[Federal Register Volume 85, Number 65 (Friday, April 3, 2020)]
[Notices]
[Pages 19027-19029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07018]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 19-35]


Gregory L. Molden, M.D.; Decision and Order

    On June 28, 2019, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to 
Gregory L. Molden, M.D. (hereinafter, Respondent) of New Orleans, 
Louisiana. OSC, at 1. The OSC proposed the revocation of Respondent's 
Certificate of Registration No. BM0671481. Id. It alleged that 
Respondent is mandatorily excluded from participation in Medicare, 
Medicaid, and all Federal health care programs for a minimum period of 
fifteen years. Id. at 1-2 (citing 21 U.S.C. 824(a)(5)). The OSC further 
alleged that Respondent is without ``authority to practice medicine or 
handle controlled substances in the State of Louisiana, the state in 
which [Respondent is] registered with DEA.'' Id. at 2 (citing 21 U.S.C. 
824(a)(3)).
    Specifically, the OSC alleged that on or about September 25, 2018, 
Respondent was convicted in the United States District Court for the 
Eastern District of Louisiana on one count of ``Conspiracy to Commit 
Health Care Fraud,'' in violation of 18 U.S.C. 1349, one count of 
``Conspiracy to Pay and Receive Illegal Health Care Kickbacks,'' in 
violation of 18 U.S.C 371, and eleven counts of ``Health Care Fraud,'' 
in violation of 18 U.S.C 1347. Id. According to the OSC, based on 
Respondent's conviction, the U.S. Department of Health and Human 
Services, Office of Inspector General, by letter dated March 29, 2019, 
mandatorily excluded Respondent from participation in Medicare, 
Medicaid and all Federal health care programs for a minimum period of 
fifteen years effective April 18, 2019, pursuant to 42 U.S.C 1320a-
7(a). Id.
    Additionally, the OSC alleged that the Louisiana State Board of 
Medical Examiners issued an Interim Consent Order for Suspension of 
Medical License on May 13, 2019. OSC, at 2. This Order, according to 
the OSC, indefinitely suspended Respondent's Louisiana medical license 
leaving Respondent without authority to practice medicine or handle 
controlled substances in Louisiana--the state in which Respondent is 
registered with DEA. Id.
    The OSC notified Respondent of the right to either request a 
hearing on the allegations or submit a written statement in lieu of 
exercising the 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 OSC also notified 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 August 7, 2019, Respondent timely requested a 
hearing.\1\ Request for Hearing, at 1. According to the Hearing 
Request, Respondent sought to ``reset/delay'' any action on the OSC for 
a period of six months to allow Respondent time to appeal his criminal 
conviction. Id. Respondent stated that the criminal conviction, which 
he was appealing, was the basis for revoking his

[[Page 19028]]

