81 FR 25425 - Abolghasem Rezaei, M.D.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 81, Issue 82 (April 28, 2016)

[Federal Register Volume 81, Number 82 (Thursday, April 28, 2016)]
[Notices]
[Pages 25425-25427]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-09973]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Abolghasem Rezaei, M.D.; Decision and Order

    On November 16, 2015, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Abolghasem Rezaei, M.D. (hereinafter, Registrant) of 
Lawton, Oklahoma. GX 1. The Show Cause Order proposed the revocation of 
Registrant's DEA Certificate of Registration, pursuant to which he is 
authorized to dispense controlled substances in schedules IV and V as a 
practitioner, on the ground that he does ``not have authority to handle 
controlled substances in the State of Oklahoma, the State in which [he 
is] registered with the'' Agency. Id. at 1.
    More specifically, the Show Cause Order alleged that effective May 
28, 2013, the Oklahoma State Bureau of Narcotics and Dangerous Drugs 
Control (hereinafter, OBNDD) issued a Stipulation and Agreed Order to 
Registrant, pursuant to which his authority to dispense controlled 
substances in schedules II and III was suspended ``for two years''; the 
Order then alleged that his Oklahoma registration ``expired on October 
31, 2014,'' and had not been renewed. Id.

[[Page 25426]]

