80_FR_28736 80 FR 28640 - Karen S. Dunning, N.P.; Decision and Order

80 FR 28640 - Karen S. Dunning, N.P.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 80, Issue 96 (May 19, 2015)

Page Range28640-28643
FR Document2015-12020

Federal Register, Volume 80 Issue 96 (Tuesday, May 19, 2015)
[Federal Register Volume 80, Number 96 (Tuesday, May 19, 2015)]
[Notices]
[Pages 28640-28643]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-12020]


=======================================================================
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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 15-11]


Karen S. Dunning, N.P.; Decision and Order

    On January 9, 2015, I, the Administrator of the Drug Enforcement 
Administration, issued an Order to Show Cause and Immediate Suspension 
of Registration to Karen S. Dunning, N.P. (hereinafter, Respondent) of 
Kouts, Indiana. The Order to Show Cause and Immediate Suspension of 
Registration proposed the revocation of Respondent's DEA Certificate of 
Registration MD2249161, pursuant to which she was authorized to 
dispense controlled substances in schedules II through V as a 
practitioner, and the denial of any application to renew or modify her 
registration, on the ground that she has committed acts which render 
her ``continued registration inconsistent with the public interest.'' 
Show Cause Order, at 1.
    More specifically, the Order alleged that Respondent, who is an 
Advanced Practice Nurse licensed by the Indiana State Board of Nursing, 
is not authorized under state law ``to prescribe controlled substances 
in Schedules III and IV for the purpose of weight reduction or to 
control obesity.'' Show Cause Order, at 1. The Order then alleged that 
``between August 2007 and March 2014,'' Respondent issued 
prescriptions, ``on multiple occasions,'' for phendimetrazine, a 
schedule III controlled substance, and phentermine, a schedule IV 
controlled substance, for ``the purpose of weight loss or to control 
obesity, in violation of state and federal law.'' Id. at 2 (citing Ind. 
Code Sec. Sec.  35-48-3-11; 25-22.5-8-2(a); 21 CFR 1306.03 & 
1306.04(a)). The order then set forth specific allegations regarding 
Respondent's prescribing of the aforesaid controlled substances to nine 
patients. Id. at 2-4.
    The Order also alleged that ``beginning in February 2014 and for 
several months thereafter,'' Respondent had violated federal law by 
issuing controlled substance prescriptions for weight loss medications 
that had been pre-signed by her collaborating physician, as well as 
that between February and August 2014, she issued controlled substance 
prescriptions ``without a collaborative agreement'' having been filed 
with the Indiana Board of Nursing. Id. at 4 (citing 21 CFR 1306.05 and 
1306.03(a)(1); 848 Ind. Admin. Code Sec.  5-1-1(a)(7)). The Order 
further alleged that Respondent had dispensed Bontril (phendimetrazine) 
to

[[Page 28641]]

a patient at an unregistered location. Id. Finally, the Order alleged 
that Respondent had failed to keep various records as required by DEA 
regulations. Id. at 5. Based on the totality of Respondent's 
misconduct, I concluded that her continued registration during the 
pendency of the proceeding ``would constitute an imminent danger to the 
public health and safety'' and therefore ordered that her registration 
be immediately suspended. Id. at 6-7.
    Following service of the Order, Respondent timely requested a 
hearing on the allegations. The matter was placed on the docket of the 
Office of Administrative Law Judges and assigned to Administrative Law 
Judge (ALJ) Christopher B. McNeil, who proceeded to conduct pre-hearing 
procedures.
    However, the next day, the Government moved for summary disposition 
and to stay the proceeding, asserting that the Indiana State Board of 
Nursing had ordered the emergency suspension of Respondent's nursing 
license and advanced practice nurse prescriptive authority, and that 
she was without authority to dispense controlled substances and to 
possess a DEA registration in the State. Mot. For Summ. Disp., at 1-3. 
As support for its Motion, the Government attached a printout from a 
license verification Web page maintained by the State of Indiana. See 
id. at Attachment A. The printout showed that Respondent's Indiana 
Advanced Practice Nurse Prescriptive Authority license was the subject 
of an emergency suspension.\1\ Id.
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    \1\ Subsequently, the Government also filed a copy of the 
Summary Suspension Order issued to Respondent by the Indiana State 
Board of Nursing. See Notice of Filing of Written Suspension Order 
(Exhibit A).
    I take official notice of the registration records of this 
Agency, which establish that Respondent's registration will not 
expire until June 30, 2016. See 21 CFR 1316.59(e). Respondent may 
refute this fact by filing a properly supported motion for 
reconsideration no later than ten (10) business days from the date 
of issuance of this Decision and Order.
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    Upon review of the Government's Motions, the ALJ issued an Order 
for Stay and for Respondent's Response to Allegations Concerning 
Respondent's Lack of State Authority. R.D. at 2. Thereafter, Respondent 
timely filed her Response, in which she did not dispute that her 
license was suspended but asserted that section 824(a)(3) ``authorizes 
suspension or revocation of a DEA registration based on the loss of 
State privileges'' and thus ``gives a choice of remedies and clearly 
contemplates the exercise of administrative discretion.'' Respondent's 
Response, at 1.
    Respondent contends that the Nursing Board has only suspended her 
license and advanced practice nurse prescriptive authority for ninety 
(90) days. Id. at 3. She further argues that the prior cases in which 
the Agency revoked a practitioner's registration based on a state's 
suspension of prescribing authority involved suspensions that ``were of 
indefinite rather than, as here, for a finite, definite, and limited 
time'' and that ``[t]his indefiniteness was the gravamen of the 
decisions holding revocation to be the appropriate remedy.'' Id. 
(citing Anne Lazar Thorn, 62 FR 12847, 12848 (1997)).
    Respondent also argues that the temporary suspension of her license 
``does not render her `no longer authorized by State law' to dispense 
controlled substances. It only temporarily restrains her from 
dispensing controlled substances.'' Id. And she further argues that 
suspending her registration ``mean[s] that she is not holding a DEA 
Registration and would fully satisfy statutory requirements.'' Id. She 
thus contends that revoking her registration would be ``arbitrary, 
capricious, a clear abuse of discretion and not in accordance with the 
law.'' Id. at 4.
    The ALJ correctly rejected these contentions, explaining that the 
CSA defines the term ``practitioner'' to ``mean[] a physician, dentist, 
veterinarian . . . or other person licensed, registered, or otherwise 
permitted, by the United States or the jurisdiction in which [s]he 
practices to distribute [or] dispense a controlled substance in the 
course of professional practice,'' 21 U.S. C. 802(21), and that under 
section 823(f), only a person who is authorized to dispense controlled 
substances and is therefore a practitioner within the meaning of the 
Act can be registered. R.D., at 3; see also 21 U.S. C. 823(f) (``The 
Attorney General shall register practitioners . . . to dispense . . . 
controlled substances . . . if the applicant is authorized to dispense 
. . . controlled substances under the laws of the States in which he 
practices.'').
    Respondent contends, however, that the decision in Anne Lazar 
Thorn, M.D., 62 FR 12847 (1997), stands for the proposition that the 
Agency's consistent practice of revoking registrations based on a loss 
of state authority ``rests on the indefinite nature of a State 
suspension.'' Respondent's Resp., at 2-3. Respondent quotes the 
following passage from Thorn:

[T]he Acting Deputy Administrator recognizes that he has 
discretionary authority to either revoke or suspend a DEA 
registration. However, given the indefinite nature of the suspension 
of Respondent's state license to practice medicine, the Acting 
Deputy Administrator agrees with [the ALJ] that revocation is 
appropriate in this case.

