83 FR 14043 - Angela L. Lorenzo, P.A.: Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 83, Issue 63 (April 2, 2018)

[Federal Register Volume 83, Number 63 (Monday, April 2, 2018)]
[Notices]
[Pages 14043-14045]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-06618]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Angela L. Lorenzo, P.A.: Decision and Order

    On December 18, 2017, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Angela L. Lorenzo, P.A. (Registrant), of Las 
Vegas, Nevada. The Show Cause Order proposed the revocation of 
Registrant's Certificate of Registration No. ML0901985 on the ground 
that she lacks ``authority to handle controlled substances in the State 
of Nevada, the State in which [she is] registered with the DEA.'' Order 
to Show Cause, Government Exhibit (GX) A-3, at 1 (citing 21 U.S.C. 
824(a)(3)).\1\ For the same reason, the Order also proposed the denial 
of any of Registrant's ``pending applications for a new registration or 
for renewal.'' Id.
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    \1\ The Show Cause Order also proposed that Registrant's DEA 
registration should be revoked because she ``committed acts which 
render [her] registration inconsistent with the public interest.'' 
GX 3, at 1 (citing 21 U.S.C. 823(f), 824(a)(4)). However, the 
Government did not include evidence to support this allegation with 
its Request for Final Agency Action (RFFA). Instead, the Government 
requested ``leave to supplement its [R]equest to include the grounds 
for revocation under 21 U.S.C. 823(f), 824(a)(4)'' should Registrant 
``regain her Nevada state license during the pendency of this 
Request for Final Agency Action.'' RFFA at 1 n.1. The Government has 
not filed a request to supplement its RFFA, apparently because 
Registrant has not regained her Nevada state medical license. 
Accordingly, I do not consider the Government's public interest 
allegation.
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    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 No. ML0901985, 
at the address of 811 N Buffalo Road, Suite 113, Las Vegas, Nevada. Id. 
at 1-2. The Order also alleged that this registration

[[Page 14044]]

