81 FR 44049 - Prianglam Brooks, N.P.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 81, Issue 129 (July 6, 2016)

[Federal Register Volume 81, Number 129 (Wednesday, July 6, 2016)]
[Notices]
[Pages 44049-44050]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-15955]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Prianglam Brooks, N.P.; Decision and Order

    On April 14, 2015, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Prianglam Brooks, N.P. (Respondent), of Houston, Texas. 
GX 1, at 1. The Show Cause Order proposed the revocation of 
Respondent's DEA Certificate of Registration MB1907611, which 
authorizes her to dispense controlled substances in schedules III 
through V as a mid-level practitioner, as well as the denial of any 
pending applications to renew or modify her registration and any 
applications for any other DEA registration, because she does ``not 
have authority to handle controlled substances in the State of Texas, 
the [S]tate in which'' she is registered with DEA. Id. (citing 21 
U.S.C. 802(21), 823(f) and 824(a)(3)).
    More specifically, the Show Cause Order alleged that effective 
February 17, 2015, the Texas Board of Nursing (TBN) issued a summary 
suspension of Respondent's ``nurse practitioner license'' and her 
``Advanced Practice Registered Nurse License with Prescription 
Authorization,'' resulting in her loss of authority under Texas law 
``to handle controlled substances in the State of Texas.'' Id. The 
Order thus notified Respondent that her DEA registration was subject to 
revocation based upon her ``lack of authority to handle controlled 
substances in the State of Texas.'' Id. (citing 21 U.S.C. 802(21), 
823(f) and 824(a)(3)).
    The Show Cause Order also notified Respondent of her right to 
request a hearing on the allegations or to submit a written statement 
while waving her right to a hearing, the procedure for electing either 
option, and the consequence for failing to elect either option. Id. at 
2 (citing 21 CFR 1301.43). On April 29, 2015, a DEA Diversion 
Investigator personally served the Show Cause Order on Respondent. GX 
4.
    On May 18, 2015, the Office of Administrative Law Judges received a 
letter from an attorney representing Respondent. GX 5. Therein, 
Respondent waived her right to a hearing and provided a written 
statement of her position on the matters of fact and law asserted by 
the Government. GX 5, at 2-3.
    On February 16, 2016, the Government submitted a Request for Final 
Agency Action along with the Investigative Record and Respondent's 
Statement of Position. Having considered the record in its entirety, I 
make the following findings of fact.

