[Federal Register Volume 89, Number 67 (Friday, April 5, 2024)]
[Notices]
[Pages 24036-24037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07236]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 23-63]


Ralph Reach, M.D.; Decision And Order

    On August 30, 2023, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Ralph Reach, M.D. 
(Respondent). OSC, at 1, 4. The OSC proposed the revocation of 
Respondent's DEA Certificates of Registration Nos. FR0673548 and 
FR0004589 at the registered addresses of 142 Mall Church Road, Cedar 
Bluff, Virginia 24609 and 102 North Broadway Street, Johnson City, 
Tennessee 37601, respectively. Id. at 1. The OSC alleged that 
Respondent's DEA registrations should be revoked because Respondent is 
``without authority to prescribe, administer, dispense, or otherwise 
handle controlled substances in the State of Tennessee and the 
Commonwealth of Virginia, the jurisdictions in which [he is] registered 
with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
    On September 14, 2023, Respondent requested a hearing. On September 
27, 2023, the Government filed a Motion for Summary Disposition, which 
Respondent opposed. On November 7, 2023, Administrative Law Judge 
Teresa A. Wallbaum (the ALJ) granted the Government's Motion for 
Summary Disposition and recommended the revocation of Respondent's 
registration, finding that because Respondent lacks state authority to 
handle controlled substances in Tennessee and Virginia, the states in 
which he is registered with DEA, ``[t]here is no genuine issue of 
material fact in this case.'' 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 (RD), 
at 7. On November 9, 2023, Respondent filed a document titled ``Notice 
of Appeal'' \1\ in response to the RD.
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    \1\ The document blankly asserts that that Respondent appeals 
the RD without explaining the basis therefor or otherwise 
identifying his exceptions to the RD pursuant to 21 CFR 1316.66. See 
Respondent's Notice of Appeal.
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    Having reviewed the entire record, the Agency adopts and hereby 
incorporates by reference the entirety of the ALJ's rulings, findings 
of fact, conclusions of law, and recommended sanction as found in the 
RD and summarizes and expands upon portions thereof herein.

Findings of Fact

    Effective June 30, 2023, the Tennessee Department of Health revoked 
Respondent's Tennessee medical license. RD, at 5.\2\ Further, effective 
July 6, 2023, the Virginia Department of Health Professions suspended 
Respondent's Virginia medical license. Id.\3\
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    \2\ See also Government's Notice of Filing of Evidence and 
Motion for Summary Disposition, Exhibit (GX) 3, at 1.
    \3\ See also GX 1, at 1-2.
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    According to Tennessee and Virginia online records, of which the 
Agency takes official notice, Respondent's Tennessee medical license 
remains revoked and Respondent's Virginia medical license remains 
suspended.\4\

[[Page 24037]]

Tennessee Department of Health License Verification, https://apps.health.tn.gov/Licensure/default.aspx (last visited date of 
signature of this Order); Virginia Department of Health Professions 
License Lookup, https://dhp.virginiainteractive.org/lookup (last 
visited date of signature of this Order).
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    \4\ 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 practice medicine in either Tennessee or Virginia, the 
states in which he is registered with the DEA.\5\
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    \5\ Because Respondent's DEA registrations at issue here are 
based on his Tennessee and Virginia medical licenses, which have 
undeniably been revoked and suspended, it is of no consequence that 
he may maintain a valid medical license and separate DEA 
registration based in North Carolina, see Respondent's Opposition, 
at 4. RD, at 7; Omar Garcia, M.D., 87 FR 32186, 32187 n.6 (2022).
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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 (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 \6\ for obtaining and 
maintaining a practitioner's registration. See, e.g., James L. Hooper, 
M.D., 76 FR 71371, 71372 (2011), pet. for rev. denied, 481 F. App'x 826 
(4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 
(1978).\7\
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    \6\ As such, the Agency finds Respondent's arguments regarding 
the discretionary nature of 21 U.S.C. 824(a)(3), see Respondent's 
Response in Opposition to Government's Motion for Summary 
Disposition (Respondent's Opposition), at 4, to be unavailing. RD, 
at 6; see also Bhanoo Sharma, M.D., 87 FR 41355, 41356 n.4 (2022).
    \7\ 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(g)(1) (this 
section, formerly Sec.  823(f), was redesignated as part of the 
Medical Marijuana and Cannabidiol Research Expansion Act, Pub. L. 
117-215, 136 Stat. 2257 (2022)). 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. 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 71371 (quoting Anne Lazar Thorn, 62 FR 
12847, 12848 (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 18273, 18274 (2007); 
Wingfield Drugs, 52 FR 27070, 27071 (1987). Thus, it is of no 
consequence that Respondent is still challenging the underlying 
action here, see Respondent's Opposition, at 4. RD, at 6-7. What is 
consequential is the Agency's finding that Respondent is not 
currently authorized to dispense controlled substances in either 
Tennessee or Virginia, the states in which he is registered with the 
DEA. Adley Dasilva, P.A., 87 FR 69341, 69341 n.2 (2022).
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    According to Tennessee statute, ``dispense'' means ``to deliver a 
controlled substance to an ultimate user or research subject by or 
pursuant to the lawful order of a practitioner, including the 
prescribing, administering, packaging, labeling, or compounding 
necessary to prepare the substance for that delivery''; a 
``practitioner'' means a ``physician . . . or other person licensed, 
registered or otherwise permitted to distribute, dispense, conduct 
research with respect to or to administer a controlled substance in the 
course of professional practice or research in [the] state.'' Tenn. 
Code Ann. Sec.  39-17-402(7), (23)(A) (West 2024). Similarly, under 
Virginia statute, ``dispense'' means ``to deliver a drug to an ultimate 
user or research subject by or pursuant to the lawful order of a 
practitioner, including the prescribing and administering, packaging, 
labeling, or compounding necessary to prepare the substance for that 
delivery''; a ``practitioner'' means a ``physician . . . or other 
person licensed, registered, or otherwise permitted to distribute, 
dispense, prescribe and administer, or conduct research with respect to 
a controlled substance in the course of professional practice or 
research in the [state].'' Va. Code Ann. Sec.  54.1-3401 (West 2023).
    Here, the undisputed evidence in the record is that Respondent 
lacks authority to practice medicine in both Tennessee and Virginia. As 
discussed above, in both Tennessee and Virginia, a physician must be a 
licensed practitioner to dispense a controlled substance. Thus, because 
Respondent lacks authority to practice medicine in both Tennessee and 
Virginia and, therefore is not authorized to handle controlled 
substances in either Tennessee or Virginia, Respondent is not eligible 
to maintain a DEA registration in those states. RD, at 6-7. 
Accordingly, the Agency will order the Respondent's DEA registrations 
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 Certificates of Registration Nos. 
FR0673548 and FR0004589 issued to Ralph Reach, M.D. Further, pursuant 
to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 
823(g)(1), I hereby deny any pending applications of Ralph Reach, M.D., 
to renew or modify these registrations, as well as any other pending 
application of Ralph Reach, M.D., for additional registration in 
Tennessee or Virginia. This Order is effective May 6, 2024.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
April 1, 2024, 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. 2024-07236 Filed 4-4-24; 8:45 am]
BILLING CODE 4410-09-P