[Federal Register Volume 75, Number 96 (Wednesday, May 19, 2010)]
[Notices]
[Pages 28068-28070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11950]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Christopher Henry Lister, P.A.; Revocation of Registration
On November 3, 2009, I, the Deputy Administrator of the Drug
Enforcement Administration, issued an Order to Show Cause and Immediate
Suspension of Registration to Christopher Henry Lister, P.A.
(Respondent), of Hesperia, California. The Order proposed the
revocation of Respondent's DEA Certificate of Registration, ML0817900,
as a practitioner, and the denial of any pending applications to renew
or modify his registration, on the ground that he had committed acts
which render his registration inconsistent with the public interest.
Show Cause Order at 1 (citing 21 U.S.C. 823(f) & 824(a)(4)).
The Show Cause Order alleged that Respondent violated Federal law
by issuing controlled substance prescriptions ``outside [of] the usual
course of professional practice,'' which lacked a ``legitimate medical
purpose, and that he violated California law because he issued the
prescriptions ``without an appropriate prior examination and a medical
indication.'' Id. at 1-2 (citing 21 CFR 1306.04(a) & Cal. Bus. & Prof.
Code Sec. 2242(a)). More specifically, the Order alleged that on June
16, 2009, an undercover agent purchased through an intermediary a
prescription for 60 tablets of OxyContin 80 mg., and that Respondent
``never met or * * * much less conducted a physical examination'' of,
the person for whom he wrote the prescription. Id. at 2.
Next, the Show Cause Order alleged that on June 25, 2009, an
undercover agent purchased though an intermediary prescriptions for 90
tablets of OxyContin 80 mg., which were written in the names of four
different persons, and that Respondent had never met or conducted a
physical examination of any of these persons. Id. Finally, the Show
Cause Order alleged that on October 8, 2009, an informant purchased
from Respondent prescriptions for OxyContin 80 mg., Xanax 2 mg., Valium
10 mg., and Lortab 10/500 mg., which were post-dated for October 29,
2009, and written in the names of three different persons he never
physically examined. Id.
Based on the above, I further concluded that Respondent's continued
registration during the pendency of the proceeding would ``constitute[]
an imminent danger to the public health and safety.'' Id. Therefore,
pursuant to my authority under 21 U.S.C. 824(d), I immediately
suspended Respondent's registration. Id. The Order further explained
that Respondent had the right to request a hearing on the allegations,
the procedure for doing so, and that if he failed to do so, the
scheduled hearing would be cancelled and he would be deemed to have
waived his right to a hearing. Id.
On November 5, 2009, a DEA Special Agent personally served
Respondent with the Order to Show Cause and Immediate Suspension of
Registration. Moreover, on November 6, 2009, Government Counsel served
a copy of the Order on Respondent by First-Class Mail to him at his
registered location.
More than thirty days have now passed since the service of the
Order to Show Cause and Immediate Suspension, and neither Respondent,
nor anyone purporting to represent him, has requested a hearing. I
therefore find that Respondent has waived his right to a hearing, 21
CFR 1301.43(d), and issue this Decision and Final Order without a
hearing based on the record submitted by the Government. I make the
following findings.
Findings
Respondent is the holder of DEA Certificate Registration,
ML0817900. Respondent last renewed his registration on April 2, 2008;
the registration does not expire until March 31, 2011.
Respondent also holds a Physician Assistant (PA) License issued by
the Physician Assistant Committee of the Medical Board of California.
On November 6, 2009, the Executive Officer of the Physician Assistant
Committee filed a petition for an interim order of suspension of
Respondent's state license. On November 12, 2009, a state
Administrative Law Judge (ALJ) granted the petition and immediately
suspended Respondent's PA license. The ALJ also ordered that Respondent
appear for hearing on November 30, 2009, to show cause why the interim
order suspending his license ``should not remain in full force and
effect pending the issuance of a final decision by the Medical Board of
California.'' Interim Order of Suspension at 2, Portman v. Lister (Cal.
Office. of Admin. Hearings, No. 1E-2008-195465).
On November 30, 2009, a hearing was held before another state ALJ.
Following the hearing, the ALJ found that:
[o]n October 8, 2009, a Bureau of Narcotics Enforcement
confidential informant (CI) met with respondent at the CI's
residence. The meeting was monitored by a DEA agent. During the
meeting the CI provided respondent with a list of names and asked
respondent to prescribe OxyContin, Xanax, Ambien, and Valium to the
listed individuals in exchange for $750 in cash. Respondent did as
requested, and took the $750 cash payment.
Order of Interim Suspension at 2, In re Lister.
Based on this finding, the ALJ concluded ``that respondent has
engaged in acts constituting violations of the Medical Practice Act''
and that the State had ``show[n] that permitting [him] to continue to
engage in the profession for which [his] license was issued will
endanger the public health, safety, or welfare.'' Id. at 3 (citing Cal.
Gov. Code Sec. 11529(a)). In a footnote, the ALJ further explained
that ``[b]y prescribing dangerous drugs and controlled substances to
the CI without an appropriate medical examination and without any
medical indication * * * Respondent violated [various] provisions of
the Medical Practice[] Act'' including, inter alia, Cal. Bus. & Prof.
Code Sec. 2242(a) (``furnishing dangerous drugs without
examination''), and Cal. Health & Safety Code Sec. 11153(a)
(``prescribing controlled substances without a legitimate medical
purpose''). Id. at n.6. The ALJ thus granted the
[[Page 28069]]
State's petition and ordered that Respondent's license remain
``suspended until final resolution of the underlying Accusation.'' Id.
at 4.
Discussion
Section 304(a) of the Controlled Substances Act (CSA) provides that
a registration to ``dispense a controlled substance * * * may be
suspended or revoked by the Attorney General upon a finding that the
registrant * * * 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)(4). With respect to a practitioner, the CSA requires the
consideration of the following factors in making the public interest
determination:
(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. Sec. 823(f).
