82 FR 10398 - John P. Moore, III, M.D.; Decision and Order
DEPARTMENT OF JUSTICE
Drug Enforcement Administration Federal Register Volume 82, Issue 27 (February 10, 2017)
Drug Enforcement Administration
Federal Register Volume 82, Issue 27 (February 10, 2017)
| Page Range | 10398-10401 | |
| FR Document | 2017-02729 |
[Federal Register Volume 82, Number 27 (Friday, February 10, 2017)] [Notices] [Pages 10398-10401] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-02729] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Drug Enforcement Administration John P. Moore, III, M.D.; Decision and Order On June 30, 2016, the Assistant Administrator, Division of Diversion Control, issued an Order to Show Cause to John P. Moore, III, M.D. (Respondent), of Centerville, Ohio. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration No. FM1335353. GX 2, at 1. With respect to the Agency's jurisdiction, the Show Cause Order alleged that Respondent is the holder of Certificate of Registration No. FM1335353, which ``is valid for Drug Schedules II-V,'' at the address of 950 E. Alex Bell Road, Centerville, Ohio. Id. at 2. The Order further alleged that this registration does not expire until January 31, 2018. Id. The Show Cause Order further alleged three separate grounds for the proposed action. First, it alleged that on April 5, 2016, Respondent pled guilty in the Ohio courts to four state felony counts of knowingly selling or offering to sell zolpidem and diazepam (both schedule IV controlled substances) and Suboxone (buprenorphine and naloxone, a schedule III controlled substance), as well as a further felony count of knowingly permitting real estate or other premises to be used for drug trafficking. Id. (citing Ohio Rev. Code Sec. Sec. 2925.03, 2925.13). See also 21 U.S.C. 824(a)(2). Second, the Show Cause Order alleged that on May 11, 2016, Respondent's Ohio medical license was suspended and that he is currently without authority to dispense controlled substances in the State in which he is registered with the Agency. GX 2, at 2 (citing 21 U.S.C. 802(21), 824(a)(3)). And third, the Show Cause Order alleged that Respondent has also been ``convicted of felony Medicaid fraud,'' thus rendering him subject to mandatory exclusion from participation in federal health care programs under 42 U.S.C. 1320a-7(a) and subjecting his registration to revocation for this reason as well. GX 2, at 2 (citing 21 U.S.C. 824(a)(5)). The Show Cause Order also notified Respondent of his right to request a hearing on the allegations of the Order or to submit a written statement of position while waiving his right to a hearing, the procedure for electing either option (including the time period for filing), and the consequence of failing to elect either option as well as the failure to do so in compliance with the Agency's regulations. Id. at 3 (citing 21 CFR 1301.43). Finally, the Show Cause Order informed Respondent of his right to submit a corrective action plan under 21 U.S.C. 824(c)(2)(C). Id. On or about June 30, 2016, the Government sent the Show Cause Order by certified mail, return receipt requested, addressed to Respondent at his residence in the Correctional Reception Center in Orient, Ohio. GX 5, Appendix A, at 1, 3-4. As evidenced by the signed return receipt card, on July 6, 2016, the Government accomplished service.\1\ Id. at 3, --------------------------------------------------------------------------- \1\ While I find that the mailing provided constitutionally adequate service, the Government also produced evidence showing that it had emailed a copy of the Show Cause Order to corrections officers at the Ohio Correctional Reception Center and that Respondent was personally served with a copy of the order on July 7, 2016. GX 5, Appendix A, at 2, 5. --------------------------------------------------------------------------- [[Page 10399]] On August 11, 2016, Respondent filed a request for a hearing with the Office of Administrative Law Judges and the matter was assigned to Chief Administrative Law Judge John J. Mulrooney, II (hereinafter, CALJ). GXs 3, 4. In his hearing request, Respondent's counsel acknowledged that his request was out of time. GX 3, at 3. Respondent, however, invoked 21 CFR 1316.47(b), which provides that ``[t]he Administrative Law Judge, upon request and showing of good cause, may grant a reasonable extension of the time allowed for a response to an Order to Show Cause.'' \2\ Respondent thus argued that ``good cause exists for a reasonable extension of time'' to respond to the Show Cause Order because he ``did not have timely access to his mail while incarcerated.'' GX 3, at 3. Respondent's counsel further argued that the request came ``less than 7 days beyond the . . . 30-day time frame for a response'' and that the Agency was not ``materially prejudiced by the'' delay. Id. --------------------------------------------------------------------------- \2\ While Respondent cited this provision as authority to excuse his untimely filing, it is clear that he submitted a hearing request which is also subject to the good cause standard. See 21 CFR 1301.43(d). The Agency has previously explained on interlocutory review that ``where an ALJ receives an untimely hearing request, it is within [the ALJ's] authority to conduct such proceedings as are necessary to determine whether the respondent has established good cause.'' Mark S. Cukierman, Denial of Interlocutory Appeal, Slip Op. at 7. This is so even where a respondent does not establish good cause as part of the hearing request. Id. However, as also explained in Cukierman, once the Government submits a request for final agency action to this Office, the forwarding of the record divests the ALJ of authority to rule on whether there is good cause to excuse an untimely request for a hearing and the timeliness of the hearing request is to be reviewed by this Office. In those instances in which a respondent submits a hearing request after the Government has filed its Request for Final Agency Action, the Government should inform the ALJ that the matter has been forwarded to this Office and the ALJ should issue an order forwarding the hearing request to this Office. --------------------------------------------------------------------------- Upon receipt of Respondent's hearing request, the CALJ issued an order, directing, inter alia, that the Government submit ``proof of the date of service'' of the Show Cause Order, as well as a response to Respondent's request for an extension or a motion to terminate the proceeding. GX 4, at 1-2. In response, the Government timely submitted a motion to terminate the proceeding and opposing Respondent's request for an extension. GX 5. Therein, the Government represented that the Show Cause Order had been served on Respondent by both certified mail which was received on July 6, 2016, as well as hand delivery by prison personnel on July 7, 2016. Id. at 1-2. The Government then noted that Respondent ``was released from [prison] on approximately July 27, 2016'' and that the Ohio Medical Board had conducted a hearing on July 28, 2016, at which he was physically present and was represented by the same counsel that was representing him in the DEA proceeding. Id. at 2. The Government argues that ``[e]ven if Respondent did not have timely access to mail for communicating with his counsel regarding the'' Show Cause Order, he certainly could have done so on July 28 and thus, he has failed to offer good cause for the untimely submission of his hearing request. Id. While the Government acknowledged that it was not prejudiced by Respondent's untimely hearing request, it argued that Respondent was seeking to gain a ``tactical advantage'' by drawing out the proceedings in the hope that the Ohio Board would reinstate his license. Id. at 2- 3. Upon receipt of the Government's motion, the CALJ provided Respondent with an opportunity to respond to the Government's motion and Respondent filed a response. GXs 7, 8. Therein, Respondent explained that ``[b]ecause of [his] preoccupation with defending the [State Board's] allegations, he did not notify his counsel of the [DEA] matter until [t]he morning of August 8, 2016,'' on which date his ``counsel immediately filed a request for [h]earing.'' GX 8, at 1. After noting the Government's concession that the untimely filing of the request had not caused it prejudice, Respondent ``denie[d]'' that he sought the extension to obtain ``a tactical advantage'' and stated that he ``is willing and able to defend his interests in this matter without a final determination by the Ohio Medical Board.'' Id. Respondent then argued that he had shown ``good cause'' under 21 CFR 1316.47(b) based on ``the importance of the constitutionally protected interest involved in this matter'' and because only a ``minor 2-day extension'' was requested.