Findings

    Respondent is the holder of DEA Certificate of Registration 
MB1907611, pursuant to which she is authorized to dispense controlled 
substances in schedules III through V, as a mid-level practitioner, at 
the registered location of Prillenium Healthcare, 6260 WestPark Drive, 
Suite 260, Houston, Texas. GX 2. Her registration was last renewed in 
June 2014 and expires on July 31, 2017. Id.
    Respondent is also the holder of Advanced Practice Registered Nurse 
License No. AP119040 with Prescription Authorization No. 10237 and 
Permanent Registered Nurse License No. 784525 issued by the Texas Board 
of Nursing. GX 3. However, on February 17, 2015, the Board ordered the 
temporary suspension of Respondent's licenses, finding that her 
continued practice as a nurse ``constitutes a continuing and imminent 
threat to the public welfare.'' GX 3, at 1.
    As support for its imminent threat finding, the Board found that 
Respondent, while employed as a family nurse practitioner and owner of 
Prillenium Healthcare, prescribed 8,614 dangerous cocktail drugs 
without therapeutic benefit and failed to individually assess each 
patient and develop an individualized treatment plan. Id. at 1-2 
(citations omitted). The Board also found that ``Respondent's non-
therapeutic prescribing practices constitute grounds for disciplinary 
action.'' Id. at 2 (citations omitted).
    The Board also found that ``[o]n or about October 7, 2014 through 
December 12, 2014 . . . Respondent issued 410 prescriptions for 
hydrocodone, a Schedule II controlled substance, to patients not in a 
hospital setting or receiving hospice care.'' Id. Finding that 
Respondent ``does not have prescriptive authority to issue prescription 
for schedule II controlled substances,'' the Board also found that 
``Respondent's prescribing practice . . . places patients at risk and 
endangers public safety.'' Id. The Board then alleged that Respondent's 
prescribing of schedule II controlled substances constitutes grounds 
for disciplinary action. Id. (citations omitted).
    The Board further found that Respondent owned and operated a pain 
clinic in violation of a state regulation, and that she issued 
prescriptions from a location not registered with the Texas Medical 
Board. Id. (citations omitted). The Board alleged that this conduct 
also constitutes grounds for disciplinary action. Id.
    The Board's Order mandated that both a probable cause hearing and a 
final hearing on the matter be conducted within 60 days of the entry of 
its order. Id. at 3. According to Respondent's statement, a hearing was 
held on April 7, 2015, at which a state administrative law judge 
``extended the temporary suspension finding probable cause of a 
continuing and imminent threat to the public safety.'' GX 5, at 2. 
According to an online query of the Board's Web site, all of 
Respondent's licenses remained suspended as of the date of this Order. 
See http://www.Board.texas.gov/forms/apnrslt.asp.
    In her Statement, Respondent contends that the Show Cause Order 
mischaracterizes the Board's temporary suspension as a `` `summary 
suspension.' '' GX 5, at 2. Respondent argues that the Board's February 
17, 2015 temporary suspension was imposed ``prior to notice and 
hearing.'' Id. While Respondent acknowledges that the Board provided 
her with ``a probable cause hearing,'' after which it found that she 
poses ``a continuing and imminent threat to the public safety'' and 
thus continued the suspension,'' she argues that ``this is not a final 
order''

[[Page 44050]]

and that a final hearing ``has yet to be scheduled.'' Id. (citation 
omitted).
    Respondent admits that she is not currently authorized to prescribe 
any medications in Texas. Id. at 3. She contends, however, that because 
the temporary suspension ``is not a final order'' of the Board, DEA's 
authority under 21 U.S.C. 824(a)(3) must be considered in light of the 
its authority under subsection 824(d), the provision which authorizes 
the Attorney General to suspend a registration based upon a finding of 
imminent danger to public health or safety. Id. Respondent thus argues 
that because a suspension under section 824(d) ``runs until the 
conclusion of such proceeding, including judicial review, . . . the 
principle of comity . . . suggest[s] that while a suspension of [her] 
registration may be appropriate [contingent on the outcome of the Board 
proceeding], a revocation is not appropriate.'' Id.

