Notice2021-21425
Darryl L. Henry, M.D.; Decision and Order
Primary source
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Published
October 1, 2021
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 86 Issue 188 (Friday, October 1, 2021)</title>
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[Federal Register Volume 86, Number 188 (Friday, October 1, 2021)]
[Notices]
[Pages 54479-54480]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-21425]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Darryl L. Henry, M.D.; Decision and Order
On June 4, 2021, the Assistant Administrator, Diversion Control
Division, Drug Enforcement Administration (hereinafter, Government),
issued an Order to Show Cause (hereinafter, OSC) to Darryl L. Henry,
M.D. (hereinafter, Registrant) of Elkhart, Indiana. OSC, at 1. The OSC
proposed the revocation of Registrant's Certificate of Registration No.
FH0303292. Id. at 1. It alleged that Registrant is ``without authority
to handle controlled substances in the State of Indiana, the state in
which [Registrant is] registered with DEA.'' Id. at 2 (citing 21 U.S.C.
824(a)(3)).
Specifically, the OSC alleged that Registrant's Indiana medical
license was suspended for 90 days by Order of the Medical Licensing
Board of Indiana, effective April 22, 2021. Id. The OSC also alleged
that Registrant's Indiana controlled substances license expired on
October 31, 2019. 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 September 2, 2021, a Diversion Investigator
(hereinafter, the DI) assigned to the Merrillville, Indiana District
Office stated that on or about June 8, 2021, the OSC was mailed to both
Registrant's registered address and his mail-to address by the DEA
Office of Chief Counsel. Request for Final Agency Action (hereinafter,
RFAA) Exhibit (hereinafter, RFAAX) 2 (the DI's Declaration), at 1-2.
The DI stated that on June 8, 2021, she and a DEA Task Force Officer
attempted to contact Registrant at his mother's residence and spoke
with Registrant's mother. Id. at 2. According to the DI, Registrant's
mother stated that Registrant did not live there and offered to take
the OSC and to have Registrant's sister contact Registrant regarding
the OSC. Id. The DI stated that she then left her contact information
with Registrant's mother. Id. The DI also stated that on June 8, 2021,
she emailed the OSC to Registrant at the email address listed in the
DEA's registration database. Id. According to the DI, Registrant never
responded to the OSC nor did he request a hearing. Id.
The Government forwarded its RFAA, along with the evidentiary
record, to this office on September 2, 2021. In its RFAA, the
Government represents that ``more than thirty days have passed since
the [OSC] was served on [Registrant] and no request for hearing has
been received by DEA.'' RFAA, at 1. The Government requests that
Registrant's DEA registration ``be revoked and any application for
renewal, or any other applications, [be] denied, based on
[Registrant's] lack of state authority.'' Id. at 5.
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 or about
June 8, 2021. 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 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.
FH0303292 at the registered address of 3100 Windsor Ct, Elkhart, IN
46514. RFAAX 3 (DEA's online registration database printout), at 1.
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, 2021 and is in an
``active pending'' status. Id.
The Status of Registrant's State License
On September 1, 2021, the Medical Licensing Board of Indiana
(hereinafter, the Board) issued a Summary Suspension Order
(hereinafter, Order) against Registrant. RFAAX 4, at 1 and 4. According
to the Order, on August 21, 2019, Registrant was charged with two
counts of sexual battery in Elkhart Superior Court I. Id. at 2. The
probable cause affidavit alleged that on May 7, 2019, the first of two
victims saw Registrant as a patient for a physical examination, during
which Registrant made inappropriate sexual comments and unwanted sexual
advances on the victim. Id. at 2-3. Further, the probable cause
affidavit alleged that on May 13,
[[Page 54480]]
2019, a second victim saw Registrant as a patient for a physical
examination, during which Registrant again made inappropriate sexual
comments and unwanted sexual advances on the victim. Id. at 3. The
Order concluded that Registrant ``represents a clear and immediate
danger to the public health and safety if allowed to continue to
practice as a medical doctor in Indiana.'' Id. at 4.
Accordingly, the Board ordered that Registrant's Indiana medical
license, which had been suspended for 90 days effective April 22,
2021,\1\ be summarily suspended for an additional 90 days, effective
June 24, 2021. Id. The Board also ordered that the matter would reset
on September 23, 2021 for a hearing to occur at which the Board would
consider whether the summary suspension of Registrant's license should
be extended for an additional 90 days. Id.
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\1\ RFAAX 2, at 2 (the DI's Declaration). The Government did not
provide documentation for the original suspension.
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According to Indiana's online records, of which I take official
notice, Registrant's Indiana medical license remains suspended and
Registrant's controlled substances registration remains expired.\2\
<a href="http://www.mylicense.in.gov/everification">http://www.mylicense.in.gov/everification</a> (last visited date of
signature of this Order).
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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#721617135c1316161d5c1306061d001c170b01321617135c0701161d185c151d04"><span class="__cf_email__" data-cfemail="91f5f4f0bff0f5f5febff0e5e5fee3fff4e8e2d1f5f4f0bfe4e2f5fefbbff6fee7">[email protected]</span></a>.
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Accordingly, I find that Registrant is not currently licensed to
engage in the practice of medicine nor registered to dispense
controlled substances in Indiana, the state in which Registrant is
registered with the DEA.
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
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 Indiana statute, ``[e]very person who dispenses or
proposes to dispense any controlled substance within Indiana must have
a registration issued by the [Indiana Board of Pharmacy] in accordance
with the board's rules.'' Ind. Code Sec. 35-48-3-3(b) (2021). Further,
``dispense'' means ``to deliver a controlled substance to an ultimate
user or research subject by or pursuant to the lawful order of a
practitioner and includes the prescribing, administering, packaging,
labeling, or compounding necessary to prepare the substance for that
delivery.'' Ind. Code Sec. 35-48-1-12 (2021).
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to dispense controlled substances in Indiana.
As already discussed, a physician must hold a controlled substances
registration to dispense a controlled substance in Indiana. Thus,
because Registrant lacks authority to handle controlled substances in
Indiana, 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.
FH0303292 issued to Darryl L. Henry, 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 Darryl L. Henry, M.D. to renew or
modify this registration, as well as any other pending application of
Darryl L. Henry, M.D. for additional registration in Indiana. This
Order is effective November 1, 2021.
Anne Milgram,
Administrator.
[FR Doc. 2021-21425 Filed 9-30-21; 8:45 am]
BILLING CODE 4410-09-P
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</html>Indexed from Federal Register on October 1, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.