Notice2022-08513
Larry S. Everhart, M.D.; Decision and Order
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 21, 2022
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 77 (Thursday, April 21, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 77 (Thursday, April 21, 2022)]
[Notices]
[Pages 23885-23887]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-08513]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Larry S. Everhart, M.D.; Decision and Order
On January 14, 2022, a former Acting Assistant Administrator,
Diversion Control Division, Drug Enforcement Administration
(hereinafter, Government), issued an Order to Show Cause (hereinafter,
OSC) to Larry S. Everhart, M.D. (hereinafter, Registrant) of Powell,
Ohio. Request for Final Agency Action (hereinafter, RFAA), Exhibit
(hereinafter, RFAAX) A (OSC), at 1. The OSC proposed the revocation of
Registrant's Certificate of Registration No. AE5735557. Id. It alleged
that Registrant is ``without authority to prescribe controlled
substances in the State of Ohio, the state in which [he is] registered
with the DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
[[Page 23886]]
Specifically, the OSC alleged that on or about July 14, 2021, the
State Medical Board of Ohio permanently revoked Registrant's medical
license after finding that on numerous occasions, Registrant relied on
an unproven diagnostic device to diagnose and treat patients;
inappropriately prescribed an anti-parasitic drug and prescribed it in
excess of recommended dosages; inappropriately prescribed multiple
antibiotics in excess of recommended dosages; and failed to maintain
complete and/or legible medical records. 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 March 4, 2022, a Diversion Investigator
(hereinafter, the DI) assigned to the Columbus District Office of the
Detroit Field Division stated that on or about January 20, 2022, she
sent a copy of the OSC via certified mail to Registrant's registered
address. RFAAX B (DI's Declaration), at 1-2. According to the DI,
United States Postal Service (USPS) tracking information indicates that
the copy of the OSC was delivered on or about January 24, 2022. Id. at
2.
The Government forwarded its RFAA, along with the evidentiary
record, to this office on March 15, 2022. According to the Government's
RFAA, ``[Registrant] has not corresponded or otherwise communicated
with DEA regarding the [OSC].'' RFAA, at 2. Further, the Government
states that, ``[m]ore than 30 days have passed since [Registrant] was
served with the [OSC] and, therefore, the deadline for requesting a
hearing or submitting a written statement of position has passed.'' Id.
(citing 21 CFR 1301.43). The Government requests that ``[Registrant's]
DEA Certificate of Registration as a practitioner be revoked based on
his lack of authority to handle controlled substances in the State of
Ohio, the state in which he is registered with DEA.'' Id. at 6.
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
January 24, 2022. 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 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 or corrective action plan. 21 CFR
1301.43(d); 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.
AE5735557 at the registered address of 3779 Attucks Drive, Powell, Ohio
43065. RFAAX B (DI's Declaration), 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 August 31, 2022. Id.
The Status of Registrant's State License
On May 13, 2020, the State Medical Board of Ohio (hereinafter, the
Board) notified Registrant that the Board intended to ``determine
whether or not to limit, revoke, permanently revoke, suspend, refuse to
grant or register or renew or reinstate [his] license or certificate to
practice medicine and surgery, or to reprimand [him] or place [him] on
probation.'' RFAAX B, Exhibit B-1, at 124-125. According to the Board's
letter, from on or about January 24, 2005, to July 24, 2019, Registrant
relied on ``an unproven electrodermal diagnostic device'' to diagnose
and treat ten different patients. Id. at 124. Regarding these
diagnoses, Registrant failed to confirm the results through laboratory
testing and/or consultation from a specialist before employing
treatment measures. Id. The Board's letter also alleged that, in regard
to the treatment of the ten patients, Registrant inappropriately
prescribed an antiparasitic drug and multiple antibiotics, prescribing
the medications in excess of recommended dosages and without
appropriately confirming diagnoses. Id. Finally, the Board's letter
alleged that Registrant's medical records for the ten patients were
``incomplete and/or illegible.'' Id. The Board argued, citing to Ohio
State law, that Registrant's conduct constituted a `` `departure from,
or the failure to conform to, minimal standards of care.' '' Id. The
Board also argued, citing to Ohio State law, that Registrant's conduct
constituted a `` `[f]ailure to maintain minimal standards applicable to
the selection or administration of drugs, or failure to employ
acceptable scientific methods in the selection of drugs or other
modalities for treatment of disease.' '' Id. at 124-125. On July 14,
2021, the Board issued its Entry of Order permanently revoking
Registrant's Ohio medical license and ordering Registrant to pay a fine
of $3,500. Id. at 3.
According to Ohio's online records, of which I take official
notice, Registrant's medical license is still permanently revoked.\1\
<a href="https://elicense.ohio.gov/oh_verifylicense">https://elicense.ohio.gov/oh_verifylicense</a> (last visited date of
signature of this Order). Accordingly, I find that Registrant is not
currently licensed to practice medicine in Ohio, the state in which he
is registered with the DEA.
---------------------------------------------------------------------------
\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#a8cccdc986c9ccccc786c9dcdcc7dac6cdd1dbe8cccdc986dddbccc7c286cfc7de"><span class="__cf_email__" data-cfemail="395d5c5817585d5d5617584d4d564b575c404a795d5c58174c4a5d5653175e564f">[email protected]</span></a>.
---------------------------------------------------------------------------
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 71371 (2011), pet. for rev. denied, 481 F. App'x
[[Page 23887]]
826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617
(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 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); Frederick Marsh Blanton, 43 FR at 27617.
According to Ohio law, ``No person shall knowingly obtain, possess,
or use a controlled substance or a controlled substance analog,''
except pursuant to a ``prescription issued by a licensed health
professional authorized to prescribe drugs if the prescription was
issued for a legitimate medical purpose.'' Ohio Rev. Code Ann.
Sec. Sec. 2925.11(A), (B)(1)(d) (West, current through File 85 of the
134th General Assembly (2021-2022)). Ohio law further states that a
``[l]icensed health professional authorized to prescribe drugs'' or
``prescriber'' means ``an individual who is authorized by law to
prescribe drugs or dangerous drugs or drug therapy related devices in
the course of the individual's professional practice.'' Id. at Sec.
4729.01(I). The definition further provides a limited list of
authorized prescribers, the relevant provision of which is ``[a]
physician authorized under Chapter 4731[ ] of the Revised Code to
practice medicine and surgery, osteopathic medicine and surgery, or
podiatric medicine and surgery.'' Id. at Sec. 4729.01(I)(5).
Additionally, Ohio law permits ``[a] licensed health professional
authorized to prescribe drugs, if acting in the course of professional
practice, in accordance with the laws regulating the professional's
practice'' to prescribe or administer schedule II, III, IV, and V
controlled substances to patients. Id. at Sec. 3719.06(A)(1)(a)-(b).
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice medicine in Ohio. As already
discussed, a physician is authorized by law to prescribe or administer
drugs in Ohio only when authorized to practice medicine and surgery
under Ohio law. Thus, because Registrant lacks authority to practice
medicine in Ohio and, therefore, is not authorized to handle controlled
substances in Ohio, 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.
AE5735557 issued to Larry S. Everhart, 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 Larry S. Everhart, M.D. to renew or
modify this registration, as well as any other pending application of
Larry S. Everhart, M.D. for additional registration in Ohio. This Order
is effective May 23, 2022.
Anne Milgram,
Administrator.
[FR Doc. 2022-08513 Filed 4-20-22; 8:45 am]
BILLING CODE 4410-09-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on April 21, 2022.
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.