82 FR 19385 - David D. Moon, D.O.; Decision and Order
DEPARTMENT OF JUSTICE
Drug Enforcement Administration Federal Register Volume 82, Issue 80 (April 27, 2017)
Drug Enforcement Administration
Federal Register Volume 82, Issue 80 (April 27, 2017)
| Page Range | 19385-19390 | |
| FR Document | 2017-08452 |
[Federal Register Volume 82, Number 80 (Thursday, April 27, 2017)] [Notices] [Pages 19385-19390] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-08452] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Drug Enforcement Administration David D. Moon, D.O.; Decision and Order On December 8, 2015, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause to David D. Moon, D.O. (hereinafter, Registrant), the holder of Certificates of Registration Nos. M9879024, in Tulsa, Oklahoma, and BM2782692, in Las Vegas, Nevada, authorizing him to prescribe controlled substances in Schedules II through V.\1\ GX 4. The Show Cause Order proposed the revocation of his Certificates of Registration and the denial of any pending application for renewal or modification of Registrant's registrations on the grounds that: (1) Registrant does not have authority to dispense controlled substances in the States in which he is registered and (2) he has committed acts which render his registrations ``inconsistent with the public interest.'' \2\ Id. at 1 (citing 21 U.S.C. 824(a)(3) and (4)). --------------------------------------------------------------------------- \1\ The Registrant is also known in the Government's records as ``David DeWayne Moon.'' Government Exhibit (hereinafter, GX) 13 and 14. \2\ The Show Cause Order also proposed the denial of any applications by Registrant for any other DEA registrations. --------------------------------------------------------------------------- As the jurisdictional basis for the proceeding, the Show Cause Order alleged that both of Registrant's registrations expire on January 31, 2018. Id. As the substantive grounds for the proceeding, the Show Cause Order alleged that on June 18, 2015, the Oklahoma State Board of Osteopathic Examiners revoked his Oklahoma osteopathic license, and that on August 11, 2015, the Nevada State Board of Osteopathic Medicine revoked his Nevada osteopathic license, which resulted in the status of his Nevada State Board of Pharmacy license becoming ``inactive.'' Id. at 2. Thus, due to the actions of the two Boards, the Registrant is without authority to handle controlled substances in the States in which he is registered with DEA. The Show Cause Order alleged that on April 17, 2013, Registrant was arrested at McCarran International Airport while proceeding through a Transportation Security Administration checkpoint. Id. It further alleged that law enforcement officers found in his carry-on baggage drugs in pill bottles labeled for other people, drugs in unlabeled pill bottles, and loose drugs. Id. Based on the airport [[Page 19386]] arrest, the Show Cause Order alleged that the Registrant possessed controlled substances with the intent to redistribute them to individuals for whom they were not originally dispensed, in violation of 21 U.S.C. 829(a) and (b), 21 U.S.C. 841(a)(1), 21 U.S.C. 842(a), 21 U.S.C. 843(a)(3), 21 U.S.C. 844(a), 21 U.S.C. 844a(a), and Nev. Rev. Stat. Sec. Sec. 453-337-.338. Id. at 4. The Show Cause Order also alleged, based on the airport arrest, that Registrant possessed prescription bottles without a label or with an unreadable or illegible label in violation of 21 U.S.C. 825(a) and 21 U.S.C. 842(a). Id. Based on a subsequent Government investigation and the execution of an Administrative Inspection Warrant (hereinafter, AIW), the Show Cause Order alleged that Registrant accepted controlled substances from non- DEA registered sources (patients) and redistributed those illicitly obtained controlled substances to other patients in violation of 21 U.S.C. 844(a) and 21 U.S.C. 841(a)(1), respectively. Id. Based on the execution of the AIW, the Show Cause Order also alleged that Response could not produce 32 controlled substance invoices in violation of 21 U.S.C. 842(a)(5) and 21 CFR 1304.21(a). Id. The Show Cause Order also alleged, based on the AIW, that Registrant failed to take a biennial inventory of controlled substances stored at one of his registered locations in violation of 21 U.S.C. 827(a) and (b) and 21 CFR 1304.11(c). Id. Also pursuant to the AIW, the Show Cause Order alleged that Registrant had significant shortages of controlled substances at his registered address in Tulsa, Oklahoma and was missing purchase records and that Registrant failed to maintain accurate and complete records and to account for controlled substances in violation of 21 U.S.C. 827(a)(3), 21 U.S.C. 842(a)(5), 21 CFR 1304.03, 21 CFR 1304.04, and 21 CFR 1304.21. Id. at 4-5. Based on another Government investigation, the Show Cause Order alleged that Registrant issued at least 55 controlled substance prescriptions in Nevada under a registration which listed his registered address in Oklahoma in violation of 21 U.S.C. 822(e) and 21 CFR 1301.12(a) and (b)(3). Id. at 5. The Show Cause Order also notified Registrant of his right to request a hearing on the allegations or to submit a written statement while waiving his right to a hearing, the procedure for electing each option, and the consequence for failing to elect either option. Id. at 5-6 (citing 21 CFR 1301.43). Adequacy of Service and Waiver According to the ``Affidavit of Service of Order to Show Cause'' submitted by a Diversion Investigator (hereinafter, DI) assigned to the DEA Tulsa Resident Office, on January 7, 2016, ten separate copies of the Show Cause Order were sent to Registrant by certified mail, first- class mail, and electronic mail to his registered addresses, as well as his last-known home and electronic mail addresses. GX 5. Specifically, the DI stated that the Government served the Show Cause Order on Registrant (1) by certified mail, return receipt requested addressed to Registrant's registered address at 11445 East 20th Street, Tulsa, Oklahoma 74128; (2) by regular first-class U.S. mail addressed to Registrant's registered address at 11445 East 20th Street, Tulsa, Oklahoma 74128; (3) by certified mail, return receipt requested addressed to Registrant's registered address at 241 N. Buffalo Drive, Bldg. 1, Las Vegas, Nevada 89145; (4) by regular first-class U.S. mail addressed to Registrant's registered address at 241 N. Buffalo Drive, Bldg. 1, Las Vegas, Nevada 89145; (5) by certified mail, return receipt requested addressed to Registrant's last known home address in Oklahoma at 2136 East 25th Street, Tulsa 74114; (6) by regular first-class U.S. mail addressed to Registrant's last known home address in Oklahoma at 2136 East 25th Street, Tulsa 74114; (7) by certified mail, return receipt requested addressed to Registrant's last known home address in Nevada at 2814 Soft Horizon Way, Las Vegas 89135; (8) by regular first- class U.S. mail addressed to Registrant's last known home address in Nevada at 2814 Soft Horizon Way, Las Vegas 89135; (9) by electronic mail at the email address that appears in DEA's registration database for Registrant's Tulsa registered location; and (10) by electronic mail at the email address that appears in DEA's registration database for Registrant's Las Vegas registered location.\3\ Id. at 1-2. --------------------------------------------------------------------------- \3\ In Mikhayl Soliman, 81 FR 47826 (2016), I acknowledged that service by email has its limitations. See Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1017-18 (9th Cir. 2002). Here, the Government employed multiple means to serve Registrant and, as in Soliman, used the email address Registrant had previously provided it and did not receive either an error or an undeliverable message. --------------------------------------------------------------------------- According to the ``Supplemental Affidavit of Service of Order to Show Cause'' (hereinafter, Supplemental Affidavit) submitted by the Tulsa Resident Office DI, the certified mail, return receipt and regular first-class mailings addressed to Registrant's registered address in Tulsa, Oklahoma were returned with the notation ``return to sender, vacant.'' GX 6, at 1. The Supplemental Affidavit stated that the mailings addressed to Registrant's registered address in Las Vegas and his last known home address in Oklahoma were not returned and the Government did not receive the certified return receipt green cards for those mailings sent certified mail, return receipt. Id. at 2. The Supplemental Affidavit stated that the regular first-class mailing addressed to Registrant's last known home address in Las Vegas was not returned. Id. at 3. The Supplemental Affidavit stated that the certified mail, return receipt mailing addressed to Registrant's last known home address in Las Vegas was returned with the notation ``unclaimed.'' Id. at 2. According to the Supplemental Affidavit, the electronic mailings did not generate any error message that they were not sent successfully or any notification that they were undeliverable. Id. at 3. I find that the Government's service of the Show Cause