[Federal Register Volume 85, Number 224 (Thursday, November 19, 2020)]
[Notices]
[Pages 73804-73806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25527]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Hil Rizvi, M.D.; Decision and Order

    On July 20, 2020, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, Government), 
issued an Order to Show Cause (hereinafter, OSC) to Hil Rizvi, M.D. 
(hereinafter, Registrant) of Tyrone, Pennsylvania. OSC, at 1, 3. The 
OSC proposed the revocation of Registrant's Certificate of Registration 
No. BR4988599. It alleged that Registrant is without ``authority to 
handle controlled substances in Pennsylvania, the state in which 
[Registrant is] registered with DEA.'' Id. at 1 (citing 21 U.S.C. 
823(f) and 824(a)(3)).
    Specifically, the OSC alleged that the Pennsylvania State Board of 
Medicine (hereinafter, the Board) revoked Registrant's license to 
practice medicine effective October 28, 2018.\1\ Id. The OSC concluded 
that ``DEA must revoke [Registrant's] DEA registration based on [his] 
lack of authority to handle controlled substances in the State of 
Pennsylvania.'' Id. at 2.
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    \1\ It is noted that the effective date of the Order was 
September 12, 2018. See Request for Final Agency Action, at 1 n.1; 
Exhibit 3, at 12.
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    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. Id. at 3 (citing 21 U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated August 20, 2020, the Chief of Police for the 
Borough of Tyrone Police Department, stated that on July 22, 2020, he, 
another police officer, and two DEA Diversion Investigators 
(hereinafter, DIs) traveled to Registrant's registered address located 
at 910 Pennsylvania Avenue, Tyrone, PA 16686. Request for Final Agency 
Action dated July 10, 2019 (hereinafter, RFAA), Exhibit (hereinafter, 
RFAAX) 8, at 2 (Chief of Police's Declaration). The Chief of Police 
stated that upon arrival at the registered address, ``[he] knocked 
repeatedly on the office door to no response.'' Id. The team then 
proceeded to Registrant's residence and again, ``knock[ed] repeatedly 
on the front door of the residence,'' but there was no answer. Id. The 
Chief of Police then stated that ``[a]fter unsuccessful attempts at 
reaching [Registrant] on his landline and cell telephone numbers, [he] 
left [his] business card in the front door slot of the residence.'' Id. 
Later that afternoon, the Chief of Police received a phone call from 
Registrant at the telephone number on his business card. Id. at 3. The 
Chief of Police stated that he had a letter to deliver, but Registrant 
``insisted'' that he was not in town ``despite placing a call to [the 
Chief of Police] at the business card [he] left at the residence 
earlier that day.'' Id. Following the phone call, the Chief of Police 
``immediately returned to [Registrant's] office location. When [he] 
knocked on the front door of the office, [Registrant] answered. [He] 
then handed the envelope containing the [OSC] to [Registrant] and left 
the premises.'' Id.
    The DEA DI assigned to the case stated that ``[s]tarting 
immediately after his July 22, 2020 receipt of the [OSC], and on 
several occasions since, [the DI has] received numerous calls and an

[[Page 73805]]

email from [Registrant], all with regard to his disagreement with being 
served with the OTSC.'' RFAAX 12, at 4 (Declaration of DEA DI, dated 
September 2, 2020). The Government's evidence includes an email from 
Registrant on July 22, 2020, which was sent to the email address 
provided for submission of a Corrective Action Plan (hereinafter, CAP). 
RFAAX 6 (Email from Registrant on July 22, 2020). The Assistant 
Administrator for Diversion treated the email from Registrant as a 
proposed CAP and denied the CAP on July 23, 2020. RFAAX 7, at 1 (Letter 
Denying CAP). Based on all of the above, I find that the OSC was served 
on July 22, 2020.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on September 3, 2020. In its RFAA, the 
Government represents that ``more than thirty days have passed since 
Registrant received the [OSC]; however, Registrant has not submitted to 
DEA a request for a hearing . . . Aside from the aforementioned CAP 
request, and sporadic, nonpertinent communications with DEA personnel 
(outlined below), Registrant has not otherwise filed a response with 
the agency following the issuance of the [OSC].'' RFAA, at 2.
    The Government asserts that DEA cannot ``maintain the registration 
of a practitioner not duly authorized to handle controlled substances 
in the state in which he conducts business'' and requests revocation. 
Id. at 6.
    Based on the DI's and the Chief of Police's Declarations, the 
Government's written representations, and my review of the record, I 
find that the Government accomplished service of the OSC on Registrant 
on July 22, 2020. I also find that more than thirty days have now 
passed since the Government accomplished service of the OSC. 
Accordingly, I find that Registrant has waived the right to a hearing 
and corrective action plan. 21 CFR 1301.43(d) and 21 U.S.C. 
824(c)(2)(C). Although it is unclear whether the email that DEA 
received from Registrant is a written statement or a Proposed 
Corrective Action Plan from Registrant in accordance with 21 CFR 
1301.43(c), I have considered it under both. RFAAX 6, at 12. In the 
email, Registrant stated that the license dispute is pending in 
Pennsylvania court and that ``the license dispute is NOT about clinical 
issues or malpractice or drug diversion.'' Id. (emphasis in original). 
Although I have considered Registrant's statement, it does not present 
any issue of fact or law that could affect my final decision, as 
explained herein. I also agree with the Assistant Administrator of the 
Diversion Control Division, that if the email was intended to be a 
Proposed Corrective Action Plan, it provides no basis for me to 
discontinue or defer this proceeding. See RFAAX 7, at 1. I issue this 
Decision and Order based on the record submitted by the Government, 
including Registrant's statement, 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. 
BR4988599 at the registered address of 910 Pennsylvania Avenue, Tyrone, 
PA 16686. RFAAX 1 (Registrant's Certificate of Registration). Pursuant 
to this registration, Registrant is authorized to dispense controlled 
substances in schedules II through V as a practitioner-DW/275. RFAAX 2 
(Certification of Registration History). Registrant's registration 
expires on April 30, 2023, and is ``in an active pending status until 
the resolution of administrative proceedings.'' Id. at 1.