Id. at 3 (quoting 62 FR at 12848).
    Notwithstanding the implication of the above passage, no decision 
of this Agency has held that a suspension (rather than a revocation) is 
warranted where a State has imposed a suspension of a fixed or certain 
duration. To the contrary, in the case of practitioners, DEA has long 
and consistently interpreted the CSA as mandating the possession of 
authority under state law to handle controlled substances as a 
fundamental condition for obtaining and maintaining a registration. 
See, e.g., Leonard F. Faymore, 48 FR 32886, 32887 (1983) (collecting 
cases). As the Thorn decision further explained:

    DEA has consistently interpreted the Controlled Substances Act 
to preclude a practitioner from holding a DEA registration if the 
practitioner is without authority to handle controlled substances in 
the state in which he/she practices. This prerequisite has been 
consistently upheld.
* * * * *
    The Acting Deputy Administrator finds that the controlling 
question is not whether a practitioner's license to practice 
medicine in the state is suspended or revoked; rather it is whether 
the Respondent is currently authorized to handle controlled 
substances in the state. In the instant case, it is undisputed that 
Respondent is not currently authorized to handle controlled 
substances in the [state in which she practices medicine]. Therefore 
. . . Respondent is not currently entitled to a DEA registration.

62 FR at 128438 (citing and quoting 21 U.S. C. 823(f) and 802(21) and 
collecting cases). Accordingly, in Thorn, the Agency rejected the 
Respondent's contention that her registration should be suspended 
rather than revoked.
    As for Respondent's contention that section 824(a) ``gives a choice 
of remedies and clearly contemplates the exercise of administrative 
discretion,'' it is acknowledged that the opening sentence of section 
824(a) provides that a registration ``may be suspended or revoked by 
the Attorney General'' upon the Attorney General's finding that one of 
the five grounds set forth exists. 21 U.S. C. 824(a). However, this 
general grant of authority in imposing a sanction must be reconciled 
with the CSA's specific provisions which mandate that a practitioner 
hold authority under state law in order to obtain and maintain a DEA 
registration. See Gozlon-Peretz v. United States, 498 U.S. 395, 407 
(1991) (``A specific provision controls over one of more general 
application.''); see also Bloate v.

[[Page 28642]]

United States, 130 S.Ct. 1345, 1354 (2010) (quoting D. Ginsberg & Sons, 
Inc., v. Popkin, 285 U.S. 204, 208 (1932) (``General language of a 
statutory provision, although broad enough to include it, will not be 
held to apply to a matter specifically dealt with in another part of 
the same enactment.'')).
    Indeed, Respondent's argument has previously been tried and 
rejected. See James L. Hooper, 76 FR 71371 (2011), pet. for rev. 
denied, Hooper v. Holder, 481 F. App'x 826 (4th Cir. 2012) 
(unpublished). As the Fourth Circuit explained in Hooper:

    Section 824(a) does state that the DA may ``suspend or revoke'' 
a registration, but the statute provides for this sanction in five 
different circumstances, only one of which is loss of a State 
license. Because Sec.  823(f) and Sec.  802(21) make clear that a 
practitioner's registration is dependent upon the practitioner 
having state authority to dispense controlled substances, the DA's 
decision to construe Sec.  824(a)(3) as mandating revocation upon 
suspension of a state license is not an unreasonable interpretation 
of the CSA.

Id. at 828.
    Moreover, while Respondent points to the fact that the suspension 
imposed by the Board is ``temporary'' and only ``for ninety (90) 
days,'' Respondent's Resp. at 3, the Board's order was non-final. Thus, 
while Respondent may prevail before the Board, the Board may also 
impose an additional period of suspension or revoke her license and 
prescribing authority.
    Accordingly, consistent with the Agency's longstanding precedent, 
revocation remains warranted.\2\ See Gary Alfred Shearer, 78 FR 19009 
(2013) (holding that revocation is warranted even where a state order 
has summarily suspended a practitioner's controlled substances 
authority and the state agency's order remains subject to challenge in 
either administrative or judicial proceedings); Winfield Drugs, Inc., 
52 FR 27070 (1987) (revoking registration based on state emergency 
suspension order notwithstanding state order was under appeal, noting 
that the ``[r]espondent is not currently authorized to handle 
controlled substances in the [s]tate'' and that ``[a]s a matter of law, 
the [DEA] does not have statutory authority . . . to issue or maintain 
a registration for a practitioner if the applicant or registrant lacks 
[s]tate authority to dispense controlled substances'').
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    \2\ As for Respondent's contention that the temporary suspension 
of her license ``does not render her `no longer authorized by State 
law' to dispense controlled substances,'' under Indiana law, ``[a] 
person who . . . practices nursing during the time the person's 
license issued under this chapter . . . is suspended or revoked 
commits a Class B misdemeanor.'' Ind. Code Sec.  25-23-1-27(5). 
Thus, Respondent is not currently authorized to dispense controlled 
substances.
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Order

    Pursuant to the authority vested in me by 21 U.S. C. 824 as well as 
28 CFR 0.100(b), I order that DEA Certificate of Registration MD2249161 
issued to Karen S. Dunning, N.P., be, and it hereby is, revoked. This 
Order is effectively immediately.\3\
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    \3\ Based on the same findings that led me to conclude that 
Respondent's continued registration during the pendency of the 
proceeding constitutes an imminent danger to public health and 
safety, I conclude that the public interest necessitates that this 
Order be effective immediately. 21 CFR 1316.67.

    Dated: May 1, 2015.
Michele M. Leonhart,
Administrator.
Michelle F. Gillice, Esq., Paul A. Dean, Esq., for the Government.
Lakeisha C. Murdaugh, Esq., Scott L. King, Esq., for the Respondent.

ORDER GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY DISPOSITION AND 
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED DECISION OF THE 
ADMINISTRATIVE LAW JUDGE

