83 FR 20853 - William R. Montiel, M.D.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 83, Issue 89 (May 8, 2018)

[Federal Register Volume 83, Number 89 (Tuesday, May 8, 2018)]
[Notices]
[Pages 20853-20855]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-09738]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


William R. Montiel, M.D.; Decision and Order

    On August 10, 2017, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration, issued an Order to 
Show Cause to William R. Montiel, M.D. (hereinafter, Registrant), of 
Prattville, Alabama. GX 2. The Show Cause Order proposed the revocation 
of Registrant's authority under his DEA Certificate of Registration to 
dispense schedule II controlled substances, and the denial of ``any 
applications for renewal or modification of such [s]chedule II 
authority and any applications for any other DEA registrations with 
[s]chedule II authority pursuant to 21 U.S.C. 824(a)(3), because [he 
has] no state authority to handle controlled substances.'' Id. at 1.
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Registrant is registered as a practitioner with authority 
to dispense controlled substances in schedules II through V under 
Certificate of Registration No. FM0822812, at the location of 554C 
McQueen Smith Road, Prattville, Alabama. Id. The Order further alleged 
that this registration does not expire until January 31, 2020. Id.
    As the substantive ground for the proceeding, the Show Cause Order 
alleged that ``[o]n March 7, 2017, the Medical Licensure Commission of 
Alabama issued an Order restricting [Registrant's] license to practice 
medicine in . . . Alabama such that [he] `shall not prescribe any 
substance listed in [s]chedule II of the Alabama Controlled Substance 
Act . . . or any substance listed on the [DEA's] listing of [s]hedule 
II controlled substances.''' Id. at 1-2. The Show Cause Order thus 
alleged that as a result of the Commission's action, Registrant is 
``currently without authority to handle [s]chedule II controlled 
substances in . . . Alabama, the [S]tate in which [he is] registered 
with'' DEA, and that as a consequence, his schedule II authority is 
subject to revocation. Id. at 1-2.
    The Show Cause Order notified Registrant of his right to a hearing 
or to submit a written statement while waiving his right to a hearing, 
the procedure for electing either option, and the consequence of 
failing either option. Id. at 2 (citing 21 CFR 1301.43(a) & (c)). The 
Order also notified Registrant of his right to submit a corrective 
action plan. Id. at 2-3.
    On October 25, 2017, the Government submitted a Request for Final 
Agency Action (RFAA I). GX 5, at 4. Therein, the Government represented 
that ``[o]n August 10, 2017, personnel from DEA's Office of Chief 
Counsel, Diversion and Regulatory Section, mailed a copy of the Order 
to Registrant's registered address via first-class United States mail'' 
and that the letter was not returned ``as undeliverable.'' Id. The 
Government further represented that Registrant had neither requested a 
hearing, nor submitted a written statement while waiving his right to a 
hearing, within the 30-day time period following service for electing 
either option. Id. The Government thus maintained that Registrant had 
waived his right to either a hearing or to submit a written statement 
and sought a final order.
    On review, I held that the Government's effort at service was ``a

[[Page 20854]]

departure from the Agency traditional practice.'' GX 6 (Administrator's 
Order, Feb. 6, 2016). I also noted that ``the Government cite[d] no 
authority establishing that a sole effort of mailing by first class 
mail (with no evidence of delivery to the address) is sufficient to 
provide constitutionally adequate service for initiating a proceeding 
under the Due Process Clause.'' Id. I therefore ordered the Government 
``to either address why its effort was consistent with the Due Process 
Clause or to engage in additional reasonable efforts to serve 
Registrant.'' Id.
    On March 20, 2018, the Government submitted a Second Request for 
Final Agency Action. RFAA II, at 5. Therein, the Government represents 
that on August 15, 2017, the case agent travelled to Registrant's 
registered address to personally serve the Show Cause Order on 
Registrant. Id. at 2. The Government further represents that the case 
agent met with Registrant and upon informing Registrant that he was 
there to serve the Show Cause Order, Registrant stated that he had 
received the Order in the mail the previous day and showed the Order to 
the case agent who confirmed that it was identical to the Order he 
planned to serve on Registrant. Id. As support for these 
representations, the Government provided a declaration by the case 
agent. GX 7.
    Based on the case agent's declaration, I now find that Registrant 
was served with the Show Cause Order on August 14, 2017. In its Second 
Request, the Government again represents that ``Registrant has not 
requested a hearing and has not otherwise corresponded or communicated 
with DEA regarding the'' Show Cause Order, to ``include[e] the filing 
of [a] written statement in lieu of a hearing.'' RFAA II, at 2-3. 
Because more than 30 days have now passed since the date of service of 
the Show Cause Order, and Registrant has neither requested a hearing 
nor submitted a written statement while waiving his right to a hearing, 
I find that Registrant has waived his right to a hearing or to submit a 
written statement. 21 CFR 1301.43(d). I therefore issue this Decision 
and Order based on the evidentiary record submitted by the Government. 
Id. Sec.  1301.43(e). I make the following factual findings.

