[Federal Register Volume 89, Number 125 (Friday, June 28, 2024)]
[Notices]
[Pages 54059-54061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14207]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 24-18]


Abdul Naushad, M.D.; Decision and Order

I. Introduction

    On November 8, 2023, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Abdul Naushad, M.D. 
(Respondent) of Poplar Bluff, Missouri. OSC, at 1. The OSC proposes the 
revocation of Respondent's DEA Certificate of Registration 
(registration) No. BN7853864 on the ground that he has ``no state 
authority to handle controlled substances.'' \1\ Id. (citing 21 U.S.C. 
824(a)(3)).
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    \1\ ``A jury found . . . [Respondent] guilty of health care 
fraud in 2022. . . . He is currently serving a prison sentence in 
connection with the crime. Since he cannot practice medicine before 
his release, he let his Missouri controlled substance license expire 
on August 31, 2023, and he let his . . . [registration] expire on 
October 31, 2023.'' Respondent's Memorandum of Law in Opposition to 
the Government's Motion for Summary Disposition and to the Order to 
Show Cause dated December 18, 2023 (Respondent Opposition), at 2.
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    By letter dated November 30, 2023, Respondent requested a hearing. 
The Government requested summary disposition in its ``Submission of 
Evidence and Motion for Summary Disposition'' dated December 7, 2023 
(Government Summary Disposition Motion). Respondent opposed summary 
disposition arguing, among other things, that Respondent's registration 
expired before the OSC was filed, Respondent ``has not attempted to 
renew'' it, and, ``[s]ince there is nothing to revoke,'' summary 
disposition should be denied and the OSC should be dismissed. 
(Respondent Opposition), at 1-6. The Chief Administrative Law Judge, 
John J. Mulrooney II, denied the Government's Motion, ``sua sponte'' 
granted summary disposition for Respondent, and recommended that the 
OSC ``be dismissed based on the Agency's lack of jurisdiction over the 
registration.'' Order Denying the Government's Motion for Summary 
Disposition, Granting a Summary Disposition on Behalf of the 
Respondent, and Recommending Dismissal of the Order to Show Cause dated 
January 4, 2024 (RD), at 6.
    After considering the entirety of the record, the Agency revokes 
Respondent's registration because of his undisputed loss of authority 
to dispense controlled substances in Missouri, the state where he is 
registered. 21 U.S.C. 824(a)(3); infra section III; Respondent 
Opposition, at 1; Government Motion, at 4; RD, at 2.

II. The Agency's Jurisdiction 2
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    \2\ RD, at 6 (``[I]t is herein recommended that the Order to 
Show Cause dated November 8, 2023, be dismissed based on the 
Agency's lack of jurisdiction over the registration.'').
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    To effectuate the goals of combating the international and 
interstate traffic in illicit drugs, conquering drug abuse, and 
controlling the legitimate and illegitimate traffic in controlled 
substances, ``Congress devised a closed regulatory system making it 
unlawful to . . . dispense . . . any controlled substance except in a 
manner authorized by the C[ontrolled] S[ubstances] A[ct]'' (CSA). 
Gonzales v. Raich, 545 U.S. 1, 12-13 (2005). Among the responsibilities 
and prerogatives that the CSA assigns to the Attorney General are to 
register practitioners to dispense controlled substances, and to de-
register them. E.g., 21 U.S.C. 823(g)(1) and 824(a). The Attorney 
General delegated these responsibilities to the DEA Administrator. 28 
CFR 0.100.
    The CSA provides that the Administrator ``shall register 
practitioners . . . to dispense . . . controlled substances . . . 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). In 21 U.S.C. 824(a), the CSA also provides that the 
Administrator may suspend or revoke a registration for several reasons, 
including upon a finding that the registrant ``has had his State 
license or registration suspended, revoked, or denied by competent 
State authority and is no longer authorized by State law to engage in 
the . . . dispensing of controlled substances.'' 21 U.S.C. 824(a)(3). 
The CSA does not place a time restriction or constraint on the 
Administrator's administrative law enforcement investigations, 
findings, or actions regarding a registrant that may culminate in the 
suspension or revocation of the registrant's registration, nor is there 
anything in the record transmitted to the Agency that posits that it 
does.\3\ Id.
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    \3\ Respondent argues that, as Respondent's registration 
``expired before the DEA filed an Order to Show Cause, seeking to 
revoke,'' the ``Tribunal should deny the [revocation] request . . . 
[s]ince there is nothing to revoke.'' Respondent Opposition, at 1. 
The RD relies heavily on 21 CFR 1306.36(i) which concerns 
registrants' options for renewing their DEA registrations. The terms 
of subsection (i) do not resolve this matter.

