[Federal Register Volume 87, Number 136 (Monday, July 18, 2022)]
[Notices]
[Pages 42744-42746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15279]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 22-19]


Faris Abusharif, M.D.; Decision and Order

    On March 2, 2022, the Administrator, Drug Enforcement 
Administration (hereinafter, DEA), issued an Order to Show Cause and 
Immediate Suspension of Registration (hereinafter, OSC/ISO) to Faris 
Abusharif, M.D. (hereinafter, Respondent) of Orland Park, Illinois. 
OSC/ISO, at 1 and 6. The OSC/ISO notified Respondent of the immediate 
suspension of his Certificate of Registration No. BA8201775 because 
``[his] continued registration constitutes `an imminent danger to the 
public health or safety.' '' Id. at 1 (citing 21 U.S.C. 824(d)). 
Pursuant to 21 U.S.C. 824(a)(4), the OSC/ISO also proposed the 
revocation of Respondent's Certificate of Registration No. BA8201775 
because ``[his] continued registration is inconsistent with the public 
interest, as that term is defined in 21 U.S.C. 823(f).'' Id.
    The OSC/ISO alleged that from at least February 10, 2017, through 
at least January 5, 2022, Respondent ``issued numerous prescriptions 
for controlled substances to five individuals outside of the usual 
course of professional practice and not for a legitimate medical 
purpose.'' Id. at 3. The OSC/ISO also alleged that during an interview 
by DEA on July 22, 2021, Respondent admitted to ordering Adderall from 
his distributor and taking it himself without a prescription as well as 
to prescribing Ritalin and tramadol to himself between November 14, 
2020, and February 27, 2021 in violation of state law. Id. at 2-3. 
Regarding Respondent's alleged misconduct, the OSC/ISO alleged 
violations of 21 CFR 1306.04(a) and 7 Ill. Adm. Code Sec.  3100.380. 
Id. at 2.
    Pursuant to 21 U.S.C. 824(d) and 21 CFR 1301.36(e), the OSC/ISO 
immediately suspended Respondent's Certificate of Registration No. 
BA8201775 after a preliminary finding that Respondent's continued 
registration was inconsistent with the public interest and that 
Respondent's continued registration during the pendency of the 
proceedings would

[[Page 42745]]