Certificate of Registration (hereinafter, DEA registration).\2\ Id.
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    \1\ The Hearing Request was filed on August 7, 2019. Order 
Denying Continuance Request and Directing the Filing of Government 
Evidence Regarding its Lack of State Authority Allegation and 
Briefing Schedule, at 1. I, thus, find that the Government's service 
of the OSC was adequate.
    \2\ The OSC provides that 21 U.S.C. 824(a)(3) and (5) are the 
grounds for proposing to revoke Respondent's COR, not the criminal 
conviction. OSC, at 1-2.
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    The Office of Administrative Law Judges put the matter on the 
docket and assigned it to Chief Administrative Law Judge John J. 
Mulrooney, II (hereinafter, Chief ALJ). Order Denying Continuance 
Request and Directing the Filing of Government Evidence Regarding its 
Lack of State Authority Allegation and Briefing Schedule dated August 
9, 2019 (hereinafter, Briefing Schedule), at 1. In the Briefing 
Schedule, the Chief ALJ denied the Respondent's request for a 
continuance \3\ and directed the Government to file evidence regarding 
its lack of state authority allegation. Id. The Government timely 
complied with the Briefing Schedule by filing the Government's Motion 
for Summary Disposition on August 16, 2019 (hereinafter, Government's 
Motion or GX). Order Granting the Government's Motion for Summary 
Disposition, and Recommended Rulings, Findings of Fact, Conclusions of 
Law, and Decision of the Administrative Law Judge dated August 30, 2019 
(hereinafter, Recommended Decision or RD), at 2.
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    \3\ The Chief ALJ denied the request for a six-month continuance 
because ``the Agency has made it clear that a stay in administrative 
enforcement proceedings is unlikely to ever be justified due to 
ancillary proceedings involving the Respondent.'' Briefing Schedule, 
at 2 (internal quotations omitted).
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    In its motion, the Government argued that there is ``no dispute as 
to a material fact'' and that ``it is appropriate for the [Chief ALJ] 
to grant summary disposition.'' GX, at 1. The Government stated that 
Respondent lacks authority to handle controlled substances in 
Louisiana, the state in which he is registered with the DEA, because 
his medical license is suspended. Id. at 3. Therefore, the Government 
argued, DEA does not have statutory authority to maintain Respondent's 
registration and recommended that Respondent's registration be revoked. 
Id.
    Respondent filed ``Molden['s] Response to Government's Motion for 
Summary Disposition,'' dated August 29, 2019 (hereinafter, 
Response).\4\ Notably, Respondent did not dispute the fact that he 
lacks state authority to handle controlled substances. Response, at 1 
(``The underlying . . . state regulatory decisions in this matter which 
gives rise to the pending matter is not in dispute . . .''). Instead, 
Respondent argued that he is appealing his criminal conviction, that 
therefore his criminal conviction lacks finality, and that without 
finality the Agency's action is premature. Id. at 1-3. Respondent 
further argued that, as he is detained in a federal prison in Florida, 
he ``presents no threat to the general public concerning his DEA 
license.'' Id. at 3.
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    \4\ While Respondent did not timely comply with the Briefing 
Schedule, on August 27, 2019, the Chief ALJ granted a two-day 
enlargement of time for Respondent to respond. Order Granting 
Enlargement of Time, at 1. Accordingly, I find that the Response was 
timely.
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    The Chief ALJ granted the Government's Motion finding that 
``summary disposition of an administrative case is warranted where, as 
here, there is no factual dispute of substance.'' RD, at 4 (citing Veg-
Mix, Inc. v. U.S. Dep't of Agric., 832 F.2d 601, 607 (D.C. Cir. 1987). 
The Chief ALJ also recommended, ``based upon the Respondent's current 
lack of state authority, that his DEA registration be revoked, and any 
pending applications for renewal be denied.'' Id. at 5 (emphasis 
omitted).
    The Chief ALJ made no findings on the OSC's mandatory federal 
program exclusion allegation. Id. Instead the Chief ALJ interpreted the 
Government's Motion as ``convey[ing] [the Government's] preference to 
have this case forwarded to the Acting Administrator based exclusively 
on the [loss of state authority allegation \5\] without expending the 
time and resources required for a full merits hearing.'' Id. The Chief 
ALJ further stated, ``to remove any ambiguity in this regard, to the 
extent the Government seeks to go forward on its Mandatory Federal 
Program Exclusion allegation, it may file a request to do so . . . .'' 
Id. at n.5.
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    \5\ In the RD, the Chief ALJ mistakenly typed MFPE. But it is 
clear from the context that he meant LSA or loss of state authority.
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    By letter dated October 15, 2019, the Chief ALJ certified and 
transmitted the record to me for final Agency action. The certified 
record did not include a request from the Government to proceed on the 
mandatory federal program exclusion allegation. Accordingly, I find 
that the Government has abandoned the mandatory federal program 
exclusion allegation. In the October 15, 2019, letter, the Chief ALJ 
advised that neither party filed exceptions. I find that the time 
period to file exceptions has expired. See 21 CFR 1316.66.
    I issue this Decision and Order based on the entire record before 
me. 21 CFR 1301.46. I make the following findings of fact.

Findings of Fact

Respondent's DEA Registration

    Respondent is the holder of DEA Certificate of Registration No. 
BM0671481 at the registered address of 2300 S Galvez St., New Orleans, 
LA 70125-3102. GX 1, at 1. Pursuant to this registration, Respondent is 
authorized to dispense controlled substances in schedules II through V 
as a practitioner. Id. Respondent's registration expires on January 31, 
2021, and is ``in an active pending status.'' Id.

The Status of Respondent's State License

    On May 13, 2019, the Louisiana State Board of Medical Examiners 
issued an Interim Consent Order for Suspension of Medical License 
(hereinafter, Suspension of Medical License). GX 3, at 1. According to 
the Suspension of Medical License, Respondent ``was criminally 
convicted in the United States District Court for the Eastern District 
of Louisiana on twelve felony counts related to the practice of 
medicine.'' Id. The Suspension of Medical License also stated that 
Respondent has reported to prison. Id. According to the Suspension of 
Medical License, Respondent waived his right to notice and formal 
adjudication of the Louisiana State Board of Medical Examiner's 
administrative proceedings against him and consented to the Suspension 
of Medical License. Id. at 2.
    Therefore, the Louisiana State Board of Medical Examiners ordered 
that Respondent's license to practice medicine in Louisiana be placed 
on an indefinite suspension effective on the date of signature, May 13, 
2019. Id. at 2-3. According to Louisiana's online records, of which I 
take official notice, Respondent's medical license is still 
suspended.\6\ Louisiana State Board of

[[Page 19029]]

Medical Examiners Online Verification, https://online.lasbme.org/#/verifylicense (last visited March 13, 2020).
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    \6\ 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 fifteen 
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 fifteen calendar days to file a response. 
Any such motion and response may be filed and served by email 
([email protected]) or by mail to Office of the 
Administrator, Attn: ADDO, Drug Enforcement Administration, 8701 
Morrissette Drive, Springfield, VA 22152.
    .
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    Accordingly, I find that Respondent currently is not licensed to 
engage in the practice of medicine and, therefore, cannot dispense 
controlled substances in Louisiana, the state in which Respondent is 
registered with the DEA (as discussed more fully below).

