[Federal Register Volume 83, Number 207 (Thursday, October 25, 2018)]
[Notices]
[Pages 53900-53902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23273]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 18-37]


Hisham M. Shawish, M.D.; Decision and Order

    On July 12, 2018, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause to Hisham M. Shawish, M.D. 
(hereinafter, Respondent), of Erie, Pennsylvania. Order to Show Cause 
(hereinafter, OSC), at 1. The Show Cause Order proposes the revocation 
of Respondent's Certificate of Registration on the ground that he has 
``no state authority to handle controlled substances'' in the 
Commonwealth of Pennsylvania, the State in which Respondent is 
registered with the DEA. Id. (citing 21 U.S.C. 824(a)(3)). It also 
proposes the denial of ``any applications for renewal or modification 
of such registration and any applications for any other DEA 
registrations.'' OSC, at 1 (citing 21 U.S.C. 824(a)(3)).
    Regarding jurisdiction, the Show Cause Order alleges that 
Respondent holds DEA Certificate of Registration No. FS1974357 at the 
registered address of 650 East Ave., Erie, Pennsylvania 16503, with a 
mailing address of 5572 Copper Dr., #102, Erie, Pennsylvania 16509. 
OSC, at 1. This registration, the OSC alleges, authorizes Respondent to 
dispense controlled substances in schedules II through V as a 
practitioner. Id. The Show Cause Order alleges that this registration 
expires on February 28, 2019. Id.
    The substantive ground for the proceeding, as alleged in the Show 
Cause Order, is that Respondent is ``currently without authority to 
practice medicine or handle controlled substances in the Commonwealth 
of Pennsylvania, the state in which . . . [he is] registered with 
DEA.'' Id. at 2. Specifically, the Show Cause Order alleges that the 
Commonwealth of Pennsylvania State Board of Medicine issued an Order of 
Temporary Suspension and Notice of Hearing (hereinafter, Temporary 
Suspension Order and Notice of Hearing) on April 25, 2018, and that 
this Order ``suspended . . . [Respondent's] license to practice as a 
physician and surgeon.'' Id.
    The Show Cause Order notifies Respondent of his right to request a 
hearing on the allegations or to submit a written statement while 
waiving his right to a hearing, the procedures for electing each 
option, and the consequences for failing to elect either option. Id. 
(citing 21 CFR 1301.43). The Show Cause Order also notifies Respondent 
of the opportunity to submit a corrective action plan. OSC, at 2-3 
(citing 21 U.S.C. 824(c)(2)(C)).
    By letter dated July 26, 2018, Respondent timely requested a 
hearing.\1\ Hearing Request, at 1. According to the Hearing Request, 
``a Criminal Complaint was filed against . . . [Respondent] in 
Pennsylvania Magisterial District Court,'' which Respondent 
``categorically denies and is vigorously fighting.'' Id. Respondent's 
Hearing Request admits that his ``license to practice medicine and 
surgery in Pennsylvania was temporarily placed in suspension, effective 
April 26, 2018.'' Id. It asserts that the ``term of suspension is 180 
days from April 26, 2018, at which time . . . [Respondent's] 
Pennsylvania license will revert to active unrestricted status by 
operation of law.'' Id.
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    \1\ The Hearing Request is dated and was received less than 30 
days after the OSC's issuance. It is, thus, apparent that the 
Government's service of the OSC was sufficient and Respondent's 
request for a hearing was timely.
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    The Office of Administrative Law Judges put the matter on the 
docket and assigned it to Administrative Law Judge Charles Wm. Dorman 
(hereinafter, ALJ). On July 27, 2018, the ALJ issued a Briefing 
Schedule for Lack of State Authority Allegations.
    The Government timely complied with the Briefing Schedule by filing 
a Motion for Summary Disposition on August 10, 2018 (hereinafter, 
Summary Disposition Motion). The Summary Disposition Motion is ``based 
on Respondent's lack of state authority to handle controlled 
substances.'' Summary Disposition Motion, at 1. The Government attached 
to its Summary Disposition Motion the Temporary Suspension Order and 
Notice of Hearing that the Commonwealth of Pennsylvania, Department of 
State, State Board of Medicine issued to Respondent. According to the 
Summary Disposition Motion, Respondent ``is not entitled to hold a DEA 
registration'' because he ``does not have state authority to prescribe, 
administer, or dispense controlled substances in the Commonwealth of 
Pennsylvania.'' Id. at 3. The Government argues, citing Agency 
precedent, that ``even if the period of suspension is temporary or if 
there is the potential that Respondent's state controlled substances 
privileges will be reinstated, summary disposition is warranted.'' Id. 
at 3-4.
    Respondent timely filed its Reply in Opposition to the Government's 
Motion for Summary Disposition dated August 24, 2018 (hereinafter, 
Reply in Opposition). Attached to the Reply in Opposition are Docket 
Sheets indicating that the charges Respondent is facing are indecent 
assault of a person less than 13 years of age and corruption of minors 
dating as far back as 2014. Reply in Opposition, at Exh. 1.
    Respondent argues that the Government's Summary Disposition Motion 
should be denied because ``[t]he Government does not take into 
consideration the fact that . . . [Respondent's] Pennsylvania medical 
license is set to return to unrestricted status on October 25, 2018.'' 
Id. at 1. Since, he states, ``his license will revert to active status 
as a matter of law in approximately two months, on October 25, 2018, . 
. . [i]t would be a waste of judicial resources, time, and expense to 
revoke . . . [his] DEA registration and then require . . . [him] to 
reapply for a DEA registration.'' Id. at 3. Respondent argues that the 
Agency precedent cited in the Summary Disposition Motion is 
``distinguishable, as it does not appear that in any of the cases a 
firm date was set on which each respective respondents' [sic] license 
was scheduled to be reinstated.'' Id. [emphasis in original]. Thus, 
Respondent urges the ALJ to ``stay resolution'' of the Summary 
Disposition Motion for 90 days and to