    Administrative Law Judge Christopher B. McNeil. On January 9, 
2015, the Administrator of the Drug Enforcement Administration 
issued an Order to Show Cause and Immediate Suspension of 
Respondent's DEA Certificate of Registration, No. MD2249161. The 
Order affords Respondent the opportunity to show cause why 
Respondent's DEA registration should not be revoked pursuant to 21 
U.S. C. 824(a), on the grounds that Respondent's continued 
registration would be inconsistent with the public interest. The 
Order also seeks to deny any pending applications for registration, 
renewal or modification pursuant to 21 U.S. C. 823(f). In addition, 
the Administrator immediately suspended Respondent's registration 
pursuant to 21 U.S. C. 824(d), upon finding Respondent's continued 
registration constitutes an imminent danger to the public health and 
safety.
    According to the Government's Notice of Service, Respondent was 
personally served with the Order to Show Cause on January 14, 2015. 
On February 18, 2015, the Office of Administrative Law Judges 
received Respondent's Request for Hearing, dated February 13, 2015. 
On February 19, 2015, this Office issued an Order for Prehearing 
Statements and Order Setting the Matter for Hearing.
    On February 20, 2015, this office received Government's Motion 
for Summary Disposition and Motion to Stay Proceedings. The 
Government asserted that the Indiana State Board of Nursing ordered 
an emergency suspension of Respondent's nursing license and her 
advanced practice nurse prescriptive authority, effective 
immediately. Citing this lack of state authority, the Government 
requested that the matter be forwarded to the Administrator for a 
Final Order and that in the interest of efficiency, I grant a Motion 
to Stay the Proceedings and continue the deadlines pending the 
resolution of the Motion for Summary Disposition. In response to the 
Government's filing, I issued an Order for Stay and for Respondent's 
Response to Allegations Concerning Respondent's Lack of State 
Authority. In the Order, I required Respondent to file a response to 
the Government's Motion for Summary Disposition no later than 
February 27, 2015. Additionally, I stayed the matter and held all 
deadlines in abeyance.
    On February 27, 2015, I received Respondent's Response to the 
Government's Motion for Summary Disposition. Respondent first cites 
21 U.S. C. 824(a)(3) to demonstrate that the Administrator has the 
choice of authorizing suspension or revocation of Respondent's 
registration. Respondent then asks that I consider suspending her 
registration based on the premise that the 90 day suspension of her 
advanced practice nurse prescriptive authority is not equivalent to 
the indefinite suspensions in the case law cited by the Government.
    The substantial issue raised by the Government rests on an 
undisputed fact. The Government asserts that Respondent's DEA 
Certificate of Registration must be revoked because Respondent does 
not have a nursing licensed issued by the state in which she 
practices. Under DEA precedent, a practitioner's DEA Certificate of 
Registration for controlled substances must be summarily revoked if 
the applicant is not authorized to handle controlled substances in 
the state in which she maintains her DEA registration.\1\ Pursuant 
to 21 U.S. C. 823(f), only a ``practitioner'' may receive a DEA 
registration. Under 21 U.S. C. 802(21), a ``practitioner'' must be 
``licensed, registered, or otherwise permitted, by the United States 
or the jurisdiction in which he practices or does research, to 
distribute [or] dispense . . . controlled substance[s.]'' Given this 
statutory language, the DEA Administrator does not have the 
authority under the Controlled Substances Act to maintain a 
practitioner's registration if that practitioner is not authorized 
to dispense controlled substances.\2\
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    \1\ See 21 U.S. C. 801(21), 823(f), 824(a)(3); see also House of 
Medicine, 79 FR 4959, 4961 (DEA 2014); Deanwood Pharmacy, 68 FR 
41662-01 (DEA July 14, 2003); Wayne D. Longmore, M.D., 77 FR 67669-
02 (DEA November 13, 2012); Alan H. Olefsky, M.D., 72 FR 42127-01 
(DEA August 1, 2007); Layfe Robert Anthony, M.D., 67 FR 15811 (DEA 
May 20, 2002); George Thomas, PA-C, 64 FR 15811-02 (DEA April 1, 
1999); Shahid Musud Siddiqui, M.D., 61 FR 14818-02 (DEA April 4, 
1996); Michael D. Lawton, M.D., 59 FR 17792-01 (DEA April 14, 1994); 
Abraham A. Chaplan, M.D., 57 FR 55280-03 (DEA November 24, 1992). 
See also Bio Diagnosis Int'l, 78 FR 39327-03, 39331 (DEA July 1, 
2013) (distinguishing distributor applicants from other 
``practitioners'' in the context of summary disposition analysis).
    \2\ See Abraham A. Chaplan, M.D., 57 FR 55280-03, 55280 (DEA 
November 24, 1992), and cases cited therein. In Chaplan, DEA 
Administrator Robert C. Bonner adopts the ALJ's opinion that ``the 
DEA lacks statutory power to register a practitioner unless the 
practitioner holds state authority to handle controlled 
substances.'' Id.

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[[Page 28643]]

    Respondent alternatively asks that I consider suspending her 
registration instead of revoking her registration. This exact issue 
was addressed in James L. Hooper, M.D.; Decision and Order.\3\ Dr. 
Hooper was subject to a one-year suspension of his state license to 
practice medicine after which his license would be automatically 
reinstated.\4\ In comparison to Hooper, Respondent in this case has 
a less persuasive case as there is no guarantee that her advanced 
practice nurse prescriptive authority will be restored after 90 
days. Dr. Hooper sought a suspension of his DEA Registration for the 
same time period his medical license was suspended. DEA 
Administrator Michele M. Leonhart agreed with Chief Administrative 
Law Judge John J. Mulrooney, II who did not find Dr. Hooper's 
argument persuasive. Administrator Leonhart, like Respondent in the 
case at hand, cited to Anne Lazar Thorn, M.D.\5\ Administrator 
Leonhart cites the Acting Deputy Administrator's statement in Thorn 
that ``the controlling question is not whether a practitioner's 
license to practice medicine in the state is suspended or revoked; 
rather, it is whether the Respondent is currently authorized to 
handle controlled substances in the state.'' \6\ In Hooper, 
Administrator Leonhart concludes that ``even where a practitioner's 
state license has been suspended for a period of certain duration, 
the practitioner no longer meets the statutory definition of a 
practitioner.'' \7\ As detailed above, only a ``practitioner'' may 
receive a DEA registration. Therefore, I cannot and will not 
recommend the suspension of Respondent's DEA registration, but will 
instead recommend the registration be revoked.
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    \3\ James L. Hooper, M.D.; Decision and Order, 76 FR 71371-01, 
71371 (DEA Nov. 17, 2011).
    \4\ Id.
    \5\ Anne Lazar Thorn, Revocation of Registration M.D, 62 FR 
12847, 12848 (DEA Mar. 18, 1997).
    \6\ Id. at 12848.
    \7\ Hooper, 76 FR at 71372.
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Order Granting the Government's Motion for Summary Disposition and 
Recommendation

    I find there is no genuine dispute regarding whether Respondent 
is a ``practitioner'' as that term is defined by 21 U.S. C. 802(21), 
and that based on the record the Government has established that 
Respondent is not a practitioner and is not authorized to dispense 
controlled substances in the state in which she seeks to practice 
with a DEA Certificate of Registration. I find no other material 
facts at issue. Accordingly, I GRANT the Government's Motion for 
Summary Disposition.
    Upon this finding, I ORDER that this case be forwarded to the 
Administrator for final disposition and I recommended that 
Respondent's DEA Certificate of Registration should be REVOKED and 
any pending application for the renewal or modification of the same 
should be DENIED.

