[Federal Register Volume 87, Number 104 (Tuesday, May 31, 2022)]
[Notices]
[Pages 32461-32463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11511]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Shah M. Mairuz Zaman, M.D.; Decision and Order

    On December 30, 2021, a former Acting Assistant Administrator, 
Diversion Control Division, Drug Enforcement Administration 
(hereinafter, Government), issued an Order to Show Cause (hereinafter, 
OSC)

[[Page 32462]]

to Shah M. Mairuz Zaman, M.D. (hereinafter, Registrant) of 
Poughkeepsie, New York. OSC, at 1 and 3. The OSC proposed the 
revocation of Registrant's Certificate of Registration No. AM9630080. 
Id. at 1. It alleged that Registrant is ``without authority to handle 
controlled substances in New York, the state in which [he is] 
registered with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
    Specifically, the OSC alleged that on September 14, 2021, the New 
York State Education Department, Office of Professional Misconduct 
indefinitely suspended Registrant's state medical license and required 
its surrender after finding that Registrant ``had committed 
professional misconduct by failing to pay child support and 
maintenance.'' Id.
    The OSC notified Registrant of the right to request a hearing on 
the allegations or to submit a written statement while waiving the 
right to a hearing, the procedures for electing each option, and the 
consequences for failing to elect either option. Id. (citing 21 CFR 
1301.43). The OSC also notified Registrant of the opportunity to submit 
a corrective action plan. Id. at 3 (citing 21 U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated April 25, 2022, a Diversion Investigator 
(hereinafter, the DI) assigned to the New York Field Division stated 
that on February 1, 2022, she and another DI traveled to Registrant's 
registered address to attempt service of the OSC, but Registrant was 
not there, and a receptionist at the registered address ``stated that 
she had not seen [Registrant] in months, that his office had been 
cleaned out, that his mailbox was completely full, and that he had left 
no forwarding address.'' Request for Final Agency Action (hereinafter 
RFAA), Exhibit (hereinafter, RFAAX) 3 (DI's Declaration), at 2. The DI 
also stated that on the same day, she and the second DI tried to serve 
the OSC to Registrant at three additional addresses that DEA had 
determined were potential residences of Registrant, but these attempts 
were unsuccessful as Registrant was not found at any of them. Id. 
Finally, the DI stated that on February 2, 2022, she sent a copy of the 
OSC to Registrant via his registered email address. Id. The DI stated 
that she did not receive any indication that the email was not 
delivered and that her review of her email system showed that the email 
had been delivered. Id. at 2-3; see also id. at Appendix (hereinafter, 
App.) B.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on April 27, 2022. In its RFAA, the Government 
represents that neither Registrant, nor any attorney representing 
Registrant, has requested a hearing or submitted a written statement. 
RFAA, at 1-2. The Government seeks revocation of Registrant's DEA 
registration because Registrant lacks authority to handle controlled 
substances in New York, the state in which he is registered with the 
DEA. Id. at 1.
    Based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government accomplished service of the OSC on Registrant on February 2, 
2022. I also find that more than thirty days have now passed since the 
Government accomplished service of the OSC. Further, based on the DI's 
Declaration, the Government's written representations, and my review of 
the record, I find that neither Registrant, nor anyone purporting to 
represent the Registrant, requested a hearing, submitted a written 
statement while waiving Registrant's right to a hearing, or submitted a 
corrective action plan. Accordingly, I find that Registrant has waived 
the right to a hearing and the right to submit a written statement or 
corrective action plan. 21 CFR 1301.43(d) and 21 U.S.C. 824(c)(2)(C). 
I, therefore, issue this Decision and Order based on the record 
submitted by the Government, which constitutes the entire record before 
me. 21 CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
AM9630080 at the registered address of 243 North Road, Suite 201-South, 
Poughkeepsie, New York 12601. RFAAX 1 (Certificate of Registration). 
Pursuant to this registration, Registrant is authorized to dispense 
controlled substances in schedules II through V as a practitioner. Id. 
Registrant's registration expires on May 31, 2024. Id.

