[Federal Register Volume 82, Number 151 (Tuesday, August 8, 2017)]
[Notices]
[Pages 37113-37114]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-16700]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Leia A. Frickey, M.D.; Decision and Order
On February 28, 2017, the Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Leia A. Frickey, M.D. (Registrant), of New
Orleans, Louisiana. The Show Cause Order proposed the revocation of
Registrant's Certificate of Registration, the denial of any
applications to renew or modify her registration, and the denial of any
applications for any other DEA registration on the ground that she
lacks ``state authority to handle controlled substances'' in Louisiana,
the State in which she is registered with the DEA. Order to Show Cause,
at 1 (citing 21 U.S.C. 824(a)(3)).
With respect to the Agency's jurisdiction, the Show Cause Order
alleged that Registrant is registered as a practitioner in schedules II
through V, pursuant to DEA Certificate of Registration BF5029574, at
the address of 3312 South I-10 Service Road, Metairie, Louisiana. Id.
The Order also alleged that this registration does not expire until
September 30, 2017. Id.
As substantive grounds for the proceeding, the Show Cause Order
alleged that on May 6, 2016, the Louisiana State Board of Medical
Examiners issued a ``Notice of Summary Suspension of Medical License,
summarily suspending [Registrant's] medical license.'' \1\ Id. at 1. As
a result, the Order alleged that Registrant is ``currently without
authority to practice medicine or handle controlled substances in . . .
Louisiana, the [S]tate in which [she is] registered with the DEA.'' Id.
at 2. Thus, based on her ``lack of authority to [dispense] controlled
substances in . . . Louisiana,'' the Order asserted that ``DEA must
revoke'' her
[[Page 37114]]
registration. Id. (citing 21 U.S.C. 824(a)(3); 21 CFR 1301.37(b)).
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\1\ The Show Cause Order also alleges that ``on July 25, 2016,
the Louisiana Board of Pharmacy issued a Notice of Suspension,
suspending [Registrant's] Louisiana CDS license, number CDS.024813-
MD, effective May 6, 2016.'' Id. at 1-2. Although those exact facts
are not reflected in the record, the record does show that on
November 16, 2016, the Louisiana State Board of Pharmacy issued an
Order that Registrant's ``LOUISIANA CONTROLLED SUBSTANCE LICENSE No.
024813 is hereby indefinitely suspended in accordance with the
suspension of her medical license by the Louisiana State Board of
Medical Examiners on May 6, 2016.'' See Government Exhibit (GX) 4,
at 1.
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The Show Cause Order notified Registrant of her right to request a
hearing on the allegations or to submit a written statement in lieu of
a hearing, the procedure for electing either option, and the
consequence for failing to elect either option. Id. (citing 21 CFR
1301.43). The Show Cause Order also notified Registrant of her right to
submit a corrective action plan. Id. at 2-3 (citing 21 U.S.C.
824(c)(2)(C)).
The Government states that on March 16, 2017, ``[p]ersonnel from
DEA's New Orleans Field Division served the Order on Registrant.''
Government Request for Final Agency Action (RFFA), at 1 (citing
Government Exhibit (GX) 5). Specifically, a DEA Diversion Investigator
(DI) and DEA Task Force Officer traveled to a medical center in
Louisiana on March 16, 2017, where the nursing staff escorted them to
her room where they found the Registrant. GX5, at 1. The DI advised
Registrant that he had a Show Cause Order to serve on her. Id.
According to the DI's affidavit, the Registrant then responded `` `You
will not take my DEA number' and she refused to take the [Show Cause
Order] document.'' Id. The DI ``then placed the [Order] on the night
stand next to [Registrant's] bed.'' Id.
On May 19, 2017, the Government forwarded its Request for Final
Agency Action and an evidentiary record to my Office. Therein, the
Government represents that Registrant has neither requested a hearing
nor ``otherwise corresponded or communicated with DEA regarding'' the
Show Cause Order. RFFA, at 2. Based on the Government's representation
and the record, I find that more than 30 days have passed since the
Order to Show Cause was served on Registrant, and she has neither
requested a hearing nor submitted a written statement in lieu of a
hearing. Id. at 2 (citing 21 CFR 1301.43(d)). Accordingly, I find that
Registrant has waived her right to a hearing or to submit a written
statement and issue this Decision and Order based on relevant evidence
submitted by the Government. I make the following findings.
Findings of Fact
Registrant is a physician who is registered as a practitioner in
schedules II-V pursuant to Certificate of Registration BF5029574, at
the address of 3312 South I-10 Service Road, Metairie, Louisiana. GX 1,
at 1. The registration does not expire until September 30, 2017. Id.
On May 6, 2016, the Louisiana State Board of Medical Examiners
summarily suspended Registrant's medical license and stated that the
suspension was ``effective immediately.'' GX 3, at 1. On November 16,
2016, the Louisiana State Board of Pharmacy ``indefinitely suspended''
Registrant's controlled substance license ``in accordance with the
suspension of her medical license by the Louisiana State Board of
Medical Examiners on May 6, 2016.'' GX 4, at 1. Based on the above, I
find that Registrant does not currently have authority under the laws
of Louisiana to dispense controlled substances.
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 Title
21, ``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.'' With respect to a practitioner,
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 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 [s]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 engages in professional practice. 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); Blanton, 43 FR 27616
(1978).
Moreover, because ``the controlling question'' in a proceeding
brought under 21 U.S.C. 824(a)(3) is whether the holder of a
practitioner's 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
her 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 Louisiana
State Board of Medical Examiners has employed summary process in
suspending Registrant's state medical license. What is consequential is
that Registrant is no longer currently authorized to dispense
controlled substances in Louisiana, the State in which she is
registered. I will therefore order that her registration be revoked.
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 No. BF5029574, issued to Leia A. Frickey, M.D., be, and it
hereby is, revoked. I further order that any pending application of
Leia A. Frickey to renew or modify the above registration, or any
pending application of Leia A. Frickey for any other registration, be,
and it hereby is, denied. This Order is effective immediately.
Dated: July 31, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-16700 Filed 8-7-17; 8:45 am]
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