84 FR 27659 - Elizabeth C. Korcz, M.D.; Decision and Order

[Federal Register Volume 84, Number 114 (Thursday, June 13, 2019)]
[Notices]
[Pages 27659-27661]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2019-12506]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 18-29]


Elizabeth C. Korcz, M.D.; Decision and Order

    On March 28, 2018, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to 
Elizabeth C. Korcz, M.D. (hereinafter, Respondent), who is registered 
in Hoover, Alabama. The OSC proposed to revoke Respondent's DEA 
Certificate of Registration (hereinafter, COR) No. FK0505428, pursuant 
to 21 U.S.C. Sec. Sec.  823(f) and 824(a)(3), on the ground that she 
does not have authority to handle controlled substances in

[[Page 27660]]

Alabama, the State in which she is registered with the DEA. OSC, at 1.
    With respect to the DEA's jurisdiction, the OSC alleged that 
Respondent is registered with the DEA as a practitioner authorized to 
handle controlled substances in schedules II through V under DEA COR 
No. FK0505428 at the registered address of 3421 S. Shades Crest Road, 
Suite 111, Hoover, Alabama 35244. Id. The OSC stated that Respondent's 
registration was current and not due to expire until December 31, 2019. 
Id.
    Regarding the substantive grounds for the proceeding, the OSC 
specifically alleged that Respondent agreed to voluntarily surrender 
her Alabama Controlled Substance Certificate (hereinafter, CSC) No. 
ACSC.28343 pending the resolution of an investigation undertaken by the 
Alabama State Board of Medical Examiners (hereinafter, State Board) 
alleging Respondent dispensed controlled substances for no legitimate 
purpose. Id. Furthermore, the OSC alleged that the status of 
Respondent's CSC was listed as ``inactive-failed to renew.'' Id. at 2. 
The OSC stated: ``[T]he DEA must revoke . . . [her] COR based upon . . 
. [her] lack of authority to handle controlled substances in the State 
of Alabama.'' Id., citing 21 U.S.C. Sec. Sec.  823(f) and 824(a)(3).
    The OSC then notified Respondent of her right to request a hearing 
on the allegations, or to submit a written statement in lieu of a 
hearing, the procedure for doing either, and the consequence for 
failing to elect either option. Id. at 2, citing 21 CFR 1301.43. It 
also notified her of her right to submit a corrective action plan in 
accordance with 21 U.S.C. 824(c)(2)(C). Id. at 2-3.
    By letter dated May 2, 2018, Respondent timely requested a 
hearing.\1\ Hearing Request (hereinafter, HR), at 1. According to the 
HR, ``[Respondent's] license to practice medicine and prescribe 
controlled substances was under review [by the State Board] when the 
United States Government raided her practice and served her with a 
target letter.'' Id. The HR continued: ``In light of the federal 
investigation, . . . [Respondent] requested a stay of the [State 
Board's] scheduled hearing. In order for the Board to agree to a stay, 
they requested she voluntarily surrender her ability to prescribe 
controlled substances. On advice of counsel, she voluntarily agreed.'' 
Id. Furthermore, the HR stated that Respondent ``objects to the 
revocation of her DEA registration'' and requested that the hearing 
``be stayed pending the outcome of the investigation.'' Id.
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    \1\ Based on the undisputed evidence in the record regarding the 
date the OSC was served on Respondent, April 2, 2018, I find that 
Respondent timely requested a hearing.
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    The Office of Administrative Law Judges put the matter on the 
docket and assigned it to Administrative Law Judge Mark M. Dowd 
(hereinafter, ALJ). On May 3, 2018, the ALJ issued an Order Directing 