    Dated: March 9, 2015

Christopher B. McNeil,

Administrative Law Judge

[FR Doc. 2015-12020 Filed 5-18-15; 8:45 am]
 BILLING CODE 4410-09-P



                                              28640                          Federal Register / Vol. 80, No. 96 / Tuesday, May 19, 2015 / Notices

                                                 Dated: April 30, 2015.                               Tulsa County                                          DEPARTMENT OF JUSTICE
                                              J. Paul Loether,                                        Elizabeth Manor, 1820 S. Boulder Ave., W.,
                                              Chief, National Register of Historic Places/              Tulsa, 15000329                                     Drug Enforcement Administration
                                              National Historic Landmarks Program.                                                                          [Docket No. 15–11]
                                                                                                      Washington County
                                              COLORADO
                                                                                                      Comer, C.A., House, (Bruce Goff Designed              Karen S. Dunning, N.P.; Decision and
                                              Las Animas County                                         Resources in Oklahoma MPS) 1316 North               Order
                                              Santa Fe Trail Mountain Route Trail                       Creek, Dewey, 15000330
                                                Segment—Delhi Vicinity I, (Santa Fe Trail                                                                      On January 9, 2015, I, the
                                                MPS), Address Restricted, Delhi, 15000313             OREGON                                                Administrator of the Drug Enforcement
                                              Santa Fe Trail Mountain Route Trail                     Jefferson County                                      Administration, issued an Order to
                                                Segment—Delhi Vicinity II, (Santa Fe Trail                                                                  Show Cause and Immediate Suspension
                                                                                                      Madras Army Air Field North Hanger, 2028
                                                MPS), Address Restricted, Delhi, 15000314                                                                   of Registration to Karen S. Dunning,
                                                                                                       NW. Berg Dr., Madras, 15000331
                                              Santa Fe Trail Mountain Route Trail                                                                           N.P. (hereinafter, Respondent) of Kouts,
                                                Segment—Delhi Vicinity III, (Santa Fe                 TENNESSEE                                             Indiana. The Order to Show Cause and
                                                Trail MPS), Address Restricted, Delhi,                                                                      Immediate Suspension of Registration
                                                15000315                                              Smith County
                                                                                                                                                            proposed the revocation of
                                              ILLINOIS                                                Moss Mounds, (Mississippian Cultural                  Respondent’s DEA Certificate of
                                                                                                       Resources of the Central Basin (AD 900–              Registration MD2249161, pursuant to
                                              Sangamon County                                          1450) MPS), Address Restricted, Elmwood,             which she was authorized to dispense
                                              Central Springfield Historic District                    15000332                                             controlled substances in schedules II
                                                (Boundary Increase and Additional
                                                Documentation), Roughly Jefferson,                    Williamson County                                     through V as a practitioner, and the
                                                Jackson, 2nd & 7th Sts., Springfield,                                                                       denial of any application to renew or
                                                                                                      Glass Mounds Discontiguous Archeological
                                                15000316                                                                                                    modify her registration, on the ground
                                                                                                        District, 4000 Golf Club Ln., Franklin,
                                              Strawbridge—Shepherd House, 5255                                                                              that she has committed acts which
                                                                                                        15000333
                                                Shepherd Rd., Springfield, 15000317                                                                         render her ‘‘continued registration
                                                                                                      TEXAS                                                 inconsistent with the public interest.’’
                                              KANSAS
                                                                                                                                                            Show Cause Order, at 1.
                                                                                                      Bastrop County                                           More specifically, the Order alleged
                                              McPherson County
                                              Lindquist, P.J., Building, 116 S. Main St.,             Hopewell School, (Rosenwald School                    that Respondent, who is an Advanced
                                                Lindsborg, 15000318                                    Building Program in Texas MPS), 690 TX               Practice Nurse licensed by the Indiana
                                                                                                       21 W., Cedar Creek, 15000334                         State Board of Nursing, is not
                                              MISSOURI
                                                                                                      Harris County                                         authorized under state law ‘‘to prescribe
                                              St. Louis Independent city                                                                                    controlled substances in Schedules III
                                                                                                      Stowers Building, 820 Fannin, Houston,                and IV for the purpose of weight
                                              Shell Building, The, 1221 Locust St., St.
                                                Louis (Independent City), 15000319                      15000335                                            reduction or to control obesity.’’ Show
                                              NEVADA                                                  Nueces County                                         Cause Order, at 1. The Order then
                                                                                                      Galvan Ballroom, 1632 Agnes, Corpus
                                                                                                                                                            alleged that ‘‘between August 2007 and
                                              Carson City Independent city                                                                                  March 2014,’’ Respondent issued
                                                                                                        Christi, 15000336
                                              Nevada State Prison, 3301 E. 5th St., Carson                                                                  prescriptions, ‘‘on multiple occasions,’’
                                                City (Independent City), 15000320                     Tarrant County                                        for phendimetrazine, a schedule III
                                              NEW JERSEY                                              Parker—Browne Company Building, 1212 E.               controlled substance, and phentermine,
                                                                                                        Lancaster Ave., Fort Worth, 15000337                a schedule IV controlled substance, for
                                              Burlington County
                                                                                                                                                            ‘‘the purpose of weight loss or to control
                                              Florence Public School No. 1, 203 W. 2nd St.,           Terry County                                          obesity, in violation of state and federal
                                                Florence Township, 15000321                           Abilene Courts, 633 S. 11th St., Abilene,             law.’’ Id. at 2 (citing Ind. Code §§ 35–
                                              OHIO                                                     15000338                                             48–3–11; 25–22.5–8–2(a); 21 CFR
                                              Franklin County                                         Wichita County                                        1306.03 & 1306.04(a)). The order then
                                                                                                                                                            set forth specific allegations regarding
                                              Drexel Theater, 2254 E. Main St., Bexley,               Perkins, Joe and Lois, House, 3301 Harrison           Respondent’s prescribing of the
                                                15000322                                                St., Wichita Falls, 15000339                        aforesaid controlled substances to nine
                                              Graham, A.B., House, 159 Clinton Heights
                                                Ave., Columbus, 15000323                              WISCONSIN                                             patients. Id. at 2–4.
                                                                                                                                                               The Order also alleged that
                                              Theresa Building, 823 E. Long St., Columbus,            Sauk County                                           ‘‘beginning in February 2014 and for
                                                15000324
                                                                                                      Downtown Baraboo Historic District,                   several months thereafter,’’ Respondent
                                              United States Carriage Company, 309–319 S.                Roughly bounded by 5th & 2nd Aves., 5th,
                                                4th St., Columbus, 15000325
                                                                                                                                                            had violated federal law by issuing
                                                                                                        Ash, 1st, Oak & Birch Sts., Baraboo,                controlled substance prescriptions for
                                              Hamilton County                                           15000340                                            weight loss medications that had been
                                              West Fourth Street Historic District                    Walworth County                                       pre-signed by her collaborating
                                               (Boundary Increase), 309 Vine St.,                                                                           physician, as well as that between
                                               Cincinnati, 15000326                                   Wandawega Inn, W5453 Lake View Dr.,                   February and August 2014, she issued
                                                                                                       Sugar Creek, 15000341                                controlled substance prescriptions
                                              OKLAHOMA
tkelley on DSK3SPTVN1PROD with NOTICES




                                                                                                      [FR Doc. 2015–12026 Filed 5–18–15; 8:45 am]           ‘‘without a collaborative agreement’’
                                              Kay County
                                                                                                      BILLING CODE 4312–51–P                                having been filed with the Indiana
                                              Hayes—Kennedy—Rivoli Theater Building,                                                                        Board of Nursing. Id. at 4 (citing 21 CFR
                                                122–124 S. Main, Blackwell, 15000327
                                                                                                                                                            1306.05 and 1306.03(a)(1); 848 Ind.
                                              Oklahoma County                                                                                               Admin. Code § 5–1–1(a)(7)). The Order
                                              Czech Hall of Oklahoma City—Lodge Laska,                                                                      further alleged that Respondent had
                                                515 SW. 6th St., Oklahoma City, 15000328                                                                    dispensed Bontril (phendimetrazine) to


