[Federal Register Volume 84, Number 28 (Monday, February 11, 2019)]
[Notices]
[Pages 3248-3250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01850]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Miles J. Nelson, M.D.; Decision and Order
On January 30, 2018, the Acting Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration (hereinafter, DEA or
Government), issued an Order to Show Cause to Miles Nelson, M.D.
(hereinafter, Registrant), of Santa Fe, New Mexico. Order to Show Cause
(hereinafter, OSC), at 1. The OSC proposes the revocation of
Registrant's
[[Page 3249]]
Certificate of Registration on the ground that he has ``no state
authority to handle controlled substances'' in New Mexico, the State in
which he is registered with the DEA. Id. (citing 21 U.S.C. 824(a)(3)).
It also proposes the denial of ``any applications for renewal or
modification of such registrations and any applications for any other
DEA registrations.'' OSC, at 1 (citing 21 U.S.C. 824(a)(3)).
Regarding jurisdiction, the Show Cause Order alleges that
Registrant holds DEA Certificate of Registration No. BN3803423 at the
registered address of 721 Old Santa Fe Trail, Santa Fe, NM 87505 and a
mailing address of 17 Camino Monte Feliz, Santa Fe, NM 87505. OSC, at
1. This registration, the OSC alleges, authorizes Registrant to
dispense controlled substances in schedules II through V as a
practitioner. Id. The Show Cause Order alleges that this registration
expired on October 31, 2017 and that Registrant filed an untimely
renewal application on November 10, 2017. Id.
The substantive ground for the proceeding, as alleged in the Show
Cause Order, is that Registrant is ``currently without authority to
practice medicine or handle controlled substances in New Mexico, the
state in which . . . [he is] registered with DEA.'' Id. at 2.
Specifically, the Show Cause Order alleges that Registrant's ``New
Mexico medical license is currently in an `Inactive While Under
Investigation''' status. Id. Further, according to the OSC,
Registrant's New Mexico controlled substances license expired on
October 31, 2017. Id.
The Show Cause Order notifies Registrant of his right to request a
hearing on the allegations or to submit a written statement while
waiving his right to a hearing, the procedures for electing each
option, and the consequences for failing to elect either option. Id. at
2 (citing 21 CFR 1301.43). The Show Cause Order also notifies
Registrant of the opportunity to submit a corrective action plan. OSC,
at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).
By letter that the Government states it received on February 28,
2018, Registrant timely submitted a corrective action plan
(hereinafter, CAP).\1\ Request for Final Agency Action dated April 18,
2018 (hereinafter, RFAA), at 2; see Government Exhibit (hereinafter,
``GE'') 6.\2\ In his CAP, Registrant admits that he does not have
authority in New Mexico to practice medicine or handle controlled
substances. CAP, at 1. Registrant's CAP also states that he voluntarily
inactivated his New Mexico medical license in advance of receiving
medical treatment, that he ``inadvertently neglected to renew . . .
[his] New Mexico controlled substances license'' at around the same
time, and that his application to renew his DEA registration ``was
considered untimely.'' Id. The CAP states that Registrant ``fully''
expects the New Mexico Medical Board to reactivate his medical license
in March, 2018, that he will then reapply for a New Mexico ``controlled
substances license which . . . [he] fully expect[s] to be issued,'' and
that ``with a valid New Mexico medical license and a state issued
controlled substances license . . . [he] will reapply to the DEA for
renewal of . . . [his] DEA registration.'' Id.
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\1\ A hand-written date which, other than indicating February
and 2018, is not fully legible appears on the CAP next to
Registrant's signature.
\2\ Also attached to the RFAA is a Declaration of Service of
Order to Show Cause by a DEA Diversion Investigator (hereinafter, DI
Declaration). GE-5. According to the DI Declaration, two Diversion
Investigators personally served the OSC on Registrant at
Registrant's residence on February 6, 2018. DI Declaration, at 1.
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The Assistant Administrator of the Diversion Control Division
denied Registrant's CAP by letter dated March 5, 2018. GE-7.
In its RFAA, the Government represents that, ``At least 30 days
have passed since the time the . . . [OSC] was served on Registrant.
Registrant has not requested a hearing.'' RFAA, at 2. The Government
requests the issuance of a ``Final Order revoking Registrant's DEA
registration.'' Id. at 4.
Based on the DI Declaration, the Government's written
representations, and my review of the record, I find that the
Government personally served the OSC on Registrant on February 6, 2018.
I also find that more than 30 days have now passed since the date the
Government served the OSC. I find that Registrant timely submitted a
CAP and that the Assistant Administrator of the Diversion Control
Division denied Registrant's CAP by letter dated March 5, 2018.
Further, based on the Government's written representations, I find that
neither Registrant, nor anyone purporting to represent him, requested a
hearing or submitted a written statement while waiving Registrant's
right to a hearing. Accordingly, I find that Registrant has waived his
right to a hearing and his right to submit a written statement. 21 CFR
1301.43(d). I, therefore, issue this Decision and Order based on the
record submitted by the Government, which constitutes the entire record
before me. 21 CFR 1301.43(e).
Findings of Fact
Registrant's DEA Registration
Registrant is the holder of DEA Certificate of Registration No.
BN3803423, pursuant to which he is authorized to dispense controlled
substances in schedules II through V as a practitioner, at the
registered address of 721 Old Santa Fe Trail, Santa Fe, NM 87505.
Certification of Registration History (GE-1), at 1. This registration
expired on October 31, 2017. From that day forward, Registrant could
not legally obtain, store, administer, prescribe, or dispense a
controlled substance under this registration. Id.