The Show Cause Order thus alleged that Registrant did ``not have 
authority in Oklahoma to order, dispense, prescribe or administer any 
controlled substances,'' and that as a consequence, DEA ``must revoke 
[his] . . . registrations.'' Id. (citing 21 U.S.C. 802(21), 823(f), and 
824(a)(3)).\1\
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    \1\ The Show Cause Order also notified registrant of his right 
to request a hearing on the allegations or to submit a written 
statement while waiving his right to a hearing, the procedure for 
electing either option, and the consequence for failing to elect 
either option. GX 1, at 2.
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    Thereafter, a DEA Diversion Investigator (DI) determined that 
Registrant was no longer practicing at his registered location and was 
advised by Agents of the OBNDD that the premises appeared vacant. GX 9, 
at 1. The DI did, however, obtain an address for Registrant in Lawton, 
Oklahoma, which appeared to be that of a residence, and mailed the Show 
Cause Order to Registrant by certified mail, return receipt requested 
to this address. Id. On November 30, 2015, the DI received back the 
signed return-receipt card. Id. According to the DI, ``[t]he signature 
appeared similar to the signature of [Registrant] . . . on other DEA 
records, which [Registrant] signed.'' Id. The DI also emailed the Show 
Cause Order to Registrant at an email address which Registrant had 
listed when he applied for registration. Id.; GX 2, at 1; GX 8. 
According to the DI, ``[t]he emailed copy was sent successfully on 
November 16, 2015, but I never received a response to'' it. Id.
    On January 5, 2016, the Government submitted its Request for Final 
Agency Action. Therein, the Government stated that neither Registrant, 
``nor anyone representing him[,] has requested a hearing or otherwise 
corresponded with DEA.'' Req. for Final Agency Action, at 5. In its 
Request, the Government sought a final order revoking Registrant's DEA 
registration based on the May 28, 2013 Stipulation and Agreed Order 
between the OBNDD and Registrant, as well as his act of allowing his 
state registration to expire on October 31, 2014. Id. at 3.
    However, on March 21, 2016, the Government filed a further 
pleading. See Request for Dismissal of Order to Show Cause. Therein, 
the Government noted that effective March 4, 2016, Registrant had 
entered a subsequent Stipulation and Agreed Order with the OBNDD, 
pursuant to which the OBNDD agreed to renew his state registration 
subject to four conditions; the Government provided a copy of the Order 
with its filing. Id. at 2. Those stipulations were that Registrant 
shall: (1) ``Remain on probation for 18 months beginning on the date of 
entry of'' the Order; (2) ``be prohibited from ordering, storing, 
dispensing or administering'' any controlled substances ``during his 
probation''; (3) ``be prohibited from'' prescribing controlled 
substances in schedule II or III ``until January 1, 2017''; and (4) run 
a PMP report of ``his own prescribing . . . at the end of each calendar 
month'' and submit an ``affidavit that he has reviewed the PMP'' report 
to the OBNDD and state that it ``accurately reflects the [controlled 
substance] prescriptions he has authorized.'' In re Rezaei, Stipulation 
and Agreed Order, at 2 (OBNDD, Mar. 4, 2016).
    Noting that the sole basis for this proceeding was Registrant's 
lack of state authority and that the OBNDD's Order has restored his 
authority to prescribe schedule IV and V controlled substances, the 
Government no longer seeks the revocation of Registrant's DEA 
registration.\2\ See Request for Dismissal of Order to Show Cause, at 
3. Notwithstanding that the Government seeks an Order dismissing the 
Show Cause Order, it also requests an Order restricting Registrant's 
DEA registration ``to the extent of his controlled substances 
authorization under Oklahoma state law.'' Id.
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    \2\ The State Order, upon which this proceeding was based, 
contained numerous stipulated findings that clearly would have 
supported a prima facie case for revocation under the public 
interest standard of 21 U.S.C. 824(a)(4). These include: (1) That 
during a November 5, 2012 inspection, an OBNDD Agent and Oklahoma 
Board of Medical Licensure Investigator had conducted an inspection 
of Respondent's clinic and found that Demerol and other drugs were 
kept in a locked desk located in a common area of the clinic and 
that the key was kept in an unlocked drawer at the receptionist's 
desk; (2) that ``Respondent was unable to produce any . . . order 
forms, invoices, or inventories'' for the drugs in the desk; (3) 
that Respondent stored other controlled substances in an unlocked 
cabinet in an area of the clinic which all employees, as well as 
construction workers who were renovating the clinic, had access to; 
(4) that Respondent also kept controlled substances in a large 
plastic storage box on a counter below the aforesaid cabinet; (5) 
that during the inspection, Respondent submitted to a urinalysis and 
tested positive for oxycodone and that he ``did not have a valid 
prescription'' for the drug; (6) that Respondent's administration 
logs showed that ``on at least 3 occasions,'' controlled drugs 
``were administered to either [himself] or [his] wife''; (6) that 
there was no patient file for two patients who were listed in the 
administration log; (7) that the drug administration log listed 11 
entries for Demerol injections for ``skin care'' but did not list a 
patient name; (8) that Respondent's wife owned a skin care clinic 
that ``had a separate address from the medical clinic'' and which 
was unregistered, and that the OBNDD Agent inspected the clinic and 
found that controlled drugs were stored in an unlocked drawer in a 
treatment room and Respondent stated that the drugs had been 
prescribed but returned by his patients; (9) and that controlled 
drugs that were stored at the skin care clinic were either 
administered or dispensed to that clinic's ``clients without 
maintaining an administration log.'' GX 6, at 1-4.
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    Based on the record submitted by the Government, I find that 
Respondent has been served in a constitutionally adequate manner and I 
find that service was effective no later than November 30, 2015. Based 
on the Government's further representation that since the date of 
service, neither Registrant, nor anyone representing him, has either 
requested a hearing or submitted a written statement in lieu of a 
hearing, 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 solely on the Investigative Record 
submitted by the Government. I make the following findings.

Findings

    Registrant is the holder of DEA Registration #FR4496267, pursuant 
to which he is authorized to dispense controlled substances in 
schedules IV and V, at the registered address of Family Practice Clinic 
& Minor Emergency Medicine, 4645 W. Gore Blvd., Suite 1-2, Lawton, 
Oklahoma. GX 2. Registrant's registration does not expire until April 
30, 2017. Id.
    Registrant is also the holder of an active medical license issued 
by the Oklahoma State Board of Medical Licensure and Supervision. 
According to the Board's Web site, Respondent is now practicing at 2502 
West Gore Blvd., Lawton, Oklahoma. See http://www.okmedicalboard.org/licensee/MD/23655. He has also recently obtained a new state 
registration from the OBNDD. However, Registrant's OBNDD registration 
prohibits him ``from ordering, storing, dispensing, or administering 
[controlled substances] from any [s]chedule during his probation,'' 
which runs for 18 months beginning on March 4, 2016, and it further 
prohibits him ``from authorizing prescriptions for [s]chedule II or 
[s]chedule III [controlled substances] until January 1, 2017.'' 
Stipulation and Agreed Order, at 2.