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                                                                                Federal Register / Vol. 80, No. 96 / Tuesday, May 19, 2015 / Notices                                               28641

                                              a patient at an unregistered location. Id.                   Respondent contends that the Nursing              to either revoke or suspend a DEA
                                              Finally, the Order alleged that                           Board has only suspended her license                 registration. However, given the indefinite
                                              Respondent had failed to keep various                     and advanced practice nurse                          nature of the suspension of Respondent’s
                                                                                                                                                             state license to practice medicine, the Acting
                                              records as required by DEA regulations.                   prescriptive authority for ninety (90)               Deputy Administrator agrees with [the ALJ]
                                              Id. at 5. Based on the totality of                        days. Id. at 3. She further argues that the          that revocation is appropriate in this case.
                                              Respondent’s misconduct, I concluded                      prior cases in which the Agency
                                              that her continued registration during                    revoked a practitioner’s registration                Id. at 3 (quoting 62 FR at 12848).
                                                                                                                                                                Notwithstanding the implication of
                                              the pendency of the proceeding ‘‘would                    based on a state’s suspension of
                                                                                                                                                             the above passage, no decision of this
                                              constitute an imminent danger to the                      prescribing authority involved
                                                                                                                                                             Agency has held that a suspension
                                              public health and safety’’ and therefore                  suspensions that ‘‘were of indefinite
                                                                                                                                                             (rather than a revocation) is warranted
                                              ordered that her registration be                          rather than, as here, for a finite, definite,
                                                                                                                                                             where a State has imposed a suspension
                                              immediately suspended. Id. at 6–7.                        and limited time’’ and that ‘‘[t]his
                                                                                                                                                             of a fixed or certain duration. To the
                                                 Following service of the Order,                        indefiniteness was the gravamen of the
                                                                                                                                                             contrary, in the case of practitioners,
                                              Respondent timely requested a hearing                     decisions holding revocation to be the
                                                                                                                                                             DEA has long and consistently
                                              on the allegations. The matter was                        appropriate remedy.’’ Id. (citing Anne
                                                                                                                                                             interpreted the CSA as mandating the
                                              placed on the docket of the Office of                     Lazar Thorn, 62 FR 12847, 12848
                                                                                                                                                             possession of authority under state law
                                              Administrative Law Judges and assigned                    (1997)).
                                                                                                                                                             to handle controlled substances as a
                                              to Administrative Law Judge (ALJ)                            Respondent also argues that the
                                                                                                                                                             fundamental condition for obtaining
                                              Christopher B. McNeil, who proceeded                      temporary suspension of her license
                                                                                                                                                             and maintaining a registration. See, e.g.,
                                              to conduct pre-hearing procedures.                        ‘‘does not render her ‘no longer
                                                                                                                                                             Leonard F. Faymore, 48 FR 32886,
                                                 However, the next day, the                             authorized by State law’ to dispense
                                                                                                                                                             32887 (1983) (collecting cases). As the
                                              Government moved for summary                              controlled substances. It only
                                                                                                                                                             Thorn decision further explained:
                                              disposition and to stay the proceeding,                   temporarily restrains her from
                                                                                                        dispensing controlled substances.’’ Id.                 DEA has consistently interpreted the
                                              asserting that the Indiana State Board of                                                                      Controlled Substances Act to preclude a
                                              Nursing had ordered the emergency                         And she further argues that suspending
                                                                                                                                                             practitioner from holding a DEA registration
                                              suspension of Respondent’s nursing                        her registration ‘‘mean[s] that she is not
                                                                                                                                                             if the practitioner is without authority to
                                              license and advanced practice nurse                       holding a DEA Registration and would                 handle controlled substances in the state in
                                              prescriptive authority, and that she was                  fully satisfy statutory requirements.’’ Id.          which he/she practices. This prerequisite has
                                              without authority to dispense controlled                  She thus contends that revoking her                  been consistently upheld.
                                              substances and to possess a DEA                           registration would be ‘‘arbitrary,                   *        *      *     *   *
                                              registration in the State. Mot. For                       capricious, a clear abuse of discretion                 The Acting Deputy Administrator finds
                                              Summ. Disp., at 1–3. As support for its                   and not in accordance with the law.’’ Id.            that the controlling question is not whether
                                              Motion, the Government attached a                         at 4.                                                a practitioner’s license to practice medicine
                                                                                                           The ALJ correctly rejected these                  in the state is suspended or revoked; rather
                                              printout from a license verification Web
                                                                                                        contentions, explaining that the CSA                 it is whether the Respondent is currently
                                              page maintained by the State of Indiana.                                                                       authorized to handle controlled substances
                                              See id. at Attachment A. The printout                     defines the term ‘‘practitioner’’ to
                                                                                                                                                             in the state. In the instant case, it is
                                              showed that Respondent’s Indiana                          ‘‘mean[] a physician, dentist,                       undisputed that Respondent is not currently
                                              Advanced Practice Nurse Prescriptive                      veterinarian . . . or other person                   authorized to handle controlled substances in
                                              Authority license was the subject of an                   licensed, registered, or otherwise                   the [state in which she practices medicine].
                                              emergency suspension.1 Id.                                permitted, by the United States or the               Therefore . . . Respondent is not currently
                                                 Upon review of the Government’s                        jurisdiction in which [s]he practices to             entitled to a DEA registration.
                                              Motions, the ALJ issued an Order for                      distribute [or] dispense a controlled                62 FR at 128438 (citing and quoting 21
                                              Stay and for Respondent’s Response to                     substance in the course of professional              U.S. C. 823(f) and 802(21) and collecting
                                              Allegations Concerning Respondent’s                       practice,’’ 21 U.S. C. 802(21), and that             cases). Accordingly, in Thorn, the
                                              Lack of State Authority. R.D. at 2.                       under section 823(f), only a person who              Agency rejected the Respondent’s
                                              Thereafter, Respondent timely filed her                   is authorized to dispense controlled                 contention that her registration should
                                              Response, in which she did not dispute                    substances and is therefore a                        be suspended rather than revoked.
                                              that her license was suspended but                        practitioner within the meaning of the                  As for Respondent’s contention that
                                              asserted that section 824(a)(3)                           Act can be registered. R.D., at 3; see also          section 824(a) ‘‘gives a choice of
                                              ‘‘authorizes suspension or revocation of                  21 U.S. C. 823(f) (‘‘The Attorney General            remedies and clearly contemplates the
                                              a DEA registration based on the loss of                   shall register practitioners . . . to                exercise of administrative discretion,’’ it
                                              State privileges’’ and thus ‘‘gives a                     dispense . . . controlled substances                 is acknowledged that the opening
                                              choice of remedies and clearly                            . . . if the applicant is authorized to              sentence of section 824(a) provides that
                                              contemplates the exercise of                              dispense . . . controlled substances                 a registration ‘‘may be suspended or
                                              administrative discretion.’’                              under the laws of the States in which he             revoked by the Attorney General’’ upon
                                              Respondent’s Response, at 1.                              practices.’’).                                       the Attorney General’s finding that one
                                                                                                           Respondent contends, however, that                of the five grounds set forth exists. 21
                                                1 Subsequently, the Government also filed a copy
                                                                                                        the decision in Anne Lazar Thorn, M.D.,              U.S. C. 824(a). However, this general
                                              of the Summary Suspension Order issued to                 62 FR 12847 (1997), stands for the                   grant of authority in imposing a
                                              Respondent by the Indiana State Board of Nursing.         proposition that the Agency’s consistent             sanction must be reconciled with the
                                              See Notice of Filing of Written Suspension Order          practice of revoking registrations based             CSA’s specific provisions which
                                              (Exhibit A).                                              on a loss of state authority ‘‘rests on the
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                                                I take official notice of the registration records of
                                                                                                                                                             mandate that a practitioner hold
                                              this Agency, which establish that Respondent’s
                                                                                                        indefinite nature of a State suspension.’’           authority under state law in order to
                                              registration will not expire until June 30, 2016. See     Respondent’s Resp., at 2–3. Respondent               obtain and maintain a DEA registration.
                                              21 CFR 1316.59(e). Respondent may refute this fact        quotes the following passage from                    See Gozlon-Peretz v. United States, 498
                                              by filing a properly supported motion for                 Thorn:
                                              reconsideration no later than ten (10) business days
                                                                                                                                                             U.S. 395, 407 (1991) (‘‘A specific
                                              from the date of issuance of this Decision and            [T]he Acting Deputy Administrator                    provision controls over one of more
                                              Order.                                                    recognizes that he has discretionary authority       general application.’’); see also Bloate v.


