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[Federal Register Volume 62, Number 52 (Tuesday, March 18, 1997)]
[Notices]
[Pages 12847-12848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6794]

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DEPARTMENT OF JUSTICE
[Docket No. 96-31]

Anne Lazar Thorn, M.D. Revocation of Registration

    On April 15, 1996, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA) issued an 
Order to Show Cause to Anne Lazar Thorn, M.D. (Respondent), of 
Lafayette, Louisiana, notifying her of an opportunity to show cause as 
to why DEA should not revoke her DEA Certificate of Registration, 
AT6512152, pursuant to 21 U.S.C. 824(a)(3), and deny any pending 
applications for renewal of such registration as a practitioner 
pursuant to 21 U.S.C. 823(f), for reason that effective October 18, 
1993, the Louisiana State Board of Medical Examiners indefinitely 
suspended her license to practice medicine and as a result, she is not 
currently authorized to handle controlled substances in the State of 
Louisiana.
    By letter dated April 29, 1996, Respondent, acting pro se, filed a 
timely request for a hearing, and the matter was docketed before 
Administrative Law Judge Mary Ellen Bittner. On May 3, 1996, Judge 
Bittner issued an Order for Prehearing Statements. On May 24, 1996, in 
lieu of filing such a statement, the Government filed a Motion for 
Summary Disposition and to Stay Proceedings, asserting that 
``Respondent is without state authorization to handle controlled 
substances at this time.'' Attached to the motion was a copy of the 
Louisiana State Board of Medical Examiner's (Board) decision dated 
October 18, 1993, indefinitely suspending Respondent's license to 
practice medicine and a copy of a letter from the Board notifying DEA 
that Respondent's license to practice medicine in the State of 
Louisiana was suspended.
    On June 3, 1996, the Administrative Law Judge received a letter 
from an attorney indicating that he had been retained to represent 
Respondent, and on June 21, 1996, counsel for Respondent filed a 
Memorandum in Opposition to Government's Motion for Summary Disposition 
and Motion to Stay Proceedings. Respondent did not deny that she is 
currently without authority to handle controlled substances in the 
State of Louisiana. However, she argued that 21 U.S.C. 824(a) provides 
for the Deputy Administrator to use his discretion in determining 
whether to revoke or suspend a registration because of lack of state 
authority to handle controlled substances and that a hearing is 
necessary to determine what action should be taken against Respondent's 
registration. Respondent further argues that this matter is not yet 
ripe for determination since Respondent has not ``had the opportunity 
to present her evidence with supporting testimony concerning her 
current fitness to practice medicine, or the steps which she is taking 
to seek the reinstatement of her license to practice medicine in the 
State of Louisiana.''
    On July 25, 1996, Judge Bittner issued her Opinion and Recommended 
Decision, finding that Respondent is not currently authorized to handle 
controlled substances in the State of Louisiana; that she is bound by 
DEA's interpretation of the Controlled Substances Act that, pursuant to 
21 U.S.C. 823(f) and 802(21), a petitioner may not hold a DEA 
registration without state authority to handle controlled substances; 
that since no material question of fact is involved, a hearing is not 
necessary; and that while the statue provides for the revocation or 
suspension, revocation is appropriate in this case since there is no 
indication that Respondent's state license will be reinstated any time 
soon. Accordingly, Judge Bittner granted the Government's Motion for 
Summary Disposition and recommended that the Respondent's DEA 
Certificate of Registration be revoked.
    On August 8, 1996, Respondent filed with the Administrative Law 
Judge a Motion for Reconsideration and/or to Alter or Amend Judgment 
(Motion for Reconsideration). Respondent argued that the Board 
suspended her license indefinitely, rather than revoking it entirely, 
and that it would remain suspended until further order of the Board. 
Respondent asserted that the only evidence before the Administrative 
Law Judge in rendering her recommended decision was the order of the 
Board dated October 18, 1993 and that ``a great deal has transpired 
with respect to Respondent's license to practice medicine and the steps 
she has taken to have her license reinstated.'' Respondent argued that 
she should be given an opportunity for a hearing regarding her DEA 
registration in order to outline the steps she has taken to have her 
state license reinstated, and that the evidence which would have been 
presented at a hearing would have aided the Administrative Law Judge in 
deciding whether to recommend revocation or suspension of Respondent's 
registration. Respondent contended that ``the decision to permanently 
revoke a physician's registration to distribute drugs is a serious 
sanction, and is one which should not be rendered without considering 
all of the evidence in a particular case.''
    Therefore, Respondent requested that the Administrative Law Judge 
reconsider her decision to deny Respondent the opportunity for a 
hearing, or in the alternative, that the Administrative Law Judge alter 
her recommendation from revocation to

