[Federal Register Volume 81, Number 53 (Friday, March 18, 2016)]
[Notices]
[Pages 14890-14892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-06103]


=======================================================================
-----------------------------------------------------------------------

 DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 16-5]


Kristen Lee Raines, A.P.R.N.; Decision and Order

    On September 16, 2015, the Deputy Assistant Administrator, Office 
of Diversion Control, Drug Enforcement Administration, issued an Order 
to Show Cause to Kristen Lee Raines, A.P.R.N. (hereinafter, 
Respondent), of Little Rock, Arkansas. The Show Cause Order proposed 
the revocation of Respondent's DEA Certificate of Registration 
MR1972632, pursuant to which she is authorized to dispense controlled 
substances in schedules III through V, as a mid-level practitioner, as 
well as the denial of any pending applications to renew or modify her 
registration, on the ground that she does not have authority to 
dispense controlled substances in Arkansas, the State in which she 
holds her registration. Show Cause Order at 1.
    The Show Cause Order alleged that Respondent's registration will 
not expire until April 30, 2018. Id. The Show Cause Order then alleged 
that the Arkansas State Board of Nursing had issued an Order, which 
summarily suspended Respondent's nursing and advance practice nursing 
licenses effective on June 19, 2015. Id. The Show Cause Order thus 
alleged that Respondent is ``without authority to handle controlled 
substances in Arkansas,'' and as a consequence, her DEA registration is 
subject to revocation. Id. (citing 21 U.S.C. 802(21), 823(f), and 
824(a)(3)).
    Following service of the Show Cause Order, Respondent, through her 
counsel, requested a hearing on the allegations. In her hearing 
request, Respondent did not dispute that her registration does not 
expire until April 30, 2018. Resp. Hearing Req., at 1. Nor did she 
dispute that the Arkansas State Board of Nursing had summarily 
suspended her nursing and advance practice nursing licenses. Id. 
Instead, Respondent objected to the proposed action ``on the grounds 
that the Show Cause Order and suspension of her Arkansas nursing 
license and advance practice nursing license stem from unfounded and 
unsubstantiated allegations that she violated . . . 21 U.S.C. 841(a)(1) 
and (b)(1)(e) by the U.S. Attorney in'' a criminal case brought against 
her in the Eastern District of Arkansas. Id. Respondent further 
asserted that ``she did not knowingly or intentionally distribute 
[h]ydrocodone and [a]lprazolam . . . without an effective 
prescription.'' Id. Respondent further stated that she has pled not 
guilty to the charges and believes that she will be acquitted. Id.
    Thereafter, the matter was placed on the docket of the Office of 
Administrative Law Judges and assigned to Chief Administrative Law 
Judge John J. Mulrooney, II (hereinafter, CALJ). On October 20, 2015, 
the CALJ issued an order directing the Government to file evidence to 
support the allegation and any motion for summary disposition by 
October 30, 2015; the order also provided that Respondent should 
respond to the Government's expected motion no later than November 13, 
2015.
    On October 26, 2015, the Government filed its Motion for Summary 
Disposition. As support for the Motion, the Government attached a copy 
of the decision and order of the Arkansas State Board of Nursing, which 
summarily suspended Respondent's advance practice nursing license and 
nursing license effective June 19, 2015. Mot. for Summ. Disp., at 
Attachment 3, at 3 (Findings of Fact, Conclusions of Law, and Order, at 
3; In re Kristen Lee Raines Plant Raines (Ark. Bd. of Nursing, June 19, 
2015) (hereinafter, Nursing Board Order). The Government also provided 
a printout from the Nursing Board's Web site (dated September 4, 2015) 
showing that both Respondent's RN and Certified Nurse Practitioner 
licenses were suspended. Mot. for Summ. Disp., at Attachment 4.
    Respondent opposed the Government's Motion. In her opposition, 
Respondent asserted that she has been wrongly accused, and that the 
State Board's suspension of her licenses is the ``result of her 
wrongful indictment.'' Resp. Reply to Govt's Mot. for Summ. Disp., at 
3. She further argued that the DEA may exercise discretion in 
determining the appropriate sanction and that revocation of her 
registration ``is an unjust and overly severe punishment given the 
circumstances, particularly that the

[[Page 14891]]

Government [i.e., the U.S. Attorney] admits it lacks the evidence to 
substantiate the criminal indictment against'' her. Id. at 5. She then 
maintains that suspending her registration ``pending the outcome [of 
the criminal case] is more appropriate and fair in light of the facts 
and circumstances of this case,'' and that ``[i]t would be a further 
miscarriage of justice to revoke her [registration] on top of her 
criminal indictment absent any corroborating evidence thereof.'' Id. at 
5-6.\1\
---------------------------------------------------------------------------

