[Federal Register Volume 84, Number 67 (Monday, April 8, 2019)]
[Notices]
[Pages 13955-13957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06836]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 19-3]
Martin A. Barrios, M.D.; Decision and Order
On October 22, 2018, the Assistant Administrator, Diversion Control
Division, Drug Enforcement Administration (hereinafter, DEA or
Government), issued an Order to Show Cause to Martin A. Barrios, M.D.
(hereinafter, Respondent), of Jackson, Kentucky. Order to Show Cause
(hereinafter, OSC), at 1. The Show Cause Order proposes the revocation
of Respondent's Certificate of Registration on the ground that he does
``not have authority to handle controlled substances in the State of
Kentucky, the state in which . . . [he is] registered with the DEA.''
Id. (citing 21 U.S.C. 823(f) and 824(a)(3)).
Regarding jurisdiction, the Show Cause Order alleges that
Respondent holds DEA Certificate of Registration No. FB0348563 at the
registered address of 540 Jett Drive, Jackson, Kentucky 41339. OSC, at
1. This registration is alleged to authorize Respondent to dispense
controlled substances in schedules II through V as a practitioner. The
Show Cause Order alleges that this registration expires on July 31,
2019. Id.
The substantive ground for the proceeding, as alleged in the Show
Cause Order, is that Respondent is ``without authority to handle
controlled substances in the State of Kentucky, the state in which . .
. [he is] registered . . . with the DEA.'' Id. at 2. Specifically, the
Show Cause Order alleges that, on or about May 18, 2018, the
Commonwealth of Kentucky Board of Medical Licensure (hereinafter,
Kentucky Board) issued an Amended Emergency Order of Restriction
prohibiting Respondent from ``prescribing, dispensing, or otherwise
professionally utilizing controlled substances until the Board's
hearing panel has finally resolved the Complaint after receipt of the
court documents resolving the criminal charges in the [criminal]
indictment . . . or until such further Order of the Board.'' Id.
The Show Cause Order notifies Respondent 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
2-3 (citing 21 CFR 1301.43). The Show Cause Order also notifies
Respondent of the opportunity to submit a corrective action plan. OSC,
at 3 (citing 21 U.S.C. 824(c)(2)(C)).
By letter dated November 12, 2018, Respondent timely requested a
hearing.\1\ Hearing Request, at 1. According to the Hearing Request,
Respondent's ``interest in the proceedings is to defend . . . [his]
innocence.'' Id. Respondent's Hearing Request ``acknowledge[s] . . .
the actions taken by both the Kentucky medical board and American Board
of [S]urgery.'' Id. at 2. It states that Respondent is ``in the process
of appealing the American Board of Surgery's action.'' Id.
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\1\ The Hearing Request was filed on November 15, 2018. Briefing
Schedule for Lack of State Authority Allegations dated November 16,
2018, at 1. I, thus, find that the Government's service of the OSC
was adequate.
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The Office of Administrative Law Judges put the matter on the
docket and assigned it to Administrative Law Judge Charles Wm. Dorman
(hereinafter, ALJ). The ALJ issued a Briefing Schedule for Lack of
State Authority Allegations dated November 16, 2018. The Government
timely complied with the Briefing Schedule by filing a Motion for
Summary Disposition on November 30, 2018 (hereinafter, Government
Motion). Order Granting Summary Disposition and Recommended Rulings,
Findings of Fact, Conclusions of Law, and Decision dated December 20,
2018 (hereinafter, R.D.), at 2. In its motion, the Government stated
that Respondent lacks authority to handle controlled substances in
Kentucky, the State in which he is registered with the DEA and argued
that, therefore, DEA must revoke his registration. Id. Respondent did
not
[[Page 13956]]
answer the Government Motion.\2\ Id. at 4. He did, however, ``address
the order to show cause'' in his Hearing Request. Hearing Request, at
2. I reviewed and considered the Hearing Request as part of, and along
with, the entire record before me.
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\2\ I agree that the Office of Administrative Law Judges
properly served Respondent on all occasions. R.D., at 4-5, 11. The
Certificate of Service for the Government Motion certifies that the
Government served Respondent at the physical and electronic
addresses he requested in his Hearing Request. Hearing Request, at
1.
