04-5480. Stephen J. Graham, M.D. Revocation of Registration

On August 11, 2003, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Stephen J. Graham, M.D. (Dr. Graham) of Ketchum, Idaho, notifying him of an opportunity to show cause as to why DEA should not revoke his DEA Certificate of Registration BG0868971 under 21 U.S.C. 824(a) and deny any pending application for renewal or modification of that registration. As a basis for revocation, the Order to show Cause alleged that Dr. Graham is not currently authorized to practice medicine or handle controlled substances in Idaho, his state of registration and practice.

The Order to Show Cause further alleged that Dr. Graham's continued registration was inconsistent with the public interest as that term is used in 21 U.S.C. 823(f). This was based on Dr. Graham's employment by Prescibus, an internet company selling controlled substances and other drugs over the Internet. During the period Dr. Graham worked for Prescibus he issued at least four or five thousand prescriptions over the internet, the majority of which were for controlled substances and not issued in the usual course of professional medical practice. He was alleged to have issued controlled substance prescriptions to individuals with whom he did not have a prior doctor-patient relationship, failed to conduct physical examinations of those customers and did not create or maintain records on them. The only information usually reviewed prior to issuing prescriptions was a questionnaire completed by the customer. Dr. Graham would then have a brief telephone conversation with the customer and did not consult with the customer's primary care physician. Undercover investigators were alleged to have obtained controlled substances prescriptions from Dr. Graham under these circumstances on three occasions. The order notified Dr. Graham that should no request for a hearing be filed within 30 days, his hearing right would be deemed waived.

The Order to Show Cause was sent by certified mail to Dr. Graham at his address of record at 180 First Street West, No. 21, Ketchum, Idaho 83340 and to P.O. Box 83340, Ketchum, Idaho 83340-5860. According to the return receipts, the order was accepted on Dr. Graham's behalf on or around August 21 and August 22, 2003. DEA has not received a request for hearing or any other reply from Dr. Graham or anyone purporting to represent him in this matter.

Therefore, the Acting 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. Graham is deemed to have waived his hearing right. See Samuel S. Jackson, D.D.S., 67 FR 65145 (2002); David W. Linder, 67 FR 12579 (2002). After considering material from the investigative file, the Acting Deputy Administrator now enters her final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.

The Acting Deputy Administrator finds that Dr. Graham possesses DEA Certificate of Registration BG0868971. The Acting Deputy Administrator further finds that on or about May 27, 2003, the Idaho Board of Medicine (Board) was scheduled to initiate a Formal Hearing into the internet prescribing practices of Dr. Graham, who held Idaho Medical License Number M7224 and Idaho Controlled Substances License Number CS7265. On June 6, 2003, in lieu of proceeding with the Formal Hearing, the Board and Dr. Graham entered into a Stipulation and Order in which Dr. Graham agreed to surrender his Idaho medical and controlled substance licenses and to not practice medicine or write prescriptions in Idaho for a minimum of five years.

The investigative file contains no evidence that the Stipulation and Order has been modified or lifted or that Dr. Graham's medical license has been reinstated or returned to him. Therefore, the Acting Deputy Administrator finds that Dr. Graham is not currently authorized to practice medicine in the State of Idaho. As a result, coupled with surrender of his controlled substances license, it is reasonable to infer he is also without authorization to handle controlled substances in that state.

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 James F. Graves, M.D., 67 FR 70968 (2002); Dominick A. Ricci, M.D., 58 FR 51104 (1993); Bobby Watts, M.D. 53 FR 11919 (1998).

Here, it is clear that Dr. Graham's medical license has been surrendered and he is currently not licensed to handle controlled substances in the State of Idaho, the state where he maintains a DEA controlled substance registration. Therefore, Dr. Graham is not entitled to a DEA registration in that state. Because Dr. Graham is not entitled to a DEA registration in Idaho due to his lack of state authorization to handle controlled substances, the Acting Deputy Administrator concludes it is unnecessary to address whether or not his DEA registration should be revoked based upon the public interest grounds asserted in the Order to Show Cause. See Samuel Silas Jackson, D.D.S., 67 FR 65145 (2002); Nathaniel-Aikins-Afful, M.D., 62 FR 16871 (1997); Sam F. Moore, D.V.M., 58 FR 14428 (1993).

Accordingly, the Acting Deputy Administrator of the Drug Enforcement Administration, pursuant to the authority vested in her by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA Certificate of Registration BG086971, issued to Stephen J. Graham, M.D., be, and it hereby is, revoked. The Acting Deputy Administrator further orders that any pending applications for renewal of such registration be, and they hereby are, denied. This order is effective April 12, 2004.

Dated: February 20, 2004.

Michele M. Leonhart,

Acting Deputy Administratorr.