Order on Registrant was legally sufficient. According to the Supreme Court, ``due process does not require actual notice.'' \4\ Jones v. Flowers, 547 U.S. 220, 225 (2006) (citing Dusenbery v. United States, 534 U.S. 161, 170 (2002)). Instead, the Court has repeatedly stated that, ``due process requires the government to provide `notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' '' Jones v. Flowers, supra, 547 U.S. at 226 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Moreover, ``the Due Process Clause does not require . . . heroic efforts by the Government'' to find Registrant. Dusenbery, supra. --------------------------------------------------------------------------- \4\ Nevertheless, I note that only three of the Government's ten attempts to provide notice were clearly ineffective; the other seven may very well have been effective. --------------------------------------------------------------------------- Here, the Government mailed the Show Cause Order by certified mail and by regular first-class mail to Registrant's addresses of record and last-known home addresses. The Government also emailed the Order to Show Cause to the email addresses which Registrant had provided to the Government. I find therefore that the Government's efforts were reasonably calculated under all the circumstances to apprise Registrant of the Order to Show Cause and to afford him an opportunity to present his objections. On November 4, 2016, the Government submitted a Request for Final Agency Action (hereinafter, [[Page 19387]] RFAA) and an evidentiary record to support its proposed action. On March 21, 2017, it updated its RFAA representing that ``because Registrant has not requested a hearing within 30 days of any receipt of the . . . [Order to Show Cause] and has not otherwise corresponded or communicated with DEA regarding the . . . [Order to Show Cause], including the filing of any written statement in lieu of a hearing, he has waived his right to a hearing.'' Id. at 4. Based on the Government's representations and my review of the record, I find that more than 30 days have now passed since the date on which Registrant was served with the Show Cause Order and neither Registrant, nor anyone purporting to represent him, has requested a hearing or submitted a written statement while waiving his right to a hearing. Accordingly, I find that Registrant has waived his right to a hearing and his right to submit a written statement. 21 CFR 1301.43(d). I therefore issue this Decision and Order based on the record submitted by the Government. 21 CFR 1301.43(e). Findings of Fact Registrant's DEA Registrations Registrant currently holds DEA practitioner registrations BM9879024 and BM2782692, pursuant to which he is authorized to dispense controlled substances in Schedules II through V. GX 13 and 14. These registrations do not expire until January 31, 2018. Id. DEA practitioner registration BM9879024 is assigned to Registrant at 11445 East 20th Street, Tulsa, OK 74128. GX 14, at 1. DEA practitioner registration BM2782692 is assigned to Registrant at ``Accelerated Rehab & Pain Ctr, 241 N. Buffalo Drive, Bldg. 1, Las Vegas, NV 89145.'' GX 13, at 1. However, from August 11, 2014 until December 15, 2014, the address associated with Registrant's BM2782692 registration was 11445 East 20th Street, Tulsa, OK 74128. Id. On December 15, 2014, Registrant changed the address associated with registration number BM2782692 to 241 N. Buffalo Drive, Bldg. 1, Las Vegas, NV 89145. Id. The Status of Registrant's State Licenses By Order dated June 18, 2015, the Oklahoma State Board of Osteopathic Examiners revoked Registrant's license number 2965 to practice osteopathic medicine in the State of Oklahoma. GX 7. Effective August 11, 2015, the Nevada State Board of Osteopathic Medicine revoked Registrant's license number 705 to practice osteopathic medicine in the State of Nevada. GX 8, at 4. Also, the status of Registrant's Nevada State Board of Pharmacy license number CS07559 is ``revoked by other agency.'' GX 9.\5\ --------------------------------------------------------------------------- \5\ I take official notice that the online records of the Oklahoma State Board of Osteopathic Examiners and the Nevada State Board of Osteopathic Medicine show Registrant does not currently possess a license issued by the Oklahoma State Board of Osteopathic Examiners or the Nevada State Board of Osteopathic Medicine. Under the Administrative Procedure Act, an agency ``may take official notice of facts at any stage in a proceeding--even in the final decision.'' United States Department of Justice, Attorney General's Manual on the Administrative Procedure Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). --------------------------------------------------------------------------- Arrest of Registrant On April 17, 2013, Registrant was arrested as he attempted to pass through a McCarran International Airport Transportation Security Administration checkpoint with an unregistered firearm. GX 10, at 2-3. Law enforcement officers found a large quantity of pills in Registrant's carry-on bag along with the firearm. Id. According to the Las Vegas Metropolitan Police Department Arrest Report (hereinafter, Arrest Report), Registrant was ``arrested for possession of a controlled substance with intent to sell/distribute schedule three, possession of a controlled substance with intent to sell/distribute schedule four, possession of an unregistered firearm, and possession of hypodermic devices.'' Id. at 7. According to the Arrest Report, Registrant possessed controlled substances with the intent to redistribute them to individuals for whom they were not originally dispensed. Id. at 4-7. The Arrest Report contained a list of pills seized from Registrant at the time of his arrest. Id. at 4-5. Other than stating that the author of the Arrest Report, ``Detective Shulke (phonetic), and Drug Enforcement Administration Special Agent C. Johnson conducted an inventory of the pharmaceutical products located in Moon's (phonetic) possession,'' the Arrest Report did not include factual support for the officers' conclusions that the seized pills were the controlled substances the Arrest Report stated them to be. Id. at 4. It did not, for example, state that the officers submitted the seized pills for lab testing or analyzed them using a resource that identified them based on size, shape, color, and imprint. Thus, I cannot place any weight on the statements in the Arrest Report that the seized pills were, in fact, controlled substances. The Government has produced no other evidence establishing that any of the pills seized from Registrant on the date he was arrested were controlled substances. Further, while the Arrest Report recounted Registrant ``simply'' stating that ``some of his folks that he had previously treated were simply trying to destroy their medication, and . . . [Registrant] was willing to take possession of those medications again later to distribute to those that are indigent and in need,'' the Arrest Report never stated that Registrant admitted possessing controlled substances not prescribed to himself or intended to redistribute controlled substances to individuals for whom they were not originally dispensed.\6\ Id. at 6. --------------------------------------------------------------------------- \6\ In this portion of the Arrest Report, Registrant did not admit taking possession of and redistributing controlled substances, only ``medications.'' Id. at 6. Also according to the Arrest Report, Registrant ``saw nothing wrong with his possession of the controlled substances.'' Id. at 3. However, this statement is imprecise; it could have concerned Registrant's possession of the hydrocodone tablets the Arrest Report stated were in a prescription bottle bearing Registrant's name. Id. at 4. --------------------------------------------------------------------------- Similarly, the record contains scant evidence regarding ``the unreadableness/illegibility of some labels on the prescription bottles and the absence of any label on other prescription bottles.'' GX 4, at 4. However, as stated above, the Arrest Report did not provide a basis for the officers' conclusions that the seized pills were controlled substances. Further, nothing else in the record established that the seized pills were controlled substances. Since the statutory sections cited in the Show Cause Order regarding these allegations only apply to controlled substances, and the record does not contain substantial evidence that the pills seized from Registrant at McCarran International Airport were, in fact, controlled substances, I cannot place any weight on the evidence in the record to support these alleged violations.'' \7\ --------------------------------------------------------------------------- \7\ While substantial evidence regarding these allegations may exist due to the Oklahoma State Board of Osteopathic Examiners Order of Probation with Conditions concerning David Moon, D.O., dated December 10, 2014 and effective December 31, 2014, the Order of Probation with Conditions was not submitted as part of the