The Status of Registrant's State License

    On September 12, 2018, the Commonwealth of Pennsylvania State Board 
of Medicine issued an Order (hereinafter, Board Order) revoking 
Registrant's license to practice medicine in Pennsylvania effective 
immediately. RFAAX 3, at 12. According to the Board Order, Registrant's 
Ohio license to practice medicine was revoked and his Maine application 
to practice medicine was denied. Id. at 8. The Board stated that those 
state actions ``indicate that [Registrant] has engaged in a multi-year 
and multi-state history of providing false, misleading or knowingly 
incomplete information in association with his applications for 
licensure and renewal and that he failed to properly advise a board of 
negative information regarding arrests as required.'' Id. The Board 
therefore concluded that Registrant was ``essentially an individual who 
cannot be effectively regulated by the Board.'' Id. at 9.
    According to Pennsylvania's online records, of which I take 
official notice, Registrant's license is still revoked.\2\ Pennsylvania 
Licensing System Verification Service, https://www.pals.pa.gov/#/page/search (last visited October 27, 2020).
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    \2\ 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 motion and response shall be filed and served 
by email to the other party and to the Office of the Administrator 
at [email protected].
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    Accordingly, I find that Registrant currently is not licensed to 
engage in the practice of medicine in Pennsylvania, the state in which 
Registrant 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 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 F. App'x 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

[[Page 73806]]

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 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.
    Pennsylvania law defines a ``practitioner'' as ``(i) a physician . 
. . licensed, registered or otherwise permitted to distribute, dispense 
. . . or to administer a controlled substance . . . in the course of 
professional practice or research in the Commonwealth of 
Pennsylvania.'' 35 Pa. Stat. and Cons. Stat. Ann. Sec.  780-102 (West 
2020). Pennsylvania law further defines a ``physician,'' as a ``medical 
doctor,'' and a ``medical doctor,'' as an ``individual who has 
acquired'' a license ``to practice medicine and surgery issued by the 
board.'' Pa. Stat. and Cons. Stat. Ann. Sec.  422.2 (West 2019). 
Pennsylvania law prohibits ``[t]he administration, dispensing, 
delivery, gift or prescription of any controlled substance by any 
practitioner . . . unless done (i) in good faith in the course of his 
professional practice; (ii) within the scope of the patient 
relationship; (iii) in accordance with treatment principles accepted by 
a responsible segment of the medical profession.'' 35 Pa. Stat. and 
Cons. Stat. Ann. Sec.  780-113(14) (West 2019). Additionally, the 
statute prohibits ``knowingly or intentionally possessing a controlled 
. . . substance by a . . . practitioner not registered or licensed by 
the appropriate state board.'' Id. at Sec.  780-113(15).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine and surgery in 
Pennsylvania. A practitioner, who is a physician and a medical doctor, 
must be licensed and cannot prescribe or possess controlled substances 
in his professional practice without a license. Id. Sec.  780-113(14), 
(15). Because Registrant lacks authority to practice medicine in 
Pennsylvania and, therefore, is not authorized to possess or prescribe 
controlled substances in Pennsylvania, 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. 
BR4988599 issued to Hil Rizvi, M.D. This Order is effective December 
21, 2020.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-25527 Filed 11-18-20; 8:45 am]
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