81 FR 64949 - Drug Enforcement Administration

DEPARTMENT OF JUSTICE

Federal Register Volume 81, Issue 183 (September 21, 2016)

[Federal Register Volume 81, Number 183 (Wednesday, September 21, 2016)]
[Notices]
[Pages 64949-64951]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-22751]


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 DEPARTMENT OF JUSTICE


Drug Enforcement Administration

Kevin L. Lowe, M.D.; Decision and Order

    On May 18, 2016, Chief Administrative Law Judge John J. Mulrooney, 
II (CALJ), issued the attached Recommended Decision (R.D.).\1\ Therein, 
the CALJ found that it is undisputed that Respondent is currently 
without authority to handle controlled substances in New York, the 
State in which he holds DEA Registration FL2580163. R.D. at 4. The CALJ 
thus granted the Government's Motion for Summary Disposition and 
recommended that I revoke Respondent's registration and deny any 
pending applications.
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    \1\ All citations to the Recommended Decision are to the slip 
opinion issued by the CALJ.
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    Neither party filed exceptions to the Recommended Decision. Having 
reviewed the record, I adopt the CALJ's finding that Respondent lacks 
state authority to handle controlled substances in New York, the State 
in which he is registered. ``State authorization to dispense or 
otherwise handle controlled substances is a prerequisite to the 
issuance and maintenance of a Federal controlled substances 
registration.'' Frederick Marsh Blanton, 43 FR 27616, 27617 (1978). See 
also Rezik A. Saqer, 81 FR 22122, 22124-127 (2016). Thus, once the 
Government establishes that an applicant for a practitioner's 
registration or a practitioner-registrant does not possess state 
authority, there are no further facts to be considered and revocation 
is the mandatory sanction that must be entered under the Controlled 
Substances Act. Accordingly, I will also adopt the CALJ's 
recommendation that I revoke Respondent's registration and deny any 
pending application to renew or modify his registration.

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 FL2580163 issued to Kevin L. Lowe, M.D., be, and it hereby 
is, revoked. I further order that any pending application of Kevin L. 
Lowe, M.D., to renew or modify the above registration, be, and it 
hereby is, denied. This Order is effective immediately.\2\
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    \2\ Based on Respondent's acknowledgment that he has been 
convicted of conspiring to unlawfully distribute controlled 
substances, see Resp.'s Hrng. Req., at 1-2, I find that the public 
interest necessitates that this Order be effective immediately. 21 
CFR 1316.67.


[[Page 64950]]


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    Dated: September 14, 2016.
Chuck Rosenberg,
Acting Administrator.

Order Granting the Government's Motion for Summary Disposition and 
Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision 
of the Administrative Law Judge

