondent's patient records, seven of which 
were deceased patients, and determined that the Respondent's care 
deviated from the standard of care, and in some cases resulted in the 
death of the Respondent's patients. [Id.]. In relation to this 
allegation, the Order stated that the Respondent provided strong and 
dangerous controlled substances to patients who posed a risk of 
diversion, the Respondent post-dated prescriptions, the Respondent 
failed to properly complete prescriptions, and the Respondent did not 
issue prescriptions for a legitimate medical purpose in the usual 
course of professional practice. [Id.].
    On January 16, 2013, the Respondent, through counsel, filed a 
request for a hearing in the above-captioned matter. Concurrently with 
his request for hearing, Respondent filed a Motion for Stay of the 
Order to Show Cause Hearing (``Respondent's Motion''). Therein, 
Respondent moved to stay the scheduled hearing in this matter pending 
the resolution of Respondent's ``Petition for Judicial Review of the 
New Mexico State Medical Board's revocation of his medical license.'' 
[Respondent's Motion at 1]. Respondent argued that a stay of the 
administrative hearing will not harm the public interest because Dr. 
Jain is currently unable to handle controlled substances. [Id.].
    On January 22, 2013, the Court issued an Order directing the 
Government to respond to Respondent's Request for Hearing and Motion 
for Stay of the Hearing on or before January 29, 2013.
    On January 28, 2013, the Government filed its Motion for Summary 
Disposition and Response to Respondent's Request for Hearing and Motion 
for Stay of the Hearing (Government's Motion'').\2\ Therein, the 
Government opposed the Respondent's Motion for Stay of the Hearing and 
moved this Court to summarily dismiss the above-captioned matter. 
[Government's Motion at 1].
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    \2\ Government concurrently filed its Notice of Service, which 
stated that the December 13, 2012 Order to Show Cause was served on 
Respondent on December 17, 2012 by DEA investigators. See 
Government's Notice of Service. Thus, the Respondent's January 16, 
2013 Request for Hearing was timely filed. See 21 CFR 1301.43(a) 
(2012).
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    The Government argued that summary disposition is warranted in this 
case because the Respondent currently lacks authority to handle 
controlled substances in the State of New Mexico and thus lacks 
authority to possess a DEA registration. [Id. at 2-3]. The Government 
attached to its motion, a Decision and Order from the New Mexico 
Medical Board, dated December 17, 2012, in which the New Mexico Medical 
Board revoked the Respondent's medical license.\3\ [Id. at Exhibit C]. 
The Government argues, therefore, that in accordance with Agency 
precedent, the DEA is barred by statute from continuing the 
Respondent's registration because his state medical license has been 
revoked. [Id. at 2-3]. In addition, the Government argues that summary 
disposition is appropriate even though the Respondent intends to 
contest the New Mexico Board's decision to revoke his authority to 
practice medicine or handle controlled substances in the state of New 
Mexico. [Id. at 3-5]. The Government argues that summary disposition is 
warranted, even though the Respondent's privileges may be reinstated at 
a later date, because Agency precedent allows for the revocation of a 
registrant's registration when a state license has been suspended. 
[Id.]. Therefore, the Government requested that this Court grant its 
Motion for Summary Disposition and recommend that the Respondent's DEA 
registration be revoked because the Respondent lacks state authority to 
handle controlled substances. [Id. at 5]. In addition, the Government 
requested that this Court deny Respondent's Motion for Stay of the 
Hearing. [Id.].
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    \3\ In addition, the Government provided a June 28, 2012 Summary 
Suspension Order of the Respondent's New Mexico license to practice 
as a ``physician assistant'' [sic] from the New Mexico Medical 
Board, see Government Motion at Exh. A, a July 6, 2012 Amended 
Summary Suspension Order of the Respondent's New Mexico license to 
practice as a physician from the New Mexico Medical Board, see 
Government Motion at Exh. B, and a November 5, 2012 Hearing Officers 
Report from the New Mexico Medical Board, see Government Motion at 
Exh. D.
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    On January 29, 2013, the Court issued an Order directing the 
Respondent to respond to Government's Motion for Summary Disposition on 
or before February 5, 2013. The Respondent failed to respond to the 
Government's Motion for Summary Disposition by the Court's set date of 
February 5, 2013.
    For the reasons set forth below, I will grant the Government's 
Motion and recommend that the Administrator revoke the Respondent's DEA 
Certificate of Registration. But, I note that, pursuant to 21 
CFR1301.13(a) (2012), the Respondent may apply for a new DEA 
Certificate of Registration at any time.
    I will also deny the Respondent's Motion for a Stay.

[[Page 19014]]

