2012-12119. Segun M. Rasaki, M.D.; Decision and Order

On January 27, 2012, Administrative Law Judge (ALJ) Timothy D. Wing issued the attached recommended decision. Neither party filed exceptions to the decision. Having reviewed the entire record, I have decided to adopt the ALJ's rulings, findings of fact, conclusions of law, and recommended Order.

To make clear, DEA's longstanding rule that a practitioner may not hold a registration if he lacks authority under state law to dispense controlled substances and that the loss of such authority subjects a practitioner's registration to revocation is not based solely on 21 U.S.C. 824(a)(3), which is a grant of authority to either suspend or revoke a registration “upon a finding” that a registrant “has had his State license or registration suspended, revoked, or denied by competent State authority and is no longer authorized by State law to engage in the * * * dispensing of controlled substances.” As explained in numerous cases, DEA's rule derives primarily from two other provisions of the CSA, 21 U.S.C. 802(21), which defines the term “practitioner,” and 21 U.S.C. 823(f), which sets forth the requirements for obtaining a registration as a practitioner.

More specifically, the CSA defines “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). Consistent with this definition, Congress, in setting the requirements for obtaining a practitioner's registration, provided 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). Accordingly, because one cannot obtain a practitioner's registration unless one holds authority under state law to dispense controlled substances, and because where a registered practitioner's state authority has been revoked or suspended, the practitioner no longer meets the statutory definition of a practitioner, DEA has repeatedly held that the possession of authority to dispense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 both obtaining and maintaining a practitioner's registration. See ALJ at 4 (citing cases).^[1] So too, “revocation is warranted even where a practitioner's state authority has been summarily suspended and the State has yet to provide the practitioner with a hearing to challenge the State's action at which he may ultimately prevail.” Kamal Tiwari, M. D., 76 FR 71604, 71606 (2011); see also Bourne Pharmacy, Inc., 72 FR 18273, 18274 (2007); Anne Lazar Thorn, 62 FR 12847 (1997). Accordingly, I adopt the ALJ's recommended order.

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 BR9738595, issued to Segun M. Rasaki, M.D., be, and it hereby is, revoked. I further order that any pending application of Segun M. Rasaki, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effective immediately.^[2]

Dated: May 4, 2012.

Michele M. Leonhart,

Administrator.

Paul E. Soeffing, Esq., for the Government

Brian J. Lutz, Esq., for Respondent

Recommended Ruling, Findings of Fact, Conclusions of Law and Decision of the Administrative Law Judge

Timothy D. Wing, Administrative Law Judge. This proceeding is an adjudication governed by the Administrative Procedure Act, 5 U.S.C. § 551 et seq., to determine whether a practitioner's Certificate of Registration (COR) with the Drug Enforcement Administration (DEA, Government or Agency) should be revoked. Without this registration, Segun M. Rasaki, M.D. (Respondent) would be unable to lawfully possess, prescribe, dispense or otherwise handle controlled substances.

I. Procedural Posture

The Administrator, DEA, issued an Order to Show Cause and Immediate Suspension of Registration (OSC/IS) relating to Certificate of Registration (COR) BR9738595, served on Respondent on December 21, 2011. On January 19, 2012, Respondent, through counsel, filed a request for hearing with the DEA Office of Administrative Law Judges (OALJ) in the above-captioned matter.

On January 20, 2012, I issued an Order for Prehearing Statements, ordering that the parties file their respective prehearing statements no later than January 27, 2012.

On January 24, 2012, the Government filed a Motion for Summary Disposition on the grounds that Respondent is not duly authorized to handle controlled substances in the State of Indiana, the jurisdiction in which he is registered with the Drug Enforcement Administration. (Mot. Summ. Disp. at 1.) The Government attached a letter issued by the Director of the Medical Licensing Board of Indiana stating that Respondent's state controlled substance registration has been placed on suspended status pursuant to Ind. Code § 35-48-3-5(e). That section provides as follows:

(e) If the Drug Enforcement Administration terminates, denies, suspends or revokes a federal registration for the manufacture, distribution, or dispensing of controlled substances, a registration issued by the board under this chapter is automatically suspended.

