[Federal Register: August 24, 2006 (Volume 71, Number 164)]
[Notices]
[Page 50097-50099]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24au06-77]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Peter A. Ahles, M.D.; Revocation of Registration
On August 15, 2005, I, the Deputy Administrator of the Drug
Enforcement Administration, issued an Order to Show Cause and further
ordered the immediate suspension of DEA Certificate of Registration,
AA0092558, issued to Peter A. Ahles, M.D. (Respondent), of Anaheim,
California. The Show Cause Order proposed to revoke Respondent's
registration as a practitioner and to deny any pending applications for
renewal or modification of the registration, on the ground that
Respondent's continued registration would be inconsistent with the
public interest. See 21 U.S.C. 823(f) and 824(a)(4). The Show Cause
Order also immediately suspended Respondent's registration based on my
preliminary finding that his continued registration ``would constitute
an immediate danger to the public health and safety because of the
substantial likelihood that [he would] continue to acquire large
amounts of narcotic controlled substances and * * * illegally
distribute these narcotic controlled substances to potential abusers
and other unauthorized persons in exchange for cash.'' Show Cause Order
at 3.
The Show Cause Order specifically alleged that based on a review of
transaction reports filed by DEA registrants, Respondent, during the
period March 2004 to March 2005, had received ``nearly 570,000 tablets
of Schedule III hydrocodone and codeine tablets, most of which were
packaged in 500 and 1000 count bottles.'' Id. at 1-2. The Show Cause
Order alleged that ``[t]hese are excessive amounts of narcotics to be
legitimately dispensed or administered from a single practitioner's
office in a one-year period.'' Id. The Show Cause Order further alleged
that in the thirteen month period ending in April 2005, Respondent
``had purchased over one million dosage units of Schedule II through V
controlled substances, [which were] predominately narcotic tablets.''
Id. at 2.
The Show Cause Order also alleged that on three occasions during
May 2005, a DEA Special Agent and a cooperating source (CS) had visited
Respondent's office and made undercover buys of hydrocodone, a Schedule
III controlled substance. Id. The Show Cause Order alleged that on two
occasions, the Special Agent observed the CS pay Respondent $500 in
cash and receive a plastic bag containing approximately 500 tablets of
hydrocodone. Id. The Show Cause Order alleged that on the other
occasion, the Special Agent observed the CS pay Respondent $600 and
receive a plastic bag containing 500 tablets of Norco, another
hydrocodone product. Id. The Show Cause Order further alleged that
Respondent made each of the dispensings without asking the CS for his
medical complaint, taking a medical history, or conducting a physical
examination. The Show Cause Order thus alleged that the distributions
were made ``without any legitimate medical purpose and [were] not in
the course of legitimate medical practice'' and violated 21 U.S.C.
841(a)(1). Id.
Finally, the Show Cause Order alleged that Respondent had, in
submitting his DEA renewal application, answered
[[Page 50098]]
``No'' the question whether his state license had ever been revoked,
suspended, or placed on probation. Id. The Show Cause Order alleged
that the Medical Board of California had, in fact, placed Respondent's
state license on probation three different times and that Respondent
had thus ``materially falsified [his] application for registration in
violation of 21 U.S.C. 843(a)(4)(A).'' Id. at 2-3. Based on evidence in
the investigative file supporting the above allegations, I further made
the preliminary finding that Respondent had ``grossly avoided [his]
responsibilities as a registrant and [had] been responsible for the
actual diversion of controlled substances into other than legitimate
channels in violation of 21 U.S.C. 841(a)(1).'' \1\
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\1\ The Show Cause Order also notified Respondent of his right
to a hearing and the procedure for requesting one.
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On August 16, 2005, a DEA Diversion Investigator (DI) personally
served the Show Cause Order on Respondent. Since that time, neither
Respondent, nor anyone purporting to represent him, has responded.
Because (1) more than thirty days have passed since Respondent's
receipt of the Show Cause Order, and (2) no request for a hearing has
been received, I conclude that Respondent has waived his right to a
hearing. See 21 CFR 1309.53(c). I therefore enter this final order
without a hearing based on information contained in the investigative
file.
Findings
Respondent is the holder of DEA Certificate of Registration No.
