[Federal Register Volume 81, Number 140 (Thursday, July 21, 2016)]
[Notices]
[Pages 47409-47411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17264]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 16-15]


Nicholas J. Nardacci, M.D.; Decision and Order

    On December 7, 2015, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Nicholas J. Nardacci, M.D. (hereinafter, Respondent), of 
Albuquerque, New Mexico. Show Cause Order, at 1. The Show Cause Order 
proposed the revocation of Respondent's DEA Certificate of Registration 
AN9444592, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V as a practitioner, as well as the 
denial of pending applications, on the ground that Respondent does not 
have authority to dispense controlled substances in New Mexico, the 
State in which he is registered with the Agency. Id. (citing 21 U.S.C. 
823(f) and 824(a)(3)).

[[Page 47410]]

    As factual support for the proposed actions, the Show Cause Order 
alleged that Respondent's medical license had expired on July 14, 2014 
and had not been reinstated by the New Mexico Medical Board. Id. The 
Show Cause Order also alleged that Respondent's New Mexico controlled 
substance license had expired on October 31, 2013 and had not been 
reinstated by the New Mexico Pharmacy Board. Id. The Show Cause Order 
thus alleged that Respondent is currently without authority to handle 
controlled substances in New Mexico, the State in which he is 
registered, id., and therefore, his DEA registration is subject to 
revocation.\1\ Id. at 2.
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    \1\ The Show Cause Order also notified Respondent of his right 
to request a hearing on the allegations or submit a written 
statement while waiving his right to a hearing, and the procedure 
for electing either option. Show Cause Order, at 2 (citing 21 CFR 
1301.43).
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    On December 18, 2015, the Government accomplished service of the 
Show Cause Order on Respondent as evidenced by the signed return-
receipt card. On January 19, 2016, Respondent requested a hearing on 
the allegations as well as an extension of time to find an attorney. 
The matter was placed on the docket of the Office of Administrative Law 
Judges and assigned to ALJ Charles Wm. Dorman.
    On January 20, 2016, the ALJ issued an Order which directed the 
Government to submit evidence supporting the allegation and an 
accompanying dispositive motion by February 4, 2016. The ALJ also 
granted Respondent's request for an extension and ordered that if the 
Government filed such a motion, Respondent was to file his reply by 
February 25, 2016. Briefing Schedule For Lack Of State Authority 
Allegations, at 1.
    On February 4, 2016, the Government filed its Motion for Summary 
Disposition. As support for its Motion, the Government provided a copy 
of Respondent's registration information, an affidavit from a Diversion 
Investigator (DI) and printouts she obtained from the New Mexico 
Medical Board and New Mexico Board of Pharmacy.\2\ The Medical Board 
printout showed that Respondent's medical license had expired on July 
1, 2014 and subsequently lapsed. As for the Pharmacy Board printout, it 
showed that Respondent's state controlled substance license had expired 
on October 31, 2013. The Government thus argued that Respondent is 
without authority to dispense controlled substances in New Mexico and 
does not possess the authority required by the Controlled Substances 
Act to be registered and therefore, his registration should be revoked. 
Mot. at 5.
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    \2\ The DI averred that during a phone conversation with 
Respondent, he acknowledged that both of his state licenses had 
expired. DI Declaration, at 2.
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    On February 18, 2016, Respondent submitted a letter to the ALJ 
wherein he noted that he was negotiating with the Medical Board over 
the withdrawal of his application for reinstatement of his state 
license. Letter from Respondent to Hearing Clerk, OALJ (Feb. 16, 2016). 
Respondent further requested that the ALJ grant him ``a 30 day 
extension to'' allow him ``to reach a settlement with the Medical 
Board'' after which he would either withdraw his DEA application or 
challenge the Show Cause Order. Id. Respondent explained that the Board 
was requiring him to pass a competency exam in order to be reinstated; 
he also noted that he was having difficulty finding an attorney he 
could afford. Id. at 2. Respondent attached to his letter, a December 
31, 2015 letter from the New Mexico Board informing him that the Board 
was offering him the opportunity to withdraw his application, but that 
if he chose not to do so, the Board would issue him a Notice of 
Contemplated Action to deny the reinstatement of his license. Id. at 3. 
Respondent did not, however, dispute the Government's contention that 
he is currently without state authority to dispense controlled 
substances in New Mexico.
    Thereafter, the ALJ denied Respondent's request for a second 
extension, finding unpersuasive his contention that he was in 
negotiations with the Board to reach a settlement and needed more time. 
Order Denying The Resp.'s Request For An Extension, Order Granting 
Summary Judgment, And Recommended Rulings, Findings Of Fact, 
Conclusions Of Law, And Decision, at 3. The ALJ also found unpersuasive 
Respondent's other justification for needing an extension, i.e., that 
he needed more time to find a lawyer, noting that Respondent had more 
than two months to find one. Id.
    Turning to the Government's Motion, the ALJ found that there was no 
factual dispute that Respondent does not possess state authority to 
dispense controlled substances and thus cannot maintain his DEA 
registration. Id. at 4. The ALJ thus granted the Government's Motion 
and recommended that Respondent's registration be revoked and that any 
pending application be denied. Id.
    Neither party filed exceptions to the ALJ's Recommended Decision. 
Thereafter, the record was forwarded to my Office for Final Agency 
Action. Having considered the record in its entirety, I adopt the ALJ's 
rulings, as well as his findings of fact, legal conclusion and 
recommended sanction. I make the following finding of fact.