RFAA. --------------------------------------------------------------------------- Investigations of Registrant After Registrant's arrest, the Government undertook a multi-faceted investigation of Registrant. According to the affidavit of a DI assigned to DEA's Tulsa Resident Office, on May 2, 2013, she and other Investigators executed an Administrative Inspection Warrant at Registrant's Oklahoma registered address. GX 12, at 1. At that time, she [[Page 19388]] reviewed all pertinent documents and controlled substances records that Registrant was required to keep. Id. She found that Registrant failed to maintain a biennial inventory. Id. According to the Tulsa DI's affidavit, she issued administrative subpoenas to five entities for a complete sales history of all of Registrant's controlled substances purchases for the previous two years. Id. In comparing the information received from the five administrative subpoenas with the records Registrant provided during the inspection, she identified 32 invoices for controlled substances that Registrant failed to produce during the administrative inspection of May 2, 2013. Id. at 2. While the Government submitted evidence concerning other portions of its AIW investigation of Registrant, GX 11 and 12, the evidence lacked a sufficient foundation. The evidence consisted of a copy of the AIW, a portion of the affidavit of a DI who participated in the execution of the AIW, and ``a complete and accurate copy of the DEA Computation Chart'' prepared as part of the DI's accountability audit. Id. These materials did not, however, provide a sufficient foundation or sufficient detail concerning the procedure followed during the audit of Registrant. Thus, I cannot place any weight on this evidence. Further, no portion of these materials addressed the allegations in the AIW portion of the Show Cause Order that Registrant accepted controlled substances from non-DEA registered sources and redistributed those illicitly obtained controlled substances to other patients. GX 4, at 4. I examined the entire record for evidence concerning these two allegations. The Arrest Report stated that Registrant possessed a ``large quantity'' of ``what appeared to be prescription medication'' that ``belonged to various family members and former patients.'' GX 10, at 3. As I stated above, however, the Arrest Report did not contain factual support that the seized pills were controlled substances. Thus, I cannot place any weight on that evidence in the Arrest Report. For the same reason, the Arrest Report evidence cannot support the AIW- related allegations that Registrant accepted controlled substances from non-DEA registered sources and redistributed those illicitly obtained controlled substances to other patients. I found no other evidence in the record that supports these two AIW-related allegations. According to the affidavit of a Diversion Group Supervisor assigned to the DEA Las Vegas District Office, on October 30, 2014, she and other Investigators conducted a Scheduled Investigation at a SAV-ON Pharmacy in Las Vegas, Nevada. GX 15, at 1. At that time, the Investigators reviewed six randomly selected bundles of prescriptions and noticed prescriptions written by Registrant during a period when he did not have a DEA registration in the State of Nevada. Id. On November 3, 2014, the Investigators obtained copies of Registrant's controlled substance prescriptions filled at that SAV-ON Pharmacy in Las Vegas from August 11, 2014 through October 29, 2014. Id. I examined each of prescriptions the Government obtained from the Las Vegas SAV-ON Pharmacy. Based on my review of this evidence, from August 11, 2014 through October 29, 2014, Registrant issued at least 55 controlled substance prescriptions for drugs including oxycodone (23), morphine (17), adderall (six), tapentadol (six), methadone (two), and hydrocodone (one) on prescriptions showing Registrant's name as well as ``Accelerated Rehabilitation & Pain Center'' and its Las Vegas, Nevada contact information, Registrant's Nevada license number, and DEA registration number BM2782692. Discussion Under Section 304 of the Controlled Substances Act (hereinafter, CSA), ``[a] registration . . . to . . . dispense a controlled substance . . . may be . . . revoked by the Attorney General upon a finding that the registrant . . . has had his State license or registration . . . revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances . . . .'' 21 U.S.C. 824(a)(3). Section 304 also provides that a registration may be revoked ``upon a finding that the registrant . . . has committed such acts as would render his registration under section 823 of this title inconsistent with the public interest as determined under such section.'' Id. Sec. 824(a)(4). In making the public interest determination, the CSA requires the consideration of the following factors: (1) The recommendation of the appropriate State licensing board or professional disciplinary authority. (2) The applicant's experience in dispensing, or conducting research with respect to controlled substances. (3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances. (4) Compliance with applicable State, Federal, or local laws relating to controlled substances. (5) Such other conduct which may threaten the public health and safety. Id. Sec. 823(f)(1)-(5). ``[T]hese factors are . . . considered in the disjunctive.'' Robert A. Leslie, M.D., 68 FR 15227, 15230 (2003). It is well settled that I ``may rely on any one or a combination of factors and may give each factor the weight [I] deem[ ] appropriate in determining whether'' to revoke a registration. Id.; see also MacKay v. Drug Enforcement Admin., 664 F.3d 808, 816 (10th Cir. 2011); Volkman v. DEA, 567 F.3d 215, 222 (6th Cir. 2009); Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005). Moreover, while I am required to consider each of the factors, I ``need not make explicit findings as to each one.'' MacKay, supra, 664 F.3d at 816 (quoting Volkman, 567 F.3d at 222); see also Hoxie, supra, 419 F.3d at 481.\8\ --------------------------------------------------------------------------- \8\ ``In short, this is not a contest in which score is kept; the Agency is not required to mechanically count up the factors and determine how many favor the Government and how many favor the registrant. Rather, it is an inquiry which focuses on protecting the public interest; what matters is the seriousness of the registrant's misconduct.'' Jayam Krishna-Iyer, M.D., 74 FR 459, 462 (2009). Accordingly, as the Tenth Circuit has recognized, findings under a single factor can support the revocation of a registration. MacKay, supra, 664 F.3d at 821. Likewise, findings under a single factor can support the denial of an application. --------------------------------------------------------------------------- Under DEA's regulation, ``[a]t any hearing for the revocation or suspension of a registration, the Administration shall have the burden of proving that the requirements for such revocation or suspension pursuant to . . . 21 U.S.C. [Sec. ] 824(a) . . . are satisfied.'' 21 CFR 1301.44(e). The Government retains the burden of providing substantial evidence to support the proposed action even when the registrant does not request a hearing. In this case, I conclude that the record supports two independent grounds for revoking Registrant's registrations. First, Registrant does not possess authority to dispense controlled substances under the laws of Oklahoma or Nevada, the States in which he is registered. 21 U.S.C. 824(a)(3). Second, Registrant violated multiple controlled substances- related regulatory requirements incumbent on registrants, thereby rendering his registrations ``inconsistent with the public interest.'' Id. Sec. 824(a)(4). Registrant's Lack of State Authority 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 [[Page 19389]] condition for obtaining and maintaining a registration. Frederick Marsh Blanton, 43 FR 27616 (1978) (``State authorization to dispense or otherwise handle controlled substances is a prerequisite to the issuance and maintenance of a Federal controlled substances registration''). See also Rezik A. Saqer, 81 FR 22122, 22126 (2016) (``DEA has interpreted the CSA in this manner for nearly 40 years.'') and James Hooper, 76 FR 71371 (2011) (collecting cases), pet for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012). As DEA has repeatedly held, this rule derives from multiple provisions of the CSA. First, in section 802(21), Congress defined 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 . . . .'' 