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)

[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