[Federal Register Volume 75, Number 96 (Wednesday, May 19, 2010)]
[Notices]
[Pages 28068-28070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11950]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Christopher Henry Lister, P.A.; Revocation of Registration

    On November 3, 2009, I, the Deputy Administrator of the Drug 
Enforcement Administration, issued an Order to Show Cause and Immediate 
Suspension of Registration to Christopher Henry Lister, P.A. 
(Respondent), of Hesperia, California. The Order proposed the 
revocation of Respondent's DEA Certificate of Registration, ML0817900, 
as a practitioner, and the denial of any pending applications to renew 
or modify his registration, on the ground that he had committed acts 
which render his registration inconsistent with the public interest. 
Show Cause Order at 1 (citing 21 U.S.C. 823(f) & 824(a)(4)).
    The Show Cause Order alleged that Respondent violated Federal law 
by issuing controlled substance prescriptions ``outside [of] the usual 
course of professional practice,'' which lacked a ``legitimate medical 
purpose, and that he violated California law because he issued the 
prescriptions ``without an appropriate prior examination and a medical 
indication.'' Id. at 1-2 (citing 21 CFR 1306.04(a) & Cal. Bus. & Prof. 
Code Sec.  2242(a)). More specifically, the Order alleged that on June 
16, 2009, an undercover agent purchased through an intermediary a 
prescription for 60 tablets of OxyContin 80 mg., and that Respondent 
``never met or * * * much less conducted a physical examination'' of, 
the person for whom he wrote the prescription. Id. at 2.
    Next, the Show Cause Order alleged that on June 25, 2009, an 
undercover agent purchased though an intermediary prescriptions for 90 
tablets of OxyContin 80 mg., which were written in the names of four 
different persons, and that Respondent had never met or conducted a 
physical examination of any of these persons. Id. Finally, the Show 
Cause Order alleged that on October 8, 2009, an informant purchased 
from Respondent prescriptions for OxyContin 80 mg., Xanax 2 mg., Valium 
10 mg., and Lortab 10/500 mg., which were post-dated for October 29, 
2009, and written in the names of three different persons he never 
physically examined. Id.
    Based on the above, I further concluded that Respondent's continued 
registration during the pendency of the proceeding would ``constitute[] 
an imminent danger to the public health and safety.'' Id. Therefore, 
pursuant to my authority under 21 U.S.C. 824(d), I immediately 
suspended Respondent's registration. Id. The Order further explained 
that Respondent had the right to request a hearing on the allegations, 
the procedure for doing so, and that if he failed to do so, the 
scheduled hearing would be cancelled and he would be deemed to have 
waived his right to a hearing. Id.
    On November 5, 2009, a DEA Special Agent personally served 
Respondent with the Order to Show Cause and Immediate Suspension of 
Registration. Moreover, on November 6, 2009, Government Counsel served 
a copy of the Order on Respondent by First-Class Mail to him at his 
registered location.
    More than thirty days have now passed since the service of the 
Order to Show Cause and Immediate Suspension, and neither Respondent, 
nor anyone purporting to represent him, has requested a hearing. I 
therefore find that Respondent has waived his right to a hearing, 21 
CFR 1301.43(d), and issue this Decision and Final Order without a 
hearing based on the record submitted by the Government. I make the 
following findings.

Findings

    Respondent is the holder of DEA Certificate Registration, 
ML0817900. Respondent last renewed his registration on April 2, 2008; 
the registration does not expire until March 31, 2011.
    Respondent also holds a Physician Assistant (PA) License issued by 
the Physician Assistant Committee of the Medical Board of California. 
On November 6, 2009, the Executive Officer of the Physician Assistant 
Committee filed a petition for an interim order of suspension of 
Respondent's state license. On November 12, 2009, a state 
Administrative Law Judge (ALJ) granted the petition and immediately 
suspended Respondent's PA license. The ALJ also ordered that Respondent 
appear for hearing on November 30, 2009, to show cause why the interim 
order suspending his license ``should not remain in full force and 
effect pending the issuance of a final decision by the Medical Board of 
California.'' Interim Order of Suspension at 2, Portman v. Lister (Cal. 
Office. of Admin. Hearings, No. 1E-2008-195465).
    On November 30, 2009, a hearing was held before another state ALJ. 
Following the hearing, the ALJ found that:

    [o]n October 8, 2009, a Bureau of Narcotics Enforcement 
confidential informant (CI) met with respondent at the CI's 
residence. The meeting was monitored by a DEA agent. During the 
meeting the CI provided respondent with a list of names and asked 
respondent to prescribe OxyContin, Xanax, Ambien, and Valium to the 
listed individuals in exchange for $750 in cash. Respondent did as 
requested, and took the $750 cash payment.