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                                              28642                           Federal Register / Vol. 80, No. 96 / Tuesday, May 19, 2015 / Notices

                                              United States, 130 S.Ct. 1345, 1354                     if the applicant or registrant lacks [s]tate          the interest of efficiency, I grant a Motion to
                                              (2010) (quoting D. Ginsberg & Sons, Inc.,               authority to dispense controlled                      Stay the Proceedings and continue the
                                              v. Popkin, 285 U.S. 204, 208 (1932)                     substances’’).                                        deadlines pending the resolution of the
                                                                                                                                                            Motion for Summary Disposition. In response
                                              (‘‘General language of a statutory
                                                                                                      Order                                                 to the Government’s filing, I issued an Order
                                              provision, although broad enough to                                                                           for Stay and for Respondent’s Response to
                                              include it, will not be held to apply to                   Pursuant to the authority vested in me
                                                                                                                                                            Allegations Concerning Respondent’s Lack of
                                              a matter specifically dealt with in                     by 21 U.S. C. 824 as well as 28 CFR                   State Authority. In the Order, I required
                                              another part of the same enactment.’’)).                0.100(b), I order that DEA Certificate of             Respondent to file a response to the
                                                 Indeed, Respondent’s argument has                    Registration MD2249161 issued to                      Government’s Motion for Summary
                                              previously been tried and rejected. See                 Karen S. Dunning, N.P., be, and it                    Disposition no later than February 27, 2015.
                                              James L. Hooper, 76 FR 71371 (2011),                    hereby is, revoked. This Order is                     Additionally, I stayed the matter and held all
                                              pet. for rev. denied, Hooper v. Holder,                 effectively immediately.3                             deadlines in abeyance.
                                              481 F. App’x 826 (4th Cir. 2012)                                                                                 On February 27, 2015, I received
                                                                                                        Dated: May 1, 2015.
                                                                                                                                                            Respondent’s Response to the Government’s
                                              (unpublished). As the Fourth Circuit                    Michele M. Leonhart,                                  Motion for Summary Disposition.
                                              explained in Hooper:                                    Administrator.                                        Respondent first cites 21 U.S. C. 824(a)(3) to
                                                 Section 824(a) does state that the DA may            Michelle F. Gillice, Esq., Paul A. Dean, Esq.,        demonstrate that the Administrator has the
                                              ‘‘suspend or revoke’’ a registration, but the             for the Government.                                 choice of authorizing suspension or
                                              statute provides for this sanction in five              Lakeisha C. Murdaugh, Esq., Scott L. King,            revocation of Respondent’s registration.
                                              different circumstances, only one of which is             Esq., for the Respondent.                           Respondent then asks that I consider
                                              loss of a State license. Because § 823(f) and                                                                 suspending her registration based on the
                                              § 802(21) make clear that a practitioner’s              ORDER GRANTING THE GOVERNMENT’S                       premise that the 90 day suspension of her
                                              registration is dependent upon the                      MOTION FOR SUMMARY DISPOSITION                        advanced practice nurse prescriptive
                                              practitioner having state authority to                  AND FINDINGS OF FACT, CONCLUSIONS                     authority is not equivalent to the indefinite
                                              dispense controlled substances, the DA’s                OF LAW, AND RECOMMENDED DECISION                      suspensions in the case law cited by the
                                              decision to construe § 824(a)(3) as mandating           OF THE ADMINISTRATIVE LAW JUDGE                       Government.
                                              revocation upon suspension of a state license             Administrative Law Judge Christopher B.                The substantial issue raised by the
                                              is not an unreasonable interpretation of the            McNeil. On January 9, 2015, the                       Government rests on an undisputed fact. The
                                              CSA.                                                    Administrator of the Drug Enforcement                 Government asserts that Respondent’s DEA
                                                                                                      Administration issued an Order to Show                Certificate of Registration must be revoked
                                              Id. at 828.                                             Cause and Immediate Suspension of
                                                 Moreover, while Respondent points to                                                                       because Respondent does not have a nursing
                                                                                                      Respondent’s DEA Certificate of Registration,         licensed issued by the state in which she
                                              the fact that the suspension imposed by                 No. MD2249161. The Order affords                      practices. Under DEA precedent, a
                                              the Board is ‘‘temporary’’ and only ‘‘for               Respondent the opportunity to show cause              practitioner’s DEA Certificate of Registration
                                              ninety (90) days,’’ Respondent’s Resp. at               why Respondent’s DEA registration should              for controlled substances must be summarily
                                              3, the Board’s order was non-final.                     not be revoked pursuant to 21 U.S. C. 824(a),         revoked if the applicant is not authorized to
                                              Thus, while Respondent may prevail                      on the grounds that Respondent’s continued            handle controlled substances in the state in
                                              before the Board, the Board may also                    registration would be inconsistent with the           which she maintains her DEA registration.1
                                                                                                      public interest. The Order also seeks to deny         Pursuant to 21 U.S. C. 823(f), only a
                                              impose an additional period of                          any pending applications for registration,
                                              suspension or revoke her license and                                                                          ‘‘practitioner’’ may receive a DEA
                                                                                                      renewal or modification pursuant to 21 U.S.           registration. Under 21 U.S. C. 802(21), a
                                              prescribing authority.                                  C. 823(f). In addition, the Administrator
                                                 Accordingly, consistent with the                                                                           ‘‘practitioner’’ must be ‘‘licensed, registered,
                                                                                                      immediately suspended Respondent’s
                                                                                                                                                            or otherwise permitted, by the United States
                                              Agency’s longstanding precedent,                        registration pursuant to 21 U.S. C. 824(d),
                                                                                                                                                            or the jurisdiction in which he practices or
                                              revocation remains warranted.2 See Gary                 upon finding Respondent’s continued
                                                                                                                                                            does research, to distribute [or] dispense . . .
                                              Alfred Shearer, 78 FR 19009 (2013)                      registration constitutes an imminent danger
                                                                                                                                                            controlled substance[s.]’’ Given this statutory
                                              (holding that revocation is warranted                   to the public health and safety.
                                                                                                                                                            language, the DEA Administrator does not
                                                                                                        According to the Government’s Notice of
                                              even where a state order has summarily                                                                        have the authority under the Controlled
                                                                                                      Service, Respondent was personally served
                                              suspended a practitioner’s controlled                   with the Order to Show Cause on January 14,
                                                                                                                                                            Substances Act to maintain a practitioner’s
                                              substances authority and the state                                                                            registration if that practitioner is not
                                                                                                      2015. On February 18, 2015, the Office of
                                              agency’s order remains subject to                                                                             authorized to dispense controlled
                                                                                                      Administrative Law Judges received
                                              challenge in either administrative or                   Respondent’s Request for Hearing, dated               substances.2
                                              judicial proceedings); Winfield Drugs,                  February 13, 2015. On February 19, 2015,
                                                                                                                                                               1 See 21 U.S. C. 801(21), 823(f), 824(a)(3); see also
                                              Inc., 52 FR 27070 (1987) (revoking                      this Office issued an Order for Prehearing
                                                                                                      Statements and Order Setting the Matter for           House of Medicine, 79 FR 4959, 4961 (DEA 2014);
                                              registration based on state emergency                                                                         Deanwood Pharmacy, 68 FR 41662–01 (DEA July
                                              suspension order notwithstanding state                  Hearing.
                                                                                                                                                            14, 2003); Wayne D. Longmore, M.D., 77 FR 67669–
                                                                                                        On February 20, 2015, this office received          02 (DEA November 13, 2012); Alan H. Olefsky,
                                              order was under appeal, noting that the                 Government’s Motion for Summary                       M.D., 72 FR 42127–01 (DEA August 1, 2007); Layfe
                                              ‘‘[r]espondent is not currently                         Disposition and Motion to Stay Proceedings.           Robert Anthony, M.D., 67 FR 15811 (DEA May 20,
                                              authorized to handle controlled                         The Government asserted that the Indiana              2002); George Thomas, PA–C, 64 FR 15811–02
                                              substances in the [s]tate’’ and that ‘‘[a]s             State Board of Nursing ordered an emergency           (DEA April 1, 1999); Shahid Musud Siddiqui, M.D.,
                                              a matter of law, the [DEA] does not have                suspension of Respondent’s nursing license            61 FR 14818–02 (DEA April 4, 1996); Michael D.
                                                                                                      and her advanced practice nurse prescriptive          Lawton, M.D., 59 FR 17792–01 (DEA April 14,
                                              statutory authority . . . to issue or                                                                         1994); Abraham A. Chaplan, M.D., 57 FR 55280–
                                              maintain a registration for a practitioner              authority, effective immediately. Citing this
                                                                                                                                                            03 (DEA November 24, 1992). See also Bio
                                                                                                      lack of state authority, the Government
                                                                                                                                                            Diagnosis Int’l, 78 FR 39327–03, 39331 (DEA July
                                                2 As for Respondent’s contention that the
                                                                                                      requested that the matter be forwarded to the         1, 2013) (distinguishing distributor applicants from
                                              temporary suspension of her license ‘‘does not
                                                                                                      Administrator for a Final Order and that in           other ‘‘practitioners’’ in the context of summary
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                                              render her ‘no longer authorized by State law’ to                                                             disposition analysis).
                                              dispense controlled substances,’’ under Indiana           3 Based on the same findings that led me to            2 See Abraham A. Chaplan, M.D., 57 FR 55280–