21 U.S.C. 802(21). Second, Congress directed that 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.'' Id. Sec. 823(f). Third, Congress authorized revocation ``upon a finding that the registrant . . . has had his State license . . . suspended [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.'' Id. Sec. 824(a)(3). Here, the Government has provided substantial evidence establishing that Registrant no longer possesses authorization to dispense controlled substances in Oklahoma and Nevada, the States in which he is registered. As found above, on June 18, 2015, the Oklahoma State Board of Osteopathic Examiners revoked Registrant's osteopathic license, GX 7, and effective August 11, 2015, the Nevada State Board of Osteopathic Medicine revoked his osteopathic license. GX 8. See also GX 9. Accordingly, I find the Government has proved by substantial evidence that Registrant's authorizations to prescribe controlled substances in both Oklahoma and Nevada have been revoked and I take official notice that both States' revocations remain in place as of the date of this Decision and Order. I, therefore, find that Registrant is currently without authority to dispense controlled substances in Oklahoma and Nevada, the States in which he is registered, and he is, therefore, not entitled to maintain his DEA registrations. Frederick Marsh Blanton, supra. Accordingly, I will order that his two registrations, BM9879024 and BM2782692, be revoked and that any pending application for the renewal or modification of these registrations be denied. 21 U.S.C. 824(a)(3), id. Sec. 823(f). Acts Inconsistent With the Public Interest Pursuant to section 304(a)(4), the Attorney General is also authorized to revoke a registration ``upon a finding that the registrant . . . has committed such acts as would render his registration under section 823 of this title inconsistent with the public interest as determined under such section.'' 21 U.S.C. 824(a)(4). In this matter, while I have considered all of the factors, I find the Government's evidence as to factors two and four dispositive.\9\ I find that the record taken as a whole provides substantial evidence that Registrant violated provisions of the CSA requiring (1) the holding of a separate registration; (2) the taking of a biennial inventory; and (3) the maintenance of ``complete and accurate'' records. --------------------------------------------------------------------------- \9\ As to factor one, there is no evidence that either the Oklahoma State Board of Osteopathic Examiners or the Nevada State Board of Osteopathic Medicine made a recommendation to DEA; both, however, revoked Registrant's licenses to practice osteopathic medicine. As to factor three, although the record contains evidence concerning Registrant's arrest at McCarran International Airport, I acknowledge that there is no evidence that Registrant has been convicted of an offense under Federal, Oklahoma, or Nevada law ``relating to the manufacture, distribution or dispensing of controlled substances.'' 21 U.S.C. 823(f)(3). However, there could be any number of reasons why a person who has engaged in criminal misconduct may never have been convicted of an offense under this factor, let alone have been prosecuted for one. Dewey C. MacKay, 75 FR 49956, 49973 (2010), pet. for rev. denied, MacKay v. Drug Enforcement Admin., 664 F.3d 808 (10th Cir. 2011). The DEA has therefore held that ``the absence of such a conviction is of considerably less consequence in the public interest inquiry'' and is therefore not dispositive. Id. The Government did not allege in the Show Cause Order any misconduct exclusively with respect to factor five. --------------------------------------------------------------------------- Factors Two and Four--The Registrant's Experience in Dispensing Controlled Substances and Compliance With Applicable Laws Related to Controlled Substances The Dispensing Allegations The CSA requires a ``separate registration . . . at each principal place of business or professional practice where the applicant . . . distributes . . . or dispenses controlled substances . . . .'' 21 U.S.C. 822(e)(1). See also 21 CFR 1301.12(a); Clarification of Registration Requirements for Individual Practitioners, 71 FR 69478 (2006); Joe W. Morgan, 78 FR 61961 (2013). The CSA's definition of ``dispense'' explicitly includes the prescribing of a controlled substance. 21 U.S.C. 802(10). Based on my review of the evidence submitted by the Government, the Registrant issued, from August 11, 2014 through October 29, 2014, at least 55 controlled substance prescriptions on prescriptions showing Registrant's name as well as ``Accelerated Rehabilitation & Pain Center'' and its Las Vegas, Nevada contact information, Registrant's Nevada license number, and DEA registration number BM2782692. Supra. Also during this time period, according to the evidence submitted by the Government, the address associated with DEA registration BM2782692 was in Oklahoma. Supra. The Order to Show Cause alleged that, by issuing these 55 prescriptions ``in one state under a DEA registration issued for another state,'' Registrant violated 21 U.S.C. 822(e) and 21 CFR 1301.12(a) and (b)(3). GX 4, at 5. These legal provisions, however, do not concern issuing a prescription ``in one state under a DEA registration issued for another state.'' Id. Instead, they require a separate registration at each principal place of business or professional practice where controlled substances are dispensed. Under 21 CFR 1306.05(a), controlled substance prescriptions are to ``bear . . . the name, address and registration number of the practitioner,'' among other things. Registrant's address on the 55 prescriptions the Government submitted is in Nevada. Thus, I conclude that Registrant maintained a principal place of business or professional practice in Nevada from August 11, 2014 through October 29, 2014 from which he issued at least 55 prescriptions for controlled substances. During this period, however, Registrant was not registered with the DEA in Nevada. Supra. Thus, I find that Registrant violated the separate registration requirements of 21 U.S.C. 822(e) and 21 CFR 1301.12(a) and (b)(3). The Inventory and Recordkeeping Allegations The CSA requires ``every registrant . . . as soon . . . as such registrant first engages in the . . . dispensing of controlled substances, and every second year thereafter, [to] make a complete and accurate record of all stocks thereof on hand . . . .'' 21 U.S.C. 827(a)(1). See also 21 U.S.C. 842(a)(5) (``unlawful acts'' include ``to refuse or negligently fail to make, keep, or furnish any record, report, notification, declaration, order or order form, statement, invoice, or information required . . .''). As found [[Page 19390]] above, during the execution of the AIW, Registrant could not produce a biennial inventory. Supra. Thus, I find that Registrant violated the CSA by failing to maintain a biennial inventory. The CSA also requires registrants to maintain, on a current basis, complete and accurate records of each controlled substance received or dispensed. See 21 U.S.C. 827(a)(3) and 21 CFR 1304.21(a). See also 21 U.S.C. 842(a)(5). According to the DI, during the administrative inspection of May 2, 2013, Registrant failed to produce 32 invoices for controlled substances he had purchased. Supra. Thus, I find that Registrant violated the CSA by failing to comply with its recordkeeping requirements concerning controlled substances. Order Pursuant to the authority vested in me by 21 U.S.C. 824(a) and 21 U.S.C. 823(f), as well as 28 CFR 0.100(b), I order that DEA Certificates of Registration BM9879024 and BM2782692 issued to David D. Moon, D.O., be, and they hereby are, revoked. I further order that any pending application of David D. Moon, D.O., to renew or modify these registrations, as well as any other pending application, be, and it hereby is, denied. This order is effective May 30, 2017. Dated: April 17, 2017. Chuck Rosenberg, Acting Administrator. [FR Doc. 2017-08452 Filed 4-26-17; 8:45 am] BILLING CODE 4410-09-P
![Federal Register / Vol. 82, No. 80 / Thursday, April 27, 2017 / Notices 19385
an active registration and that the controlled substance in the course of DEPARTMENT OF JUSTICE
Agency has jurisdiction.4 professional practice.’’ 21 U.S.C.
Respondent is also the holder of 802(21). Second, in setting the Drug Enforcement Administration
license number DR–36651, pursuant to requirements for obtaining a
which he is authorized to practice practitioner’s registration, Congress David D. Moon, D.O.; Decision and
medicine as a physician by the Medical directed that ‘‘[t]he Attorney General Order
Board of Colorado. Mot. for Summ. shall register practitioners . . . if the On December 8, 2015, the Deputy
Disp., Ex. 1, at 1. However, effective on applicant is authorized to dispense . . . Assistant Administrator, Office of
July 19, 2016, the Board suspended controlled substances under the laws of Diversion Control, Drug Enforcement
Respondent’s medical license ‘‘pending the State in which he practices.’’ 21 Administration (hereinafter, DEA or
proceedings for suspension or U.S.C. 823(f). Government), issued an Order to Show
revocation.’’ Id. at 2. According to the Cause to David D. Moon, D.O.
online records of the Colorado Division Because ‘‘the controlling question’’ in
a proceeding brought under 21 U.S.C. (hereinafter, Registrant), the holder of
of Professions and Occupations,
824(a)(3) is whether the holder of a DEA Certificates of Registration Nos.
Respondent’s suspension remains in
registration ‘‘is currently authorized to M9879024, in Tulsa, Oklahoma, and
effect as of the date of this Decision and
handle controlled substances in the BM2782692, in Las Vegas, Nevada,
Order. See 5 U.S.C. 556(e).
