[Federal Register Volume 83, Number 65 (Wednesday, April 4, 2018)]
[Notices]
[Pages 14503-14504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06870]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Mehdi Nikparvarfard, M.D.; Decision and Order

    On October 20, 2017, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Mehdi Nikparvarfard, M.D. (Registrant), of 
Philadelphia, Pennsylvania. The Show Cause Order proposed the 
revocation of Registrant's Certificate of Registration No. BN8871231 on 
the ground that he has ``no state authority to handle controlled 
substances.'' Order to Show Cause, Government Exhibit (GX) 2, at 1 
(citing 21 U.S.C. 824(a)(3)). For the same reason, the Order also 
proposed the denial of any of Registrant's ``applications for renewal 
or modification of such registration and any applications for any other 
DEA registrations.'' Id.
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Registrant is registered as a practitioner in schedules II 
through V, pursuant to DEA Certificate of Registration No. BN8871231, 
at the address of Advanced Urgent Care, 5058 City Ave., Philadelphia, 
Pennsylvania. Id. The Order also alleged that this registration does 
not expire until October 31, 2019. Id.
    As substantive grounds for the proceeding, the Show Cause Order 
alleged that on September 15, 2017, the Commonwealth of Pennsylvania 
State Board of Medicine ``issued an Order of Temporary Suspension and 
Notice of Hearing in which it suspended [Registrant's] license to 
practice'' medicine. Id. The Order alleged that, as a result, he is 
``currently without authority to practice medicine or handle controlled 
substances in the Commonwealth of Pennsylvania, the [S]tate in which 
[he is] registered with the DEA.'' Id. at 1-2. Based on his ``lack of 
authority to handle controlled substances in the Commonwealth of 
Pennsylvania,'' the Order asserted that ``DEA must revoke'' his 
registration. Id. at 2 (citing 21 U.S.C. 824(a)(3); 21 CFR 1301.37(b)).
    The Show Cause Order 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. (citing 21 CFR 
1301.43). The Show Cause Order also notified Registrant of his right to 
submit a corrective action plan. Id. at 2-3 (citing 21 U.S.C. 
824(c)(2)(C)).
    The Government states that on October 27, 2017, ``personnel from 
DEA's Philadelphia Field Division personally served the [Show Cause] 
Order on Registrant at the Philadelphia Federal Detention Center where 
he was incarcerated.'' Government's Request for Final Agency Action 
(RFFA), at 2 (citing GX 5). Specifically, a DEA Diversion Investigator 
from that Field Division states that she, along with a Task Force 
Officer, ``presented the [Order] to Dr. Nikparvar-Fard'' and that he 
``took the [Order].'' GX5, at 1.
    On December 21, 2018, the Government forwarded its Request for 
Final Agency Action and an evidentiary record to my Office. Therein, 
the Government represents that it has not received a hearing request 
and that Registrant ``has not otherwise corresponded or communicated 
with DEA regarding the Order served on him.'' RFFA, at 2. Based on the 
Government's representation and the record, I find that more than 30 
days have passed since the Order to Show Cause was served on 
Registrant, and he has neither requested a hearing nor submitted a 
written statement in lieu of a hearing. See 21 CFR 1301.43(d). 
Accordingly, I find that Registrant has waived his right to a hearing 
or to submit a written statement and issue this Decision and Order 
based on relevant evidence submitted by the Government. I make the 
following findings.

Findings of Fact

    Registrant is a physician who is registered as a practitioner in 
schedules II-V pursuant to Certificate of Registration No. BN8871231, 
at the registered address of Advanced Urgent Care, 5058 City Ave., 
Philadelphia, Pennsylvania. See GX 1 (DEA Certification of Registration 
Status), at 1. Although not alleged in the Show Cause Order, I also 
find that Registrant is the holder of DATA-Waiver Identification Number 
XN8871231, see id. at 1-2,\1\ which authorizes Registrant to dispense 
or prescribe schedule III-V narcotic controlled substances which ``have 
been approved by the Food and Drug Administration . . . specifically 
for use in maintenance or detoxification treatment'' for up to 275 
patients. 21 CFR 1301.28(a) & (b)(1)(iii). His registration does not 
expire until October 31, 2019. Id.
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    \1\ The DEA Certification of Registration Status confirms that 
Registrant has DATA-Waiver Authority, but it does not include the 
identification number for that authority. However, I take official 
notice that the Agency's registration records show that Registrant's 
DATA-Waiver Identification Number is XN8871231. 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 regulations, 
Registrant 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).
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    The record also shows, and I so find, that on September 22, 2016, 
Registrant ``submitted a new online application for a DEA registration 
bearing an address of 721 Bethleh[e]m Pike, Montgomeryville,'' 
Pennsylvania, as a practitioner in schedules II-V. I find that this new 
application remains pending. See id. at 2.
    On September 15, 2017, the Commonwealth of Pennsylvania's State 
Board of Medicine issued an ``Order of Temporary Suspension and Notice 
Hearing'' to Registrant that ``TEMPORARILY SUSPENDED'' his ``license to 
practice as a medical

[[Page 14504]]

physician and surgeon'' in Pennsylvania. GX 3, at 1, 2. The Board also 
directed Registrant to ``surrender his wall certificate(s), biennial 
renewal certificate(s) and wallet card(s)'' to state authorities upon 
service of the Order. Id. at 2. On October 6, 2017, the Board issued an 
``Order Granting Continuance and Continuing Suspension'' stating that 
Registrant had ``agree[d] to toll the 180-day limit for the immediate 
and temporary suspension of [his] license . . . and [his] license shall 
remain SUSPENDED until a preliminary hearing is rescheduled or upon 
further order of the State Board of Medicine.'' GX 4, at 1. In light of 
the passage of time since the effective date of the Order, I have 
queried the Pennsylvania Medical Board's website regarding the status 
of Registrant's medical license, and I take official notice \2\ that 
Registrant's Pennsylvania medical license remains suspended as of the 
date of this decision. Based on the above, I find that Registrant does 
not currently have authority under the laws of Pennsylvania to dispense 
controlled substances.
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    \2\ See supra footnote 1.
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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 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.'' 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), 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. 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 [s]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 engages in professional practice. 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); Blanton, 43 FR 27616 
(1978).
    Moreover, because ``the controlling question'' in a proceeding 
brought under 21 U.S.C. 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 Pennsylvania Medical Board has 
suspended Registrant's state license and that Registrant may prevail in 
a future state hearing. What is consequential is the fact that 
Registrant is not currently authorized to dispense controlled 
substances in Pennsylvania, the State in which he is registered. I will 
therefore revoke his DEA registration, deny any pending application to 
modify his registration, or any pending application for any other 
registration in Pennsylvania.

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 No. BN8871231 and DATA-Waiver Identification Number 
XN8871231, issued to Mehdi Nikparvarfard, M.D., be, and it hereby is, 
revoked. I further order that any pending application of Mehdi 
Nikparvarfard to renew or modify the above registration, or any pending 
application for any other registration in the Commonwealth of 
Pennsylvania, be, and it hereby is, denied. This Order is effective 
immediately.\3\
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    \3\ For the same reasons that led the Pennsylvania Board of 
Medicine to suspend Registrant's license, I find that the public 
interest necessitates that this Order be effective immediately. 21 
CFR 1316.67.

    Dated: March 26, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-06870 Filed 4-3-18; 8:45 am]
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