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[[Page 54060]]

    The CSA's law enforcement provisions, such as 21 U.S.C. 824(a), 
including the publication of an Agency Decision and Order in the 
Federal Register, 21 U.S.C. 877, record and memorialize a registrant's, 
not the associated registration's, history under, and compliance with, 
the CSA, as well as afford the registrant the opportunity to seek 
judicial review of that Agency Decision and Order, among other 
things.\4\ Put another way, one way that the Administrator carries out 
the CSA is by investigating and administratively adjudicating a 
registrant's CSA-relevant actions and inactions. When the registrant's 
actions or inactions call for it, the sanction may be suspension or 
revocation of the registrant's registration. 21 U.S.C. 824(a). While 
the sanction involves the registration, the sanction is levied on the 
registrant and remains in the record throughout the rest of the 
registrant-Agency relationship, regardless of whether that relationship 
is either continuous or intermittent. There is good reason for this: 
otherwise, a registrant who has committed misconduct could thwart law 
enforcement and avoid accountability simply by not renewing his 
registration.
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    \4\ The brief of Respondent and the RD posit that the 
Administrator is precluded from carrying out the CSA 
responsibilities that the Attorney General delegated to her because 
the OSC was issued after the expiration date assigned to 
Respondent's registration. See, e.g., RD, at 3 (``The issue in this 
case and on these facts is whether the Government's OSC legally 
warrants a sanction against the . . . [registration] that the 
Respondent previously held where the charging document was issued 
after the . . . [registration's] expiration (it does not).''). This 
position views the Administrator's CSA responsibilities as 
``sanction[ing]'' a registration as opposed to investigating and 
administratively adjudicating a registrant's CSA-relevant actions 
and inactions pursuant to 21 U.S.C. 824(a).
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    The particular instant record facts, such as the date that the OSC 
was issued and the expiration date assigned to Respondent's 
registration, do not distinguish this matter from the Agency's 
constitutional and federal common law analyses in Jeffrey D. Olsen, 
M.D.\5\ 84 FR 68474, 68475-479 (2019); contra Respondent's Opposition, 
at 4 and RD, at 5-6 (arguing that Jeffrey D. Olsen, M.D. should be 
distinguished from the instant case). In that watershed Decision 
revoking a respondent's registration, the Agency rejected the 
Government's argument that the matter was ``moot'' and should be 
dismissed because the registrant's registration had expired during the 
pendency of the proceedings and before a final Decision and Order had 
been issued. Instead, the Agency adjudicated the matter to finality 
following its analysis of the constitutional origins of administrative 
agencies, applicable legal authority, and sound law enforcement policy. 
Among other things, the Agency discussed differences between Article 
III courts and adjudications that are not bound by Article III ``case 
or controversy'' limitations, such as DEA administrative agency 
adjudications.\6\ Id. at 84 FR at 68478-79. Those analyses continue to 
apply.
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    \5\ In Jeffrey D. Olsen, M.D., the doctor did not renew his 
registration during the Agency's adjudication process. 84 FR 68474-
75. The Agency's published Decision is dated just shy of one year 
after the expiration date assigned to the doctor's registration, 
rejects the suggestion of mootness, and adjudicates the matter to 
finality. Id. at 68474, 68489.
    \6\ The Agency recognized, in Jeffrey D. Olsen, M.D., that it 
has the discretion to adopt so-called ``case or controversy'' 
limitations. 84 FR 68478-79.
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    As with Jeffrey D. Olsen, M.D., the Agency finds that adjudicating 
this matter to finality supports future interactions between the Agency 
and Respondent, should they occur, informs current and prospective 
members of the registrant community about the Agency's expectations of 
them, provides continuing education to all DEA personnel, helps 
coordinate law enforcement efforts, and informs stakeholders, such as 
legislators and the public, about the Agency's work and allows them to 
provide feedback to the Agency, thereby helping shape how the Agency 
carries out its CSA responsibilities. Id. at 68,475-79; Steven 
Kotsonis, M.D., 85 FR 85667, 85668-69 (2020). Specifically for 
Respondent, his filings state that ``he cannot practice medicine before 
his release,'' indicating that he may resume the practice of medicine 
after his release. Respondent Opposition, at 1.
    Accordingly, the Agency finds that the benefits of adjudicating 
this matter to finality include memorializing for the Agency's records 
the circumstances surrounding Respondent's loss of state authority, 
Respondent's conviction and incarceration, and Respondent's 
transparency in his communications with the Agency. Additionally, as 
this investigation and its adjudication to finality are not 
particularly complex, it is also an efficient and effective use of 
Agency resources to issue a final Decision and Order to inform 
Respondent and the current and prospective members of the registrant 
community about the significant legal principles it implicates. Jeffrey 
D. Olsen, M.D., 84 FR 68475-79; Steven Kotsonis, M.D., 85 FR 85668-69.

