[Federal Register Volume 62, Number 52 (Tuesday, March 18, 1997)]
[Notices]
[Pages 12847-12848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6794]
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DEPARTMENT OF JUSTICE
[Docket No. 96-31]
Anne Lazar Thorn, M.D. Revocation of Registration
On April 15, 1996, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA) issued an
Order to Show Cause to Anne Lazar Thorn, M.D. (Respondent), of
Lafayette, Louisiana, notifying her of an opportunity to show cause as
to why DEA should not revoke her DEA Certificate of Registration,
AT6512152, pursuant to 21 U.S.C. 824(a)(3), and deny any pending
applications for renewal of such registration as a practitioner
pursuant to 21 U.S.C. 823(f), for reason that effective October 18,
1993, the Louisiana State Board of Medical Examiners indefinitely
suspended her license to practice medicine and as a result, she is not
currently authorized to handle controlled substances in the State of
Louisiana.
By letter dated April 29, 1996, Respondent, acting pro se, filed a
timely request for a hearing, and the matter was docketed before
Administrative Law Judge Mary Ellen Bittner. On May 3, 1996, Judge
Bittner issued an Order for Prehearing Statements. On May 24, 1996, in
lieu of filing such a statement, the Government filed a Motion for
Summary Disposition and to Stay Proceedings, asserting that
``Respondent is without state authorization to handle controlled
substances at this time.'' Attached to the motion was a copy of the
Louisiana State Board of Medical Examiner's (Board) decision dated
October 18, 1993, indefinitely suspending Respondent's license to
practice medicine and a copy of a letter from the Board notifying DEA
that Respondent's license to practice medicine in the State of
Louisiana was suspended.
On June 3, 1996, the Administrative Law Judge received a letter
from an attorney indicating that he had been retained to represent
Respondent, and on June 21, 1996, counsel for Respondent filed a
Memorandum in Opposition to Government's Motion for Summary Disposition
and Motion to Stay Proceedings. Respondent did not deny that she is
currently without authority to handle controlled substances in the
State of Louisiana. However, she argued that 21 U.S.C. 824(a) provides
for the Deputy Administrator to use his discretion in determining
whether to revoke or suspend a registration because of lack of state
authority to handle controlled substances and that a hearing is
necessary to determine what action should be taken against Respondent's
registration. Respondent further argues that this matter is not yet
ripe for determination since Respondent has not ``had the opportunity
to present her evidence with supporting testimony concerning her
current fitness to practice medicine, or the steps which she is taking
to seek the reinstatement of her license to practice medicine in the
State of Louisiana.''
On July 25, 1996, Judge Bittner issued her Opinion and Recommended
Decision, finding that Respondent is not currently authorized to handle
controlled substances in the State of Louisiana; that she is bound by
DEA's interpretation of the Controlled Substances Act that, pursuant to
21 U.S.C. 823(f) and 802(21), a petitioner may not hold a DEA
registration without state authority to handle controlled substances;
that since no material question of fact is involved, a hearing is not
necessary; and that while the statue provides for the revocation or
suspension, revocation is appropriate in this case since there is no
indication that Respondent's state license will be reinstated any time
soon. Accordingly, Judge Bittner granted the Government's Motion for
Summary Disposition and recommended that the Respondent's DEA
Certificate of Registration be revoked.
On August 8, 1996, Respondent filed with the Administrative Law
Judge a Motion for Reconsideration and/or to Alter or Amend Judgment
(Motion for Reconsideration). Respondent argued that the Board
suspended her license indefinitely, rather than revoking it entirely,
and that it would remain suspended until further order of the Board.
Respondent asserted that the only evidence before the Administrative
Law Judge in rendering her recommended decision was the order of the
Board dated October 18, 1993 and that ``a great deal has transpired
with respect to Respondent's license to practice medicine and the steps
she has taken to have her license reinstated.'' Respondent argued that
she should be given an opportunity for a hearing regarding her DEA
registration in order to outline the steps she has taken to have her
state license reinstated, and that the evidence which would have been
presented at a hearing would have aided the Administrative Law Judge in
deciding whether to recommend revocation or suspension of Respondent's
registration. Respondent contended that ``the decision to permanently
revoke a physician's registration to distribute drugs is a serious
sanction, and is one which should not be rendered without considering
all of the evidence in a particular case.''
