Notice2021-27485
Timothy C. Sapp, M.D.; Decision and Order
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Published
December 20, 2021
Issuing agencies
Justice DepartmentDrug Enforcement Administration
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<title>Federal Register, Volume 86 Issue 241 (Monday, December 20, 2021)</title>
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[Federal Register Volume 86, Number 241 (Monday, December 20, 2021)]
[Notices]
[Pages 71921-71923]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27485]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Timothy C. Sapp, M.D.; Decision and Order
On June 7, 2021, a former Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration (hereinafter,
Government), issued an Order to Show Cause (hereinafter, OSC) to
Timothy C. Sapp, M.D. (hereinafter, Registrant) of Phoenix, Arizona.
OSC, at 1. The OSC proposed the revocation of Registrant's Certificate
of Registration No. BS7608396. It alleged that Registrant is without
``authority to handle controlled substances in Arizona, 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 the Arizona Medical Board
(hereinafter, the Board) issued an Interim Findings of Fact,
Conclusions of Law and Order for Summary Restriction of License on
April 22, 2020. Id. This Order, according to the OSC, summarily
restricted Registrant's Arizona state medical license and prohibited
Registrant from prescribing controlled substances pending the outcome
of a formal hearing following the Board's finding, inter alia, that
Registrant's treatment of six patients to whom he had prescribed
controlled substances deviated from the standard of care. Id. On
September 4, 2020, the Board issued its Findings of Fact, Conclusions
of Law and Order finding, inter alia, that Registrant's prescribing of
controlled substances to six patients deviated from the standard of
care and accordingly, the Board revoked Registrant's Arizona state
medical license, effective October 9, 2020. 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. at 2-3 (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 October 29, 2021, a Diversion Investigator
(hereinafter, the DI) assigned to the Phoenix Field Division stated
that on June 9, 2021, she sent a copy of the OSC via USPS certified
mail to four addresses associated with Registrant, including: An
address in Hawkinsville, GA where Registrant registered a new driver's
license issued on May 14, 2021; two of Registrant's last-known
residential addresses, one in Phoenix, AZ and another in Columbia, SC;
and one of Registrant's former residential addresses in Phoenix, AZ.
Request for Final Agency Action (hereinafter, RFAA), Exhibit
(hereinafter, RFAAX) 2, at 1-2. The DI stated that she did not mail a
copy of the OSC to Registrant's registered address in Phoenix, AZ
because she had ``previously learned that the address was no longer a
medical facility.'' Id. at 2. According to the DI, on April 22, 2021,
she had traveled with a DEA Special Agent to Registrant's registered
address and ``discovered that Registrant's registered address [was]
operating as a tutoring facility called `The Art of Learning.''' Id.
Further, according to the DI, ``[t]he staff at `The Art of Learning'
had no knowledge of [Registrant].'' Id.
On or around June 30, 2021, the DI discovered that the OSC mailings
delivered to Hawkinsville, GA and Columbia, SC were returned as
undeliverable. Id.; see also RFAAX 2, Appendix (hereinafter, App.) A.
On or around July 28, 2021, the DI discovered that the OSC mailed to
Registrant's last known residential address in Phoenix, AZ was returned
as undeliverable. Id. The DI stated that as of the date of the
Declaration, she had not received any returned mail in connection with
the OSC mailing to Registrant's former residential address in Phoenix,
AZ. RFAAX 2, at 2. The DI stated that on October 29, 2021, she checked
the status of her mailing to Registrant's former residential address in
Phoenix, AZ and the USPS website ``showed the status of the mailing as
`Delivered, Front Desk/Reception/Mail Room' on June 14, 2021 at 12:54
p.m.'' Id. at 2-3; see also RFAAX 2, App. B.
On August 9, 2021, the DI emailed copies of the OSC to three email
addresses associated with Registrant, including Registrant's registered
email address and two email addresses listed in Registrant's
comprehensive LexisNexis report. RFAAX 2, at 3. The DI stated that she
received undeliverable confirmations from Registrant's registered email
address and one of the email addresses listed in Registrant's
comprehensive LexisNexis report. Id.; see also RFAAX 2, App. C. As of
the date of the Declaration, the DI did not receive any undeliverable
message or error message regarding to other email address listed in
Registrant's comprehensive LexisNexis report. Id. The DI concluded that
as of the date of the Declaration, ``DEA [had] not received any
correspondence or communication from [Registrant] regarding the
[OSC].'' RFAAX 2, at 3.
The Government forwarded its RFAA, along with the evidentiary
record, to this office on November 2, 2021. In its RFAA, the Government
represents that ``more than thirty days have passed since the
Government both mailed and emailed the [OSC] to [Registrant]'' and
``[n]either [Registrant] nor his attorney filed any Request for
Hearing'' ``[n]or has DEA received any other response, either from
[Registrant] or his attorney, regarding the [OSC].'' RFAA, at 2 and 4.
The Government requests that Registrant's DEA registration be revoked
because ``[Registrant] lacks authority to handle controlled substances
in the state of Arizona, the state where he is registered with 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 (or before)
August 9, 2021. 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
According to Agency records, Registrant is the holder of DEA
Certificate of Registration No. BS7608396 at the registered address of
1130 E Missouri Ave, Ste 206, Phoenix, AZ 85014. See RFAAX 2, at 1 (DI
Declaration). Pursuant to this registration, Registrant is authorized
to dispense controlled substances in schedules II through V as a
practitioner. Registrant's registration expires on February 28, 2023
and is currently in an ``active pending'' status. Id.