On or about November 10, 2017, Registrant submitted an untimely
online renewal application for DEA registration No. BN3803423 at the
address of 721 Old Santa Fe Trail, Santa Fe, NM 87505. Id. This renewal
application currently is in a renewal pending status. Id. The RFAA, the
OSC, and this renewal application all concern DEA registration No.
BN3803423. See id. Registrant currently has no other pending or valid
DEA registration in New Mexico. Id.
The Status of Registrant's State Medical and Controlled Substance
Licenses
The record before me shows that the status of Registrant's New
Mexico medical license has changed several times over the course of the
last 12 months or so. According to the most recent evidence in the
record, Registrant inactivated his medical license on September 7,
2018. Government's Withdrawal of Its Request for Dismissal of Order to
Show Cause and Government's Renewed Request for Final Agency Action
dated September 13, 2018, Attachment, at 1-2. According to New Mexico's
online records, of which I take official notice, Registrant's New
Mexico medical license is ``lapsed.'' \3\ New Mexico Medical Board
website, ``MD & PA Lookup'' Quick Link, http://www.nmmb.state.nm.us
(last visited January 17, 2019).
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\3\ Under the Administrative Procedure Act, an agency ``may take
official notice of facts at any stage in a proceeding--even in the
final decision.'' United States Department of Justice, Attorney
General's Manual on the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e),
``[w]hen an agency decision rests on official notice of a material
fact not appearing in the evidence in the record, a party is
entitled, on timely request, to an opportunity to show the
contrary.'' Accordingly, Registrant may dispute my finding by filing
a properly supported motion for reconsideration within 20 calendar
days of the date of this Order. Any such motion shall be filed with
the Office of the Administrator and a copy shall be served on the
Government. In the event Registrant files a motion, the Government
shall have 20 calendar days to file a response.
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[[Page 3250]]
The record before me shows that Registrant's New Mexico controlled
substance license No. CS00021066 expired on October 31, 2017.
Certification of New Mexico Board of Pharmacy Controlled Substance
License dated January 4, 2018 (GE-4), at 1; New Mexico Regulation and
Licensing Department website Screen Print dated April 18, 2018 (GE-9),
at 1. Indeed, Registrant admitted in his CAP that he ``inadvertently
neglected to renew'' his New Mexico controlled substance license and
that it expired on October 31, 2017. CAP, at 1. Further, New Mexico's
online records, of which I take official notice, show that New Mexico
controlled substance registration No. CS00021066 issued to Registrant
was renewed on July 9, 2018 and expired on October 31, 2018.\4\ New
Mexico Regulation & Licensing Department ``Web Lookup/Verification,''
http://verification.rld.state.nm.us (last visited January 17, 2019).
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\4\ See footnote 3. If Registrant disputes this finding, he may
do so according to the terms stated in footnote 3.
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Accordingly, I find that Registrant currently is neither licensed
to engage in the practice of medicine nor licensed to dispense
controlled substances in New Mexico, the State in which he is
registered with the DEA.
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 (hereinafter, CSA), ``upon a finding that the
registrant . . . has had his State license or registration 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, the 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,
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826
(4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617
(1978).
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, the 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 practices. See, e.g., Hooper, supra, 76
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby
Watts, M.D., 53 FR 11,919, 11,920 (1988), Blanton, supra, 43 FR at
27,617.
Under longstanding Agency precedent, DEA revokes the registration
of a practitioner who lacks State authority to handle controlled
substances even when the practitioner's State authority was suspended
summarily or pending a final decision on the merits. See, e.g., Bourne
Pharmacy, Inc., 72 FR 18,273, 18,274 (2007). Similarly, the facts that
a State immediately suspended a registrant's registration and that the
registrant may, some day, regain his State registration to dispense
controlled substances do not change the salient fact--the registrant is
not currently authorized to handle controlled substances in the State
in which he is registered. Mehdi Nikparvarfard, M.D., 83 FR 14,503,
14,504 (2018).
Here, Registrant admitted that he did not have authority in New
Mexico to practice medicine or dispense controlled substances when he
submitted his CAP. Further, New Mexico's online records show that
Registrant is currently not licensed to practice medicine or to handle
controlled substances. As such, Registrant does not have authority to
dispense controlled substances in New Mexico at this time. N.M. Stat.
Ann. Sec. 30-31-13(D) (Westlaw, current through the end of the Second
Regular Session of the 53rd Legislature (2018)) (Practitioners must be
registered to dispense any controlled substances.). Registrant,
therefore, is not presently eligible for a DEA registration.
Accordingly, I will order that Registrant's DEA registration be revoked
and that any pending application regarding a registration in New Mexico
be denied. 21 U.S.C. 824(a)(3); 21 U.S.C. 823(f).\5\
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\5\ Given my finding that Registrant is not currently authorized
to handle controlled substances in New Mexico, I find that his CAP
provides no basis for me to discontinue or defer this proceeding. 21
U.S.C. 824(c)(3).
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Order
Pursuant to 28 CFR 0.100(b) and the authority thus vested in me by
21 U.S.C. 824(a), I order that DEA Certificate of Registration No.
BN3803423 issued to Miles Nelson, M.D., be, and it hereby is, revoked.
Pursuant to 28 CFR 0.100(b) and the authority thus vested in me by 21
U.S.C. 823(f), I further order that any pending application of Miles
Nelson, M.D., to renew or modify this registration, as well as any
other pending application by him for registration in the State of New
Mexico, be, and it hereby is, denied. This Order is effective March 13,
2019.
Dated: January 17, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-01850 Filed 2-8-19; 8:45 am]
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