[Federal Register Volume 80, Number 159 (Tuesday, August 18, 2015)]
[Notices]
[Pages 50032-50033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20350]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 14-24]
Nicholas Nardacci, M.D.; Decision and Order
On July 15, 2014, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Nicholas J. Nardacci, M.D. (Respondent), of
Albuquerque, New Mexico. The Show Cause Order proposed the revocation
of Respondent's DEA Certificate of Registration AN9444592, on the
ground that he lacks authority to handle controlled substances in New
Mexico, the State in which he is registered with DEA. Show Cause Order,
at 1 (citing 21 U.S.C. 823(f) & 824(a)(3)).
The Show Cause Order specifically alleged that on August 20, 2013,
the New Mexico Medical Board (the Board) issued a Decision and Order
suspending Respondent's medical license, based on its finding that
since 2010, Respondent had prescribed medical marijuana for numerous
persons by certifying to the New Mexico Department of Health that he
was each person's medical provider, without first establishing that he
was the primary caregiver for any of those persons or otherwise first
establishing a physician-patient relationship as required under NMSA
Sec. Sec. 26-2B-1 et seq. Id. at 1. Based on the State's suspension of
his medical license, the Order alleged that Respondent was without
authority to handle controlled substances in New Mexico, the State in
which he is registered with DEA, and thus, he is not entitled to
maintain his registration. Id. (citing 21 U.S.C. 801(21), 823(f) and
824(a)(3)).\1\
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\1\ The Show Cause Order also notified Respondent of his right
to request a hearing on the allegations, or to submit a written
statement in lieu of a hearing, the procedure for electing either
option, and the consequence for failing to elect either option. Show
Cause Order, at 2 (citing 21 CFR 1301.43).
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On or about August 4, 2014, the Show Cause Order was served on
Respondent, and on September 2, 2014, Respondent filed a letter with
the Office of Administrative Law Judges. GX 4. Therein, Respondent
acknowledged that he had been served with the Show Cause Order and
requested additional time in which to respond to the Order so that he
could retain a lawyer; however, he did not request a hearing. Id.
Respondent also asserted that on August 12, 2014, the Board had issued
a Return to Work Order and therefore, his state medical license was now
active. Id. The matter was then assigned
[[Page 50033]]
to an Administrative Law Judge, who ordered the Government to respond
to Respondent's statement that ``he currently has an active license.''
GX 5, at 1.
In the meantime, on September 3, 2014, the New Mexico Medical Board
notified a DEA Diversion Investigator in the Albuquerque District
Office that the Board's August 12, 2014 Order did not place any formal
restrictions on Respondent's authority to prescribe controlled
substances, explaining that his prescribing was not at issue in the
Board's case. GX 3. Thereafter, on September 9, 2014, the Government
filed a motion for Termination of Proceedings, stating that the
allegations of the Show Cause Order were now moot and that ``these
developments apparently obviate the need for any further proceedings.''
GX 5, at 2.
Noting that Respondent had not requested a hearing, the ALJ
concluded that ``the only jurisdictional authority'' she possessed was
to determine whether to grant Respondent's request for ``a reasonable
extension of the time allowed for response to an Order to Show Cause.''
Order Denying Respondent's Motion For Extension of Time, at 2 (quoting
21 CFR 1316.47). The ALJ thus concluded that she did not have
jurisdiction to rule on the Government's motion. Id. The ALJ then
denied Respondent's motion, ``with the understanding that the
Government will take the necessary steps to properly dismiss the'' Show
Cause Order. Id.
On February 3, 2015, the Government submitted a ``Request [f]or
Dismissal [o]f Order [t]o Show Cause.'' Therein, the Government states
that although Respondent was without state authority to handle
controlled substances on July 15, 2014, when the Show Cause Order was
issued, the New Mexico Medical Board has since lifted the suspension of
his medical license and Respondent currently has no restrictions on his
state authority to handle controlled substances.\2\ Id. at 2. Because
the Show Cause Order sought revocation of Respondent's registration
solely on the basis of his lack of state authority to handle controlled
substances, and that ground for revocation no longer exists, the
Government requests that I dismiss the Order. Id. at 2.
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\2\ The Government submitted a copy of the Board's Order with
its Request for Dismissal. See GX 2.
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Based on my review of the Board's Order, as well as the Board's
September 3, 2014 letter to the Diversion Investigator, I find that
Respondent is currently authorized to dispense controlled substances in
New Mexico, the State in which he is registered with this Agency.
Because Respondent's loss of state authority was the sole basis for the
Show Cause Order and this ground no longer exists, I conclude that this
case is now moot and will order that the Show Cause Order be dismissed.
Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well
as 28 CFR 0.100(b), I order that the Order to Show Cause issued to
Nicholas J. Nardacci, M.D., be, and it hereby is, dismissed. This Order
is effective immediately.
Dated: August 10, 2015.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2015-20350 Filed 8-17-15; 8:45 am]
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