    \1\ In opposing the Government's motion, Respondent attached a 
copy of the indictment, as well as the Assistant United States 
Attorney's response and supplemental response to her motion to 
compel discovery. Respondent also submitted an affidavit in which 
she asserts that she is not guilty of the charges and that she is 
confident that the charges will either be dismissed or that she will 
be acquitted. Resp. Reply to Gov. Mot. for Summ. Disp., at Ex. C. 
Therein, she further asserts that she has requested a hearing on the 
Nursing Board's action, and that she ``expect[s] that [her] nursing 
licensed will be restored.'' Id. at 2. She also contends that due to 
the Board's actions against her licenses, ``the additional 
revocation of my [registration] would affect no change in my 
employment status and is unnecessary and would serve no public 
purpose.'' Id. She thus requested that the revocation of her 
registration be stayed pending the outcome of her criminal case and 
the Nursing Board's action. Id.
---------------------------------------------------------------------------

    On November 16, 2015, the CALJ granted the Government's motion. The 
CALJ correctly rejected Respondent's request for a stay of the 
proceedings, noting that a stay can rarely be justified by the 
existence of collateral proceedings.\2\ Order Granting Govt's Mot. for 
Summ. Disp., at 4 (citing Grider Drug #1 & Grider Drug #2, 77 FR 44070, 
44104 n.97 (2012)). Finding it undisputed ``that the Respondent lacks 
state authority to handle controlled substances in the [S]tate of 
Arkansas,'' the CALJ concluded that ``[b]ecause the Respondent lacks 
such state authority, both the plain language of applicable federal 
statutory provisions and Agency interpretive precedent dictate that she 
is not entitled to maintain her DEA registration.'' Order Granting 
Govt's Mot. for Summ. Disp., at 6. The CALJ thus recommended that I 
revoke Respondent's registration.
---------------------------------------------------------------------------

    \2\ In his Order, the CALJ noted that ``the Agency recently held 
revocation proceedings in abeyance at the post-hearing adjudication 
level for a lengthy period pending the resolution of criminal fraud 
charges.'' Order Granting Govt's Mot. for Summ. Disp., at 4-5 
(citing Odette L. Campbell, 80 FR 41062, 41064 (2015)). However, in 
Campbell, the respondent was indicted on 30 counts of health care 
fraud shortly before the hearing in the matter and also allowed her 
registration to expire; indeed, the respondent did not file a new 
application until three months after the hearing. See 80 FR at 
41063. Thus, at the time the Administrator's Office held the case in 
abeyance, Campbell no longer involved a revocation proceeding. 
Moreover, had the respondent been convicted on the health care fraud 
charges, she would have been subject to mandatory exclusion from 
federal health care programs and her application would have been 
subject to denial on this basis. See Arvinder Singh, 81 FR 8247 
(2016) (denying application based, in part, on physician's 
convictions for health care fraud and mandatory exclusion from 
federal health care programs pursuant to 42 U.S.C. 1320a-7(a)).
---------------------------------------------------------------------------

    Neither party filed exceptions to the CALJ's Recommended Decision. 
Thereafter, the record was forwarded to me for Final Agency Action. 
Having reviewed the record in its entirety, I adopt the CALJ's factual 
finding, his legal conclusion and recommended disposition. I make the 
following findings:

Findings of Fact

    Respondent is the holder of DEA Certificate of Registration 
MR1972632, pursuant to which she is authorized to dispense controlled 
substances in schedules III through V, as a mid-level practitioner, at 
the address of 14312 Ridgewood Dr., Little Rock, Arkansas 72211. Gov. 
Mot. for Summ. Disp., Attachment 1, at 1. Respondent's registration 
does not expire until April 30, 2018. Id.
    Respondent is also the holder of Advanced Practice Registered Nurse 
License A003251 and Registered Nurse License R063743 issued by the 
Arkansas State Board of Nursing. Nursing Board Order, at 1. On June 19, 
2015, the Board ordered the summary suspension of both of these 
licenses. Id. at 3. According to the results of an online search using 
the Arkansas Board's license verification page, Respondent's licenses 
remain suspended.

