[Federal Register Volume 85, Number 22 (Monday, February 3, 2020)]
[Notices]
[Pages 5989-5990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01969]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Kambiz Haghighi, M.D.; Decision and Order
On May 22, 2019, the Assistant Administrator, Diversion Control
Division, Drug Enforcement Administration (hereinafter, Government),
issued an Order to Show Cause to Kambiz Haghighi, M.D. (hereinafter,
Registrant) of Long Beach, California. Order to Show Cause
(hereinafter, OSC), at 1. The OSC proposed the revocation of
Registrant's Certificate of Registration No. BH6439714 on the ground
that Registrant ``is without authority to handle controlled substances
in the State of California, the state in which [Registrant is]
registered with the DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
Specifically, the OSC alleged that on April 20, 2018, the Medical
Board of California (hereinafter, Board) issued a Decision and Order
directing that, effective May 18, 2018, Registrant `` `shall not order,
prescribe, dispense, administer, furnish, or possess any controlled
substances.' '' Id. (quoting Board's Order). The OSC further alleged
that ``on July 23, 2018, [Registrant] surrendered [his] Physician's and
Surgeon's Certificate to the Board in accordance with an `Agreement for
Surrender of License' that [he] entered into with the Board on that
same date.'' Id. at 1-2.
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. at 2 (citing 21
CFR 1301.43). The OSC also notified Registrant of the opportunity to
submit a corrective action plan. Id. at 1, 3 (citing 21 U.S.C.
824(c)(2)(C)).
Adequacy of Service
In a Declaration dated July 17, 2019, a Diversion Investigator
(hereinafter, DI) assigned to the Los Angeles Field Division stated
that on May 29, 2019, she and a Special Agent (hereinafter, SA)
traveled to Registrant's home address, which she had obtained during a
prior telephone conversation with Registrant. Request for Final Agency
Action (hereinafter, RFAA), EX 4 (DI's Declaration), at 1. The DI
stated Registrant was not at home when they arrived at the home
address, but she spoke with him on his cell phone and he arrived
several minutes later. Id. Registrant identified himself, the DI
verified his identity by looking at his driver's license, and the DI
then personally served the OSC on Registrant. RFAA, EX 4, at 1-2.
Registrant signed a DEA-12, Receipt for Cash or Other Items,
acknowledging his receipt of the OSC, which the SA signed as a witness.
Id. at 2, see also RFAA, EX 4B (DEA-12).
The Government forwarded its RFAA, along with the evidentiary
record, to this office on July 26, 2019. Therein, the Government
represents that ``at least [thirty] days have passed since the time the
[OSC] was served on Registrant'' and he ``has not requested a hearing
and has not otherwise corresponded or communicated with DEA.'' RFAA, at
1-2. The Government requests that ``Registrant's DEA Registration [ ]
be revoked based on 21 U.S.C. 824(a)(3)
[[Page 5990]]
because Registrant has no valid medical license in California . . .
[and] is without state authority to handle controlled substances in
California, the state where he is registered with DEA.'' Id. at 3.
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 May 29,
2019. I also find that more than thirty days have now passed since the
Government accomplished service of the OSC. Further, based on the
Government's written representations, 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 and 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.
BH6439714 at the registered address of 4401 N. Atlantic Ave., 101, Long
Beach, California 90807. RFAA, EX 1 (Certification of Registration
History). 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 October 31,
2020, and is ``in an active pending status.'' Id.
The Status of Registrant's State License
On July 23, 2018, Registrant surrendered his California Physician's
and Surgeon's Certificate pursuant to an Agreement for Surrender of
License (hereinafter, Agreement) that he entered into with the
Board.\1\ RFAA, EX 3 (Agreement). According to the Agreement,
Registrant surrendered his medical license following a Board Decision
effective on May 18, 2018, ``wherein [Registrant's] license was
revoked, with the revocation stayed, and placed on seven [ ] years'
probation with various standard terms and conditions.'' Id. at 2. The
Board Decision provided that `` `if [Registrant] ceases practicing due
to retirement, health reasons, or is unable to satisfy the terms and
condition of probation, [Registrant] may request to surrender his . . .
license.' '' Id. Pursuant to the Agreement, Registrant agreed that he
``understands he will no longer be permitted to practice as a physician
and surgeon in California.'' Id. The Agreement further provided that
should Registrant ever file an application for relicensure or
reinstatement in California, the Board would treat it as a petition for
reinstatement of a revoked license. Id.
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\1\ The Government's evidence includes a letter of certification
submitted by the Executive Director of the Medical Board of
California, certifying the surrender of Registrant's Physician's and
Surgeon's Certificate. RFAA, EX 3, at 1. The letter also certifies
prior disciplinary action against Registrant, including an Order
Restricting the Practice of Medicine issued by the Superior Court of
Riverside County on November 23, 2015, and an Accusation and First
Amended Accusation filed against Registrant in May and July, 2017.
Id.
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According to the website of the California Department of Consumer
Affairs, of which I take official notice, Registrant's license remains
surrendered. \2\ https://search.dca.ca.gov/details/8002/A/68934/f0e886931951cf8f0b2f2099fecad44b (last visited January 3, 2020).
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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 within 15 calendar
days of the date of this Order. Any such motion shall be filed with
the Office of the Administrator and a copy shall be served on the
Government. In the event Registrant files a motion, the Government
shall have 15 calendar days to file a response.
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Accordingly, I find that Registrant currently is not licensed to
engage in the practice of medicine in California, the state in which he
is registered with the DEA.
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., Hooper, supra, 76
FR at 71371-72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006);
Dominick A. Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby Watts, M.D.,
53 FR 11919, 11920 (1988); Blanton, supra, 43 FR at 27617.
According to the California Uniform Controlled Substances Act, ``No
person other than a physician . . . shall write or issue a
prescription.'' Cal. Health & Safety Code section 11150 (West 2019).
Further, ``physician,'' as defined by California statute, is a person
who is ``licensed to practice'' in California. Cal. Health & Safety
Code section 11024 (West 2019).
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice medicine in California. As
already discussed, a physician must be a licensed practitioner to
dispense a controlled substance in California. Thus, because Registrant
lacks authority to practice medicine in California and, therefore, is
not authorized to handle controlled substances in California, 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.
BH6439714 issued to Kambiz Haghighi, M.D. Further, I hereby deny any
pending application of Kambiz Haghighi, M.D., to renew or modify this
registration, as well as any pending application of Kambiz Haghighi,
M.D., for registration in California. This Order is effective March 4,
2020.
Dated: January 3, 2020.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2020-01969 Filed 1-31-20; 8:45 am]
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