Findings

    Respondent was the holder of DEA Certificate of Registration 
AN9444592, pursuant to which he was authorized to dispense controlled 
substances in schedules II through V as a practitioner at the 
registered address of 2919 Commercial Street NE., Albuquerque, New 
Mexico; this registration had an expiration date of October 31, 2014. 
Motion for Summ. Disp., Attachment 1, at 1. Because Respondent did not 
submit a renewal application until November 28, 2014, this registration 
expired, in accordance with its terms, on October 31, 2014. Id. 
However, because there is a pending application, this case remains a 
live controversy.
    Respondent also formerly held a medical license issued by the New 
Mexico Medical Board. However, Respondent's license expired on July 1, 
2014 and was subsequently deemed by the Board to have lapsed. Moreover, 
according to the online records of the New Mexico Medical Board of 
which I take official notice, on February 22, 2016, Respondent entered 
into a Stipulation And Order For Withdrawal Of Application For 
Licensure, which the Board approved on February 29, 2016, pursuant to 
which he agreed to withdraw his Application for Reinstatement.\3\
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    \3\ Under the Administrative Procedure Act (APA), an agency 
``may take official notice of facts at any stage in a proceeding-
even in the final decision.'' U.S. Dept. of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and 
DEA's regulation, Respondent is ``entitled on timely request to an 
opportunity to show to the contrary.'' 5 U.S.C. 556(e); see also 21 
CFR 1316.59(e). Respondent may dispute my finding by filing a 
properly supported motion within fifteen calendar days of this Order 
which shall commence on the date this Order is mailed.
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    Respondent also formerly held a New Mexico Controlled Substances 
license. However, this license expired on October 31, 2013.

Discussion

    Pursuant to 21 U.S.C. 823(f), ``[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.'' Id. 
Sec.  823(f). Moreover, the Controlled Substances Act defines the term 
``practitioner'' to ``mean[ ] a physician . . . licensed, registered, 
or otherwise permitted, by . . . the jurisdiction in

[[Page 47411]]

which he practices . . . to distribute, dispense, [or] administer . . . 
a controlled substance in the course of professional practice.'' Id. 
Sec.  802(21). See also id. Sec.  824(a)(3) (authorizing the revocation 
of a registration upon a finding that the 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''). Based on 
these provisions, the Agency has repeatedly held ``that a practitioner 
can neither obtain nor maintain a DEA registration unless the 
practitioner currently has authority under state law to handle 
controlled substances.'' James L. Hooper, 76 FR 71371, 71372 (2011) 
(collecting cases), pet. for rev. denied, Hooper v. Holder, 481 F. 
App'x 826 (4th Cir. 2012).
    Here, there is no dispute as to the material fact that Respondent 
does not hold authority under New Mexico law to dispense controlled 
substances and is thus not a practitioner within the meaning of the 
Act. See 21 U.S.C. 802(21). Accordingly, his application must be 
denied. 21 U.S.C. 823(f).

Order

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

    Dated: July 11, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016-17264 Filed 7-20-16; 8:45 am]
 BILLING CODE 4410-09-P