FINDINGS

    Registrant is the holder of DEA Certificate of Registration No. 
FM0822812, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V as a practitioner, at the 
registered address of 554C McQueen Smith Road, Prattville, Alabama. GX 
1, at 1. This registration does not expire until January 31, 2020. Id.
    Registrant is also the holder of a medical license issued by the 
Medical Licensure Commission of Alabama. GX 3, at 2. Following a 
hearing, on March 7, 2017, the Commission issued an Order which found 
that Registrant's ``treatment of chronic pain patients is not in 
compliance with the Board of Medical Examiners' guidelines for pain 
management and the standards for the utilization of controlled 
substances set out'' in various provisions of the Alabama 
Administrative Code, ``in violation of Sec.  34-24-360(23) of the 
Alabama Code.'' GX 3, at 2-3. The Commission also found that 
Registrant's ``continued prescribing of'' schedule II controlled 
substances ``presents a risk of harm to his patients.'' Id. at 3. The 
Commission thus restricted Registrant's medical license to prohibit him 
from prescribing any schedule II controlled substance. Id. The 
Commission's Order became effective at midnight on June 23, 2017. Id. 
at 4 (Commission's Order, May 24, 2017). According to the online 
records of the Commission of which I take official notice, this 
restriction remains in effect as of the date of this Order. See http://www.albme.org (visited April 30, 2018).

DISCUSSION

    Under the Controlled Substances Act (CSA), a practitioner's 
registration grants authority to dispense a controlled substance, which 
by definition ``means to deliver a controlled substance to an ultimate 
user . . . by, or pursuant to the lawful order of, a practitioner.'' 21 
U.S.C. 802(10) (emphasis added). Likewise, the CSA defines the ``[t]he 
term `practitioner' [to] mean[] a physician . . . 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.'' Id. Sec.  802(21). 
Finally, under the CSA's registration provision applicable to a 
practitioner, ``[t]he Attorney General shall register practitioners . . 
. if the applicant is authorized to dispense . . . controlled 
substances under the laws of the State in which he practices.'' Id. 
Sec.  823(f). These provisions thus make clear that a practitioner's 
possession of federal authority to dispense controlled substances is 
generally premised on his possession of authority under state law to do 
so. See also see also id. Sec.  824(a)(3) (authorizing the suspension 
or revocation of registration issued under section 823 of the CSA, 
``upon a finding that the registrant . . . has had . . . [her] State 
License or registration suspended [or] revoked by competent State 
authority and is no longer authorized by State law to engage in the . . 
. dispensing of controlled substances'').
    As the Supreme Court recognized in United States v. Moore, 423 U.S. 
122, 140-41 (1975), ``[i]n the case of a physician this scheme 
contemplates that he is authorized by the State to practice medicine 
and to dispense drugs in connection with his professional practice. The 
federal registration . . . extends no further.''
    Thus, to the extent a practitioner is not authorized under state 
law to dispense certain categories or schedules of controlled 
substances, he can no longer lawfully dispense them under federal law. 
See Kenneth Harold Bull, 78 FR 62666, 62672, 62676 (2013) (restricting 
practitioner's registration to authorize the dispensing of only those 
controlled substances authorized to dispense under his state license). 
Accordingly, where a state board takes such action, at a minimum, a 
practitioner's CSA registration must be restricted to authorize the 
dispensing of only those controlled substances which he can lawfully 
dispense under state law. See id.; see also 21 U.S.C. 824(a)(3).
    Based on the Commission's Order, I find that Registrant is 
currently without authority to prescribe schedule II controlled 
substance under his Alabama Medical License. Because his authority 
under his DEA registration (in Alabama) can only extend as far as his 
state authority, I will order that his authority to prescribe schedule 
II controlled substances be revoked and that his registration be 
restricted to prohibit him from prescribing schedule II controlled 
substances.\1\
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    \1\ While the Government argues that ``Registrant's [s]chedule 
II authority should be revoked . . . because Registrant has no state 
authority to handle [s]chedule II controlled substances in 
Alabama,'' RFAA II, at 4, the various state Orders submitted by the 
Government address only his authority to prescribe and not to engage 
in other activities which fall within the definition of dispense, 
such as administering or direct dispensing, whether under the CSA or 
Alabama law. See Ala. Code Sec.  20-2-2 (defining the term 
``dispense'' to mean ``[t]o deliver a controlled substance to an 
ultimate user . . . by or pursuant to the lawful order of a 
practitioner, including the prescribing, [or] administering'' of a 
controlled substance). While it may have been the intent of the 
Commission to entirely limit Registrant's schedule II authority, 
that is not apparent on the face of its Orders.
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ORDER

    Pursuant to the authority vested in me by 28 CFR 0.100(b) and 21 
U.S.C. 824(a)(3), I order that the authority of William R. Montiel, 
M.D., to prescribe schedule II controlled substances under

[[Page 20855]]

Certificate of Registration No. FM0822812 be, and it hereby is, 
revoked. I further order that any application of William R. Montiel, 
M.D., to renew or modify his registration, or for any other 
registration in the State of Alabama, be, and it hereby is denied, to 
the extent it seeks authority to prescribe schedule II controlled 
substances in the State of Alabama. This ORDER is effective 
immediately.\2\
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    \2\ I further order that Registrant's Certificate of 
Registration be modified to reflect this restriction on his 
authority. Based on the findings of the Commission, I find that the 
public interest necessitates that the revocation of his schedule II 
prescribing authority be effective immediately. 21 CFR 1316.67.

    Dated: April 30, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-09738 Filed 5-7-18; 8:45 am]
 BILLING CODE 4410-09-P