constitute an imminent danger to the public health or safety. Id. at 5.
    The OSC/ISO notified Respondent 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 5-6 (citing 21 
CFR 1301.43).
    By letter dated March 21, 2022, Respondent requested a hearing \1\ 
and argued that his prescribing was consistent with the public 
interest, part of the usual course of professional practice, and only 
for legitimate medical purposes. Request for Hearing, at 1. The Office 
of Administrative Law Judges put the matter on the docket and assigned 
it to Chief Administrative Law Judge John J. Mulrooney, II 
(hereinafter, the Chief ALJ). On March 21, 2022, the Chief ALJ issued 
an Order for Prehearing Statements. On March 23, 2022, the Government 
submitted a Motion to Exceed Page Limit, Opposed Motion for Summary 
Disposition, and Unopposed Motion for Continuance (hereinafter, Motion 
for Summary Disposition). In its Motion for Summary Disposition, the 
Government alleged that on March 18, 2022, after the OSC/ISO had 
already been served, the State of Illinois Department of Financial and 
Professional Regulation issued a temporary suspension of Respondent's 
state medical license. Motion for Summary Disposition, at 1. The 
Government provided documentation to support its claim and argued that, 
accordingly, Respondent's lack of state authority formed an independent 
basis to revoke Respondent's registration. Id.; see also id. Government 
Exhibit (hereinafter, GX) 3-5. The Government concluded by requesting 
that its Motion for Summary Disposition be granted and Respondent's 
registration be revoked based on Respondent's lack of state authority. 
Motion for Summary Disposition, at 7-8.
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    \1\ The Agency finds that the Government's service of the OSC/
ISO was adequate and that the Request for Hearing was timely filed 
on March 21, 2022.
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    The Government is not required to issue an amended OSC to notice an 
allegation of a registrant's lack of state authority that arises during 
the pendency of a proceeding regarding a DEA registration. Hatem M. 
Ataya, M.D., 81 FR 8221, 8244 (2016). Previous Agency decisions have 
stated that because the possession of state authority is a prerequisite 
for obtaining and maintaining a registration, the issue of state 
authority can be raised at any stage of a proceeding. See Ataya, 81 FR 
at 8244; Joe M. Morgan, D.O., 78 FR 61,961, 61,973-74 (2013). 
Nonetheless, in such cases, a registrant must be provided with a 
meaningful opportunity to contest the allegation. See, e.g., Lawrence 
E. Stewart, M.D., 86 FR 15,257, 15,257 (2021); Cypress Creek Pharmacy 
LLC, 86 FR 71,927, 71,927 (2021); Lesly Pompy, M.D., 84 FR 57,749, 
57,749-50 (2019); Ataya, 81 FR at 8245; Morgan, 78 FR at 61,973-74.
    On March 24, 2022, the Chief ALJ issued an Order Granting Leave to 
File a Motion With an Oversized Attachment, Setting a Briefing 
Schedule, and Modifying the Order for Prehearing Statements 
(hereinafter, Briefing Schedule). In the Briefing Schedule, Respondent 
was given the opportunity to file a reply to the Government's 
allegation that he currently lacks state authority to handle controlled 
substances. Briefing Schedule, at 1. On April 1, 2022, Respondent filed 
his Response to Drug Enforcement Administration's Opposed Motion for 
Summary Disposition (hereinafter, Response). In his Response, 
Respondent argued that the Government's Motion for Summary Disposition 
should be denied because the suspension of Respondent's state medical 
license was based on ``unproven allegations--not facts'', and a hearing 
on the merits had not yet occurred. Response, at 2-3. Further, 
Respondent argued that he had had no truly meaningful opportunity to 
refute the Government's claims because the Government had based its 
Motion for Summary Disposition on ``unproven and unsubstantiated 
allegations.'' Id. at 3.
    On April 5, 2022, the Chief ALJ issued an Order Granting the 
Government's Motion for Summary Disposition and Recommended Rulings, 
Findings of Fact, Conclusions of Law, and Decision of the 
Administrative Law Judge (hereinafter, Recommended Decision or RD). In 
the RD, the Chief ALJ granted the Government's Motion for Summary 
Disposition, finding that there was no dispute of fact necessitating a 
hearing. RD, at 6-7. In concluding the RD, the Chief ALJ recommended 
that Respondent's DEA registration be revoked based on his lack of 
state authority. Id. at 7. By letter dated May 2, 2022, the Chief ALJ 
certified and transmitted the record to the Agency for final Agency 
action and advised that neither party filed exceptions.
    The Agency agrees with the Chief ALJ and issues this Decision and 
Order based on the entire record before the Agency. 21 CFR 1301.43(e). 
The Agency makes the following findings of fact.

Findings of Fact

Respondent's DEA Registration

    Respondent is the holder of DEA Certificate of Registration No. 
BA8201775 at the registered address of 16604 107th St, Orland Park, 
Illinois 60467. GX 1 (Certificate of Registration). Pursuant to this 
registration, Respondent is authorized to dispense controlled 
substances in schedules II through V as a practitioner. Id. 
Respondent's registration expires on June 30, 2024. Id.

The Status of Respondent's State License

    On March 18, 2022, the Illinois Department of Financial and 
Professional Regulation (hereinafter, the Department) issued an Order 
suspending both Respondent's Illinois medical license and Illinois 
controlled substance license after finding that ``Respondent's actions 
constitute[d] an immediate danger to the public.'' GX 5, at 4-5; see 
also id. at 21-22 (Affidavit of S.G.). Respondent was notified that the 
suspension was temporary and that a hearing would be held on the 
allegations against him that formed the basis of the suspension. Id. at 
1-2. According to the Department's Petition for Temporary Suspension, 
these allegations included, among other things, that Respondent engaged 
in inappropriate sexual conduct with patients of his private practice, 
that Respondent inappropriately prescribed controlled substances to 
patients of his private practice, that Respondent self-prescribed 
controlled substances, and that Respondent ordered controlled 
substances from a supplier for his own use without a prescription. Id. 
at 6-14; see also id. at 23-54 (Complaint).
    According to Illinois online records, of which the Agency takes 
official notice, Respondent's Illinois medical license is still 
suspended.\2\ Illinois Department of Financial and Professional 
Regulation License Lookup, https://online-dfpr.micropact.com/

