[Federal Register Volume 83, Number 224 (Tuesday, November 20, 2018)]
[Notices]
[Pages 58596-58598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25223]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 18-36]
Eldor Brish, M.D.; Decision and Order
On June 25, 2018, the Assistant Administrator, Diversion Control
Division, Drug Enforcement Administration (DEA), issued an Order to
Show Cause to Eldor Brish, M.D. (Respondent), of Houston, Texas. The
Show Cause Order proposed the revocation of Respondent's DEA
Certificate of Registration No. FB2033049 on the ground that he has
``no state authority to handle controlled substances.'' Order to Show
Cause, at 1 (citing 21 U.S.C. 824(a)(3)). For the same reason, the
Order also proposed the denial of any of Respondent'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 Respondent is the holder of Certificate of Registration
No. FB2033049, pursuant to which he is authorized to dispense
controlled substances as a practitioner in schedules II through V, at
the registered address of 5400 Pinemont Drive, #108, Houston, Texas.
Id. The Order also alleged that this registration does not expire until
July 31, 2019. Id.
Regarding the substantive grounds for the proceeding, the Show
Cause Order alleged that on May 18, 2018, the Texas Medical Board (TMB)
``issued an Order of Temporary Suspension suspending'' Respondent's
Texas medical license, and Respondent is therefore ``without authority
to practice medicine or handle controlled substances in Texas, the
[S]tate in which [he is] registered with DEA.'' Id. at 2. Based on his
``lack of authority to [dispense] controlled substances in . . .
Texas,'' the Order asserted that ``DEA must revoke'' Respondent's
registration. Id. (citing 21 U.S.C. 824(a)(3); 21 CFR 1301.37(b)).
The Show Cause Order notified Respondent of (1) his right to
request a hearing on the allegations or to submit a written statement
in lieu of a hearing, (2) the procedure for electing either option, and
(3) the consequence for failing to elect either option. Id. (citing 21
CFR 1301.43). The Order also notified Respondent of his right to submit
a corrective action plan. Id. at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).
On July 23, 2018, Respondent, through counsel, filed a letter
requesting a hearing on the allegations. July 23, 2018 Letter from
Respondent's Counsel to Hearing Clerk (hereinafter, Hearing Request).
In his Hearing Request, Respondent ``requests a hearing be conducted to
contest all of the legal issues and factual allegations raised in the
DEA's Order in support of its proposed revocation.'' Id. at 1.
Respondent specifically requested a hearing ``to determine whether the
DEA is authorized to revoke'' Respondent's registration and, ``even if
the DEA has authority to revoke, whether a revocation in the instant
case represents an abuse of power and/or a failure to exercise
appropriate discretion.'' Id. at 1-2.
The matter was placed on the docket of the Office of Administrative
Law Judges and assigned to Administrative Law Judge Mark M. Dowd
(hereinafter, ALJ). On July 31, 2018, the ALJ ordered the Government to
``file evidence to support the allegation that the Respondent lacks
state authority to handle controlled substances'' and file ``any motion
for summary disposition'' no later than August 3, 2018. Order Directing
the Filing of Government Evidence of Lack of State Authority Allegation
and Briefing Schedule, at 1. The ALJ also directed Respondent to file
his response to any summary disposition motion no later than August 8,
2018. Id. at 2.
On August 3, 2018, the Government filed its Motion for Summary
Disposition. In its Motion, the Government argued that Respondent lacks
authority to handle controlled substances in Texas because the TMB
``suspended Respondent's Texas Medical License'' on May 18, 2018.
Government's Motion for Summary Disposition (hereinafter Government's
Motion or Govt. Mot.) at 3; Government Exhibit (GX) 2 to Govt. Mot. The
Government also noted that the TMB conducted a hearing on June 25, 2018
and then ``issued a second suspension order'' on June 27, 2018. Govt.
Mot. at 3 (citing GX 3 to Govt. Mot.). The Government further argued
that, ``[a]bsent authority by the State of Texas to dispense controlled
substances, Respondent is not authorized to possess a DEA registration
in that state.'' Id. Lastly, the Government argued that under Agency
precedent, revocation is warranted even where a State has
[[Page 58597]]
temporarily suspended a practitioner's state authority with the
possibility of future reinstatement. Id. at 4 (citations omitted). As
support for its summary disposition request, the Government attached,
inter alia, a copy of the TMB's June 27, 2018 Order directing that
Respondent's license ``is hereby temporarily suspended . . . effective
on the date rendered [June 27, 2018, and] shall remain in effect until
it is superseded by an Order of the Board.'' GX 3 to Govt. Mot., at 5.
