Registration revocations, restrictions, denials, reinstatements: Abbey, Julian A., M.D.,

[Federal Register: March 9, 2007 (Volume 72, Number 46)]

[Notices]

[Page 10788-10789]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr09mr07-125]

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

Julian A. Abbey, M.D.; Revocation of Registration

On April 17, 2006, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Julian A. Abbey, M.D., (Respondent) of Saugus, Massachusetts. The Show Cause Order proposed to revoke Respondent's DEA Certificate of Registration, BA4361426, as a practitioner on two grounds.

First, the Show Cause Order alleged that Respondent had entered into a voluntary agreement with the Massachusetts Board of Registration in Medicine in which he agreed to cease the practice of medicine in that State effective July 30, 2004. Show Cause Order at 1. The Show Cause Order further alleged that the agreement constituted a disciplinary action against Respondent's state license. Id.

Second, the Show Cause Order alleged that on August 4, 2004, Respondent had submitted an on-line renewal application for his DEA registration in which he falsely indicated that he ``had not been the subject of any State disciplinary or licensing action.'' Id. at 2. The Show Cause Order further alleged that based on Respondent's misrepresentation, DEA renewed his registration. Id.

On April 21, 2006, the Government attempted to serve the Show Cause Order, which also notified Respondent of his right to request a hearing, by Certified Mail, Return Receipt Requested. However, the mailing was returned unclaimed. Thereafter, on May 18, 2006, the Government served the Show Cause Order by First Class Mail to the address of Respondent's registered location. Since that time, neither Respondent, nor any one purporting to represent him, has responded. Because (1) more than thirty days have passed since service of the Show Cause Order, and (2) no request for a hearing has been received, I conclude that Respondent has waived his right to a hearing. See 21 CFR 1301.43(d). I therefore enter this final order without a hearing based on relevant material found in the investigative file and make the following findings.

Findings

Respondent holds DEA Certificate of Registration, BA4361426, which was initially issued to him on March 15, 1995. On August 3, 2004, Respondent renewed his registration using the DEA Internet site. Respondent's registration does not expire until June 30, 2007.

On June 25, 2004, Respondent entered into a ``Voluntary Agreement Not To Practice Medicine'' with the Massachusetts Board of Registration in Medicine (Board); on July 30, 2004, the Board accepted the agreement. Under the agreement, Respondent agreed to immediately cease practicing medicine in Massachusetts. Moreover, Respondent acknowledged that the agreement constituted ``a voluntary restriction of my license to practice medicine and is considered to be a disciplinary action that is reportable to any national data reporting system'' pursuant to Massachusetts law. Agreement at 1. Respondent also agreed that ``[a]ny violation of this Agreement shall be prima facie evidence for immediate summary suspension of my license to practice medicine.'' Id. Furthermore, according to the Board, ``as a consequence of such an agreement, a physician may not prescribe controlled substances.'' Massachusetts Board of Registration in Medicine, Press Release (Nov. 9, 2005).

According to the investigative file, on October 28, 2005, Respondent was arrested in Lynnfield, Massachusetts, and charged under state law with the illegal possession of a class C substance (hydrocodone bitartrate) with intent to distribute. According to the file, during the period following Respondent's entering into the voluntary agreement and his arrest, Respondent obtained approximately 37,500 tablets of hydrocodone bitartrate 10mg/650mg.

Thereafter, on November 9, 2005, the Board summarily suspended Respondent's state medical license on the ground that he posed an immediate threat to the public safety, health and welfare. According to online records of the Board, Respondent's medical license remains suspended. See Massachusetts Board of Registration in Medicine Physician Profile, Julian Abbey, M.D.

Under Massachusetts law, a physician must also hold a registration to handle a controlled substance; the registration is issued by the State's Commissioner of Public Health. See Mass. Gen. Laws ch. 94C, Sec. 7(a). On December 1, 2005, the Massachusetts Department of Public Health sent a letter to Respondent notifying him that he was ``no longer authorized as a registrant under [Massachusetts law] to prescribe, distribute, possess, dispense or administer controlled substances in the Commonwealth.'' Letter from Adele D. Audet, Assistant Director, Drug Control Program, Massachusetts Department of Public Health, to Respondent (Dec. 1, 2005). The letter further advised Respondent that his state controlled substances registration would be terminated unless Respondent produced evidence of his authority to practice medicine in the State within thirty days of his receipt of the letter. A March 28, 2006 letter from the Department of Public Health to Respondent confirms that he no longer holds authority under Massachusetts law to handle controlled substances. Letter from Patricia Calvagna-Lusk, Administrative Coordinator, Massachusetts Department of Public Health, to Respondent (Mar. 28, 2006).

Discussion

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.''). DEA has held repeatedly that the CSA requires the revocation of a registration issued to a practitioner

[[Page 10789]]

whose state controlled substances authority has been suspended or revoked. See 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'').

As found above, the letters from the State Department of Health establish that Respondent no longer has authority to handle controlled substances in Massachusetts, the State in which he holds his DEA registration. Therefore, Respondent is no longer entitled to maintain his DEA registration.

Furthermore, based on the evidence in the investigative file which shows that Respondent obtained 37,500 dosage units of hydrocodone bitartrate notwithstanding that he no longer had authority to practice medicine, I conclude that Respondent was engaged in the diversion of substantial quantities of controlled substances. Therefore, while this conduct was not alleged as grounds for the revocation of Respondent's registration, I conclude that the public interest requires that Respondent's registration be revoked effective immediately.\1\ See 21 CFR 1316.67.

\1\ While the Show Cause Order also alleged that Respondent materially falsified his application, the investigative file does not contain any probative evidence on this issue.

Order

Accordingly, pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 28 CFR 0.100(b) and 0.104, I hereby order that DEA Certificate of Registration, BA4361426, issued to Julian A. Abbey, M.D., be, and it hereby is, revoked. I further order that any pending applications for renewal or modification of such registration be, and they hereby are, denied. This order is effective immediately.

Dated: February 28, 2007. Michele M. Leonhart, Deputy Administrator. [FR Doc. E7-4237 Filed 3-8-07; 8:45 am]

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