[S]tate,’’ Hooper, 76 FR at 71371 authorizing him to prescribe controlled
Discussion (quoting Anne Lazar Thorn, 62 FR substances in Schedules II through V.1
Pursuant to 21 U.S.C. 824(a)(3), the 12847, 12848 (1997)), the Agency has GX 4. The Show Cause Order proposed
Attorney General is authorized to also long held that revocation is the revocation of his Certificates of
suspend or revoke a registration issued warranted even where a practitioner has Registration and the denial of any
under section 823 of the Controlled pending application for renewal or
lost his state authority by virtue of the
Substances Act (CSA), ‘‘upon a finding modification of Registrant’s registrations
State’s use of summary process and the
that the registrant . . . has had his State on the grounds that: (1) Registrant does
State has yet to provide a hearing to
license . . . suspended [or] revoked not have authority to dispense
challenge the suspension. Bourne
. . . by competent State authority and is controlled substances in the States in
Pharmacy, 72 FR 18273, 18274 (2007);
no longer authorized by State law to which he is registered and (2) he has
Wingfield Drugs, 52 FR 27070, 27071 committed acts which render his
engage in the . . . dispensing of (1987). Thus, it is of no consequence
controlled substances.’’ Moreover, DEA registrations ‘‘inconsistent with the
that the Colorado Medical Board has public interest.’’ 2 Id. at 1 (citing 21
has long held that the possession of employed summary process in
authority to dispense controlled U.S.C. 824(a)(3) and (4)).
suspending Registrant’s state license As the jurisdictional basis for the
substances under the laws of the State and that Respondent may prevail at the
in which a practitioner engages in proceeding, the Show Cause Order
hearing schedule for late June. alleged that both of Registrant’s
professional practice is a fundamental
condition for obtaining and maintaining Here, there is no dispute over the registrations expire on January 31, 2018.
a practitioner’s registration. See, e.g., material fact that Respondent is no Id.
James L. Hooper, 76 FR 71371 (2011), longer currently authorized to dispense As the substantive grounds for the
pet. for rev. denied, 481 Fed. Appx. 826 controlled substances in Colorado, the proceeding, the Show Cause Order
(4th Cir. 2012); see also Frederick Marsh State in which he is registered. alleged that on June 18, 2015, the
Blanton, 43 FR 27616 (1978) (‘‘State Accordingly, I adopt the ALJ’s Oklahoma State Board of Osteopathic
authorization to dispense or otherwise recommendation that Respondent’s Examiners revoked his Oklahoma
handle controlled substances is a registration be revoked. osteopathic license, and that on August
prerequisite to the issuance and 11, 2015, the Nevada State Board of
Order Osteopathic Medicine revoked his
maintenance of a Federal controlled
substances registration.’’). Nevada osteopathic license, which
Pursuant to the authority vested in me
This rule derives from the text of two resulted in the status of his Nevada
by 21 U.S.C. 824(a), as well as 28 CFR
provisions of the CSA. First, Congress State Board of Pharmacy license
0.100(b), I order that DEA Certificate of
defined ‘‘the term ‘practitioner’ [to] becoming ‘‘inactive.’’ Id. at 2. Thus, due
Registration AM2281688, issued to to the actions of the two Boards, the
mean[] a . . . physician . . . or other Robert Clark Maiocco, M.D., be, and it
person licensed, registered or otherwise Registrant is without authority to handle
hereby is, revoked. Pursuant to the controlled substances in the States in
permitted, by . . . the jurisdiction in authority vested in me by 21 U.S.C.
which he practices . . . to distribute, which he is registered with DEA.
823(f), I further order that any pending The Show Cause Order alleged that on
dispense, [or] administer . . . a application of Robert C. Maiocco, M.D., April 17, 2013, Registrant was arrested
4 I note that the Government did not submit any
to renew or modify his registration, be, at McCarran International Airport while
evidence regarding the status of Respondent’s and it hereby is, denied. This Order is proceeding through a Transportation
registration with its Motion for Summary effective immediately.5 Security Administration checkpoint. Id.
Disposition. DEA’s regulations do not require
responsive pleading to the allegations of a Show Dated: April 18, 2017. It further alleged that law enforcement
Cause Order. Thus, the failure of a respondent to Chuck Rosenberg, officers found in his carry-on baggage
refute an allegation in his hearing request does not drugs in pill bottles labeled for other
constitute an admission of the allegation and the
Acting Administrator.
people, drugs in unlabeled pill bottles,
mstockstill on DSK30JT082PROD with NOTICES
Government maintains the burden of providing [FR Doc. 2017–08450 Filed 4–26–17; 8:45 am]
evidence establishing the Agency’s jurisdiction as
and loose drugs. Id. Based on the airport
BILLING CODE 4410–09–P
part of its Motion. The Agency has also noted in
1 The Registrant is also known in the
several decisions that even in those matters which
are adjudicated on summary disposition, the ALJ is 5 For the same reasons that led the Colorado Government’s records as ‘‘David DeWayne Moon.’’
obligated to make findings as to the Agency’s Board to summarily suspend Registrant’s medical Government Exhibit (hereinafter, GX) 13 and 14.
jurisdiction. See James Alvin Chaney, 80 FR 57391, license, I find that the public interest necessitates 2 The Show Cause Order also proposed the denial
57391 n.1 (2015); Sharad C. Patel, 80 FR 28693, that this Order be effective immediately. 21 CFR of any applications by Registrant for any other DEA
28694 n.3 (2015). 1316.67. registrations.
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RFAA) and an evidentiary record to to practice osteopathic medicine in the pills seized from Registrant on the date
support its proposed action. On March State of Nevada. GX 8, at 4. Also, the he was arrested were controlled
21, 2017, it updated its RFAA status of Registrant’s Nevada State substances.
representing that ‘‘because Registrant Board of Pharmacy license number Further, while the Arrest Report
has not requested a hearing within 30 CS07559 is ‘‘revoked by other agency.’’ recounted Registrant ‘‘simply’’ stating
days of any receipt of the . . . [Order to GX 9.5 that ‘‘some of his folks that he had
Show Cause] and has not otherwise previously treated were simply trying to
Arrest of Registrant
corresponded or communicated with destroy their medication, and . . .
DEA regarding the . . . [Order to Show On April 17, 2013, Registrant was [Registrant] was willing to take
Cause], including the filing of any arrested as he attempted to pass through possession of those medications again
written statement in lieu of a hearing, he a McCarran International Airport later to distribute to those that are
has waived his right to a hearing.’’ Id. Transportation Security Administration indigent and in need,’’ the Arrest Report
at 4. checkpoint with an unregistered never stated that Registrant admitted
Based on the Government’s firearm. GX 10, at 2–3. Law enforcement possessing controlled substances not
representations and my review of the officers found a large quantity of pills in prescribed to himself or intended to
record, I find that more than 30 days Registrant’s carry-on bag along with the redistribute controlled substances to
have now passed since the date on firearm. Id. According to the Las Vegas individuals for whom they were not
which Registrant was served with the Metropolitan Police Department Arrest originally dispensed.6 Id. at 6.
Show Cause Order and neither Report (hereinafter, Arrest Report), Similarly, the record contains scant
Registrant, nor anyone purporting to Registrant was ‘‘arrested for possession evidence regarding ‘‘the
represent him, has requested a hearing of a controlled substance with intent to unreadableness/illegibility of some
or submitted a written statement while sell/distribute schedule three, labels on the prescription bottles and
waiving his right to a hearing. possession of a controlled substance the absence of any label on other
Accordingly, I find that Registrant has with intent to sell/distribute schedule prescription bottles.’’ GX 4, at 4.
waived his right to a hearing and his four, possession of an unregistered However, as stated above, the Arrest
right to submit a written statement. 21 firearm, and possession of hypodermic Report did not provide a basis for the
CFR 1301.43(d). I therefore issue this devices.’’ Id. at 7. officers’ conclusions that the seized
Decision and Order based on the record According to the Arrest Report, pills were controlled substances.
submitted by the Government. 21 CFR Registrant possessed controlled Further, nothing else in the record
1301.43(e). substances with the intent to established that the seized pills were
redistribute them to individuals for controlled substances. Since the
Findings of Fact whom they were not originally statutory sections cited in the Show
Registrant’s DEA Registrations dispensed. Id. at 4–7. The Arrest Report Cause Order regarding these allegations
contained a list of pills seized from only apply to controlled substances, and
Registrant currently holds DEA Registrant at the time of his arrest. Id. the record does not contain substantial
practitioner registrations BM9879024 at 4–5. Other than stating that the author evidence that the pills seized from
and BM2782692, pursuant to which he of the Arrest Report, ‘‘Detective Shulke Registrant at McCarran International
is authorized to dispense controlled (phonetic), and Drug Enforcement Airport were, in fact, controlled
substances in Schedules II through V. Administration Special Agent C. substances, I cannot place any weight
GX 13 and 14. These registrations do not Johnson conducted an inventory of the on the evidence in the record to support
expire until January 31, 2018. Id. pharmaceutical products located in these alleged violations.’’ 7
DEA practitioner registration Moon’s (phonetic) possession,’’ the
BM9879024 is assigned to Registrant at Arrest Report did not include factual Investigations of Registrant
11445 East 20th Street, Tulsa, OK support for the officers’ conclusions that After Registrant’s arrest, the
74128. GX 14, at 1. DEA practitioner the seized pills were the controlled Government undertook a multi-faceted
registration BM2782692 is assigned to substances the Arrest Report stated investigation of Registrant.