AA0092588, which expired on June 30, 2005. On May 5, 2005, Respondent
applied for a renewal of his registration and sought authority to
prescribe Schedule II through V controlled substances including
Schedule II and III narcotics. On his renewal application, Respondent
answered ``No'' the question: ``Has the applicant ever surrendered (for
cause) or had a state professional license or controlled substance
registration revoked, suspended, denied, restricted, or placed on
probation?''
According to the Medical Board of California's records, at the time
Respondent filed his renewal application, he had been the subject of
three separate disciplinary proceedings. In each of these cases, the
California Board placed Respondent on probation.\2\ I also take
official notice of the records of the California Board which indicate
that on February 24, 2006, Respondent surrendered his state license.
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\2\ The proceedings were commenced in June 1975, September 1992,
and October 1996.
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The investigative file further establishes that between March 2004
and April 2005, Respondent purchased over one million dosage units of
Schedule III through Schedule V controlled substances from ANDA
Pharmaceuticals. Respondent obtained hydrocodone 7.5 and 10 mg.
tablets, codeine 4, Stadol (butorphanol tartrate), and
Phenergan with codeine.
The investigative file also establishes that in April 2005, a DEA
Special Agent and a DEA Diversion Investigator debriefed a cooperating
source (CS). The CS stated that he/she had purchased various controlled
substances including hydrocodone, Norco, and Xanax from Respondent.
During the interviews, the CS related that Respondent performed little
to no medical examination and did not require that the CS give a
medical reason before selling the drugs to the CS. The CS further
asserted that Respondent charged $500 cash for 500 pills/tablets of
controlled substances, but charged $600 for 500 pills/tablets of Norco.
The CS also stated that Respondent would prescribe any drug including
Schedule II controlled substances such as Oxycontin to persons he knows
well. Finally, the CS related that Respondent had few legitimate
patients and that most of the people he saw visited him to obtain
prescription drugs either for personal use or to resell the drugs on
the street.
The investigative file further establishes that following the
interviews, a DEA special agent accompanied the CS to Respondent's
office on three separate dates. On May 12, 2005, the Special Agent
observed as the CS paid Respondent $500 and received a black plastic
bag containing approximately 500 hydrocodone tablets. Respondent did
not perform a physical examination on the CS and did not discuss with
the CS a medical reason for the dispensing. Moreover, Respondent did
not give the CS any directions for use of the drugs. The Special Agent
further observed that Respondent appeared to be under the influence of
some substance.
On May 18, 2005, the same Special Agent and the CS returned to
Respondent's office. On this occasion, the CS paid $600 and received
from Respondent a black plastic bag containing 500 tablets of Norco.
While on this occasion Respondent weighed the CS, the CS offered no
medical complaint and Respondent did not perform a physical exam.
Respondent also failed to give the CS any directions for use of the
drugs.
Finally, on May 19, 2005, the Special Agent and the CS returned to
Respondent's office. On this occasion, the Special Agent paid
Respondent $500 and requested 500 hydrocodone tablets. Respondent
handed the Special Agent a black plastic bag containing approximately
500 Norco tablets. The Special Agent did not complain of any medical
symptoms and Respondent did not perform a physical examination.
Discussion
As pertinent here, Section 304 of the Controlled Substances Act
(CSA) provides that a registration to:
Dispense a controlled substance * * * may be suspended or
revoked * * * upon a finding that the registrant--
(1) Has materially falsified any application filed pursuant to
or required by this subchapter or subchapter II of this chapter;
* * * * *
(3) Has had his State license or registration suspended,
revoked, or denied by competent State authority and is no longer
authorized by State law to engage in the * * * distribution, or
dispensing of controlled substances * * *;
(4) Has committed such acts as would render his registration
under section 823 of this title inconsistent with the public
interest as determined under such section[.]
21 U.S.C. 824(a).
In this case, I conclude that each of the above provisions provide
independent grounds for revoking Respondent's registration.
First, it is clear that Respondent materially falsified his May 5,
2005 application for renewal of his registration. On that application,
Respondent was asked whether he had ``ever surrendered (for cause) or
had a state professional license or controlled substance registration
revoked, suspended, denied, restricted, or placed on probation?''
(emphasis added). Respondent answered ``No,'' notwithstanding that the
Medical Board of California had placed him on probation on three
separate occasions. Given that the question specifically asked
Respondent whether his medical license had ever been ``placed on
probation,'' it is indisputable that Respondent's answer was a material
falsification.
