[Federal Register Volume 86, Number 241 (Monday, December 20, 2021)]
[Notices]
[Pages 71921-71923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27485]



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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Timothy C. Sapp, M.D.; Decision and Order

    On June 7, 2021, a former Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, 
Government), issued an Order to Show Cause (hereinafter, OSC) to 
Timothy C. Sapp, M.D. (hereinafter, Registrant) of Phoenix, Arizona. 
OSC, at 1. The OSC proposed the revocation of Registrant's Certificate 
of Registration No. BS7608396. It alleged that Registrant is without 
``authority to handle controlled substances in Arizona, 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 the Arizona Medical Board 
(hereinafter, the Board) issued an Interim Findings of Fact, 
Conclusions of Law and Order for Summary Restriction of License on 
April 22, 2020. Id. This Order, according to the OSC, summarily 
restricted Registrant's Arizona state medical license and prohibited 
Registrant from prescribing controlled substances pending the outcome 
of a formal hearing following the Board's finding, inter alia, that 
Registrant's treatment of six patients to whom he had prescribed 
controlled substances deviated from the standard of care. Id. On 
September 4, 2020, the Board issued its Findings of Fact, Conclusions 
of Law and Order finding, inter alia, that Registrant's prescribing of 
controlled substances to six patients deviated from the standard of 
care and accordingly, the Board revoked Registrant's Arizona state 
medical license, effective October 9, 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. at 2-3 (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 October 29, 2021, a Diversion Investigator 
(hereinafter, the DI) assigned to the Phoenix Field Division stated 
that on June 9, 2021, she sent a copy of the OSC via USPS certified 
mail to four addresses associated with Registrant, including: An 
address in Hawkinsville, GA where Registrant registered a new driver's 
license issued on May 14, 2021; two of Registrant's last-known 
residential addresses, one in Phoenix, AZ and another in Columbia, SC; 
and one of Registrant's former residential addresses in Phoenix, AZ. 
Request for Final Agency Action (hereinafter, RFAA), Exhibit 
(hereinafter, RFAAX) 2, at 1-2. The DI stated that she did not mail a 
copy of the OSC to Registrant's registered address in Phoenix, AZ 
because she had ``previously learned that the address was no longer a 
medical facility.'' Id. at 2. According to the DI, on April 22, 2021, 
she had traveled with a DEA Special Agent to Registrant's registered 
address and ``discovered that Registrant's registered address [was] 
operating as a tutoring facility called `The Art of Learning.''' Id. 
Further, according to the DI, ``[t]he staff at `The Art of Learning' 
had no knowledge of [Registrant].'' Id.
    On or around June 30, 2021, the DI discovered that the OSC mailings 
delivered to Hawkinsville, GA and Columbia, SC were returned as 
undeliverable. Id.; see also RFAAX 2, Appendix (hereinafter, App.) A. 
On or around July 28, 2021, the DI discovered that the OSC mailed to 
Registrant's last known residential address in Phoenix, AZ was returned 
as undeliverable. Id. The DI stated that as of the date of the 
Declaration, she had not received any returned mail in connection with 
the OSC mailing to Registrant's former residential address in Phoenix, 
AZ. RFAAX 2, at 2. The DI stated that on October 29, 2021, she checked 
the status of her mailing to Registrant's former residential address in 
Phoenix, AZ and the USPS website ``showed the status of the mailing as 
`Delivered, Front Desk/Reception/Mail Room' on June 14, 2021 at 12:54 
p.m.'' Id. at 2-3; see also RFAAX 2, App. B.
    On August 9, 2021, the DI emailed copies of the OSC to three email 
addresses associated with Registrant, including Registrant's registered 
email address and two email addresses listed in Registrant's 
comprehensive LexisNexis report. RFAAX 2, at 3. The DI stated that she 
received undeliverable confirmations from Registrant's registered email 
address and one of the email addresses listed in Registrant's 
comprehensive LexisNexis report. Id.; see also RFAAX 2, App. C. As of 
the date of the Declaration, the DI did not receive any undeliverable 
message or error message regarding to other email address listed in 
Registrant's comprehensive LexisNexis report. Id. The DI concluded that 
as of the date of the Declaration, ``DEA [had] not received any 
correspondence or communication from [Registrant] regarding the 
[OSC].'' RFAAX 2, at 3.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on November 2, 2021. In its RFAA, the Government 
represents that ``more than thirty days have passed since the 
Government both mailed and emailed the [OSC] to [Registrant]'' and 
``[n]either [Registrant] nor his attorney filed any Request for 
Hearing'' ``[n]or has DEA received any other response, either from 
[Registrant] or his attorney, regarding the [OSC].'' RFAA, at 2 and 4. 
The Government requests that Registrant's DEA registration be revoked 
because ``[Registrant] lacks authority to handle controlled substances 
in the state of Arizona, the state where he is registered with DEA.'' 
Id. at 1.
    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) 
August 9, 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

    According to Agency records, Registrant is the holder of DEA 
Certificate of Registration No. BS7608396 at the registered address of 
1130 E Missouri Ave, Ste 206, Phoenix, AZ 85014. See RFAAX 2, at 1 (DI 
Declaration). Pursuant to this registration, Registrant is authorized 
to dispense controlled substances in schedules II through V as a 
practitioner. Registrant's registration expires on February 28, 2023 
and is currently in an ``active pending'' status. Id.

