82 FR 11057 - Lee B. Drake, M.D. Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 82, Issue 32 (February 17, 2017)

Page Range		11057-11058
FR Document		2017-03222
Federal Register, Volume 82 Issue 32 (Friday, February 17, 2017)
[Federal Register Volume 82, Number 32 (Friday, February 17, 2017)]
[Notices]
[Pages 11057-11058]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-03222]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Lee B. Drake, M.D. Decision and Order

    On December 5, 2016, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (DEA), issued an Order to 
Show Cause to Lee B. Drake, M.D. (Registrant), of Hattiesburg, 
Mississippi. The Show Cause Order proposed the revocation of 
Registrant's DEA Certificate of Registration, on the ground that he 
does not hold authority to dispense controlled substances in 
Mississippi, the State in which he is registered with the Agency. Show 
Cause Order, at 1 (citing 21 U.S.C. 824(a)(3)).
    As to the Agency's jurisdiction, the Show Cause Order alleged that 
Registrant is registered with DEA as a practitioner with authority to 
dispense controlled substances in schedules II through V under 
Registration No. BD3577965, at the registered address of 6524 U.S. 
Highway 98, Hattiesburg, Mississippi. Id. The Order also alleged that 
Registrant's registration does not expire until June 30, 2017. Id.
    The Show Cause Order then alleged that on July 8, 2016, Registrant 
surrendered his authority ``to prescribe and administer controlled 
substances in . . . Mississippi'' and that he is ``without authority to 
[dispense] controlled substances in'' the State. Id. The Order asserted 
that as a consequence of the loss of his state authority, ``DEA must 
revoke'' his registration. Id. (citing 21 U.S.C. 802(21), 823(f) and 
824(a)(3)).
    The Show Cause Order notified Registrant of his right to request a 
hearing on the allegations, or to submit a written statement in lieu of 
a hearing, the procedure for electing either option, and the 
consequence for failing to do either. Id. at 2 (citing 21 CFR 1301.43). 
The Order also notified Registrant of his right to submit a corrective 
action plan. Id. at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).
    On December 7, 2016, a Diversion Investigator (DI) with the DEA 
Jackson, Mississippi District Office accomplished service by hand-
delivery of the Show Cause Order to Registrant. See GX 2, at 2 (DI's 
Declaration).
    On January 10, 2017, the Government forwarded to my Office its 
Request for Final Agency Action (cited as RFFA) along with an 
evidentiary record. In its Request, the Government represents that 
since the date of service of the Show Cause Order, it ``has not 
received a request for hearing or any other reply from'' Registrant. 
RFFA, at 1-2. Based on the Government's representation and the DI's 
declaration, I find that more than 30 days have passed since the date 
of service of the Show Cause Order and that neither Registrant, nor 
anyone purporting to represent him, has requested a hearing or 
submitted a written statement while waiving his right to a hearing. I 
therefore find that Registrant has waived his right to a hearing or to 
submit a written statement in lieu of hearing, and issue this Decision 
and Order based on relevant evidence contained in the record submitted 
by the Government. 21 CFR 1301.43(d) & (e). I make the following 
findings of fact.

[[Page 11058]]

Findings of Fact

    Registrant is the holder of DEA Certificate of Registration No. 
BD3577965, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V, as a practitioner, at the 
registered address of Women's Pavilion of South Mississippi, 6524 U.S. 
Highway 98, Hattiesburg, Mississippi. GX 1 (Certificate of 
Registration). His registration does not expire until June 30, 2017. 
Id.
    On July 8, 2016, Registrant voluntarily surrendered his medical 
license to the Mississippi State Board of Medical Licensure (Medical 
Board), stating in a letter to the Board's President that he was 
relinquishing his right to practice medicine. GX 3, at 2. On July 13, 
2016, the Medical Board issued a memorandum to various governmental and 
private entities informing them that Registrant had voluntarily 
surrendered his medical license effective July 12, 2016. Id. at 3. As 
Registrant neither responded to the Show Cause Order nor submitted any 
evidence to show that his state license has been reinstated, I find 
that he does not possess authority to dispense controlled substances in 
Mississippi, the State in which he is registered with the DEA.

