[Federal Register Volume 86, Number 188 (Friday, October 1, 2021)]
[Notices]
[Pages 54479-54480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21425]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Darryl L. Henry, M.D.; Decision and Order

    On June 4, 2021, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, Government), 
issued an Order to Show Cause (hereinafter, OSC) to Darryl L. Henry, 
M.D. (hereinafter, Registrant) of Elkhart, Indiana. OSC, at 1. The OSC 
proposed the revocation of Registrant's Certificate of Registration No. 
FH0303292. Id. at 1. It alleged that Registrant is ``without authority 
to handle controlled substances in the State of Indiana, the state in 
which [Registrant is] registered with DEA.'' Id. at 2 (citing 21 U.S.C. 
824(a)(3)).
    Specifically, the OSC alleged that Registrant's Indiana medical 
license was suspended for 90 days by Order of the Medical Licensing 
Board of Indiana, effective April 22, 2021. Id. The OSC also alleged 
that Registrant's Indiana controlled substances license expired on 
October 31, 2019. 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 September 2, 2021, a Diversion Investigator 
(hereinafter, the DI) assigned to the Merrillville, Indiana District 
Office stated that on or about June 8, 2021, the OSC was mailed to both 
Registrant's registered address and his mail-to address by the DEA 
Office of Chief Counsel. Request for Final Agency Action (hereinafter, 
RFAA) Exhibit (hereinafter, RFAAX) 2 (the DI's Declaration), at 1-2. 
The DI stated that on June 8, 2021, she and a DEA Task Force Officer 
attempted to contact Registrant at his mother's residence and spoke 
with Registrant's mother. Id. at 2. According to the DI, Registrant's 
mother stated that Registrant did not live there and offered to take 
the OSC and to have Registrant's sister contact Registrant regarding 
the OSC. Id. The DI stated that she then left her contact information 
with Registrant's mother. Id. The DI also stated that on June 8, 2021, 
she emailed the OSC to Registrant at the email address listed in the 
DEA's registration database. Id. According to the DI, Registrant never 
responded to the OSC nor did he request a hearing. Id.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on September 2, 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 registration ``be revoked and any application for 
renewal, or any other applications, [be] denied, based on 
[Registrant's] lack of state authority.'' Id. at 5.
    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 about 
June 8, 2021. I also find that more than thirty days have now passed 
since the Government accomplished service of the OSC. Further, based on 
the DI's Declaration, the Government's written representations, and my 
review of the record, 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. 
FH0303292 at the registered address of 3100 Windsor Ct, Elkhart, IN 
46514. RFAAX 3 (DEA's online registration database printout), at 1. 
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 October 31, 2021 and is in an 
``active pending'' status. Id.

The Status of Registrant's State License

    On September 1, 2021, the Medical Licensing Board of Indiana 
(hereinafter, the Board) issued a Summary Suspension Order 
(hereinafter, Order) against Registrant. RFAAX 4, at 1 and 4. According 
to the Order, on August 21, 2019, Registrant was charged with two 
counts of sexual battery in Elkhart Superior Court I. Id. at 2. The 
probable cause affidavit alleged that on May 7, 2019, the first of two 
victims saw Registrant as a patient for a physical examination, during 
which Registrant made inappropriate sexual comments and unwanted sexual 
advances on the victim. Id. at 2-3. Further, the probable cause 
affidavit alleged that on May 13,

[[Page 54480]]

2019, a second victim saw Registrant as a patient for a physical 
examination, during which Registrant again made inappropriate sexual 
comments and unwanted sexual advances on the victim. Id. at 3. The 
Order concluded that Registrant ``represents a clear and immediate 
danger to the public health and safety if allowed to continue to 
practice as a medical doctor in Indiana.'' Id. at 4.
    Accordingly, the Board ordered that Registrant's Indiana medical 
license, which had been suspended for 90 days effective April 22, 
2021,\1\ be summarily suspended for an additional 90 days, effective 
June 24, 2021. Id. The Board also ordered that the matter would reset 
on September 23, 2021 for a hearing to occur at which the Board would 
consider whether the summary suspension of Registrant's license should 
be extended for an additional 90 days. Id.
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    \1\ RFAAX 2, at 2 (the DI's Declaration). The Government did not 
provide documentation for the original suspension.
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    According to Indiana's online records, of which I take official 
notice, Registrant's Indiana medical license remains suspended and 
Registrant's controlled substances registration remains expired.\2\ 
http://www.mylicense.in.gov/everification (last visited date of 
signature of this Order).
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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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    Accordingly, I find that Registrant is not currently licensed to 
engage in the practice of medicine nor registered to dispense 
controlled substances in Indiana, 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 
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 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.
    According to Indiana statute, ``[e]very person who dispenses or 
proposes to dispense any controlled substance within Indiana must have 
a registration issued by the [Indiana Board of Pharmacy] in accordance 
with the board's rules.'' Ind. Code Sec.  35-48-3-3(b) (2021). Further, 
``dispense'' means ``to deliver a controlled substance to an ultimate 
user or research subject by or pursuant to the lawful order of a 
practitioner and includes the prescribing, administering, packaging, 
labeling, or compounding necessary to prepare the substance for that 
delivery.'' Ind. Code Sec.  35-48-1-12 (2021).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to dispense controlled substances in Indiana. 
As already discussed, a physician must hold a controlled substances 
registration to dispense a controlled substance in Indiana. Thus, 
because Registrant lacks authority to handle controlled substances in 
Indiana, 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. 
FH0303292 issued to Darryl L. Henry, 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 Darryl L. Henry, M.D. to renew or 
modify this registration, as well as any other pending application of 
Darryl L. Henry, M.D. for additional registration in Indiana. This 
Order is effective November 1, 2021.

Anne Milgram,
Administrator.
[FR Doc. 2021-21425 Filed 9-30-21; 8:45 am]
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