On December 14, 2011, I, the Administrator of the Drug Enforcement Administration, issued an Order to Show Cause and Immediate Suspension of Registration to Muzaffer Aslan, M.D. (hereinafter, Respondent), of Los Angeles, California. GX 2. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration AA0044040, which authorizes him to dispense controlled substances as a practitioner, on the ground that Respondent does not possess authority under the laws of the State of California, the State in which he is registered with DEA, to dispense controlled substances.
The Show Cause Order specifically alleged that on December 2, 2010, the Medical Board of California had revoked Respondent's State medical license and that the Board had found,
The Show Cause Order further alleged that notwithstanding that Respondent is “prohibited from practicing medicine in * * * California,” he has continued to prescribe controlled substances as evidenced by data from the State's prescription monitoring program.
On or about December 15, 2011, a DEA Diversion Investigator personally served the Order on Respondent by hand-delivering a copy to his residence.
On December 28, 2011, Respondent submitted a letter to the Hearing Clerk, Office of Administrative Law Judges. GX 3. Therein, Respondent stated that he was waiving his right to a hearing but submitting a written statement of his position regarding the allegations. GX 3. Pursuant to 21 CFR 1301.43(c), Respondent's statement has been made a part of the record of this proceeding and has been considered in this decision.
On February 7, 2012, the Government submitted its Request for Final Agency Action and forwarded the record to me. Having considered the entire record, I find that substantial evidence supports a finding that Respondent no longer possesses authority under the laws of the State of California to dispense controlled substances. I also find that substantial evidence supports a finding that Respondent dispensed controlled substances even after the Medical Board of California revoked his state license, and was no longer lawfully authorized to dispense controlled substances under his CSA registration. I thus conclude that the Government has made out a
Respondent is the holder of DEA Certificate of Registration AA0044040, which authorized him (prior to the Immediate Suspension Order), to dispense controlled substances in schedules II through V as a practitioner at the registered location of 11847 Wilshire Blvd., Suite 303–A, Los Angeles, CA 90025. GX 1. Respondent's registration does not expire until June 30, 2012.
Respondent previously held Physician's and Surgeon's Certificate Number A18999, which was issued by the Medical Board of California (MBC). However, on November 3, 2010, the
As set forth in the Proposed Decision, Respondent and the MBC had previously entered into a Stipulated Settlement and Disciplinary Order, which placed Respondent on probation and required that he comply with various terms and conditions, including that he “maintain a record of all controlled substances ordered, prescribed, dispensed, administered, or possessed by him.”
The State ALJ found that Respondent's “affirmations under penalty of perjury that he had complied with all the terms and conditions of his probation were knowingly false.”
The Government also submitted printouts it obtained from the California Substance Utilization Review & Evaluation System showing Respondent's prescribing history. However, this document does not show the actual date on which the prescriptions were written, but rather, the dates on which they were filled. Even so, because under the CSA, a prescription cannot be filled more than six months after the date on which it was written,
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 “upon a finding that the registrant * * * has had his State license * * * suspended [or] revoked * * * by competent State authority and is no longer authorized by State law to engage in the * * * dispensing of controlled substances.” Moreover, DEA has repeatedly held that the possession of authority to dispense controlled substances under the laws of the State in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration.
This rule derives from the text of two provisions of the CSA. First, Congress defined “the term `practitioner' [to] mean[ ] a * * * physician * * * or other person licensed, registered or otherwise permitted, by * * * the jurisdiction in which he practices * * * to distribute, dispense, [or] administer * * * a controlled substance in the course of professional practice.” 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner's registration, Congress directed that “[t]he Attorney General shall register practitioners * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.” 21 U.S.C. 823(f). And because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the Act, DEA has repeatedly held that revocation is the appropriate sanction whenever a practitioner is no longer authorized to dispense controlled substances, regardless of whether the practitioner's state authority has been revoked or is subject only to a suspension of fixed duration.
In his written statement, Respondent does not dispute that his state license has been suspended. Rather, he asserts that the MBC's order “is the result of the exaggerated reports of two young inexperienced doctors (who are not internal medicine specialists such as [him]self, but are preventive medicine and family medicine specialists, and are therefore unqualified to make a report) each paid $150 per hour for their work of review of seven of my patients' charts.” GX 3, at 1. Respondent further asserts that the MBC's order of revocation “is essentially the result of a disagreement between the Medical Board and myself” and that all the information regarding his prescriptions “was kept in the Progress Notes of the patients' charts” and “therefore[,] there was no reason to ask me to keep” the log.
Respondent's argument is a collateral attack on the validity of the MBC's Revocation Order. However, DEA has held repeatedly that a registrant cannot collaterally attack the result of a state criminal or administrative proceeding in a proceeding under section 304, 21 U.S.C. 824, of the CSA.
Because it is undisputed that Respondent currently lacks authority to dispense controlled substances in California, the State in which he holds his DEA registration, Respondent no longer meets the definition of a practitioner under the CSA and therefore, he is not entitled to maintain his registration. Accordingly, his registration will be revoked.
(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.
21 U.S.C. 823(f). The public interest factors are considered in the disjunctive.
In this matter, I have considered all of the factors. With respect to factor one, the same considerations as set forth above in the discussion of my authority under 21 U.S.C. 824(a)(3) apply. Furthermore, while there is no evidence that Respondent has been convicted of an offense falling within factor three, under DEA precedent, this is not dispositive.
However, I further find that evidence, which is relevant under factor two (Respondent's experience in dispensing controlled substances) and factor four (Respondent's compliance with applicable laws related to controlled substances), establishes that Respondent issued controlled substance prescriptions after the State revoked his medical license. This is a violation of 21 U.S.C. 1306.03(a)(1), which provides that “[a] prescription for a controlled substance may be issued only by an individual practitioner who is * * * [a]uthorized to prescribe controlled substances by the jurisdiction in which he is licensed to practice his profession” and thus constitutes a violation of 21 U.S.C. 841(a)(1). Moreover, while Respondent stated in his letter that “[t]his is not accurate” and that two MBC investigators “talked to me about it,” GX 3, at 1, he offered no probative evidence to refute the allegation.
Pursuant to the authority vested in me by 21 U.S.C. 824(a)(3) & (4), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration AA0044040, issued to Muzaffer Aslan, M.D., be, and it hereby is, revoked. I further order that any pending application of Muzaffer Aslan, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effective immediately.