[[Page 53901]]

hold ``a status conference and/or additional briefing to be scheduled 
following the trial of . . . [Respondent's] criminal case and the 
reinstatement of his Pennsylvania medical license on October 25, 
2018.'' Id. at 1, 4.
    The ALJ granted the Government's Summary Disposition Motion and 
recommended that Respondent's registration be revoked. Order Granting 
Summary Disposition and Recommended Rulings, Findings of Fact, 
Conclusions of Law, and Decision dated August 27, 2018 (hereinafter, 
R.D.). The ALJ notes Respondent's concession that his Pennsylvania 
license to practice medicine and surgery is temporarily suspended. 
R.D., at 3. The ALJ characterizes as ``speculative'' Respondent's 
assertion that his license will revert to an active status on October 
25, 2018. Id. at 4. The ALJ points out that, ``immediately following 
the language'' in the Temporary Suspension Order and Notice of Hearing 
setting the duration of the temporary suspension at ``in no event 
longer than 180 days,'' there is language ordering that ``the 
`prosecuting attorney will commence a separate action to suspend, 
revoke or otherwise restrict Respondent's license.''' Id. [emphasis in 
original]. The ALJ then reviews relevant Agency precedent and concludes 
that, ``[T]he disposition of the . . . [Summary Disposition Motion] 
depends only on whether the Respondent currently possesses state 
authority to dispense controlled substances in Pennsylvania.'' Id. at 
6. Since Respondent conceded that the Pennsylvania State Board of 
Medicine temporarily suspended his medical license, the ALJ granted the 
Summary Disposition Motion and recommends revocation of Respondent's 
registration. Id. at 6, 7.
    By letter dated September 27, 2018, the ALJ certified and 
transmitted the record to me for final Agency action. In that letter, 
the ALJ advises that neither party filed exceptions and that the time 
period to do so has expired.
    I issue this Decision and Order based on the entire record before 
me. 21 CFR 1301.43(e). I make the following findings of fact.

Findings of Fact

Respondent's DEA Registration

    Respondent is the holder of DEA Certificate of Registration No. 
FS1974357, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V as a practitioner, at the 
registered address of 650 East Ave., Erie, Pennsylvania 16503. Summary 
Disposition Motion, at Certification of Registration History. 
Respondent's registration expires on February 28, 2019. Id.

