[Federal Register Volume 81, Number 183 (Wednesday, September 21, 2016)]
[Notices]
[Pages 64949-64951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22751]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Kevin L. Lowe, M.D.; Decision and Order
On May 18, 2016, Chief Administrative Law Judge John J. Mulrooney,
II (CALJ), issued the attached Recommended Decision (R.D.).\1\ Therein,
the CALJ found that it is undisputed that Respondent is currently
without authority to handle controlled substances in New York, the
State in which he holds DEA Registration FL2580163. R.D. at 4. The CALJ
thus granted the Government's Motion for Summary Disposition and
recommended that I revoke Respondent's registration and deny any
pending applications.
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\1\ All citations to the Recommended Decision are to the slip
opinion issued by the CALJ.
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Neither party filed exceptions to the Recommended Decision. Having
reviewed the record, I adopt the CALJ's finding that Respondent lacks
state authority to handle controlled substances in New York, the State
in which he is registered. ``State authorization to dispense or
otherwise handle controlled substances is a prerequisite to the
issuance and maintenance of a Federal controlled substances
registration.'' Frederick Marsh Blanton, 43 FR 27616, 27617 (1978). See
also Rezik A. Saqer, 81 FR 22122, 22124-127 (2016). Thus, once the
Government establishes that an applicant for a practitioner's
registration or a practitioner-registrant does not possess state
authority, there are no further facts to be considered and revocation
is the mandatory sanction that must be entered under the Controlled
Substances Act. Accordingly, I will also adopt the CALJ's
recommendation that I revoke Respondent's registration and deny any
pending application to renew or modify his registration.
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 FL2580163 issued to Kevin L. Lowe, M.D., be, and it hereby
is, revoked. I further order that any pending application of Kevin L.
Lowe, M.D., to renew or modify the above registration, be, and it
hereby is, denied. This Order is effective immediately.\2\
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\2\ Based on Respondent's acknowledgment that he has been
convicted of conspiring to unlawfully distribute controlled
substances, see Resp.'s Hrng. Req., at 1-2, I find that the public
interest necessitates that this Order be effective immediately. 21
CFR 1316.67.
[[Page 64950]]
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Dated: September 14, 2016.
Chuck Rosenberg,
Acting Administrator.
Order Granting the Government's Motion for Summary Disposition and
Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision
of the Administrative Law Judge
Chief Administrative Law Judge John J. Mulrooney, II. The Deputy
Assistant Administrator, Drug Enforcement Administration (DEA), issued
an Order to Show Cause (OSC), dated March 28, 2016, proposing to revoke
the DEA Certificate of Registration (COR), Number FL2580163,\3\ of
Kevin L. Lowe, M.D. (Respondent), pursuant to 21 U.S.C. 824(a)(3) and
21 U.S.C. 823(f). In the OSC, the DEA avers that the Respondent's lack
of ``authority to handle controlled substances in the State of New
York, the state in which [the Respondent is] registered with the DEA,''
is a basis for revocation of the Respondent's COR.\4\
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\3\ The Respondent's DEA COR is current and expires by its terms
on March 31, 2017. Gov't Mot. App'x A.
\4\ The OSC also alleges that the Respondent was convicted of
one count of conspiracy to distribute narcotics involving oxycodone
in violation of 21 U.S.C. 846. OSC at 1.
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The Respondent, pro se, timely filed a Request for Hearing dated
April 3, 2016,\5\ wherein he conceded that he is currently without
state authority to handle controlled substances. See Req. for Hr'g at 1
(stating that his ``imprisonment has prevented [him] from renewing his
state license''). The Respondent also maintained that he is innocent of
the crime for which he was convicted and is in the process of appealing
his conviction. Id. at 1, 3.
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\5\ Respondent apparently filed the Request for Hearing with the
Office of Diversion Control, and Government counsel forwarded the
request to the Office of Administrative Law Judges on April 11,
2016.
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On April 22, 2016, the Government filed a Motion for Summary
Disposition, seeking a Recommended Decision granting the Government's
Motion because Respondent is currently without authority to handle
controlled substances in New York. Gov't Mot. at 1. Appended to its
Motion, the Government provided a Certification by Cathy Hanczaryk,
legal custodian of the official records of the Division of Professional
Licensing Services of the New York State Education Department, in which
Ms. Hanczaryk attests that the Respondent ``is not currently registered
to practice the profession [of medicine] in New York'' and has not been
so registered since October 31, 2015. Gov't Mot. App'x B. Ms.
Hanczaryk's Certification further states that the Respondent ``has not
filed a registration renewal application for the period of'' November
1, 2015 to October 31, 2017. Id. According to a supporting Declaration
by Diversion Investigator (DI) Chante Jones, also appended to the
Government's Motion, DI Jones personally obtained the Certification by
Ms. Hanczaryk after learning that the Respondent, who had been
convicted in federal district court, did not have an active license to
practice medicine in New York and has been without one since October
31, 2015. Gov't Mot. App'x C at 1-2.
The Respondent's reply to the Government's motion was due on May
11, 2016.\6\ Having afforded an additional week of time in the event
that the Respondent's reply was mailed but not timely, the Government's
motion would appropriately be granted as unopposed. Even without doing
so, however, the Government's motion must be granted on the existing
record.
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\6\ The Government requested additional time to file its Motion,
which was granted, and the Respondent's original due date was
likewise extended.
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In order to revoke a registrant's DEA registration, the DEA has the
burden of proving that the requirements for revocation are satisfied.
