83 FR 54614 - Eric Lee Knight, M.D.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 83, Issue 210 (October 30, 2018)

[Federal Register Volume 83, Number 210 (Tuesday, October 30, 2018)]
[Notices]
[Pages 54614-54615]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-23708]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Eric Lee Knight, M.D.; Decision and Order

    On February 6, 2018, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause to Eric Lee Knight, M.D. 
(hereinafter, Registrant), of Derry, New Hampshire. Order to Show Cause 
(hereinafter, OSC), at 1. The OSC proposes the revocation of 
Registrant's Certificate of Registration on the ground that he does 
``not have authority to handle controlled substances in the State of 
New Hampshire, the state in which . . . [he is] registered with the 
DEA.'' Id. (citing 21 U.S.C. 823(f) and 824(a)(3)).
    Regarding jurisdiction, the OSC alleges that Registrant holds DEA 
Certificate of Registration No. BK7282940 at the registered address of 
93 \1/2\ Walnut Hill Road, Derry, New Hampshire 03038.\1\ OSC, at 1. 
This registration authorizes Registrant to dispense controlled 
substances in schedules II through V as a practitioner. Id. The OSC 
alleges that this registration expires on December 31, 2018. Id.
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    \1\ The OSC erroneously lists the number of Registrant's address 
on Walnut Hill Road as 92 \1/2\.
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    The substantive ground for the proceeding, as alleged in the OSC, 
is that Registrant is ``without authority to handle controlled 
substances in New Hampshire, the state in which [he is] registered with 
the DEA.'' Id. Specifically, the OSC alleges that the State of New 
Hampshire Board of Medicine (hereinafter, Board) issued an Order of 
Emergency License Suspension and Notice of Hearing on September 25, 
2017. Id. at 1-2. On the following day, September 26, 2017, Registrant 
entered into a written agreement ``not to practice medicine [including 
the writing of] prescriptions . . . until further order of the Board.'' 
Id. at 2.
    The OSC notifies 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 procedures for electing each option, and the 
consequences for failing to elect either option. Id. (citing 21 CFR 
1301.43). The OSC also notifies Registrant of the opportunity to submit 
a corrective action plan. OSC, at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated April 27, 2018, a Diversion Investigator 
(hereinafter, DI), who describes herself as being assigned to the DEA 
Boston Field Division-Manchester (New Hampshire) District Office, 
states that after two unsuccessful attempts at serving the OSC on 
Registrant, she and two Task Force Officers traveled to the residence 
of Registrant on February 16, 2018, and ``[a]fter displaying our 
credentials to Dr. Knight, I presented the original copy of the . . . 
[OSC] to Dr. Knight.'' (Government Exhibit (hereinafter, GX) 8 at 2-3 
(Declaration of DEA Diversion Investigator).
    In its Request for Final Agency Action dated May 3, 2018, the 
Government represents that ``[m]ore than 30-days have passed since 
Registrant received the . . . [OSC]; however, Registrant has not 
submitted to DEA a request for hearing.'' Request for Final Agency 
Action, at 2. In its Request for Final Agency Action--Addendum dated 
September 26, 2018, the Government represents that Registrant has not 
``corresponded in writing or otherwise with regard to his position on a 
hearing before DEA.'' Request for Final Agency Action--Addendum, at 2. 
The Government requests the issuance of a Final Order revoking 
Registrant's DEA registration. Id. at 4.
    Based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government personally served the OSC on Registrant on February 16, 
2018. I also find that more than 30 days have now passed since the date 
the Government served the OSC. Further, based on the Government's 
written representations, I find that neither Registrant, nor anyone 
purporting to represent him, requested a hearing, submitted a written 
statement while waiving Registrant's right to a hearing, or submitted a 
corrective action plan. Accordingly, I find that Registrant has waived 
his right to a hearing and his right to submit a written statement and 
corrective action plan. 21 CFR 1301.43(d) and 21 U.S.C. 824(c)(2)(C). 
I, therefore, issue this Decision and Order based on the record 
submitted by the Government, which constitutes the entire record before 
me. 21 CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
BK7282940 at the registered address of 93 \1/2\ Walnut Hill Road, 
Derry, New Hampshire 03038. GX 1 (Certification of Registration), at 1. 
Pursuant to this registration, Registrant is authorized to dispense 
controlled substances in schedules II through V as a practitioner. Id. 
Registrant's registration expires on December 31, 2018. Id.