In his responsive pleading, Respondent did not dispute that ``the
TMB's temporary suspension order issued on June 27, 2018 is currently
in effect.'' Respondent's Aug. 13, 2018 \1\ Response to Government's
Motion for Summary Disposition and Respondent's Request in the
Alternative to Stay Proceedings Until November 1, 2018 (hereinafter,
Resp. Br.), at 3. Instead, Respondent argued that ``DEA failed to
observe any level of discretion when it resolved to issue revocation
(rather than suspension)'' because 21 U.S.C. 824(a) ``do[es] not
represent grounds for mandatory revocation.'' Id. at 2 (emphasis in
original). Respondent also argued that DEA issued its Show Cause Order
``in the absence of crucial facts'' because DEA did not ``wait[] to
learn whether the underlying temporary suspension order would be
overturned or upheld'' by the TMB Id. at 2-3. Respondent further argued
that DEA's proposed revocation of Respondent's DEA registration ``would
functionally eradicate Respondent's due process rights'' and ``would
fundamentally undermine his ability to avail himself of the procedural
safeguards guaranteed by [Texas] law as part of the process leading up
to and including the'' TMB's Informal Show Compliance and Settlement
Conference (ISC) scheduled for October 1, 2018. Id. at 3-4. Finally,
Respondent argued that ``granting the Government's Motion before
Respondent has had an opportunity to fully participate in the upcoming
ISC would preclude Respondent from fully participating in that . . .
process and would stifle the parties' ability to reach an agreement
without trial.'' Id. at 4. In the alternative, Respondent requested
that ``the ALJ stay proceedings and delay issuing a ruling on the
Government's Motion until November 1, 2018.'' Id. at 4.
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\1\ On August 8, 2018, Respondent filed an ``Unopposed Motion
for Continuance'' requesting that the ALJ continue Respondent's
deadline to file his response to the Government's Motion to August
13, 2018. Respondent's Unopposed Motion for Continuance. On the same
day, the ALJ issued an Order granting Respondent's unopposed
continuance motion. Order Granting the Respondent's Motion for
Continuance for Response to Government's Motion for Summary
Disposition, at 1.
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After considering these pleadings, the ALJ issued an Order on
August 27, 2018 denying Respondent's stay request because ``Respondent
fail[ed] to cite adequate and sufficient grounds for these proceedings
to be stayed pending completion of the state medical board's
proceedings'' and ``fail[ed] to provide sufficient reasons why his
ability to fully participate in these proceedings would be hindered by
the subsequent state proceedings.'' Order Denying Respondent's Request
to Stay Proceedings, at 2. The ALJ concluded that ``Agency precedent
dictates that a stay of proceedings should not be granted based on the
possible outcome of state proceedings.'' Id.
On September 12, 2018, the ALJ issued an order recommending that I
find that there was no dispute ``over the fact that Respondent
currently lacks state authority to handle controlled substances in the
State of Texas because the Texas Medical Board has suspended his
medical license.'' Order Granting the Government's Motion for Summary
Disposition, and Recommended Rulings, Findings of Fact, Conclusions of
Law, and Decision of the Administrative Law Judge (hereinafter
``Recommended Decision'' or ``R.D.''), at 6. As a result, the ALJ
granted the Government's motion for summary disposition and recommended
that I revoke Respondent's DEA registration. Id. at 7.
Neither party filed exceptions to the ALJ's Recommended Decision.
Thereafter, the record was forwarded to my Office for Final Agency
Action. Having reviewed the record, I find that Respondent is currently
without authority to handle controlled substances in Texas, the State
in which he holds his registration with the Agency, and thus is not
entitled to maintain his DEA registration. I adopt the ALJ's
recommendation that I revoke Respondent's registration. I make the
following factual findings.
Findings of Fact
Respondent is the holder of DEA Certificate of Registration No.
FB2033049, pursuant to which he is authorized to dispense controlled
substances in schedules II through V as a practitioner. GX 1
(Certification of Registration History) to Govt. Mot. On May 18, 2018,
the TMB issued an Order temporarily suspending Respondent's Texas
Medical License No. N-5593 that ``shall remain in effect until such
time as a hearing on the Application for Temporary Suspension (With
Notice of Hearing) is conducted and a Disciplinary Panel enters an
order, or until superseded by a subsequent order of the [TMB].'' GX 2
(May 18, 2018 Order of Temporary Suspension) to Govt. Mot., at 6-7.\2\
On June 27, 2018, after a hearing conducted on June 25, 2018, the TMB
issued a second Order temporarily suspending Respondent's medical
license and found that ``Respondent's continuation in the practice of
medicine would constitute a continuing threat to the public welfare.''
GX 3 (June 27, 2018 Order of Temporary Suspension) to Govt. Mot., at
5.\3\ In that Order, the TMB ordered that the suspension of
Respondent's Texas medical license ``shall remain in effect until it is
superseded by an Order of the Board.'' Id. There is no evidence in the
record establishing that the TMB ever issued a superseding order
lifting this suspension.
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\2\ In its May 18, 2018 Order, the TMB found that ``Respondent
suffers from an impairment that prohibits him from safely practicing
medicine.'' GX 2 to Govt. Mot., at 1. Specifically, the TMB's Order
included findings that ``[c]ontemporaneous eyewitness accounts from
co-workers noted that Respondent was injecting patients with needles
with his eyes closed or almost closed'' and ``exhibited slurred
speech and difficulty staying focused, and he aimlessly staggered
around the unit.'' Id. at 2. The TMB also found that Respondent
``pre-signed several triplicate prescriptions and gave them to a co-
worker to refill'' for patients. Id. The TMB concluded that
``Respondent's continuation in the practice of medicine would
constitute a continuing threat to the public welfare'' and that
Respondent ``violated various sections of the Medical Practices
Act,'' including ``Texas Health and Safety Code Sec. 481.129(c),
related to prescribing controlled substances without a valid medical
purpose.'' Id. at 5, 6.
