82 FR 37113 - Leia A. Frickey, M.D.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 82, Issue 151 (August 8, 2017)

[Federal Register Volume 82, Number 151 (Tuesday, August 8, 2017)]
[Notices]
[Pages 37113-37114]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-16700]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Leia A. Frickey, M.D.; Decision and Order

    On February 28, 2017, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Leia A. Frickey, M.D. (Registrant), of New 
Orleans, Louisiana. The Show Cause Order proposed the revocation of 
Registrant's Certificate of Registration, the denial of any 
applications to renew or modify her registration, and the denial of any 
applications for any other DEA registration on the ground that she 
lacks ``state authority to handle controlled substances'' in Louisiana, 
the State in which she is registered with the DEA. Order to Show Cause, 
at 1 (citing 21 U.S.C. 824(a)(3)).
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Registrant is registered as a practitioner in schedules II 
through V, pursuant to DEA Certificate of Registration BF5029574, at 
the address of 3312 South I-10 Service Road, Metairie, Louisiana. Id. 
The Order also alleged that this registration does not expire until 
September 30, 2017. Id.
    As substantive grounds for the proceeding, the Show Cause Order 
alleged that on May 6, 2016, the Louisiana State Board of Medical 
Examiners issued a ``Notice of Summary Suspension of Medical License, 
summarily suspending [Registrant's] medical license.'' \1\ Id. at 1. As 
a result, the Order alleged that Registrant is ``currently without 
authority to practice medicine or handle controlled substances in . . . 
Louisiana, the [S]tate in which [she is] registered with the DEA.'' Id. 
at 2. Thus, based on her ``lack of authority to [dispense] controlled 
substances in . . . Louisiana,'' the Order asserted that ``DEA must 
revoke'' her

[[Page 37114]]

registration. Id. (citing 21 U.S.C. 824(a)(3); 21 CFR 1301.37(b)).
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    \1\ The Show Cause Order also alleges that ``on July 25, 2016, 
the Louisiana Board of Pharmacy issued a Notice of Suspension, 
suspending [Registrant's] Louisiana CDS license, number CDS.024813-
MD, effective May 6, 2016.'' Id. at 1-2. Although those exact facts 
are not reflected in the record, the record does show that on 
November 16, 2016, the Louisiana State Board of Pharmacy issued an 
Order that Registrant's ``LOUISIANA CONTROLLED SUBSTANCE LICENSE No. 
024813 is hereby indefinitely suspended in accordance with the 
suspension of her medical license by the Louisiana State Board of 
Medical Examiners on May 6, 2016.'' See Government Exhibit (GX) 4, 
at 1.
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    The Show Cause Order notified Registrant of her right to request a 
hearing on the allegations or to submit a written statement in lieu of 
a hearing, the procedure for electing either option, and the 
consequence for failing to elect either option. Id. (citing 21 CFR 
1301.43). The Show Cause Order also notified Registrant of her right to 
submit a corrective action plan. Id. at 2-3 (citing 21 U.S.C. 
824(c)(2)(C)).
    The Government states that on March 16, 2017, ``[p]ersonnel from 
DEA's New Orleans Field Division served the Order on Registrant.'' 
Government Request for Final Agency Action (RFFA), at 1 (citing 
Government Exhibit (GX) 5). Specifically, a DEA Diversion Investigator 
(DI) and DEA Task Force Officer traveled to a medical center in 
Louisiana on March 16, 2017, where the nursing staff escorted them to 
her room where they found the Registrant. GX5, at 1. The DI advised 
Registrant that he had a Show Cause Order to serve on her. Id. 
According to the DI's affidavit, the Registrant then responded `` `You 
will not take my DEA number' and she refused to take the [Show Cause 
Order] document.'' Id. The DI ``then placed the [Order] on the night 
stand next to [Registrant's] bed.'' Id.
    On May 19, 2017, the Government forwarded its Request for Final 
Agency Action and an evidentiary record to my Office. Therein, the 
Government represents that Registrant has neither requested a hearing 
nor ``otherwise corresponded or communicated with DEA regarding'' the 
Show Cause Order. RFFA, at 2. Based on the Government's representation 
and the record, I find that more than 30 days have passed since the 
Order to Show Cause was served on Registrant, and she has neither 
requested a hearing nor submitted a written statement in lieu of a 
hearing. Id. at 2 (citing 21 CFR 1301.43(d)). Accordingly, I find that 
Registrant has waived her right to a hearing or to submit a written 
statement and issue this Decision and Order based on relevant evidence 
submitted by the Government. I make the following findings.

