02-28660. Fredesminda Yabut-Baluyut, M.D. Revocation of Registration

On February 25, 2002, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Fredesminda Yabut-Baluyut, M.D. (Dr. Yabut-Baluyut) of Lake Forest, California, notifying her of an opportunity to show cause as to why DEA should not revoke her DEA Certificate of Registration, AY2422640 under 21 U.S.C. 824(a), and deny any pending applications for renewal or modification of that registration. As a basis for revocation, the Order to Show Cause alleged that Dr. Yabut-Baluyut is not currently authorized to handle controlled substances in California, the state in which she practices. The order also notified Dr. Yabut-Baluyut that should no request for a hearing be filed within 30 days, her hearing right would be deemed waived.

The Order to Show Cause was sent by certified mail to Dr. Yabut-Baluyut at her registered location in Lake Forest, California. DEA received a signed receipt indicating that the Order to Show Cause was received on Dr. Yabut-Baluyut's behalf on March 5, 2002. DEA has not received a request for hearing or any other reply from Dr. Yabut-Baluyut or anyone purporting to represent her in this matter. Therefore, the Deputy Administrator, finding that (1) 30 days have passed since the receipt of the Order to Show Cause, and (2) no request for a hearing having been received, concludes that Dr. Yabut-Baluyut is deemed to have waived her hearing right. After considering material from the investigative file in this matter, the Deputy Administrator now enters his final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.

The Deputy Administrator finds that Dr. Yabut-Baluyut possessed DEA Certificate of Registration AY2422640 and that registration expired on May 31, 2001. The registration remains valid, however, based upon renewal applications submitted on April 9, 2001, and August 20, 2001.

The Deputy Administrator further finds that an investigation by DEA revealed that from March 1997 through May 1998, Dr. Yabut-Baluyut made 59 separate purchases totaling 12 million tablets of 60mg. pseudoephedrine from Hadro Drugs (formerly Darby Drugs) of Westbury, New York. Four of these purchases were in excess of $10,000 in which Dr. Yabut-Baluyut used multiple cashier's checks purchased from her bank. Dr. Yabut-Baluyut then sold these products to an individual who picked up pseudoephedrine products from Dr. Yabut-Baluyut's home and/or residence.

On September 4, 1998, Dr. Yabut-Baluyut was questioned by DEA investigators regarding the sale of the above products. Dr. Yabut-Baluyut informed investigators that she sold pseudoephedrine tablets to an individual by the name of “John.” Dr. Yabut-Baluyut stated falsely to DEA investigators that she did not know how to contact the individual. During a subsequent interview with a DEA Special Agent, Dr. Yabut-Baluyut reiterated that she did not know the identity of the person to whom she sold pseudoephedrine. After further questioning, however, Dr. Yabut-Baluyut informed DEA that the individual's name was “John Smith.” Dr. Yabut-Baluyut later admitted that she sold pseudoephedrine to “John Smith” because she needed the money. DEA subsequently learned that Dr. Yabut-Baluyut sold the above referenced pseudoephedrine products to an individual by the name of Joseph Hasrouty. DEA also learned that Dr. Yabut-Baluyut never provided medical treatment to Mr. Hasrouty, nor was he Dr. Yabut-Baluyut's patient.

Pseudoephedrine (DEA chemical code 8112) is a legitimately imported and distributed product used in the production of nasal decongestants. Pseudoephedrine is also a precursor chemical used in the illicit manufacture of methamphetamine or amphetamine, both Schedule II controlled substances. Dr. Yabut-Baluyut knew, or should have known that the person to whom she sold pseudoephedrine purchased the product for purposes of manufacturing methamphetamine. 21 U.S.C. 843(a)(7). In addition, Dr. Yabut-Baluyut failed to maintain a record of these regulated transactions as required by 21 U.S.C. 830(a).

On January 19, 1999, Dr. Yabut-Baluyut was arrested pursuant to a federal arrest warrant issued from the United States District Court, Central District of California on a charge of knowingly possessing and distributing approximately 12 million tablets of pseudoephedrine, and having reasonable cause to believe that such chemical would be used to manufacture a controlled substance in violation of 21 U.S.C. 841. On June 15, 2000, Dr. Yabut-Baluyut was indicted on nine felony counts related to conspiracy, and unlawful possession of a listed chemical in violation of 21 U.S.C. 841 and 846. On June 27, 2001, a superseding indictment was issued charging Dr. Yabut-Baluyut with thirteen felony counts related to conspiracy, unlawful possession of a listed chemical, wrongful distribution of a listed chemical and failure to maintain required records, in violation of 21 U.S.C. 841 and 846. On October 16, 2001, Dr. Yabut-Baluyut was found guilty on nine counts of the superseding indictment. Therefore, Dr. Yabut-Baluyut has been convicted of a felony related to controlled substances. 21 U.S.C. 824(a)(2).

On December 9, 1999, the California Medical Board (Board) issued an order restricting Dr. Yabut-Baluyut's physician's and surgeon's certificate (medical license) pending a hearing before the Board, and further ordered that Dr. Yabut-Baluyut be restricted from prescribing, administering, dispensing or ordering any controlled substances. On December 22, 1999, the Board brought an Accusation against Dr. Yabut-Baluyut's medical license in the State of California based in part upon Dr. Yabut-Baluyut's purchase and sale of pseudoephedrine for no legitimate medical reason. The Board further alleged that Dr. Yabut-Baluyut excessively prescribed dangerous drugs and controlled substances, and that Dr. Yabut-Baluyut prescribed dangerous drugs and/or controlled substances, without a good faith prior examination or medical indication. On June 2, 2000, the Board issued a Default Decision, in which it ordered the revocation of Dr. Yabut-Baluyut's medical license. The decision was to take effect on July 3, 2000. However, on June 22, 2000, the Board issued an Order Vacating and Setting Aside Disciplinary Decision with respect to the revocation of Dr. Yabut-Baluyut's medical license. However, the Board maintained the suspension of Dr. Yabut-Baluyut's license with respect to her handling of controlled substances, and there is nothing in the investigative file that shows that her privileges have been reinstated. Therefore, Dr. Yabut-Baluyut currently is not authorized to handle controlled substances in the State of California. 21 U.S.C. 824(a)(3).

DEA does not have statutory authority under the Controlled Substances Act to issue or maintain a registration if the applicant or registrant is without state authority to handle controlled substances in the state in which he conducts business. See 21 U.S.C. 802(21), 823(f) and 824(a)(3). This prerequisite has been consistently upheld. See Muttaiya Darmarajeh, M.D., 66 FR 52936 (2001); Dominick A. Ricci, M.D., 58 FR 51104 (1993); Bobby Watts, M.D. 53 FR 11919 (1988).

Here, it is clear that Dr. Yabut-Baluyut is not licensed to handle controlled substances in the State of California, where she is registered with DEA. Therefore, she is not entitled to a DEA registration in that state. Moreover, Dr. Yabut-Baluyut has been convicted of a felony relating to listed chemicals and has committed such acts as would render her registration inconsistent with the public interest.

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 AY2422640, issued to Fredesminda Yabut-Baluyut, M.D. be, and it hereby is, revoked. The Deputy Administrator further orders that any pending applications for renewal or modification of such registration be, and they hereby are, denied. This order is effective December 12, 2002.

Dated: October 28, 2002.

John B. Brown, III,

Deputy Administrator.