[Federal Register Volume 85, Number 195 (Wednesday, October 7, 2020)]
[Notices]
[Pages 63295-63296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22210]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Stacey Lynne Schirmer, M.D.; Decision and Order

    On February 14, 2020, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause to Stacey Lynne Schirmer, 
M.D. (hereinafter, Applicant), of Angels Camp, California. Order to 
Show Cause (hereinafter, OSC), at 1. The OSC proposed the denial of 
Applicant's application for a DEA Certificate of Registration. It 
alleged that Applicant is without ``authority to handle controlled 
substances in California, the state in which [Applicant] seek[s] 
registration with DEA.'' Id. (citing 21 U.S.C. 823(f) and 824(a)(3)).
    Specifically, the OSC alleged that the Medical Board of California 
(hereinafter, Board) issued a Cease Practice Order on January 7, 2020, 
which prohibits Applicant from ``engaging in the practice of 
medicine.'' Id. at 1-2. The OSC further alleged that, because 
Applicant's California medical license is suspended, Applicant lacks 
the authority to handle controlled substances in California, and is, 
therefore, ineligible to obtain a DEA registration. Id. at 2.
    The OSC notified Registrant 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. 
(citing 21 CFR 1301.43). The OSC also notified Registrant of the 
opportunity to submit a corrective action plan. Id. at 3 (citing 21 
U.S.C. 824(c)(2)(C)).
    A DEA Diversion Investigator personally served Applicant with the 
OSC on May 21, 2020. Government's Request for Final Agency Action 
Exhibit (hereinafter, RFAAX) 9, at 3 (Declaration of Diversion 
Investigator); RFAAX 5 at 1 (Service Receipt). I find that more than 
thirty days have now passed since the Government accomplished service 
of the OSC. Further, based on the Government's written representations, 
I find that neither Applicant, nor anyone purporting to represent 
Applicant, requested a hearing, submitted a written statement while 
waiving Applicant's right to a hearing, or submitted a corrective 
action plan. Id.; RFAAX 6. Accordingly, I find that Applicant has 
waived the right to a hearing and the right to submit a written 
statement and

[[Page 63296]]

corrective action plan. 21 CFR 1301.43(d) and 21 U.S.C. 824(c)(2)(C). 
I, therefore, issue this Decision and Order based on the record 
submitted by the Government, which constitutes the entire record before 
me. 21 CFR 1301.46.

I. Findings of Fact

A. Applicant's Application for a DEA Registration

    On October 18, 2019,\1\ Applicant submitted an application for DEA 
registration as a practitioner seeking authorization to handle 
controlled substances in schedules IIN, IIIN, IV, and V. RFAAX 1-2. 
Applicant's proposed DEA registered address is P.O. Box 939, Angels 
Camp, California 95222. Id. Applicant is the former holder of DEA 
Certificate of Registration No. BH5379549, which she voluntarily 
surrendered on September 27, 2011. RFAAX 2, at 1.
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    \1\ The OSC incorrectly cited October 21, 2019, as the 
submission date for Applicant's application for a DEA registration. 
I find this error to be a scrivener's error.
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B. The Status of Applicant's State License

    Applicant has been the holder of California Physician's and 
Surgeon's Certificate No. A 62148 (hereinafter, medical license). RFAAX 
3, at 1 (Cease Practice Order). On August 9, 2019, the Medical Board of 
California placed Applicant's license on a five-year probation subject 
to certain terms and conditions. Id.
    On January 7, 2020, the Medical Board of California issued a Cease 
Practice Order with respect to Applicant's medical license. Id. 
According to the Cease Practice Order, Applicant failed to obey the 
probationary conditions that were placed on her medical license by the 
Board on August 9, 2019. Id. The Board, therefore, issued the Cease 
Practice Order prohibiting Applicant from ``engaging in the practice of 
medicine.'' Id. The Cease Practice Order further stated that Applicant 
``shall not resume the practice of medicine until a final decision has 
been issued on an accusation and/or petition to revoke probation filed 
pursuant to this matter.'' Id. at 1-2.
    The online records of the California Department of Consumer 
Affairs, of which I take official notice, state that Applicant's 
medical license is suspended.\2\ https://search.dca.ca.gov/results 
(last visited September 24, 2020). The records further state that 
Applicant is prohibited from ``ordering, prescribing, dispensing, 
administering, furnishing, or possessing'' any controlled substances. 
Id.; RFAAX 8, at 1 (Medical Board of California, Online Licensing 
Details for Physician's and Surgeon's Certificate No. A 62148, dated 
June 24, 2020).
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    \2\ 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, Applicant 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 Applicant 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]).
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    Accordingly, I find that Applicant is currently without 
authorization to dispense controlled substances in California, the 
state in which Applicant has applied for registration with DEA.

II. Discussion

    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 
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); see 
also 21 U.S.C. 824(a)(3) (authorizing revocation ``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''). 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).
    Here, the undisputed evidence in the record is that Applicant 
currently lacks authority to dispense controlled substances in 
California, the state in which she seeks registration. Because 
Applicant lacks authority to dispense controlled substances in 
California, she is not eligible for DEA registration in California. 
Accordingly, I will order that Applicant's application for a DEA 
registration be denied.

III. Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 823(f), I hereby deny the application of Stacey Lynne Schirmer 
for a DEA Certificate of Registration in California. This Order is 
effective November 6, 2020.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-22210 Filed 10-6-20; 8:45 am]
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