[Federal Register Volume 59, Number 149 (Thursday, August 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19057]
[[Page Unknown]]
[Federal Register: August 4, 1994]
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DEPARTMENT OF JUSTICE
[Docket No. 94-8]
James H. Sanders, M.D.; Revocation of Registration
On October 12, 1993, the Deputy Assistant Administrator, (then-
Director), Office of Diversion Control, Drug Enforcement Administration
(DEA), issued an Order to Show Cause to James H. Sanders, M.D.
(Respondent), of Barbourville, Kentucky. The Order to Show Cause
proposed to revoke Dr. Sanders' DEA Certificate of Registration,
AS6935918, and deny any pending applications for renewal of such
registration. The Order to Show Cause alleged that Respondent was not
currently authorized to handle controlled substances in the
Commonwealth of Kentucky and that Respondent's continued registration
would be inconsistent with the public interest, as that term is used in
21 U.S.C. 823(f) and 824(a)(4).
The Order to Show Cause alleged that: Since 1986, DEA received
complaints regarding Respondent's excessive prescribing of controlled
substances to individuals for no legitimate medical reason; between
December 1991 and September 1992, DEA conducted an undercover
investigation during which Respondent prescribed controlled substances
to undercover agents upon request without performing any physical
examination or taking a medical history; during the investigation,
Respondent was observed prescribing controlled substances to other
individuals in the same manner as he issued prescriptions to the
undercover agents; in October 1992, DEA conducted a prescription survey
of five pharmacies in Barbourville, Kentucky, which revealed that
between April 1, 1992 and October 29, 1992, Respondent prescribed
229,090 dosage units of controlled substances; and on December 9, 1992,
the Commonwealth of Kentucky, State Board of Medical Licensure (Board)
seized 43 patient records from Respondent's office.
The Order to Show Cause further alleged that on January 21, 1993,
the Board issued an Order of Temporary Suspension suspending
Respondent's license to practice medicine in the Commonwealth of
Kentucky. On March 2, 1993, the Board lifted the suspension of
Respondent's medical license, however, his controlled substances
privileges remained suspended. As a result, Respondent is no longer
authorized by state law to handle controlled substances.
Respondent, through counsel, filed a request for a hearing on the
issues raised by the order to Show Cause, and the matter was docketed
before Administrative Law Judge Mary Ellen Bittner. On November 19,
1993, the Government filed a motion for summary disposition, which was
accompanied by a letter from the General Counsel to the Board, dated
October 20, 1993, as to the status of Respondent's controlled substance
privileges in Kentucky. The Government argued that since Respondent is
not currently authorized in the Commonwealth of Kentucky to handle
controlled substances, DEA could not continue to maintain his
registration.
On December 14, 1993, Respondent filed a response to the
Government's motion, asserting, in substance, that Respondent's state
license had been temporarily restricted to limit his ability to
prescribe controlled substances and that on February 22, 1994, the
Board would reach a final decision regarding Respondent's privileges to
practice medicine in Kentucky.
On December 20, 1993, the administrative law judge issued a
Memorandum to Counsel affording Respondent until March 15, 1994, to
file a statement as to the status of his authority to handle controlled
substances in Kentucky. No such statement has been filed.
On April 7, 1994, in her opinion and recommended decision, the
administrative law judge found that the Respondent did not deny that
his state license to practice medicine has been restricted. The
administrative law judge therefore, granted the Government's motion for
summary disposition and recommended that Respondent's DEA Certificate
of Registration be revoked.
On May 10, 1994, the administrative law judge transmitted the
record to the Deputy Administrator. The Deputy Administrator has
carefully considered the entire record in this matter and, pursuant to
21 CFR 1316.67, hereby issues his final order in this matter based upon
findings of fact and conclusions of law as hereinafter set forth.
The Deputy Administrator adopts the opinion and recommended
decision of the administrative law judge in its entirety. The Drug
Enforcement Administration cannot register or maintain the registration
of a practitioner who is not duly authorized to handle controlled
substances in the state in which he conducts his business. 21 U.S.C.
802(21), 823(f) and 824(a)(3). This prerequisite has been consistently
upheld. See James H. Nickens, M.D., 57 FR 59847 (1992); Elliott Monroe,
M.D., 57 FR 23246 (1992); Bobby Watts, M.D., 53 FR 11919 (1988).
The administrative law judge properly granted the Government's
motion for summary disposition. It is well-settled that when no
question of fact is involved, or when the facts are agreed upon, a
plenary, adversary administrative proceeding involving evidence and
cross-examination of witnesses is not obligatory. The rationale is that
Congress does not intend administrative agencies to perform meaningless
tasks. Phillip E. Kirk, M.D., 48 FR 32887 (1983), aff'd sub nom Kirk v.
Mullen, 749 F. 2d 297 (6th Cir. 1984); Alfred Tennyson Smurthwaite,
N.D., 43 FR 11873 (1978); see also, NLRB v. International Association
of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, 549 F. 2d
634 (9th Cir. 1977); United States v. Consolidated Mines and Smelting
Co., Ltd., 455 F. 2d 432, 453 (9th Cir. 1971).
Since Respondent is not currently authorized to handle controlled
substances in the Commonwealth of Kentucky, it is not necessary to
reach a conclusion regarding whether his continued registration is
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 (59 FR 23637), hereby orders
that DEA Certificate of Registration, AS6935918, previously issued to
James H. Sanders, M.D., be, and it hereby is, revoked and that any
pending applications for renewal of such registration be, and they
hereby are, denied, This order is effective September 6, 1994.
Dated: July 28, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-19057 Filed 8-3-94; 8:45 am]
BILLING CODE 4410-09-M