the Filing of Government Evidence of Lack of State Authority Allegation 
and Briefing Schedule.
    On May 17, 2018, the Government filed a timely Motion for Summary 
Disposition (hereinafter, MSD) based on Respondent's lack of State 
authority to handle controlled substances. MSD, at 1. The Government 
attached five documents to its MSD. The Government attached a 
Certification of Registration Status, dated April 12, 2018, with a copy 
of DEA COR No. FK0505428. Id. at Att. 1. In addition, the Government 
attached a copy of Respondent's voluntary surrender of her Alabama CSC 
(hereinafter, Voluntary Surrender), which was dated August 23, 2017. 
Id. at Att. 2. Further, the Government attached a copy of the Medical 
Licensure Commission of Alabama's Order on Motion to Stay, which was 
dated August 25, 2017. Id. at Att. 3. Furthermore, the Government 
attached a copy of Respondent's License Details from the State Board, 
which was printed on May 7, 2018. Id. at Att. 4. Finally, the 
Government attached the Declaration of a DEA Diversion Investigator, 
which was dated May 8, 2018. Id. at Att. 5.
    According to the MSD, ``DEA's investigation reveals that Respondent 
has agreed to the voluntary surrender of her Alabama . . . [CSC] 
pending resolution of a current investigation by the [State Board].'' 
MSD, at 3. Furthermore, according to the MSD, Respondent's License 
Details shows that ``the status of the Respondent's [CSC] is listed as 
`Inactive-Failed to Renew,' and that [the CSC] expired on December 31, 
2017.'' Id. Citing 21 U.S.C. 802(21), 823(f), and 824(a)(3), the 
Government argues that the DEA ``cannot register or maintain the 
registration of a practitioner not duly authorized to handle controlled 
substances in the state in which . . . [the practitioner] conducts 
business.'' Id. Furthermore, the Government contends: ``Respondent is 
currently not authorized to handle controlled substances in the state 
in which she currently holds a DEA COR.'' Id. at 4. Thus, according to 
the Government, Respondent is not authorized to possess a DEA COR in 
Alabama unless she is authorized to dispense controlled substances in 
the State of Alabama. Id. at 3.
    Respondent did not file any response to the Government's MSD or 
evidence. Order Granting the Government's Motion for Summary 
Disposition and Recommended Rulings, Findings of Fact, Conclusions of 
Law, and Decision of the Administrative Law Judge dated June 6, 2018 
(hereinafter, R.D.), at 3.
    The ALJ granted the MSD and recommended that Respondent's 
registration be revoked. Id. at 6. The ALJ determined: ``At this 
juncture, no dispute exists over the fact that the Respondent currently 
lacks state authority to handle controlled substances in Alabama due to 
the voluntary surrender of her . . . [CSC] on August 23, 2017, and the 
Alabama State Board of Medical Examiner's acceptance of the 
Respondent's voluntary surrender on August 25, 2017.'' Id. at 5-6. The 
ALJ continued: ``Because the Respondent lacks state authority at the 
present time, . . . [DEA] precedent dictates that she is not entitled 
to maintain her DEA registration.'' Id. at 6. The ALJ concluded: 
``Simply put, there is no contested factual matter that could be 
introduced at a hearing that would, in the Agency's view, provide 
authority to allow Respondent to continue to hold her DEA COR.'' Id. 
The ALJ recommended that Respondent's registration be revoked and that 
pending applications for renewal be denied. Id.
    By letter dated July 3, 2018, the ALJ certified and transmitted the 
record to me for final Agency action. In that letter, the ALJ stated 
that no exceptions were filed by either party.
    I issue this Decision and Order based on the entire record before 
me. 21 CFR Sec.  1301.43(e). I make the following findings of fact.