                                              law, ‘‘[a] person who . . . practices nursing during    conclude that Respondent’s continued registration     03, 55280 (DEA November 24, 1992), and cases
                                              the time the person’s license issued under this         during the pendency of the proceeding constitutes     cited therein. In Chaplan, DEA Administrator
                                              chapter . . . is suspended or revoked commits a         an imminent danger to public health and safety, I     Robert C. Bonner adopts the ALJ’s opinion that ‘‘the
                                              Class B misdemeanor.’’ Ind. Code § 25–23–1–27(5).       conclude that the public interest necessitates that   DEA lacks statutory power to register a practitioner
                                              Thus, Respondent is not currently authorized to         this Order be effective immediately. 21 CFR           unless the practitioner holds state authority to
                                              dispense controlled substances.                         1316.67.                                              handle controlled substances.’’ Id.



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                                                                             Federal Register / Vol. 80, No. 96 / Tuesday, May 19, 2015 / Notices                                                       28643

                                                 Respondent alternatively asks that I                 DEPARTMENT OF JUSTICE                                 practitioner’s license and his Certificate
                                              consider suspending her registration instead                                                                  of Fitness to prescribe legend drugs in
                                              of revoking her registration. This exact issue          Drug Enforcement Administration                       Tennessee. GX C, at 13–14; see also 21
                                              was addressed in James L. Hooper, M.D.;                                                                       U.S.C. 824(a)(1). The Show Cause Order
                                              Decision and Order.3 Dr. Hooper was subject             Bobby D. Reynolds, N.P., Tina L.
                                              to a one-year suspension of his state license                                                                 further alleged that Registrant Stout had
                                                                                                      Killebrew, N.P. and David R. Stout,                   failed to disclose that on September 3,
                                              to practice medicine after which his license
                                              would be automatically reinstated.4 In
                                                                                                      N.P.; Decision and Orders                             2010, he had entered into a Consent
                                              comparison to Hooper, Respondent in this                   On November 25, 2013, the Deputy                   Order with the State Board, pursuant to
                                              case has a less persuasive case as there is no          Assistant Administrator, Office of                    which the suspension was terminated,
                                              guarantee that her advanced practice nurse                                                                    but he was placed on probation for two
                                              prescriptive authority will be restored after
                                                                                                      Diversion Control, Drug Enforcement
                                                                                                      Administration, issued Orders to Show                 years, his multistate privilege to practice
                                              90 days. Dr. Hooper sought a suspension of                                                                    in other party states was voided for the
                                              his DEA Registration for the same time                  Cause to Bobby D. Reynolds, N.P.
                                                                                                      (hereinafter, Reynolds), of Limestone,                period of his probation, he was ordered
                                              period his medical license was suspended.
                                              DEA Administrator Michele M. Leonhart                   Tennessee; Tina L. Killebrew, N.P.                    to pay a civil penalty of $8,000, and
                                              agreed with Chief Administrative Law Judge              (hereinafter, Killebrew), of Kingsport,               other probationary terms were imposed.
                                              John J. Mulrooney, II who did not find Dr.              Tennessee; and David R. Stout, N.P.                   GX C, at 14. Second, the Show Cause
                                              Hooper’s argument persuasive. Administrator             (hereinafter, Stout), of Morristown,                  Order alleged that Registrant Stout had
                                              Leonhart, like Respondent in the case at
                                                                                                      Tennessee. GXs A, B, & C.                             ‘‘committed such acts as would render
                                              hand, cited to Anne Lazar Thorn, M.D.5                                                                        his registration inconsistent with the
                                              Administrator Leonhart cites the Acting                    With respect to Applicant Reynolds,
                                                                                                      the Show Cause Order proposed the                     public interest,’’ in that he had violated
                                              Deputy Administrator’s statement in Thorn                                                                     state and federal law in prescribing
                                              that ‘‘the controlling question is not whether          denial of his application for registration
                                                                                                                                                            controlled substances to five patients
                                              a practitioner’s license to practice medicine           as a practitioner, on the ground that his
                                              in the state is suspended or revoked; rather,                                                                 while employed as a nurse practitioner
                                                                                                      registration ‘‘would be inconsistent with
                                              it is whether the Respondent is currently                                                                     at the AMC.1
                                                                                                      the public interest’’ as evidenced by his
                                              authorized to handle controlled substances in                                                                    Following service of the Show Cause
                                                                                                      repeated violations of state and federal
                                              the state.’’ 6 In Hooper, Administrator                                                                       Orders, all three individuals timely
                                                                                                      law in prescribing controlled substances
                                              Leonhart concludes that ‘‘even where a                                                                        requested a hearing on the allegations of
                                              practitioner’s state license has been                   to seven patients while employed as a
                                                                                                                                                            the respective Order. The matters were
                                              suspended for a period of certain duration,             nurse practitioner at the Appalachian
                                                                                                                                                            then placed on the docket of the
                                              the practitioner no longer meets the statutory          Medical Center (AMC), a clinic located
                                                                                                                                                            Agency’s Office of Administrative Law
                                              definition of a practitioner.’’ 7 As detailed           in Johnson City, Tennessee. GX A, at 1–
                                                                                                                                                            Judges, and assigned to the Chief
                                              above, only a ‘‘practitioner’’ may receive a            2 (citing 21 U.S.C. 823(f)(2), (4) & (5)).
                                              DEA registration. Therefore, I cannot and will                                                                Administrative Law Judge, who
                                                                                                      The Show Cause Order alleged that he
                                              not recommend the suspension of                                                                               consolidated the matters and proceeded
