Introduction and Procedural History
On October 12, 2004, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Respondent Sheran Arden Yeates, M.D. The Show Cause Order proposed to revoke Respondent's DEA Certificate of Registration, BY5532076, as a practitioner, see 21 U.S.C. 824(a)(3), and to deny any pending applications for renewal or modification. See id. § 823(f). As grounds for the proceeding, the Show Cause Order alleged that on May 21, 2004, the Tennessee Board of Medical Examiners had indefinitely suspended Respondent's state medical license.
Respondent requested a hearing; the matter was assigned to Administrative Law Judge Gail Randall. Shortly after the ALJ ordered the parties to file prehearing statements, the Government moved for summary disposition and sought to stay the proceedings while the ALJ considered its motion. As grounds for its motion, the Government asserted that Respondent's state license had been indefinitely suspended and that summary disposition was warranted because no material fact was in dispute. In support of the motion, the Government attached the State Board's order, which summarily suspended Respondent's medical license. The ALJ granted the stay and issued an order, which offered Respondent an opportunity to respond.
Thereafter, Respondent filed a response. Respondent asserted that the state had lifted the suspension and reinstated his medical license. In support, Respondent attached an order from the state board proceeding. The order noted that the state had voluntarily dismissed the proceeding and lifted the summary suspension of Respondent's state license.
Because Respondent's lack of state authority was the sole basis for this proceeding, the ALJ denied the Government's motion for summary disposition. The ALJ, however, continued the stay and instructed the Government to reply.
The Government then moved for reconsideration based upon newly discovered evidence. In the motion, the Government asserted that Respondent's state license had expired on July 31, 2004, and had not been renewed. As support, the Government attached a printout of a Tennessee Department of Health “Licensure Verification” Web page, which indicated that Respondent's license status was “inactive.” ALJ at 3.
The attachment, however, contained no explanation as to the meaning of the term “inactive.” Accordingly, the ALJ ordered the parties to provide additional documentation clarifying Respondent's status. Neither party complied with the ALJ's order.
The Government sought an extension of time and filed a new motion for reconsideration. In its motion, the Government asserted that it had confirmed that Respondent did not possess a valid state license and that the state authorities had agreed to provide written documentation of this, but had yet to do so. Because the Respondent had also failed to comply with her order, the ALJ concluded that granting an extension would cause no prejudice. The ALJ thus granted the extension and again ordered both parties to submit documentation regarding Respondent's status.
Shortly thereafter, the Government renewed its motion for summary disposition and submitted new evidence in the form of a notarized letter from the Tennessee Department of Health. The letter, which is undated, stated that on May 21, 2004, Respondent's medical license had been summarily suspended, that Respondent had failed to renew his medical license before July 31, 2004 (which apparently was its expiration date), that Respondent's license was inactive, and most significantly that Respondent “is not currently authorized to practice medicine in the state of Tennessee.” ALJ at 4 (quoting letter of Rosemarie A. Otto, Executive Director, Tennessee Bd. of Med. Examiners, to James Hambuechen, Office of Chief Counsel, DEA) (emphasis in original).
The ALJ waited more than six weeks for Respondent to reply. See ALJ at 4. When no reply was forthcoming, the ALJ granted the Government's motion for summary disposition. In so ruling, the ALJ noted the unchallenged evidence that Respondent's state medical license had expired on July 31, 2004, and had not been renewed. See id. at 5. Because Respondent lacked authority to handle controlled substances in Tennessee, the ALJ concluded that “DEA does not have authority to maintain the Respondent's DEA Certification of Registration.” Id.
The ALJ thus granted the Government's motion. The ALJ further recommended that I revoke Respondent's DEA Certificate of Registration, and deny any pending applications for renewal or modification of the same. The ALJ then transmitted the record to me for final action.
Discussion
I adopt the ALJ's findings that as of the date of her recommended decision, Respondent was “not currently licensed to practice medicine in the state of Tennessee,” and that “Respondent [was] not currently authorized to handle controlled substances in Tennessee.” ALJ at 5. The letter supporting these findings was undated. I acknowledge that the letter states that Respondent's license had been summarily suspended, that Respondent had failed to renew his license, and that Respondent “is not currently authorized to practice medicine” in Tennessee. The letter does not, however, establish that Respondent's licensure status remains unchanged as of the date of this final order.
Therefore, I have decided to take official notice of subsequent state proceedings involving Respondent. See 5 U.S.C. 556(e); 21 CFR 1316.59(e). It has long been recognized that “[a]gencies may take official notice of facts at any stage in a proceeding—even in the final decision.” U.S. Dept. of Justice, Attorney General's Manual on the Administrative Procedure Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979).
In accordance with the Administrative Procedure Act and DEA's regulations, Respondent is “entitled on timely request, to an opportunity to show to the contrary.” 5 U.S.C. 556(e). See also 21 CFR 1316.59(e). I acknowledge that DEA's regulations contain no provision for requesting reconsideration of a final order. See Robert A. Leslie, M.D., 60 FR 14004, 14005 (1995). To allow Respondent the opportunity to refute the facts of which I am taking official notice, publication of this final order shall be withheld for a fifteen-day period, which shall begin on the date of service.
Specifically, I take official notice that following a hearing on September 20-21, 2005, the Tennessee Board of Medical Examiners concluded that Respondent had violated multiple provisions of Tennessee law, including Tenn. Code Ann. § 63-6-214(b)(12), which prohibits, inter alia, “dispensing, prescribing or otherwise distributing any controlled substance or any other drug not in the course of professional practice.” In re Yeates, Order at 3 (Tenn. Bd. of Med. Examiners 2005). On October 12, 2005, the State Board thus permanently revoked Respondent's medical license. Id. at 4. Subsequent to the State Board's order, DEA has received no information indicating that that the order has been set aside on appeal. Accordingly, I find that Respondent is not authorized to handle controlled substances in Tennessee.
Among the findings of the State Board were that “Respondent permitted his patients to return unused prescription medication to his offices,” and that “Respondent instructed his office staff to place any returned prescription medication in a storage chest” for “future use.” Id. at 2. The State Board also found that “Respondent and his office staff routinely administered ‘cocktail’ injections to patients without medical justification[,]” and that “[o]n occasion, * * * Respondent and his office staff denied patients their maintenance medication until the patients agreed to receive ‘cocktail’ injections.” Id.
DEA does not have statutory authority under the Controlled Substances Act to maintain a registration if the registrant is without state authority to handle controlled substances in the state in which he practices. See 21 U.S.C. 823(f), 824(a)(3). DEA has consistently applied this rule. See James Marvin Goodrich, M.D., 70 FR 24619 (2005); Dominick A. Ricci, M.D., 58 FR. 51104 (1993); Bobby Watts, M.D., 53 FR. 11919 (1988). Therefore, Respondent is not entitled to maintain his DEA registration.
Order
Accordingly, pursuant to the authority vested in me by 21 U.S.C. 823 and 824, and 28 CFR 0.100(b) & 0.104, I hereby order that DEA Certificate of Registration, BY5532076, issued to Sheran Arden Yeates, 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 August 10, 2006.
Dated: June 13, 2006.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E6-10780 Filed 7-10-06; 8:45 am]
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