2017-01690. Gentry Reeves Dunlop, M.D.; Decision and Order

On September 20, 2016, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Gentry R. Dunlop, M.D. (Registrant), of Aurora, Colorado. The Show Cause Order proposed the revocation of Registrant's DEA Certificate of Registration on the ground that he does not have authority to dispense controlled substances in Colorado, the State in which he is registered with the DEA. Order to Show Cause, at 1 (citing 21 U.S.C. §§ 823(f) and 824(a)(3)).

As grounds for the action, the Show Cause Order alleged that Registrant is the holder of Certificate of Registration BD0874378, pursuant to which he is authorized to dispense controlled substances in schedules II through V as a practitioner, at the registered address of 4745 South Helena Way, Aurora, Colorado. Id. The Order alleged that Registrant's registration does not expire until June 30, 2019. Id.

The Show Cause Order also alleged that effective on July 19, 2016, the Colorado Medical Board issued an order “which suspended [Registrant's] authority to practice medicine” and that Registrant is “without authority to [dispense] controlled substances in Colorado, the [S]tate in which [he is] registered with the” Agency. Id. The Order then asserted that as a consequence of the Board's action, “DEA must revoke your [registration] based upon your lack of authority to handle controlled substances in the State of Colorado.” Id. (citing 21 U.S.C. §§ 802(21), 823(f) and 824(a)(3)).

The Show Cause Order also 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. at 2 (citing 21 CFR 1301.43). In addition, the Show Cause Order notified Registrant of his right to submit a Corrective Action Plan. Id. at 2-3.

On or about September 21, 2016, a Diversion Investigator (DI) with the Denver Division Office mailed the Show Cause Order to Registrant via Certified Mail addressed to him at his registered address of 4745 South Helena Way, Aurora, Colorado. GX 3, at 1-2 (Declaration of DI). According to the DI, using the Postal Service's tracking system, she determined that the Show Cause Order was delivered to Registrant's address on September 28, 2016; the DI also averred that on or about September 30, 2016, she received back the return receipt card. Id. at 2.

On November 7, 2016, the Government forwarded its Request for Final Agency Action (RFAA) and an evidentiary record to my Office. Therein, the Government represents that it “has not received a request for hearing or any other reply from Registrant.” RFAA, at 2.

Based on the Government's representation that more than 30 days have now passed since the date of service of the Show Cause Order and that Registrant has not submitted a request for a hearing or any other reply, I find that Registrant has waived his right to a hearing or to submit a written statement in lieu of a hearing. 21 CFR 1301.43(d). I therefore issue this Decision and Final Order based on relevant evidence contained in the record submitted by the Government. 21 CFR 1301.43(d) & (e). I make the following findings of fact. Id. Sec. 1301.43(e).

Findings of Fact

Registrant is the holder of DEA Certificate of Registration BD0874378, pursuant to which he is authorized to dispense controlled substances in Schedules II through V as a practitioner, at the registered address of 4745 S. Helena Way, Aurora, Colorado. GX 2. His registration does not expire until June 30, 2019. Id.

Registrant is also the holder of a license to practice medicine (DR-28729) issued by the Colorado Medical Board (the Board). GX 4, at 1. However, on July 19, 2016, the Board issued Registrant an Order of Suspension effective the same day which “shall remain in effect until resolution of this matter.” ^[1] Id. at 2. As Registrant did not respond to the Show Cause Order, let alone submit any evidence to show that his state license has been reinstated, I find that he does not possess authority to dispense controlled substances under the laws of Colorado, the State in which he is registered with the Agency.

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.” Moreover, 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) (collecting cases), 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 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 practices medicine. 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); see also Frederick Marsh 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 Colorado Medical Board has employed summary process in suspending Registrant's state license. What is consequential is that Registrant is no longer currently authorized to dispense controlled substances in the State in which he is registered. I will therefore order that his registration be revoked.

Order

Pursuant to the authority vested in me by 21 U.S.C. § 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration BD0874378, issued to Gentry Reeves Dunlop, M.D., be, and it hereby is, revoked. Pursuant to the authority vested in me by 21 U.S.C. § 823(f), I further order that any pending application of Gentry Reeves Dunlop, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effective immediately.^[2]

Date: January 17, 2017.

Chuck Rosenberg,

Acting Administrator.

Footnotes

1.  As the basis for its order, the Board found that Registrant signed several hundred certifications recommending the medical use of marijuana and authorizing the possession of increased plant counts, and that these certifications were “for conditions other than cancer.” GX 4, at 1. The Board further found that “signing the . . . certifications . . . in the absence of cancer diagnosis and treatment falls below generally accepted standards of medical practice and lacks medical necessity” and was “unprofessional conduct” in violation of the Colorado Revised Statute § 12-36-117(l)(p) and (mm). Id. Based on its review of information relevant to three investigations pertaining to Registrant, the Board found “reasonable grounds to believe that the public health, safety or welfare imperatively requires emergency action and/or that [Registrant] was guilty of a deliberate and willful violation of law.” Id. at 1-2.

2.  For the same reasons that led the Colorado Board to summarily suspend Registrant's medical license, I find that the public interest necessitates that this Order be effective immediately. 21 CFR 1316.67.