21 CFR 1301.44(e). Once the DEA has made its prima facie case for
revocation of the registrant's DEA COR, the burden of production then
shifts to the Respondent to show that, given the totality of the facts
and circumstances in the record, revoking the registrant's COR would
not be appropriate. Morall v. DEA, 412 F.3d 165, 174 (D.C. Cir. 2005);
Humphreys v. DEA, 96 F.3d 658, 661 (3d Cir. 1996); Shatz v. U.S. Dep't
of Justice, 873 F.2d 1089, 1091 (8th Cir. 1989); Thomas E. Johnston, 45
FR 72311, 72312 (1980).
The Controlled Substances Act (CSA) requires that, in order to
maintain a DEA registration, a practitioner must be authorized to
handle controlled substances in the state in which he practices. See 21
U.S.C. 823(f) (``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.''); see
also 21 U.S.C. 802(21) (the CSA defines ``practitioner'' as ``a
physician . . . licensed, registered, or otherwise permitted, . . . by
the jurisdiction in which he practices . . . to . . . dispense [or]
administer . . . a controlled substance in the course of professional
practice''). DEA has long held that possession of authority under state
law to dispense controlled substances is not only a prerequisite to
obtaining a registration, but also an essential condition for
maintaining one. Serenity Caf[eacute], 77 FR 35027, 35028 (2012); David
W. Wang, M.D., 72 FR 54297, 54298 (2007); Sheran Arden Yeates, M.D., 71
FR 39130, 39131 (2006); Dominick A. Ricci, M.D., 58 FR 51104, 51105
(1993); Bobby Watts, M.D., 53 FR 11919, 11920 (1988). Because
``possessing authority under state law to handle controlled substances
is an essential condition for holding a DEA registration,'' this Agency
has consistently held that ``the CSA requires the revocation of a
registration issued to a practitioner who lacks [such] authority.''
John B. Freitas, D.O., 74 FR 17524, 17525 (2009); see James Alvin
Chaney, M.D., 80 FR 57391, 57391 (2015); Scott Sandarg, D.M.D., 74 FR
17528, 17529 (2009); Roy Chi Lung, M.D., 74 FR 20346, 20347 (2009);
Roger A. Rodriguez, M.D., 70 FR 33206, 33207 (2005); Stephen J. Graham,
M.D., 69 FR 11661, 11662 (2004); Abraham A. Chaplan, M.D., 57 FR 55280,
55280-81 (1992); see also Harrell E. Robinson, M.D., 74 FR 61370, 61375
(2009) (Agency revoked a registration based on loss of state authority
after hearing before an ALJ, but also considered the public interest
factors in its analysis); but see 21 U.S.C. 824(a)(3) (loss of state
authority constitutes a discretionary basis for sanction, not a
mandatory basis). The Agency has deemed this rule to be applicable
``not only where a registrant's state authority has been suspended or
revoked, but also where a practitioner with an existing DEA
registration has lost his state authority for reasons other than
through formal disciplinary action of a State board,'' such as
``expiration of [a] state license.'' Freitas, 74 FR at 17525 (citing
William D. Levitt, D.O., 64 FR 49822, 49823 (1999)); see Mark L. Beck,
D.D.S., 64 FR 40899, 40900 (1999); Charles H. Ryan, M.D., 58 FR 14430,
14430 (1993).
Congress does not intend for administrative agencies to perform
meaningless tasks. See Philip E. Kirk, M.D., 48 FR 32887 (1983), aff'd
sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984); see also Puerto
Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 605 (1st Cir. 1994);
NLRB v. Int'l Assoc. of Bridge, Structural & Ornamental Ironworkers,
AFL-CIO, 549 F.2d 634 (9th Cir. 1977); United States v. Consol. Mines &
Smelting Co., 455 F.2d 432, 453 (9th Cir. 1971). Thus, it is well-
settled that, where no genuine question of fact is involved or when the
material facts are agreed upon, a plenary, adversarial administrative
proceeding is not required. See Jesus R. Juarez, M.D., 62 FR 14945
(1997);
[[Page 64951]]
Dominick A. Ricci, M.D., 58 FR 51104 (1993). Here, the supplied
Certification by Ms. Hanczaryk establishes, and the Respondent
concedes,\7\ that the Respondent is currently without authorization to
handle controlled substances in New York, the jurisdiction where the
Respondent holds the DEA COR that is the subject of this litigation.
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\7\ The Respondent conceded his lack of state authority in his
Request for Hearing. Req. for Hr'g at 1 (stating that his
``imprisonment has prevented [him] from renewing his state
license'').
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Summary disposition of an administrative case is warranted where,
as here, ``there is no factual dispute of substance.'' Veg-Mix, Inc. v.
U.S. Dep't of Agric., 832 F.2d 601, 607 (D.C. Cir. 1987) (``[A]n agency
may ordinarily dispense with a hearing when no genuine dispute
exists.''). At this juncture, no genuine dispute exists over the fact
that the Respondent lacks state authority to handle controlled
substances in New York. Because the Respondent lacks such state
authority, Agency precedent dictates that he is not entitled to
maintain his DEA registration. Simply put, there is no contested
factual matter adducible at a hearing that would, in the Agency's view,
provide authority to allow the Respondent to continue to hold his
COR.\8\
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\8\ However, should the Respondent's state authority be renewed,
he may apply for a new DEA COR. See Franklyn Seabrooks, M.D., 79 FR
44196, 44197 n.1 (2014).
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Accordingly, I hereby Grant the Government's Motion for Summary
Disposition; and further Recommend that the Respondent's DEA
registration be Revoked forthwith, and any pending applications for
renewal be Denied.
Dated: May 18, 2016.
John J. Mulrooney, II
Chief Administrative Law Judge.
[FR Doc. 2016-22751 Filed 9-20-16; 8:45 am]
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