[Federal Register Volume 82, Number 80 (Thursday, April 27, 2017)]
[Notices]
[Pages 19383-19385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08450]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 17-4]


Robert Clark Maiocco, M.D.; Decision and Order

    On September 22, 2016, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration, issued an Order to 
Show Cause to Robert Clark Maiocco, M.D. (Respondent), of Denver, 
Colorado. The Show Cause Order proposed the revocation of Respondent's 
DEA Certificate of Registration No. AM2281688, and the denial of any 
applications to renew or modify his registration, as well as the denial 
of ``any applications for any other DEA registrations,'' on the ground 
that he has ``no state authority to handle controlled substances.'' 
Show Cause Order, at 1 (citing 21 U.S.C. 824(a)(3) and 823(a)(3)).\1\
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    \1\ As for the citation to 21 U.S.C. 823(a)(3), this provision 
is a public interest factor applicable to applicants for 
registration to manufacture schedule I and II controlled substances, 
which directs the Agency to consider the ``promotion of technical 
advances in the art of manufacturing these substances and the 
development of new substances.'' This provision is not applicable to 
this case, which involves a practitioner registered under section 
823(f).
     While the Government also proposes the denial of ``any 
applications for any other DEA registrations,'' because this 
proceeding is based solely on Respondent's lack of state authority 
in Colorado, the Agency's authority to deny an application is 
limited to an application for a registration in Colorado.
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    As to the Agency's jurisdiction, the Show Cause Order alleged that 
Respondent is registered ``as a practitioner in Schedules II through 
V'' under the above registration, at the location of ``Colorado 
Lipidology Associates, 633 17th Street, Ste. 100, Denver, Co.'' Id. The 
Order alleges that Respondent's registration does not expire until 
January 31, 2019. Id.
    As to the substantive ground for the proceeding, the Show Cause 
Order alleged that ``[o]n July 19, 2016, the Colorado Medical Board 
suspended [Respondent's] medical license.'' Id. at 2. The Show Cause 
Order then alleged that Respondent is ``currently without authority to 
practice medicine or handle controlled substances in the State of 
Colorado, the [S]tate in which [he is] registered with'' DEA, and that 
as a consequence, his registration is subject to revocation.\2\
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    \2\ The Show Cause Order also notified Respondent of his right 
to request a hearing or to submit a written statement in lieu of a 
hearing, the procedure for electing either option, and the 
consequence of failing to elect either option. Show Cause Order, at 
2. Also, the Show Cause Order notified Respondent of his right to 
submit a Corrective Action Plan. 21 U.S.C. 824(c)(2)(C).
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    Following service of the Show Cause Order, Respondent requested a 
hearing. The matter was placed on the docket of the Office of 
Administrative Law Judges and assigned to ALJ Charles Wm. Dorman who 
issued an order directing the Government to file evidence supporting 
the allegation and ``any motion for summary disposition'' by 2 p.m. on 
November 7, 2016. Briefing Schedule For Lack Of State Authority 
Allegations (Briefing Schedule), at 1. In

[[Page 19384]]