\3\ Id. at 1-2. --------------------------------------------------------------------------- \3\ In this filing, Respondent replied to the Government's Motion to Terminate by challenging the Government's Motion for Summary Disposition. GX 8, at 2-3. I address these arguments later in this Decision. --------------------------------------------------------------------------- Upon review, the CALJ granted the Government's motion to terminate the proceeding. GX 9, at 5. The CALJ noted that the language of 21 CFR 1316.47(b) ``is arguably supportive of an interpretation limiting the authority to extend the time to file a hearing request only during the time when the [Administrative Law] Judge has potential jurisdiction over the case, to wit, prior to the expiration of the thirty-day . . . period'' from the date of service for requesting a hearing. Id. at 2. However, the CALJ further noted that in contrast to several other agency regulations, including 21 CFR 1316.47(a), which states that ``[a]ny person entitled to a hearing and desiring a hearing shall, within the period permitted for filing, file a request for a hearing,'' (emphasis added), section 1316.47(b) sets no time limit for requesting ``a reasonable extension of the time allowed for response to an Order to Show Cause.'' GX 9, at 2-3. The CALJ concluded, however, that regardless of whether he had authority to rule on a request for an extension filed more than 30 days after the date of service of the Show Cause Order, ``the Agency has made clear that it is prepared to find a hearing waiver when an untimely hearing request is not supported by good cause for its tardiness.'' Id. at 3 (citing 21 CFR 1301.43(d) (``If any person entitled to a hearing . . . fails to file a request for a hearing . . . such person shall be deemed to have waived the opportunity for a hearing . . . unless such person shows good cause for such failure.''); Shannon L. Gallentine, 76 FR 45864, 45864 (2011)). The CALJ then found that while Respondent initially argued that he ``did not have timely access to his mail while incarcerated,'' once the Government refuted this argument (by showing that he had been released from custody on July 27, 2016), he then changed his position and maintained that his ``pre-occupation'' with the Ohio Board's hearing had led him to miss the filing deadline.\4\ GX 9, at 4. The CALJ rejected the latter explanation as sufficient to establish ``good cause,'' explaining that ``in a regulatory environment where parallel proceedings . . . are common, even ubiquitous, `preoccupation' borne of participation in those proceedings, standing alone, cannot constitute good cause. . . . [T]he Respondent's only obligation--and the[ ] only task negligently accomplished--was to deliver his [Show Cause Order] to the attorney who was already representing him on related proceedings.'' Id. Continuing, the CALJ explained that although it is ``undeniably true that counsel promptly attended to the matter once the Respondent supplied the [Order], promptness on the part of his attorney can offer no dispensation here. No excuse has been propounded to [[Page 10400]] excuse his delay in providing his counsel with the'' Order. Id. at 4-5. The CALJ thus concluded that Respondent had not demonstrated ``good cause'' to excuse his untimely filing and granted the Government's motion to terminate the hearing. Id. at 5. --------------------------------------------------------------------------- \4\ Of course, Respondent's initial contention is also refuted by the evidence that a correction officer hand-delivered the Show Cause Order to him on July 7, 2016, nearly three weeks before he was released from prison. --------------------------------------------------------------------------- Thereafter, the Government submitted a Request for Final Agency Action and an evidentiary record to my Office. As an initial matter, I agree with the CALJ that Respondent has failed to demonstrate ``good cause'' to excuse the untimely filing of his hearing request. While DEA has interpreted the ``good cause'' standard for assessing the timeliness of hearing requests as encompassing cases of excusable neglect, mistake or inadvertence, see Keith Ky Ly, 80 FR 29025, 29027 & n.2 (2015) (citing Tony T. Bui, 75 FR 49979, 49980 (2010)), Respondent has failed to make a sufficient showing to warrant relief. While Respondent initially claimed that his untimely filing should be excused because he did not have timely access to his mail, the evidence shows that the Show Cause Order was hand-delivered to him. As for his subsequent claim that his untimeliness should be excused because he was preoccupied with the State Board proceeding, Respondent has failed to explain why he was so pre-occupied with the Board proceeding in the three weeks that passed from the date the Order was hand delivered to him until he was released from prison that he could not have devoted the de minimis amount of time it would have taken to mail the Order to his attorney or to personally prepare and mail his hearing request. Moreover, even assuming that Respondent was preoccupied with the Board hearing during the day(s) on which the hearing took place, he offers no explanation for why he did not provide the Show Cause Order to his attorney for another 10 days after the Board hearing concluded. And as for Respondent's contention that his untimeliness should be excused because of ``the importance of the constitutionally protected interest involved in this matter,'' this is true of every case brought by the Government against a registrant or applicant. It thus provides no reason to excuse his neglect, even if it the period of his untimeliness would not prejudice the Government. Accordingly, I conclude that Respondent has failed to established ``good cause'' to excuse his untimely filing and has therefore waived his right to a hearing. See 21 CFR 1301.43(d). I therefore issue this Decision and Order based on the record submitted by the Government and make the following findings of fact. Findings Respondent is the holder of DEA Certificate of Registration No. FM1335353, as well DATA-Waiver identification number XM1335353. GX 1. Pursuant to his registration, Respondent is authorized to dispense controlled substances in schedules II through V as a practitioner and pursuant to his DATA-Waiver identification number, he is authorized to dispense or prescribe schedule III-V narcotic controlled substances which ``have been approved by the Food and Drug Administration . . . specifically for use in maintenance or detoxification treatment'' for up to 100 patients.'' 