2015-19122. Adeline Davies Essien, M.D.; Decision and Order

On March 25, 2015, Administrative Law Judge (ALJ) Christopher B. McNeil issued the attached Recommended Decision. Neither party filed exceptions to the Recommended Decision.

Having reviewed the record in its entirety, I adopt the ALJ's findings of fact, conclusions of law and recommended order.^[1] Accordingly, I will order that Respondent's DEA Certificate of Registration be revoked and that any pending application to renew or modify her registration 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 BE6969541, issued to Adeline Davies Essien, M.D., be, and it hereby is, revoked. I further order that any pending application of Adeline Davies Essien, M.D., to renew or modify her registration, be, and it hereby is, denied. This Order is effective September 3, 2015.

Dated: July 27, 2015.

Chuck Rosenberg,

Acting Administrator.

Frank W. Mann, Esq., for the Government.

Thomas P. O'Connell, Esq., for the Respondent.

ORDER GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY DISPOSITION and FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED DECISION OF THE ADMINISTRATIVE LAW JUDGE

Administrative Law Judge Christopher B. McNeil. On January 21, 2015, the Deputy Assistant Administrator of the Drug Enforcement Administration (DEA) issued an Order to Show Cause as to why the DEA should not revoke DEA Certificate of Registration Number BE6969541 issued to Adeline Davies Essien, M.D., the Respondent in this matter. The Order seeks to revoke Respondent's registration pursuant to 21 U.S.C. 824(a)(4) and 823(f), and to deny any pending applications for renewal or modification of such registration, and deny any applications for any new DEA registrations pursuant to 21 U.S.C. 823(f). As grounds for denial, the Government alleges that Respondent is “currently without authority to handle controlled substances in the State of Illinois, the state in which [Respondent is] registered with the DEA.”

On February 27, 2015, the DEA's Office of Administrative Law Judges received Respondent's written request for a hearing, which is dated February 26, 2015. Respondent stated that she objected to the Government's allegation regarding Respondent's authority to handle controlled substances. Respondent further stated that she “does have authority to practice medicine and handle controlled substances.”

On March 3, 2015, this Office issued an Order for Briefing on Allegations Concerning Respondent's Lack of State Authority, Order for Prehearing Statements, and Order Setting the Matter for Hearing. In the Order, I mandated that the parties provide briefs regarding the allegation that Respondent lacks state authority to handle controlled substances no later than 2:00 p.m. on March 17, 2015. In my Order, I also provided that responses to any briefs be submitted by no later than 2:00 p.m. on March 24, 2015. On March 17, 2015, I timely received the Government's Response to Order and Motion for Summary Disposition. According to the Government's motion, Respondent is without authority to prescribe, administer, or dispense controlled substances in the State of Illinois. In its Exhibit One attachment, the Government provided evidence that the State of Illinois, the jurisdiction where she is licensed to practice medicine and where Respondent is registered with the DEA, considers her license “Not Renewed” with an expiration date of July 31, 2014. Additionally, the Government in its Exhibit Two attachment provided a sworn declaration of Laura Forester, Chief of Medical Prosecutions for the Illinois Department of Financial and Professional Regulation, stating that Respondent is not currently authorized under Illinois law to handle controlled substances. Based on this status, the Government moved for a summary disposition of these proceedings as well as a stay of these proceedings pending resolution of its Motion for Summary Disposition. Finding good cause was shown, I granted an Order Staying Proceedings with the exception of the March 24, 2015 deadline for Respondent's response to the Government's Motion for Summary Disposition.

Respondent filed a timely response to the Government's Motion for Summary Disposition on March 24, 2015. In her response, Respondent states that her Illinois State medical license case is pending appeal and is therefore not a final disposition. Respondent further attached an affidavit affirming that she has a case pending before the Illinois Administrative Law Court that is pending appeal. She also attached “Exhibit B” containing a statement from Lillian Walanka, who is representing Respondent before the Illinois Administrative Law Court. Ms. Walanka again confirms that the case is pending final action by Illinois authorities. Ms. Walanka states that although Respondent filed a timely renewal application of her controlled substances license, her controlled substances license was not renewed pending a Notice of Intent to Refuse to Renew by authorities in Illinois.

