On August 23, 2004, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Robert A. Burkich, M.D. (Dr. Burkich) of Nashville, Tennessee, notifying him of an opportunity to show cause as to why DEA should not revoke his DEA Certificate of Registration BB4812043, as a practitioner, under 21 U.S.C. 824(a)(3) and deny any pending applications for renewal or modification of that registration pursuant to 21 U.S.C. 823(f). As a basis for revocation, the Order to Show Cause alleged that Dr. Burkich is not currently authorized to practice medicine or handle controlled substances in Tennessee, his state of registration and practice.
On September 15, 2004, Dr. Burkich, acting pro se, filed a Waiver of Hearing and Written statement (Written Statement) with the Hearing Clerk of the DEA Office of Administrative Law Judges. The investigative file and Written Statement were than forwarded to the Deputy Administrator for her final order.
The Deputy Administrator finds Dr. Burkich waived his right to a hearing and, in lieu of a hearing, submitted a Written Statement regarding his Start Printed Page 28575position on the matters of fact and law that are involved in this proceeding. Accordingly, after considering material from the investigative file and Dr. Burkich's Written Statement, the Deputy Administrator now enters her final order without a hearing pursuant to 21 CFR 1301.43(c) and (e) and 1301.46.
The Deputy Administrator finds Dr. Burkich currently possesses DEA Certificate of Registration BB4812043, which expires on July 31, 2005. The Deputy Administrator further finds that on March 17, 2004, Tennessee Board of Medical Examiners (Tennessee Board) issued a Final Order revoking Dr. Burkich's license to practice medicine in Tennessee. The Tennessee Board's action was based upon its findings of fact that Dr. Burkich had been convicted in the United States District Court for the Eastern District of Tennessee of one felony count of mail fraud (18 U.S.C. 1341) and that the Georgia Composite State Board of Medical Examiners (Georgia Board) had revoked Dr. Burkich's license to practice medicine in Georgia, as a result of that conviction.
In his Written Statement, Dr. Burkich concedes he pled guilty to the criminal charge. However, he alleges he had a viable defense of entrapment and only pled guilty after being misadvised by his retained defense counsel who, Dr. Burkich asserts, was ineffective and had a conflict of interest. Attached to his Written Statement is a Motion for a Certificate of Appealability, which Dr. Burkich filed in the United States Court of Appeals for the Sixth Circuit (Case No. 04-6027). In that Motion, Dr. Burkich asserts in detail the factual and legal basis for the claims in his Written Statement.
The Deputy Administrator has determined that on November 23, 2004, the court of Appeals issued an Order denying Dr. Burkich's Motion for a Certificate of Appealability. He subsequently filed a Petition for an En Banc Rehearing which has not yet been acted upon by the Court. Accordingly, the federal conviction which was the underlying basis for Dr. Burkich's license revocation remains a valid judgment.
More significantly for purposes of this proceeding, Dr. Burkich does not contend in either his Written Statement or the accompanying Motion, that the Tennessee Board's Final Order has been stayed, modified or terminated or that either of his state medical licenses have been reinstated. Further, there is no evidence in the investigative file indicating the Tennessee Board's Final Order is no longer in effect.
Therefore, the Deputy Administrator finds Dr. Burkich is not currently authorized to practice medicine in the States of Tennessee and Georgia. As a result, it is reasonable to infer he is also without authorization to handle controlled substances in either 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 Stephen J. Graham, M.D., 69 FR 11661 (2004); Dominick A. Ricci, M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 11919 (1988).
Here, it is clear Dr. Burkich's Tennessee medical license has been revoked and he is not currently licensed to handle controlled substances in that state, where he is registered with DEA. Therefore, he is not entitled to a DEA registration in Tennessee.
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 BB4812043, issued to Robert A. Burkich, M.D., be, and it hereby is, revoked. The Deputy Administrator further orders that any pending applications for renewal or modification of such registration be, and they hereby are, denied. This order is effective June 17, 2005.Start Signature
Dated: May 9, 2005.
Michele M. Leonhart,
[FR Doc. 05-9836 Filed 5-17-05; 8:45 am]
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