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 (CSA), ``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.'' DEA has also 
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, 
76 FR 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 
2012); Frederick Marsh Blanton, 43 FR 27616 (1978). Thus, the Agency 
has further held that `` `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 [S]tate.' '' Hooper, 
76 FR at 71371 (quoting Anne Lazar Thorn, 62 FR 12847, 12848 (1997)).
    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 he practices . . . to 
distribute, dispense, [or] administer . . . a controlled substance in 
the course of professional practice.'' 21 U.S.C. 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 he 
practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the Act, DEA has held repeatedly that revocation of 
a practitioner's registration is the appropriate sanction whenever he 
is no longer authorized to dispense controlled substances under the 
laws of the State in which he practices medicine. See, e.g., Hooper, 76 
FR at 71371; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); 
Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 
11920 (1988); Blanton, 43 FR at 27616.
    By virtue of the surrender of his medical license, Registrant 
currently lacks authority to dispense controlled substances in 
Mississippi, the State in which he holds his DEA registration, and he 
is not entitled to maintain his registration. Accordingly, I will order 
that his registration be revoked.

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 
BD3577965, issued to Lee B. Drake, M.D., be, and it hereby is, revoked. 
Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well as 
28 CFR 0.100(b), I further order that any pending application of Lee B. 
Drake, M.D., to renew or modify his registration, be, and it hereby is, 
denied. This Order is effective March 20, 2017.

    Dated: February 9, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-03222 Filed 2-16-17; 8:45 am]
 BILLING CODE 4410-09-P
Federal Register / Vol. 82, No. 32 / Friday, February 17, 2017 / Notices 11057

