82 FR 11058 - Paul E. Pilgram, 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 11058-11060]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-03223]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Paul E. Pilgram, M.D.; Decision and Order

    On November 29, 2016, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Paul E. Pilgram,\1\ M.D. (Registrant), of West 
Jordan, Utah. The Show Cause Order proposed the revocation of 
Registrant's DEA Certificate of Registration, on the ground that he 
does not have authority to handle controlled substances in Utah, the 
State in which he is registered with the Agency. Show Cause Order, at 1 
(citing 21 U.S.C. 824(a)(3)).
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    \1\ Registrant's name in the Order to Show Cause is spelled 
``Pilgrim''; however, all other documents in the record, including 
Registrant's Certificate of Registration, use the correct spelling 
(Pilgram).
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    As the jurisdictional basis for the proceeding, the Show Cause 
Order alleged that Registrant is registered as a practitioner in 
schedules II through V under DEA registration No. AP1393038, at the 
registered address of 1561 West 7000 South, Suite 200, West Jordan, 
Utah. Id. The Order alleged that Registrant's registration does not 
expire until March 31, 2017. Id.
    The Show Cause Order then alleged that on October 17, 2016, the 
State of Utah revoked Registrant's authority to prescribe and 
administer controlled substances and that he is ``without authority to 
handle controlled substances in . . . the [S]tate in which [he is] 
registered with the'' Agency. Id. The Order then 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 also 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 elect either option. Id. at 2 (citing 21 
CFR 1301.43). The Order further 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 6, 2016, a Diversion Investigator (DI) from the DEA 
Salt Lake City District Office effected service by hand-delivery of a 
copy of the Show Cause Order to Registrant at his registered address of 
1561 West 7000 South, Suite 200, West Jordan, Utah. GX 2, at 1-2 
(Declaration of Diversion Investigator). According to the Government, 
since the date of service of

[[Page 11059]]

the Show Cause Order, the Agency ``has not received a request for 
hearing or any other reply from'' Registrant. Request for Final Agency 
Action (RFFA), at 2.
    On January 10, 2017, the Government forwarded this matter to my 
Office for final agency action along with an evidentiary record. RFFA, 
at 1. Based upon the Government's representation and my review of the 
record, I find that more than 30 days have now 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 in lieu of a hearing. I therefore find 
that Registrant has waived his right to a hearing or to submit a 
written statement in lieu of a 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. Id. Sec.  1301.43(e).

Findings of Fact

    Registrant is the holder of Certificate of Registration AP1393038, 
pursuant to which he is authorized to dispense controlled substances in 
schedules II through V as a practitioner, at the registered address of 
1561 West 7000 South, Suite 200, West Jordan, Utah. GX 2. His 
registration does not expire until March 31, 2017. Id.
    On October 17, 2016, the Utah Division of Occupational and 
Professional Licensing, Department of Commerce (the Division), issued 
an order revoking Registrant's license to prescribe and administer 
controlled substances in the State. GX 3, at 2. Therein, the Division 
adopted the recommended order of the Utah Physicians Licensing Board 
(Physician's Board), which the latter issued following a hearing it 
held on August 24-25, 2016 at which Registrant was represented by 
counsel. Id. at 5.
    The Physician's Board found that Registrant ``did not [ ] meet the 
standard of care of the profession for pain management patients'' and 
failed to follow the Model Policy for the Use of Controlled Substances 
for the Treatment of Pain (2004) in his treatment of nine patients. As 
support for its finding, the Board specifically cited: (1) ``[t]he 
inadequacy of the documented evaluation of the patients,'' (2) ``[t]he 
failure to obtain or document informed consent as to major risks of the 
high opioid regimes,'' (3) ``[t]he perfunctory consideration or 
enforcement of agreements for treatment,'' (4) ``[t]he improperly low 
level of consultation with other health and mental professionals 
[sic]),'' and (5) ``[t]he failure to maintain accurate and complete 
medical records.'' Id. at 6-7. The Board further found that Registrant 
``failed to demonstrate a legitimate medical purpose for his 
prescribing practices, [that] there was an absence of sound clinical 
judgment on [his] part . . . and the pattern of prescribing practices 
was not based on clear documentation of unrelieved pain.'' Id. at 7. 
The Board then made detailed findings with respect to nine patients. 
Id. at 8-26.
    The Physician's Board thus concluded that Registrant had engaged in 
unprofessional conduct:

by failing, as a prescribing practitioner, to follow the Model 
Policy for the Use of Controlled Substances for the Treatment of 
Pain, 2004 [ ], in [his]evaluation of the patient, obtaining or 
documenting informed consent, giving more than perfunctory 
consideration to, or enforcement of, agreements for treatment, 
conducting periodic reviews, consultation with other medical 
specialists, maintaining accurate and complete medical records, and 
complying with the state laws referenced in [its] conclusions.

    Id. at 27 (citing Utah Admin. Code r. 156-1-501(6)).\2\ The Board 
further concluded that ``[t]he prescribing of controlled substances by 
[Registrant] on too many occasions did not have a legitimate medical 
purpose, did not show sound clinical judgment and was not based on 
clear documentation of unrelieved pain.'' Id. at 28.\3\
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    \2\ As for Registrant's conduct after the Board adopted its 2013 
Model Policy on the Use of Opioids Analgesics in the Treatment of 
Chronic Pain, the Board also found that he engaged in unprofessional 
conduct. GX 3, at 28 (citing Utah Admin. Code r. 156-1-501(7)).
    \3\ Under the Division's rules, ``unprofessional conduct'' 
includes: ``failing, as a prescribing practitioner, to follow the 
`Model Policy for the Use of Controlled Substances for the Treatment 
of Pain,' 2004, established by the Federation of State Medical 
Boards,'' and ``failing, as a prescribing practitioner, to follow 
the `Model Policy on the Use of Opioid Analgesics in the Treatment 
of Chronic Pain,' July 2013, adopted by the Federation of State 
Medical Boards.'' Utah Admin. Code r. 156-1-501(6) and (7) (2016).
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    The Board thus recommended that Registrant's state ``license to 
prescribe and administer controlled substances . . . be revoked.'' Id. 
at 29. On October 17, 2016, the Division adopted the Board's factual 
findings, legal conclusions and recommended order ``in its entirety.'' 
Id. at 2, 4. According to the online records of the Utah Division of 
Occupational and Professional Licensing of which I take official 
notice, Registrant's controlled substance license remains revoked as of 
the date of this Decision and Order. \4\ See also https://secure.utah.gov/llv/search/index.html. I therefore find that Registrant 
is without authority to dispense controlled substances under the laws 
of Utah, the State in which he holds his registration.
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    \4\ In accordance with the Administrative Procedure Act (APA), 
an agency ``may take official notice of facts at any stage in a 
proceeding--even in the final decision.'' U.S. Dept. of Justice, 
Attorney General's Manual on the Administrative Procedure Act 80 
(1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). In accordance with 
the APA and DEA's regulations, Respondent is ``entitled on timely 
request to an opportunity to show to the contrary.'' 5 U.S.C. 
556(e); see also 21 CFR 1316.59(e). To allow Respondent the 
opportunity to refute the facts of which I take official notice, 
Respondent may file a motion for reconsideration within 15 calendar 
days of the date of service of this Order which shall commence on 
the date this Order is mailed.
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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.'' Moreover, 
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, 76 FR 71371 (2011), pet. for rev. denied, 
481 Fed. Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, 43 FR 
27616 (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 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

[[Page 11060]]

in which he practices medicine. See, e.g., Hooper, 76 FR at 71371-72; 
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.
    Because Registrant currently lacks authority to handle controlled 
substances in Utah, the State in which he holds his DEA registration, 
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 
AP1393038, issued to Paul E. Pilgram, 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 Paul E. Pilgram, M.D., to renew or modify this registration, be, and 
it hereby is, denied. This Order is effective immediately.\5\
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    \5\ Based on the extensive findings of the Utah Division of 
Occupational and Professional Licensing, I find that the public 
interest necessitates that this Order be effective immediately. 21 
CFR 1316.67.

    Dated: February 9, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-03223 Filed 2-16-17; 8:45 am]
 BILLING CODE 4410-09-P