Registrant at ‘‘Accelerated Rehab & Pain them to be. Id. at 4. It did not, for According to the affidavit of a DI
Ctr, 241 N. Buffalo Drive, Bldg. 1, Las example, state that the officers assigned to DEA’s Tulsa Resident Office,
Vegas, NV 89145.’’ GX 13, at 1. submitted the seized pills for lab testing on May 2, 2013, she and other
However, from August 11, 2014 until or analyzed them using a resource that Investigators executed an
December 15, 2014, the address identified them based on size, shape, Administrative Inspection Warrant at
associated with Registrant’s BM2782692 color, and imprint. Thus, I cannot place Registrant’s Oklahoma registered
registration was 11445 East 20th Street, any weight on the statements in the address. GX 12, at 1. At that time, she
Tulsa, OK 74128. Id. On December 15, Arrest Report that the seized pills were,
2014, Registrant changed the address in fact, controlled substances. The 6 In this portion of the Arrest Report, Registrant
associated with registration number Government has produced no other did not admit taking possession of and
BM2782692 to 241 N. Buffalo Drive, redistributing controlled substances, only
evidence establishing that any of the ‘‘medications.’’ Id. at 6. Also according to the Arrest
Bldg. 1, Las Vegas, NV 89145. Id. Report, Registrant ‘‘saw nothing wrong with his
The Status of Registrant’s State Licenses 5 I take official notice that the online records of possession of the controlled substances.’’ Id. at 3.
the Oklahoma State Board of Osteopathic However, this statement is imprecise; it could have
By Order dated June 18, 2015, the Examiners and the Nevada State Board of concerned Registrant’s possession of the
Oklahoma State Board of Osteopathic Osteopathic Medicine show Registrant does not hydrocodone tablets the Arrest Report stated were
mstockstill on DSK30JT082PROD with NOTICES
currently possess a license issued by the Oklahoma in a prescription bottle bearing Registrant’s name.
Examiners revoked Registrant’s license State Board of Osteopathic Examiners or the Nevada Id. at 4.
number 2965 to practice osteopathic State Board of Osteopathic Medicine. Under the 7 While substantial evidence regarding these
medicine in the State of Oklahoma. Administrative Procedure Act, an agency ‘‘may take allegations may exist due to the Oklahoma State
GX 7. official notice of facts at any stage in a proceeding— Board of Osteopathic Examiners Order of Probation
even in the final decision.’’ United States with Conditions concerning David Moon, D.O.,
Effective August 11, 2015, the Nevada Department of Justice, Attorney General’s Manual dated December 10, 2014 and effective December
State Board of Osteopathic Medicine on the Administrative Procedure Act 80 (1947) 31, 2014, the Order of Probation with Conditions
revoked Registrant’s license number 705 (Wm. W. Gaunt & Sons, Inc., Reprint 1979). was not submitted as part of the RFAA.
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reviewed all pertinent documents and the DEA Las Vegas District Office, on (4) Compliance with applicable State,
controlled substances records that October 30, 2014, she and other Federal, or local laws relating to controlled
Registrant was required to keep. Id. She Investigators conducted a Scheduled substances.
found that Registrant failed to maintain Investigation at a SAV–ON Pharmacy in (5) Such other conduct which may threaten
the public health and safety.
a biennial inventory. Id. Las Vegas, Nevada. GX 15, at 1. At that
According to the Tulsa DI’s affidavit, time, the Investigators reviewed six Id. § 823(f)(1)–(5).
she issued administrative subpoenas to randomly selected bundles of ‘‘[T]hese factors are . . . considered
five entities for a complete sales history prescriptions and noticed prescriptions in the disjunctive.’’ Robert A. Leslie,
of all of Registrant’s controlled written by Registrant during a period M.D., 68 FR 15227, 15230 (2003). It is
substances purchases for the previous when he did not have a DEA registration well settled that I ‘‘may rely on any one
two years. Id. In comparing the in the State of Nevada. Id. On November or a combination of factors and may give
information received from the five 3, 2014, the Investigators obtained each factor the weight [I] deem[ ]
administrative subpoenas with the copies of Registrant’s controlled appropriate in determining whether’’ to
records Registrant provided during the substance prescriptions filled at that revoke a registration. Id.; see also
inspection, she identified 32 invoices SAV–ON Pharmacy in Las Vegas from MacKay v. Drug Enforcement Admin.,
for controlled substances that Registrant August 11, 2014 through October 29, 664 F.3d 808, 816 (10th Cir. 2011);
failed to produce during the 2014. Id. Volkman v. DEA, 567 F.3d 215, 222 (6th
administrative inspection of May 2, Cir. 2009); Hoxie v. DEA, 419 F.3d 477,
I examined each of prescriptions the
2013. Id. at 2. 482 (6th Cir. 2005). Moreover, while I
While the Government submitted Government obtained from the Las
Vegas SAV–ON Pharmacy. Based on my am required to consider each of the
evidence concerning other portions of factors, I ‘‘need not make explicit
its AIW investigation of Registrant, GX review of this evidence, from August 11,
2014 through October 29, 2014, findings as to each one.’’ MacKay,
11 and 12, the evidence lacked a supra, 664 F.3d at 816 (quoting
sufficient foundation. The evidence Registrant issued at least 55 controlled
substance prescriptions for drugs Volkman, 567 F.3d at 222); see also
consisted of a copy of the AIW, a Hoxie, supra, 419 F.3d at 481.8
portion of the affidavit of a DI who including oxycodone (23), morphine
(17), adderall (six), tapentadol (six), Under DEA’s regulation, ‘‘[a]t any
participated in the execution of the hearing for the revocation or suspension
AIW, and ‘‘a complete and accurate methadone (two), and hydrocodone
(one) on prescriptions showing of a registration, the Administration
copy of the DEA Computation Chart’’ shall have the burden of proving that
prepared as part of the DI’s Registrant’s name as well as
‘‘Accelerated Rehabilitation & Pain the requirements for such revocation or
accountability audit. Id. These materials suspension pursuant to . . . 21 U.S.C.
did not, however, provide a sufficient Center’’ and its Las Vegas, Nevada
contact information, Registrant’s Nevada [§ ] 824(a) . . . are satisfied.’’ 21 CFR
foundation or sufficient detail 1301.44(e). The Government retains the
concerning the procedure followed license number, and DEA registration
number BM2782692. burden of providing substantial
during the audit of Registrant. Thus, I evidence to support the proposed action
cannot place any weight on this Discussion even when the registrant does not
evidence. request a hearing.
