[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
[Notices]
[Pages 67669-67671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27546]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 12-54]


Wayne D. Longmore, M.D.; Decision and Order

    On September 6, 2012, Administrative Law Judge Gail A. Randall 
issued the attached Recommended Decision. Neither party filed 
exceptions to the Recommended Decision.
    Having reviewed the entire record, I have decided to adopt the 
ALJ's findings of fact, conclusions of law, and recommended order. 
Accordingly, I will order that Respondent's DEA Certificate of 
Registration be revoked and that any pending application to renew or 
modify his registration be denied.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration Number BL9651250, issued to Wayne D. Longmore, M.D., be, 
and it hereby is, revoked. I further order that any pending application 
of Wayne D. Longmore, M.D., to renew or modify his registration, be, 
and it hereby is, denied. This Order is effective December 13, 2012.

    Dated: October 26, 2012.
Michele M. Leonhart,
Administrator.

Brian Bayly, Esq., for the Government.
Debra J. Young, Esq., for the Respondent.

Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision 
of the Administrative Law Judge

I. Facts

    Administrative Law Judge Gail A. Randall. The Deputy Assistant 
Administrator, Drug Enforcement Administration (``DEA'' or 
``Government''), issued an Order to Show Cause (``Order'') dated May 
31, 2012, proposing to revoke the DEA Certificate of Registration, No. 
BL9651250, of Wayne D. Longmore, M.D. (``Respondent''), as a 
practitioner, pursuant to 21 U.S.C. 824(a)(4) (2006), and deny any 
pending applications for renewal or modification of such registration 
pursuant to 21 U.S.C. 823(f) (2006), because the continued registration 
of the Respondent would be inconsistent with the public interest, as 
that term is used in 21 U.S.C. 823(f), and because the Respondent lacks 
the authority to practice medicine or handle controlled substances in 
the state of New York pursuant to 21 U.S.C. 823(f)

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and 824(a)(3) (2006). The Respondent's registration will expire by its 
own terms on March 31, 2015.
    Specifically, the Order alleged that the New York State Department 
of Health, State Board for Professional Medical Conduct, (``New York 
Board'') issued an Interim Order, effective April 3, 2012, in which 
Respondent agreed to the suspension of his medical license while the 
New York Board and DEA conducted investigations of his prescribing 
practices. [Order at 1]. The Order further alleged that the Respondent 
is without authority to handle controlled substances in the state of 
New York, the state in where the Respondent is registered with the DEA, 
and thus the DEA must revoke Respondent's DEA registration based on his 
lack of authority to handle controlled substances in the state of New 
York. [Id.]. Lastly, the Order alleged that between October 20, 2011, 
and January 27, 2012, three undercover operatives, posing as patients, 
made a total of ten visits to Respondent's office and at each visit 
Respondent prescribed hydrocodone to them with no or insufficient 
medical history, with no relevant physical examinations, without 
diagnosing any medical conditions warranting such medications, and 
without monitoring the patients to determine if the patients were 
diverting the prescribed controlled substances. [Order at 2].
    On July 17, 2012, the Respondent, through counsel, filed a request 
for a hearing in the above-captioned matter. That same day, the Court 
issued an Order for Prehearing Statements.
    On July 20, 2012, the Government filed its Government's Motions for 
Summary Judgment and to Stay the Proceedings (``Government's Motion''). 
Therein, the Government requested that the Court summarily revoke 
Respondent's DEA registration because the Respondent's New York state 
medical license is under a temporary suspension order. [Government's 
Motion at 1]. Alternatively, the Government requested that the Court 
terminate Respondent's DEA registration because Respondent abandoned 
his DEA registered location and thus, is not in compliance with 21 
U.S.C. 822(e) (2006). [Id.].
    The Government stated that Respondent was no longer authorized to 
handle controlled substances in New York, the state where the 
Respondent is registered with the DEA. [Id. at 2]. The Government 
attached to its motion, a Stipulation and Application for an Interim 
Order of Conditions pursuant to N.Y. Public Health Law Sec.  230 
(``Interim Order''), dated March 27, 2012, in which the Respondent 
agreed to the New York State Board's issuance of an Interim Order of 
Conditions which precluded the Respondent from practicing medicine in 
New York. [Government's Motion at Attachment 2]. Additionally, the 
Government attached the Interim Order from the New York Board, 
precluding Respondent from practicing medicine in New York, which 
became effective on April 2, 2012. [Id. at Attachment 3]. The 
Government argues, therefore, that in accordance with Agency precedent, 
the DEA is barred by statute from continuing the Respondent's 
registration because his state medical license was suspended. [Id. at 
2]. In addition, the Government argues that the Respondent's 
registration terminates as a matter of law under 21 U.S.C. 822(e) 
because the Respondent is no longer practicing at his DEA registered 
location. [Government's Motion at 3-4].
    On July 24, 2012, the Court issued an Order for Respondent's 
Response to the Government's Motion for Summary Judgment.
    On July 24, 2012, Respondent filed a letter addressed to the Court 
(``Respondent's Request''). Therein, Respondent requested that ``this 
matter be stayed entirely pending resolution of the criminal charges.'' 
[Respondent's Request at 1].
    On July 25, 2012, the Court issued an Order Denying Respondent's 
Request to Stay Proceedings and further ordered Respondent to file a 
response, if he so chooses, to the Government's Motion for Summary 
Judgment.
    On July 30, 2012, the Respondent filed Respondent's Response to the 
Government's Motion for Summary Judgment (``Response''). Therein, the 
Respondent argues that the revocation or termination of Dr. Longmore's 
DEA registration is ``premature'' because the outcome of the pending 
criminal matter against Dr. Longmore has not yet been resolved. 
[Response at 1]. Additionally, Respondent argues that Dr. Longmore has 
not committed any acts that would render his continued DEA registration 
to be inconsistent with the public interest. [Response at 2]. Lastly, 
the Respondent argues that the closing of Dr. Longmore's medical 
practice, as a result of his consent order with the New York Board, 
should not form the basis for termination of his DEA registration. [Id. 
at 3].
    For the reasons set forth below, I will grant the Government's 
Motion and recommend that the Administrator revoke the Respondent's DEA 
Certificate of Registration. But, I note that, pursuant to 21 C.F.R. 
Sec.  1301.13(a) (2012), the Respondent may apply for a new DEA 
Certificate of Registration at any time.