Findings of Fact

    Registrant is a physician who is registered as a practitioner in 
schedules II-V pursuant to Certificate of Registration BF5029574, at 
the address of 3312 South I-10 Service Road, Metairie, Louisiana. GX 1, 
at 1. The registration does not expire until September 30, 2017. Id.
    On May 6, 2016, the Louisiana State Board of Medical Examiners 
summarily suspended Registrant's medical license and stated that the 
suspension was ``effective immediately.'' GX 3, at 1. On November 16, 
2016, the Louisiana State Board of Pharmacy ``indefinitely suspended'' 
Registrant's controlled substance license ``in accordance with the 
suspension of her medical license by the Louisiana State Board of 
Medical Examiners on May 6, 2016.'' GX 4, at 1. Based on the above, I 
find that Registrant does not currently have authority under the laws 
of Louisiana to dispense controlled substances.

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of Title 
21, ``upon a finding that the registrant . . . has had [her] 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.'' With respect to a practitioner, 
DEA has long held that the possession of authority to dispense 
controlled substances under the laws of the State in which a 
practitioner engages in professional practice is a fundamental 
condition for obtaining and maintaining a registration. See, e.g., 
James L. Hooper, 76 FR 71371 (2011), pet. for rev. denied, 481 Fed. 
Appx. 826 (4th Cir. 2012); see also 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.'').
    This rule derives from the text of two provisions of the CSA. 
First, 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, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed that ``[t]he Attorney General shall register 
practitioners . . . if the applicant is authorized to dispense . . . 
controlled substances under the laws of the State in which [s]he 
practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the Act, DEA has held repeatedly that revocation of 
a practitioner's registration is the appropriate sanction whenever she 
is no longer authorized to dispense controlled substances under the 
laws of the State in which she engages in professional practice. See, 
e.g., Calvin Ramsey, 76 FR 20034, 20036 (2011); Sheran Arden Yeates, 
M.D., 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 
(1993); Bobby Watts, 53 FR 11919, 11920 (1988); Blanton, 43 FR 27616 
(1978).
    Moreover, because ``the controlling question'' in a proceeding 
brought under 21 U.S.C. 824(a)(3) is whether the holder of a 
practitioner's registration ``is currently authorized to handle 
controlled substances in the [S]tate,'' Hooper, 76 FR at 71371 (quoting 
Anne Lazar Thorn, 62 FR 12847, 12848 (1997)), the Agency has also long 
held that revocation is warranted even where a practitioner has lost 
her state authority by virtue of the State's use of summary process and 
the State has yet to provide a hearing to challenge the suspension. 
Bourne Pharmacy, 72 FR 18273, 18274 (2007); Wingfield Drugs, 52 FR 
27070, 27071 (1987). Thus, it is of no consequence that the Louisiana 
State Board of Medical Examiners has employed summary process in 
suspending Registrant's state medical license. What is consequential is 
that Registrant is no longer currently authorized to dispense 
controlled substances in Louisiana, the State in which she is 
registered. I will therefore order that her registration be revoked.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration No. BF5029574, issued to Leia A. Frickey, M.D., be, and it 
hereby is, revoked. I further order that any pending application of 
Leia A. Frickey to renew or modify the above registration, or any 
pending application of Leia A. Frickey for any other registration, be, 
and it hereby is, denied. This Order is effective immediately.

    Dated: July 31, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-16700 Filed 8-7-17; 8:45 am]
 BILLING CODE 4410-09-P