21 CFR 1301.28(a) & (b)(iii); see also GX 1. Respondent's registered address is 950 E. Alex Bell Road, Centerville, Ohio; his registration and the authority provided by his DATA-Waiver number do not expire until January 31, 2018. GX 1. On April 5, 2016, the Prosecuting Attorney for Greene County, Ohio issued an Information which charged Respondent with multiple felony controlled substance offenses under Ohio law; the Information also charged Respondent with Medicaid Fraud. GX 11, at 2-4 (citing Ohio Rev. Code Sec. 2913.40(B) and (E); id. Sec. 2925.03) With respect to the controlled substance offenses, Respondent was charged with, inter alia: (1) Two counts of trafficking in zolpidem, a schedule IV controlled substance, from ``on or about February 12, 2009 to September 30, 2014''; (2) trafficking in suboxone, a schedule III controlled substance, ``on or about February 12, 2009''; and (3) trafficking in diazepam, a schedule IV controlled substance, also ``on or about February 12, 2009.'' Id. at 2-3 (citing Ohio Rev. Code Sec. 2925.03). Finally, Respondent was charged with knowingly permitting real property to ``be use for the commission of a felony drug offense, to wit, trafficking . . . by another person.'' Id. at 3-4 (citing Ohio Rev. Code Sec. 2925.13). The same day, Respondent appeared in court and pled guilty to each of these offenses. Id. at 11-12. On May 26, 2016, the state court entered judgment and sentenced Respondent to a term of imprisonment of 10 months on each of the above counts, but provided that the sentence for Medicaid Fraud and permitting real property to be used for the commission of a drug offense were ``to be served consecutively to each other, but concurrently to the remaining counts for a total sentence of 20 months.'' Id. at 14, 17. The court also ordered that Respondent forfeit $85,000, which included $5,531.08 in restitution to two entities. Id. at 19. Thus, I find that Respondent has been convicted of felony offenses under Ohio law, ``relating to any substance defined in [the Controlled Substances Act] as a controlled substance.'' 21 U.S.C. 824(a)(2); see also Ohio Rev. Code Sec. 2925.03(A)(1) (``No person shall knowingly . . . [s]ell or offer to sell a controlled substance or a controlled substance analog.''); id. Sec. 2925.03(C)(2)(a) (if drug is in schedules III through V, offense is a fifth degree felony). See also Ohio Rev. Code Sec. 2925.13(B) (``No person who is the owner, lessee, or occupant, or who has custody, control, or supervision, of premises or real estate . . . shall knowingly permit the premises or real estate . . . to be used for the commission of a felony drug offense by another person.'').\5\ --------------------------------------------------------------------------- \5\ See also Ohio Rev. Code Sec. 2925.13(C)(3) (``Permitting drug abuse is a felony of the fifth degree[.]''). --------------------------------------------------------------------------- Moreover, on May 11, 2016, the State Medical Board of Ohio issued Respondent a Notice of Immediate Suspension and Opportunity for Hearing, pursuant to which his license to practice medicine and surgery in the State was suspended. GX 6, Attachment 1, at 1. The Board's Order was based on Respondent's guilty pleas to the four felony counts of Trafficking in Drugs (Ohio Rev. Code Sec. 2925.03) and the felony count of Permitting Drug Abuse (Ohio Rev. Code Sec. 2925.13). According to the Medical Board's Web site of which I take official notice,\6\ on October 19, 2016, the Board ordered the permanent revocation of Respondent's license to practice medicine and surgery based upon his convictions on the four trafficking counts, as well as the single counts of Permitting Drug Abuse and Medicaid Fraud; this Order became effective the next day. See Ohio License Center (John Pease Moore, III), https://license.ohio.gov/lookup/default.asp. (last visited February 1, 2017). I therefore find that Respondent is currently without authority to dispense controlled substances in Ohio. --------------------------------------------------------------------------- \6\ In accordance with the Administrative Procedure Act (APA), an agency ``may take official notice of facts at any stage in a proceeding-even in the final decision.'' U.S. Dept. of Justice, Attorney General's Manual on the Administrative Procedure Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and DEA's regulations, Respondent is ``entitled on timely request to an opportunity to show to the contrary.'' 5 U.S.C. 556(e); see also 21 CFR 1316.59(e). To allow Respondent the opportunity to refute the facts of which I take official notice, Respondent may file a motion for reconsideration within 15 calendar days of the date of service of this Order which shall commence on the date this Order is mailed. --------------------------------------------------------------------------- [[Page 10401]] In addition, the record includes a July 29, 2016 letter from the Office of Inspector General, Department of Health and Human Services, to Respondent; the letter notified Respondent that he was ``being excluded from participation in any capacity in the Medicare, Medicaid, and all Federal health care programs as defined in section 1128B(f) of the Social Security Act . . . for the minimum period of 5 years.'' GX 12, at 1. The letter explained that Respondent was being excluded based on his ``felony conviction[s]'' for ``a criminal offense related to the delivery of an item or service under the Medicare or a State health care program,'' and for ``criminal offense[s] related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance as defined under Federal or State law.'' Id. (citing 42 U.S.C. 1320a-7(a)(1) and (4)). Discussion Under Section 304(a) of the Controlled Substances Act, ``[a] registration pursuant to section 823 of [the Act] to . . . dispense a controlled substance . . . may be suspended or revoked by the Attorney General upon a finding that the registrant-- * * * * * (2) has been convicted of a felony under this subchapter . . . or any other law of the United States, or of any State, relating to any substance defined in this subchapter as a controlled substance . . . ; (3) has had his State license or registration suspended, revoked, or denied by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances . . . ; * * * * * (5) has been excluded . . . from participation in a program pursuant to section 1320a-7(a) of Title 42. 21 U.S.C. 824(a). The Government has ``the burden of proving that the requirements for such revocation or suspension pursuant to section 304(a) . . . (21 U.S.C. 824(a) . . .) are satisfied. 21 CFR 1301.44(e). Thus, even where a registrant waives his right to a hearing, the Government is required to produce substantial evidence to support the proposed action. In this matter, having considered the evidence submitted by the Government, I conclude that there are three separate and independent grounds to revoke Respondent's registration. First, as found above, on May 26, 2016, the Common Pleas Court of Greene County, Ohio entered a judgment convicting Respondent of four counts of trafficking in drugs (suboxone, zolpidem, and diazepam) under Ohio law, as well as a single count of knowingly permitting real estate he owned or controlled to be used for drug trafficking. See Ohio Rev. Code Sec. Sec. 2925.03(A); 2925.13(B). Both of these provisions are felony offenses under Ohio law. Thus, I find that Respondent ``has been convicted of a felony offense . . . relating to any substance defined in [the CSA] as a controlled substance.'' 