[Federal Register Volume 86, Number 75 (Wednesday, April 21, 2021)]
[Notices]
[Pages 20732-20734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08173]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Javaid A. Perwaiz, M.D.; Decision and Order

    On June 1, 2020, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, Government), 
issued an Order to Show Cause (hereinafter, OSC) to Javaid A. Perwaiz, 
M.D. (hereinafter, Registrant) of Chesapeake, Virginia. OSC, at 1. The 
OSC proposed the revocation of Registrant's Certificate of Registration 
No. AP1844287. It alleged that Registrant is without ``authority to 
handle controlled substances in Virginia, the state in which 
[Registrant is] registered with DEA.'' Id. (citing 21 U.S.C. 823(f) and 
824(a)(3)).
    Specifically, the OSC alleged that according to the records of the 
Virginia Department of Health Professionals, Registrant's Virginia 
Medicine & Surgery license expired on March 31, 2020. OSC, at 2. The 
OSC further alleged that because Registrant's medical license was 
expired, Registrant no longer held authority to handle controlled 
substances in Virginia. 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

[[Page 20733]]

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 August 5, 2020, a Diversion Investigator 
(hereinafter, DI) assigned to the Norfolk Resident Office of the 
Washington Field Division stated that she first attempted service of 
the OSC by forwarding a copy of the OSC to Registrant's legal counsel 
via email on June 2, 2020. Request for Final Agency Action (hereinafter 
RFAA), App. 8 (Declaration of DI), at 2. After nine days with no 
response, the DI called the office of Registrant's legal counsel and 
left a message with his staff regarding the OSC. Id. On June 19, 2020, 
the DI called the office of Registrant's legal counsel a second time 
after having still not received a response to the first phone call or 
the initial email. Id. at 3. According to the DI, Registrant's legal 
counsel returned the second phone call later that day and 
``acknowledged receiving a copy of the [OSC]'' and ``confirmed that 
[Registrant] had received a copy of the [OSC] (although he could not 
remember the exact date).'' Id. Registrant's legal counsel also said 
that he ``planned on filing a response to the [OSC] on behalf of 
[Registrant].'' Id. The DI concluded that, following the phone call on 
June 19, 2020, neither she nor her office ``received any other written 
correspondence, telephonic communication, or any other communication 
from [Registrant], or any representative on his behalf in response to 
the [OSC].'' Id.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on August 6, 2020. In its RFAA, the Government 
represents that ``despite [Registrant's legal counsel's] assurances to 
DEA personnel that a response would filed [sic] in response to the 
[OSC], more than [thirty days] have passed since Registrant received 
the [OSC]; however, Registrant has not submitted to DEA a request for 
hearing.'' \1\ RFAA, at 2; see also RFAA, Apps. 5 and 6. The Government 
requests that Registrant's Certificate of Registration be revoked based 
on Registrant's lack of state authority to handle controlled 
substances. RFAA, at 5 and 6.
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    \1\ The Government also represents that Registrant has not 
``otherwise filed a response with the agency following the issuance 
of the [OSC].'' RFAA, at 2.
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    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 or before 
June 19, 2020. 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 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
AP1844287 at the registered address of 3003 Churchland Boulevard, 
Chesapeake, VA 23321. RFAA, App. 1. 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 March 31, 2021.\2\ Id.
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    \2\ 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 
68474 (2019).
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The Status of Registrant's State License

    According to the records of the Virginia Department of Health 
Professionals, Registrant's Virginia Medicine & Surgery License expired 
on March 31, 2020. RFAA, App. 3, at 1. Additionally, Registrant's 
license remained expired as of the date of the OSC. RFAA, App. 7, at 1.
    According to Virginia's online records, of which I take official 
notice, Registrant's license is still expired.\3\ https://dhp.virginiainteractive.org/lookup (last visited date of signature of 
this Order). Virginia's online records show that Registrant's medical 
license remains expired and that Registrant is not authorized in 
Virginia to practice medicine. Id.
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    \3\ 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 and response shall be filed and served by email to the other 
party and to Office of the Administrator, Drug Enforcement 
Administration at [email protected].
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    Accordingly, I find that Registrant is not currently licensed to 
engage in the practice of medicine in Virginia, 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 71371 (2011), 
pet. for rev. denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh 
Blanton, M.D., 43 FR 27616, 27617 (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 71371-72;

[[Page 20734]]

Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick A. 
Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby Watts, M.D., 53 FR 11919, 
11920 (1988); Frederick Marsh Blanton, 43 FR at 27617.
    Under the Virginia Drug Control Act, a practitioner ``shall only 
prescribe, dispense, or administer controlled substances in good faith 
for medicinal or therapeutic purposes within the course of his 
professional practice.'' Va. Code 54.1-3408. The Virginia Drug Control 
Act also defines a ``practitioner,'' as ``a physician . . . licensed, 
registered, or otherwise permitted to distribute, dispense, prescribe 
and administer, or conduct research with respect to a controlled 
substance in the course of professional practice or research in the 
Commonwealth.'' Va. Code 54.1-3401. Further, under Virginia state law, 
a ``physician'' is defined as ``a person licensed to practice medicine 
in the Commonwealth of Virginia or in the jurisdiction where the health 
care is to be rendered or withheld.'' Va. Code 54.1-2981; see also: Va. 
Code 54.1-2902 (``It shall be unlawful for any person to practice 
medicine . . . in the Commonwealth without a valid unrevoked license 
issued by the Board of Medicine.'').
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in Virginia. As already 
discussed, a physician must be a licensed practitioner to dispense a 
controlled substance in Virginia. Thus, because Registrant lacks 
authority to practice medicine in Virginia and, therefore, is not 
authorized to handle controlled substances in Virginia, 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. 
AP1844287 issued to Javaid A. Perwaiz. 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 Javaid A. Perwaiz to renew or modify 
this registration, as well as any other pending application of Javaid 
A. Perwaiz, for additional registration in Virginia. This Order is 
effective May 21, 2021.

D. Christopher Evans,
Acting Administrator.
[FR Doc. 2021-08173 Filed 4-20-21; 8:45 am]
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