[Federal Register Volume 84, Number 67 (Monday, April 8, 2019)]
[Notices]
[Pages 13960-13961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06835]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Richard Carter, M.D.; Decision and Order
On October 15, 2018, the Assistant Administrator, Diversion Control
Division, Drug Enforcement Administration (DEA), issued an Order to
Show Cause to Richard Carter, M.D. (Registrant), of Tifton, Georgia.
The Show Cause Order proposed the revocation of Registrant's DEA
Certificate of Registration No. AC2515596 on the ground that he ``ha[s]
no state authority to handle controlled substances.'' Government
Exhibit (GX) 2 (Order to Show Cause) to Government's Request for Final
Agency Action (RFAA), at 1 (citing 21 U.S.C. 824(a)(3)). For the same
reason, the Order also proposed the denial of ``any 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 the holder of Certificate of Registration
No. AC2515596, pursuant to which he is authorized to dispense
controlled substances as a practitioner in schedules II through V, at
the registered address of 2617 Wilson Avenue, Tifton, Georgia. Id. The
Order also alleged that this registration does not expire until August
31, 2020. Id.
Regarding the substantive grounds for the proceeding, the Show
Cause Order alleged that on June 12, 2018, the Georgia Composite
Medical Board (GCMB) ``issued an Order of Summary Suspension summarily
suspending [Registrant's] Georgia medical license.'' Id. The Show Cause
Order alleged that, as a result, he is ``currently without authority to
handle controlled substances in the State of Georgia, the [S]tate in
which [he is] registered with the DEA.'' Id. Based on his ``lack of
authority to handle controlled substances in the State of Georgia,''
the Order asserted that ``DEA must revoke'' his registration. Id. at 1-
2 (citing 21 U.S.C. 824(a)(3); 21 CFR 1301.37(b)).
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
(citing 21 CFR 1301.43). The 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)).
With respect to service, a Diversion Investigator (DI) in the
Savannah Resident Office of DEA's Atlanta Field Division executed a
Declaration on February 11, 2019, stating that on November 26, 2018, he
``physically mailed the [Show Cause Order] to Registrant's home address
at 2617 Wilson Ave. N, Tifton, GA 31794, via United States Postal
Service certified mail, return receipt requested.'' GX 4 (Declaration
of DI) to RFAA, at 1-2. The DI also stated in his Declaration that on
November 30, 2018, he received the signed return receipt for the Show
Cause Order he had mailed on November 26, 2018. Id. at 2. The DI
attached to his Declaration and authenticated a return receipt from the
U.S. Postal Service bearing what appears to be Registrant's signature
and indicating that the mailing was delivered to Registrant's address
on November 28, 2018. See id.; Exhibit (Ex.) B to GX 4, at 2.\1\ The DI
also attached and authenticated a printout from the U.S. Postal
Service's website showing that a package with a tracking number
matching the one on the return receipt was delivered to Registrant's
address on November 28, 2018. See GX 4 to RFAA, at 2; Ex. C to GX 4, at
1-2. I therefore find that the Government accomplished service on
November 28, 2018.
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\1\ The DI stated that on November 26, 2018, he mailed a second
copy of the Show Cause Order to Registrant's home address ``via
first-class United States mail, postage prepaid.'' Id. He further
stated that ``[t]he second copy of the [Show Cause Order] that [he]
had mailed via first-class United States mail, postage prepaid, did
not come back to the Savannah Resident Office.'' Id.
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On March 8, 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 with the Show Cause Order and that
``Registrant has not requested a hearing and has not otherwise
corresponded or communicated with DEA regarding the Order served on
him, including the filing of any written statement in lieu of a
hearing.'' RFAA, at 1-2. Based on the Government's representation and
the record, I find that more than 30 days have passed since the Show
Cause Order 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 and the findings below. See id. I make the following
findings.
Findings of Fact
Registrant is the holder of DEA Certificate of Registration No.
AC2515596 pursuant to which he is authorized to dispense controlled
substances in schedules II through V as a practitioner at the
registered address of Richard Carter MD PC, 2617, Tifton, Georgia. GX 1
(Certification of Registration Status) to RFAA, at 1. The ``mail to
address'' is Richard Carter MD PC, 2617 Wilson Avenue, Tifton, Georgia.
Id. This registration does not expire until August 31, 2020. Id.
On June 12, 2018, the GCMB issued an ``Order of Summary
Suspension'' (Suspension Order) suspending Registrant's Georgia medical
license based largely on the findings of the North Carolina Medical
Board that Registrant ``suffered from severe alcohol use disorder'' and
``was unable to practice medicine with reasonable skill and safety to
patients.'' GX 3 to RFAA,
[[Page 13961]]
at 3.\2\ The GCMB found that Registrant had not been examined since
2014 ``with regard to whether he suffers from a mental or physical
condition that would affect his ability to practice medicine.'' Id. The
GCMB also found that Registrant ``has not been treated for alcohol use
disorder nor has a physician with expertise in addiction psychiatry
determined that [Registrant] does not suffer from that condition or
that [his] condition is in remission.'' Id. As a result of these
findings, the GCMB ``SUMMARILY SUSPENDED'' Registrant's license to
practice medicine in Georgia because the GCMB concluded that
Registrant's ``continued practice of medicine poses a threat to the
public health, safety, and welfare and imperatively requires emergency
action.'' Id. at 4. Finally, the Suspension Order further states that
Registrant's Georgia medical license ``will expire on January 31,
2019.'' Id. at 2.
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\2\ Specifically, the Suspension Order states that the North
Carolina Medical Board (NCMB) ``summarily suspended'' Registrant's
North Carolina medical license in December 2015 ``based on, in part,
a determination by a healthcare provider that [Registrant] suffered
from severe alcohol use disorder, that [Registrant's] condition was
untreated and unmonitored, and that [Registrant] continued to
practice medicine.'' Id. Registrant eventually ``agreed to have his
[North Carolina medical] license placed on inactive status . . .
effective March 18, 2016'' after the NCMB ``concluded that
[Registrant] was unable to practice medicine with reasonable skill
and safety to patients.'' Id.
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In addition, I take official notice of the results of a search of
the GCMB's license verification web page showing that, as of the date
of this Decision, Registrant's Georgia medical license remains
``suspended.'' \3\ Accordingly, I find that Registrant currently does
not possess a license to practice medicine in the State of Georgia, the
State in which he is registered with the DEA--both because the GCMB
suspended his Georgia medical license on June 12, 2018 and because his
Georgia license expired on January 31, 2019.
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\3\ See https://gcmb.mylicense.com/verification/SearchResults.aspx. 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. The Government also attached an unverified copy of
the GCMB's license verification page as an exhibit to its Request
for Final Agency Action that also shows that Registrant's Georgia
medical license is suspended. See GX 5 to RFAA.
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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 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 GCMB
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 the State of
Georgia, the State in which he is registered. Specifically, the GCMB's
decision to suspend Registrant's medical license also means that
Registrant is currently without authority to dispense controlled
substances under the laws of Georgia. See, e.g., Ga. Code Ann.
Sec. Sec. 43-34-21 (2009) (defining ``practice of medicine'' to
include prescribing any form of treatment); 43-34-26(a) (2010)
(requiring state license to obtain the right to practice medicine).
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. AC2515596, issued to Richard Carter, M.D., be, and it
hereby is, revoked. I further order that any pending application of
Richard Carter to renew or modify the above registration, or any
pending application of Richard Carter for any other DEA registration in
the State of Georgia, be, and it hereby is, denied. This Order is
effective May 8, 2019.
Dated: March 22, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-06835 Filed 4-5-19; 8:45 am]
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