Because the State of Indiana automatically suspended Respondent's state controlled substance registration based solely on the OSC/IS issued by DEA, I ordered that “counsel for each party shall file a written statement addressing the due process implications of granting summary disposition in this matter, specifically indicating whether the Medical Licensing Board of Indiana has provided or will provide Respondent with a hearing.” (Memo & Order at 2 (citing Barry M. Schultz, M.D., 76 Fed. Reg. 78,695, 78,696-97 (DEA 2011) (discussing a respondent's right to hearing and due process))).

On January 26, 2012, the Government filed a written statement addressing Respondent's right to due process before the Board. On January 27, 2012, Respondent filed a response to the Government's motion for summary disposition, in which he also addressed his due process rights.

II. The Parties' Contentions

A. The Government

In support of its Motion for Summary Disposition, the Government asserts that on January 3, 2012, the Medical Licensing Board of Indiana (the Board) issued a letter to Respondent notifying him that his state controlled substance registration was suspended as of December 22, 2011. (Gov't Mot. Summ. Disp. at 1.) The Government contends that such state authority is a necessary condition for maintaining a DEA COR and, therefore, asks that I grant its motion and forward the matter to the Administrator. (Id. at 2-3.) In support of its motion, the Government cites Agency precedent and attaches the January 3, 2012 letter issued by the Board.

The Government asserts that Respondent's due process rights are not violated, noting that Respondent “can avail himself of a hearing at the state level . . . pursuant to Ind. Code § 35-48-3-5(f).” (Gov't Written Stmt. Ordered by ALJ at 2.) In support of this assertion, the Government cites Agency precedent and state law, and attaches Respondent's request for hearing before the Board.

B. Respondent

Respondent does not dispute that his state controlled substance registration is currently suspended, but rather concedes that it was suspended “as a result of the DEA's immediate suspension” of his DEA registration. (Resp't Resp. to Gov't Mot. Summ. Disp. at 1.) Respondent concedes that “[a]fter speaking with the Indiana Professional Licensing Agency and the Indiana Board of Pharmacy[, Respondent] will be afforded a hearing on the reinstatement of his state Controlled Substances Registration.” (Id.) Nonetheless, Respondent contends that if the Government's motion for summary disposition is granted, he will not be afforded any due process in the present case. Thus, Respondent requests that his DEA hearing be postponed “to allow for the state administrative process to be completed as this is the only way that the respondent will be afforded due process to address the merits of his suspension.” (Id.)

III. Discussion

At issue is whether Respondent may maintain his DEA COR given that Indiana, the State in which Respondent maintains his DEA COR, has suspended Respondent's state controlled substance registration, and whether Respondent has been or will be afforded adequate due process.

A. Respondent's State Authority

Under 21 U.S.C. § 824(a)(3), a practitioner's loss of state authority to engage in the practice of medicine and to handle controlled substances is grounds to revoke a practitioner's registration. Accordingly, this Agency has consistently held that a person may not hold a DEA registration if he is without appropriate authority under the laws of the state in which he does business. See Scott Sandarg, D.M.D., 74 Fed. Reg. 17,528 (DEA 2009); David W. Wang, M.D., 72 Fed. Reg. 54,297 (DEA 2007); Sheran Arden Yeates, M.D., 71 Fed. Reg. 39,130 (DEA 2006); Dominick A. Ricci, M.D., 58 Fed. Reg. 51,104 (DEA 1993); Bobby Watts M.D., 53 Fed. Reg. 11,919 (DEA 1988).