Order of Interim Suspension at 2, In re Lister.
    Based on this finding, the ALJ concluded ``that respondent has 
engaged in acts constituting violations of the Medical Practice Act'' 
and that the State had ``show[n] that permitting [him] to continue to 
engage in the profession for which [his] license was issued will 
endanger the public health, safety, or welfare.'' Id. at 3 (citing Cal. 
Gov. Code Sec.  11529(a)). In a footnote, the ALJ further explained 
that ``[b]y prescribing dangerous drugs and controlled substances to 
the CI without an appropriate medical examination and without any 
medical indication * * * Respondent violated [various] provisions of 
the Medical Practice[] Act'' including, inter alia, Cal. Bus. & Prof. 
Code Sec.  2242(a) (``furnishing dangerous drugs without 
examination''), and Cal. Health & Safety Code Sec.  11153(a) 
(``prescribing controlled substances without a legitimate medical 
purpose''). Id. at n.6. The ALJ thus granted the

[[Page 28069]]

State's petition and ordered that Respondent's license remain 
``suspended until final resolution of the underlying Accusation.'' Id. 
at 4.

Discussion

    Section 304(a) of the Controlled Substances Act (CSA) provides that 
a registration to ``dispense a controlled substance * * * may be 
suspended or revoked by the Attorney General upon a finding that the 
registrant * * * has committed such acts as would render his 
registration under section 823 of this title inconsistent with the 
public interest as determined under such section.'' 21 U.S.C. 
824(a)(4). With respect to a practitioner, the CSA requires the 
consideration of the following factors in making the public interest 
determination:

    (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.

Id. Sec.  823(f).

    ``[T]hese factors are * * * considered in the disjunctive.'' Robert 
A. Leslie, M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or 
a combination of factors, and may give each factor the weight [I] 
deem[] appropriate in determining whether a registration should be 
revoked.'' Id. Moreover, I am ``not required to make findings as to all 
of the factors.'' Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see 
also Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005).
    While I have considered all of the factors, I conclude that it is 
not necessary to make findings as to factors three and five. As 
explained below, I conclude that the finding of the state ALJ that 
Respondent violated California law by prescribing controlled substances 
without performing an appropriate medical examination and without a 
legitimate medical purpose is dispositive in assessing his experience 
in dispensing controlled substances (factor two) and his compliance 
with State and Federal laws related to controlled substances (factor 
four). The state ALJ's finding further establishes that Respondent has 
committed acts which render his continued registration ``inconsistent 
with the public interest.'' 21 U.S.C. 824(a)(4).

Factors Two and Four--Respondent's Experience in Dispensing Controlled 
Substances and Record of Compliance With Applicable Controlled 
Substance Laws