    Chief Administrative Law Judge John J. Mulrooney, II. The Deputy 
Assistant Administrator, Drug Enforcement Administration (DEA), issued 
an Order to Show Cause (OSC), dated March 28, 2016, proposing to revoke 
the DEA Certificate of Registration (COR), Number FL2580163,\3\ of 
Kevin L. Lowe, M.D. (Respondent), pursuant to 21 U.S.C. 824(a)(3) and 
21 U.S.C. 823(f). In the OSC, the DEA avers that the Respondent's lack 
of ``authority to handle controlled substances in the State of New 
York, the state in which [the Respondent is] registered with the DEA,'' 
is a basis for revocation of the Respondent's COR.\4\
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    \3\ The Respondent's DEA COR is current and expires by its terms 
on March 31, 2017. Gov't Mot. App'x A.
    \4\ The OSC also alleges that the Respondent was convicted of 
one count of conspiracy to distribute narcotics involving oxycodone 
in violation of 21 U.S.C. 846. OSC at 1.
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    The Respondent, pro se, timely filed a Request for Hearing dated 
April 3, 2016,\5\ wherein he conceded that he is currently without 
state authority to handle controlled substances. See Req. for Hr'g at 1 
(stating that his ``imprisonment has prevented [him] from renewing his 
state license''). The Respondent also maintained that he is innocent of 
the crime for which he was convicted and is in the process of appealing 
his conviction. Id. at 1, 3.
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    \5\ Respondent apparently filed the Request for Hearing with the 
Office of Diversion Control, and Government counsel forwarded the 
request to the Office of Administrative Law Judges on April 11, 
2016.
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    On April 22, 2016, the Government filed a Motion for Summary 
Disposition, seeking a Recommended Decision granting the Government's 
Motion because Respondent is currently without authority to handle 
controlled substances in New York. Gov't Mot. at 1. Appended to its 
Motion, the Government provided a Certification by Cathy Hanczaryk, 
legal custodian of the official records of the Division of Professional 
Licensing Services of the New York State Education Department, in which 
Ms. Hanczaryk attests that the Respondent ``is not currently registered 
to practice the profession [of medicine] in New York'' and has not been 
so registered since October 31, 2015. Gov't Mot. App'x B. Ms. 
Hanczaryk's Certification further states that the Respondent ``has not 
filed a registration renewal application for the period of'' November 
1, 2015 to October 31, 2017. Id. According to a supporting Declaration 
by Diversion Investigator (DI) Chante Jones, also appended to the 
Government's Motion, DI Jones personally obtained the Certification by 
Ms. Hanczaryk after learning that the Respondent, who had been 
convicted in federal district court, did not have an active license to 
practice medicine in New York and has been without one since October 
31, 2015. Gov't Mot. App'x C at 1-2.
    The Respondent's reply to the Government's motion was due on May 
11, 2016.\6\ Having afforded an additional week of time in the event 
that the Respondent's reply was mailed but not timely, the Government's 
motion would appropriately be granted as unopposed. Even without doing 
so, however, the Government's motion must be granted on the existing 
record.
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    \6\ The Government requested additional time to file its Motion, 
which was granted, and the Respondent's original due date was 
likewise extended.
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    In order to revoke a registrant's DEA registration, the DEA has the 
burden of proving that the requirements for revocation are satisfied. 
21 CFR 1301.44(e). Once the DEA has made its prima facie case for 
revocation of the registrant's DEA COR, the burden of production then 
shifts to the Respondent to show that, given the totality of the facts 
and circumstances in the record, revoking the registrant's COR would 
not be appropriate. Morall v. DEA, 412 F.3d 165, 174 (D.C. Cir. 2005); 
Humphreys v. DEA, 96 F.3d 658, 661 (3d Cir. 1996); Shatz v. U.S. Dep't 
of Justice, 873 F.2d 1089, 1091 (8th Cir. 1989); Thomas E. Johnston, 45 
FR 72311, 72312 (1980).
    The Controlled Substances Act (CSA) requires that, in order to 
maintain a DEA registration, a practitioner must be authorized to 
handle controlled substances in the state in which he practices. See 21 
U.S.C. 823(f) (``The Attorney General shall register practitioners . . 
. if the applicant is authorized to dispense . . . controlled 
substances under the laws of the State in which he practices.''); see 
also 21 U.S.C. 802(21) (the CSA defines ``practitioner'' as ``a 
physician . . . licensed, registered, or otherwise permitted, . . . by 
the jurisdiction in which he practices . . . to . . . dispense [or] 
administer . . . a controlled substance in the course of professional 
practice''). DEA has long held that possession of authority under state 
law to dispense controlled substances is not only a prerequisite to 
obtaining a registration, but also an essential condition for 
maintaining one. Serenity Caf[eacute], 77 FR 35027, 35028 (2012); David 
W. Wang, M.D., 72 FR 54297, 54298 (2007); Sheran Arden Yeates, M.D., 71 
FR 39130, 39131 (2006); Dominick A. Ricci, M.D., 58 FR 51104, 51105 
(1993); Bobby Watts, M.D., 53 FR 11919, 11920 (1988). Because 
``possessing authority under state law to handle controlled substances 
is an essential condition for holding a DEA registration,'' this Agency 
has consistently held that ``the CSA requires the revocation of a 
registration issued to a practitioner who lacks [such] authority.'' 
John B. Freitas, D.O., 74 FR 17524, 17525 (2009); see James Alvin 
Chaney, M.D., 80 FR 57391, 57391 (2015); Scott Sandarg, D.M.D., 74 FR 
17528, 17529 (2009); Roy Chi Lung, M.D., 74 FR 20346, 20347 (2009); 
Roger A. Rodriguez, M.D., 70 FR 33206, 33207 (2005); Stephen J. Graham, 
M.D., 69 FR 11661, 11662 (2004); Abraham A. Chaplan, M.D., 57 FR 55280, 
55280-81 (1992); see also Harrell E. Robinson, M.D., 74 FR 61370, 61375 
(2009) (Agency revoked a registration based on loss of state authority 
after hearing before an ALJ, but also considered the public interest 
factors in its analysis); but see 21 U.S.C. 824(a)(3) (loss of state 
authority constitutes a discretionary basis for sanction, not a 
mandatory basis). The Agency has deemed this rule to be applicable 
``not only where a registrant's state authority has been suspended or 
revoked, but also where a practitioner with an existing DEA 
registration has lost his state authority for reasons other than 
through formal disciplinary action of a State board,'' such as 
``expiration of [a] state license.'' Freitas, 74 FR at 17525 (citing 
William D. Levitt, D.O., 64 FR 49822, 49823 (1999)); see Mark L. Beck, 
D.D.S., 64 FR 40899, 40900 (1999); Charles H. Ryan, M.D., 58 FR 14430, 
14430 (1993).
    Congress does not intend for administrative agencies to perform 
meaningless tasks. See Philip E. Kirk, M.D., 48 FR 32887 (1983), aff'd 
sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984); see also Puerto 
Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 605 (1st Cir. 1994); 
NLRB v. Int'l Assoc. of Bridge, Structural & Ornamental Ironworkers, 
AFL-CIO, 549 F.2d 634 (9th Cir. 1977); United States v. Consol. Mines & 
Smelting Co., 455 F.2d 432, 453 (9th Cir. 1971). Thus, it is well-
settled that, where no genuine question of fact is involved or when the 
material facts are agreed upon, a plenary, adversarial administrative 
proceeding is not required. See Jesus R. Juarez, M.D., 62 FR 14945 
(1997);