[[Page 42746]]

lookup/licenselookup.aspx (last visited date of signature of this 
Order). Further, Illinois online records show that Respondent's 
Illinois controlled substance license is also suspended. Id.
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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, Respondent may dispute the Agency's finding 
by filing a properly supported motion for reconsideration of 
findings 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, the Agency finds that Respondent is not currently 
licensed to engage in the practice of medicine nor registered to 
dispense controlled substances in Illinois, the state in which he 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. Moreover, because ``the controlling question'' in a 
proceeding brought under 21 U.S.C. 824(a)(3) is whether the holder of a 
practitioner's registration ``is currently authorized to handle 
controlled substances in the [S]tate,'' Hooper, 76 FR at 71,371 
(quoting Anne Lazar Thorn, 62 FR 12,847, 12,848 (1997)), the Agency has 
also long held that revocation is warranted even where a practitioner 
is still challenging the underlying action. Bourne Pharmacy, 72 FR 
18,273, 18,274 (2007); Wingfield Drugs, 52 FR 27,070, 27,071 (1987). 
Thus, it is of no consequence that Respondent is still challenging the 
underlying action. What is consequential is the Agency's finding that 
Respondent is not currently authorized to dispense controlled 
substances in Illinois, the state in which he is registered with the 
DEA.
    Pursuant to the Illinois Controlled Substances Act, a 
``practitioner'' means ``a physician licensed to practice medicine in 
all its branches . . . or other person licensed, registered, or 
otherwise lawfully permitted by the United States or this State to 
distribute, dispense, conduct research with respect to, administer or 
use in teaching or chemical analysis, a controlled substance in the 
course of professional practice or research.'' 720 Ill. Comp. Stat. 
Ann. 570/102(kk) (West 2022). Further, the Illinois Controlled 
Substances Act requires that ``[e]very person who manufactures, 
distributes, or dispenses any controlled substances . . . must obtain a 
registration issued by the Department of Financial and Professional 
Regulation in accordance with its rules.'' Id. at 570/302(a). The 
Illinois Controlled Substances Act also authorizes the Department of 
Financial and Professional Regulation to discipline a practitioner 
holding a controlled substance license, stating that ``[a] registration 
under Section 303 to manufacture, distribute, or dispense a controlled 
substance . . . may be denied, refused renewal, suspended, or revoked 
by the Department of Financial and Professional Regulation.'' Id. at 
570/304(a).
    Here, the undisputed evidence in the record is that Respondent 
currently lacks authority to handle controlled substances in Illinois 
because both his Illinois medical license and his Illinois controlled 
substance license are suspended. As already discussed, a practitioner 
must hold a valid controlled substance license to dispense a controlled 
substance in Illinois. Thus, because Respondent lacks authority to 
handle controlled substances in Illinois, Respondent is not eligible to 
maintain a DEA registration. Accordingly, the Agency will order that 
Respondent's DEA registration be revoked.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in the 
Administrator by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of 
Registration No. BA8201775 issued to Faris Abusharif, 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 Faris Abusharif, M.D. 
to renew or modify this registration, as well as any other pending 
application of Faris Abusharif, M.D. for additional registration in 
Illinois. This Order is effective August 17, 2022.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
July 13, 2022, by Administrator Anne Milgram. That document with the 
original signature and date is maintained by DEA. For administrative 
purposes only, and in compliance with requirements of the Office of the 
Federal Register, the undersigned DEA Federal Register Liaison Officer 
has been authorized to sign and submit the document in electronic 
format for publication, as an official document of DEA. This 
administrative process in no way alters the legal effect of this 
document upon publication in the Federal Register.

Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2022-15279 Filed 7-15-22; 8:45 am]
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