21 U.S.C. 824(a)(2). This finding provides reason alone to revoke Respondent's registration and his DATA-Waiver identification number. Second, the evidence shows that based on his guilty pleas in the criminal case, on May 11, 2016, the Ohio Board immediately suspended Respondent's license to practice medicine and surgery in the State, and that on October 20, 2016, the Board revoked his license. By virtue of the Board's actions, Respondent lacks authority to dispense controlled substances under the laws of the State of Ohio, the State in which he is registered with DEA, and thus, he is no longer a practitioner within the meaning of the Act. See 21 U.S.C. 802(21) (defining ``the term `practitioner' [to] mean[ ] a . . . physician . . . or other person licensed, registered or otherwise permitted, by . . . the jurisdiction in which he practices . . . to distribute, dispense, [or] administer . . . a controlled substance in the course of professional practice''); see also id. Sec. 823(f) (directing that ``[t]he Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices''). As the Agency has long held, ``[s]tate 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 (1978). Because the possession of state authority is a prerequisite to the maintenance of a practitioner's registration, the Agency has long held that revocation is the appropriate sanction whenever he is no longer authorized to dispense controlled substances under the laws of the State in which he practices medicine. See, e.g., James L. Hooper, 76 FR 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); 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); Blanton, 43 FR at 27616.\7\ Accordingly, Respondent's registration (and DATA-Waiver number) are subject to revocation for this reason as well. 21 U.S.C. 824(a)(3). --------------------------------------------------------------------------- \7\ Thus, even if Respondent were to credibly accept responsibility for his criminal conduct and put forward sufficient evidence of remedial measures, the revocation of his state authority would still require that I revoke his DEA registration and DATA- waiver number. I further reject Respondent's contention that I have discretion in the case of a practitioner to not revoke his registration based on his loss of state authority. See GX 8, at 2-3; see Hooper v. Holder, 481 Fed. Appx. at 827-28; see also Rezik A. Saqer, 81 FR 22122, 22124-27 (2016). --------------------------------------------------------------------------- Finally, the evidence shows that Respondent has now been excluded ``from participation in any Federal health care program'' based on his state conviction for Medicaid fraud, as well as his felony convictions relating to the distribution of controlled substances. See 42 U.S.C. 1320a-7(a)(1) & (4); see also GX 12. Respondent has thus been excluded pursuant to the mandatory exclusion provisions of 42 U.S.C. 1320a-7(a). Accordingly, his registration (and DATA-Waiver number) are also subject to revocation under 21 U.S.C. 824(a)(5). Order Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration FM1335353 issued to John P. Moore, III, M.D., be, and it hereby is, revoked. I further order that DATA-Waiver identification number XM1335353 issued to John P. Moore, II, M.D., be, and it hereby is, revoked. This Order is effective immediately.\8\ --------------------------------------------------------------------------- \8\ Based on the same reasons that led the Ohio Board to immediately suspend Respondent's medical license, I conclude that the public interest necessitates that this Order be effective immediately. 21 CFR 1316.67. Dated: February 2, 2017. Chuck Rosenberg, Acting Administrator. [FR Doc. 2017-02729 Filed 2-9-17; 8:45 am] BILLING CODE 4410-09-P
![10398 Federal Register / Vol. 82, No. 27 / Friday, February 10, 2017 / Notices
post-hearing briefs and statements submitted in this investigation may be E. Alex Bell Road, Centerville, Ohio. Id.
responding to matters raised at the disclosed to and used: (i) By the at 2. The Order further alleged that this
hearing should be filed not later than Commission, its employees and Offices, registration does not expire until
5:15 p.m., April 11, 2017. In the event and contract personnel (a) for January 31, 2018. Id.
that, as of the close of business on developing or maintaining the records The Show Cause Order further alleged
March 21, 2017, no witnesses are of this or a related proceeding, or (b) in three separate grounds for the proposed
scheduled to appear at the hearing, the internal investigations, audits, reviews, action. First, it alleged that on April 5,
hearing will be canceled. Any person and evaluations relating to the 2016, Respondent pled guilty in the
interested in attending the hearing as an programs, personnel, and operations of Ohio courts to four state felony counts
observer or nonparticipant should the Commission including under 5 of knowingly selling or offering to sell
contact the Office of the Secretary at U.S.C. Appendix 3; or (ii) by U.S. zolpidem and diazepam (both schedule
202–205–2000 after March 21, 2017, for government employees and contract IV controlled substances) and Suboxone
information concerning whether the personnel for cybersecurity purposes. (buprenorphine and naloxone, a
hearing will be held. The Commission will not otherwise schedule III controlled substance), as
Written Submissions: In lieu of or in disclose any CBI in a manner that would well as a further felony count of
addition to participating in the hearing, reveal the operations of the firm knowingly permitting real estate or
interested parties are invited to submit supplying the information. other premises to be used for drug
written statements concerning this Summaries of Written Submissions: trafficking. Id. (citing Ohio Rev. Code
investigation. All written submissions The Commission intends to publish §§ 2925.03, 2925.13). See also 21 U.S.C.
should be addressed to the Secretary, summaries of the written submissions 824(a)(2).
and should be received not later than filed by interested persons. Persons Second, the Show Cause Order
5:15 p.m., April 21, 2017. All written wishing to have a summary of their alleged that on May 11, 2016,
submissions must conform with the submission included in the report Respondent’s Ohio medical license was
provisions of section 201.8 of the should include a summary with their suspended and that he is currently
Commission’s Rules of Practice and written submission. The summary may without authority to dispense controlled
Procedure (19 CFR 201.8). Section 201.8 not exceed 500 words, should be in substances in the State in which he is
and the Commission’s Handbook on MSWord format or a format that can be registered with the Agency. GX 2, at 2
Filing Procedures require that interested easily converted to MSWord, and (citing 21 U.S.C. 802(21), 824(a)(3)).
parties file documents electronically on should not include any CBI. The And third, the Show Cause Order
or before the filing deadline and submit summary will be published as provided alleged that Respondent has also been
eight (8) true paper copies by 12:00 p.m. if it meets these requirements and is ‘‘convicted of felony Medicaid fraud,’’
eastern time on the next business day. germane to the subject matter of the thus rendering him subject to
In the event that confidential treatment mandatory exclusion from participation
investigation. The Commission will
of a document is requested, interested in federal health care programs under 42
identify the name of the organization
parties must file, at the same time as the U.S.C. 1320a–7(a) and subjecting his
furnishing the summary and will
eight paper copies, at least four (4) registration to revocation for this reason
include a link to the Commission’s
additional true paper copies in which as well. GX 2, at 2 (citing 21 U.S.C.
