[Federal Register Volume 85, Number 145 (Tuesday, July 28, 2020)]
[Notices]
[Pages 45442-45444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16343]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Frederick M. Silvers, M.D.; Decision and Order

    On January 12, 2018, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, 
Government), issued an Order to Show Cause to Frederick M. Silvers, 
M.D., (hereinafter, Registrant), of Los Angeles, California. Order to 
Show Cause (hereinafter, OSC), at 1. The OSC proposed the revocation of 
Registrant's Certificate of Registration No. AS6936201. It alleged that 
Registrant is without ``authority to handle controlled substances in 
the state of California, the state in which [Registrant is] registered 
with the DEA.'' Id. (citing 21 U.S.C. 823(f) and 824(a)(3)).\1\
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    \1\ The OSC also alleged that Registrant's continued 
registration is inconsistent with the public interest because 
Registrant ``issued prescriptions for controlled substances in 
violation of federal and state law.'' OSC, at 2. The Government, 
however, has only requested Final Agency Action on the ground that 
Registrant is not presently authorized to handle controlled 
substances in the state of California. RFAA, at 2.
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    Specifically, the OSC alleged that the Medical Board of California 
(hereinafter, Board) issued a Default Decision and Order (hereinafter, 
Order) on May 15, 2017, revoking Registrant's license to practice 
medicine effective June 14, 2017. Id. at 2. The OSC further alleged 
that, because the Board revoked Registrant's medical license, 
Registrant lacks the authority to handle controlled substances in the 
state of California and is no longer a practitioner within the meaning 
of the Controlled Substances Act. Id.
    The OSC notified Registrant of the right to either request a 
hearing on the allegations or submit a written statement in lieu of 
exercising the right to a hearing, the procedures for electing each 
option, and the consequences for failing to elect either option. Id. at 
4 (citing 21 CFR 1301.43). The OSC also notified Registrant of the 
opportunity to submit a corrective action plan. Id. at 4-5 (citing 21 
U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In its Request for Final Agency Action (hereinafter, RFAA), the 
Government detailed its multiple attempts to serve Registrant with the 
OSC. In a Declaration dated December 5, 2019, a DEA Diversion 
Investigator (hereinafter, DI) assigned to the Los Angeles Field 
Division detailed her attempts to personally serve the OSC on 
Registrant. RFAA Exhibit (hereinafter, RFAAX) 3. On January 18, 2018, 
DI attempted to serve Registrant at his residence located at 14 Oakmont 
Dr., Los Angeles, California, 90049 and at his registered address at 
10921 Wilshire Blvd., Suite #514, Los Angeles, CA 90049. Id. at 1. DI 
found the home address and registered address to be vacant. Id. at 1-2, 
App. A (photo of ``Space Available'' sign at registered address). DI 
further related that she called the phone number associated with 
Registrant's registered address and ``learned that the telephone number 
was inactive.'' Id. at 2.
    The Government also submitted a Declaration from another DI 
(hereinafter DI2), assigned to the Los Angeles Field Division, who 
stated that on February 27, 2018, she mailed copies of the OSC, via US 
Postal Service first class mail, to what she declared was the 
Registrant's ``last known residence, located at 10075 Ojai Santa Paula 
Road, Ojai, California 93023'' and to the address of his ``last known 
attorney.'' RFAAX 4, at 1-2.\2\ DI2 stated that neither mailings were 
returned as undeliverable. Id. at 2. DI2 also emailed a copy of the OSC 
to Registrant's email address and did not receive an email response 
indicating an error or that it was undeliverable. Id. at 2, App. B 
(copy of February 28, 2018 email sent to Registrant). DI2 stated that 
the Agency has not received any correspondence from either Registrant 
or the attorney to whom she mailed the OSC. Id. at 2.
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    \2\ The ``last known attorney'' was an individual who 
represented Registrant in a matter before the Medical Board of 
California on June 14, 2017. See RFAAX 4, App. A, at 1. The 
Government has offered no evidence that service to this attorney was 
adequate to provide notice to Registrant in this matter; however, 
the Government also did not rely on this service alone, but made 
attempts to serve Registrant through a variety of available means as 
described herein.
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    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on January 8, 2020. In its RFAA, the Government 
contends that although it was unable to personally serve Registrant 
with the OSC, its mailings and emails were reasonably calculated to 
give Registrant actual notice of the OSC and satisfied due process. 
RFAA, at 3-4. The Government requests a final order revoking 
Registrant's Certificate of Registration on the basis of his lack of 
state authority to dispense controlled substances. Id. at 6.
    Based on the DIs' Declarations, the Government's written 
representations, and my review of the record, I find that the 
Government's attempts to serve Registrant were legally sufficient. Due 
process does not require actual notice. Jones v. Flowers, 547 U.S. 220, 
226 (2006). ``[I]t requires only that the Government's effort be 
reasonably calculated to apprise a party of the pendency of the 
action.'' Dusenbery v. United States, 534 U.S. 161, 170 (2002) 
(internal quotations omitted). In this case, the Government attempted 
to personally serve Registrant at both his registered address and his 
residence, both of which were locations where the Government reasonably 
believed Registrant would be located. The Government further served him 
by first class mail at his last known residence, and by the email 
address Respondent provided to the Agency. Neither the first class 
mailings nor the emailed OSC were returned as undeliverable. ``[T]he 
Due Process Clause does not require . . . heroic efforts by the 
Government'' to find Registrant. Id. I find, therefore, that under the 
circumstances, the Government's efforts to notify Registrant of the OSC 
were reasonable and satisfied due process. See Mikhayl

[[Page 45443]]

Soliman, M.D., 81 FR 47,826, 47,827 (2016) (use of email to serve 
applicant satisfied due process because service was made to an email 
address he had previously provided to the Agency and the Government did 
not receive back either an error or undeliverable message) (collecting 
cases)).
    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, I find that neither Registrant, 
nor anyone purporting to represent the 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 1301.46.

