[Federal Register Volume 75, Number 105 (Wednesday, June 2, 2010)]
[Notices]
[Pages 30860-30861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13144]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 10-14]
Shepard Ginandes, M.D.; Revocation of Registration
On September 28, 2009, I, the Deputy Administrator of the Drug
Enforcement Administration, issued an Order to Show Cause and Immediate
Suspension of Registration to Shepard Ginandes, M.D. (Respondent), of
Honolulu, Hawaii. The Show Cause Order proposed the revocation of
Respondent's DEA Certificate of Registration, BG0241024, and the denial
of any pending applications to renew or modify his registration, on the
ground that his ``continued registrations is inconsistent with the
public interest.'' Show Cause Order at 1 (citing 21 U.S.C. 824(a)(4) &
823(f)).
The Show Cause Order specifically alleged that on twenty-four
different occasions between March 2007 and January 2009, Respondent had
given prescriptions to law enforcement personnel for schedule II
controlled substances including methadone, morphine, oxycodone, and
hydromorphone, the schedule III controlled substance hydrocodone, and
the schedule IV controlled substances alprazolam and diazepam. Id. at
1-2. The Order further alleged that Respondent's office did not have
any exam rooms and medical equipment; that he did not take a medical
history or require the officers to fill out any paperwork; did not
conduct a physical examination; and that the officers would simply
write their name, address and the drug they were seeking on a piece of
paper which Respondent would take and then use to prepare a
prescription. Id. at 2. The Order thus alleged that these prescriptions
lacked a legitimate medical purpose and were issued in violation of 21
CFR 1306.04. Id. The Order further alleged that Respondent was
continuing to prescribe controlled substances without a legitimate
medical purpose. Id.
Based on the above, I further found that there was a substantial
likelihood that Respondent ``will continue to write controlled
substance prescriptions for other than a legitimate medical purpose.''
Id. I therefore concluded that Respondent's continued registration
during the pendency of the proceeding ``would constitute an imminent
danger to the public health and safety'' and ordered that his
registration be immediately suspended. Id.\1\
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\1\ The Order also informed Respondent of his right to request a
hearing on the allegations and the procedure for doing so, including
that he must file a written request for a hearing ``[w]ithin 30 days
after the date of receipt of'' the Order, Show Cause Order at 2,
that ``[m]atters are deemed filed upon receipt by the Hearing
Clerk,'' id. at 3 (citing 21 CFR 1316.45), and that should he
``decline to file a request for a hearing'' he ``shall be deemed to
have waived the right to a hearing.'' Id. (citing 21 CFR 1301.43(d)
& (e)).
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On September 30, 2009, the Order was served on Respondent. On
November 3, 2009, Respondent, through his counsel, filed a letter
requesting a hearing. ALJ Dec. at 2. Therein, Respondent also sought
``a reversal of the proposed suspension.'' Id. The matter was then
placed on the docket of the Agency's Administrative Law Judges.
The next day, the Government moved for summary disposition on the
ground that on September 30, 2009, the State of Hawaii had ``suspended/
revoked'' Respondent's state controlled substances registration and
that ``Respondent is no longer authorized to administer, prescribe,
dispense or possess controlled substances.'' Gov. Mot. for Summ. Disp.
at 1. Based on long-standing precedent which holds that ``possessing
authority under state law to handle controlled substance is an
essential condition for holding a DEA registration,'' the Government
requested that the ALJ grant its motion, cancel the pending proceeding
and forward the matter to me with the recommendation that I revoke
Respondent's registration and deny any pending applications. Id. at 2-
3. Noting that Respondent's hearing request was not received until
November 3, 2009, and was therefore untimely, the Government also
argued that Respondent had waived his right to a hearing. Id. n.1.
Thereafter, the ALJ ordered that Respondent file a Response to the
Government's Motion no later than November 12, 2009. ALJ Dec. at 3. The
ALJ also stayed the proceeding. Id.
Respondent did not, however, file a Response. Id. Thereafter, the
ALJ found that ``Respondent's lacks authority to handle controlled
substance in the State of Hawaii,'' the State in which he is licensed
to practice medicine. Id. Because holding authority under state law to
handle controlled substances is an essential condition for holding a
DEA registration, the ALJ granted the Government's Motion for Summary
Disposition and recommended that his registration be revoked and his
pending application be denied. Id. at 4-6.
The ALJ then forwarded the matter to me for final agency action.
Having considered the record as a whole, I find that under the Agency's
regulation, Respondent's request for a hearing was untimely and that he
has not offered good cause for his failure to file a timely request. 21
CFR 1301.43(d). I therefore find that Respondent waived his right to
contest the proceeding. Id. (1301.43(e)).
I further find that on September 4, 2009, Respondent applied to
renew his registration, which was to expire on September 30, 2009. I
therefore find that Respondent's registration has remained in effect,
albeit in suspended status, pending the issuance of this Decision and
Final Order. See 5 U.S.C. 557(c).
I further find that on September 30, 2009, the Administrator of the
Narcotics Enforcement Division, Department of Public Safety, State of
Hawaii, ``suspended/revoked'' Respondent's State of Hawaii Controlled
Substance
[[Page 30861]]
Registration. Gov. Mot. for Summ. Disp., Ex. A (letter from Keith
Kamita, Administrator, Narcotics Enforcement Division, Hawaii Dept. of
Public Safety to Shepard Ginandes, M.D.) Based on Administrator
Kamita's letter, I further find that Respondent is ``no longer
authorized to administer, prescribe, dispense or posses any controlled
substance'' in Hawaii. Id.
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) (``[t]he term `practitioner' means
a physician * * * 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''). See also id. Sec. 823(f) (``The Attorney
General shall register practitioners * * * if the applicant is
authorized to dispense * * * controlled substances under the laws of
the State in which he practices.''). As these provisions make plain,
possessing authority under state law to handle controlled substances is
an essential condition for holding a DEA registration.
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'').
The record here establishes that the Respondent's State of Hawaii
Controlled Substances Registration has been suspended/revoked by the
Administrator of the Narcotics Enforcement Division, Department of
Public Safety, State of Hawaii. As the Administrator's letter makes
clear, Respondent is ``no longer authorized to administer, prescribe,
dispense or posses any controlled substance'' under Hawaii law and
thus, he no longer meets the requirement for obtaining and maintaining
a registration under Federal law. Because Respondent is not entitled to
maintain his DEA registration, his registration will be revoked and his
pending application to renew his registration will be denied.
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 hereby order that DEA
Certificate of Registration, BG0241024, issued to Shepard Ginandes,
M.D., be, and it hereby is, revoked. I further order that the pending
application to renew this registration be, and it hereby is, denied.
This order is effective immediately.
Dated: February 25, 2010.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 2010-13144 Filed 6-1-10; 8:45 am]
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