[Federal Register Volume 82, Number 15 (Wednesday, January 25, 2017)]
[Notices]
[Pages 8432-8433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01690]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Gentry Reeves Dunlop, M.D.; Decision and Order

    On September 20, 2016, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Gentry R. Dunlop, M.D. (Registrant), of Aurora, 
Colorado. The Show Cause Order proposed the revocation of Registrant's 
DEA Certificate of Registration on the ground that he does not have 
authority to dispense controlled substances in Colorado, the State in 
which he is registered with the DEA. Order to Show Cause, at 1 (citing 
21 U.S.C. Sec. Sec.  823(f) and 824(a)(3)).
    As grounds for the action, the Show Cause Order alleged that 
Registrant is the holder of Certificate of Registration BD0874378, 
pursuant to which he is authorized to dispense controlled substances in 
schedules II through V as a practitioner, at the registered address of 
4745 South Helena Way, Aurora, Colorado. Id. The Order alleged that 
Registrant's registration does not expire until June 30, 2019. Id.
    The Show Cause Order also alleged that effective on July 19, 2016, 
the Colorado Medical Board issued an order ``which suspended 
[Registrant's] authority to practice medicine'' and that Registrant is 
``without authority to [dispense] controlled substances in Colorado, 
the [S]tate in which [he is] registered with the'' Agency. Id. The 
Order then asserted that as a consequence of the Board's action, ``DEA 
must revoke your [registration] based upon your lack of authority to 
handle controlled substances in the State of Colorado.'' Id. (citing 21 
U.S.C. Sec. Sec.  802(21), 823(f) and 824(a)(3)).
    The Show Cause 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 procedure for electing either option, and the 
consequence for failing to elect either option. Id. at 2 (citing 21 CFR 
1301.43). In addition, the Show Cause Order notified Registrant of his 
right to submit a Corrective Action Plan. Id. at 2-3.
    On or about September 21, 2016, a Diversion Investigator (DI) with 
the Denver Division Office mailed the Show Cause Order to Registrant 
via Certified Mail addressed to him at his registered address of 4745 
South Helena Way, Aurora, Colorado. GX 3, at 1-2 (Declaration of DI). 
According to the DI, using the Postal Service's tracking system, she 
determined that the Show Cause Order was delivered to Registrant's 
address on September 28, 2016; the DI also averred that on or about 
September 30, 2016, she received back the return receipt card. Id. at 
2.
    On November 7, 2016, the Government forwarded its Request for Final 
Agency Action (RFAA) and an evidentiary record to my Office. Therein, 
the Government represents that it ``has not received a request for 
hearing or any other reply from Registrant.'' RFAA, at 2.
    Based on the Government's representation that more than 30 days 
have now passed since the date of service of the Show Cause Order and 
that Registrant has not submitted a request for a hearing or any other 
reply, I find that Registrant has waived his right to a hearing or to 
submit a written statement in lieu of a hearing. 21 CFR 1301.43(d). I 
therefore issue this Decision and Final Order based on

[[Page 8433]]

relevant evidence contained in the record submitted by the Government. 
21 CFR 1301.43(d) & (e). I make the following findings of fact. Id. 
Sec. 1301.43(e).

Findings of Fact

    Registrant is the holder of DEA Certificate of Registration 
BD0874378, pursuant to which he is authorized to dispense controlled 
substances in Schedules II through V as a practitioner, at the 
registered address of 4745 S. Helena Way, Aurora, Colorado. GX 2. His 
registration does not expire until June 30, 2019. Id.
    Registrant is also the holder of a license to practice medicine 
(DR-28729) issued by the Colorado Medical Board (the Board). GX 4, at 
1. However, on July 19, 2016, the Board issued Registrant an Order of 
Suspension effective the same day which ``shall remain in effect until 
resolution of this matter.'' \1\ Id. at 2. As Registrant did not 
respond to the Show Cause Order, let alone submit any evidence to show 
that his state license has been reinstated, I find that he does not 
possess authority to dispense controlled substances under the laws of 
Colorado, the State in which he is registered with the Agency.
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    \1\ As the basis for its order, the Board found that Registrant 
signed several hundred certifications recommending the medical use 
of marijuana and authorizing the possession of increased plant 
counts, and that these certifications were ``for conditions other 
than cancer.'' GX 4, at 1. The Board further found that ``signing 
the . . . certifications . . . in the absence of cancer diagnosis 
and treatment falls below generally accepted standards of medical 
practice and lacks medical necessity'' and was ``unprofessional 
conduct'' in violation of the Colorado Revised Statute Sec.  12-36-
117(l)(p) and (mm). Id. Based on its review of information relevant 
to three investigations pertaining to Registrant, the Board found 
``reasonable grounds to believe that the public health, safety or 
welfare imperatively requires emergency action and/or that 
[Registrant] was guilty of a deliberate and willful violation of 
law.'' Id. at 1-2.
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Discussion

    Pursuant to 21 U.S.C. Sec.  824(a)(3), the Attorney General is 
authorized to suspend or revoke a registration issued under section 823 
of Title 21, ``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, with respect to a 
practitioner, DEA has long 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 registration. See, e.g., 
James L. Hooper, 76 FR 71371 (2011) (collecting cases), pet. for rev. 
denied, 481 Fed. Appx. 826 (4th Cir. 2012); see also Frederick Marsh 
Blanton, 43 FR 27616 (1978) (``State authorization to dispense or 
otherwise handle controlled substances is a prerequisite to the 
issuance and maintenance of a Federal controlled substances 
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. Sec.  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. Sec.  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); Sheran Arden Yeates, M.D., 71 
FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); 
Bobby Watts, 53 FR 11919, 11920 (1988); see also Frederick Marsh 
Blanton, 43 FR 27616 (1978).
    Moreover, because ``the controlling question'' in a proceeding 
brought under 21 U.S.C. Sec.  824(a)(3) is whether the holder of a DEA 
registration ``is currently authorized to handle controlled substances 
in the [S]tate,'' Hooper, 76 FR at 71371 (quoting Anne Lazar Thorn, 62 
FR 12847, 12848 (1997)), the Agency has also long held that revocation 
is warranted even where a practitioner has lost his state authority by 
virtue of the State's use of summary process and the State has yet to 
provide a hearing to challenge the suspension. Bourne Pharmacy, 72 FR 
18273, 18274 (2007); Wingfield Drugs, 52 FR 27070, 27071 (1987). Thus, 
it is of no consequence that the Colorado Medical Board has employed 
summary process in suspending Registrant's state license. What is 
consequential is that Registrant is no longer currently authorized to 
dispense controlled substances in the State in which he is registered. 
I will therefore order that his registration be revoked.

Order

    Pursuant to the authority vested in me by 21 U.S.C. Sec.  824(a), 
as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration BD0874378, issued to Gentry Reeves Dunlop, M.D., be, and 
it hereby is, revoked. Pursuant to the authority vested in me by 21 
U.S.C. Sec.  823(f), I further order that any pending application of 
Gentry Reeves Dunlop, M.D., to renew or modify his registration, be, 
and it hereby is, denied. This Order is effective immediately.\2\
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    \2\ For the same reasons that led the Colorado Board to 
summarily suspend Registrant's medical license, I find that the 
public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Date: January 17, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-01690 Filed 1-24-17; 8:45 am]
 BILLING CODE 4410-09-P