Further, no portion of these materials Under Section 304 of the Controlled In this case, I conclude that the record
addressed the allegations in the AIW Substances Act (hereinafter, CSA), ‘‘[a] supports two independent grounds for
portion of the Show Cause Order that registration . . . to . . . dispense a revoking Registrant’s registrations. First,
Registrant accepted controlled controlled substance . . . may be . . . Registrant does not possess authority to
substances from non-DEA registered revoked by the Attorney General upon dispense controlled substances under
sources and redistributed those illicitly a finding that the registrant . . . has had the laws of Oklahoma or Nevada, the
obtained controlled substances to other his State license or registration . . . States in which he is registered. 21
patients. GX 4, at 4. I examined the revoked . . . by competent State U.S.C. 824(a)(3). Second, Registrant
entire record for evidence concerning authority and is no longer authorized by violated multiple controlled substances-
these two allegations. The Arrest Report State law to engage in the . . . related regulatory requirements
stated that Registrant possessed a ‘‘large dispensing of controlled substances incumbent on registrants, thereby
quantity’’ of ‘‘what appeared to be . . . .’’ 21 U.S.C. 824(a)(3). Section 304 rendering his registrations ‘‘inconsistent
prescription medication’’ that ‘‘belonged also provides that a registration may be with the public interest.’’ Id. § 824(a)(4).
to various family members and former revoked ‘‘upon a finding that the
patients.’’ GX 10, at 3. As I stated above, registrant . . . has committed such acts Registrant’s Lack of State Authority
however, the Arrest Report did not as would render his registration under DEA has long held that the possession
contain factual support that the seized section 823 of this title inconsistent of authority to dispense controlled
pills were controlled substances. Thus, with the public interest as determined substances under the laws of the State
I cannot place any weight on that under such section.’’ Id. § 824(a)(4). in which a practitioner engages in
evidence in the Arrest Report. For the professional practice is a fundamental
In making the public interest
same reason, the Arrest Report evidence
determination, the CSA requires the
cannot support the AIW-related 8 ‘‘In short, this is not a contest in which score
consideration of the following factors:
allegations that Registrant accepted is kept; the Agency is not required to mechanically
controlled substances from non-DEA (1) The recommendation of the appropriate count up the factors and determine how many favor
registered sources and redistributed State licensing board or professional the Government and how many favor the registrant.
mstockstill on DSK30JT082PROD with NOTICES
disciplinary authority. Rather, it is an inquiry which focuses on protecting
those illicitly obtained controlled the public interest; what matters is the seriousness
(2) The applicant’s experience in
substances to other patients. I found no dispensing, or conducting research with of the registrant’s misconduct.’’ Jayam Krishna-Iyer,
other evidence in the record that respect to controlled substances.
M.D., 74 FR 459, 462 (2009). Accordingly, as the
supports these two AIW-related Tenth Circuit has recognized, findings under a
(3) The applicant’s conviction record under single factor can support the revocation of a
allegations. Federal or State laws relating to the registration. MacKay, supra, 664 F.3d at 821.
According to the affidavit of a manufacture, distribution, or dispensing of Likewise, findings under a single factor can support
Diversion Group Supervisor assigned to controlled substances. the denial of an application.
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![Federal Register / Vol. 82, No. 80 / Thursday, April 27, 2017 / Notices 19389
condition for obtaining and maintaining BM9879024 and BM2782692, be (2013). The CSA’s definition of
a registration. Frederick Marsh Blanton, revoked and that any pending ‘‘dispense’’ explicitly includes the
43 FR 27616 (1978) (‘‘State application for the renewal or prescribing of a controlled substance. 21
authorization to dispense or otherwise modification of these registrations be U.S.C. 802(10).
handle controlled substances is a denied. 21 U.S.C. 824(a)(3), id. § 823(f). Based on my review of the evidence
prerequisite to the issuance and submitted by the Government, the
maintenance of a Federal controlled Acts Inconsistent With the Public Registrant issued, from August 11, 2014
substances registration’’). See also Rezik Interest through October 29, 2014, at least 55
A. Saqer, 81 FR 22122, 22126 (2016) Pursuant to section 304(a)(4), the controlled substance prescriptions on
(‘‘DEA has interpreted the CSA in this Attorney General is also authorized to prescriptions showing Registrant’s name
manner for nearly 40 years.’’) and James revoke a registration ‘‘upon a finding as well as ‘‘Accelerated Rehabilitation &
Hooper, 76 FR 71371 (2011) (collecting that the registrant . . . has committed Pain Center’’ and its Las Vegas, Nevada
cases), pet for rev. denied, 481 Fed. such acts as would render his contact information, Registrant’s Nevada
Appx. 826 (4th Cir. 2012). registration under section 823 of this license number, and DEA registration
As DEA has repeatedly held, this rule title inconsistent with the public number BM2782692. Supra. Also during
derives from multiple provisions of the interest as determined under such this time period, according to the
CSA. First, in section 802(21), Congress section.’’ 21 U.S.C. 824(a)(4). evidence submitted by the Government,
defined the term ‘‘practitioner’’ to mean In this matter, while I have the address associated with DEA
‘‘a physician . . . or other person considered all of the factors, I find the registration BM2782692 was in
licensed, registered or otherwise Government’s evidence as to factors two Oklahoma. Supra.
permitted, by . . . the jurisdiction in and four dispositive.9 I find that the The Order to Show Cause alleged that,
which he practices . . . to distribute, record taken as a whole provides by issuing these 55 prescriptions ‘‘in
dispense, . . . [or] administer . . . a substantial evidence that Registrant one state under a DEA registration
controlled substance in the course of violated provisions of the CSA requiring issued for another state,’’ Registrant
professional practice . . . .’’ 21 U.S.C. (1) the holding of a separate registration; violated 21 U.S.C. 822(e) and 21 CFR
802(21). Second, Congress directed that (2) the taking of a biennial inventory; 1301.12(a) and (b)(3). GX 4, at 5. These
the Attorney General ‘‘shall register and (3) the maintenance of ‘‘complete legal provisions, however, do not
practitioners . . . if the applicant is and accurate’’ records. concern issuing a prescription ‘‘in one
authorized to dispense . . . controlled state under a DEA registration issued for
substances under the laws of the State Factors Two and Four—The another state.’’ Id. Instead, they require
in which he practices.’’ Id. § 823(f). Registrant’s Experience in Dispensing a separate registration at each principal
Third, Congress authorized revocation Controlled Substances and Compliance place of business or professional
‘‘upon a finding that the registrant . . . With Applicable Laws Related to practice where controlled substances are
has had his State license . . . Controlled Substances dispensed.
suspended [or] revoked . . . by Under 21 CFR 1306.05(a), controlled
The Dispensing Allegations
competent State authority and is no substance prescriptions are to ‘‘bear . . .
longer authorized by State law to engage The CSA requires a ‘‘separate the name, address and registration
in the . . . dispensing of controlled registration . . . at each principal place number of the practitioner,’’ among
substances.’’ Id. § 824(a)(3). of business or professional practice other things. Registrant’s address on the
Here, the Government has provided where the applicant . . . distributes 55 prescriptions the Government
substantial evidence establishing that . . . or dispenses controlled substances submitted is in Nevada. Thus, I
Registrant no longer possesses . . . .’’ 21 U.S.C. 822(e)(1). See also 21 conclude that Registrant maintained a
authorization to dispense controlled CFR 1301.12(a); Clarification of principal place of business or
substances in Oklahoma and Nevada, Registration Requirements for professional practice in Nevada from
the States in which he is registered. As Individual Practitioners, 71 FR 69478 August 11, 2014 through October 29,
found above, on June 18, 2015, the (2006); Joe W. Morgan, 78 FR 61961 2014 from which he issued at least 55
Oklahoma State Board of Osteopathic prescriptions for controlled substances.
9 As to factor one, there is no evidence that either
Examiners revoked Registrant’s During this period, however, Registrant
the Oklahoma State Board of Osteopathic
osteopathic license, GX 7, and effective Examiners or the Nevada State Board of Osteopathic
was not registered with the DEA in
August 11, 2015, the Nevada State Medicine made a recommendation to DEA; both, Nevada. Supra. Thus, I find that
Board of Osteopathic Medicine revoked however, revoked Registrant’s licenses to practice Registrant violated the separate
his osteopathic license. GX 8. See also osteopathic medicine. registration requirements of 21 U.S.C.