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, ``upon a 
finding that the registrant . . . has had his State license . . . 
suspended [or] revoked . . . by competent State authority and is no 
longer authorized by State law to engage in the . . . dispensing of 
controlled substances.'' Moreover, Congress has defined ``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

[[Page 25427]]

substance in the course of professional practice.'' 21 U.S.C. 802(21). 
Likewise, the CSA conditions the granting of a practitioner's 
application for registration on his/her possession of authority to 
dispense controlled substances under state law. See 21 U.S.C. 823(f) 
(``The Attorney General shall register practitioners . . . to dispense 
. . . controlled substances . . . if the applicant is authorized to 
dispense . . . controlled substances under the laws of the State in 
which he practices.''). And of further note, the CSA defines the term 
``dispense'' as meaning ``to deliver a controlled substance to an 
ultimate user . . . by, or pursuant to the lawful order of, a 
practitioner.'' Id. Sec.  802(10) (emphasis added).
    Thus, the Agency 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 obtaining and maintaining a practitioner's 
registration. See, e.g., James L. Hooper, 76 FR 71371 (2011), pet. for 
rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012). And because a 
practitioner's authority under the CSA is based on his/her authority to 
dispense controlled substances under the laws of the State in which he 
practices, the Agency has further held that ``to the extent a 
practitioner is not authorized under state law to dispense certain 
categories or schedules of controlled substances, he can no longer 
lawfully dispense them under federal law.'' Kenneth Harold Bull, 78 FR 
62666, 62672 (2013).
    For the same reason, where a state board limits a practitioner's 
controlled substance authority by prohibiting him from possessing 
controlled substances or by limiting his authority to prescribing, the 
practitioner's authority under his DEA registration must also be so 
limited. See, e.g., Steven M. Abbadessa, 74 FR 10077, 10082 (2009) 
(noting ambiguity in state agency's order as to whether it authorized 
physician to administer controlled substances at his clinic and 
requiring him to provide evidence that such activity was authorized by 
the State prior to doing so); cf. United States v. Moore, 423 U.S. 122, 
140-41 (1975) (``In the case of a physician, [the CSA] contemplates 
that he is authorized by the State to practice medicine and to dispense 
drugs in connection with his professional practice. The federal 
registration . . . extends no further.'').
    Accordingly, although the OBNDD's Stipulation and Agreed Order 
effectively authorizes Registrant to prescribe schedule IV and V 
controlled substances, it affirmatively prohibits him from ordering, 
storing (possessing), administering and directly dispensing all 
controlled substances. While Registrant's DEA registration does not 
authorize him to handle schedule II and III controlled substances in 
any manner, his registration currently provides authority for him to 
order, store, administer and directly dispense schedule IV and V 
controlled substances. Because Registrant's DEA registration can only 
grant him authority to the extent that the State has granted him 
authority, I will order that his registration be restricted to 
authorize only the prescribing of controlled substances in schedules IV 
and V.
    Also, in the event Registrant intends to seek authority to 
prescribe schedule II or III controlled substances upon the expiration 
of the OBNDD's condition, he must apply for a modification of his DEA 
registration before doing so. See 21 CFR 1301.51. So too, in the event 
Registrant seeks to engage in the ordering, storing, dispensing or 
administering of any controlled substance upon the expiration of his 
probation, he must apply for a modification of his DEA registration 
before doing so. Finally, because the Oklahoma Medical Board's records 
list Registrant's practice address as being different from his DEA 
registered address, and it appears that Registrant is no longer 
practicing at the latter address, he is directed to inquire of the 
local DEA office as to whether he must obtain a modification of his 
registration to reflect his new practice address. See 21 CFR 1301.12(a) 
& (b).

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration# 
FR4496267 issued to Abolghasem Rezaei, M.D., be, and it hereby is, 
restricted to authorize only the prescribing of controlled substances 
in schedules IV and V. This Order is effective immediately.

    Dated: April 21, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016-09973 Filed 4-27-16; 8:45 am]
 BILLING CODE 4410-09-P