days prior to the hearing date specified Commission will make available to dispense controlled substances in
in this notice. Authorized applicants parties all information on which they Mississippi, the State in which he is
must represent interested parties, as have not had an opportunity to registered with the Agency. Show Cause
defined by 19 U.S.C. 1677(9), who are comment. Parties may submit final Order, at 1 (citing 21 U.S.C. 824(a)(3)).
parties to the investigations. A party comments on this information on or As to the Agency’s jurisdiction, the
granted access to BPI in the preliminary before May 18, 2017, but such final Show Cause Order alleged that
phase of the investigations need not comments must not contain new factual Registrant is registered with DEA as a
reapply for such access. A separate information and must otherwise comply practitioner with authority to dispense
service list will be maintained by the with section 207.30 of the Commission’s controlled substances in schedules II
Secretary for those parties authorized to rules. All written submissions must through V under Registration No.
receive BPI under the APO. conform with the provisions of section BD3577965, at the registered address of
Staff report.—The prehearing staff 201.8 of the Commission’s rules; any 6524 U.S. Highway 98, Hattiesburg,
report in the final phase of these submissions that contain BPI must also Mississippi. Id. The Order also alleged
investigations will be placed in the conform with the requirements of that Registrant’s registration does not
nonpublic record on April 11, 2017, and sections 201.6, 207.3, and 207.7 of the expire until June 30, 2017. Id.
a public version will be issued Commission’s rules. The Commission’s The Show Cause Order then alleged
thereafter, pursuant to section 207.22 of Handbook on E-Filing, available on the that on July 8, 2016, Registrant
the Commission’s rules. Commission’s Web site at https:// surrendered his authority ‘‘to prescribe
Hearing.—The Commission will hold edis.usitc.gov, elaborates upon the and administer controlled substances in
a hearing in connection with the final Commission’s rules with respect to . . . Mississippi’’ and that he is
phase of these investigations beginning electronic filing. ‘‘without authority to [dispense]
at 9:30 a.m. on Tuesday, April 25, 2017, Additional written submissions to the controlled substances in’’ the State. Id.
at the U.S. International Trade Commission, including requests The Order asserted that as a
Commission Building. Requests to pursuant to section 201.12 of the consequence of the loss of his state
appear at the hearing should be filed in Commission’s rules, shall not be authority, ‘‘DEA must revoke’’ his
writing with the Secretary to the accepted unless good cause is shown for registration. Id. (citing 21 U.S.C.
Commission on or before April 19, 2017. accepting such submissions, or unless 802(21), 823(f) and 824(a)(3)).
A nonparty who has testimony that may the submission is pursuant to a specific The Show Cause Order notified
aid the Commission’s deliberations may request by a Commissioner or Registrant of his right to request a
request permission to present a short Commission staff. hearing on the allegations, or to submit
statement at the hearing. All parties and In accordance with sections 201.16(c) a written statement in lieu of a hearing,
nonparties desiring to appear at the and 207.3 of the Commission’s rules, the procedure for electing either option,
hearing and make oral presentations each document filed by a party to the and the consequence for failing to do
should participate in a prehearing investigations must be served on all either. Id. at 2 (citing 21 CFR 1301.43).
conference to be held on April 24, 2017, other parties to the investigations (as The Order also notified Registrant of his
at the U.S. International Trade identified by either the public or BPI right to submit a corrective action plan.
Commission Building, if deemed service list), and a certificate of service Id. at 2–3 (citing 21 U.S.C. 824(c)(2)(C)).
necessary. Oral testimony and written must be timely filed. The Secretary will On December 7, 2016, a Diversion
materials to be submitted at the public not accept a document for filing without Investigator (DI) with the DEA Jackson,
hearing are governed by sections a certificate of service. Mississippi District Office accomplished
201.6(b)(2), 201.13(f), and 207.24 of the service by hand-delivery of the Show
Authority: These investigations are being
Commission’s rules. Parties must submit conducted under authority of title VII of the
Cause Order to Registrant. See GX 2, at
any request to present a portion of their Tariff Act of 1930; this notice is published 2 (DI’s Declaration).
hearing testimony in camera no later pursuant to section 207.21 of the On January 10, 2017, the Government
than 7 business days prior to the date of Commission’s rules. forwarded to my Office its Request for
the hearing. By order of the Commission.
Final Agency Action (cited as RFFA)
Written submissions.—Each party along with an evidentiary record. In its
Issued: February 13, 2017.
who is an interested party shall submit Request, the Government represents that
Lisa R. Barton,
a prehearing brief to the Commission. since the date of service of the Show
Secretary to the Commission. Cause Order, it ‘‘has not received a
Prehearing briefs must conform with the
provisions of section 207.23 of the [FR Doc. 2017–03150 Filed 2–16–17; 8:45 am] request for hearing or any other reply
Commission’s rules; the deadline for BILLING CODE 7020–02–P from’’ Registrant. RFFA, at 1–2. Based
filing is April 18, 2017. Parties may also on the Government’s representation and
file written testimony in connection the DI’s declaration, I find that more
with their presentation at the hearing, as DEPARTMENT OF JUSTICE than 30 days have passed since the date
provided in section 207.24 of the of service of the Show Cause Order and
Commission’s rules, and posthearing Drug Enforcement Administration that neither Registrant, nor anyone
briefs, which must conform with the purporting to represent him, has
Lee B. Drake, M.D. Decision and Order
provisions of section 207.25 of the requested a hearing or submitted a
Commission’s rules. The deadline for On December 5, 2016, the Assistant written statement while waiving his
filing posthearing briefs is May 1, 2017. Administrator, Diversion Control right to a hearing. I therefore find that
In addition, any person who has not Division, Drug Enforcement Registrant has waived his right to a
mstockstill on DSK3G9T082PROD with NOTICES

entered an appearance as a party to the Administration (DEA), issued an Order hearing or to submit a written statement
investigations may submit a written to Show Cause to Lee B. Drake, M.D. in lieu of hearing, and issue this
statement of information pertinent to (Registrant), of Hattiesburg, Mississippi. Decision and Order based on relevant
the subject of the investigations, The Show Cause Order proposed the evidence contained in the record
including statements of support or revocation of Registrant’s DEA submitted by the Government. 21 CFR
opposition to the petition, on or before Certificate of Registration, on the ground 1301.43(d) & (e). I make the following
May 1, 2017. On May 16, 2017, the that he does not hold authority to findings of fact.

