Notice2024-07236
Ralph Reach, M.D.; Decision And Order
Primary source
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Published
April 5, 2024
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 89 Issue 67 (Friday, April 5, 2024)</title>
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[Federal Register Volume 89, Number 67 (Friday, April 5, 2024)]
[Notices]
[Pages 24036-24037]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07236]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 23-63]
Ralph Reach, M.D.; Decision And Order
On August 30, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Ralph Reach, M.D.
(Respondent). OSC, at 1, 4. The OSC proposed the revocation of
Respondent's DEA Certificates of Registration Nos. FR0673548 and
FR0004589 at the registered addresses of 142 Mall Church Road, Cedar
Bluff, Virginia 24609 and 102 North Broadway Street, Johnson City,
Tennessee 37601, respectively. Id. at 1. The OSC alleged that
Respondent's DEA registrations should be revoked because Respondent is
``without authority to prescribe, administer, dispense, or otherwise
handle controlled substances in the State of Tennessee and the
Commonwealth of Virginia, the jurisdictions in which [he is] registered
with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
On September 14, 2023, Respondent requested a hearing. On September
27, 2023, the Government filed a Motion for Summary Disposition, which
Respondent opposed. On November 7, 2023, Administrative Law Judge
Teresa A. Wallbaum (the ALJ) granted the Government's Motion for
Summary Disposition and recommended the revocation of Respondent's
registration, finding that because Respondent lacks state authority to
handle controlled substances in Tennessee and Virginia, the states in
which he is registered with DEA, ``[t]here is no genuine issue of
material fact in this case.'' Order Granting the Government's Motion
for Summary Disposition, and Recommended Rulings, Findings of Fact,
Conclusions of Law, and Decision of the Administrative Law Judge (RD),
at 7. On November 9, 2023, Respondent filed a document titled ``Notice
of Appeal'' \1\ in response to the RD.
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\1\ The document blankly asserts that that Respondent appeals
the RD without explaining the basis therefor or otherwise
identifying his exceptions to the RD pursuant to 21 CFR 1316.66. See
Respondent's Notice of Appeal.
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Having reviewed the entire record, the Agency adopts and hereby
incorporates by reference the entirety of the ALJ's rulings, findings
of fact, conclusions of law, and recommended sanction as found in the
RD and summarizes and expands upon portions thereof herein.
Findings of Fact
Effective June 30, 2023, the Tennessee Department of Health revoked
Respondent's Tennessee medical license. RD, at 5.\2\ Further, effective
July 6, 2023, the Virginia Department of Health Professions suspended
Respondent's Virginia medical license. Id.\3\
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\2\ See also Government's Notice of Filing of Evidence and
Motion for Summary Disposition, Exhibit (GX) 3, at 1.
\3\ See also GX 1, at 1-2.
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According to Tennessee and Virginia online records, of which the
Agency takes official notice, Respondent's Tennessee medical license
remains revoked and Respondent's Virginia medical license remains
suspended.\4\
[[Page 24037]]
Tennessee Department of Health License Verification, <a href="https://apps.health.tn.gov/Licensure/">https://apps.health.tn.gov/Licensure/</a>default.aspx (last visited date of
signature of this Order); Virginia Department of Health Professions
License Lookup, <a href="https://dhp.virginiainteractive.org/">https://dhp.virginiainteractive.org/</a>lookup (last
visited date of signature of this Order).
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\4\ 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, Respondent may dispute the Agency's finding
by filing a properly supported motion for reconsideration of
findings 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#ed89888cc38c898982c38c9999829f8388949ead89888cc38a829b"><span class="__cf_email__" data-cfemail="a3c7c6c28dc2c7c7cc8dc2d7d7ccd1cdc6dad0e3c7c6c28dc4ccd5">[email protected]</span></a>.
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Accordingly, the Agency finds that Respondent is not currently
licensed to practice medicine in either Tennessee or Virginia, the
states in which he is registered with the DEA.\5\
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\5\ Because Respondent's DEA registrations at issue here are
based on his Tennessee and Virginia medical licenses, which have
undeniably been revoked and suspended, it is of no consequence that
he may maintain a valid medical license and separate DEA
registration based in North Carolina, see Respondent's Opposition,
at 4. RD, at 7; Omar Garcia, M.D., 87 FR 32186, 32187 n.6 (2022).