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of this 
title, ``upon a finding that the registrant . . . has had [her] State 
license . . . suspended . . . by competent State authority and is no 
longer authorized by State law to engage in the . . . dispensing of 
controlled substances.'' Also, DEA has long held that the possession of 
authority to dispense controlled substances under the laws of the State 
in which a practitioner engages in professional practice is a 
fundamental condition for obtaining and maintaining a practitioner's 
registration. See, e.g., Frederick Marsh Blanton, 43 FR 27616, 27617 
(1978) (``State authorization to dispense or otherwise handle 
controlled substances is a prerequisite to the issuance and maintenance 
of a Federal controlled substances registration.''); James L. Hooper, 
76 FR 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 
2012).
    This rule derives from the text of two provisions of the Controlled 
Substances. First, Congress defined ``the term `practitioner' [to] 
mean[ ] a . . . physician . . . or other person licensed, registered or 
otherwise permitted, by . . . the jurisdiction in which [s]he practices 
. . . to distribute, dispense, [or] administer . . . a controlled 
substance in the course of professional practice.'' 21 U.S.C. 802(21). 
Second, in setting the requirements for obtaining a practitioner's 
registration, Congress directed that ``[t]he Attorney General shall 
register practitioners . . . if the applicant is authorized to dispense 
. . . controlled substances under the laws of the State in which [s]he 
practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the Act, DEA has long held that revocation of a 
practitioner's registration is the appropriate sanction whenever she is 
no longer authorized to dispense controlled substances under the laws 
of the State in which she practices medicine. See, e.g., Calvin Ramsey, 
76 FR 20034, 20036 (2011); Sheran Arden Yeates, M.D., 71 FR 39130, 
39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby 
Watts, 53 FR 11919, 11920 (1988).
    This is so even where, as here, the state board has imposed a 
suspension of a practitioner's dispensing authority prior to providing 
a hearing and the practitioner has yet to be afforded the opportunity 
to challenge the basis of the state board's action. See, Ramsey 76 FR 
at 20036 (citations omitted). As the Agency previously explained: 
``Under the CSA, it does not matter whether the suspension is for a 
fixed term or for a duration which has yet to be determined because it 
is continuing pending the outcome of a state proceeding. Rather, what 
matters--as DEA has repeatedly held--is whether Respondent is without 
authority under [state] law to dispense a controlled substance.'' 
Bourne Pharmacy, Inc., 72 FR 18273, 18274 (2007) (citation omitted). 
Cf. James L. Hooper, 76 FR 71371 (2011) (collecting cases); Blanton, 43 
FR 27616 (1978) (revoking registration of physician whose medical 
license had been suspended for one year, but thereafter, would have his 
license restored subject to probationary conditions; ``[a]s a result of 
the suspension of his medical license, the [r]espondent is no longer 
authorized to dispense or otherwise handle controlled substances under 
the laws of Florida. Accordingly . . . the [r]espondent's DEA 
registration must be revoked''). See also Rezik A. Saqer, 81 FR 22122, 
22126 (2016).
    Because the CSA clearly makes the possession of state authority a 
condition for maintaining a practitioner's registration, it is of no 
consequence that the Texas Board's temporary suspension order is not a 
final order of the Board. As for her contention that the principle of 
comity suggests that I should impose a suspension rather than a 
revocation, revoking her registration in no manner interferes with the 
Texas Board's authority to adjudicate the allegations it has raised 
against her.\1\ Respondent remains free to challenge the allegations 
raised by the State before the Board, and in the event she prevails, 
she can immediately apply for a new DEA registration.
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    \1\ Respondent's invocation of 21 U.S.C. 824(d) provides no 
support for her contention that comity suggests that I suspend 
rather than revoke her registration. That provision governs the 
exercise of the Agency's authority to immediately suspend a DEA 
registration, ``simultaneously with the institution of proceedings 
under'' section 824(a), based upon a finding that a registrant poses 
``an imminent danger to public health or safety.'' The provision 
says nothing about the Agency's authority where a registrant's state 
authority has been suspended prior to hearing. Section 824(a) does, 
however, and while it provides the Attorney General with 
discretionary authority to suspend or revoke upon making one or more 
of the five enumerated findings, for the reasons explained above, 
the specific provisions that apply to practitioners establish that a 
registrant who loses her state authority no longer meets the 
definition of a practitioner and cannot retain her registration even 
in a suspended status.
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    Accordingly, because it is undisputed that Respondent's Texas 
Advanced Practice Nursing License and Prescription Authority remains 
suspended, I find that she no longer has authority under the laws of 
Texas, the State in which she is registered, to dispense controlled 
substances. Therefore, she is not entitled to maintain her DEA 
registration. Accordingly, I will order that her registration be 
revoked and that any pending applications be denied.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration MB1907611, issued to Prianglam Brooks, N.P., be, and it 
hereby is, revoked. I further order that any application of Prianglam 
Brooks, N.P., to renew or modify this registration, be, and it hereby 
is, denied. This Order is effective immediately.\2\
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    \2\ For the same reasons which led the Nursing Board to conclude 
that the continued practice of nursing by Respondent constitutes ``a 
continuing and imminent threat to public welfare'' and to order the 
summary suspension of Respondent's licenses, I conclude that the 
public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Dated: June 27, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016-15955 Filed 7-5-16; 8:45 am]
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