The Status of Registrant's State License

    On September 8, 2021, the University of the State of New York 
issued a Report of the Regents Review Committee (hereinafter, Report) 
as part of a disciplinary proceeding against Registrant.\1\ RFAAX 3, 
App. A, at 2. According to the Report, Registrant was the respondent in 
post-divorce proceedings in the Columbia County Supreme Court, which 
determined that Registrant was in default for child and/or spousal 
support. Id. Accordingly, the Columbia County Supreme Court ordered the 
disciplinary proceeding against Registrant to suspend his license as a 
physician in the state of New York. Id. The Report found that 
Registrant's failure to pay child and/or spousal support constituted 
professional misconduct and recommended that his license be 
indefinitely suspended. Id. at 5-6. On September 14, 2021, the 
University of the State of New York issued an order indefinitely 
suspending Registrant's New York medical license until Registrant ``has 
made full payment of all arrears of child support and maintenance.'' 
Id. at 9-10. On September 17, 2021, the New York State Education 
Department, Office of Professional Discipline notified Registrant by 
letter of the order and directed Registrant to surrender his New York 
medical license and registration. Id. at 1.
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    \1\ It is noted that Registrant's name is listed in the New York 
licensing actions in Appendix A as ``Shah Mohammad Maniruz Zaman''; 
however, substantial evidence on the record supports my finding that 
this person is the same as Registrant.
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    According to New York's online records, of which I take official 
notice, Registrant's New York medical license is still indefinitely 
suspended.\2\ Office of the Professions Verification Searches, 
www.op.nysed.gov/opsearches.htm (last visited date of signature of this 
Order). Accordingly, I find that Registrant is not currently licensed 
to engage in the practice of medicine in New York, the state in which 
he is registered with the DEA.
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    \2\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Registrant may dispute my finding by filing 
a properly supported motion for reconsideration of finding of fact 
within fifteen calendar days of the date of this Order. Any such 
motion and response shall be filed and served by email to the other 
party and to Office of the Administrator, Drug Enforcement 
Administration at <a href="/cdn-cgi/l/email-protection#2d49484c034c494942034c5959425f4348545e6d49484c03585e494247034a425b"><span class="__cf_email__" data-cfemail="214544400f4045454e0f4055554e534f445852614544400f5452454e4b0f464e57">[email protected]</span></a>.
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Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of the 
Controlled Substances Act (hereinafter, CSA) ``upon a finding that the 
registrant . . . has had his State license or registration suspended . 
. . [or] revoked . . . by competent State authority and is no longer 
authorized by State law to engage in the . . . dispensing of controlled

[[Page 32463]]

substances.'' With respect to a practitioner, the DEA has also long 
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. See, e.g., James L. Hooper, 
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 F. App'x 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 (1978).
    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). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the CSA, the DEA has held repeatedly that revocation 
of a practitioner's registration is the appropriate sanction whenever 
he is no longer authorized to dispense controlled substances under the 
laws of the state in which he practices. See, e.g., James L. Hooper, 76 
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby 
Watts, M.D., 53 FR 11,919, 11,920 (1988); Frederick Marsh Blanton, 43 
FR at 27,617.
    According to the New York Controlled Substances Act (hereinafter, 
the Act), ``[i]t shall be unlawful for any person to manufacture, sell, 
prescribe, distribute, dispense, administer, possess, have under his 
control, abandon, or transport a controlled substance except as 
expressly allowed by this article.'' N.Y. Pub. Health Law Sec.  3304 
(McKinney 2022). Further, the Act defines a ``practitioner'' as ``[a] 
physician . . . or other person licensed, or otherwise permitted to 
dispense, administer or conduct research with respect to a controlled 
substance in the course of a licensed professional practice . . . .'' 
Id. at Sec.  3302(27). Finally, New York regulations state that ``[a] 
prescription for a controlled substance may be issued only by a 
practitioner who is . . . authorized to prescribe controlled substances 
pursuant to his licensed professional practice . . . .'' N.Y. Comp. 
Codes R. & Regs. tit. 10, Sec.  80.64 (2022).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in New York. As already 
discussed, a physician must be a licensed practitioner to dispense a 
controlled substance in New York. Thus, because Registrant lacks 
authority to practice medicine in New York and, therefore, is not 
authorized to handle controlled substances in New York, Registrant is 
not eligible to maintain a DEA registration. Accordingly, I will order 
that Registrant's DEA registration be revoked.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. 
AM9630080 issued to Shah M. Mairuz Zaman, M.D. Further, pursuant to 28 
CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I 
hereby deny any pending application of Shah M. Mairuz Zaman, M.D. to 
renew or modify this registration, as well as any other pending 
application of Shah M. Mairuz Zaman, M.D. for additional registration 
in New York. This Order is effective June 30, 2022.

Anne Milgram,
Administrator.
[FR Doc. 2022-11511 Filed 5-27-22; 8:45 am]
BILLING CODE 4410-09-P


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