II. Discussion

A. Respondent Currently Lacks Authority To Handle Controlled Substances 
In New Mexico
    The DEA will not maintain a controlled substances registration if 
the registrant is without state authority to handle controlled 
substances in the state in which the registrant practices. The 
Controlled Substances Act (``CSA'') provides that obtaining a DEA 
registration is conditional on holding a state license to handle 
controlled substances. See 21 U.S.C. 802(21) (2006) (defining 
``practitioner'' as ``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''); 21 U.S.C. 823(f) 
(2006) (``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''). The DEA, 
therefore, has consistently held that the CSA requires the DEA to 
revoke the registration of a practitioner who no longer possesses a 
state license to handle controlled substances. See 21 U.S.C. 824(a)(3) 
(2006) (stating ``a registration may be suspended or revoked by the 
Attorney General upon a finding that the registrant has had his State 
license or registration suspended, revoked or denied by competent State 
authority''); Beverley P. Edwards, M.D., 75 FR 49,991 (DEA 2010); 
Joseph Baumstarck, M.D., 74 FR 17,525 (DEA 2009).
    In this case, the Government has provided adequate documentation 
that the Respondent's New Mexico medical license was suspended on July 
6, 2012, and further revoked on December 17, 2012. See Government's 
Motion at Exh. B and C. Furthermore, although the Respondent failed to 
file a response to the Government's Motion for Summary Disposition, the 
Respondent admitted in his January 16, 2013 Request for Hearing that 
``Dr. Jain does not have authority to practice medicine or handle 
controlled substances in the State of New Mexico.'' [Respondent's 
Request for Hearing at 1]. Although the Respondent is seeking review of 
the New Mexico Medical Board's decision to revoke his medical 
license,\4\ this is not a sufficient reason to stay these proceedings. 
The law is clear that when the Respondent is without state authority to 
practice medicine, his DEA registration must be revoked. See 21 U.S.C. 
824(a)(3); Edwards, 75 FR 49,991; Baumstarck, 74 FR 17,525.
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    \4\ In Respondent's January 16, 2012 Request for Hearing, he 
contends that he has a pending request before the New Mexico Medical 
Board to reopen his case and that this request ``will be heard and 
ruled on by the Board within 60 days of the date of this letter.'' 
[Respondent's Request for Hearing at 2].
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    Although it is not disputed that the Respondent currently lacks 
state authority to practice medicine and handle controlled substances, 
the Respondent contends that his continued DEA registration is within 
the public interest. See Respondent's Request for Hearing at 2-4. 
Respondent argues that even though his state medical license has been 
revoked, a decision which he is appealing, he is entitled to a hearing 
in this matter because there are ``genuine issues of material fact'' 
that will be introduced through expert testimony, records, and other 
documents that demonstrate ``that given the totality of the facts and 
circumstances in the record, revoking his DEA COR registration would 
not be appropriate or justified.'' [Id. at 3]. Additionally, the 
Respondent contends that he has over 40 years of experience in the 
medical field and ``has never been the subject of any allegations that 
his medical practice is inconsistent with the public interest.'' [Id.]. 
The Respondent also asserts that he has no conviction record and has 
always complied with federal and state laws relating to controlled 
substances. [Id. at 3-4]. Lastly, the Respondent asserts that the 
allegations in the Order to Show Cause are ``in dispute and not 
accurate.'' [Id. at 4]. Moreover, the Respondent argues that his expert 
witness will be able to prove that the Respondent's practices were for 
a legitimate medical purpose and ``within acceptable limits of the 
recognized standard of care in the field of pain management.'' [Id.].
    While the Respondent may have raised genuine disputes of fact 
concerning the allegations in the Government's Order to Show Cause, 
those disputes are immaterial in light of the Respondent's current lack 
of state registration. Indeed, the CSA and Agency precedent make clear 
that as a prerequisite to DEA registration the Respondent must have 
state authority to handle controlled substances, and that without such 
authority all other issues before this forum are moot. See 21 U.S.C. 
802(21); 21 U.S.C. 823(f); Joseph Baumstarck, M.D., 74 FR at 17,527 
(DEA 2009). Thus, because there is no dispute that the Respondent lacks 
state authority to practice medicine and handle controlled substances, 
the Respondent's registration must be revoked.
    Moreover, because there is no genuine dispute as to any material 
fact and substantial evidence shows that Respondent is presently 
without state authority to practice medicine and handle controlled 
substances in New Mexico, summary disposition is warranted. It is well 
settled that when there is no question of material fact involved, there 
is no need for a plenary administrative hearing and that summary 
disposition is appropriate. See Layfe Robert Anthony, M.D., 67 FR 
35,582 (DEA 2002); Michael G. Dolin, M.D., 65 FR 5,661 (DEA 2000); 
Jesus R. Juarez, M.D., 62 FR 14,945 (DEA 1997). Accordingly, both the 
plain language of the CSA and Agency interpretive precedent dictate 
that summary disposition is appropriate and the Respondent's DEA 
registration must be revoked because Respondent is without state 
authority to practice medicine and handle controlled substances.
B. Respondent Is Entitled To Reapply for Registration With the DEA
    Any person who is required to register with the DEA may apply for 
registration at any time. 21 CFR 1301.13(a) (2012) (``Any person who is 
required and who is not registered may apply for registration at any 
time. No person required to be registered shall engage in any activity 
for which registration is required until the application for 
registration is granted and a Certificate of Registration is issued by 
the Administrator to such person'').
    The Respondent is permitted to reapply for a Certificate of 
Registration with the DEA at any time in the future. 21 CFR 1301.13(a). 
However, the Respondent will not be permitted to engage in activity for 
which a registration is required until his application is granted by 
the DEA. Id.

III. Conclusion, Order, and Recommendation

    Consequently, there is no genuine dispute of material fact 
regarding the Respondent's lack of state authority to practice medicine 
and handle controlled substances. Thus, summary disposition for the 
Government is appropriate. It is well settled that when there is no 
question of material fact involved, there is no need for a plenary, 
administrative hearing. See Dolin, 65 FR 5,661. Here, there is no 
genuine dispute that the Respondent currently lacks state authority to 
practice medicine and to handle controlled substances in New Mexico.
    Accordingly, I hereby
    Deny the Respondent's Motion for a Stay; further I
    Grant the Government's Motion for Summary Disposition.
    I also forward this case to the Deputy Administrator for final 
disposition. I

[[Page 19015]]

recommend that the Respondent's DEA Certificate of Registration, Number 
BJ5128067, be revoked.\5\
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    \5\ The sole basis of my recommendation is the loss of 
Respondent's state licensure. I make no findings or conclusions 
concerning the other allegations asserted in the Order to Show 
Cause.

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    Dated: February 12, 2013.

Gail A. Randall,

Administrative Law Judge.

[FR Doc. 2013-07195 Filed 3-27-13; 8:45 am]
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