the same order, the ALJ directed Respondent to file any reply to the 
Government's motion by 2 p.m. on November 18, 2016. Noting that in his 
hearing request, Respondent had sought to hold the proceeding in 
abeyance ``pending the resolution of the Colorado [Board] matter either 
via a negotiated disposition or a final agency order following the 
hearing . . . set for June 26-30, 2017,'' Resp. Hrng. Req., at 2; the 
ALJ ordered that ``if the Respondent wishes to formally request a 
continuance in this case, he must do so in a written motion for 
continuance.'' Briefing Schedule, at 1.
    On November 3, 2016, Respondent moved for a continuance of all 
proceedings in the matter until and including January 3, 2017. Resp.'s 
Mot. for Continuance, at 1. As grounds for the continuance, Respondent 
argued that the suspension of his state license was not a final agency 
action, that the state administrative case was currently being 
litigated, that the parties were engaged in active negotiations to 
resolve the matter ``via a stipulated disposition that would allow 
[him] to return to the active practice of medicine,'' and that ``such a 
negotiated disposition may be reached within the next 45 to 60 days.'' 
Id. at 2. Upon receipt of the motion, the ALJ ordered the Government to 
file a response by 2 p.m. on November 10, 2016; he also extended the 
deadline for the Government to file its summary disposition motion 
until November 18, 2016 and for Respondent to file his reply until 
November 30, 2016. Order for Government's Response to Respondent's 
Motion to Stay Proceedings, at 1.
    On November 10, 2016, the Government filed a pleading which 
combined its Opposition to Respondent's Motion for Continuance and its 
Motion for Summary Disposition. Gov.'s Opp. to Resp.'s Mot. to Stay 
Proceedings and Gov.'s Mot. for Summ. Disp. (hereinafter, Mot. for 
Summ. Disp.), at 1. With respect to Respondent's stay motion, the 
Government suggested that Respondent's statements regarding the timing 
of a negotiated resolution of the state matter was speculative. Id. at 
4. The Government then cited Agency precedent to argue that ``even if 
the period of suspension is temporary or if there is the potential that 
Respondent's state controlled substance privileges will be reinstated, 
summary disposition is warranted because `revocation is also 
appropriate when a state license has been suspended, but with the 
possibility of future reinstatement.' '' Id. (quoting Roger A. 
Rodriguez, 70 FR 33206, 33207 (2005) (other citations omitted)). The 
Government thus maintained that Respondent's Motion for Continuance 
should be denied. Id.
    As for the Government's Motion for Summary Disposition, it argued 
that based on the Order of Suspension issued to Respondent by the 
Colorado Medical Board, he does not have ``authority to prescribe, 
administer, or dispense controlled substances in the State of 
Colorado.'' Mot. for Summ. Disp., at 3. The Government argued that 
there is no dispute as to this material fact, id. at 2, and that 
``[a]bsent authority by the State of Colorado to dispense controlled 
substances, Respondent is not authorized to possess a DEA registration 
in that state.'' Id. at 3 (citing 21 U.S.C. 802(21), 823(f), 824(a)(3), 
and Layfe Robert Anthony, 67 FR 35582 (2002)). The Government further 
argued that ``DEA does not have statutory authority to maintain a 
registration if the registrant is without state authority to handle 
controlled substances,'' and that therefore, Respondent's registration 
should be revoked. Id. (citation omitted).
    On November 14, 2016, the ALJ denied Respondent's Motion for 
Continuance. Order Denying the Respondent's Motion for Continuance, at 
1. The ALJ's explained that ``[i]t is settled DEA precedent `that the 
existence of other proceedings in which Respondent is involved is not a 
basis upon which to justify a stay of DEA administrative enforcement 
proceedings.'' Id. (quoting James Alvin Chaney, 80 FR 57391, 57393 
(2015)).
    On November 30, 2016, Respondent submitted a pleading captioned: 
``Respondent's Motion For Extension Of Time In Which To Submit His 
Response To The Government's Motion for Summary Disposition And, In The 
Alternative, His Response To The Government's Motion For Summary 
Disposition'' (hereinafter, Extension Mot.). Therein, Respondent 
represented that he had ``submitted a proposed Stipulation and Final 
Agency Order to'' the Colorado Board, ``which, if agreed to by the 
[Board], would result in the lifting of the suspension and the 
restoration of'' his controlled substance dispensing authority in 
Colorado. Extension Mot., at 1-2. Respondent further represented that 
the proposed Stipulation was to be considered by the Board at its 
December 15, 2016 meeting and expressed his optimism that the Board 
would accept the Stipulation. Id. at 2. Further noting that the Board's 
decision would be dispositive of this matter either way, Respondent 
sought an extension of the time until December 20, 2016 to file his 
response to the Government's pending Motion for Summary Disposition. 
Id.
    Citing ``the interest of administrative/judicial economy,'' the ALJ 
granted Respondent's motion and ordered Respondent to file his evidence 
of reinstatement and his Response to the Motion for Summary Disposition 
by December 20, 2016. Order Granting Respondent's Motion for Extension 
in Which to Submit His Response to the Government's Mot. for Summary 
Disposition, at 2. On December 20, 2016, Respondent filed his Response 
and a Status Report. Response to Gov. Mot. for Summ. Disp. and Status 
Rep., at 1. Therein, Respondent advised that ``the parties in [the 
Board's proceeding] were unable to reach a resolution and [that] the 
matter will proceed to a hearing'' scheduled for June 26 through June 
30, 2017. Id. Respondent further acknowledged that his medical license 
had not been reinstated. Id.
    The same day, the ALJ granted the Government's Motion. The ALJ 
noted that ``[t]o maintain a DEA registration, a practitioner must be 
currently authorized to handle controlled substances in the 
jurisdiction in which the practitioner is registered.'' R.D. at 3 
(citing 21 U.S.C. 802(21), 823(f)). Finding that there was no dispute 
over the material fact that ``Respondent lacks state authorization to 
handle controlled substances in Colorado,'' the State in which he is 
registered with DEA, the ALJ granted the Government's Motion and 
recommended that Respondent's registration be revoked. Id. at 3-4.
    Neither party filed exceptions to the Recommended Decision. 
Thereafter, the ALJ forwarded the record to my Office for final agency 
action. Having considered the record, I adopt the ALJ's factual 
finding, legal conclusions and recommended order. I make the following 
factual findings.