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
AS6936201 at the registered address of 10921 Wilshire Boulevard #514, 
P.O. Box 491610, Los Angeles, California 90049. RFAAX 2. Pursuant to 
this registration, Registrant is authorized to dispense controlled 
substances in schedules II through V as a practitioner. Id. 
Registrant's registration expired on February 29, 2020.\3\ Id.
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    \3\ The fact that a Registrant allows his registration to expire 
during the pendency of an OSC does not impact my jurisdiction or 
prerogative under the Controlled Substances Act (hereinafter, CSA) 
to adjudicate the OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 
68,474 (2019).
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The Status of Registrant's State License

    On May 15, 2017, the Medical Board of California issued a Default 
Decision and Order (hereinafter, Order) revoking Registrant's license 
to practice medicine in the state of California. RFAAX 4, App. A, at 
21. The Board's Order was issued pursuant to a complaint filed against 
Registrant on July 30, 2015, which alleged violations of the California 
Business and Professions Code, including Gross Negligence and General 
Unprofessional Conduct. Id. at 2-12.\4\ The Order found the allegations 
in the complaint to be true. Id. at 15. According to the Order, 
Registrant, with respect to his care and treatment of two patients, 
acted with gross negligence in his ``prescribing practices, failure to 
verify patients' medical records and prescription history, and 
illegible treatment records.'' Id. at 16. Specifically, the Board found 
that in prescribing Adderall (amphetamine and dextroamphetamine), a 
schedule II controlled substance, to the two patients, who both had 
histories of substance abuse, Registrant acted in ``extreme departure 
from the standard of care.'' Id. at 17-19. The Board also found that 
Registrant's treatment records for the two patients were so lacking 
that they also ``reflect[ed] an extreme departure from the standard of 
care'' and violated California Business and Professions Code Sec.  2266 
(``The failure of a physician and surgeon to maintain adequate and 
accurate records relating to the provision of services to their 
patients constitutes unprofessional conduct.''). Id. The Board further 
found that Registrant engaged in unprofessional conduct when he made 
inappropriate sexual remarks to both patients, which represented an 
``extreme departure from the standard of care'' and violated California 
Business and Professions Code Sec.  726 (``The commission of any act or 
sexual abuse, misconduct, or relations with a patient . . . constitutes 
unprofessional conduct and grounds for disciplinary action . . . .''). 
Id. at 20.
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    \4\ The Order stated that Registrant had requested a hearing on 
the complaint but failed to appear at the hearing. Accordingly, the 
Medical Board found Registrant had waived his right to a hearing and 
was in default pursuant to California Government Code section 11520. 
RFAAX 4, App. A, at 14-15.
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    The Board's Order revoking Registrant's license became effective on 
June 14, 2017. Id. at 21. On the same date, the Board issued an Order 
Denying Petition for Reconsideration in Registrant's matter. Id. at 1.
    According to the online records of the California Department of 
Consumer Affairs, of which I take official notice, Registrant's license 
remains revoked.\5\ https://search.dca.ca.gov/results (last visited 
July 21, 2020). California's online records show that Registrant's 
medical license remains revoked and that Registrant is not authorized 
in California to prescribe controlled substances. Id.
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    \5\ 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 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]).
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    Accordingly, I find that Registrant currently is neither licensed 
to engage in the practice of medicine nor registered to dispense 
controlled substances in California, the state in which Registrant is 
registered with the DEA.

Discussion

Loss of State Authority in California

    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 
he is no longer authorized to dispense controlled substances under the 
laws of the state in which he practices. See, e.g., James L. Hooper, 76 
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR

[[Page 45444]]

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, 43 FR at 27,617.
    According to California statute, ``[n]o person other than a 
physician . . . shall write or issue a prescription.'' Cal. Health & 
Safety Code Sec.  11150 (West 2020). Further, ``physician,'' as defined 
by California statute, is a person who is ``licensed to practice'' in 
California. Id. at Sec.  11024.
    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 a licensed practitioner to 
dispense a controlled substance in California. Thus, because Registrant 
lacks authority to practice medicine in California and, therefore, is 
not authorized to handle controlled substances in California, 
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. 
AS6936201 issued to Frederick M. Silvers, M.D. Further, pursuant to 28 
CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I 
hereby deny any pending application of Frederick M. Silvers, M.D. to 
renew or modify this registration, as well as any pending application 
of Frederick M. Silvers, M.D. for registration in California. This 
Order is effective August 27, 2020.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-16343 Filed 7-27-20; 8:45 am]
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