[[Page 64951]]

Dominick A. Ricci, M.D., 58 FR 51104 (1993). Here, the supplied 
Certification by Ms. Hanczaryk establishes, and the Respondent 
concedes,\7\ that the Respondent is currently without authorization to 
handle controlled substances in New York, the jurisdiction where the 
Respondent holds the DEA COR that is the subject of this litigation.
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    \7\ The Respondent conceded his lack of state authority in his 
Request for Hearing. Req. for Hr'g at 1 (stating that his 
``imprisonment has prevented [him] from renewing his state 
license'').
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    Summary disposition of an administrative case is warranted where, 
as here, ``there is no factual dispute of substance.'' Veg-Mix, Inc. v. 
U.S. Dep't of Agric., 832 F.2d 601, 607 (D.C. Cir. 1987) (``[A]n agency 
may ordinarily dispense with a hearing when no genuine dispute 
exists.''). At this juncture, no genuine dispute exists over the fact 
that the Respondent lacks state authority to handle controlled 
substances in New York. Because the Respondent lacks such state 
authority, Agency precedent dictates that he is not entitled to 
maintain his DEA registration. Simply put, there is no contested 
factual matter adducible at a hearing that would, in the Agency's view, 
provide authority to allow the Respondent to continue to hold his 
COR.\8\
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    \8\ However, should the Respondent's state authority be renewed, 
he may apply for a new DEA COR. See Franklyn Seabrooks, M.D., 79 FR 
44196, 44197 n.1 (2014).
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    Accordingly, I hereby Grant the Government's Motion for Summary 
Disposition; and further Recommend that the Respondent's DEA 
registration be Revoked forthwith, and any pending applications for 
renewal be Denied.

    Dated: May 18, 2016.

John J. Mulrooney, II
Chief Administrative Law Judge.

[FR Doc. 2016-22751 Filed 9-20-16; 8:45 am]
 BILLING CODE 4410-09-P