The CSA requires DEA to determine whether the issuance of a
registration would be consistent with the public interest. See 21
U.S.C. 823(f). The provision of truthful information on applications is
absolutely essential to effectuating this statutory purpose. See 21
U.S.C. 824(a)(1); see also VI Pharmacy, Rushdi Z. Salem, 69 FR 5584,
5585 (2004); Terrance E. Murphy, M.D., 61 FR 2841, 2845 (1996). As the
[[Page 50099]]
Sixth Circuit recently observed: ``Candor during DEA investigations * *
* is considered by the DEA to be an important factor when assessing
whether a physician's registration is consistent with the public
interest.'' Hoxie v. DEA, 419 F.3d 477, 483 (2005). Our cases
accordingly hold that ``'falsification cannot be tolerated.''' VI
Pharmacy, 69 FR at 5585 (quoting Murphy, 61 FR at 2845) (other citation
omitted). Respondent's failure to truthfully answer the question
regarding prior state disciplinary actions is thus reason alone to
revoke his registration.
Respondent's drug dealing provides an additional ground for
revoking his registration. Such conduct clearly constitutes acts which
``render his registration * * * inconsistent with the public
interest.'' See 21 U.S.C. 824(a)(4). Moreover, while the CSA sets forth
five factors to be considered in determining the public interest, see
id. Sec. 823(f), I am ``not required to make findings as to all of the
factors, and can give each factor the weight [I] determine[] is
appropriate.'' Hoxie, 419 F.3d at 482; see also Morall v. DEA, 412 F.3d
165, 173-74 (D.C. Cir. 2005). Where, as here, a registrant has engaged
in such egregious misconduct as drug dealing, a lengthy analysis of
each of the factors is unnecessary.
It is indisputable that Respondent did not comply with applicable
State and Federal laws ``relating to controlled substances'' and that
his conduct ``threaten[s] public health and safety.'' 21 U.S.C.
823(f)(4) and (5). Furthermore, while the investigative file does not
contain evidence establishing what action the Medical Board of
California took in response to this investigation, see id. Sec.
823(f)(1), I have taken official notice of the fact that on February
24, 2006, Respondent surrendered his California medical license in
response to the State Board's accusation that Respondent committed
unprofessional conduct for, inter alia, violating state and federal
drug laws.\3\ See also id. Sec. 824(a)(3). Thus, it is clear that
Respondent ``has committed such acts as would render his registration *
* * inconsistent with the public interest as determined under'' section
823(f). Id. Sec. 824(a)(4). The revocation of Respondent's
registration is therefore necessary to protect the public interest.
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\3\ Although the Show Cause Order did not allege Respondent's
loss of state authority as a ground for this proceeding, the CSA
does not authorize DEA ``to maintain a registration if the
registrant is without state authority to handle controlled
substances in the state in which he practices.'' Sheran Arden
Yeates, M.D., 71 FR 39130, 39131 (2006). DEA has consistently
applied this rule. Id.; see also Dominick A. Ricci, M.D., 58 FR
51104 (1993); Bobby Watts, M.D., 53 FR 11919 (1988). Because
Respondent no longer has authority under California law to handle
controlled substances, he is not entitled to maintain his DEA
registration and revocation of his registration is warranted for
this reason as well. Furthermore, an allegation that a practitioner
has committed acts that render his continued registration
inconsistent with the public interest incorporates the statutory
factors of 21 U.S.C. 823(f). See 21 U.S.C. 824(a)(4). The first
factor requires consideration of ``[t]he recommendation of the
appropriate State licensing board or professional disciplinary
authority.'' See id. Sec. 823(f)(1). An allegation brought under
section 824(a)(4) thus provides adequate notice that a loss of a
State license may be considered during the proceeding.
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Order
Accordingly, pursuant to the authority vested in me by 21 U.S.C.
823(f) and 824(a), as well as 28 CFR 0.100(b) and 0.104, I hereby order
that DEA Certificate of Registration, AA0092558, issued to Peter A.
Ahles, M.D., be, and it hereby is, revoked. I further order that any
pending applications for renewal or modification of such registration
be, and they hereby are, denied. This order is effective September 25,
2006.
Dated: August 15, 2006.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E6-14050 Filed 8-23-06; 8:45 am]
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