[Federal Register Volume 60, Number 19 (Monday, January 30, 1995)]
[Notices]
[Pages 5699-5700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2190]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 94-60]
Diane E. Shafer, M.D.; Revocation of Registration Denial of
Application
On June 27, 1994 the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Diane E. Shafer, M.D. (Respondent). The Order to
Show Cause proposed to revoke Dr. Shafer's DEA Certificate of
Registration, AS7495624, issued to her in the Commonwealth of Kentucky,
and deny her July 29, 1993, application for registration as a
practitioner in the State of West Virginia.
The Order to Show Cause alleged that: In November 1987, the
Commonwealth of Kentucky, Board of Medical Licensure (Kentucky Board)
filed a complaint against Respondent charging her with giving false
testimony in a deposition, falsely billing insurance carriers, and
excessively and improperly prescribing controlled substances, and
although in 1990 the presiding officer recommended that the charges
against Respondent be dismissed, Respondent failed to disclose to the
Kentucky Board the fact that she married the presiding hearing officer
ten days prior to his recommendation; in May 1990, the Kentucky Board
brought a second complaint against the Respondent, alleging that she
gave false testimony in a sworn deposition, and as a result,
Respondent's Kentucky medical license was placed on probation for five
years, and she was fined $2,500; on July 16, 1992, the Kentucky Board
reinstated the 1987 charges against Respondent based in part on her
improper billing of the West Virginia workers' compensation fund,
ordered Respondent's medical license be placed on probation for five
years, fined her $2,500, and filed a complaint against Respondent for
unprofessional and unethical conduct based upon her failure to disclose
her relationship with the Kentucky Board's hearing officer and
providing him with money; on July 14, 1993, Respondent was convicted of
bribery in the Jefferson Circuit Court, sentenced to five years
imprisonment, and is currently appealing the conviction; on June 17,
1993, the Kentucky Board ordered the temporary suspension of
Respondent's medical license, and on April 23, 1994, the Kentucky Board
revoked her license to practice medicine; Respondent continued to
prescribe controlled substances to patients several months after her
Kentucky license was suspended; on June 12, 1993, Respondent untimely
filed an application for renewal of her DEA Certificate of Registration
that had expired on February 28, 1993, falsified her address, and
provided false information regarding her practice at a West Virginia
Hospital; and effective November 12, 1993, the West Virginia Board of
Medicine suspended Respondent's license to practice medicine.
Respondent, through counsel, requested a hearing on the issues
raised by the Order to Show Cause, and the matter was placed on the
docket of Administrative Law Judge Mary Ellen Bittner. On August 9,
1994, the Government filed a motion for summary disposition, alleging
that Respondent was not authorized to handle controlled substances in
Kentucky or West Virginia. On September 6, 1994, Respondent responded
to the Government's motion, and filed her motion for summary
disposition.
On September 16, 1994, in her opinion and recommended decision, the
administrative law judge granted the Government's motion for summary
disposition and recommended that Respondent's DEA Certificate of
Registration, AS7495624, issued to her in the Commonwealth of Kentucky,
be revoked and that her pending application for registration in West
Virginia be denied. On September 26, 1994, Respondent filed exceptions
to the opinion and recommended decision of the administrative law
judge. On October 18, 1994, the administrative law judge transmitted
the record to the Deputy Administrator. The Deputy Administrator has
carefully considered the entire record in this matter and, pursuant to
21 CFR 1316.67, hereby issues his final order in this matter based upon
findings of fact and conclusions of law as hereinafter set forth.
The administrative law judge found that the Government's motion for
summary disposition alleged that Respondent is not authorized to handle
controlled substances in Kentucky or West Virginia. The Government's
motion was based on the April 23, 1994 revocation of Respondent's
medical license in Kentucky and the November 12, 1993 suspension of her
medical license in West Virginia. The administrative law judge also
found that Respondent's response to the Government's motion did not
deny that she was without authority to handle controlled substances in
either Kentucky or West Virginia, but simply alleged that Respondent's
West Virginia medical license was temporarily suspended, and that she
was licensed to practice medicine in Pennsylvania. The administrative
law judge concurred with the Government's motion regarding Respondent's
lack of state authorization to handle controlled substances in Kentucky
and West Virginia.
The Drug Enforcement Administration cannot register or maintain the
registration of a practitioner who is not duly authorized to handle
controlled substances in the state in which he conducts his business.
21 U.S.C. 802(21), 823(f) and 824(a)(3). This prerequisite has been
consistently upheld. See James H. Nickens, M.D., 57 FR 59847 (1992);
Elliott Monroe, M.D., 57 FR 23246 (1992); Bobby Watts, M.D., 53 FR
11919 (1988).
The administrative law judge properly granted the Government's
motion for summary disposition. It is well-settled that when no
question of fact is involved, or when the facts are agreed upon, a
plenary, adversary administrative proceeding involving evidence and
cross-examination of witnesses is not obligatory. The rationale is that
Congress does not intend administrative agencies to perform meaningless
tasks. Philip E. Kirk, M.D., 48 FR 32887 (1983), aff'd sub nom Kirk v.
Mullen, 749 F.2d 297 (6th Cir. 1984); Alfred Tennyson Smurthwaite,
N.D., 43 FR 11873 (1978); see also, NLRB v. International Association
of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, 549 F.2d 634
(9th Cir. 1977); United States v. Consolidated Mines and Smelting Co.,
Ltd., 455 F.d 432, 453 (9th Cir. 1971).
Consequently, the administrative law judge recommended that
Respondent's DEA Certificate of Registration, AS7495624, issued to her
in the Commonwealth of Kentucky, be revoked and that her pending
application for registration in West Virginia be denied. In her
exceptions to the opinion and recommended decision of the
administrative law judge, the Respondent argued, inter alia, that
matters alleged in the Government's Order to Show Cause, and restated
in the administrative law judge's recommended decision were in error or
on appeal. Respondent urged that the grounds alleged in her exceptions
be given consideration, and that she be [[Page 5700]] allowed to
present evidence in this regard.
The Respondent acknowledged in her exceptions that she is without
authority to handle controlled substances in Kentucky and West
Virginia, thus supporting the Government's contention. State
authorization to handle controlled substances where Respondent is
registered with DEA or seeks registration with DEA is the only relevant
issue in this proceeding. As outlined above, DEA cannot register the
Respondent to handle controlled substances without such authority.
Therefore, the Deputy Administrator has not considered Respondent's
other arguments as set forth in her exceptions. The Deputy
Administrator hereby adopts the opinion and recommended decision of the
administrative law judge in its entirety.
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in him by 21 U.S.C.
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA
Certificate of Registration, AS7495624, previously issued to Diane E.
Shafer, M.D., be, and it hereby is, revoked, and that her pending
application for registration in West Virginia be denied. This order is
effective March 1, 1995.
Dated: January 24, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-2190 Filed 1-27-95; 8:45 am]
BILLING CODE 4410-09-M
