On September 16, 2004, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order Start Printed Page 51475to Show Cause to Steven A. Barnes, M.D. (Dr. Barnes) who was notified of an opportunity to show cause as to why DEA should not revoke his DEA Certificate of Registration, BB4875437, under 21 U.S.C. 824(a)(3) and (a)(4), and deny any pending applications for renewal or modification of that registration. Specifically, the Order to Show Cause alleged that Dr. Barnes was without State license to handle controlled substances in the State of Texas. The Order to Show Cause also notified Dr. Barnes that should no request for a hearing be filed within 30 days, his hearing right would be deemed waived.
The Order to Show Cause was sent by certified mail to Dr. Barnes at his registered location in Houston, Texas. The order was returned to DEA on October 20, 2003, by the United States Postal Service with a stamped notation: “attempted, not known.” On December 17, 2003, DEA again mailed the Order to Show Cause to Dr. Barnes at a second address, however, the order was not returned. DEA has not received a request for hearing or any other reply from Dr. Barnes or anymore purporting to represent him in this matter.
Therefore, the Deputy Administrator of DEA, finding that (1) thirty days having passed since the attempted delivery of the Order to Show Cause to the registrant's address of record, as well as to a second address, and (2) no request for hearing having been received, concludes that Dr. Barnes is deemed to have waived his hearing right. See David W. Linder, 67 FR 12579 (2002). After considering material from the investigative file in this matter, the Deputy Administrator now enters her final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
The Deputy Administrator finds that Dr. Barnes is currently registered with DEA as a practitioner authorized to handle controlled substances in Schedules II through V. According to information in the investigative file, on March 15, 2002, DEA received information from the Texas Department of Public Safety (DPS) regarding the termination of Dr. Barnes' DPS Controlled Substance Registration Certificate. The DPS action with respect to Dr. Barnes' State controlled substance registration was taken in conjunction with the temporary suspension of his State medical license by the Texas State Board of Medical Examiners (Board). In support of its order of temporary suspension, the Board found that Dr. Barnes was unable to practice medicine “* * * with reasonable skill and safety to patients because of excessive use of drugs, narcotics, chemicals, or other substance.”
On April 5, 2002, the Board and Dr. Barnes entered into an Agreed Order. The Agreed Order restricted Dr. Barnes' practice of medicine for a period of five years under various terms and conditions, including Dr. Barnes agreement to abstain from “the consumption of alcohol, dangerous drugs, or controlled substances in any form unless prescribed by another physician for legitimate and documented therapeutic purposes.”
On February 27, 2003, the Board was notified by a State drug testing service that on February 25, 2003, Dr. Barnes tested positive for cocaine from a head hair sample. Additionally, the Board has been previously notified by the drug testing service that Dr. Barnes had “a negative dilute drug tests on June 4, 2002, and October 2, 2002.” After reviewing evidence presented by the Board staff and Dr. Barnes before a Board panel on March 21, 2003, the panel found that Dr. Barnes violated the terms of the April 5, 2002, Agreed Order by ingesting cocaine. As a result, the Board entered an Order on May 27, 2003, suspending Dr. Barnes' Texas medical license. There is no evidence before the Deputy Administrator to rebut findings that Dr. Barnes' Texas medical license has been suspended, or that the suspension has been lifted. Therefore, the Deputy Administrator finds that since Dr. Barnes is currently not authorized to practice medicine in Texas, it is reasonable to infer that he is not authorized to handle controlled substances in that State.
DEA does not have statutory authority under the Controlled Substances Act to issue or maintain a registration if the applicant or registrant is without State authority to handle controlled substances in the State in which he conducts business. See 21 U.S.C. 802(21), 823(f) and 824(a)(3). This prerequisite has been consistently upheld. See Richard J. Clement, M.D., 68 FR 12103 (2003); Dominick A. Ricci, M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 11919 (1988).
Here it is clear that Dr. Barnes' medical license has been suspended and the suspension has not been lifted. As a result, Dr. Barnes is not licensed to handle controlled substances in Texas, where he is registered with DEA. Therefore, he is not entitled to maintain that registration.
Accordingly, the Deputy Administrator of the Drug Enforcement Administration, pursuant to the authority vested in her by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA Certificate of Registration, BB4875437, issued to Steven A. Barnes, M.D., be, and it hereby is, revoked. The Deputy Administrator further orders that any pending applications for renewal or modification of the aforementioned registration be, and it hereby is, denied. This order is effective September 20, 2004.Start Signature
Dated: July 27, 2004.
Michele M. Leonhart,
[FR Doc. 04-18972 Filed 8-18-04; 8:45 am]
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