[Federal Register Volume 84, Number 153 (Thursday, August 8, 2019)]
[Notices]
[Pages 39016-39018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17003]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Anthony Schapera, M.D.; Decision and Order

    On December 31, 2018, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to 
Anthony Schapera, M.D. (hereinafter, Registrant), of Bishop, 
California. OSC, at 1. The OSC proposes the revocation of Registrant's 
Certificate of Registration No. AS3008213, the denial of any 
applications for renewal or modification of his registration, and the 
denial of ``any applications for any other DEA registrations'' on the 
ground that he ``has no state authority to handle controlled 
substances.'' Id. (citing 21 U.S.C. 824(a)(3)).
    The substantive ground for the proceeding, as alleged in the OSC, 
is that Registrant is ``without authority to handle controlled 
substances in the State of California, the state in which . . . [he is] 
registered with DEA.'' Id. Specifically, the OSC alleges that the 
Medical Board of California revoked Registrant's medical license 
effective June 22, 2018. Id.
    The Show Cause Order notified Registrant 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. at 
2 (citing 21 CFR 1301.43). The OSC also notified Registrant of the 
opportunity to submit a corrective action plan. OSC, at 2-3 (citing 21 
U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated March 19, 2019 (hereinafter, Declaration), a 
Diversion Investigator (hereinafter, DI) assigned to the Newark Field 
Division declared under penalty of perjury that he and another DI 
``personally served'' the OSC on Registrant. Declaration, at 1. 
Attached to the DI's Declaration is a DEA-12, Receipt for Cash or Other 
Items. According to the DI, Registrant acknowledged receipt of the OSC 
by signing this DEA-12 on January 17, 2019. Id.

[[Page 39017]]

    In its Request for Final Agency Action (hereinafter, RFAA), the 
Government represents that ``at least 30 days have passed since the . . 
. [OSC] was served on Registrant . . . and Registrant has not requested 
a hearing and has not otherwise corresponded or communicated with DEA'' 
regarding the OSC ``including the filing of any written statement in 
lieu of a hearing.'' RFAA, at 2. The Government requests ``a Final 
Order revoking Registrant's DEA registration.'' Id. at 4.
    Based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government accomplished service of the OSC on Registrant on January 17, 
2019. I also find that more than 30 days have now passed since the 
Government accomplished service of the OSC. Further, based on the 
Government's written representations, I find that neither Registrant, 
nor anyone purporting to represent him, requested a hearing, submitted 
a written statement while waiving Registrant's right to a hearing, or 
submitted a corrective action plan. Accordingly, I find that Registrant 
has waived his right to a hearing and his right to submit a written 
statement and corrective action plan. 21 CFR 1301.43(d) and 21 U.S.C. 
824(c)(2)(C). I, therefore, issue this Decision and Order based on the 
record submitted by the Government, which constitutes the entire record 
before me. 21 CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
AS3008213 at the registered address of 2385 Apache Drive, Bishop, CA 
93514. GX 1 (Certification of Registration History), at 1. Pursuant to 
this registration, Registrant is authorized to dispense controlled 
substances in schedules II through V as a practitioner. Id. 
Registrant's registration is in an ``active pending status'' and 
expires on February 28, 2021. Id.

The Status of Registrant's State License

    On May 24, 2018, the Medical Board of California (hereinafter, MBC) 
issued a Decision ordering the revocation of Registrant's medical 
license effective June 22, 2018. The MBC Decision adopts the Proposed 
Decision of Administrative Law Judge Jonathan Lew. ALJ Lew received 
evidence, heard oral argument, and closed the record before issuing the 
Proposed Decision. Registrant was represented by counsel before ALJ 
Lew.
    The MBC Decision states that the causes for the revocation are (1) 
Registrant's conviction of criminal offenses substantially related to 
the qualifications, functions, or duties of a physician and surgeon and 
that also constitute unprofessional conduct, and (2) Registrant's 
impairment due to a mental condition that ``impacts . . . [his] ability 
to safely engage in the practice of medicine at this time.'' Decision, 
at 25.
    According to California's online records, of which I take official 
notice, Registrant's license is still revoked.\1\ Medical Board of 
California Online License Search, http://www.mbc.ca.gov/Breeze/License_Verification.aspx (last visited July 29, 2019).
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    \1\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Registrant may dispute my finding by filing 
a properly supported motion for reconsideration within 15 calendar 
days of the date of this Order. Any such motion shall be filed with 
the Office of the Administrator and a copy shall be served on the 
Government. In the event Registrant files a motion, the Government 
shall have 15 calendar days to file a response.
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    Accordingly, I find that Registrant currently is not licensed to 
engage in the practice of medicine in California, the State in which he 
is registered with the DEA.

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.
    According to the California Uniform Controlled Substances Act, ``No 
person other than a physician . . . shall write or issue a 
prescription.'' Cal. Health & Safety Code Sec.  11150 (West, Westlaw 
current with urgency legislation through Ch. 5 of 2019 Reg. Sess.). 
Further, ``physician,'' as defined by California statute, is a person 
who is ``licensed to practice'' in California. Cal. Health & Safety 
Code Sec.  11024 (West, Westlaw current with urgency legislation 
through Ch. 5 of 2019 Reg. Sess.).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in California. As 
already discussed, a physician must be licensed to practice medicine in 
order to write or issue a controlled substance prescription in 
California. Thus, because Registrant lacks authority to practice 
medicine in California and, therefore, is not authorized to dispense 
controlled substances in California, he is not eligible to maintain a 
DEA registration. Accordingly, I will order that Registrant's DEA 
registration be revoked.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 823(f) and 824(a), I hereby revoke DEA Certificate of 
Registration No. AS3008213 issued to Anthony Schapera, M.D. Further, I 
hereby deny

[[Page 39018]]

any pending application of Anthony Schapera, M.D. to renew or modify 
this registration, as well as any pending application of Anthony 
Schapera, M.D. for registration in California. This Order is effective 
September 9, 2019.

    Dated: July 28, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-17003 Filed 8-7-19; 8:45 am]
BILLING CODE 4410-09-P