[Federal Register Volume 85, Number 81 (Monday, April 27, 2020)]
[Notices]
[Pages 23377-23379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08885]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Malathy Sundaram, M.D.; Decision and Order

    On November 20, 2019, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to 
Malathy Sundaram, M.D. (hereinafter, Registrant) of Dover, New 
Hampshire. OSC, at 1. The OSC proposed the revocation of Registrant's 
Certificate of Registration No. BS8504703. Id. It alleged that 
Registrant is without ``authority to handle controlled substances in 
New Hampshire, the state in which . . . [Registrant is] registered with 
the DEA.'' Id. (citing 21 U.S.C. 823(f) and 824(a)(3)).
    Specifically, the OSC alleged that, ``[a]ccording to records of the 
New Hampshire Medical Board, the current status of . . . [Registrant's] 
medical license is listed as `suspended' because on September 6, 2019, 
. . .

[[Page 23378]]

[Registrant's] state medical license (License No. 13607) expired and 
has not been renewed.'' OSC, at 1-2. The OSC concluded that ``DEA must 
revoke . . . [Registrant's registration] based upon . . . [her] current 
lack of authority to handle controlled substances in the State of New 
Hampshire.'' Id. at 2.
    The OSC notified Registrant of the right to request a hearing on 
the allegations or to submit a written statement, while waiving the 
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 OSC also notified Registrant of the opportunity to submit 
a corrective action plan. OSC, at 3 (citing 21 U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated January 21, 2020, a Diversion Investigator 
(hereinafter, DI) assigned to the Manchester (New Hampshire) District 
office, New England Division, stated that she, a second DI, and a DEA 
Special Agent located Registrant at her place of employment on December 
6, 2019. Request for Final Agency Action dated January 28, 2020 
(hereinafter, RFAA), Exhibit (hereinafter, EX) 8 (DI's Declaration), at 
2-3. The DI stated that the three showed their credentials and 
presented Registrant with the original OSC. Id. DI stated that she 
explained to Registrant that ``she had 30 days to respond'' to the OSC 
and then ``asked her to sign a DEA-12 receipt form showing that she had 
received'' the OSC. Id. at 3. The DI reported that Registrant 
``complied with the request and signed the receipt.'' Id.; see RFAA EX 
4 (DEA-12 receipt dated December 6, 2019).
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on January 30, 2020. In its RFAA, the Government 
represented that ``neither the DEA . . . [Office of Administrative Law 
Judges] nor the . . . [Manchester District Office] had received any 
written correspondence, telephone, or any other communication from 
Registrant in response'' to the OSC since the ``passage of more than 
30-days since [Registrant's] receipt'' of the OSC. RFAA, at 4-5. The 
Government requested that Registrant's registration be revoked, based 
on her lack of ``authority to handle controlled substances in New 
Hampshire.'' Id. at 6.
    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 December 6, 
2019. I also find that more than thirty days have now passed since the 
Government accomplished service of the OSC. Further, based on the 
Government's written representations and my review of the record, I 
find that neither Registrant, nor anyone purporting to represent 
Registrant, 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 the right 
to a hearing and the 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. 
BS8504703 at the registered address of 835 Central Ave., Dover, New 
Hampshire 03820. RFAA, EX 1 (Facsimile of DEA Certificate of 
Registration Number BS8504703), at 1; RFAA EX 2 (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. RFAA EX 2, at 1. Registrant's registration expires 
on February 28, 2021, and is ``in an active pending status.'' Id.

The Status of Registrant's State License

    The Government submitted substantial evidence that Registrant's New 
Hampshire medical license was suspended on September 6, 2019. No 
evidence in the record refutes this evidence. Further, the records of 
the New Hampshire Medical Board, of which I take official notice, show 
the current status of Registrant's medical license to be suspended, 
effective September 6, 2019, due to a ``non-disciplinary remedial 
action.'' \1\ New Hampshire Online Licensing, https://nhlicenses.nh.gov 
(last visited April 14, 2020). Accordingly, I find that Registrant 
currently is not licensed to engage in the practice of medicine in New 
Hampshire, the State in which she is registered with the DEA.
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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 of finding of fact 
within fifteen 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 fifteen calendar days to 
file a response. Any such motion and response may be filed and 
served by email ([email protected]) or by mail to 
Office of the Administrator, Attn: ADDO, Drug Enforcement 
Administration, 8701 Morrissette Drive, Springfield, VA 22152.
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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 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 
she is no longer authorized to dispense controlled substances under the 
laws of the state in which she practices. See, e.g., James L. Hooper, 
76 FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 
(2006); Dominick A.

[[Page 23379]]

Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby Watts, M.D., 53 FR 
11,919, 11,920 (1988); Frederick Marsh Blanton, 43 FR at 27,617.
    According to New Hampshire law, ``All prescribers and dispensers 
authorized to prescribe or dispense schedule II-IV controlled 
substances within the state shall be required to register'' with the 
Controlled Drug Prescription Health and Safety Program. N.H. Rev. Stat. 
Sec.  318-B:33(II) (Current through Chapter 7 of the 2020 Reg. Sess.); 
see also N.H. Rev. Stat. Sec.  318-B:31(IX) (Current through Chapter 7 
of the 2020 Reg. Sess.) (defining ``program''). ``Prescriber'' means a 
``practitioner or other authorized person who prescribes a schedule II, 
III, and/or IV controlled substance.'' N.H. Rev. Stat. Sec.  318-
B:31(VIII) (Current through Chapter 7 of the 2020 Reg. Sess.). In turn, 
a ``practitioner'' is a ``physician . . . or other person licensed or 
otherwise permitted to prescribe . . . a controlled substance in the 
course of licensed professional practice.'' Id. at Sec.  318-B:31(VI); 
see also N.H. Code Admin. R. Med. 501.02(k) and (l) (Current with 
amendments received through March 1 2020) (providing deadlines by which 
``licensees'' must register with the Controlled Drug Prescription 
Health and Safety Program). Thus, under New Hampshire law, only a 
licensed professional, such as a physician, may be authorized to 
prescribe a controlled substance in schedules II-IV.
    Here, the undisputed evidence in the record is that Registrant is 
not currently licensed to practice medicine in New Hampshire. As such, 
she is not qualified to register as a prescriber or dispenser of 
schedule II-IV controlled substances in New Hampshire. Thus, because 
Registrant lacks authority to practice medicine in New Hampshire and, 
therefore, is not authorized to handle schedule II-IV controlled 
substances in New Hampshire, Registrant 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. 824(a), I hereby revoke DEA Certificate of Registration No. 
BS8504703 issued to Malathy Sundaram, M.D. This Order is effective May 
27, 2020.

Uttam Dhillon,
Acting Administrator.
[FR Doc. 2020-08885 Filed 4-24-20; 8:45 am]
 BILLING CODE 4410-09-P