GX 9. Accordingly, I find the As to factor three, although the record contains 822(e) and 21 CFR 1301.12(a) and (b)(3).
evidence concerning Registrant’s arrest at McCarran
Government has proved by substantial International Airport, I acknowledge that there is no
evidence that Registrant’s authorizations The Inventory and Recordkeeping
evidence that Registrant has been convicted of an
to prescribe controlled substances in offense under Federal, Oklahoma, or Nevada law
Allegations
both Oklahoma and Nevada have been ‘‘relating to the manufacture, distribution or The CSA requires ‘‘every registrant
dispensing of controlled substances.’’ 21 U.S.C. . . . as soon . . . as such registrant first
revoked and I take official notice that 823(f)(3). However, there could be any number of
both States’ revocations remain in place reasons why a person who has engaged in criminal engages in the . . . dispensing of
as of the date of this Decision and misconduct may never have been convicted of an controlled substances, and every second
Order. I, therefore, find that Registrant offense under this factor, let alone have been year thereafter, [to] make a complete
prosecuted for one. Dewey C. MacKay, 75 FR 49956, and accurate record of all stocks thereof
is currently without authority to
mstockstill on DSK30JT082PROD with NOTICES
49973 (2010), pet. for rev. denied, MacKay v. Drug
dispense controlled substances in Enforcement Admin., 664 F.3d 808 (10th Cir. 2011). on hand . . . .’’ 21 U.S.C. 827(a)(1). See
Oklahoma and Nevada, the States in The DEA has therefore held that ‘‘the absence of also 21 U.S.C. 842(a)(5) (‘‘unlawful
which he is registered, and he is, such a conviction is of considerably less acts’’ include ‘‘to refuse or negligently
therefore, not entitled to maintain his consequence in the public interest inquiry’’ and is fail to make, keep, or furnish any record,
therefore not dispositive. Id.
DEA registrations. Frederick Marsh The Government did not allege in the Show
report, notification, declaration, order or
Blanton, supra. Accordingly, I will Cause Order any misconduct exclusively with order form, statement, invoice, or
order that his two registrations, respect to factor five. information required . . .’’). As found
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![19390 Federal Register / Vol. 82, No. 80 / Thursday, April 27, 2017 / Notices
above, during the execution of the AIW, FOR FURTHER INFORMATION CONTACT: If provides reliable, valid estimates of the
Registrant could not produce a biennial you have additional comments scope of the problem. As a result, the
inventory. Supra. Thus, I find that especially on the estimated public incidence, prevalence, and nature of
Registrant violated the CSA by failing to burden or associated response time, victimization experienced by American
maintain a biennial inventory. suggestions, or need a copy of the Indian and Alaska Native youth living
The CSA also requires registrants to proposed information collection in tribal communities is unknown. As a
maintain, on a current basis, complete instrument with instructions or result, NIJ, in partnership with the
and accurate records of each controlled additional information, please contact Office of Juvenile Justice and
substance received or dispensed. See 21 Christine Crossland, National Institute Delinquency Prevention and the Office
U.S.C. 827(a)(3) and 21 CFR 1304.21(a). of Justice, Office of Research & for Victims of Crime has funded this
See also 21 U.S.C. 842(a)(5). According Evaluation, 810 Seventh Street NW., methods study that involves developing
to the DI, during the administrative Washington, DC 20531 (overnight and testing a survey instrument, testing
inspection of May 2, 2013, Registrant 20001) or via email at different modes of administration that
failed to produce 32 invoices for Christine.Crossland@usdoj.gov. can effectively assess exposure to
controlled substances he had purchased. SUPPLEMENTARY INFORMATION: This violence and victimization, and
Supra. Thus, I find that Registrant process is conducted in accordance with determining the feasibility of using
violated the CSA by failing to comply 5 CFR 1320.10. Written comments and these procedures in tribal communities
with its recordkeeping requirements suggestions from the public and affected and settings.
concerning controlled substances. agencies concerning the proposed The sample includes tribal youth 12
collection of information are to 20 years of age. Cognitive testing will
Order be conducted in four tribal settings with
encouraged. Your comments should
Pursuant to the authority vested in me address one or more of the following between 12–15 youth at each site. The
by 21 U.S.C. 824(a) and 21 U.S.C. 823(f), pilot test involves the use of at least two
four points:
as well as 28 CFR 0.100(b), I order that but no more than three different modes
—Evaluate whether the proposed of administration modes [e.g., face-to-
DEA Certificates of Registration collection of information is necessary
BM9879024 and BM2782692 issued to face interviews, self-administered
for the proper performance of the questionnaire in paper and pencil
David D. Moon, D.O., be, and they functions of the National Institute of
hereby are, revoked. I further order that format, audio computer assisted self-
Justice, including whether the administered interviews (required),
any pending application of David D. information will have practical utility;
Moon, D.O., to renew or modify these computer assisted telephone
—Evaluate the accuracy of the agency’s interviews]. The target sample is 375
registrations, as well as any other estimate of the burden of the
pending application, be, and it hereby completed interviews from three tribal
proposed collection of information, settings (one in Alaska and two in the
is, denied. This order is effective May including the validity of the
30, 2017. lower 48.)
methodology and assumptions used; Among the key outcomes that will be
Dated: April 17, 2017. —Evaluate whether, and if so how, the examined are the response and refusal
Chuck Rosenberg, quality, utility, and clarity of the rates, missing data, interview length,
Acting Administrator. information to be collected can be willingness to disclose sensitive
[FR Doc. 2017–08452 Filed 4–26–17; 8:45 am] enhanced; and information, respondent comfort, cost,
—Minimize the burden of the collection ability to provide assistance to
BILLING CODE 4410–09–P
of information on those who are to respondents, and the ease and adequacy
respond, including through the use of of the human subjects’ protocol.
DEPARTMENT OF JUSTICE appropriate automated, electronic, 5. An estimate of the total number of
mechanical, or other technological respondents and the amount of time
National Institute of Justice collection techniques or other forms estimated for an average respondent to
of information technology, e.g., respond: The estimated range of burden
[OMB Number 1121–NEW] permitting electronic submission of for respondents participating in the
responses. cognitive interview is 90 minutes.
Agency Information Collection Approximately 48 youth will be
Activities: Proposed New Information Overview of This Information recruited to complete a cognitive
Collection Activity; Comment Request, Collection interview. The estimated range of
Proposed Study Entitled ‘‘Tribal Youth 1. Type of Information Collection: burden for respondents completing the
Victimization Methods Study’’ Survey development; Cognitive testing; survey in the pilot phase is expected to
Pilot testing of survey. be 60 minutes for completion. The
AGENCY: National Institute of Justice, 2. The Title of the Form/Collection: following factors were considered when
U.S. Department of Justice. Tribal Youth Victimization Methods creating the burden estimate: the
ACTION: 60-day notice. Study. estimated total number of sites (i.e., 4
3. The agency form number, if any, cognitive sites and 3 pilot sites),
SUMMARY: The Department of Justice and the applicable component of the respondents (i.e., 48 cognitive
(DOJ), Office of Justice Programs, Department sponsoring the collection: interviews and 375 pilot interviews for
National Institute of Justice, will be The applicable component within the a total of 423 respondents), and parental
submitting the following information U.S. Department of Justice is the and youth informed consent procedures
mstockstill on DSK30JT082PROD with NOTICES
collection request to the Office of National Institute of Justice in the Office for each phase.
Management and Budget (OMB) for of Justice Programs. 6. An estimate of the total public
review and approval in accordance with 4. Affected public who will be asked burden (in hours) associated with the
the Paperwork Reduction Act of 1995. or required to respond, as well as a brief collection: The estimated public burden
DATES: Comments are encouraged and abstract: There has never been a associated with this collection is 447
will be accepted for 60 days until June national study of tribal youth regarding hours. It is estimated that each of the
26, 2017. their victimization experiences that cognitive interviews will take 90
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Document Created: 2017-04-27 01:39:48
Document Modified: 2017-04-27 01:39:48
| 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 19385 |
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