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11058 Federal Register / Vol. 82, No. 32 / Friday, February 17, 2017 / Notices

Findings of Fact This rule derives from the text of two DEPARTMENT OF JUSTICE
provisions of the CSA. First, Congress
Registrant is the holder of DEA defined ‘‘the term ‘practitioner’ [to] Drug Enforcement Administration
Certificate of Registration No. mean[ ] a . . . physician . . . or other
BD3577965, pursuant to which he is Paul E. Pilgram, M.D.; Decision and
person licensed, registered or otherwise
authorized to dispense controlled Order
permitted, by . . . the jurisdiction in
substances in schedules II through V, as
which he practices . . . to distribute, On November 29, 2016, the Assistant
a practitioner, at the registered address
dispense, [or] administer . . . a Administrator, Diversion Control
of Women’s Pavilion of South
controlled substance in the course of Division, Drug Enforcement
Mississippi, 6524 U.S. Highway 98, Administration (DEA), issued an Order
Hattiesburg, Mississippi. GX 1 professional practice.’’ 21 U.S.C.
802(21). Second, in setting the to Show Cause to Paul E. Pilgram,1 M.D.
(Certificate of Registration). His (Registrant), of West Jordan, Utah. The
registration does not expire until June requirements for obtaining a
practitioner’s registration, Congress Show Cause Order proposed the
30, 2017. Id. revocation of Registrant’s DEA
directed that ‘‘[t]he Attorney General
On July 8, 2016, Registrant voluntarily Certificate of Registration, on the ground
surrendered his medical license to the shall register practitioners . . . if the
that he does not have authority to
Mississippi State Board of Medical applicant is authorized to dispense . . .
handle controlled substances in Utah,
Licensure (Medical Board), stating in a controlled substances under the laws of the State in which he is registered with
letter to the Board’s President that he the State in which he practices.’’ 21 the Agency. Show Cause Order, at 1
was relinquishing his right to practice U.S.C. 823(f). Because Congress has (citing 21 U.S.C. 824(a)(3)).
medicine. GX 3, at 2. On July 13, 2016, clearly mandated that a practitioner As the jurisdictional basis for the
the Medical Board issued a possess state authority in order to be proceeding, the Show Cause Order
memorandum to various governmental deemed a practitioner under the Act, alleged that Registrant is registered as a
and private entities informing them that DEA has held repeatedly that revocation practitioner in schedules II through V
Registrant had voluntarily surrendered of a practitioner’s registration is the under DEA registration No. AP1393038,
his medical license effective July 12, appropriate sanction whenever he is no at the registered address of 1561 West
2016. Id. at 3. As Registrant neither longer authorized to dispense controlled 7000 South, Suite 200, West Jordan,
responded to the Show Cause Order nor substances under the laws of the State Utah. Id. The Order alleged that
submitted any evidence to show that his in which he practices medicine. See, Registrant’s registration does not expire
state license has been reinstated, I find e.g., Hooper, 76 FR at 71371; Sheran until March 31, 2017. Id.
that he does not possess authority to Arden Yeates, M.D., 71 FR 39130, 39131 The Show Cause Order then alleged
dispense controlled substances in (2006); Dominick A. Ricci, 58 FR 51104, that on October 17, 2016, the State of
Mississippi, the State in which he is 51105 (1993); Bobby Watts, 53 FR Utah revoked Registrant’s authority to
registered with the DEA. 11919, 11920 (1988); Blanton, 43 FR at prescribe and administer controlled
27616. substances and that he is ‘‘without
Discussion authority to handle controlled
By virtue of the surrender of his substances in . . . the [S]tate in which
Pursuant to 21 U.S.C. 824(a)(3), the
medical license, Registrant currently [he is] registered with the’’ Agency. Id.
Attorney General is authorized to
lacks authority to dispense controlled The Order then asserted that as a
suspend or revoke a registration issued
under section 823 of the Controlled substances in Mississippi, the State in consequence of the loss of his state
Substances Act (CSA), ‘‘upon a finding which he holds his DEA registration, authority, ‘‘DEA must revoke’’ his
that the registrant . . . has had his State and he is not entitled to maintain his registration. Id. (citing 21 U.S.C.
license . . . suspended [or] revoked registration. Accordingly, I will order 802(21), 823(f) and 824(a)(3)). The Show
. . . by competent State authority and is that his registration be revoked. Cause Order also notified Registrant of
no longer authorized by State law to his right to request a hearing on the
Order allegations, or to submit a written
engage in the . . . dispensing of
controlled substances.’’ DEA has also Pursuant to the authority vested in me statement in lieu of a hearing, the
long held that the possession of by 21 U.S.C. 824(a), as well as 28 CFR procedure for electing either option, and
authority to dispense controlled 0.100(b), I order that DEA Certificate of the consequence for failing to do elect
substances under the laws of the State Registration BD3577965, issued to Lee either option. Id. at 2 (citing 21 CFR
in which a practitioner engages in 1301.43). The Order further notified
B. Drake, M.D., be, and it hereby is,
professional practice is a fundamental Registrant of his right to submit a
revoked. Pursuant to the authority
condition for obtaining and maintaining corrective action plan. Id. at 2–3 (citing
vested in me by 21 U.S.C. 823(f), as well
a practitioner’s registration. See, e.g., 21 U.S.C. 824(c)(2)(C)).
as 28 CFR 0.100(b), I further order that On December 6, 2016, a Diversion
James L. Hooper, 76 FR 71371 (2011), any pending application of Lee B.
pet. for rev. denied, 481 Fed. Appx. 826 Investigator (DI) from the DEA Salt Lake
Drake, M.D., to renew or modify his City District Office effected service by
(4th Cir. 2012); Frederick Marsh registration, be, and it hereby is, denied.
Blanton, 43 FR 27616 (1978). Thus, the hand-delivery of a copy of the Show
This Order is effective March 20, 2017. Cause Order to Registrant at his
Agency has further held that ‘‘ ‘the
controlling question is not whether a Dated: February 9, 2017. registered address of 1561 West 7000
practitioner’s license to practice South, Suite 200, West Jordan, Utah. GX
mstockstill on DSK3G9T082PROD with NOTICES