II. Discussion

A. Respondent Currently Lacks Authority To Handle Controlled Substances 
in New York

    The DEA will not maintain a controlled substances registration if 
the registrant is without state authority to handle controlled 
substances in the state in which the registrant practices. The 
Controlled Substances Act (``CSA'') provides that obtaining a DEA 
registration is conditional on holding a state license to handle 
controlled substances. See 21 U.S.C. 802(21) (2006) (defining 
``practitioner'' as ``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''); 21 U.S.C. 823(f) 
(2006) (``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''). The DEA, 
therefore, has consistently held that the CSA requires the DEA to 
revoke the registration of a practitioner who no longer possesses a 
state license to handle controlled substances. See 21 U.S.C. 824(a)(3) 
(2006) (stating ``a registration may be suspended or revoked by the 
Attorney General upon a finding that the registrant has had his State 
license or registration suspended, revoked or denied by competent State 
authority''); Beverley P. Edwards, M.D., 75 FR 49,991 (DEA 2010); 
Joseph Baumstarck, M.D., 74 FR 17,525 (DEA 2009).
    In this case, the Respondent does not dispute that he currently 
lacks state authority to handle controlled substances. However, the 
Respondent argues that his temporary discontinuance of practicing 
medicine in New York, under the Interim Order, is not sufficient to 
require the revocation of his DEA registration. Respondent argues that 
his DEA registration should not be revoked because he voluntarily 
relinquished his right to practice medicine in New York while a 
criminal investigation is pending against him. [Response at 1-2]. 
However, the Interim Order effectively suspends the Respondent's 
license to practice medicine in New York until 30 days after the final 
disposition of the open criminal investigation against the Respondent. 
Regardless of the merit of Respondent's pending criminal case, he 
currently lacks the necessary state authority to practice medicine and 
to

[[Page 67671]]

handle controlled substances in New York. Consequently, his DEA 
registration must be revoked.
    Next, Respondent argues that his continued DEA registration would 
not be inconsistent with the public interest and therefore, his DEA 
registration should not be revoked. [Response at 2-3]. Respondent 
argues that the factors to be considered in determining whether an 
application for registration should be denied or revoked under 21 
U.S.C. 824(a)(4) weigh in favor of maintaining the Respondent's DEA 
registration because he has not issued any prescriptions that are 
inconsistent with the public interest. [Id.].
    While the Respondent may have raised genuine disputes of fact, 
concerning the allegations in the Government's Order to Show Cause, 
those disputes are immaterial in light of the Respondent's current lack 
of state registration. Indeed, the CSA and Agency precedent make clear 
that as a prerequisite to registration the Respondent must have state 
authority to handle controlled substances, and that without such 
authority all other issues before this forum are moot. See 21 U.S.C. 
802(21); 21 U.S.C. 823(f); Joseph Baumstarck, M.D., 74 FR at 17,527 
(DEA 2009). Thus, because there is no dispute that the Respondent lacks 
state authority to handle controlled substances, the Respondent's 
registration must be revoked.

