[Federal Register Volume 83, Number 122 (Monday, June 25, 2018)]
[Notices]
[Pages 29573-29575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13530]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 18-15]


Decision and Order: Kevin G. Morgan, RN/APN

    On December 22, 2017, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Kevin G. Morgan, RN/APN (Respondent), of 
Nederland, Texas. The Show Cause Order proposed the revocation of 
Respondent's DEA Certificate of Registration No. MM2890312 on the 
ground that he does ``not have authority to handle controlled 
substances in the state of Texas, the state in which [Respondent is] 
registered with the DEA.'' Order to Show Cause, at 1 (citing 21 U.S.C. 
823(f), 824(a)(3)).
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Respondent is the holder of Certificate of Registration 
No. MM2890312, pursuant to which he is authorized to dispense 
controlled substances as a practitioner in schedules III through V, at 
the registered address

[[Page 29574]]

of 1003 Nederland Ave., Nederland, Texas. Id. The Order also alleged 
that this registration does not expire until January 31, 2019. Id.
    Regarding the substantive ground for the proceeding, the Show Cause 
Order alleged that on December 1, 2017, the Texas State Board of 
Nursing (TSBN), ``suspended [Respondent's] nursing license, including 
[Respondent's] prescriptive authority'' and that ``[t]his suspension 
remains in effect.'' Id. at 2. The Order alleged that the TSBN's 
suspension was ``based on allegations that [Respondent] acted outside 
[his] authorized scope of practice and misrepresented information to 
the public which was likely to deceive the public.'' Id. The Order 
further alleged that Respondent is therefore ``without authority to 
handle controlled substances in Texas, the [S]tate in which [he is] 
registered with the DEA.'' Id. Based on his ``lack of authority to 
[dispense] controlled substances in . . . Texas,'' the Order asserted 
that ``DEA must revoke'' his registration. Id. (citing 21 U.S.C. 
802(21), 823(f)(1), 824(a)(3)).
    The Show Cause Order notified Respondent of (1) his right to 
request a hearing on the allegations or to submit a written statement 
in lieu of a hearing, (2) the procedure for electing either option, and 
(3) the consequence for failing to elect either option. Id. at 2-3 
(citing 21 CFR 1301.43). The Show Cause Order also notified Respondent 
of his right to submit a corrective action plan. Id. at 3-4 (citing 21 
U.S.C. 824(c)(2)(C)).
    On January 23, 2018, Respondent filed a letter with the Office of 
Administrative Law Judges (OALJ) in which he requested a hearing on the 
allegation of the Show Cause Order and stated his desire to explain 
``how he is not a threat, provided great care, and how the State of 
Texas erroneously and wrongly suspended his license.'' Letter from 
Respondent's Counsel to Hearing Clerk (dated January 22, 2018) 
(hereinafter, Hearing Request), at 1. The matter was placed on the 
OALJ's docket and assigned to Chief Administrative Law Judge John J. 
Mulrooney, II (hereinafter, CALJ). On January 23, 2018, the CALJ issued 
an order entitled ``Order Directing the Filing of Government Evidence 
of Lack of State Authority Allegation and Briefing Schedule'' 
(hereinafter, ``Briefing Order'') in which the CALJ found, inter alia, 
that ``the Respondent, by counsel, filed a letter which requested a 
hearing in the matter of [sic] order to show cause. Therefore, the 
letter is construed as the Respondent's Request for Hearing.'' Briefing 
Order, at 1.
    Pursuant to 21 CFR 1301.43(a), ``any person entitled to a hearing . 
. . and desiring a hearing shall, within 30 days after the date of 
receipt of the order to show cause, . . . file with the Administrator a 
written request for a hearing.'' Accord Show Cause Order, at 2. The 
CALJ did not indicate in his Briefing Order or in his Recommended 
Decision--and the rest of the administrative record does not indicate--
when Respondent received the Show Cause Order. Without any evidence in 
the record establishing when Respondent received the Show Cause Order, 
the only way in which I could find that Respondent's Hearing Request 
was timely is if it had been filed with the Administrator within 30 
days of the December 22, 2017 date of the Show Cause Order. However, 
the OALJ did not receive Respondent's Hearing Request until January 23, 
2018.\1\ Hearing Request, at 1. Accordingly, I find that Respondent's 
Hearing Request was not timely filed pursuant to 21 CFR 1301.43(a), and 
as a result, Respondent waived his right to a hearing.
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    \1\ Although the front of Respondent's Hearing Request is 
stamped ``Received'' by the Office of Administrative Law Judges on 
January 23, 2018, the fax confirmation page attached to the Hearing 
Request states that it arrived in that office on ``January 22, 
2018.'' Compare Hearing Request, at 1, with id. at 3. In any event, 
neither date is within 30 days of the December 22, 2017 date of the 
Show Cause Order.
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    In the absence of a timely hearing request, I also find that the 
CALJ consequently lacked jurisdiction to hear the case. Accord David A. 
Ruben, M.D., 83 FR 12027, 12028 (2018) (same) (citing Brown's Discount 
Apothecary BC, Inc., and Bolling Apothecary, Inc., 80 FR 57393, 57394 
(2015) (``in the absence of a hearing request, the ALJ had no authority 
to rule on the issue of whether its registration should be revoked'')). 
I therefore cancel the hearing nunc pro tunc held by the CALJ by 
summary disposition. See 21 CFR 1301.43(e); accord Ruben, 83 FR at 
12028. Accordingly, I will treat this case as a Request for Final 
Agency Action and issue this Decision and Order based on the relevant 
evidence forwarded to my office by the CALJ on March 19, 2018.\2\ See 
id. I make the following findings.
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    \2\ In his Briefing Order, the CALJ ordered the Government to 
file evidence to support its allegation that Respondent lacks state 
authority to handle controlled substances, and any motion for 
summary disposition on these grounds, on February 2, 2018. Briefing 
Order at 1-2. The CALJ also directed Respondent to file his response 
to any summary disposition motion on February 15, 2018. Id. at 2. On 
February 2, 2018, the Government filed its Motion for Summary 
Disposition, and the Respondent filed his response on February 15, 
2018. See Government's Motion for Summary Disposition (hereinafter, 
``Govt. Mot.''); Response to the DEA's Proposed Revocation and 
Motion to Temporarily Abate and Stay the Proceedings for Fifty Days 
(hereinafter, ``Respondent's Brief'' or ``Resp. Br.''). On February 
20, 2018, the CALJ issued his Order granting summary disposition and 
Recommended Decision. Order Granting the Government's Motion for 
Summary Disposition and Recommended Rulings, Findings of Fact, 
Conclusions of Law, and Decision (hereinafter, Recommended Decision 
or R.D.). Neither party filed exceptions to the CALJ's Recommended 
Decision. Although the CALJ's Recommended Decision did not establish 
that he had jurisdiction in this case, I will nonetheless consider 
the administrative record that he submitted to me in its entirety.
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Findings of Fact