    Under a longstanding DEA regulation, a prescription for a 
controlled substance is not ``effective'' unless it is ``issued for a 
legitimate medical purpose by an individual practitioner acting in the 
usual course of his professional practice.'' 21 CFR 1306.04(a). This 
regulation further provides that ``an order purporting to be a 
prescription issued not in the usual course of professional treatment * 
* * is not a prescription within the meaning and intent of [21 U.S.C. 
829] and * * * the person issuing it, shall be subject to the penalties 
provided for violations of the provisions of law related to controlled 
substances.'' Id. See also 21 U.S.C. 802(10) (defining the term 
``dispense'' as meaning ``to deliver a controlled substance to an 
ultimate user by, or pursuant to the lawful order of, a practitioner, 
including the prescribing and administering of a controlled 
substance'') (emphasis added).
    As the Supreme Court recently explained, ``the prescription 
requirement * * * ensures patients use controlled substances under the 
supervision of a doctor so as to prevent addiction and recreational 
abuse. As a corollary, [it] also bars doctors from peddling to patients 
who crave the drugs for those prohibited uses.'' Gonzales v. Oregon, 
546 U.S. 243, 274 (2006) (citing United States v. Moore, 423 U.S. 122, 
135, 143 (1975)).
    Under the CSA, it is fundamental that a practitioner must establish 
and maintain a bonafide doctor-patient relationship in order to act 
``in the usual course of * * * professional practice'' and to issue a 
prescription for a ``legitimate medical purpose.'' Laurence T. 
McKinney, 73 FR 43260, 43265 n.22 (2008); see also Moore, 423 U.S. at 
142-43 (noting that evidence established that physician ``exceeded the 
bounds of `professional practice,' '' when ``he gave inadequate 
physical examinations or none at all,'' ``ignored the results of the 
tests he did make,'' and ``took no precautions against * * * misuse and 
diversion''). Moreover, the CSA generally looks to state law to 
determine whether a doctor and patient have established a bona fide 
doctor-patient relationship. See Kamir Garces-Mejias, 72 FR 54931, 
54935 (2007); United Prescription Services, Inc., 72 FR 50397, 50407 
(2007).
    Under California law, except for in circumstances not applicable 
here, ``[p]rescribing, dispensing, or furnishing dangerous drugs * * * 
without an appropriate prior examination and a medical indication, 
constitutes unprofessional conduct.'' Cal. Bus. & Prof. Code Sec.  
2242(a). California law further adopts nearly verbatim the CSA's 
prescription requirement. See Cal. Health & Safety Code Sec.  11153(a) 
(``A prescription for a controlled substance shall only be issued for a 
legitimate medical purpose by an individual practitioner acting in the 
usual course of his or her professional practice.'').
    Here, a state ALJ found that, on October 8, 2009, Respondent 
violated both of these provisions of California law when he sold 
prescriptions for OxyContin, a schedule II controlled substance, as 
well as Xanax, Ambien, and Valium (all of which are schedule IV 
controlled substances), to a confidential informant working for the 
California Bureau of Narcotics Enforcement in exchange for $750 in 
cash. While Respondent did not appear at the state hearing, the state 
ALJ found that he ``was properly noticed of the date, time and place of 
the hearing.'' Order of Interim Suspension, at 1. Accordingly, I hold 
that the state ALJ's finding is entitled to preclusive effect in this 
proceeding. See University of Tennessee v. Elliot, 478 U.S. 788, 797-98 
(1986) (``When an administrative agency is acting in a judicial 
capacity and resolves disputed issues of fact properly before it which 
the parties have had an adequate opportunity to litigate, the courts 
have not hesitated to apply res judicata[.]'') (int. quotations and 
citations omitted). Based on the state ALJ's findings, I further 
conclude that Respondent lacked a legitimate medical purpose and acted 
outside of the usual course of professional practice in issuing each of 
the prescriptions and thus violated Federal law as well. See 21 CFR 
1306.04(a); 21 U.S.C. 841(a)(1).
    I thus conclude that Respondent has committed acts which render his 
registration ``inconsistent with the public interest.'' 21 U.S.C. 
824(a)(4). Accordingly, Respondent's registration will be revoked.\1\
---------------------------------------------------------------------------

    \1\ It is further noted that because the State has imposed an 
order of interim suspension against Respondent's PA license, he does 
not have authority to dispense controlled substances and thus does 
not meet an essential requirement for holding a registration under 
the CSA. See, e.g., John B. Freitas, 74 FR 17524, 17525 (2009); 21 
U.S.C. Sec. Sec.  823(f) & 824(a)(3).
---------------------------------------------------------------------------

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 
824(a)(4), as well as 28 CFR 0.100(b) & 0.104, I order that DEA 
Certificate of Registration, ML0817900, issued to Christopher

[[Page 28070]]

Henry Lister, P.A., be, and it hereby is, revoked. I further order that 
any pending application of Christopher Henry Lister, P.A., to renew or 
modify his registration, be, and it hereby is, denied. This Order is 
effective immediately.

    Dated: May 6, 2010.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 2010-11950 Filed 5-18-10; 8:45 am]
BILLING CODE 4410-09-P