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, ``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.'' Moreover, 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 
practitioner's registration. See Alfred Tennyson Smurthwaite, 43 FR 
11873 (1978) (``State authorization to handle controlled substances is 
a prerequisite to the issuance and retention of a Federal controlled 
substances registration.'') (citations omitted).
    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 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 practices medicine. 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).
    Thus, the Agency has held that revocation is warranted even where, 
as here, the state board has suspended (as opposed to revoked) a 
practitioner's dispensing authority and that authority may be restored 
at some point in the future through further proceedings. See Ramsey 76 
FR at 20036 (citations omitted); see also Frederick Marsh Blanton, 43 
FR 27616 (1978) (revoking registration of physician whose medical 
license had been suspended for one year, but placed on probation for 
three years thereafter). As the Agency has held, the controlling 
question is not whether a practitioner's license to practice medicine 
in the state is suspended or revoked; rather, it is whether the 
Respondent is currently authorized to handle controlled substances in 
the state. James L. Hooper, 76 FR 71371 (2011) (collecting cases), pet. 
for rev. denied, Hooper v. Holder, 481 Fed. Appx. 826 (4th Cir. 2012); 
Blanton, 43 FR at 27616 (``As a result of the suspension of his medical 
license, the [r]espondent is no longer authorized to dispense or 
otherwise handle controlled substances under the laws of Florida. 
Accordingly . . . the [r]espondent's DEA registration must be 
revoked[.]'').
    Respondent further argues that I should consider that the Nursing 
Board's case ``is the ``result of her wrongful indictment'' by the 
United States Attorney and that the latter has admitted that he ``lacks 
the evidence to substantiate the criminal indictment against'' her. 
This argument is simply a

[[Page 14892]]

collateral attack on the State Board's proceeding, whose order 
suspending her state authority remains in effect as of this date. The 
Agency has held, however, ``that a registrant cannot collaterally 
attack the result of a state criminal or administrative proceeding in a 
proceeding under section 304, 21 U.S.C. 824, of the CSA.'' Muzaffer 
Aslan, 77 FR 37068, 37069 (2012) (other citations omitted). ``Rather, 
Respondent's challenge to the validity of the [Nursing Board's] Order 
must be litigated in the forums provided by the State of [Arkansas], 
and [her] contentions regarding the validity of the [Board's] order are 
not material to this Agency's resolution of whether [she] is entitled 
to maintain [her] DEA registration in'' Arkansas. Id.
    Because it is undisputed that Respondent's Arkansas Advanced 
Practice Nursing License remains suspended, I find that she no longer 
has authority under the laws of Arkansas, the State in which she is 
registered, to dispense controlled substances. See Ark. Code Ann. 
Section 17-87-310 (b)(1) (``An advanced practice registered nurse with 
a certificate of prescriptive authority may receive and prescribe 
drugs, medicines, or therapeutic devices appropriate to the advanced 
practice registered nurse's areas of practice in accordance with rules 
established by the Arkansas State Board of Nursing.''). Therefore, she 
is not entitled to maintain her DEA registration. See 21 U.S.C. 
802(21), 823(f), 824(a)(3). Accordingly, I will order that her 
registration be revoked and that any pending application to renew or 
modify her registration be denied.\3\
---------------------------------------------------------------------------

    \3\ While Respondent also asked that I stay the revocation of 
her registration pending the resolution of the criminal case and 
nursing board proceeding, I decline to do so. As the Agency has 
previously explained, ``in circumstances similar to those raised by 
Respondent, DEA has repeatedly denied requests to stay the issuance 
of a final order of revocation, noting that [u]nder the Controlled 
Substances Act, a practitioner must be currently authorized to 
handle controlled substances in the jurisdiction in which [she] 
practices in order to maintain [her] DEA registration.'' Gregory F. 
Saric, 76 FR 16821, 16822 (2011) (internal quotations and citations 
omitted). Of further note, Respondent's advanced practice nursing 
license was suspended more than 8 months ago, and yet her license 
still remains suspended. And while Respondent asserts that the 
Nursing Board's suspension is the result of the wrongful indictment, 
she ignores that the Board's order also relied on her having 
``prescribed opioids from November 13, 2014 through January 7, 2015 
without prescriptive authority.'' Nursing Board Order, at 2.
---------------------------------------------------------------------------

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 MR1972632, issued to Kristen Lee Raines, A.P.R.N., be, and 
it hereby is, revoked. I further order that any application of Kristen 
Lee Raines, A.P.R.N., to renew or modify this registration be, and it 
hereby is, denied. This Order is effective immediately.\4\
---------------------------------------------------------------------------

    \4\ For the same reasons which led the Nursing Board to conclude 
``that an emergency exists constituting a threat to the public 
health, safety and welfare'' and to order the summary suspension of 
Respondent's licenses, I conclude that the public interest 
necessitates that this Order be effective immediately. 21 CFR 
1316.67.

    Dated: March 11, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016-06103 Filed 3-17-16; 8:45 am]
BILLING CODE 4410-09-P