[Federal Register Volume 75, Number 157 (Monday, August 16, 2010)]
[Notices]
[Pages 49978-49979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20194]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Nicholas J. Jerrard, M.D.; Revocation of Registration
On September 30, 2009, the Deputy Assistant Administrator, Office
of Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Nicholas J. Jerrard, M.D. (Respondent), of San
Diego, California. The Show Cause Order proposed the revocation of
Respondent's DEA Certificate of Registration, BJ6361036, which
authorizes him to dispense controlled substances as a practitioner, on
the ground that he does not ``have authority to practice medicine or
handle controlled substances in the state of California.'' Show Cause
Order at 1. The Order also proposed the denial of ``any pending
applications for renewal or modification of'' Respondent's
registration. Id.
Specifically, the Order alleged that the Medical Board of
California (MBC) had ``revoked [Respondent's] State medical license''
and that he is ``currently without authority to handle controlled
substances in the State of California.'' Id. The Order also alleged
that the Board based its revocation of his license ``on a report from
the Oregon Board of Medical Examiners'' which indicated that he
``failed a pre-employment drug screen by testing positive for two
Schedule IV controlled substances and failed to provide proof of valid
prescriptions for the medications.'' Id. at 2. Finally, the Order
alleged that in an interview with an MBC investigator in June 2008,
Respondent ``admitted that [he] had used methamphetamine approximately
every two months since 2005.'' Id. Finally, the Order notified
Respondent of his right to request a hearing on the allegations, the
procedure for doing so, and the consequences for failing to do so. Id.
On December 10, 2009, a DEA Diversion Investigator (DI) served
Respondent by leaving a copy of the Show Cause Order at Respondent's
registered address. Moreover, on December 22, 2009, the DI left a copy
of Show Cause Order at an address in San Diego for Respondent which he
had obtained from the MBC.\1\
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\1\ In addition, the DI had previously gone to Respondent's
registered address and met its ``current occupant,'' who stated that
he was in contact with Respondent but that the latter ``had been out
of the country for a few years.'' The DI gave this person his
contact information and asked that he have Respondent contact him;
however, Respondent did not contact the DI. The DI also performed an
Internet search for Respondent's ``possible practice locations'' but
was ``unable to locate any pertinent information.''
As regards the sufficiency of service of the Order to Show
Cause, I conclude that notwithstanding that Respondent was not
personally served, the Government has met the requirements of the
Due Process Clause. As to notice, due process is satisfied when
``[t]he means employed [are] such as one desirous of actually
informing the absentee might reasonably adopt to accomplish.''
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315
(1950). More recently, the Supreme Court has held that ``[d]ue
process does not require that a property owner receive actual notice
before the government may take his property.'' Jones v. Flowers, 547
U.S. 220, 226 (citing Dusenbery v. United States, 543 U.S. 161, 170
(2002)). Furthermore, due process does not require ``heroic
efforts,'' Dusenbery, 534 U.S. at 170, but rather only that ``the
government * * * provide `notice reasonably calculated, under all
the circumstances to apprise interested parties of the pendency of
the action and afford them an opportunity to present their
objections.' '' 547 U.S. at 226 (quoting Mullane, 339 U.S. at 314).
I accordingly find that the DI's efforts to serve the Order on
Respondent satisfied due process notwithstanding the Government's
inability to effectuate personal service as the DI's efforts were
``reasonably calculated, under all the circumstances, to apprise
[Respondent] of the pendency of the action.'' Mullane, 339 U.S. at
314.
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[[Page 49979]]
Since the date of service of the Show Cause Order, more than thirty
days have passed 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 and issue this Decision
and Final Order based on the record submitted by the Government. 21 CFR
1301.43. I make the following findings.
Findings
Respondent holds DEA Certificate of Registration BJ6361036, which
was last renewed on January 1, 2008. The registration does not expire
until December 31, 2010.
On March 24, 2009, the MBC adopted a Default Decision and Order in
a case brought against a Respondent's State medical license. In re
Nicholas Joseph Jerrard, M.D., No. 10-2006-179554, Decision at 1 (Med.
Bd. Cal. 2009). According to the decision, in November 2006, the MBC
received a report from the Oregon Board of Medical Examiners (Oregon
Board) which indicated that Respondent ``had failed a pre-employment
drug screen by testing positive for nordiazepam and temazepam and had
failed to provide proof of a valid prescription for the medication.''
In re Jerrard, Default Decision and Order at 5. After an investigation,
the Oregon Board allowed Respondent to withdraw his application to
reactivate his medical license and closed the matter with no action
taken. Id.
On June 10, 2008, an Investigator from the MBC interviewed
Respondent. During the interview, Respondent admitted that ``he had
used methamphetamines approximately every two months since 2005.'' Id.
at 6.
The MBC further found that following the pre-employment drug screen
which he failed, Respondent was evaluated at the Betty Ford Center. Id.
The Center recommended that he undergo six months of inpatient
treatment. Id. Because of financial reasons and his fear of losing two
jobs, Respondent did not follow through with the recommendation. Id.
However, around January 2008, he underwent some ten weeks of
treatment at Rancho L'Abri, another inpatient facility. Id. After his
discharge, Respondent found out that he had been fired from both his
jobs and experienced a relapsed. Id. Thereafter, he was readmitted to
Rancho L'Abri for one month and discharged to a 90-day outpatient
program. Id. Respondent, nevertheless, participated in the program for
only one day, indicating that he did not ``feel comfortable there.''
Id. Subsequently, he joined another outpatient treatment program from
which he graduated in September 2008. Id.
The MBC further concluded that Respondent had ``[s]elf-administered
controlled substances'' in violation of California Business and
Professions Code section 2239(a), and that he ``[e]ngaged in conduct
which breaches the rules or ethical code of the medical profession, or
conduct which is unbecoming to a member in good standing of the medical
profession, and which demonstrates an unfitness to practice medicine''
in violation of California Business and Professional Code section 2234.
Id. at 7. The MBC then revoked Respondent's license to practice
medicine effective April 23, 2009. Decision at 1.
Discussion
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) (defining the term ``practitioner''
as a person ``licensed, registered, or otherwise permitted, by the
United States or the jurisdiction in which he practices * * * to
distribute, dispense * * * [or] administer * * * a controlled
substance''); id. Sec. 823(f) (``The Attorney General shall register
practitioners * * * to dispense * * * controlled substances * * * if
the applicant is authorized to dispense * * * controlled substances
under the laws of the State in which he practices.'').
Accordingly, DEA has held repeatedly that the CSA requires the
revocation of a registration issued to a practitioner whose State
license has been suspended or revoked. David Wang, 72 FR 54297, 54298
(2007); 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''). Because Respondent is no longer
licensed to practice medicine and therefore cannot dispense controlled
substances in California, the State in which he is registered with DEA,
under the CSA, he is no longer entitled to hold his registration.
Accordingly, his registration will be revoked.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) &
824(a), as well as 28 CFR 0.100(b) & 0.104, I order that DEA
Certificate of Registration, BJ6361036, issued to Nicholas J. Jerrard,
M.D., be, and it hereby is, revoked. I further order that any pending
application of Nicholas J. Jerrard, M.D., to renew or modify his
registration, be, and it hereby is denied. This Order is effective
September 15, 2010.
Dated: July 30, 2010.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 2010-20194 Filed 8-13-10; 8:45 am]
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