[[Page 12848]]

suspension of Respondent's registration. On August 14, 1996, Judge 
Bittner issued a Ruling denying Respondent's Motion for Reconsideration 
as lacking in merit. Neither party filed exceptions to her Opinion and 
Recommended Decision, and on August 26, 1996, Judge Bittner transmitted 
the record of these proceedings to the Deputy Administrator.
    The Acting Deputy Administrator has considered the record in its 
entirety, and pursuant to 21 C.F.R. 1316.67, hereby issues his final 
order based upon findings of fact and conclusions of law as hereinafter 
set forth. The Acting Deputy Administrator adopts in full the Opinion 
and Recommended Decision of the Administrative Law Judge.
    DEA has consistently interpreted the Controlled Substances Act to 
preclude a practitioner from holding a DEA registration if the 
practitioner is without authority to handle controlled substances in 
the state in which he/she practices. See 21 U.S.C. 823(f) (authorizing 
the Attorney General to register a practitioner to dispense controlled 
substances only if the applicant is authorized to dispense controlled 
substances under the laws of the state in which he or she practices); 
and 21 U.S.C. 802(21) (defining a practitioner as one authorized by the 
United States or the state in which he or she practices to handle 
controlled substances in the course of professional practice or 
research). This prerequisite has been consistently upheld. See Rita M. 
Coleman, M.D., 61 FR 35,816 (1996); Dominick A. Ricci, M.D., 58 FR 
51,104 (1993); Roy E. Hardman, M.D., 57 FR 49,195 (1992); and Bobby 
Watts, M.D., 53 FR 11,919 (1988).
    The Acting Deputy Administrator finds that the controlling question 
is not whether a practitioner's license to practice medicine in the 
state is suspended or revoked; rather, it is whether the Respondent is 
currently authorized to handle controlled substances in the state. In 
the instant case, it is undisputed that Respondent is not currently 
authorized to handle controlled substances in the State of Louisiana. 
Therefore, as Judge Bittner notes, Respondent ``is not currently 
entitled to a DEA registration.''
    The Acting Deputy Administrator concludes that Judge Bittner 
properly granted the Government's Motion for Summary Disposition. Here, 
the parties did not dispute the fact that Respondent was unauthorized 
to handle controlled substances in Louisiana. Therefore, it is well-
settled that when no question of material fact is involved, a plenary, 
adversary administrative proceeding involving evidence and cross-
examination of witnesses is not obligatory. See Philip E. Kirk, M.D., 
48 FR 32,887 (1983), aff'd sub nom. Kirk versus Mullen, 749 F.2d 279 
(6th Cir. 1984); Alfred Tennyson Smurthwaite, M.D., 43 FR 11,873 
(1978); see also NLRB versus International Association of Bridge, 
Structural and Ornamental Ironworks, AFL-CIO, 549 F.2d 634 (9th Cir. 
1977); United States versus Consolidated Mines & Smelting Co., 44 F.2d 
432 (9th Cir. 1971).
    In her Motion for Reconsideration, Respondent argued that the 
permanent revocation of a registration is a serious sanction and 
``should not be rendered without considering all of the evidence in a 
particular case.'' The Acting Deputy Administrator notes that the 
revocation of Respondent's registration is not permanent. Respondent 
may reapply for a new DEA registration when her state privileges to 
handle controlled substances are reinstated. Further, the Acting Deputy 
Administrator recognizes that he has the discretionary authority to 
either revoke or suspend a DEA registration. However, given the 
indefinite nature of the suspension of Respondent's state license to 
practice medicine, the Acting Deputy Administrator agrees with Judge 
Bittner that revocation is appropriate in this case.
    Accordingly, the Acting Deputy Administrator of the Drug 
Enforcement Administration, pursuant to the authority vested in him by 
21 U.S.C. 823 and 824, and 28 C.F.R. 0.100(b) and 0.104, hereby orders 
that the DEA Certificate of Registration AT6512152, issued to Anne 
Lazar Thorn, M.D., be, and it hereby is, revoked, and that any pending 
applications for the renewal of such registration be, and they hereby 
are, denied. This order is effective April 17, 1997.

    Dated: March 4, 1997.
James S. Milford,
Acting Deputy Administrator.
[FR Doc. 97-6794 Filed 3-17-97; 8:45 am]
BILLING CODE 4410-09-M
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