2018-06870. Mehdi Nikparvarfard, M.D.; Decision and Order

On October 20, 2017, the Acting Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Mehdi Nikparvarfard, M.D. (Registrant), of Philadelphia, Pennsylvania. The Show Cause Order proposed the revocation of Registrant's Certificate of Registration No. BN8871231 on the ground that he has “no state authority to handle controlled substances.” Order to Show Cause, Government Exhibit (GX) 2, at 1 (citing 21 U.S.C. 824(a)(3)). For the same reason, the Order also proposed the denial of any of Registrant's “applications for renewal or modification of such registration and any applications for any other DEA registrations.” Id.

With respect to the Agency's jurisdiction, the Show Cause Order alleged that Registrant is registered as a practitioner in schedules II through V, pursuant to DEA Certificate of Registration No. BN8871231, at the address of Advanced Urgent Care, 5058 City Ave., Philadelphia, Pennsylvania. Id. The Order also alleged that this registration does not expire until October 31, 2019. Id.

As substantive grounds for the proceeding, the Show Cause Order alleged that on September 15, 2017, the Commonwealth of Pennsylvania State Board of Medicine “issued an Order of Temporary Suspension and Notice of Hearing in which it suspended [Registrant's] license to practice” medicine. Id. The Order alleged that, as a result, he is “currently without authority to practice medicine or handle controlled substances in the Commonwealth of Pennsylvania, the [S]tate in which [he is] registered with the DEA.” Id. at 1-2. Based on his “lack of authority to handle controlled substances in the Commonwealth of Pennsylvania,” the Order asserted that “DEA must revoke” his registration. Id. at 2 (citing 21 U.S.C. 824(a)(3); 21 CFR 1301.37(b)).

The Show Cause Order notified Registrant of his right to request a hearing on the allegations or to submit a written statement in lieu of a hearing, the procedure for electing either option, and the consequence for failing to elect either option. Id. (citing 21 CFR 1301.43). The Show Cause Order also notified Registrant of his right to submit a corrective action plan. Id. at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).

The Government states that on October 27, 2017, “personnel from DEA's Philadelphia Field Division personally served the [Show Cause] Order on Registrant at the Philadelphia Federal Detention Center where he was incarcerated.” Government's Request for Final Agency Action (RFFA), at 2 (citing GX 5). Specifically, a DEA Diversion Investigator from that Field Division states that she, along with a Task Force Officer, “presented the [Order] to Dr. Nikparvar-Fard” and that he “took the [Order].” GX5, at 1.

On December 21, 2018, the Government forwarded its Request for Final Agency Action and an evidentiary record to my Office. Therein, the Government represents that it has not received a hearing request and that Registrant “has not otherwise corresponded or communicated with DEA regarding the Order served on him.” RFFA, at 2. Based on the Government's representation and the record, I find that more than 30 days have passed since the Order to Show Cause was served on Registrant, and he has neither requested a hearing nor submitted a written statement in lieu of a hearing. See 21 CFR 1301.43(d). Accordingly, I find that Registrant has waived his right to a hearing or to submit a written statement and issue this Decision and Order based on relevant evidence submitted by the Government. I make the following findings.

Findings of Fact

Registrant is a physician who is registered as a practitioner in schedules II-V pursuant to Certificate of Registration No. BN8871231, at the registered address of Advanced Urgent Care, 5058 City Ave., Philadelphia, Pennsylvania. See GX 1 (DEA Certification of Registration Status), at 1. Although not alleged in the Show Cause Order, I also find that Registrant is the holder of DATA-Waiver Identification Number XN8871231, see id. at 1-2,^[1] which authorizes Registrant to dispense or prescribe schedule III-V narcotic controlled substances which “have been approved by the Food and Drug Administration . . . specifically for use in maintenance or detoxification treatment” for up to 275 patients. 21 CFR 1301.28(a) & (b)(1)(iii). His registration does not expire until October 31, 2019. Id.