The Status of Respondent's State License

    The Pennsylvania State Board of Medicine ordered the temporary 
suspension of Respondent's license to practice as a physician and 
surgeon on April 25, 2018. Reply in Opposition, Exh. 3, at 1. According 
to the Temporary Suspension Order and Notice of Hearing, the 
Prosecuting Attorney ``alleged facts in the Petition, which, if taken 
as true, . . . make[ ] Respondent an immediate and clear danger to the 
public health and safety.'' Id. It orders that a preliminary hearing be 
scheduled and conducted within 30 days to determine ``whether there is 
a prima facie case to support the temporary suspension of the 
Respondent's license and other authorizations to practice the 
profession issued by the Board.'' Id. at 2. If a prima facie case is 
not established, Respondent's license and other authorizations ``will 
be immediately restored.'' Id. If a prima facie case is established, 
``the temporary suspension shall remain in effect until vacated by the 
Board, but in no event longer than 180 days, unless otherwise ordered 
or agreed to by the participants.'' Id. There is no evidence in the 
record concerning the preliminary hearing ordered in the Temporary 
Suspension Order and Notice of Hearing. The undisputed evidence in the 
record, independently submitted by both parties, is that Respondent's 
Pennsylvania license to practice as a physician and surgeon is 
currently suspended. Although Respondent asserts unequivocally that his 
license will be ``return[ed] to unrestricted status on October 25, 
2018,'' the evidence in the record, as the ALJ correctly explicates, is 
to the contrary. Reply in Opposition, at 1; R.D., at 4. Thus, I reject 
Respondent's unequivocal assertion and agree with the ALJ's analysis.
    Accordingly, I find that Respondent currently is without authority 
to practice as a physician or surgeon in the Commonwealth of 
Pennsylvania, the State in which he is registered.

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 the 
Controlled Substances Act (hereinafter, CSA), ``upon a finding that the 
registrant . . . has had his State license or registration 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, the DEA has also 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 practitioner's registration. See, e.g., James L. Hooper, 
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 
(4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 
(1978).
    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 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 CSA, the 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. See, e.g., Hooper, supra, 76 
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby 
Watts, M.D., 53 FR 11,919, 11,920 (1988), Blanton, supra, 43 FR at 
27,617.
    Under longstanding Agency precedent, DEA revokes the registration 
of a practitioner who lacks State authority to handle controlled 
substances even when the practitioner's State authority was suspended 
summarily or pending a final decision on the merits. See, e.g., Bourne 
Pharmacy, Inc., 72 FR 18,273, 18,274 (2007). Similarly, the facts that 
the Pennsylvania State Board of Medicine temporarily suspended a 
respondent's license and that the respondent may, some day, regain his 
license to practice as a physician and surgeon did not change the 
salient fact--the respondent was not currently authorized to handle 
controlled substances in the State in which he was registered. Mehdi

[[Page 53902]]

Nikparvarfard, M.D., 83 FR 14,503, 14,504 (2018).
    Here, the undisputed evidence in the record is that Respondent's 
Pennsylvania license to practice as a physician and surgeon is 
currently suspended. There is no evidence in the record that Respondent 
holds any Pennsylvania registration, let alone as a practitioner, to 
handle controlled substances. As such, according to Pennsylvania law, 
Respondent currently does not have authority to handle controlled 
substances in Pennsylvania.
    In sum, Respondent's Pennsylvania license to practice as a 
physician and surgeon is temporarily suspended. He currently lacks 
authority in Pennsylvania to practice medicine and to handle controlled 
substances. He is, therefore, not eligible for a DEA registration. 
Accordingly, I will order that Respondent's DEA registration be revoked 
and that any pending application for the renewal or modification of his 
registration be denied. 21 U.S.C. 824(a)(3).

Order

    Pursuant to 28 CFR 0.100(b) and the authority thus vested in me by 
21 U.S.C. 824(a), I order that DEA Certificate of Registration No. 
FS1974357 issued to Hisham M. Shawish, M.D., be, and it hereby is, 
revoked. I further order that any pending application of Hisham M. 
Shawish, M.D., to renew or modify this registration, as well as any 
other pending application by him for registration in the Commonwealth 
of Pennsylvania, be, and it hereby is, denied. This Order is effective 
immediately.\2\
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    \2\ For the same reasons the Pennsylvania State Board of 
Medicine suspended Respondent's Pennsylvania license to practice as 
a physician and surgeon, I find that the public interest 
necessitates that this Order be effective immediately. 21 CFR 
1316.67.

    Dated: October 10, 2018.
 Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018-23273 Filed 10-24-18; 8:45 am]
 BILLING CODE 4410-09-P