[Federal Register: August 1, 2007 (Volume 72, Number 147)]
[Notices]
[Page 42127-42129]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01au07-103]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Alan H. Olefsky, M.D.; Denial of Application
On May 25, 2005, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Alan H. Olefsky, M.D. (Respondent), of Chicago, Illinois.
The Show Cause Order proposed to revoke Respondent's DEA Certificate of
Registration, BO3661104, as a practitioner, and to deny any pending
applications for renewal or modification of his registration, on the
ground that the Illinois Department of Financial and Professional
Regulation had suspended his state medical license and state controlled
substance license. Show Cause Order at 1. The Show Cause Order thus
alleged that Respondent was not authorized to handle controlled
substances in the State where he was registered and was thus not
entitled to maintain his registration. Id. (citing 21 U.S.C.
824(a)(3)).
The Show Cause Order also alleged that Respondent had committed
acts which rendered his registration inconsistent with the public
interest. Id. (citing 21 U.S.C. 824(a)(4)). More specifically, the Show
Cause Order alleged that from December 2002 through October 2004,
Respondent had ``issued false prescriptions for controlled substances
in the names of'' three individuals, and that the prescriptions were
for his ``personal use.'' Id. The Show Cause Order also notified
Respondent of his right to request a hearing on the allegations.
On June 8, 2005, the Show Cause Order was served on Respondent by
certified mail as evidenced by the signed return receipt card. Neither
Respondent, nor anyone purporting to represent him, requested a hearing
on the allegations within the time period set forth in 21 CFR
1301.43(a) and the Show Cause Order.
The matter was held in abeyance after the State restored
Respondent's medical license. On March 30, 2007, the State again
suspended Respondent's medical license. Accordingly, on May 10, 2007,
the investigative file was forwarded to my Office for final agency
action.
As an initial matter, I find that because Respondent did not
request a hearing within thirty days of receipt of the Show Cause order
he has waived his right to hearing. See 21 CFR 1301.43(d). I therefore
enter this Final Order without a hearing based on relevant material in
the investigative file and make the following findings.
Findings
Respondent was the holder of DEA Certificate of Registration,
BO3661104, which authorized him to handle schedule II through V
controlled substances as a practitioner. Respondent's registration
expired on December 31, 2004. According to the investigative file,
Respondent did not submit a renewal application until February 24,
2005, nearly two months after his registration expired. Accordingly, I
find that Respondent's renewal application was not timely submitted and
his registration expired on December 31, 2004. See 5 U.S.C. 558(c)
(requiring submission of a ``timely and sufficient application for a
renewal'' in order for a registration to be continued until the Agency
makes a ``final determin[ation]'' on the application). I further find,
however, that Respondent does have an application pending before the
agency.
According to the investigative file, on February 18, 2005, the
Illinois Department of Financial and Professional Regulation summarily
suspended Respondent's state medical license and controlled substance
registrations. In support of the suspension, the State alleged, inter
alia, that ``Respondent issued false prescriptions for controlled
substances under other names for personal use.'' Pet. For Temp. Susp.
1. The petition was supported by the sworn affidavit of Larry G.
McClain, M.D., the Chief Medical Coordinator of the Illinois Department
of Financial and Professional Regulation. In his affidavit, Dr. McClain
averred that ``the Department has learned that Respondent has
repeatedly issued false prescriptions for Xanax, Dilaudid and Viagra.
He calls in these prescriptions in the names of [M.G., V.G. and T.C.]
He obtains these prescriptions for personal use and pays cash to remain
untraceable.'' Dr. McClain further averred that ``Respondent was
arrested for a DUI in June of 2004 and * * * has an extensive criminal
history.''
In September 2006, Respondent and the State entered into a consent
order under which his medical license was restored based on his having
entered a treatment program and an Aftercare Agreement. Consent Order
at 2. In the order, ``Respondent admit[ted] the allegations raised by
the Department.'' Id. The consent order, which became effective on
November 21, 2006, placed Respondent on ``Indefinite Probation,'' and
also imposed various conditions including that he comply with the terms
[[Page 42128]]
of an Aftercare Agreement and abstain from the use of alcohol and
``mood altering and/or psychoactive drugs'' except as ``prescribed by a
primary care and/or treating physician.'' Id. at 3.
Thereafter, on March 30, 2007, the State again imposed a summary
suspension of Respondent's medical license, which remains in effect.
See Notice of Temporary Suspension. In the Complaint, the State alleged
that in January 2007, Respondent had been hospitalized with ``a blood
alcohol level of 327.'' Complaint at 2. The State also alleged that in
February 2007, Respondent had been admitted to Rush Behavioral Care to
be treated for ``alcohol dependence.'' Id. The State further alleged
that in February 2007, Respondent had applied for a new state
Controlled Substance Registration. Id. Finally, the Complaint alleged
that Respondent had failed to comply with the conditions of Consent
Order.\1\
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\1\ I also take official notice of the fact that on January 9,
1992, the Administrator of this Agency ordered the revocation of
Respondent's registration based on his having presented fraudulent
prescriptions for Percocet and Halcion to a pharmacy. See Alan H.