Findings of Fact

Respondent's DEA Registration

    Respondent holds DEA COR No. FK0505428, pursuant to which she is 
authorized to handle controlled substances in schedules II through V as 
a practitioner, at the registered address of 3421 S. Shades Crest Road, 
Suite 111, Hoover, Alabama 35244. MSD, at Att. 1. This registration is 
in an active pending status and expires on December 31, 2019. Id.

The Status of Respondent's State License

    On August 23, 2017, Respondent voluntarily surrendered her Alabama 
CSC after the State Board filed an Order to Show Cause whose 
allegations include excessive dispensing of controlled substances, 
dispensing controlled substances for no legitimate medical purpose, and 
dispensing

[[Page 27661]]

controlled substances in amounts not reasonably related to the proper 
medical management of patients' illnesses or conditions. Id. at Att. 2. 
In her Voluntary Surrender, Respondent stated: ``I understand and 
acknowledge I will have no authority to order, dispense, distribute, 
administer or prescribe controlled substances in the state of 
Alabama.'' Id. Thus, there is no dispute that Respondent voluntarily 
surrendered her authority to handle controlled substances in Alabama. 
Further, as recorded by the State Board, the status of Respondent's CSC 
is ``Inactive-Failed to Renew.'' Id. at Att. 4. Based on my review of 
the website of the State Board and the Medical Licensure Commission of 
Alabama, the status of Respondent's CSC has not changed.\2\ Alabama 
Board of Medical Examiners and Medical Licensure Commission of Alabama 
Online License Verification, https://abme.igovsolution.com/online/Lookups/ Individual_Lookup.aspx (last visited May 22, 2019).
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    \2\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. Sec.  
556(e), ``[w]hen an agency decision rests on official notice of a 
material fact not appearing in the evidence in the record, a party 
is entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Respondent may dispute my finding by filing 
a properly supported motion for reconsideration within 15 calendar 
days of the date of this Order. Any such motion shall be filed with 
the Office of the Administrator and a copy shall be served on the 
Government; in the event Respondent files a motion, the Government 
shall have 15 calendar days to file a response.
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    Accordingly, I find that Respondent currently is without authority 
to dispense controlled substances in Alabama, the State in which she is 
registered.

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of the 
Controlled Substances Act (hereinafter, CSA), ``upon a finding that the 
registrant . . . has had [her] State license or registration suspended 
. . . [or] revoked . . . by competent State authority and is no longer 
authorized by State law to engage in the . . . dispensing of controlled 
substances.'' With respect to a practitioner, the DEA has long 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 obtaining and 
maintaining a practitioner's registration. See, e.g., James L. Hooper, 
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 
(4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 
(1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined the term ``practitioner'' to mean ``a physician 
. . . or other person licensed, registered, or otherwise permitted, by 
. . . the jurisdiction in which [s]he practices . . ., to distribute, 
dispense, . . . [or] administer . . . a controlled substance in the 
course of professional practice.'' 21 U.S.C. Sec.  802(21). Second, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed 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 [s]he 
practices.'' 21 U.S.C. Sec.  823(f). Because Congress has clearly 
mandated that a practitioner possess State authority in order to be 
deemed a practitioner under the CSA, the DEA has held repeatedly that 
revocation of a practitioner's registration is the appropriate sanction 
whenever a practitioner is no longer authorized to dispense controlled 
substances under the laws of the State in which she practices. See, 
e.g., Hooper, supra, 76 FR at 71,371-72; Sheran Arden Yeates, M.D., 71 
FR 39,130, 39,131 (2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 
(1993); Bobby Watts, M.D., 53 FR 11,919, 11,920 (1988), Blanton, supra, 
43 FR at 27,617.
    Here, the undisputed evidence in the record is that Respondent 
voluntarily surrendered her Alabama CSC. The fact that Respondent may, 
some day, regain her State registration to dispense controlled 
substances does not change the salient fact that Respondent is not 
currently authorized to handle controlled substances in the State in 
which she is registered. Mehdi Nikparvarfard, M.D., 83 FR 14,503, 
14,504 (2018). Respondent, therefore, is not eligible for a DEA COR. 
Accordingly, I will order that Respondent's DEA COR be revoked and that 
any pending application for the renewal or modification of that COR be 
denied. 21 U.S.C. Sec. Sec.  823(f) and 824(a)(3).

Order

    Pursuant to 28 CFR Sec.  0.100(b) and the authority vested in me by 
21 U.S.C. Sec.  824(a), I order that DEA COR No. FK0505428 issued to 
Elizabeth C. Korcz, M.D., be, and it hereby is, revoked. Pursuant to 28 
CFR Sec.  0.100(b) and the authority vested in me by 21 U.S.C. Sec.  
823(f), I further order that any pending application of Elizabeth C. 
Korcz, M.D., to renew or modify this registration, as well as any other 
pending application by her for registration in the State of Alabama be, 
and it hereby is, denied. This Order is effective July 15, 2019.

    Dated: May 22, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-12506 Filed 6-12-19; 8:45 am]
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