2011-22091. Dale J. Bingham, P.A.; Revocation of Registration

On February 4, 2011, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Dale J. Bingham, P.A. (Registrant), of Ash Fork, Arizona. The Show Cause Order proposed the revocation of Registrant's DEA Certificate of Registration MB1048746, which authorizes him to dispense controlled substances in schedules II through V, as a mid-level practitioner, on the ground that Registrant had entered into a consent agreement with the Arizona Regulatory Board of Physician Assistants, pursuant to which he no longer has “authority to handle controlled substances in * * * Arizona, the [S]tate in which [he is] registered with DEA.” Show Cause Order at 1 (citing 21 U.S.C. 824(a)(3)). The Show Cause Order also notified Registrant of his right to either request a hearing on the allegations or to submit a written statement in lieu of a hearing, the procedures for doing either, and the consequences if he failed to do either. Id. at 2 (citing 21 CFR 1301.43(a), (c)-(e)).

The Government initially attempted to serve Registrant with the Order to Show Cause by certified mail addressed to him at his registered location. However, this mailing was returned unclaimed with the notations: “No City Delivery” and “Requires PO Box Number.” GX 3. On March 8, 2011, the Government served the Show Cause Order on Registrant by certified mail addressed to him at an address he had previously provided to the Agency for receiving mail.^[1] GX 4. The Investigative Record includes a signed return receipt card establishing service. Id.

Since the date of service of the Show Cause Order, neither Registrant, nor anyone purporting to represent him, has either requested a hearing or submitted a written statement in lieu thereof. Because more than thirty days have now passed since service of the Show Cause Order, I find that Registrant has waived his right to either request a hearing or to submit a written statement. I therefore issue this Decision and Final Order based on relevant evidence contained in the Investigative Record submitted by the Government.

Findings

Registrant is the holder of DEA Certificate of Registration MB1048746, which authorizes him to dispense controlled substances in schedules II through V as a mid-level practitioner, at the registered address of 112 Ash Park Drive, Ash Fork, AZ. GX 1. Registrant's registration does not expire until July 31, 2012. Id.

Registrant is also the holder of a license issued by the Arizona Regulatory Board of Physician Assistants which formerly authorized him to perform health care tasks in Arizona. GX 6, at 1. However, according to a Consent Agreement which Registrant entered into with the Board on March 26, 2010, Registrant “has a medical condition that may limit his ability to safely engage in the performance of health care tasks.” ^[2] Id. Accordingly, the Board ordered that Registrant's practice be “limited in that he shall not perform health care tasks in the State of Arizona and is prohibited from prescribing any form of treatment including prescription medication until [he] applies to the Board and receives permission to do so.” Id. at 2. I therefore find that Registrant is without authority to dispense controlled substances under the laws of the State of Arizona, the State in which he holds his DEA registration.

Discussion

The Controlled Substances Act (CSA) grants the Attorney General authority to revoke a registration “upon a finding that the registrant * * * has had his State license or registration suspended [or] revoked * * * and is no longer authorized by State law to engage in the * * * distribution [or] dispensing of controlled substances.” 21 U.S.C. 824(a)(3). Moreover, consistent with the CSA's definition of the term “practitioner,” DEA has long held that a practitioner must be currently authorized to handle controlled substances in “the jurisdiction in which he practices” in order to maintain a DEA registration. See 21 U.S.C. 802(21) (“[t]he term `practitioner' means 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”). See also id. § 823(f) (“The Attorney General shall register practitioners * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.”).

As these provisions make plain, possessing authority under state law to dispense controlled substances is an essential condition for holding a DEA registration. See David W. Wang, 72 FR 54297, 54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988). Here, while Registrant retains an Arizona P.A. license, the evidence establishes that he is no longer authorized under his license to dispense controlled substances. Because Registrant no longer satisfies this requirement, he is not entitled to maintain his registration. Accordingly, I will order that Registrant's registration be revoked and any pending application be denied.

Order

Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a)(3), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration MB1048746, issued to Dale J. Bingham, P.A., be, and it hereby is, revoked. I further order that any application of Dale H. Bingham, P.A., to renew or modify his registration, be denied. This Order is effective September 29, 2011.

Dated: August 17, 2011.

Michele M. Leonhart,

Administrator.

Footnotes

1.  In its request for final agency action, the Government also stated that it mailed the Show Cause Order to Registrant at his last known address.

2.  The Board noted, however, that “[t]here has been no finding of unprofessional conduct against” Registrant. GX 6, at 2.