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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 (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 \6\ for obtaining and
maintaining a practitioner's registration. See, e.g., James L. Hooper,
M.D., 76 FR 71371, 71372 (2011), pet. for rev. denied, 481 F. App'x 826
(4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617
(1978).\7\
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\6\ As such, the Agency finds Respondent's arguments regarding
the discretionary nature of 21 U.S.C. 824(a)(3), see Respondent's
Response in Opposition to Government's Motion for Summary
Disposition (Respondent's Opposition), at 4, to be unavailing. RD,
at 6; see also Bhanoo Sharma, M.D., 87 FR 41355, 41356 n.4 (2022).
\7\ 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(g)(1) (this
section, formerly Sec. 823(f), was redesignated as part of the
Medical Marijuana and Cannabidiol Research Expansion Act, Pub. L.
117-215, 136 Stat. 2257 (2022)). 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. Moreover, because ``the
controlling question'' in a proceeding brought under 21 U.S.C.
824(a)(3) is whether the holder of a practitioner's registration
``is currently authorized to handle controlled substances in the
[S]tate,'' Hooper, 76 FR at 71371 (quoting Anne Lazar Thorn, 62 FR
12847, 12848 (1997)), the Agency has also long held that revocation
is warranted even where a practitioner is still challenging the
underlying action. Bourne Pharmacy, 72 FR 18273, 18274 (2007);
Wingfield Drugs, 52 FR 27070, 27071 (1987). Thus, it is of no
consequence that Respondent is still challenging the underlying
action here, see Respondent's Opposition, at 4. RD, at 6-7. What is
consequential is the Agency's finding that Respondent is not
currently authorized to dispense controlled substances in either
Tennessee or Virginia, the states in which he is registered with the
DEA. Adley Dasilva, P.A., 87 FR 69341, 69341 n.2 (2022).
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According to Tennessee statute, ``dispense'' means ``to deliver a
controlled substance to an ultimate user or research subject by or
pursuant to the lawful order of a practitioner, including the
prescribing, administering, packaging, labeling, or compounding
necessary to prepare the substance for that delivery''; a
``practitioner'' means a ``physician . . . or other person licensed,
registered or otherwise permitted to distribute, dispense, conduct
research with respect to or to administer a controlled substance in the
course of professional practice or research in [the] state.'' Tenn.
Code Ann. Sec. 39-17-402(7), (23)(A) (West 2024). Similarly, under
Virginia statute, ``dispense'' means ``to deliver a drug to an ultimate
user or research subject by or pursuant to the lawful order of a
practitioner, including the prescribing and administering, packaging,
labeling, or compounding necessary to prepare the substance for that
delivery''; a ``practitioner'' means a ``physician . . . or other
person licensed, registered, or otherwise permitted to distribute,
dispense, prescribe and administer, or conduct research with respect to
a controlled substance in the course of professional practice or
research in the [state].'' Va. Code Ann. Sec. 54.1-3401 (West 2023).
Here, the undisputed evidence in the record is that Respondent
lacks authority to practice medicine in both Tennessee and Virginia. As
discussed above, in both Tennessee and Virginia, a physician must be a
licensed practitioner to dispense a controlled substance. Thus, because
Respondent lacks authority to practice medicine in both Tennessee and
Virginia and, therefore is not authorized to handle controlled
substances in either Tennessee or Virginia, Respondent is not eligible
to maintain a DEA registration in those states. RD, at 6-7.
Accordingly, the Agency will order the Respondent's DEA registrations
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 Certificates of Registration Nos.
FR0673548 and FR0004589 issued to Ralph Reach, M.D. Further, pursuant
to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C.
823(g)(1), I hereby deny any pending applications of Ralph Reach, M.D.,
to renew or modify these registrations, as well as any other pending
application of Ralph Reach, M.D., for additional registration in
Tennessee or Virginia. This Order is effective May 6, 2024.
Signing Authority
This document of the Drug Enforcement Administration was signed on
April 1, 2024, by Administrator Anne Milgram. That document with the
original signature and date is maintained by DEA. For administrative
purposes only, and in compliance with requirements of the Office of the
Federal Register, the undersigned DEA Federal Register Liaison Officer
has been authorized to sign and submit the document in electronic
format for publication, as an official document of DEA. This
administrative process in no way alters the legal effect of this
document upon publication in the Federal Register.
Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2024-07236 Filed 4-4-24; 8:45 am]
BILLING CODE 4410-09-P
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