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, 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, 43 
FR at 27,617.
    According to the Suspension of Medical License, Respondent's 
license as a physician is suspended, and he can no longer engage in the 
practice of medicine in Louisiana. GX 3, at 2-3. Because Respondent 
cannot engage in the practice of medicine in Louisiana, he cannot 
prescribe medicine in Louisiana and therefore cannot ``dispense'' 
controlled substances under the CSA. 21 U.S.C. 802(10).
    Per the Louisiana Medical Practice Act, the ``practice of 
medicine'' means ``engagement in, the diagnosing, treating, curing, or 
relieving of any bodily or mental disease, condition, infirmity, 
deformity, defect, ailment, or injury in any human being, . . . whether 
by the use of any drug, instrument or force, . . . or any other agency 
or means; or the examining, . . . of any person or material from any 
person for such purpose whether such drug, instrument, force, or other 
agency or means is applied to or used by the patient . . . .'' La. 
Stat. Ann. Sec.  37:1262(3) (2019). Because Respondent cannot engage in 
the practice of medicine as defined above, Respondent clearly cannot 
``dispense'' \7\ or ``administer,'' \8\ as those terms are defined by 
the CSA, any drugs in the course of his professional practice. 21 
U.S.C. 802(10) and (2).
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    \7\ ``Dispense'' under the CSA, ``means to deliver a controlled 
substance to an ultimate user or research subject by, or pursuant to 
the lawful order of, a practitioner, including the prescribing and 
administering of a controlled substance . . .'' 21 U.S.C. 802(10). 
Louisiana's use of the words ``treating, curing . . . by drug'' and 
``whether such drug is . . . used by the patient'' appears analogous 
to the CSA's use of ``dispense.'' La. Stat. Ann. Sec.  37:1262(3) 
(2019).
    \8\ ``Administer'' under the CSA, ``refers to the direct 
application of a controlled substance to the body of a patient . . . 
by . . . a practitioner . . . . .'' 21 U.S.C. 802(2). Louisiana's 
use of the words ``whether such drug . . . is applied to . . . the 
patient'' appears analogous to the CSA's use of ``administer.'' La. 
Stat. Ann. Sec.  37:1262(3) (2019).
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    Similarly, because Respondent is not licensed to practice medicine 
in Louisiana, he is not a ``practitioner'' authorized to write 
``prescriptions'' as defined by the Louisiana Pharmacy Practice Act.\9\ 
LA Stat. Ann. Sec. Sec.  37:1164(45) and (47) (2019). A 
``practitioner'' means ``an individual currently licensed, registered, 
or otherwise authorized by the appropriate licensing board to prescribe 
and administer drugs in the course of professional practice.'' La. 
Stat. Ann. Sec.  37:1164(45) (2019). Furthermore, a ``Prescription'' or 
``prescription drug order'' means ``an order from a practitioner 
authorized by law to prescribe for a drug or device that is patient-
specific and is communicated by any means to a pharmacist in a 
permitted pharmacy . . . .'' La. Stat. Ann. Sec.  37:1164(47) (2019). 
As discussed above, without a Louisiana medical license, Respondent 
cannot prescribe or dispense controlled substances.
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    \9\ According to Louisiana's Board of Pharmacy online records, 
of which I take official notice, Respondent also does not currently 
hold a valid controlled dangerous substance license as a 
practitioner in Louisiana, which is required to prescribe controlled 
dangerous substances pursuant to La Stat. Ann. Sec.  40:973(A)(1) 
(2019). Louisiana's Board of Pharmacy License Lookup, https://secure.pharmacy.la.gov/Lookup/LicenseLookup.aspx (last visited March 
13, 2020). Louisiana's online records show that license Number 
CDS.017534-MD (license type--CDS License--Physician) assigned to 
Gregory Louis Molden, M.D., expired on 11/03/2019, and that the 
current status is ``Lapsed; not valid for practice.'' Id. Similarly, 
license number PMP.006430-CDS assigned to Gregory Louis Molden, 
M.D., has a current status of ``Lapsed; not valid for practice.'' 
Id.
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    Here, the undisputed evidence in the record is that Respondent's 
license to practice medicine in Louisiana has been suspended; and 
therefore, Respondent currently lacks authority to manufacture, 
distribute, prescribe, or dispense controlled substances in Louisiana. 
Therefore, Respondent is not eligible to maintain a DEA registration. 
Accordingly, 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 hereby revoke DEA Certificate of Registration No. 
BM0671481 issued to Gregory L. Molden. Further, pursuant to 28 CFR 
0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby 
deny any pending application of Gregory L. Molden to renew or modify 
this registration, as well as any other application of Gregory L. 
Molden, for additional registration in Louisiana. This Order is 
effective May 4, 2020.

    Dated: March 13, 2020.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2020-07018 Filed 4-2-20; 8:45 am]
BILLING CODE 4410-09-P