[Federal Register Volume 85, Number 89 (Thursday, May 7, 2020)]
[Notices]
[Pages 27243-27245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09722]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Isaac J. Hearne, M.D.; Decision and Order

    On September 12, 2019, the Acting Assistant Administrator, 
Diversion Control Division, Drug Enforcement Administration 
(hereinafter, DEA or Government), issued an Order to Show Cause 
(hereinafter, OSC) to Isaac J. Hearne, M.D. (hereinafter, Registrant) 
of Reno, Nevada. OSC, at 1. The OSC proposed the revocation of 
Registrant's Certificate of Registration No. BH7844500. Id. It alleged 
that Registrant does ``not have authority to handle controlled 
substances in Nevada, the state in which . . . [he is] registered with 
the DEA.'' Id. (citing 21 U.S.C. 823(f) and 824(a)(3)).
    Specifically, the OSC alleged that, ``on August 16, 2018, the . . . 
[Board of Medical Examiners of the State of Nevada (hereinafter, NBME)] 
issued its Order of Summary Suspension whereby . . . [Registrant's] 
Nevada license to practice medicine . . . was suspended indefinitely.'' 
OSC, at 2. The OSC further alleged that ``[a]s of the date of this 
Order, . . . [NBME] has not in any way modified, or lifted its 
suspension order concerning . . . [Registrant's] medical license.'' Id. 
The OSC concluded that ``DEA must revoke . . . [Registrant's 
registration] based on . . . [his] lack of authority to handle 
controlled substances in the State of Nevada.'' Id.
    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 February 11, 2020, a DEA Task Force Officer 
(hereinafter, TFO) assigned to the Las Vegas District Office of the Los 
Angeles Division stated that he, a DEA Diversion Investigator 
(hereinafter, DI), a DEA Special Agent (hereinafter, SA), and ``other 
DEA investigative personnel responded to a residential address . . . to 
serve'' the OSC on Registrant on December 10, 2019. Request for Final 
Agency Action dated February 13, 2020 (hereinafter, RFAA), Exhibit 
(hereinafter, EX) 10 (Declaration of DEA Task Force Officer dated 
February 11,

[[Page 27244]]

2020), at 3. TFO stated that, upon arrival at Registrant's residence, 
the DI gave him and the SA a photograph of Registrant and the OSC. Id. 
TFO stated that he ``knocked on the door of the residence and made 
contact with an elderly unknown female (hereinafter, UF).'' Id. TFO 
``asked the UF if . . . [Registrant] was home . . . [and UF] responded 
that she was not certain . . . but would check . . . to see if he was 
there.'' Id. UF invited TFO and SA ``into the home and . . . [they] 
accepted.'' Id.
    TFO stated that as he was ``standing in the living room at the base 
of the stairs leading to the second floor, . . . [he] observed the UF 
as she went up the stairs and approached a closed bedroom door.'' Id. 
According to TFO, ``UF knocked on the closed bedroom door . . . [and 
a]lmost immediately, . . . [he] saw the door partially open.'' Id. TFO 
stated that he ``positively identified . . . [Registrant] visually from 
the photo.'' Id. Then, according to TFO, Registrant ``whispered[ed] to 
the UF to tell DEA personnel that he was not there.'' Id. TFO, ``at 
that point . . . yelled up the stairs . . . `I can see you!' '' Id. 
According to TFO, Registrant ``then opened the bedroom door and greeted 
. . . [TFO] as he walked down the stairs.'' Id. TFO reported that he 
handed the OSC to Registrant ``and explained to him that DEA was 
seeking revocation of his DEA certificate of registration.'' Id. at 4. 
When Registrant ``began arguing his case,'' TFO ``explained that . . . 
[he] was only there to serve'' the OSC on him. Id. TFO and SA ``asked . 
. . Registrant if he understood and he replied that he did.'' Id. TFO 
and SA then left Registrant's residence. Id.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on February 14, 2020. In its RFAA, the 
Government represented that ``Registrant has not requested a hearing 
within 30-days of his receipt of the . . . [OSC], nor has he 
corresponded in writing or otherwise with regard to his position on a 
hearing before DEA.'' RFAA, at 2. The Government requested that 
Registrant's registration be revoked.'' Id. at 6.
    Based on TFO'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 
10, 2019. I also find that more than thirty days have now passed since 
the Government accomplished service of the OSC on Registrant. 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. 
BH7844500 at the registered address of 294 E Moana Lane, Suite 22, 
Reno, NV 89502. RFAA, EX 1 (Facsimile of DEA Certificate of 
Registration Number BH7844500), at 1; RFAA, EX 2 (Certification of 
Registration History dated October 11, 2019), at 1. Pursuant to this 
registration, Registrant is authorized to dispense controlled 
substances in schedules 2, 2N, 3, and 3N as a practitioner. RFAA, EX 2, 
at 1. Registrant's registration expires on October 31, 2020 and is in 
an ``active pending status.'' Id.