``[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).
While I have considered all of the factors, I conclude that it is
not necessary to make findings as to factors three and five. As
explained below, I conclude that the finding of the state ALJ that
Respondent violated California law by prescribing controlled substances
without performing an appropriate medical examination and without a
legitimate medical purpose is dispositive in assessing his experience
in dispensing controlled substances (factor two) and his compliance
with State and Federal laws related to controlled substances (factor
four). The state ALJ's finding further establishes that Respondent has
committed acts which render his continued registration ``inconsistent
with the public interest.'' 21 U.S.C. 824(a)(4).
Factors Two and Four--Respondent's Experience in Dispensing Controlled
Substances and Record of Compliance With Applicable Controlled
Substance Laws
Under a longstanding DEA regulation, a prescription for a
controlled substance is not ``effective'' unless it is ``issued for a
legitimate medical purpose by an individual practitioner acting in the
usual course of his professional practice.'' 21 CFR 1306.04(a). This
regulation further provides that ``an order purporting to be a
prescription issued not in the usual course of professional treatment *
* * is not a prescription within the meaning and intent of [21 U.S.C.
829] and * * * the person issuing it, shall be subject to the penalties
provided for violations of the provisions of law related to controlled
substances.'' Id. See also 21 U.S.C. 802(10) (defining the term
``dispense'' as meaning ``to deliver a controlled substance to an
ultimate user by, or pursuant to the lawful order of, a practitioner,
including the prescribing and administering of a controlled
substance'') (emphasis added).
As the Supreme Court recently explained, ``the prescription
requirement * * * ensures patients use controlled substances under the
supervision of a doctor so as to prevent addiction and recreational
abuse. As a corollary, [it] also bars doctors from peddling to patients
who crave the drugs for those prohibited uses.'' Gonzales v. Oregon,
546 U.S. 243, 274 (2006) (citing United States v. Moore, 423 U.S. 122,
135, 143 (1975)).
Under the CSA, it is fundamental that a practitioner must establish
and maintain a bonafide doctor-patient relationship in order to act
``in the usual course of * * * professional practice'' and to issue a
prescription for a ``legitimate medical purpose.'' Laurence T.
McKinney, 73 FR 43260, 43265 n.22 (2008); see also Moore, 423 U.S. at
142-43 (noting that evidence established that physician ``exceeded the
bounds of `professional practice,' '' when ``he gave inadequate
physical examinations or none at all,'' ``ignored the results of the
tests he did make,'' and ``took no precautions against * * * misuse and
diversion''). Moreover, the CSA generally looks to state law to
determine whether a doctor and patient have established a bona fide
doctor-patient relationship. See Kamir Garces-Mejias, 72 FR 54931,
54935 (2007); United Prescription Services, Inc., 72 FR 50397, 50407
(2007).
Under California law, except for in circumstances not applicable
here, ``[p]rescribing, dispensing, or furnishing dangerous drugs * * *
without an appropriate prior examination and a medical indication,
constitutes unprofessional conduct.'' Cal. Bus. & Prof. Code Sec.
2242(a). California law further adopts nearly verbatim the CSA's
prescription requirement. See Cal. Health & Safety Code Sec. 11153(a)
(``A prescription for a controlled substance shall only be issued for a
legitimate medical purpose by an individual practitioner acting in the
usual course of his or her professional practice.'').
Here, a state ALJ found that, on October 8, 2009, Respondent
violated both of these provisions of California law when he sold
prescriptions for OxyContin, a schedule II controlled substance, as
well as Xanax, Ambien, and Valium (all of which are schedule IV
controlled substances), to a confidential informant working for the
California Bureau of Narcotics Enforcement in exchange for $750 in
cash. While Respondent did not appear at the state hearing, the state
ALJ found that he ``was properly noticed of the date, time and place of
the hearing.'' Order of Interim Suspension, at 1. Accordingly, I hold
that the state ALJ's finding is entitled to preclusive effect in this
proceeding. See University of Tennessee v. Elliot, 478 U.S. 788, 797-98
(1986) (``When an administrative agency is acting in a judicial
capacity and resolves disputed issues of fact properly before it which
the parties have had an adequate opportunity to litigate, the courts
have not hesitated to apply res judicata[.]'') (int. quotations and
citations omitted). Based on the state ALJ's findings, I further
conclude that Respondent lacked a legitimate medical purpose and acted
outside of the usual course of professional practice in issuing each of
the prescriptions and thus violated Federal law as well. See 21 CFR
1306.04(a); 21 U.S.C. 841(a)(1).
I thus conclude that Respondent has committed acts which render his
registration ``inconsistent with the public interest.'' 21 U.S.C.
824(a)(4). Accordingly, Respondent's registration will be revoked.\1\
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\1\ It is further noted that because the State has imposed an
order of interim suspension against Respondent's PA license, he does
not have authority to dispense controlled substances and thus does
not meet an essential requirement for holding a registration under
the CSA. See, e.g., John B. Freitas, 74 FR 17524, 17525 (2009); 21
U.S.C. Sec. Sec. 823(f) & 824(a)(3).
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Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) &
824(a)(4), as well as 28 CFR 0.100(b) & 0.104, I order that DEA
Certificate of Registration, ML0817900, issued to Christopher
[[Page 28070]]
Henry Lister, P.A., be, and it hereby is, revoked. I further order that
any pending application of Christopher Henry Lister, P.A., to renew or
modify his registration, be, and it hereby is, denied. This Order is
effective immediately.
Dated: May 6, 2010.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 2010-11950 Filed 5-18-10; 8:45 am]
BILLING CODE 4410-09-P