Therefore, Respondent requested that the Administrative Law Judge
reconsider her decision to deny Respondent the opportunity for a
hearing, or in the alternative, that the Administrative Law Judge alter
her recommendation from revocation to
[[Page 12848]]
suspension of Respondent's registration. On August 14, 1996, Judge
Bittner issued a Ruling denying Respondent's Motion for Reconsideration
as lacking in merit. Neither party filed exceptions to her Opinion and
Recommended Decision, and on August 26, 1996, Judge Bittner transmitted
the record of these proceedings to the Deputy Administrator.
The Acting Deputy Administrator has considered the record in its
entirety, and pursuant to 21 C.F.R. 1316.67, hereby issues his final
order based upon findings of fact and conclusions of law as hereinafter
set forth. The Acting Deputy Administrator adopts in full the Opinion
and Recommended Decision of the Administrative Law Judge.
DEA has consistently interpreted the Controlled Substances Act to
preclude a practitioner from holding a DEA registration if the
practitioner is without authority to handle controlled substances in
the state in which he/she practices. See 21 U.S.C. 823(f) (authorizing
the Attorney General to register a practitioner to dispense controlled
substances only if the applicant is authorized to dispense controlled
substances under the laws of the state in which he or she practices);
and 21 U.S.C. 802(21) (defining a practitioner as one authorized by the
United States or the state in which he or she practices to handle
controlled substances in the course of professional practice or
research). This prerequisite has been consistently upheld. See Rita M.
Coleman, M.D., 61 FR 35,816 (1996); Dominick A. Ricci, M.D., 58 FR
51,104 (1993); Roy E. Hardman, M.D., 57 FR 49,195 (1992); and Bobby
Watts, M.D., 53 FR 11,919 (1988).
The Acting Deputy Administrator finds that the controlling question
is not whether a practitioner's license to practice medicine in the
state is suspended or revoked; rather, it is whether the Respondent is
currently authorized to handle controlled substances in the state. In
the instant case, it is undisputed that Respondent is not currently
authorized to handle controlled substances in the State of Louisiana.
Therefore, as Judge Bittner notes, Respondent ``is not currently
entitled to a DEA registration.''
The Acting Deputy Administrator concludes that Judge Bittner
properly granted the Government's Motion for Summary Disposition. Here,
the parties did not dispute the fact that Respondent was unauthorized
to handle controlled substances in Louisiana. Therefore, it is well-
settled that when no question of material fact is involved, a plenary,
adversary administrative proceeding involving evidence and cross-
examination of witnesses is not obligatory. See Philip E. Kirk, M.D.,
48 FR 32,887 (1983), aff'd sub nom. Kirk versus Mullen, 749 F.2d 279
(6th Cir. 1984); Alfred Tennyson Smurthwaite, M.D., 43 FR 11,873
(1978); see also NLRB versus International Association of Bridge,
Structural and Ornamental Ironworks, AFL-CIO, 549 F.2d 634 (9th Cir.
1977); United States versus Consolidated Mines & Smelting Co., 44 F.2d
432 (9th Cir. 1971).
In her Motion for Reconsideration, Respondent argued that the
permanent revocation of a registration is a serious sanction and
``should not be rendered without considering all of the evidence in a
particular case.'' The Acting Deputy Administrator notes that the
revocation of Respondent's registration is not permanent. Respondent
may reapply for a new DEA registration when her state privileges to
handle controlled substances are reinstated. Further, the Acting Deputy
Administrator recognizes that he has the discretionary authority to
either revoke or suspend a DEA registration. However, given the
indefinite nature of the suspension of Respondent's state license to
practice medicine, the Acting Deputy Administrator agrees with Judge
Bittner that revocation is appropriate in this case.
Accordingly, the Acting Deputy Administrator of the Drug
Enforcement Administration, pursuant to the authority vested in him by
21 U.S.C. 823 and 824, and 28 C.F.R. 0.100(b) and 0.104, hereby orders
that the DEA Certificate of Registration AT6512152, issued to Anne
Lazar Thorn, M.D., be, and it hereby is, revoked, and that any pending
applications for the renewal of such registration be, and they hereby
are, denied. This order is effective April 17, 1997.
Dated: March 4, 1997.
James S. Milford,
Acting Deputy Administrator.
[FR Doc. 97-6794 Filed 3-17-97; 8:45 am]
BILLING CODE 4410-09-M