The substantial issue raised by the Government rests on an undisputed fact. The Government asserts that Respondent's DEA Certificate of Registration must be revoked because Respondent does not have an active controlled substance registration issued by the state in which she practices. Under DEA precedent, a practitioner's DEA Certificate of Registration for controlled substances must be summarily revoked if the applicant is not authorized to handle controlled substances in the state in which she maintains her DEA registration.^[2] Pursuant to 21 U.S.C. 823(f), only a “practitioner” may receive a DEA registration. Under 21 U.S.C. 802(21), a “practitioner” must be “licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices or does research, to distribute [or] dispense . . . controlled substance[s.]” Given this statutory language, the DEA Administrator does not have the authority under the Controlled Substances Act to maintain a practitioner's registration if that practitioner is not authorized to dispense controlled substances.^[3]

Respondent correctly argues in her response that a final disposition has not been made regarding her controlled substance registration in Illinois's administrative proceedings. However, Respondent mischaracterizes the Government's Motion for Summary Disposition when alleging that the Government is arguing that a final disposition had occurred. The Government is only arguing that Respondent is currently without authority to handle controlled substances in Illinois. To emphasize this point, the Government cites to the case of Roger A. Rodriguez, M.D. to demonstrate that even a temporary suspension warrants revocation.^[4] As DEA Administrator Michele M. Leonhart previously stated in James L. Hooper, M.D., “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.” ^[5] In Hooper, Administrator Leonhart concluded that “even where a practitioner's state license has been suspended for a period of certain duration, the practitioner no longer meets the statutory definition of a practitioner.” ^[6] In this case, Respondent's state controlled substance registration has been suspended for an indefinite duration. As detailed above, only a “practitioner” may receive a DEA registration. Therefore, I will recommend the revocation of Respondent's DEA registration.

Order Granting the Government's Motion for Summary Disposition and Recommendation

I find there is no genuine dispute regarding whether Respondent is a “practitioner” as that term is defined by 21 U.S.C. 802(21), and that based on the record the Government has established that Respondent is not a practitioner and is not authorized to dispense controlled substances in the state in which she seeks to practice with a DEA Certificate of Registration. I find no other material facts at issue. Accordingly, I GRANT the Government's Motion for Summary Disposition.

Upon this finding, I ORDER that this case be forwarded to the Administrator for final disposition and I recommended that Respondent's DEA Certificate of Registration should be REVOKED and any pending application for the renewal or modification of the same should be DENIED.

Dated: March 25, 2015

Christopher B. McNeil,

Administrative Law Judge.

Footnotes

1.  I take official notice of the fact that, according to the registration records of the Agency, Respondent retains an active registration as of this date. Pursuant to 21 CFR 1316.59(e), Respondent may controvert this finding by filing a properly supported motion, no later than 10 days from the date of this Order.

2.  See 21 U.S.C. 801(21), 823(f), 824(a)(3); see also House of Medicine, 79 FR 4959, 4961 (DEA Jan. 30, 2014); Deanwood Pharmacy, 68 FR 41662-01 (DEA July 14, 2003); Wayne D. Longmore, M.D., 77 FR 67669-02 (DEA Nov. 13, 2012); Alan H. Olefsky, M.D., 72 FR 42127-01 (DEA Aug. 1, 2007); Layfe Robert Anthony, M.D., 67 FR 15811 (DEA May 20, 2002); George Thomas, PA-C, 64 FR 15811-02 (DEA Apr. 1, 1999); Shahid Musud Siddiqui, M.D., 61 FR 14818-02 (DEA April 4, 1996); Michael D. Lawton, M.D., 59 FR 17792-01 (DEA Apr. 14, 1994); Abraham A. Chaplan, M.D., 57 FR 55280-03 (DEA Nov. 24, 1992). See also Bio Diagnosis Int'l, 78 FR 39327-03, 39331 (DEA July 1, 2013) (distinguishing distributor applicants from other “practitioners” in the context of summary disposition analysis).

3.  See Abraham A. Chaplan, M.D., 57 FR 55280-03, 55280 (DEA Nov. 24, 1992), and cases cited therein. In Chaplan, DEA Administrator Robert C. Bonner adopts the ALJ's opinion that “the DEA lacks statutory power to register a practitioner unless the practitioner holds state authority to handle controlled substances.” Id.

4.  Roger A. Rodriguez, M.D., 70 FR 33206, 33,207 (DEA June 7, 2005).

5.  James L. Hooper, M.D.; Decision and Order, 76 FR 71371-01, 71371 (DEA Nov. 17, 2011).

6.  Id. at 71372.