The record also shows, and I so find, that on September 22, 2016, Registrant “submitted a new online application for a DEA registration bearing an address of 721 Bethleh[e]m Pike, Montgomeryville,” Pennsylvania, as a practitioner in schedules II-V. I find that this new application remains pending. See id. at 2.

On September 15, 2017, the Commonwealth of Pennsylvania's State Board of Medicine issued an “Order of Temporary Suspension and Notice Hearing” to Registrant that “TEMPORARILY SUSPENDED” his “license to practice as a medical physician and surgeon” in Pennsylvania. GX 3, at 1, 2. The Board also directed Registrant to “surrender his wall certificate(s), biennial renewal certificate(s) and wallet card(s)” to state authorities upon service of the Order. Id. at 2. On October 6, 2017, the Board issued an “Order Granting Continuance and Continuing Suspension” stating that Registrant had “agree[d] to toll the 180-day limit for the immediate and temporary suspension of [his] license . . . and [his] license shall remain SUSPENDED until a preliminary hearing is rescheduled or upon further order of the State Board of Medicine.” GX 4, at 1. In light of the passage of time since the effective date of the Order, I have queried the Pennsylvania Medical Board's website regarding the status of Registrant's medical license, and I take official notice ^[2] that Registrant's Pennsylvania medical license remains suspended as of the date of this decision. Based on the above, I find that Registrant does not currently have authority under the laws of Pennsylvania to dispense controlled substances.

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 Title 21, “upon a finding that the registrant . . . has had his State license . . . 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, DEA has 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 registration. See, e.g., James L. Hooper, 76 FR 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); see also Frederick Marsh Blanton, 43 FR 27616 (1978) (“State authorization to dispense or otherwise handle controlled substances is a prerequisite to the issuance and maintenance of a Federal controlled substances registration.”).

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 [s]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 Act, 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 engages in professional practice. See, e.g., Calvin Ramsey, 76 FR 20034, 20036 (2011); Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988); Blanton, 43 FR 27616 (1978).

Moreover, because “the controlling question” in a proceeding brought under 21 U.S.C. 824(a)(3) is whether the holder of a DEA 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 has lost his state authority by virtue of the State's use of summary process and the State has yet to provide a hearing to challenge the suspension. Bourne Pharmacy, 72 FR 18273, 18274 (2007); Wingfield Drugs, 52 FR 27070, 27071 (1987). Thus, it is of no consequence that the Pennsylvania Medical Board has suspended Registrant's state license and that Registrant may prevail in a future state hearing. What is consequential is the fact that Registrant is not currently authorized to dispense controlled substances in Pennsylvania, the State in which he is registered. I will therefore revoke his DEA registration, deny any pending application to modify his registration, or any pending application for any other registration in Pennsylvania.

Order

Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration No. BN8871231 and DATA-Waiver Identification Number XN8871231, issued to Mehdi Nikparvarfard, M.D., be, and it hereby is, revoked. I further order that any pending application of Mehdi Nikparvarfard to renew or modify the above registration, or any pending application for any other registration in the Commonwealth of Pennsylvania, be, and it hereby is, denied. This Order is effective immediately.^[3]

Dated: March 26, 2018.

Robert W. Patterson,

Acting Administrator.

Footnotes

1.  The DEA Certification of Registration Status confirms that Registrant has DATA-Waiver Authority, but it does not include the identification number for that authority. However, I take official notice that the Agency's registration records show that Registrant's DATA-Waiver Identification Number is XN8871231. Under the Administrative Procedure Act (APA), an agency “may take official notice of facts at any stage in a proceeding—even in the final decision.” U.S. Dept. of Justice, Attorney General's Manual on the Administrative Procedure Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and DEA's regulations, Registrant is “entitled on timely request to an opportunity to show to the contrary.” 5 U.S.C. 556(e); see also 21 CFR 1316.59(e).

2.  See supra footnote 1.

3.  For the same reasons that led the Pennsylvania Board of Medicine to suspend Registrant's license, I find that the public interest necessitates that this Order be effective immediately. 21 CFR 1316.67.