Notice2022-11511
Shah M. Mairuz Zaman, 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
May 31, 2022
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 104 (Tuesday, May 31, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 104 (Tuesday, May 31, 2022)]
[Notices]
[Pages 32461-32463]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-11511]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Shah M. Mairuz Zaman, M.D.; Decision and Order
On December 30, 2021, a former Acting Assistant Administrator,
Diversion Control Division, Drug Enforcement Administration
(hereinafter, Government), issued an Order to Show Cause (hereinafter,
OSC)
[[Page 32462]]
to Shah M. Mairuz Zaman, M.D. (hereinafter, Registrant) of
Poughkeepsie, New York. OSC, at 1 and 3. The OSC proposed the
revocation of Registrant's Certificate of Registration No. AM9630080.
Id. at 1. It alleged that Registrant is ``without authority to handle
controlled substances in New York, the state in which [he is]
registered with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
Specifically, the OSC alleged that on September 14, 2021, the New
York State Education Department, Office of Professional Misconduct
indefinitely suspended Registrant's state medical license and required
its surrender after finding that Registrant ``had committed
professional misconduct by failing to pay child support and
maintenance.'' 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 April 25, 2022, a Diversion Investigator
(hereinafter, the DI) assigned to the New York Field Division stated
that on February 1, 2022, she and another DI traveled to Registrant's
registered address to attempt service of the OSC, but Registrant was
not there, and a receptionist at the registered address ``stated that
she had not seen [Registrant] in months, that his office had been
cleaned out, that his mailbox was completely full, and that he had left
no forwarding address.'' Request for Final Agency Action (hereinafter
RFAA), Exhibit (hereinafter, RFAAX) 3 (DI's Declaration), at 2. The DI
also stated that on the same day, she and the second DI tried to serve
the OSC to Registrant at three additional addresses that DEA had
determined were potential residences of Registrant, but these attempts
were unsuccessful as Registrant was not found at any of them. Id.
Finally, the DI stated that on February 2, 2022, she sent a copy of the
OSC to Registrant via his registered email address. Id. The DI stated
that she did not receive any indication that the email was not
delivered and that her review of her email system showed that the email
had been delivered. Id. at 2-3; see also id. at Appendix (hereinafter,
App.) B.
The Government forwarded its RFAA, along with the evidentiary
record, to this office on April 27, 2022. In its RFAA, the Government
represents that neither Registrant, nor any attorney representing
Registrant, has requested a hearing or submitted a written statement.
RFAA, at 1-2. The Government seeks revocation of Registrant's DEA
registration because Registrant lacks authority to handle controlled
substances in New York, the state in which he is registered with the
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 February 2,
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 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 or
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.
AM9630080 at the registered address of 243 North Road, Suite 201-South,
Poughkeepsie, New York 12601. RFAAX 1 (Certificate of Registration).
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 May 31, 2024. Id.
The Status of Registrant's State License
On September 8, 2021, the University of the State of New York
issued a Report of the Regents Review Committee (hereinafter, Report)
as part of a disciplinary proceeding against Registrant.\1\ RFAAX 3,
App. A, at 2. According to the Report, Registrant was the respondent in
post-divorce proceedings in the Columbia County Supreme Court, which
determined that Registrant was in default for child and/or spousal
support. Id. Accordingly, the Columbia County Supreme Court ordered the
disciplinary proceeding against Registrant to suspend his license as a
physician in the state of New York. Id. The Report found that
Registrant's failure to pay child and/or spousal support constituted
professional misconduct and recommended that his license be
indefinitely suspended. Id. at 5-6. On September 14, 2021, the
University of the State of New York issued an order indefinitely
suspending Registrant's New York medical license until Registrant ``has
made full payment of all arrears of child support and maintenance.''
Id. at 9-10. On September 17, 2021, the New York State Education
Department, Office of Professional Discipline notified Registrant by
letter of the order and directed Registrant to surrender his New York
medical license and registration. Id. at 1.
---------------------------------------------------------------------------
\1\ It is noted that Registrant's name is listed in the New York
licensing actions in Appendix A as ``Shah Mohammad Maniruz Zaman'';
however, substantial evidence on the record supports my finding that
this person is the same as Registrant.
---------------------------------------------------------------------------
According to New York's online records, of which I take official
notice, Registrant's New York medical license is still indefinitely
suspended.\2\ Office of the Professions Verification Searches,
<a href="http://www.op.nysed.gov/opsearches.htm">www.op.nysed.gov/opsearches.htm</a> (last visited date of signature of this
Order). Accordingly, I find that Registrant is not currently licensed
to engage in the practice of medicine in New York, the state in which
he is registered with the DEA.
---------------------------------------------------------------------------
\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#2d49484c034c494942034c5959425f4348545e6d49484c03585e494247034a425b"><span class="__cf_email__" data-cfemail="214544400f4045454e0f4055554e534f445852614544400f5452454e4b0f464e57">[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
[[Page 32463]]
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 the New York Controlled Substances Act (hereinafter,
the Act), ``[i]t shall be unlawful for any person to manufacture, sell,
prescribe, distribute, dispense, administer, possess, have under his
control, abandon, or transport a controlled substance except as
expressly allowed by this article.'' N.Y. Pub. Health Law Sec. 3304
(McKinney 2022). Further, the Act defines a ``practitioner'' as ``[a]
physician . . . or other person licensed, or otherwise permitted to
dispense, administer or conduct research with respect to a controlled
substance in the course of a licensed professional practice . . . .''
Id. at Sec. 3302(27). Finally, New York regulations state that ``[a]
prescription for a controlled substance may be issued only by a
practitioner who is . . . authorized to prescribe controlled substances
pursuant to his licensed professional practice . . . .'' N.Y. Comp.
Codes R. & Regs. tit. 10, Sec. 80.64 (2022).
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice medicine in New York. As already
discussed, a physician must be a licensed practitioner to dispense a
controlled substance in New York. Thus, because Registrant lacks
authority to practice medicine in New York and, therefore, is not
authorized to handle controlled substances in New York, 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.
AM9630080 issued to Shah M. Mairuz Zaman, 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 Shah M. Mairuz Zaman, M.D. to
renew or modify this registration, as well as any other pending
application of Shah M. Mairuz Zaman, M.D. for additional registration
in New York. This Order is effective June 30, 2022.
Anne Milgram,
Administrator.
[FR Doc. 2022-11511 Filed 5-27-22; 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 May 31, 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.