                                                                                                      had made unintelligible entries in the
                                              Respondent’s DEA registration, but will                                                                       to conduct prehearing procedures.
                                                                                                      medical records of three patients (N.S.,
                                              instead recommend the registration be                                                                         However, after extensive prehearing
                                              revoked.                                                T.H., and A.W.), that he had violated
                                                                                                                                                            litigation, each of the parties filed
                                                                                                      state law by referring N.S. to an
                                              Order Granting the Government’s Motion for                                                                    written notices waiving his/her
                                                                                                      unlicensed mental health counselor,
                                              Summary Disposition and Recommendation                                                                        respective right to a hearing, see GXs
                                                                                                      that he had violated state law by making
                                                 I find there is no genuine dispute regarding                                                               LL, MM, and PP, and the ALJ
                                                                                                      false entries in N.S.’s chart, that he had
                                              whether Respondent is a ‘‘practitioner’’ as                                                                   terminated the proceeding.2
                                                                                                      failed to maintain complete records for
                                              that term is defined by 21 U.S. C. 802(21),             T.H., and that he failed to properly                     1 Each Show Cause Order made extensive and
                                              and that based on the record the Government
                                              has established that Respondent is not a
                                                                                                      maintain the patient record of C.S. to                detailed allegations specific to each Applicant’s
                                              practitioner and is not authorized to dispense          accurately reflect nursing problems and               conduct, as well as to Registrant Stout’s conduct,
                                                                                                      interventions. GX A, at ¶¶ 5, 6, 7, 11, 12,           in prescribing to the various patients. See GX A, at
                                              controlled substances in the state in which                                                                   2–26 (Reynolds OTSC); GX B, at 2–9 (Killebrew
                                              she seeks to practice with a DEA Certificate            and 15.                                               Order); GX C, at 2–14 (Stout Order). In its Request
                                              of Registration. I find no other material facts            With respect to Applicant Killebrew,               for Final Agency Action, the Government pursued
                                              at issue. Accordingly, I GRANT the                      the Show Cause Order proposed the                     only the allegations of unlawful prescribing by the
                                              Government’s Motion for Summary                         denial of her application for registration            three practitioners, as well as the allegations (which
                                              Disposition.                                                                                                  were raised in its prehearing statements) that
                                                                                                      as a practitioner, on the ground that her             Applicant Reynolds had made material false
                                                 Upon this finding, I ORDER that this case            registration ‘‘would be inconsistent with             statements to a DEA Investigator.
                                              be forwarded to the Administrator for final
                                              disposition and I recommended that
                                                                                                      the public interest’’ as evidenced by her                2 On March 27, 2014, NP Stout, through counsel,


                                              Respondent’s DEA Certificate of Registration            repeated violations of state and federal              submitted a written request to the Government’s
                                                                                                      law in prescribing controlled substances              counsel seeking to withdraw his application to
                                              should be REVOKED and any pending                                                                             renew his registration. GX RR. Government Counsel
                                              application for the renewal or modification of          to three patients while employed as a                 promptly forwarded the request to the Deputy
                                              the same should be DENIED.                              nurse practitioner at the AMC. GX B, at               Assistant Administrator. GX SS. According to
                                                Dated: March 9, 2015                                  1–2 (citing 21 U.S.C. 823(f)(2)(4) & (5)).            Government Counsel, no action had been taken on
                                                                                                         With respect to Registrant Stout, the              the request as of September 16, 2014, the date on
                                              Christopher B. McNeil,                                                                                        which the record was forwarded to this Office. Id.
                                                                                                      Show Cause Order proposed the                         Nor has this Office been subsequently notified of
                                              Administrative Law Judge
                                                                                                      revocation of his practitioner’s                      any action having been taken on the request.
                                              [FR Doc. 2015–12020 Filed 5–18–15; 8:45 am]             registration and the denial of his                       I conclude that granting Stout’s request to
                                              BILLING CODE 4410–09–P                                  pending application to renew his                      withdraw would be contrary to the public interest
                                                                                                                                                            and that he has otherwise failed to show good
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                                                                                                      registration on two grounds. GX C, at 1–              cause. Here, the Government has expended
                                                3 James L. Hooper, M.D.; Decision and Order, 76
                                                                                                      2. First, the Order alleged that                      extensive resources in investigating the allegations,
                                              FR 71371–01, 71371 (DEA Nov. 17, 2011).
                                                4 Id.
                                                                                                      Respondent had materially falsified his               preparing for a hearing, and in engaging in pre-
                                                                                                      renewal application when he failed to                 hearing litigation; it was also fully prepared to go
                                                5 Anne Lazar Thorn, Revocation of Registration
                                                                                                                                                            to hearing on the allegations when Stout waived his
                                              M.D, 62 FR 12847, 12848 (DEA Mar. 18, 1997).            disclose that on March 10, 2010, the                  right to a hearing. Moreover, Stout’s counsel has
                                                6 Id. at 12848.                                       Tennessee Board of Nursing had                        made no offer as to how long he would wait before
                                                7 Hooper, 76 FR at 71372.                             summarily suspended his nurse                                                                     Continued




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Document Created: 2015-12-15 15:29:54
Document Modified: 2015-12-15 15:29:54
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation80 FR 28640 

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