Findings of Fact

    Pursuant to 5 U.S.C. 556(e), I take official notice of Respondent's 
registration record with the Agency. According to the record, 
Respondent is the holder of Certificate of Registration No. AM2281688, 
pursuant to which he is authorized to dispense controlled substances in 
schedules II through V as practitioner, at the registered address of 
Colorado Lipidology Associates, 633 17th Street, Suite 100, Denver, 
Colorado. Respondent's registration does not expire until January 31, 
2019.\3\ Accordingly, I find that Respondent has

[[Page 19385]]

an active registration and that the Agency has jurisdiction.\4\
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    \3\ Respondent may refute these findings (as well as any other 
finding based on my taking of official notice) by filing a properly 
supported motion for reconsideration no later than 10 business days 
from the date of this Order.
    \4\ I note that the Government did not submit any evidence 
regarding the status of Respondent's registration with its Motion 
for Summary Disposition. DEA's regulations do not require responsive 
pleading to the allegations of a Show Cause Order. Thus, the failure 
of a respondent to refute an allegation in his hearing request does 
not constitute an admission of the allegation and the Government 
maintains the burden of providing evidence establishing the Agency's 
jurisdiction as part of its Motion. The Agency has also noted in 
several decisions that even in those matters which are adjudicated 
on summary disposition, the ALJ is obligated to make findings as to 
the Agency's jurisdiction. See James Alvin Chaney, 80 FR 57391, 
57391 n.1 (2015); Sharad C. Patel, 80 FR 28693, 28694 n.3 (2015).
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    Respondent is also the holder of license number DR-36651, pursuant 
to which he is authorized to practice medicine as a physician by the 
Medical Board of Colorado. Mot. for Summ. Disp., Ex. 1, at 1. However, 
effective on July 19, 2016, the Board suspended Respondent's medical 
license ``pending proceedings for suspension or revocation.'' Id. at 2. 
According to the online records of the Colorado Division of Professions 
and Occupations, Respondent's suspension remains in effect as of the 
date of this Decision and Order. See 5 U.S.C. 556(e).

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 the 
Controlled Substances Act (CSA), ``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.'' 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, 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 he 
practices.'' 21 U.S.C. 823(f).
    Because ``the controlling question'' in a proceeding brought under 
21 U.S.C. 824(a)(3) is whether the holder of a DEA 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)), the Agency has also long held that revocation is warranted 
even where a practitioner has lost his state authority by virtue of the 
State's use of summary process and the State has yet to provide a 
hearing to challenge the suspension. Bourne Pharmacy, 72 FR 18273, 
18274 (2007); Wingfield Drugs, 52 FR 27070, 27071 (1987). Thus, it is 
of no consequence that the Colorado Medical Board has employed summary 
process in suspending Registrant's state license and that Respondent 
may prevail at the hearing schedule for late June.
    Here, there is no dispute over the material fact that Respondent is 
no longer currently authorized to dispense controlled substances in 
Colorado, the State in which he is registered. Accordingly, I adopt the 
ALJ's recommendation that Respondent's registration be revoked.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration 
AM2281688, issued to Robert Clark Maiocco, M.D., be, and it hereby is, 
revoked. Pursuant to the authority vested in me by 21 U.S.C. 823(f), I 
further order that any pending application of Robert C. Maiocco, M.D., 
to renew or modify his registration, be, and it hereby is, denied. This 
Order is effective immediately.\5\
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    \5\ For the same reasons that led the Colorado Board to 
summarily suspend Registrant's medical license, I find that the 
public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Dated: April 18, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-08450 Filed 4-26-17; 8:45 am]
 BILLING CODE 4410-09-P