\3\ The TMB reached this conclusion based, inter alia, on its
findings that Respondent (1) ``has a recent history of impairment
due to the abuse of drugs and alcohol, including controlled
substances;'' (2) ``was diverting the drugs for personal
recreational use;'' (3) ``was impaired while treating patients . . .
due to the use of controlled substances;'' and (4) with respect to
15 patients, ``failed to meet the standard of care and non-
therapeutically prescribed opioids and Soma.'' GX 3 to Govt. Mot.,
at 1-3. As it did in its earlier Order, the TMB again concluded that
Respondent ``violated various sections of the Medical Practices
Act,'' including ``Texas Health and Safety Code Sec. 481.129(c),
related to prescribing controlled substances without a valid medical
purpose.'' Id. at 3, 4.
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Accordingly, I find that Respondent currently does not possess a
license to practice medicine in the State of Texas, the State in which
he is registered with the DEA. See id. at 5.
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 (CSA), ``upon a finding that the registrant .
. . has had his State license . . . suspended [or] revoked . . . by
competent State authority and is
[[Page 58598]]
no longer authorized by State law to engage in the . . . dispensing of
controlled substances.'' Also, 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 practitioner's
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 he
practices.'' 21 U.S.C. 823(f).
As already noted, the TMB temporarily suspended Respondent's Texas
license to practice medicine. Under the Texas Controlled Substances
Act, a ``practitioner'' includes a ``physician'' who is licensed ``to
dispense . . . or administer a controlled substance in the course of
professional practice.'' Tex. Controlled Substances Act Sec.
481.002(39)(A). Under the Texas Medical Practice Act, a ``physician''
is ``a person licensed to practice medicine,'' Tex. Occ. Code Sec.
151.002(a)(12), and ``practicing medicine'' means the ``diagnosis,
treatment, or offer to treat a . . . disease . . . by any system or
method.'' Id. Sec. 151.002(a)(13). Moreover, a ``person may not
practice medicine in th[e] state unless the person holds a license
issued under'' the Medical Practice Act, id. Sec. 155.001, and ``[a]
person commits an offense if the person practices medicine in this
state in violation of'' the Act. Id. Sec. 165.152(a). As the ALJ
correctly noted, the TMB found in both of its Temporary Suspension
Orders that Respondent had violated several provisions of Section 164
of the Texas Occupational Code. See R.D., at 5. Thus, I find that
Respondent is currently without authority to dispense controlled
substances under the laws of Texas, the State in which he is registered
with the DEA. Accord Gazelle A. Craig, D.O., 83 FR 27628, 27631 (2018).
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 TMB has suspended Respondent's medical
license and that Respondent may prevail in a future state hearing.\4\
What is consequential is the fact that Respondent is not currently
authorized to dispense controlled substances in Texas, the State in
which he is registered. See GX3 to Govt. Mot., at 5.
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\4\ Similarly, and contrary to Respondent's claim, Due Process
does not require the ALJ to delay summary disposition of the case
until after completion of his Texas State Informal Show Compliance
and Settlement Conference. Resp. Br. at 3-4. Rather, Due Process
required the ALJ to provide Respondent the opportunity to respond to
the Order to Show Cause and the Government's Request for Summary
Disposition. The ALJ did provide Respondent such an opportunity, and
the Respondent did so respond. Respondent provided no authority for
the notion that the ALJ violated Respondent's right to Due Process
by, in fact, providing Respondent an opportunity to be heard instead
of delaying such opportunity. Respondent's claim that the ALJ should
have delayed his recommended decision is particularly unavailing
where, as here, there are no controlling facts in dispute. Accord
Emmanuel O. Nwaokocha, M.D., 82 FR 26516, 26518 n.3 (2017); see also
Kenneth N. Woliner, M.D., 83 FR 7223, 7225 n.6 (2018).
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Here, there is no dispute over the material fact that Respondent is
no longer currently authorized to dispense controlled substances in
Texas, the State in which he is registered. Accordingly, Respondent is
not entitled to maintain his DEA registration. I will therefore adopt
the ALJ's recommendation that I revoke Respondent's registration. R.D.,
at 7. I will also deny any pending application to renew or to modify
his registration, or any pending application for any other DEA
registration in Texas, as requested in the Show Cause Order. Order to
Show Cause, at 1.
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. FB2033049, issued to Eldor Brish, M.D., be, and it
hereby is, revoked. I further order that any pending application of
Eldor Brish to renew or modify the above registration, or any pending
application of Eldor Brish for any other DEA registration in the State
of Texas, be, and it hereby is, denied. This Order is effective
immediately.\5\
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\5\ For the same reasons which led the TMB to suspend
Respondent's Texas medical license, I conclude that the public
interest necessitates that this Order be effective immediately. 21
CFR 1316.67.
Dated: October 31, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018-25223 Filed 11-19-18; 8:45 am]
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