B. There Is Insufficient Evidence That Respondent Has Permanently 
Ceased the Practice of Medicine

    A registrant's DEA registration terminates as a matter of law when 
the registrant ceases to practice at his registered location. See 21 
U.S.C. 822(e) (2006) (``A separate registration shall be required at 
each principal place of business or professional practice where the 
applicant manufactures, distributes, or dispenses controlled substances 
of list I chemicals''); 21 CFR 1301.52(a) (2012) (``[T]he registration 
of any person, and any modifications of that registration, shall 
terminate, without any further action by the Administration, if and 
when such person dies, ceases legal existence, discontinues business or 
professional practice, or surrenders a registration''). In addition, a 
registrant must either request that his DEA registered address be 
changed or the registrant must notify the DEA that he is no longer 
practicing at the place of business where he is registered. See 21 CFR 
1301.51 (2010) (``Any registrant may apply to modify his/her 
registration to authorize the handling of additional controlled 
substances or to change his/her name or address, by submitting a letter 
of request to the Registration Unit, Drug Enforcement 
Administration''); 21 CFR 1301.52(c) (2011) (``Any registrant desiring 
to discontinue business activities altogether or with respect to 
controlled substances (without transferring such business activities to 
another person) shall return for cancellation his/her certificate of 
registration, and any unexecuted order forms in his/her possession, to 
the Registration Unit, Drug Enforcement Administration'').
    The Respondent does not dispute that he no longer is working at his 
DEA registered location. However, the Respondent argues that the 
closure of his medical practice at 104 Mill Road Woodstock, N.Y. is the 
result of the consensual Interim Order issued by the New York Board and 
cannot form the basis for a termination of his DEA registration. 
[Response at 3].
    In this case, there is insufficient evidence to support a finding 
that the Respondent has permanently ceased the practice of medicine and 
therefore, the Court declines to address the issue of whether or not 
the Respondent's DEA registration terminates by operation of law. See 
John B. Freitas, D.O., 74 FR 17,524, 17,525 (DEA 2009) (finding that a 
registrant's registration had not terminated because the registrant had 
not permanently ceased the practice of medicine or returned his 
registration for cancellation); William R. Lockridge, M.D., 71 FR 
77,791, 77,797 (DEA 2006) (interpreting 21 CFR 1301.52(a) to require a 
registrant to permanently cease the practice of medicine). Therefore, 
because there is insufficient evidence to determine whether the 
Respondent intends to permanently cease the practice of medicine, the 
Court declines to address whether the Respondent's DEA registration has 
terminated as a matter of law.

C. Respondent Is Entitled To Reapply for Registration With the DEA

    Any person who is required to register with the DEA may apply for 
registration at any time. 21 CFR 1301.13(a) (2012) (``Any person who is 
required and who is not registered may apply for registration at any 
time. No person required to be registered shall engage in any activity 
for which registration is required until the application for 
registration is granted and a Certificate of Registration is issued by 
the Administrator to such person'').
    Respondent requests that he be able to reapply for a Certificate of 
Registration with the DEA, when, and if, his medical license becomes 
active. [Response at 3].
    The Respondent is permitted to reapply for a Certificate of 
Registration with the DEA at any time in the future. 21 CFR 1301.13(a). 
However, the Respondent will not be permitted to engage in activity for 
which a registration is required until his application is granted by 
the DEA. Id.

III. Conclusion, Order, and Recommendation

    Consequently, there is no genuine dispute of material fact 
regarding the Respondent's lack of state authority to handle controlled 
substances. Thus, summary judgment for the Government is appropriate. 
It is well settled that when there is no question of material fact 
involved, there is no need for a plenary, administrative hearing. See 
Michael G. Dolin, M.D., 65 Fed. Reg. 5,661 (DEA 2000). Here, there is 
no genuine dispute that the Respondent currently lacks state authority 
to practice medicine and to handle controlled substances in New York.
    Accordingly, I hereby grant the Government's Motion for Summary 
Judgment.
    I also forward this case to the Deputy Administrator for final 
disposition. I recommend that the Respondent's DEA Certificate of 
Registration, Number BL9651250, be revoked.\1\
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    \1\ The sole basis of my recommendation is the loss of 
Respondent's state licensure. I make no findings or conclusions 
concerning the other allegations asserted in the Order to Show 
Cause.


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    September 6, 2012.

Gail A. Randall,
Administrative Law Judge.


[FR Doc. 2012-27546 Filed 11-9-12; 8:45 am]
BILLING CODE 4410-09-P