[Federal Register Volume 85, Number 249 (Tuesday, December 29, 2020)]
[Notices]
[Pages 85666-85667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28683]



[[Page 85666]]

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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Irene G. Gurvits, M.D.; Decision and Order

    On August 19, 2020, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, Government), 
issued an Order to Show Cause (hereinafter, OSC) to Irene G. Gurvits, 
M.D. (hereinafter, Registrant). OSC, at 1. The OSC proposed the 
revocation of Registrant's Certificate of Registration No. BG6075875. 
Id. It alleged that Registrant is without ``authority to handle 
controlled substances in the State of New York, the state in which 
[Registrant is] registered with the DEA.'' Id. at 2 (citing 21 U.S.C. 
824(a)(3)).
    Specifically, the OSC alleged that on May 26, 2020, ``the New York 
State Board for Professional Medical Conduct issued a Determination and 
Order revoking [Registrant's] license to practice medicine in the State 
of New York.'' Id. The OSC further alleged that because Registrant's 
medical license was revoked, Registrant lacks the authority to handle 
controlled substances in the State of New York. 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. 
(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)).
    A DEA Diversion Investigator (hereinafter, DI) personally served 
Registrant with the OSC on August 31, 2020, at her home address, which 
is also the mail address on her registration. Request for Final Agency 
Action (hereinafter, RFAA) Exhibit (hereinafter, RFAAX) 4, at 1-2 
(Declaration of DI). The DI stated that after the DI explained the 
purpose of the Order, Registrant ``refused to accept the Order and 
slammed the door shut.'' Id. The DI slipped the envelope with the Order 
under Registrant's door and ``Registrant then opened the door and [the 
DI] again explained the purpose of the Order. Registrant took the 
envelope containing the signed Order from underneath the door and 
immediately closed the door.'' Id.
    I 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 Registrant, requested a hearing, 
submitted a written statement while waiving Registrant's right to a 
hearing ``or otherwise corresponded or communicated with DEA regarding 
the Order served on her.'' RFAA, at 1. 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.

I. Findings of Fact

a. Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
BG6075875 at the registered address of 102 West 75 St., Suite 107, New 
York, NY 10023. RFAAX 1 (Certification of Registration Status). 
Pursuant to this registration, Registrant is authorized to dispense 
controlled substances in schedules II through V as a practitioner-DW/
30. Id. Registrant's registration expires on September 30, 2022, and 
``is in an active pending status until the resolution of administrative 
proceedings.'' Id.

b. The Status of Registrant's State License

    The State of New York Department of Health State Board for 
Professional Conduct (hereinafter, the Board) entered a Determination 
and Order on May 26, 2020, revoking Registrant's medical license 
effective upon service on Registrant. RFAAX 3 (Board Order), at 8. The 
State of New York's online records, of which I take official notice, 
document Registrant's license status as ``license revoked.'' \1\ New 
York Office of the Professions, Verification Searches, http://www.op.nysed.gov/opsearches.htm# (last visited date of signature of 
this Order).
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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 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 not licensed to 
engage in the practice of medicine in New York, the state in which 
Registrant is registered with the DEA.

II. 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 
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 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.

[[Page 85667]]

    According to the New York Controlled Substances Act (hereinafter, 
the Act), ``[i]t shall be unlawful for any person to manufacture, sell, 
prescribe, distribute, dispense, administer, possess, have under his 
control, abandon, or transport a controlled substance except as 
expressly allowed by this article.'' N.Y. Pub. Health Law Sec.  3304 
(West 2020). The Act defines ``practitioner,'' as ``a physician . . . 
or other person licensed, or otherwise permitted to dispense, 
administer, or conduct research with respect to a controlled substance 
in the course of a licensed professional practice. . . .'' Id. at Sec.  
3302(29). Finally, New York regulations state that ``[a] prescription 
for a controlled substance may be issued only by a practitioner who is 
. . . authorized to prescribe controlled substances pursuant to his 
licensed professional practice . . .'' N.Y. Comp. Codes R. & Regs. Tit. 
10, Sec.  80.64 (West 2020).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in New York. As already 
discussed, a physician must be a licensed practitioner to dispense a 
controlled substance in New York. Thus, because Registrant lacks 
authority to practice medicine in New York and, therefore, is not 
authorized to handle controlled substances in New York, 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. 
BG6075875 issued to Irene G. Gurvits, 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 Irene G. Gurvits, M.D. to renew or 
modify this registration or for any other registrations in the State of 
New York. This Order is effective January 28, 2021.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-28683 Filed 12-28-20; 8:45 am]
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