does not expire until March 31, 2018. Id.at 2.
    As substantive grounds for the proceeding, the Show Cause Order 
alleged that on September 29, 2017, the Nevada State Board of Medical 
Examiners (hereinafter NSBME) ``issued an Order of Summary Suspension 
immediately and indefinitely suspending [her] license to practice 
medicine in the State of Nevada.'' Id. The Order alleged that, ``[a]s a 
result, [she is] currently without authority to practice medicine or 
handle controlled substances in the State of Nevada, the [S]tate in 
which [she is] registered with the DEA.'' Id. Based on her ``lack of 
authority to handle controlled substances in the State of Nevada,'' the 
Order asserted that ``DEA must revoke'' her registration. Id. (citing 
21 U.S.C. 823(f), 824(a)(3)).
    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. at 4 (citing 21 CFR 
1301.43). The Show Cause Order also notified Registrant of her right to 
submit a corrective action plan. Id. at 4-5 (citing 21 U.S.C. 
824(c)(2)(C)).
    The Government states that on December 19, 2017, a Data Analyst in 
DEA's Office of Chief Counsel sent a copy of the Show Cause Order by 
first-class mail to (1) the post office box address provided by 
Registrant as the ``mail to'' address on her DEA registration, P.O. Box 
36190, Las Vegas, Nevada, and (2) her registered address of 911 N 
Buffalo Road, Suite 113, Las Vegas, Nevada. Government's ``Request for 
Final Agency Action'' (RFFA), at 2 n.2, 3; GX B (Declaration of Data 
Analyst) at 1-2. The Government also states that only the mailing to 
the registered address was returned as undeliverable. See id. Also, on 
December 19, 2017, a Diversion Investigator (DI) ``emailed a copy of 
the [Show Cause Order] to'' the ``contact email'' address that 
Registrant had provided to the Agency on her DEA registration without 
receiving ``any error messages indicating that the email was not 
successfully sent'' or ``any notifications that the email was 
undeliverable.'' RFFA, at 3; GX A (Declaration of the Diversion 
Investigator), at 2.\2\ Based on these facts, I find that the 
Government's attempts to serve Registrant with the Show Cause Order 
satisfied its obligation under the Due Process Clause ``to provide 
`notice reasonably calculated, under all circumstances, to apprise 
interested parties of the pendency of the action and afford them an 
opportunity to present their objections.' '' Emilio Luna, M.D., 77 FR 
4829, 4829 (2012) (quoting Jones v. Flowers, 547 U.S. 220, 226 (2006) 
(quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 
(1950))).
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    \2\ On December 19, 2017, Government counsel represents that he 
``provided'' a copy of the Show Cause Order to the attorney 
representing Registrant in the underlying NSBME proceeding. RFFA, at 
2 n.3. On January 4, 2018, that attorney emailed Government counsel 
``to advise [him] that, as of today, I no longer represent Ms. 
Lorenzo . . . but she is advised of her obligation to respond to the 
Order to Show Cause.'' RFFA, at 2 n.3; GX C (copy of email from 
Registrant's former attorney to Government counsel).
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    On February 1, 2018, the Government forwarded its Request for Final 
Agency Action and an evidentiary record to my Office. Therein, the 
Government represents that it has received neither a hearing request 
nor a written statement from Registrant 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. See 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's assistant who is registered as a 
practitioner in schedules II-V pursuant to Certificate of Registration 
No. ML0901985,\3\ at the address of 911 N Buffalo Rd., Ste. 113, Las 
Vegas, Nevada.\4\ Her registration does not expire until March 31, 
2018. See supra footnote 3.
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    \3\ The RFFA did not attach a copy of Registrant's DEA 
Certificate of Registration. However, I take official notice that 
the Agency's registration records show that Registrant obtained a 
registration as a mid-level practitioner-physician assistant on 
December 19, 2002, in schedules II through V, and last renewed her 
registration on April 15, 2015. According to the Agency's records, 
she has not submitted an application for renewal of her 
registration.
     Under 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, Registrant 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).
    \4\ The Show Cause Order states that the registered address is 
at 811 N Buffalo Road, Suite 113, Las Vegas, Nevada, even though the 
DEA registration shows a registrant address at 911 N Buffalo Road. 
In addition, the top of the Show Cause Order was addressed to 
Registrant at 911 N Buffalo Road, consistent with the registration. 
Accordingly, I find that Registrant's address is 911 N Buffalo Road, 
Suite 113, Las Vegas, Nevada, and I deem the Show Cause Order's 
reference to 811 N Buffalo Road a scrivener's error.
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    On September 28, 2017, the Investigative Committee (IC) of the 
NSBME issued an ``Order of Summary Suspension'' to Registrant that 
``IMMEDIATELY SUSPENDS [her] license to practice medicine.'' GX A-1, at 
1. Specifically, the IC suspended Registrant's license to practice 
medicine in the State of Nevada because ``the health, safety and 
welfare of the public is at imminent risk of harm by [Registrant's] 
continued performance of medical services without supervision, 
including the prescription of controlled substances, . . . her 
dishonest conduct, and . . . her continued refusal to comply with the 
lawful Orders of the [NSBME].'' Id. at 2.\5\ In light of the passage of 
time since the effective date of the Order, I have queried the NSBME 
website regarding the status of Registrant's medical license, and I 
take official notice that Registrant's Nevada medical license remains 
suspended as of the date of this decision.\6\
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    \5\ In its Order, the IC found, inter alia, that on September 6, 
2017, ``IC staff personally notified [Registrant] at her offices 
located at 911 N Buffalo Drive, Suite 113, Las Vegas, NV'' that she 
was prohibited under Nevada law ``from performing medical services 
until she obtained a supervising physician licensed and approved'' 
by the NSBME. Id. at 2. Although Registrant advised the IC on 
September 6, 2017 ``verbally and in writing that she would cease 
practicing,'' on September 11, 2017, she nevertheless wrote a 
prescription for Phentermine, a [s]chedule IV controlled 
substance.'' Id. The IC found that this conduct demonstrated that 
Registrant ``perform[ed] medical services, including the 
prescription of controlled substances,'' (1) in violation of Nevada 
law's requirement of physician supervision and (2) in ``direct 
contradiction to her prior written statement . . . on September 6, 
2017.'' Id.
    \6\ I take official notice under the authority set forth supra 
in footnote 3.
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    Thus, I find that that the IC's Order suspending Registrant from 
practicing medical services, which it stated includes dispensing 
controlled substances, independently bars Registrant from dispensing 
controlled substances in Nevada. Accord Nev. Rev. Stat. Sec. Sec.  
630.160 (2015) (``Every person desiring to practice medicine must, 
before beginning to practice, procure from the [NSBME] a license 
authorizing the person to practice.''); 630.020 (defining ``[p]ractice 
of medicine'' to include prescribing). Based on the above, I find that 
Registrant does not currently have authority under the laws

[[Page 14045]]

of Nevada to dispense controlled substances.\7\
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    \7\ Registrant's DEA registration information states that 
Registrant had a Nevada Controlled Substance License No. CS12166, 
but that it expired on October 31, 2016. I have queried the NSBME 
website regarding the status of Registrant's controlled substance 
license, and I take official notice (see supra footnote 3) that 
Nevada's online list of holders of active controlled substance 
licenses does not include Registrant by name or by her Nevada 
controlled substance registration number.
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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 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.'' 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).
    Thus, ``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)). Here, Registrant is no longer currently 
authorized to dispense controlled substances in Nevada, the State in 
which she is registered with the Agency. I will therefore revoke her 
DEA registration, deny any pending application to modify her 
registration, or any pending application for any other registration in 
Nevada.

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. ML0901985, issued to Angela L. Lorenzo, P.A., be, and 
it hereby is, revoked. I further order that any pending application of 
Angela L. Lorenzo to renew or modify the above registration, or any 
pending application of Angela L. Lorenzo for any other registration in 
the State of Nevada, be, and it hereby is, denied. This Order is 
effective immediately.\8\
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    \8\ For the same reasons that led the NSBME to suspend 
Registrant's license, I find that the public interest necessitates 
that this Order be effective immediately. 21 CFR 1316.67.

    Dated: March 24, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-06618 Filed 3-30-18; 8:45 am]
 BILLING CODE 4410-09-P