Electronic Document Information
the confidential information must be 824(a)(5)).
System (EDIS) where the full written The Show Cause Order also notified
deleted (see the following paragraph for submission can be found.
further information regarding Respondent of his right to request a
confidential business information or By order of the Commission. hearing on the allegations of the Order
‘‘CBI’’). Persons with questions Issued: February 6, 2017. or to submit a written statement of
regarding electronic filing should Lisa R. Barton, position while waiving his right to a
contact the Office of the Secretary, Secretary to the Commission. hearing, the procedure for electing
Docket Services Division (202–205– [FR Doc. 2017–02752 Filed 2–9–17; 8:45 am] either option (including the time period
1802). BILLING CODE 7020–02–P
for filing), and the consequence of
Confidential Business Information: failing to elect either option as well as
Any submissions that contain CBI must the failure to do so in compliance with
also conform to the requirements of the Agency’s regulations. Id. at 3 (citing
section 201.6 of the Commission’s Rules DEPARTMENT OF JUSTICE 21 CFR 1301.43). Finally, the Show
of Practice and Procedure (19 CFR Drug Enforcement Administration Cause Order informed Respondent of
201.6). Section 201.6 of the rules his right to submit a corrective action
requires that the cover of the document John P. Moore, III, M.D.; Decision and plan under 21 U.S.C. 824(c)(2)(C). Id.
and the individual pages be clearly Order On or about June 30, 2016, the
marked as to whether they are the Government sent the Show Cause Order
‘‘confidential’’ or ‘‘non-confidential’’ On June 30, 2016, the Assistant by certified mail, return receipt
version, and that the CBI is clearly Administrator, Division of Diversion requested, addressed to Respondent at
identified by means of brackets. All Control, issued an Order to Show Cause his residence in the Correctional
written submissions, except for those to John P. Moore, III, M.D. (Respondent), Reception Center in Orient, Ohio. GX 5,
containing CBI, will be made available of Centerville, Ohio. The Show Cause Appendix A, at 1, 3–4. As evidenced by
for inspection by interested parties. Order proposed the revocation of the signed return receipt card, on July
In its request letter, the USTR stated Respondent’s DEA Certificate of
mstockstill on DSK3G9T082PROD with NOTICES
6, 2016, the Government accomplished
that his office intends to make the Registration No. FM1335353. GX 2, at 1. service.1 Id. at 3,
Commission’s first report available to With respect to the Agency’s
the public in its entirety, and asked that jurisdiction, the Show Cause Order 1 While I find that the mailing provided
the Commission not include any CBI or alleged that Respondent is the holder of constitutionally adequate service, the Government
also produced evidence showing that it had emailed
national security classified information Certificate of Registration No. a copy of the Show Cause Order to corrections
in the report that it delivers to the FM1335353, which ‘‘is valid for Drug officers at the Ohio Correctional Reception Center
USTR. All information, including CBI, Schedules II–V,’’ at the address of 950 and that Respondent was personally served with a
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![Federal Register / Vol. 82, No. 27 / Friday, February 10, 2017 / Notices 10399
On August 11, 2016, Respondent filed Respondent ‘‘was released from [prison] day . . . period’’ from the date of
a request for a hearing with the Office on approximately July 27, 2016’’ and service for requesting a hearing. Id. at 2.
of Administrative Law Judges and the that the Ohio Medical Board had However, the CALJ further noted that in
matter was assigned to Chief conducted a hearing on July 28, 2016, at contrast to several other agency
Administrative Law Judge John J. which he was physically present and regulations, including 21 CFR
Mulrooney, II (hereinafter, CALJ). GXs was represented by the same counsel 1316.47(a), which states that ‘‘[a]ny
3, 4. In his hearing request, that was representing him in the DEA person entitled to a hearing and desiring
Respondent’s counsel acknowledged proceeding. Id. at 2. The Government a hearing shall, within the period
that his request was out of time. GX 3, argues that ‘‘[e]ven if Respondent did permitted for filing, file a request for a
at 3. Respondent, however, invoked 21 not have timely access to mail for hearing,’’ (emphasis added), section
CFR 1316.47(b), which provides that communicating with his counsel 1316.47(b) sets no time limit for
‘‘[t]he Administrative Law Judge, upon regarding the’’ Show Cause Order, he requesting ‘‘a reasonable extension of
request and showing of good cause, may certainly could have done so on July 28 the time allowed for response to an
grant a reasonable extension of the time and thus, he has failed to offer good Order to Show Cause.’’ GX 9, at 2–3.
allowed for a response to an Order to cause for the untimely submission of his The CALJ concluded, however, that
Show Cause.’’ 2 Respondent thus argued hearing request. Id. While the regardless of whether he had authority
that ‘‘good cause exists for a reasonable Government acknowledged that it was to rule on a request for an extension
extension of time’’ to respond to the not prejudiced by Respondent’s filed more than 30 days after the date of
Show Cause Order because he ‘‘did not untimely hearing request, it argued that service of the Show Cause Order, ‘‘the
have timely access to his mail while Respondent was seeking to gain a Agency has made clear that it is
incarcerated.’’ GX 3, at 3. Respondent’s ‘‘tactical advantage’’ by drawing out the prepared to find a hearing waiver when
counsel further argued that the request proceedings in the hope that the Ohio an untimely hearing request is not
came ‘‘less than 7 days beyond the . . . Board would reinstate his license. Id. supported by good cause for its
30-day time frame for a response’’ and at 2–3. tardiness.’’ Id. at 3 (citing 21 CFR
that the Agency was not ‘‘materially Upon receipt of the Government’s 1301.43(d) (‘‘If any person entitled to a
prejudiced by the’’ delay. Id. motion, the CALJ provided Respondent hearing . . . fails to file a request for a
Upon receipt of Respondent’s hearing with an opportunity to respond to the hearing . . . such person shall be
request, the CALJ issued an order, Government’s motion and Respondent deemed to have waived the opportunity
directing, inter alia, that the filed a response. GXs 7, 8. Therein, for a hearing . . . unless such person
Government submit ‘‘proof of the date of Respondent explained that ‘‘[b]ecause of shows good cause for such failure.’’);
service’’ of the Show Cause Order, as [his] preoccupation with defending the Shannon L. Gallentine, 76 FR 45864,
well as a response to Respondent’s [State Board’s] allegations, he did not 45864 (2011)).
