[Federal Register Volume 87, Number 77 (Thursday, April 21, 2022)]
[Notices]
[Pages 23885-23887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08513]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Larry S. Everhart, M.D.; Decision and Order

    On January 14, 2022, a former Acting Assistant Administrator, 
Diversion Control Division, Drug Enforcement Administration 
(hereinafter, Government), issued an Order to Show Cause (hereinafter, 
OSC) to Larry S. Everhart, M.D. (hereinafter, Registrant) of Powell, 
Ohio. Request for Final Agency Action (hereinafter, RFAA), Exhibit 
(hereinafter, RFAAX) A (OSC), at 1. The OSC proposed the revocation of 
Registrant's Certificate of Registration No. AE5735557. Id. It alleged 
that Registrant is ``without authority to prescribe controlled 
substances in the State of Ohio, the state in which [he is] registered 
with the DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).

[[Page 23886]]

    Specifically, the OSC alleged that on or about July 14, 2021, the 
State Medical Board of Ohio permanently revoked Registrant's medical 
license after finding that on numerous occasions, Registrant relied on 
an unproven diagnostic device to diagnose and treat patients; 
inappropriately prescribed an anti-parasitic drug and prescribed it in 
excess of recommended dosages; inappropriately prescribed multiple 
antibiotics in excess of recommended dosages; and failed to maintain 
complete and/or legible medical records. 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 March 4, 2022, a Diversion Investigator 
(hereinafter, the DI) assigned to the Columbus District Office of the 
Detroit Field Division stated that on or about January 20, 2022, she 
sent a copy of the OSC via certified mail to Registrant's registered 
address. RFAAX B (DI's Declaration), at 1-2. According to the DI, 
United States Postal Service (USPS) tracking information indicates that 
the copy of the OSC was delivered on or about January 24, 2022. Id. at 
2.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on March 15, 2022. According to the Government's 
RFAA, ``[Registrant] has not corresponded or otherwise communicated 
with DEA regarding the [OSC].'' RFAA, at 2. Further, the Government 
states that, ``[m]ore than 30 days have passed since [Registrant] was 
served with the [OSC] and, therefore, the deadline for requesting a 
hearing or submitting a written statement of position has passed.'' Id. 
(citing 21 CFR 1301.43). The Government requests that ``[Registrant's] 
DEA Certificate of Registration as a practitioner be revoked based on 
his lack of authority to handle controlled substances in the State of 
Ohio, the state in which he is registered with DEA.'' Id. at 6.
    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 
January 24, 2022. 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 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 or corrective action plan. 21 CFR 
1301.43(d); 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. 
AE5735557 at the registered address of 3779 Attucks Drive, Powell, Ohio 
43065. RFAAX B (DI's Declaration), 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 August 31, 2022. Id.

The Status of Registrant's State License

    On May 13, 2020, the State Medical Board of Ohio (hereinafter, the 
Board) notified Registrant that the Board intended to ``determine 
whether or not to limit, revoke, permanently revoke, suspend, refuse to 
grant or register or renew or reinstate [his] license or certificate to 
practice medicine and surgery, or to reprimand [him] or place [him] on 
probation.'' RFAAX B, Exhibit B-1, at 124-125. According to the Board's 
letter, from on or about January 24, 2005, to July 24, 2019, Registrant 
relied on ``an unproven electrodermal diagnostic device'' to diagnose 
and treat ten different patients. Id. at 124. Regarding these 
diagnoses, Registrant failed to confirm the results through laboratory 
testing and/or consultation from a specialist before employing 
treatment measures. Id. The Board's letter also alleged that, in regard 
to the treatment of the ten patients, Registrant inappropriately 
prescribed an antiparasitic drug and multiple antibiotics, prescribing 
the medications in excess of recommended dosages and without 
appropriately confirming diagnoses. Id. Finally, the Board's letter 
alleged that Registrant's medical records for the ten patients were 
``incomplete and/or illegible.'' Id. The Board argued, citing to Ohio 
State law, that Registrant's conduct constituted a `` `departure from, 
or the failure to conform to, minimal standards of care.' '' Id. The 
Board also argued, citing to Ohio State law, that Registrant's conduct 
constituted a `` `[f]ailure to maintain minimal standards applicable to 
the selection or administration of drugs, or failure to employ 
acceptable scientific methods in the selection of drugs or other 
modalities for treatment of disease.' '' Id. at 124-125. On July 14, 
2021, the Board issued its Entry of Order permanently revoking 
Registrant's Ohio medical license and ordering Registrant to pay a fine 
of $3,500. Id. at 3.
    According to Ohio's online records, of which I take official 
notice, Registrant's medical license is still permanently revoked.\1\ 
https://elicense.ohio.gov/oh_verifylicense (last visited date of 
signature of this Order). Accordingly, I find that Registrant is not 
currently licensed to practice medicine in Ohio, the state in which he 
is registered with the DEA.
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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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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 71371 (2011), pet. for rev. denied, 481 F. App'x

[[Page 23887]]

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; 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.
    According to Ohio law, ``No person shall knowingly obtain, possess, 
or use a controlled substance or a controlled substance analog,'' 
except pursuant to a ``prescription issued by a licensed health 
professional authorized to prescribe drugs if the prescription was 
issued for a legitimate medical purpose.'' Ohio Rev. Code Ann. 
Sec. Sec.  2925.11(A), (B)(1)(d) (West, current through File 85 of the 
134th General Assembly (2021-2022)). Ohio law further states that a 
``[l]icensed health professional authorized to prescribe drugs'' or 
``prescriber'' means ``an individual who is authorized by law to 
prescribe drugs or dangerous drugs or drug therapy related devices in 
the course of the individual's professional practice.'' Id. at Sec.  
4729.01(I). The definition further provides a limited list of 
authorized prescribers, the relevant provision of which is ``[a] 
physician authorized under Chapter 4731[ ] of the Revised Code to 
practice medicine and surgery, osteopathic medicine and surgery, or 
podiatric medicine and surgery.'' Id. at Sec.  4729.01(I)(5). 
Additionally, Ohio law permits ``[a] licensed health professional 
authorized to prescribe drugs, if acting in the course of professional 
practice, in accordance with the laws regulating the professional's 
practice'' to prescribe or administer schedule II, III, IV, and V 
controlled substances to patients. Id. at Sec.  3719.06(A)(1)(a)-(b).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in Ohio. As already 
discussed, a physician is authorized by law to prescribe or administer 
drugs in Ohio only when authorized to practice medicine and surgery 
under Ohio law. Thus, because Registrant lacks authority to practice 
medicine in Ohio and, therefore, is not authorized to handle controlled 
substances in Ohio, 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. 
AE5735557 issued to Larry S. Everhart, 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 Larry S. Everhart, M.D. to renew or 
modify this registration, as well as any other pending application of 
Larry S. Everhart, M.D. for additional registration in Ohio. This Order 
is effective May 23, 2022.

Anne Milgram,
Administrator.
[FR Doc. 2022-08513 Filed 4-20-22; 8:45 am]
BILLING CODE 4410-09-P