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The ALJ granted the Government Motion finding that ``there is no
dispute of material fact necessitating an adversarial hearing.'' R.D.,
at 10. The ALJ recommended that Respondent's registration and DATA-
Waiver Identification Number be revoked because ``the fact remains that
Kentucky has stripped . . . [Respondent] of the ability to handle
controlled substances.'' Id. at 8. By letter dated January 16, 2019,
the ALJ certified and transmitted the record to me for final Agency
action. In that letter, the ALJ advised that neither party filed
exceptions and that the time period to do so had expired.
I issue this Decision and Order based on the entire record before
me. 21 CFR 1301.43(e). I make the following findings of fact.
Findings of Fact
Respondent's DEA Registration
Respondent is the holder of DEA Certificate of Registration No.
FB0348563, pursuant to which he is authorized to dispense controlled
substances in schedules II through V as a practitioner-DW/275, at the
registered address of 540 Jett Drive, Jackson, Kentucky 41339.
Government Motion, Exh. 1 (Certification of Registration History), at
1. Respondent's registration expires on July 31, 2019. Id.
The Status of Respondent's State License
By Amended Emergency Order of Restriction dated May 18, 2018, the
Kentucky Board ordered that Respondent's license to practice medicine
in the Commonwealth of Kentucky be restricted. Government Motion, Exh.
3 (Amended Emergency Order of Restriction), at 5. The restriction
prohibits Respondent ``from prescribing, dispensing, or otherwise
professionally utilizing controlled substances until the Board's
hearing panel has finally resolved the Complaint after receipt of the
court documents resolving the criminal charges in the indictment . . .
or until such further Order of the Board.'' Id. According to the online
records of the Commonwealth of Kentucky, of which I take official
notice, I find that Respondent's medical license is still subject to
this controlled substances restriction.\3\ Commonwealth of Kentucky
Board of Medical Licensure Physician Profile/Verification of License,
https://kbml.ky.gov/physician/Pages/Physician-Profile-Verification-of-Physician-License.aspx (last visited March 18, 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, Respondent may dispute my finding by filing
a properly supported motion for reconsideration within 15 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 Respondent files a motion, the Government
shall have 15 calendar days to file a response.
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Accordingly, I find that Respondent currently is without authority
to handle controlled substances in the Commonwealth of Kentucky, the
State in which he is registered.
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 also 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., James L. Hooper,
M.D., 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); Frederick Marsh
Blanton, M.D., supra, 43 FR at 27,617.
According to the Kentucky ``Controlled Substances'' statute, ``No
person shall dispense, prescribe, distribute, or administer any
controlled substance except as authorized by law.'' \4\ Ky. Rev. Stat.
Ann. Sec. 218A.1404(3) (Westlaw, current through the end of the 2018
regular session). Here, there is no dispute about the material fact
that the Kentucky Board restricted Respondent's medical license by
prohibiting him from prescribing, dispensing, or otherwise
professionally utilizing controlled substances. Hearing Request, at 2
(``I first want to acknowledge the indictment in Madison County
Kentucky and the actions taken by both the Kentucky medical board and
American Board of [S]urgery.''). Based on this uncontroverted fact,
Kentucky law, and past Agency decisions, I find that Respondent is
currently without authority to dispense controlled substances under the
laws of Kentucky, the State in which he is registered. See Judson J.
Somerville, M.D., 82 FR 21,408, 21,410 (2017) (revoking the
registration of a physician whose Texas Medical License was temporarily
suspended by the Texas Medical Board Disciplinary Panel, finding that
the physician did not currently have authority under the laws of Texas
to dispense controlled substances, and rejecting as ``of no
consequence'' physician's argument that his license
[[Page 13957]]
was suspended through summary process and that he may prevail at
hearing). I will therefore order that Respondent's registration be
revoked.
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\4\ ``Dispenser'' is a ``person who lawfully dispenses a
Schedule II, III, IV, or V controlled substance to or for the use of
an ultimate user.'' Ky. Rev. Stat. Ann. Sec. 218A.010(11) (Westlaw,
current through the end of the 2018 regular session).
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In sum, Respondent currently lacks authority in Kentucky to handle
controlled substances. He is not, therefore, eligible for a DEA
registration in Kentucky. As such, I will order that Respondent's DEA
registration be revoked.
Order
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21
U.S.C. 824(a), I order that DEA Certificate of Registration No.
FB0348563 issued to Martin A. Barrios, M.D., be, and it hereby is,
revoked.\5\ This Order is effective May 8, 2019.
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\5\ This revocation Order automatically withdraws XB0348563. See
21 CFR 1301.28.
Dated: March 18, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-06836 Filed 4-5-19; 8:45 am]
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