The Status of Registrant's State License

    On April 22, 2020, the Arizona Medical Board (hereinafter, the 
Board) issued an Interim Findings of Fact, Conclusions of Law and Order 
for Summary Restriction of License

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(hereinafter, Interim Order). RFAAX 2, App. D. According to the Interim 
Order, the Board initiated a case after receiving a complaint regarding 
Registrant's care and treatment of patient E.R. that alleged 
inappropriate prescribing and medication management. Id. at 1. Based on 
the complaint, the Board requested Medical Consultant (hereinafter, MC) 
review of Registrant's care of patient E.R. and three other patients, 
which found that Registrant had deviated from the standard of care, 
including ``prescribing Adderall without adequate clinical rationale, 
prescribing two benzodiazepines concurrently without adequate clinical 
rationale, [and] prescribing Lamictal for off-label use without 
adequate clinical rationale.'' Id. at 1-3. The review concluded that 
``[t]here was the potential for patient harm including that patients 
were at risk for misuse of controlled substances, dependence and 
addiction.'' Id. at 3.
    The Board initiated a second case after receiving a complaint 
regarding Registrant's care and treatment of patient W.F. that alleged 
inappropriate prescribing and failing to obtain drug screens. Id. An MC 
review of Registrant's care and treatment of W.F. ``opined that 
[Registrant] deviated from the standard of care by prescribing high 
dose benzodiazepines and stimulants without adequate clinical 
rationale, and by prescribing a stimulant and antidepressant 
concurrently in a patient with bipolar disorder without a mood 
stabilizer.'' Id. at 4. The review concluded that ``[t]here was the 
potential for patient harm in that [W.F.] was at risk of a `manic 
switch' due to the lack of concurrently prescribed mood stabilizer.'' 
Id.
    Finally, the Board initiated a third case after receiving a 
complaint regarding Registrant's care and treatment of patient R.P. 
that alleged inappropriate discharge of a patient. Id. An MC review of 
Registrant's care and treatment of R.P. ``opined that [Registrant] 
deviated from the standard of care by failing to appropriately 
discharge the patient.'' Id. at 5. The review concluded that ``[t]here 
was actual patient harm in that R.P. experienced withdrawal symptoms 
from abrupt cessation of benzodiazepines.'' Id.
    On April 21, 2020, the Board ``voted unanimously to offer 
[Registrant] an Interim Consent Agreement for Practice Restriction 
(`ICA'), and if not accepted by 12:00 p.m. on April 22, 2020, to 
summarily restrict [Registrant's] license, based on a finding that the 
public health, safety and welfare imperatively required imminent 
action.'' Id. According to the Interim Order, ``[Registrant] failed to 
accept the proposed ICA within the time frame specified by the Board,'' 
and thus, the Board ordered the summary restriction of Registrant's 
Arizona medical license and prohibited Registrant ``from prescribing 
controlled substances in the State of Arizona pending the outcome of a 
Formal Hearing in [the] matter.'' Id. at 5-6. On September 4, 2020, the 
Board issued its Findings of Fact, Conclusions of Law and Order 
(License Revocation) and ordered Registrant's Arizona medical license 
revoked. RFAAX 2, App. E, at 19.
    According to Arizona's online records, of which I take official 
notice, Registrant's license is expired.\1\ Arizona Medical Board 
Licensee Search, https://azbomprod.azmd.gov/glsuiteweb/clients/azbom/public/WebVerificationSearch.aspx (last visited date of signature of 
this Order). Arizona's online records show that Registrant's medical 
license remains expired. Id.
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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 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 Arizona, 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 Arizona statute, ``[e]very person who manufactures, 
distributes, dispenses, prescribes or uses for scientific purposes any 
controlled substance within this state or who proposes to engage in the 
manufacture, distribution, prescribing or dispensing of or using for 
scientific purposes any controlled substance within this state must 
first: (1) Obtain and possess a current license or permit as a medical 
practitioner as defined in Sec.  32-1901 . . .'' Ariz. Rev. Stat. Ann. 
Sec.  36-2522(A) (2021). Arizona Statute Sec.  32-1901 defines a 
``[m]edical practitioner'' as ``any medical doctor . . . or other 
person who is licensed and authorized by law to use and prescribe drugs 
and devices to treat sick and injured human beings or animals or to 
diagnose or prevent sickness in human beings or animals in this state 
or any state, territory or district of the United States.'' Ariz. Rev. 
Stat. Ann. Sec.  32-1901 (2021). Arizona regulations further clarify 
that ``[a] physician who wishes to dispense a controlled substance . . 
. a prescription-only drug . . . or a prescription-only device . . . 
shall be

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currently licensed to practice medicine in Arizona.'' Ariz. Admin. Code 
Sec.  R4-16-301(A) (2021).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in Arizona, as he no 
longer retains a medical license in that state. As already discussed, a 
physician can only dispense controlled substances if he is licensed to 
practice medicine in Arizona. Thus, because Registrant lacks authority 
to practice medicine in Arizona and, therefore, is not authorized to 
dispense controlled substances in Arizona, Registrant is not eligible 
to maintain a DEA registration in Arizona. 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. 
BS7608396 issued to Timothy C. Sapp, 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 Timothy C. Sapp to renew or modify this 
registration, as well as any other pending application of Timothy C. 
Sapp for additional registration in Arizona. This Order is effective 
January 19, 2022.

Anne Milgram,
Administrator.
[FR Doc. 2021-27485 Filed 12-17-21; 8:45 am]
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