    Respondent is a holder of DEA Certificate of Registration No. 
MM2890312. Government Exhibit (GX) 1 to Govt. Mot. Pursuant to his 
registration, Respondent is authorized to dispense controlled 
substances in schedules III through V as an ``MLP-Nurse Practitioner.'' 
Id. Respondent's registered address is 1003 Nederland Ave., Nederland, 
Texas. Id. Respondent's registration does not expire until January 31, 
2019. Id.
    On December 1, 2017, the TSBN issued an ``Order of Temporary 
Suspension'' stating that Respondent's ``Permanent Advanced Practice 
Registered Nurse License Number AP123323 with Prescription 
Authorization Number 13799 and Permanent Registered Nurse License 
Number 758246 . . . to practice nursing in the State of Texas is/are, 
hereby SUSPENDED IMMEDIATELY.'' GX 2, at 17. The TSBN issued this Order 
after finding that ``given the nature of the charges, the continued 
practice of nursing by [Respondent] constitutes a continuing and 
imminent threat to public welfare.'' Id. Finally, the TSBN stated that 
``a probable cause hearing be conducted . . . not later than seventeen 
(17) days following the date of the entry of this order, and a final 
hearing on the matter be conducted . . . not later than the 61st day 
following the date of the entry of this order.'' Id. There is no 
evidence in the record establishing that the TSBN ever lifted this 
suspension. Based on the above, I find that Respondent does not 
currently have authority under the laws of Texas 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 the 
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.''

[[Page 29575]]

Also, 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 Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the CSA, DEA has held repeatedly that revocation of 
a practitioner's registration is the appropriate sanction whenever he 
is no longer authorized to dispense controlled substances under the 
laws of the State in which he 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 at 
27616.
    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 
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 TSBN 
summarily suspended Respondent's state medical license. What is 
consequential is the undisputed fact that Respondent is no longer 
currently authorized to dispense controlled substances in Texas, the 
State in which he is registered. Accordingly, Respondent is not 
entitled to maintain his DEA registration, and I will therefore order 
that his registration be revoked.\3\
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    \3\ The CALJ received and considered the Government's Motion for 
Summary Disposition and Respondent's Brief. In his brief, Respondent 
``d[id] not contest that he is subject to a temporary suspension of 
his state prescriptive authority.'' Resp. Br. at 1. However, 
Respondent argued that he will be presenting evidence at ``a 
probable cause hearing to be held on March 6, 2018,'' that his 
suspension ``was granted on flawed information and false 
allegations,'' and that he ``has not had the chance to defend his 
self [sic] against these allegations.'' Id. However, as already 
noted above, the TSBN suspended Respondent's nursing license and his 
authority to issue prescriptions. GX 2, at 17. As of the date of 
this order, Respondent has not filed a motion for reconsideration on 
the ground that the TSBN has lifted the suspension. The CALJ 
concluded that the fact that the State has yet to provide a hearing 
to challenge Respondent's suspension does not change the undisputed 
fact that Respondent's state prescriptive authority is suspended. 
R.D. at 7-8. Accordingly, if the CALJ had the authority to issue his 
conclusion rejecting Respondent's argument, I would have adopted 
this conclusion.
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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. MM2890312, issued to Kevin G. Morgan, RN/APN, be, and 
it hereby is, revoked. I further order that any pending application of 
Kevin G. Morgan to renew or modify the above registration, or any 
pending application of Kevin G. Morgan for any other DEA registration 
in the State of Texas, be, and it hereby is, denied. This Order is 
effective immediately.\4\
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    \4\ For the same reasons which led the TSBN to suspend 
Respondent's license and prescriptive authority, I conclude that the 
public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Dated: June 14, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-13530 Filed 6-22-18; 8:45 am]
 BILLING CODE 4410-09-P