III. Findings of Fact

    The Agency finds uncontroverted record evidence that registration 
number BN7853864 is assigned to Respondent at his registered address in 
Poplar Bluff, Missouri. Respondent Opposition, at 1; GX 1, at 1. The 
Agency further finds uncontroverted record evidence that Respondent's 
Missouri controlled substance registration expired on August 31, 2023. 
Respondent Opposition, at 1.
    According to Missouri online records, of which the Agency takes 
official notice, Respondent's Missouri controlled substance 
registration remains expired.\7\ Primary Source Verification for 
Missouri Controlled Substance Registrations, https://healthapps.dhss.mo.gov/mohworxsearch/RegistrantSearch.aspx (last 
visited date of signature of this Order).\8\
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    \7\ Further, the Missouri ``non-active'' medical license look-up 
shows the status of Respondent's Missouri Medical Physician & 
Surgeon license (2002024819) as ``lapsed.'' Missouri Division of 
Professional Registration, https://pr.mo.gov/licensee-search-nonactive.asp (last visited date of signature of this Order).
    \8\ 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 uncontroverted record evidence that 
Respondent is not authorized to handle controlled substances in 
Missouri, the state in which he is registered with DEA, and has not 
been since August 31, 2023. Id.

IV. 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 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 Agency has also long held that 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

[[Page 54061]]

registration.\9\ 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).
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    \9\ 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). Because 
Congress has clearly mandated that a practitioner possess state 
authority in order to be deemed a practitioner under the CSA, the 
Agency 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 
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, M.D., 43 
FR 27617.
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    According to Missouri statute, ``dispense'' means ``to deliver a 
narcotic or controlled dangerous drug 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 such delivery.'' Mo. Rev. Stat. 
section 195.010 (12) (2018). Under the same Missouri statute, 
``practitioner'' means a ``physician . . . or other person licensed, 
registered or otherwise permitted by this state to distribute, 
dispense, conduct research with respect to or administer . . . a 
controlled substance in the course of professional practice . . . in 
this state.'' Id. section 195.010 (39). Further, in Missouri, ``[n]o 
person shall . . . dispense . . . any controlled substance . . . 
without having first obtained a registration issued by the department 
of health and senior services.'' Id. section 195.030 (2); see also id. 
section 195.030 (3) (``Persons registered by the department of health 
and senior services pursuant to this chapter to . . . dispense . . . 
controlled substances are authorized to . . . dispense such substances 
. . . to the extent authorized by their registration and in conformity 
with other provisions of this chapter and chapter 579.'').
    Here, the undisputed record evidence is that, as of August 31, 
2023, and continuing to the present, Respondent is not registered in 
Missouri to dispense controlled substances. Supra section III. As 
explained above, a physician in Missouri must be registered with the 
state to dispense controlled substances. Supra. Thus, because 
Respondent lacks authority to dispense controlled substances in 
Missouri, Respondent is not eligible to maintain his DEA registration 
addressed in that State. Supra; see also RD, at 3. Accordingly, the 
Agency orders that Respondent's 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. 
BN7853864 issued to Abdul Naushad, 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 Abdul Naushad, M.D., to renew 
or modify this registration, as well as any other pending application 
of Abdul Naushad, M.D., for additional registration in Missouri. This 
Order is effective July 29, 2024.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
June 21, 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. 2024-14207 Filed 6-27-24; 8:45 am]
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