The Status of Registrant's State License

    In this case, the Board issued an Order of Emergency License 
Suspension and Notice of Hearing on September 25, 2017. The Board's 
Order suspended Registrant's New Hampshire medical license until 
further order of the Board. GX 3 (Order of Emergency License Suspension 
and Notice of Hearing), at 13. On October 9, 2017, the Board accepted 
Registrant's agreement ``not to practice medicine . . . [including the 
writing of] prescriptions . . . until further order of the Board.'' GX 
4 (Preliminary Agreement Not to Practice), at 1.
    According to New Hampshire's online records, of which I take 
official notice, Registrant's license to practice medicine is still 
suspended.\2\ New Hampshire

[[Page 54615]]

Online Licensing, http://www.nhlicenses.nh.gov (last visited October 
18, 2018).
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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. 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, Registrant may dispute my finding by filing 
a properly supported motion for reconsideration within 20 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 Registrant files a motion, the Government 
shall have 20 calendar days to file a response.
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    Accordingly, I find that Registrant currently is not licensed to 
engage in the practice of medicine in New Hampshire, 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 (hereinafter, CSA), ``upon a finding that the 
registrant . . . has had his 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 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, 
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 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 CSA, the 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. 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.
    In this case, according to the Board, the Registrant is alleged to 
have engaged in numerous acts of professional misconduct based upon, 
inter alia, inappropriate personal relationships with patients, as well 
as his issuance of controlled substance prescriptions for no legitimate 
medical purpose in violation of New Hampshire law. GX 3, at 3-9. As a 
result of Registrant's alleged misconduct, on September 25, 2017, the 
Board issued its Order of Emergency License Suspension and Notice of 
Hearing. On September 26, 2017, Registrant entered into a Preliminary 
Agreement Not to Practice, whereby he agreed, inter alia, ``not to 
practice medicine . . . [including the writing of] prescriptions . . . 
until further order of the Board.'' GX 4, at 1. On October 9, 2017, the 
Board accepted Registrant's Preliminary Agreement Not to Practice. GX 
4, at 3. Consequently, Registrant is not currently authorized to handle 
controlled substances in the State of New Hampshire, the State in which 
he is registered with the Agency and, therefore, he is not entitled to 
maintain his DEA registration. Hooper, supra, 76 FR at 71,371-72, 
Blanton, supra, 43 FR at 27,617. Accordingly, I will order that 
Registrant's registration be revoked, that any pending application for 
the renewal or modification of his registration be denied, and that any 
pending application by Registrant for a registration in New Hampshire 
be denied. 21 U.S.C. 824(a)(3) and 823(f).

Order

    Pursuant to 28 CFR 0.100(b) and the authority thus vested in me by 
21 U.S.C. 824(a), I order that DEA Certificate of Registration No. 
BK7282940 issued to Eric Lee Knight, M.D., be, and it hereby is, 
revoked. Pursuant to 28 CFR 0.100(b) and the authority thus vested in 
me by 21 U.S.C. 823(f), I further order that any pending application of 
Eric Lee Knight, M.D., to renew or modify this registration, as well as 
any other pending application by him for registration in the State of 
New Hampshire, be, and it hereby is, denied. This Order is effective 
November 29, 2018.

    Dated: October 18, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018-23708 Filed 10-29-18; 8:45 am]
 BILLING CODE 4410-09-P