The Status of Registrant's State License
On April 22, 2020, the Arizona Medical Board (hereinafter, the
Board) issued an Interim Findings of Fact, Conclusions of Law and Order
for Summary Restriction of License
[[Page 71922]]
(hereinafter, Interim Order). RFAAX 2, App. D. According to the Interim
Order, the Board initiated a case after receiving a complaint regarding
Registrant's care and treatment of patient E.R. that alleged
inappropriate prescribing and medication management. Id. at 1. Based on
the complaint, the Board requested Medical Consultant (hereinafter, MC)
review of Registrant's care of patient E.R. and three other patients,
which found that Registrant had deviated from the standard of care,
including ``prescribing Adderall without adequate clinical rationale,
prescribing two benzodiazepines concurrently without adequate clinical
rationale, [and] prescribing Lamictal for off-label use without
adequate clinical rationale.'' Id. at 1-3. The review concluded that
``[t]here was the potential for patient harm including that patients
were at risk for misuse of controlled substances, dependence and
addiction.'' Id. at 3.
The Board initiated a second case after receiving a complaint
regarding Registrant's care and treatment of patient W.F. that alleged
inappropriate prescribing and failing to obtain drug screens. Id. An MC
review of Registrant's care and treatment of W.F. ``opined that
[Registrant] deviated from the standard of care by prescribing high
dose benzodiazepines and stimulants without adequate clinical
rationale, and by prescribing a stimulant and antidepressant
concurrently in a patient with bipolar disorder without a mood
stabilizer.'' Id. at 4. The review concluded that ``[t]here was the
potential for patient harm in that [W.F.] was at risk of a `manic
switch' due to the lack of concurrently prescribed mood stabilizer.''
Id.
Finally, the Board initiated a third case after receiving a
complaint regarding Registrant's care and treatment of patient R.P.
that alleged inappropriate discharge of a patient. Id. An MC review of
Registrant's care and treatment of R.P. ``opined that [Registrant]
deviated from the standard of care by failing to appropriately
discharge the patient.'' Id. at 5. The review concluded that ``[t]here
was actual patient harm in that R.P. experienced withdrawal symptoms
from abrupt cessation of benzodiazepines.'' Id.
On April 21, 2020, the Board ``voted unanimously to offer
[Registrant] an Interim Consent Agreement for Practice Restriction
(`ICA'), and if not accepted by 12:00 p.m. on April 22, 2020, to
summarily restrict [Registrant's] license, based on a finding that the
public health, safety and welfare imperatively required imminent
action.'' Id. According to the Interim Order, ``[Registrant] failed to
accept the proposed ICA within the time frame specified by the Board,''
and thus, the Board ordered the summary restriction of Registrant's
Arizona medical license and prohibited Registrant ``from prescribing
controlled substances in the State of Arizona pending the outcome of a
Formal Hearing in [the] matter.'' Id. at 5-6. On September 4, 2020, the
Board issued its Findings of Fact, Conclusions of Law and Order
(License Revocation) and ordered Registrant's Arizona medical license
revoked. RFAAX 2, App. E, at 19.
According to Arizona's online records, of which I take official
notice, Registrant's license is expired.\1\ Arizona Medical Board
Licensee Search, <a href="https://azbomprod.azmd.gov/glsuiteweb/clients/azbom/public/WebVerificationSearch.aspx">https://azbomprod.azmd.gov/glsuiteweb/clients/azbom/public/WebVerificationSearch.aspx</a> (last visited date of signature of
this Order). Arizona's online records show that Registrant's medical
license remains expired. Id.
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\1\ 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#ea8e8f8bc48b8e8e85c48b9e9e8598848f9399aa8e8f8bc49f998e8580c48d859c"><span class="__cf_email__" data-cfemail="1a7e7f7b347b7e7e75347b6e6e7568747f63695a7e7f7b346f697e7570347d756c">[email protected]</span></a>.
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Accordingly, I find that Registrant is not currently licensed to
engage in the practice of medicine in Arizona, 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 Arizona statute, ``[e]very person who manufactures,
distributes, dispenses, prescribes or uses for scientific purposes any
controlled substance within this state or who proposes to engage in the
manufacture, distribution, prescribing or dispensing of or using for
scientific purposes any controlled substance within this state must
first: (1) Obtain and possess a current license or permit as a medical
practitioner as defined in Sec. 32-1901 . . .'' Ariz. Rev. Stat. Ann.
Sec. 36-2522(A) (2021). Arizona Statute Sec. 32-1901 defines a
``[m]edical practitioner'' as ``any medical doctor . . . or other
person who is licensed and authorized by law to use and prescribe drugs
and devices to treat sick and injured human beings or animals or to
diagnose or prevent sickness in human beings or animals in this state
or any state, territory or district of the United States.'' Ariz. Rev.
Stat. Ann. Sec. 32-1901 (2021). Arizona regulations further clarify
that ``[a] physician who wishes to dispense a controlled substance . .
. a prescription-only drug . . . or a prescription-only device . . .
shall be
[[Page 71923]]
currently licensed to practice medicine in Arizona.'' Ariz. Admin. Code
Sec. R4-16-301(A) (2021).
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice medicine in Arizona, as he no
longer retains a medical license in that state. As already discussed, a
physician can only dispense controlled substances if he is licensed to
practice medicine in Arizona. Thus, because Registrant lacks authority
to practice medicine in Arizona and, therefore, is not authorized to
dispense controlled substances in Arizona, Registrant is not eligible
to maintain a DEA registration in Arizona. 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.
BS7608396 issued to Timothy C. Sapp, 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 Timothy C. Sapp to renew or modify this
registration, as well as any other pending application of Timothy C.
Sapp for additional registration in Arizona. This Order is effective
January 19, 2022.
Anne Milgram,
Administrator.
[FR Doc. 2021-27485 Filed 12-17-21; 8:45 am]
BILLING CODE 4410-09-P
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