[Federal Register Volume 86, Number 115 (Thursday, June 17, 2021)]
[Notices]
[Pages 32282-32284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-12755]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Tareq A. Khedir Al-Tiae, M.D.; Decision and Order

    On February 11, 2021, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, 
Government), issued an Order to Show Cause (hereinafter, OSC) to Tareq 
A. Khedir Al-Tiae, M.D. (hereinafter, Registrant) of Lincoln, NE. OSC 
at 1. The OSC proposed the revocation of Registrant's Certificate of 
Registration No. FK4149882. It alleged that Registrant is without 
``authority to handle controlled substances in the State of Nebraska, 
the state in which

[[Page 32283]]

[Registrant is] registered with DEA.'' Id. at 2 (citing 21 U.S.C. 
824(a)(3)).
    Specifically, the OSC alleged that the Nebraska Department of 
Health and Human Services suspended Registrant's Nebraska medical 
license on July 1, 2020. Id. According to the OSC, Registrant's 
Nebraska medical license subsequently expired on October 1, 2020. 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. Id. at 3 (citing 21 U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated May 10, 2021, a Diversion Investigator 
(hereinafter, the DI) assigned to the Omaha Division stated that on 
February 26, 2021, he attempted to call Registrant at the phone number 
that Registrant provided to DEA, but received no answer and left a 
voice mail urging Registrant to return the call. Amended Request for 
Final Agency Action dated May 21, 2021 (hereinafter, RFAA), Exhibit 
(hereinafter, RFAAX) 2 at 1-2. The DI stated that on the same day, he 
travelled to the address that Registrant provided to DEA as his 
registered and ``mail to'' address, 4211 N 8th Cir., Lincoln, NE 68521-
4805. Id. at 2. The DI stated that nobody answered the door and he left 
a business card with instructions for Registrant to contact him. Id. 
The DI stated that he then traveled to an address in Grand Island, NE, 
which was ``another address where [the DI] believed [Registrant] may be 
residing.'' Id. The DI stated that again, nobody answered the door and 
he left a business card with instructions for Registrant to contact 
him. Id. The DI went on to describe how on March 2, 2021, and March 7, 
2021, he made a second and third visit to Registrant's registered and 
``mail to'' address. Id. The DI stated that both times, nobody answered 
the door and he left additional business cards with instructions for 
Registrant to call him, but the DI never received a return call. Id.
    The DI then described how on March 9, 2021, he again called 
Registrant at the phone number that Registrant had provided to DEA. Id. 
The DI stated that although someone answered the phone, ``as soon as 
[the DI] identified [himself] and stated that [the DI] was looking for 
[Registrant], the person [on the phone] stated that [the DI] had 
reached the wrong phone number, denied that he was the [Registrant], 
and then hung up.'' Id. The DI then stated that following the phone 
call, he sent Registrant an email at the email address Registrant had 
provided to DEA. Id. The DI stated that on March 11, 2021, he emailed a 
copy of the OSC to the same email address. Id. The DI concluded that 
Registrant did not respond to either email, did not return any of the 
DI's calls, and did not respond to any of the messages that the DI left 
at the two addresses described above. Id.
    The Government forwarded its RFAA,\1\ along with the evidentiary 
record, to this office on May 21, 2021. In its RFAA, the Government 
represents that ``more than thirty days have passed since the [OSC] was 
served on [Registrant] and no request for hearing has been received by 
DEA. RFAA, at 1. The Government requests that Registrant's ``DEA 
Certificate of Registration as a practitioner be revoked and his 
application for renewal denied, based on the [Registrant's] lack of 
state authority.'' Id. at 6.
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    \1\ The Government provided a Certificate of Service that stated 
that the RFAA was served via Registrant's registered address by mail 
and also via his email address on May 21, 2021. RFAA, at 7.
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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) 
March 11, 2021. 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. 
FK4149882 at the registered address of 4211 N 8th Cir., Lincoln, NE 
68521-4805. RFAAX 4. Pursuant to this registration, Registrant is 
authorized to dispense controlled substances in schedules II through V 
as a practitioner. Id. Registrant's registration expires on December 
31, 2022, and is in ``active pending'' status. Id.

The Status of Registrant's State License

    On July 1, 2020, the Nebraska Department of Health and Human 
Services suspended Registrant's Nebraska medical license. RFAAX 3. On 
October 1, 2020, Registrant's Nebraska medical license expired. Id.
    According to Nebraska's online records, of which I take official 
notice, Registrant's license remains suspended.\2\ Nebraska Department 
of Health and Human Services License Information System Search, https://www.nebraska.gov/LISSearch/search.cgi (last visited date of signature 
of this Order). Nebraska's online records show that Registrant's 
medical license remains suspended and that Registrant is not authorized 
in Nebraska to practice medicine. Id. Accordingly, I find that 
Registrant is not currently licensed to engage in the practice of 
medicine in Nebraska, the State in which Registrant is registered with 
the DEA.
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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 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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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 
Controlled Substances Act (hereinafter, 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

[[Page 32284]]

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.
    Under Nebraska law, ``[d]ispense means to deliver a controlled 
substance to an ultimate user or a research subject pursuant to a 
medical order issued by a practitioner authorized to prescribe, 
including the packaging, labeling, or compounding necessary to prepare 
the controlled substance for such delivery.'' Neb. Rev. Stat. Sec.  28-
401(8) (Westlaw, Current through legislation effective May 6, 2021). 
Further, ``[p]ractitioner means a physician . . . or any other person 
licensed, registered, or otherwise permitted to distribute, dispense, 
prescribe, conduct research with respect to, or administer a controlled 
substance in the course of practice or research in this state . . . .'' 
Id. at Sec.  28-401(21). Because Registrant is not currently licensed 
as a physician, or otherwise licensed, in Nebraska, he is not 
authorized to dispense controlled substances in Nebraska.
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in Nebraska. As already 
discussed, a physician must be a licensed practitioner to dispense a 
controlled substance in Nebraska. Thus, because Registrant lacks 
authority to practice medicine in Nebraska and, therefore, is not 
authorized to handle controlled substances in Nebraska, 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. 
FK4149882 issued to Tareq A. Khedir Al-Tiae, 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 Tareq A. Khedir Al-Tiae, M.D., 
to renew or modify this registration, as well as any other pending 
application of Tareq A. Khedir Al-Tiae M.D., for additional 
registration in Nebraska. This Order is effective July 19, 2021.

D. Christopher Evans,
Acting Administrator.
[FR Doc. 2021-12755 Filed 6-16-21; 8:45 am]
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