[Federal Register Volume 84, Number 28 (Monday, February 11, 2019)]
[Notices]
[Pages 3247-3248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01855]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Robert T. Perez, M.D.; Decision and Order
On September 28, 2018, the Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Robert T. Perez, M.D. (Registrant), of Santa
Ana, California. The Show Cause Order proposed the revocation of
Registrant's DEA Certificate of Registration No. BP4317740 on the
ground that he does ``not have authority to handle controlled
substances in the State of California, the [S]tate in which [he] is
registered with the DEA.'' Appendix (App.) 1 (Order to Show Cause) to
Government's Request for Final Agency Action (RFAA), at 1 (citing 21
U.S.C. 823(f), 824(a)(3)).
With respect to the Agency's jurisdiction, the Show Cause Order
alleged that Registrant is the holder of Certificate of Registration
No. BP4317740, pursuant to which he is authorized to dispense
controlled substances as a practitioner in schedules II through V, at
the registered address of 1420 E. Edinger Ave., Suite 123, Santa Ana,
California. Id. The Order also alleged that this registration does not
expire until March 31, 2019. Id.
Regarding the substantive grounds for the proceeding, the Show
Cause Order alleged that on or about August 27, 2018, the Medical Board
of California (MBC) issued ``an Order On Noticed Petition For Order of
Interim Suspension'' (hereinafter ``Interim Order'') that ``suspended''
Registrant's ``authority to prescribe and administer controlled
substances in the State of California, the [S]tate in which [he] is
registered with the DEA.'' Id. at 2. The Show Cause Order more
specifically alleged that the Interim Order stated that Registrant
``shall not `[p]ossess, order, purchase, receive, prescribe, furnish,
administer, or otherwise distribute controlled substances or dangerous
drugs as defined by federal or state law.'' Id. As a result, the Show
Cause Order alleged that ``DEA must revoke [his] registration . . .
based upon [his] lack of authority to handle controlled substances in
the State of California.'' Id. (citing 21 U.S.C. 824(a)(3)). Id.
The Show Cause Order notified Registrant 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. at 2-3.
(citing 21 CFR 1301.43). The Order also notified Registrant of his
right to submit a corrective action plan. Id. at 3-4 (citing 21 U.S.C.
824(c)(2)(C)).
With respect to service, a Diversion Investigator (DI) with DEA's
Los Angeles Field Division executed a Declaration on January 8, 2019
stating that she ``learned that [Registrant] was incarcerated at Santa
Ana Jail located in Santa Ana, CA.'' App. 10 (Declaration of DI) to
RFAA, at 1. As a result, the DI stated that on October 16, 2018, she
``personally served a copy of the [Show Cause Order] on [Registrant] at
the prison.'' Id. The Declaration also attached DEA Form 12 Receipt for
Cash or Other Items bearing ``Registrant's signature confirming his
receipt'' of the Show Cause Order on October 16, 2018. Id. at 2;
Attachment A to App. 10, at 1.
On January 17, 2019, the Government forwarded its Request for Final
Agency Action and evidentiary record to my Office. In its Request, the
Government represents that more than 30 days have passed since
Registrant had been served and that ``DEA has not received a request
for hearing or any other reply from him.'' RFAA, at 5. 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 the
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. See id. I make
the following findings.
Findings of Fact
Registrant is the holder of DEA Certificate of Registration No.
BP4317740, pursuant to which he is authorized to dispense controlled
substances in schedules II through V as a practitioner at the
registered address of 1420 E. Edinger Ave., Suite 123, Santa Ana,
California. App. 2 (Certification of Registration Status) to Govt.
Mot., at 1. This registration does not expire until March 31, 2019. Id.