request for an extension or a motion to notify his counsel of the [DEA] matter The CALJ then found that while
terminate the proceeding. GX 4, at 1–2. until [t]he morning of August 8, 2016,’’ Respondent initially argued that he ‘‘did
In response, the Government timely on which date his ‘‘counsel immediately not have timely access to his mail while
submitted a motion to terminate the filed a request for [h]earing.’’ GX 8, at incarcerated,’’ once the Government
proceeding and opposing Respondent’s 1. After noting the Government’s refuted this argument (by showing that
request for an extension. GX 5. concession that the untimely filing of he had been released from custody on
Therein, the Government represented the request had not caused it prejudice, July 27, 2016), he then changed his
that the Show Cause Order had been Respondent ‘‘denie[d]’’ that he sought
position and maintained that his ‘‘pre-
served on Respondent by both certified the extension to obtain ‘‘a tactical
occupation’’ with the Ohio Board’s
mail which was received on July 6, advantage’’ and stated that he ‘‘is
hearing had led him to miss the filing
2016, as well as hand delivery by prison willing and able to defend his interests
deadline.4 GX 9, at 4. The CALJ rejected
personnel on July 7, 2016. Id. at 1–2. in this matter without a final
the latter explanation as sufficient to
The Government then noted that determination by the Ohio Medical
establish ‘‘good cause,’’ explaining that
Board.’’ Id. Respondent then argued that
‘‘in a regulatory environment where
copy of the order on July 7, 2016. GX 5, Appendix he had shown ‘‘good cause’’ under 21
A, at 2, 5. parallel proceedings . . . are common,
CFR 1316.47(b) based on ‘‘the
2 While Respondent cited this provision as
importance of the constitutionally even ubiquitous, ‘preoccupation’ borne
authority to excuse his untimely filing, it is clear
protected interest involved in this of participation in those proceedings,
that he submitted a hearing request which is also standing alone, cannot constitute good
subject to the good cause standard. See 21 CFR matter’’ and because only a ‘‘minor 2-
1301.43(d). The Agency has previously explained day extension’’ was requested.3 Id. at 1– cause. . . . [T]he Respondent’s only
on interlocutory review that ‘‘where an ALJ receives 2. obligation—and the[ ] only task
an untimely hearing request, it is within [the ALJ’s] Upon review, the CALJ granted the negligently accomplished—was to
authority to conduct such proceedings as are deliver his [Show Cause Order] to the
necessary to determine whether the respondent has Government’s motion to terminate the
established good cause.’’ Mark S. Cukierman, proceeding. GX 9, at 5. The CALJ noted attorney who was already representing
Denial of Interlocutory Appeal, Slip Op. at 7. This that the language of 21 CFR 1316.47(b) him on related proceedings.’’ Id.
is so even where a respondent does not establish ‘‘is arguably supportive of an Continuing, the CALJ explained that
good cause as part of the hearing request. Id. although it is ‘‘undeniably true that
However, as also explained in Cukierman, once the interpretation limiting the authority to
Government submits a request for final agency extend the time to file a hearing request counsel promptly attended to the matter
action to this Office, the forwarding of the record only during the time when the once the Respondent supplied the
divests the ALJ of authority to rule on whether there [Administrative Law] Judge has [Order], promptness on the part of his
mstockstill on DSK3G9T082PROD with NOTICES
is good cause to excuse an untimely request for a attorney can offer no dispensation here.
hearing and the timeliness of the hearing request is
potential jurisdiction over the case, to
to be reviewed by this Office. In those instances in wit, prior to the expiration of the thirty- No excuse has been propounded to
which a respondent submits a hearing request after
the Government has filed its Request for Final 3 In this filing, Respondent replied to the 4 Of course, Respondent’s initial contention is
Agency Action, the Government should inform the Government’s Motion to Terminate by challenging also refuted by the evidence that a correction officer
ALJ that the matter has been forwarded to this the Government’s Motion for Summary Disposition. hand-delivered the Show Cause Order to him on
Office and the ALJ should issue an order forwarding GX 8, at 2–3. I address these arguments later in this July 7, 2016, nearly three weeks before he was
the hearing request to this Office. Decision. released from prison.
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![10400 Federal Register / Vol. 82, No. 27 / Friday, February 10, 2017 / Notices
excuse his delay in providing his Government and make the following which included $5,531.08 in restitution
counsel with the’’ Order. Id. at 4–5. The findings of fact. to two entities. Id. at 19. Thus, I find
CALJ thus concluded that Respondent that Respondent has been convicted of
Findings
had not demonstrated ‘‘good cause’’ to felony offenses under Ohio law,
excuse his untimely filing and granted Respondent is the holder of DEA ‘‘relating to any substance defined in
the Government’s motion to terminate Certificate of Registration No. [the Controlled Substances Act] as a
the hearing. Id. at 5. FM1335353, as well DATA-Waiver controlled substance.’’ 21 U.S.C.
Thereafter, the Government submitted identification number XM1335353. GX 824(a)(2); see also Ohio Rev. Code
a Request for Final Agency Action and 1. Pursuant to his registration, § 2925.03(A)(1) (‘‘No person shall
an evidentiary record to my Office. As Respondent is authorized to dispense knowingly . . . [s]ell or offer to sell a
an initial matter, I agree with the CALJ controlled substances in schedules II controlled substance or a controlled
that Respondent has failed to through V as a practitioner and pursuant substance analog.’’); id.