The Status of Registrant's State License and Registration

    The Government submitted evidence that the Investigative Committee 
of the NBME filed an Order of Summary Suspension of Registrant's 
medical license on August 16, 2018. Id. at EX 3 (NBME, Order of Summary 
Suspension dated August 16, 2018), at 2. According to the Declaration 
of DI, the online records of the NBME showed that Registrant's medical 
license was ``revoked.'' Id. at EX 9 (Declaration of DEA Diversion 
Investigator dated January 28, 2020), at 3. According to the printout 
that DI obtained from her research on January 22, 2020, Registrant's 
medical license was revoked on or about September 23, 2019. Id. at EX 7 
(Online Licensing Printout entitled ``Details--Nevada State Board of 
Medical Examiners'' for License No. 10767, dated January 22, 2020), at 
1. According to the online records of the NBME, of which I take 
official notice, Registrant's medical license remains revoked.\1\ 
Nevada State Board of Medical Examiners Licensee Details, https://nsbme.mylicense.com/verification (last visited April 28, 2020). As 
such, I find that Registrant's Nevada medical license is currently 
revoked.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    The Government also submitted evidence that Registrant's Nevada 
controlled substance registration is no longer active. RFAA, EX 9, at 
3. According to the online records of the Nevada State Board of 
Pharmacy queried by DI, Registrant's state controlled substance 
registration was ``[s]uspended by other agency.'' Id.; RFAA, EX 8 
(Online Licensing Printout entitled ``Nevada State Board of Pharmacy--
Verify License'' for controlled substance License No. CS12295, dated 
January 22, 2020), at 1. According to the online records of the Nevada 
State Board of Pharmacy, of which I take official notice, Registrant's 
controlled substance registration remains ``[s]uspended by other 
agency.'' \2\ Nevada State Board of Pharmacy Verify License, https://online.nvbop.org/#/verifylicense (last visited April 28, 2020). As 
such, I find that Registrant is not currently authorized to handle 
controlled substances in Nevada.
---------------------------------------------------------------------------

    \2\ See footnote 1. If Registrant disputes this finding, he may 
do so according to the terms stated in footnote 1.
---------------------------------------------------------------------------

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, 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.

[[Page 27245]]

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, 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, 
M.D., 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); Frederick Marsh 
Blanton, M.D., 43 FR at 27,617.
    According to Nevada statute, ``[e]very person desiring to practice 
medicine must, before beginning to practice, procure from the Board a 
license authorizing the person to practice.'' Nev. Rev. Stat. Sec.  
630.160(1) (Westlaw, current through the end of the 80th Regular 
Session (2019)). Further, the phrase ``practice medicine'' includes 
prescribing ``for any human disease.''Nev. Rev. Stat. Sec.  630.020(1) 
(Westlaw, current through the end of the 80th Regular Session (2019)). 
As already discussed, Registrant's medical license is currently 
revoked. Thus, Registrant currently is not authorized to practice 
medicine, including to prescribe controlled substances, in Nevada.
    Nevada statute requires that ``[e]very practitioner . . . who 
dispenses any controlled substance within this State . . . shall obtain 
biennially a registration issued by the Board in accordance with its 
regulations.'' Nev. Rev. Stat. Sec.  453.226(1) (Westlaw, current 
through the end of the 80th Regular Session (2019)). ``Practitioner'' 
means ``a physician . . . who holds a license to practice his or her 
profession in this State and is registered pursuant to [the Uniform 
Controlled Substances Act].'' Nev. Rev. Stat. Sec.  453.126(1) 
(Westlaw, current through the end of the 80th Regular Session (2019)). 
``Dispense'' means ``to deliver a controlled substance to an ultimate 
user . . ., including the prescribing . . . for that delivery.'' Nev. 
Rev. Stat. Sec.  453.056(1) (Westlaw, current through the end of the 
80th Regular Session (2019)). As already discussed, Registrant's Nevada 
medical license is currently revoked. Thus, Registrant is not a 
``practitioner'' under Nevada law and, therefore, he is not eligible to 
dispense or prescribe a controlled substance in Nevada.
    Here, the undisputed evidence in the record is that Registrant is 
not currently authorized to practice medicine or to prescribe 
controlled substances in Nevada. Registrant, therefore, is not 
currently 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. 
BH7844500 issued to Isaac J. Hearne, M.D. This Order is effective June 
8, 2020.

Uttam Dhillon,
Acting Administrator.
[FR Doc. 2020-09722 Filed 5-6-20; 8:45 am]
 BILLING CODE 4410-09-P