Summary disposition in a DEA revocation case is warranted even if the period of suspension of a respondent's state medical license is temporary, or even if there is the potential for reinstatement of state authority because “revocation is also appropriate when a state license had been suspended, but with the possibility of future reinstatement.” Stuart A. Bergman, M.D., 70 Fed. Reg. 33,193 (DEA 2005); Roger A. Rodriguez, M.D., 70 Fed. Reg. 33,206 (DEA 2005).

It is well-settled that when no question of fact is involved, or when the material facts are agreed upon, a plenary, adversarial administrative proceeding is not required, under the rationale that Congress does not intend administrative agencies to perform meaningless tasks. See Layfe Robert Anthony, M.D., 67 FR 35,582 (DEA 2002); Michael G. Dolin, M.D., 65 Fed. Reg. 5661 (DEA 2000); see also Philip E. Kirk, M.D., 48 Fed. Reg. 32,887 (DEA 1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984). Accord Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 605 (1st Cir. 1994).

In the instant case, the Government asserts, and Respondent concedes, that Respondent's Indiana controlled substance registration is suspended. This allegation is confirmed by the January 3, 2012 letter from the Board to Respondent. I therefore find there is no genuine dispute as to any material fact, and that substantial evidence shows that Respondent is presently without state authority to handle controlled substances in Illinois.

B. Respondent's Right to Due Process

“[W]here the state has revoked a registrant's license to handle controlled substances, summary revocation of the registrant's DEA registration is only appropriate if the registrant will be afforded a state hearing on the merits of the state revocation or suspension.” Schultz, 76 Fed. Reg. at 78,697; cf. Odette Louise Campbell, M.D., No. 09-62 (DEA May 11, 2010) (order remanding for further proceedings where it did not appear that state law provided registrant with opportunity to challenge merits of state suspension based solely upon DEA immediate suspension).

In the present case, the Board suspended Respondent's state controlled substance registration based upon Ind. Code § 35-48-3-5(e), which states:

(e) If the Drug Enforcement Administration terminates, denies, suspends or revokes a federal registration for the manufacture, distribution, or dispensing of controlled substances, a registration issued by the board under this chapter is automatically suspended.

Section 35-48-3-5(f) further provides, however, that “[t]he board may reinstate a registration that has been suspended under subsection (e), after a hearing, if the board is satisfied that the applicant is able to manufacture, distribute, or dispense controlled substances with reasonable skill and safety to the public * * *.” Thus, Respondent is entitled to a hearing to challenge the Board's automatic suspension of his state controlled substance registration. Furthermore, not only has Respondent requested such a hearing, but he concedes that the Board has confirmed that he will be afforded such a hearing.

Because Respondent is afforded adequate due process under state law, and because “DEA does not have statutory authority under the Controlled Substances Act to maintain a registration if the registrant is without state authority to handle controlled substances in the state in which he practices,” Sheran Arden Yeates, M.D., 71 Fed. Reg. 39,130, 39,131 (DEA 2006), I conclude that summary disposition is appropriate. See Kamal Tiwari, M.D., 76 Fed. Reg. 71,604 (DEA 2011) (summarily revoking the respondents' DEA registrations for lack of state authority where the state summarily suspended the registrants' state controlled substance registrations based upon DEA's immediate suspension, noting that the registrants “are entitled to a hearing to challenge the underlying allegations before the State board”). It is therefore

ORDERED that the hearing in this case, scheduled to commence on February 21, 2012, is hereby CANCELLED; and it is further

ORDERED that all proceedings before the undersigned are STAYED pending the Agency's issuance of a final order.

Recommended Decision

I grant the Government's Motion for Summary Disposition and recommend that Respondent's DEA COR BR9738595 be revoked and any pending applications for renewal or modification be denied.

Dated: January 27, 2012

Timothy D. Wing,

Administrative Law Judge.

Footnotes

1.  This citation is to the slip opinion as issued by the ALJ.

2.  For the same reasons which led me to order the Immediate Suspension of Respondent's registration, I conclude that the public interest necessitates that this Order be effective immediately. See 21 CFR 1316.67.