demonstrate ‘‘good cause’’ to excuse the to his DATA-Waiver identification § 2925.03(C)(2)(a) (if drug is in
untimely filing of his hearing request. number, he is authorized to dispense or schedules III through V, offense is a fifth
prescribe schedule III–V narcotic degree felony). See also Ohio Rev. Code
While DEA has interpreted the ‘‘good
controlled substances which ‘‘have been § 2925.13(B) (‘‘No person who is the
cause’’ standard for assessing the
approved by the Food and Drug owner, lessee, or occupant, or who has
timeliness of hearing requests as
Administration . . . specifically for use custody, control, or supervision, of
encompassing cases of excusable
in maintenance or detoxification premises or real estate . . . shall
neglect, mistake or inadvertence, see
treatment’’ for up to 100 patients.’’ 21 knowingly permit the premises or real
Keith Ky Ly, 80 FR 29025, 29027 & n.2
CFR 1301.28(a) & (b)(iii); see also GX 1. estate . . . to be used for the
(2015) (citing Tony T. Bui, 75 FR 49979,
Respondent’s registered address is 950
49980 (2010)), Respondent has failed to commission of a felony drug offense by
E. Alex Bell Road, Centerville, Ohio; his
make a sufficient showing to warrant another person.’’).5
registration and the authority provided
relief. While Respondent initially by his DATA-Waiver number do not Moreover, on May 11, 2016, the State
claimed that his untimely filing should expire until January 31, 2018. GX 1. Medical Board of Ohio issued
be excused because he did not have On April 5, 2016, the Prosecuting Respondent a Notice of Immediate
timely access to his mail, the evidence Attorney for Greene County, Ohio Suspension and Opportunity for
shows that the Show Cause Order was issued an Information which charged Hearing, pursuant to which his license
hand-delivered to him. As for his Respondent with multiple felony to practice medicine and surgery in the
subsequent claim that his untimeliness controlled substance offenses under State was suspended. GX 6, Attachment
should be excused because he was Ohio law; the Information also charged 1, at 1. The Board’s Order was based on
preoccupied with the State Board Respondent with Medicaid Fraud. GX Respondent’s guilty pleas to the four
proceeding, Respondent has failed to 11, at 2–4 (citing Ohio Rev. Code felony counts of Trafficking in Drugs
explain why he was so pre-occupied § 2913.40(B) and (E); id. § 2925.03) With (Ohio Rev. Code § 2925.03) and the
with the Board proceeding in the three respect to the controlled substance felony count of Permitting Drug Abuse
weeks that passed from the date the offenses, Respondent was charged with, (Ohio Rev. Code § 2925.13). According
Order was hand delivered to him until inter alia: (1) Two counts of trafficking to the Medical Board’s Web site of
he was released from prison that he in zolpidem, a schedule IV controlled which I take official notice,6 on October
could not have devoted the de minimis substance, from ‘‘on or about February 19, 2016, the Board ordered the
amount of time it would have taken to 12, 2009 to September 30, 2014’’; (2) permanent revocation of Respondent’s
mail the Order to his attorney or to trafficking in suboxone, a schedule III license to practice medicine and surgery
personally prepare and mail his hearing controlled substance, ‘‘on or about based upon his convictions on the four
request. Moreover, even assuming that February 12, 2009’’; and (3) trafficking trafficking counts, as well as the single
Respondent was preoccupied with the in diazepam, a schedule IV controlled counts of Permitting Drug Abuse and
Board hearing during the day(s) on substance, also ‘‘on or about February Medicaid Fraud; this Order became
which the hearing took place, he offers 12, 2009.’’ Id. at 2–3 (citing Ohio Rev. effective the next day. See Ohio License
no explanation for why he did not Code § 2925.03). Finally, Respondent Center (John Pease Moore, III), https://
provide the Show Cause Order to his was charged with knowingly permitting license.ohio.gov/lookup/default.asp.
attorney for another 10 days after the real property to ‘‘be use for the (last visited February 1, 2017). I
Board hearing concluded. And as for commission of a felony drug offense, to therefore find that Respondent is
Respondent’s contention that his wit, trafficking . . . by another person.’’ currently without authority to dispense
untimeliness should be excused because Id. at 3–4 (citing Ohio Rev. Code controlled substances in Ohio.
of ‘‘the importance of the § 2925.13).
constitutionally protected interest The same day, Respondent appeared 5 See also Ohio Rev. Code § 2925.13(C)(3)
involved in this matter,’’ this is true of in court and pled guilty to each of these (‘‘Permitting drug abuse is a felony of the fifth
every case brought by the Government offenses. Id. at 11–12. On May 26, 2016, degree[.]’’).
against a registrant or applicant. It thus the state court entered judgment and 6 In accordance with the Administrative
provides no reason to excuse his Procedure Act (APA), an agency ‘‘may take official
sentenced Respondent to a term of notice of facts at any stage in a proceeding-even in
neglect, even if it the period of his imprisonment of 10 months on each of the final decision.’’ U.S. Dept. of Justice, Attorney
untimeliness would not prejudice the the above counts, but provided that the General’s Manual on the Administrative Procedure
Government. sentence for Medicaid Fraud and Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint
mstockstill on DSK3G9T082PROD with NOTICES
1979). In accordance with the APA and DEA’s
Accordingly, I conclude that permitting real property to be used for regulations, Respondent is ‘‘entitled on timely
Respondent has failed to established the commission of a drug offense were request to an opportunity to show to the contrary.’’
‘‘good cause’’ to excuse his untimely ‘‘to be served consecutively to each 5 U.S.C. 556(e); see also 21 CFR 1316.59(e). To
filing and has therefore waived his right other, but concurrently to the remaining allow Respondent the opportunity to refute the facts
of which I take official notice, Respondent may file
to a hearing. See 21 CFR 1301.43(d). I counts for a total sentence of 20 a motion for reconsideration within 15 calendar
therefore issue this Decision and Order months.’’ Id. at 14, 17. The court also days of the date of service of this Order which shall
based on the record submitted by the ordered that Respondent forfeit $85,000, commence on the date this Order is mailed.