Olefsky, 57 FR 928, 929 (1992).
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There is no evidence in the file that the State has granted
Respondent a new Controlled Substance Registration. Moreover, the
State's summary suspension further ordered Respondent to ``immediately
surrender all indicia of licensure to the Department.'' March 30, 2007
Summary Suspension Order at 1-2. I therefore find that Respondent does
not hold a current Illinois Controlled Substance Registration.
Discussion
Section 303(f) of the Controlled Substances Act provides that
``[t]he Attorney General shall register practitioners * * * to dispense
* * * controlled substances in schedule II, III, IV, or V, 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).
Section 303(f) further provides that ``[t]he Attorney General may deny
an application for such registration if he determines that the issuance
of such registration would be inconsistent with the public interest.''
Id. In making the public interest determination, the Act requires the
consideration of the following factors:
(1) The recommendation of the appropriate State licensing board
or professional disciplinary authority.
(2) The applicant's experience in dispensing * * * controlled
substances.
(3) The applicant's conviction record under Federal or State
laws relating to the manufacture, distribution, or dispensing of
controlled substances.
(4) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health and
safety.
Id.
``[T]hese factors are * * * considered in the disjunctive.'' Robert
A. Leslie, M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or
a combination of factors, and may give each factor the weight [I] deem[
] appropriate in determining whether a registration should be
revoked.'' Id. Moreover, I am ``not required to make findings as to all
of the factors.'' Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see
also Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005).
In this case, I conclude that there are two independent grounds for
denying Respondent's application. First, Respondent is not currently
authorized under Illinois law to handle controlled substances and thus
does not meet an essential requirement for a registration under the
CSA. Second, Respondent's experience in dispensing controlled
substances and his record of compliance with applicable laws make clear
that granting him a registration would be inconsistent with the public
interest.
Respondent's Lack of State Authority
Under the Controlled Substances Act (CSA), a practitioner must be
currently authorized to handle controlled substances in ``the
jurisdiction in which he practices'' in order to maintain a DEA
registration. See 21 U.S.C. 802(21) (``[t]he term `practitioner' means
a physician * * * 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''). See also id. 823(f) (``The Attorney General
shall register practitioners * * * if the applicant is authorized to
dispense * * * controlled substances under the laws of the State in
which he practices.''). Relatedly, DEA has held repeatedly that the CSA
requires the revocation of a registration issued to a practitioner who
no longer possesses authority under state law to handle controlled
substances. See Sheran Arden Yeates, 71 FR 39130, 39131 (2006);
Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919,
11920 (1988). See also 21 U.S.C. 824(a)(3) (authorizing the revocation
of a registration ``upon a finding that the registrant * * * has had
his State license or registration suspended [or] revoked * * * and is
no longer authorized by State law to engage in the * * * distribution
[or] dispensing of controlled substances'').
Here, the investigative file establishes that Respondent's Illinois
controlled substance registrations were suspended pursuant to the
State's February 18, 2005 order. Moreover, there is no evidence that
the State has issued a new controlled substance registration to him,
and in any event, the State's March 30, 2007 order directed him to
``immediately surrender all indicia of licensure to the Department.''
Therefore, Respondent is without authority to handle controlled
substances in Illinois, the State in which he seeks registration.
Respondent thus does not meet an essential prerequisite for a new DEA
registration and his application will be denied on that basis. See 21
U.S.C. 823(f).
The Public Interest Analysis
Because the State's summary suspension is not a final order, review
of Respondent's application under the public interest factors is also
warranted. Here, Dr. McClain's affidavit establishes that Respondent
``repeatedly issued false prescriptions'' in the names of other persons
for Xanax (alprazolam), a schedule IV controlled substance, see 21 CFR
1308.14(c), and Dilaudid (hydromorphone), a schedule II controlled
substance. See id. 1308.12(b)(1). Respondent then filled the
prescriptions and personally abused the drugs. Respondent admitted to
this conduct in the Consent Order. I thus find that Respondent violated
Federal law. See 21 U.S.C. 843(a)(3) (rendering it ``unlawful for any
person knowingly or intentionally * * * to acquire or obtain possession
of a controlled substance by misrepresentation, fraud, forgery,
deception, or subterfuge'').
Moreover, as noted above, this is not the first time that
Respondent has engaged in such criminal behavior. See Olesky, 57 FR at
928-29. Accordingly, Respondent's experience in dispensing controlled
substances and his record of compliance with Federal law amply
demonstrate that granting his application for registration would be
``inconsistent with the public interest.'' 21 U.S.C. 823(f). Therefore,
even if the State were to restore his medical license and grant him a
new state controlled substance registration, I would still deny his
application.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well
as 28 CFR 0.100(b) & 0.104, I order that the application of Alan H.
Olefksy, M.D., for a DEA Certificate of Registration as a
[[Page 42129]]
practitioner be, and it hereby is, denied. This order is effective
August 31, 2007.
Dated: July 20, 2007.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E7-14820 Filed 7-31-07; 8:45 am]
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