Registrant is also the holder of California Physician's and
Surgeon's License No. G80178, which was issued to him in 1994 by the
MBC. App. 8 to Govt. Mot., at 2. However, on August 27, 2018, an
Administrative Law Judge of the MBC issued an Interim Order suspending
Registrant's medical license after determining that, under California
law, he was ``mentally incompetent to practice medicine safely'' and
that ``[p]ermitting [Registrant] to continue to engage in the
unrestricted practice of medicine will endanger the public health,
safety and welfare.'' Id. at 7-8.\1\ Among other things, the Interim
Order stated that, pending a full administrative determination,
Registrant ``shall not'' ``[p]ractice or attempt to practice any aspect
of medicine in the
[[Page 3248]]
State of California'' or ``[p]ossess, order, purchase, receive,
prescribe, furnish, administer, or otherwise distribute controlled
substances or dangerous drugs as defined by federal or state law.'' Id.
at 8. The Interim Order further directed Registrant to ``immediately
deliver to the [MBC], or its agent, . . . all indicia of his licensure
as a physician and surgeon, . . . as well as all prescription forms,
all prescription drugs not legally prescribed to [Registrant] . . .,
all [DEA] Drug Order forms, and all [DEA] permits'' ``pending a final
administrative order.'' Id. at 9. There is no evidence in the record
that the MBC ever issued a superseding order or decision ending the
suspension of Registrant's license.\2\ In addition, I take official
notice of the results of a search of the Board's license verification
web page showing that, as of the date of this Decision, Registrant's
California Physician's and Surgeon's License remains revoked. See
https://search.dca.ca.gov/results.\3\
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\1\ The California ALJ issued the Interim Order after
considering the allegations set forth in multiple Accusations that
the MBC's Executive Director filed with the MBC from 2015-2018
alleging that Registrant, inter alia, (1) engaged in dishonest acts
toward a female patient; (2) failed to maintain adequate and
accurate records; (3) engaged in unprofessional conduct; (4) engaged
in sexual misconduct and unprofessional misconduct related to
Registrant's romantic relationship with a female patient who
subsequently became his wife; and (5) failed to participate in
professional and ethical courses and to provide MBC-mandated
quarterly declarations. App. 8 to RFAA, at 2-7; see also Apps. 3-7
to RFAA.
\2\ The record does show that on September 25, 2018, the MBC's
Executive Director filed a Third Amended Accusation against
Registrant. See App. 9 to RFAA. The legal effect of this filing
appears to be that it ensures that the Interim Order remains in
effect until a decision is reached on the Third Amended Accusation.
See RFAA, at 4 n.1 (citing Cal. Govt. Code Sec. 11529(f)'s
requirement that interim orders ``shall be dissolved'' within 30
days unless a subsequent accusation is filed).
\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 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). To allow Registrant the opportunity to refute the
facts of which I take official notice, Registrant may file a motion
for reconsideration within 15 calendar days of service of this order
which shall commence on the date this order is mailed.
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Accordingly, I find that Registrant currently does not possess a
license to practice medicine in the State of California, the State in
which he is registered with the DEA, and that the MBC has expressly
prohibited Registrant from dispensing controlled substances in
California. See id.; App. 8 to RFAA, at 8.
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 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). Because Congress has clearly mandated
that a practitioner possess state authority in order to be deemed a
practitioner under the Act, DEA has long held 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
practitioner's 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 MBC
summarily suspended Registrant's state medical license.
What is consequential is my finding that Registrant is no longer
currently authorized to dispense controlled substances in California,
the State in which he is registered. Here, the MBC expressly precluded
Registrant from prescribing controlled substances in California during
the pendency of his suspension. App. 8 to RFAA, at 8. Furthermore, even
if the MBC had not been so explicit, the MBC's suspension of
Registrant's Physician's and Surgeon's License to practice medicine in
California alone has the same legal effect. See Christopher D. Owens,
M.D., 83 FR 13143, 13145 & n.1 (2018) (citing Cal. Health & Safety Code
Sec. Sec. 11024, 11150, 11210, 11352, 2051, 2052). Accordingly,
Registrant is not entitled to maintain his DEA registration, and I will
therefore order that his registration be revoked.
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. BP4317740, issued to Robert T. Perez, M.D., be, and it
hereby is, revoked. I further order that any pending application of
Robert T. Perez to renew or modify the above registration, or any
pending application of Robert T. Perez for any other DEA registration
in the State of California, be, and it hereby is, denied. This Order is
effective immediately.\4\
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\4\ For the same reasons which led the MBC to suspend
Registrant's license and prescriptive authority, I conclude that the
public interest necessitates that this Order be effective
immediately. 21 CFR 1316.67.
Dated: January 29, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-01855 Filed 2-8-19; 8:45 am]
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