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![Federal Register / Vol. 82, No. 27 / Friday, February 10, 2017 / Notices 10401
In addition, the record includes a July knowingly permitting real estate he registration (and DATA-Waiver number)
29, 2016 letter from the Office of owned or controlled to be used for drug are subject to revocation for this reason
Inspector General, Department of Health trafficking. See Ohio Rev. Code as well. 21 U.S.C. 824(a)(3).
and Human Services, to Respondent; the §§ 2925.03(A); 2925.13(B). Both of these Finally, the evidence shows that
letter notified Respondent that he was provisions are felony offenses under Respondent has now been excluded
‘‘being excluded from participation in Ohio law. Thus, I find that Respondent ‘‘from participation in any Federal
any capacity in the Medicare, Medicaid, ‘‘has been convicted of a felony offense health care program’’ based on his state
and all Federal health care programs as . . . relating to any substance defined in conviction for Medicaid fraud, as well
defined in section 1128B(f) of the Social [the CSA] as a controlled substance.’’ 21 as his felony convictions relating to the
Security Act . . . for the minimum U.S.C. 824(a)(2). This finding provides distribution of controlled substances.
period of 5 years.’’ GX 12, at 1. The reason alone to revoke Respondent’s See 42 U.S.C. 1320a–7(a)(1) & (4); see
letter explained that Respondent was registration and his DATA-Waiver also GX 12. Respondent has thus been
being excluded based on his ‘‘felony identification number. excluded pursuant to the mandatory
conviction[s]’’ for ‘‘a criminal offense Second, the evidence shows that exclusion provisions of 42 U.S.C.
related to the delivery of an item or based on his guilty pleas in the criminal 1320a–7(a). Accordingly, his registration
service under the Medicare or a State case, on May 11, 2016, the Ohio Board (and DATA-Waiver number) are also
health care program,’’ and for ‘‘criminal immediately suspended Respondent’s subject to revocation under 21 U.S.C.
offense[s] related to the unlawful license to practice medicine and surgery 824(a)(5).
manufacture, distribution, prescription, in the State, and that on October 20,
2016, the Board revoked his license. By Order
or dispensing of a controlled substance
as defined under Federal or State law.’’ virtue of the Board’s actions, Pursuant to the authority vested in me
Id. (citing 42 U.S.C. 1320a–7(a)(1) and Respondent lacks authority to dispense by 21 U.S.C. 824(a), as well as 28 CFR
(4)). controlled substances under the laws of 0.100(b), I order that DEA Certificate of
the State of Ohio, the State in which he Registration FM1335353 issued to John
Discussion is registered with DEA, and thus, he is P. Moore, III, M.D., be, and it hereby is,
Under Section 304(a) of the no longer a practitioner within the revoked. I further order that DATA-
Controlled Substances Act, ‘‘[a] meaning of the Act. See 21 U.S.C. Waiver identification number
registration pursuant to section 823 of 802(21) (defining ‘‘the term XM1335353 issued to John P. Moore, II,
[the Act] to . . . dispense a controlled ‘practitioner’ [to] mean[ ] a . . . M.D., be, and it hereby is, revoked. This
substance . . . may be suspended or physician . . . or other person licensed, Order is effective immediately.8
revoked by the Attorney General upon registered or otherwise permitted, by Dated: February 2, 2017.
a finding that the registrant— . . . the jurisdiction in which he Chuck Rosenberg,
practices . . . to distribute, dispense,
* * * * * Acting Administrator.
[or] administer . . . a controlled
(2) has been convicted of a felony under [FR Doc. 2017–02729 Filed 2–9–17; 8:45 am]
this subchapter . . . or any other law of the substance in the course of professional
practice’’); see also id. § 823(f) (directing BILLING CODE 4410–09–P
United States, or of any State, relating to any
substance defined in this subchapter as a that ‘‘[t]he Attorney General shall
controlled substance . . . ; register practitioners . . . if the
(3) has had his State license or registration applicant is authorized to dispense . . . DEPARTMENT OF JUSTICE
suspended, revoked, or denied by competent controlled substances under the laws of
State authority and is no longer authorized Bureau of Justice Statistics
the State in which he practices’’).
by State law to engage in the . . . dispensing As the Agency has long held, ‘‘[s]tate [OMB Number 1121–0102]
of controlled substances . . . ;
authorization to dispense or otherwise
* * * * * handle controlled substances is a Agency Information Collection
(5) has been excluded . . . from Activities; Proposed eCollection
prerequisite to the issuance and
participation in a program pursuant to eComments Requested; Extension of a
section 1320a–7(a) of Title 42. maintenance of a Federal controlled
substances registration.’’ Frederick Currently Approved Collection: Prison
21 U.S.C. 824(a). Marsh Blanton, 43 FR 27616 (1978). Population Reports: Summary of
The Government has ‘‘the burden of Because the possession of state Sentenced Population Movement—
proving that the requirements for such authority is a prerequisite to the National Prisoner Statistics
revocation or suspension pursuant to maintenance of a practitioner’s
section 304(a) . . . (21 U.S.C. 824(a) AGENCY: Bureau of Justice Statistics,
registration, the Agency has long held Department of Justice.
. . .) are satisfied. 21 CFR 1301.44(e). that revocation is the appropriate
Thus, even where a registrant waives his ACTION: 60-Day notice.
sanction whenever he is no longer
right to a hearing, the Government is authorized to dispense controlled SUMMARY: The Department of Justice
required to produce substantial substances under the laws of the State (DOJ), Office of Justice Programs,
evidence to support the proposed in which he practices medicine. See,
action. In this matter, having considered e.g., James L. Hooper, 76 FR 71371 measures, the revocation of his state authority
the evidence submitted by the (2011), pet. for rev. denied, 481 Fed. would still require that I revoke his DEA
Government, I conclude that there are Appx. 826 (4th Cir. 2012); Sheran Arden registration and DATA-waiver number. I further
three separate and independent grounds reject Respondent’s contention that I have
Yeates, M.D., 71 FR 39130, 39131 discretion in the case of a practitioner to not revoke
to revoke Respondent’s registration.
mstockstill on DSK3G9T082PROD with NOTICES
(2006); Dominick A. Ricci, 58 FR 51104, his registration based on his loss of state authority.
First, as found above, on May 26, See GX 8, at 2–3; see Hooper v. Holder, 481 Fed.
51105 (1993); Bobby Watts, 53 FR
2016, the Common Pleas Court of Appx. at 827–28; see also Rezik A. Saqer, 81 FR
11919, 11920 (1988); Blanton, 43 FR at
Greene County, Ohio entered a 22122, 22124–27 (2016).
27616.7 Accordingly, Respondent’s 8 Based on the same reasons that led the Ohio
judgment convicting Respondent of four
Board to immediately suspend Respondent’s
counts of trafficking in drugs (suboxone, 7 Thus, even if Respondent were to credibly medical license, I conclude that the public interest
zolpidem, and diazepam) under Ohio accept responsibility for his criminal conduct and necessitates that this Order be effective
law, as well as a single count of put forward sufficient evidence of remedial immediately. 21 CFR 1316.67.
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Document Created: 2017-02-11 18:15:19
Document Modified: 2017-02-11 18:15:19
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| FR Citation | 82 FR 10398 |
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