Chuck Rosenberg,
medicine in the state is suspended or 2, at 1–2 (Declaration of Diversion
Acting Administrator.
revoked; rather[,] it is whether the Investigator). According to the
[FR Doc. 2017–03222 Filed 2–16–17; 8:45 am] Government, since the date of service of
Respondent is currently authorized to
BILLING CODE 4410–09–P
handle controlled substances in the 1 Registrant’s name in the Order to Show Cause
[S]tate.’ ’’ Hooper, 76 FR at 71371 is spelled ‘‘Pilgrim’’; however, all other documents
(quoting Anne Lazar Thorn, 62 FR in the record, including Registrant’s Certificate of
12847, 12848 (1997)). Registration, use the correct spelling (Pilgram).

VerDate Sep<11>2014 17:38 Feb 16, 2017 Jkt 241001 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\17FEN1.SGM 17FEN1
Document Created: 2017-02-17 00:28:43
Document Modified: 2017-02-17 00:28:43
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
FR Citation		82 FR 11057
82 FR 11057 - Lee B. Drake, M.D. Decision and Order

DEPARTMENT OF JUSTICEDrug Enforcement Administration

Federal Register Volume 82, Issue 32 (February 17, 2017)

DEPARTMENT OF JUSTICE
Drug Enforcement Administration
