[Federal Register Volume 85, Number 195 (Wednesday, October 7, 2020)]
[Notices]
[Pages 63292-63294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22214]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Barbara D. Marino, M.D.; Decision and Order

    On June 12, 2020, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to 
Barbara D. Marino, M.D. (hereinafter, Registrant), of Houston, Texas. 
Government's Request for Final Agency Action Exhibit (hereinafter, 
RFAAX) 4 (OSC), at 1. The OSC proposed the revocation of Registrant's 
Certificate of Registration No. BD0903244. It alleged that Registrant 
is without ``authority to handle controlled substances in Texas, the 
state in which [Registrant] is registered with DEA.'' Id. at 1-2 
(citing 21 U.S.C. 802(21), 823(f), and 824(a)(3)).
    Specifically, the OSC alleged that Registrant's state license to 
practice medicine in Texas has been temporarily suspended. Id. The OSC 
further alleged that, because Registrant's Texas medical license is 
suspended, Registrant lacks the authority to handle controlled 
substances in Texas, and is, therefore, ineligible to maintain a DEA 
registration. Id.
    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. at 
2 (citing 21 CFR 1301.43). The OSC also notified Registrant of the 
opportunity to submit a corrective action plan. Id. at 2-3 (citing 21 
U.S.C. 824(c)(2)(C)).

I. Adequacy of Service

    A DEA Task Force Officer (hereinafter, TFO) declared that he 
personally served Registrant with the OSC on July 9, 2020. RFAAX 9, at 
3 (Declaration of TFO). During the service of the OSC, Registrant 
signed a Form DEA-12 documenting Registrant's acknowledgement that she 
had received the OSC. RFAAX 5; RFAAX 9, at 3.
    The Government forwarded its Request for Final Agency Action 
(hereinafter, RFAA), along with the evidentiary record, to this office 
on August 27, 2020. In its RFAA, the Government represents that 
``neither the [Houston Field Division] nor the DEA Office of 
Administrative Law Judges had received any written correspondence, 
telephonic communication, or any other communication from Registrant, 
or any representative on her behalf in response to the [OSC].'' RFAA, 
at 4 (citing RFAAX 6 (Email from Office of Administrative Law Judges), 
7 (Email from Houston Division Office), 9, and 10 (Declaration of DEA 
Diversion Investigator)).
    Based on the TFO's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government accomplished service of the OSC on Registrant on July 9, 
2020. I also 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 Registrant, 
nor anyone purporting to represent Registrant, requested a hearing, 
submitted a written statement while waiving Registrant's right to a 
hearing, or submitted a corrective action plan. Accordingly, I find 
that Registrant has waived the right to a hearing and the right to 
submit a written statement and 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 1301.43(e).

II. Findings of Fact

A. Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
BD0903244 at the registered address of 8188 Long Point Road, Houston, 
Texas 77055. RFAAX 1 (Certificate of

[[Page 63293]]

Registration) and 2 (Certification of Registration History, dated 
August 10, 2020). Pursuant to this registration, Registrant is 
authorized to dispense controlled substances in schedules II-V as a 
practitioner DW/275. RFAAX 2.

B. The Status of Registrant's State License

    On February 7, 2020, the Texas Medical Board (hereinafter, Board) 
issued an Order of Temporary Suspension (hereinafter, Order). RFAAX 3. 
According to the Order, Registrant failed to meet the standard of care 
and documentation standards for six patients. Id. at 3. Specifically, 
the Order stated that Registrant ``failed to obtain or perform an 
adequate history or assessment of the patients by neglecting to obtain 
prior treating provider's records, a history of prior treatments, and 
the patient's response to treatment,'' or ``conducting and documenting 
an adequate examination of the patient's source of pain''; ``failed to 
have or document adequate medical rationale or evidence of therapeutic 
benefit of the Norco and Soma that [Registrant] prescribed to each of 
the six patients''; and ``failed to monitor the patients for 
therapeutic benefit, diversion, or abuse of the medications she 
prescribed, including controlled substances.'' Id. The Order also 
stated that Registrant had ten medical malpractice claims/lawsuits 
between 2005 and 2013, entered into an Agreed Order with the Board in 
2006, and entered into a Mediated Agreed Order in 2012, resolving four 
investigations into Registrant's cosmetic surgery practice. Id. at 1-2. 
The Order further stated that the Board entered an Order of Temporary 
Suspension Without Notice suspending Registrant's license after finding 
out that Registrant was ``arrested and indicted for conspiracy to 
unlawfully distribute and dispense controlled substances and aiding and 
abetting the same . . . in the United States District Court for the 
Southern District of Texas.'' Id. at 2.
    In the Order, the Board found that Registrant's conduct ``shows 
that [Registrant's] continued practice of medicine would constitute a 
continuing threat to the public welfare, as defined by Section 
151.002(a)(2) of the [Medical Practice] Act.'' Id. at 7. The Board, 
therefore, ordered that Registrant's Texas medical license be 
temporarily suspended effective February 7, 2020, and stated that the 
``Order shall remain in effect until it is superseded by an Order of 
the Board.'' Id. at 9.
    According to Texas's online records, of which I take official 
notice, Registrant's medical license is still suspended.\1\ Texas 
Medical Board, Look Up a License, available at http://reg.tmb.state.tx.us/page/look-up-a-license (last visited September 24, 
2020).
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    \1\ 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 of finding of fact 
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 Registrant 
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 Registrant currently is not licensed to 
engage in the practice of medicine in Texas, the state in which 
Registrant is registered with DEA.

III. 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 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.
    Under the Texas Controlled Substances Act, a practitioner in Texas 
``may not prescribe, dispense, deliver, or administer a controlled 
substance or cause a controlled substance to be administered under the 
practitioner's direction and supervision except for a valid medical 
purpose and in the course of medical practice.'' Tex. Health and Safety 
Code Ann. Sec.  481.071 (West 2019). The Texas Controlled Substances 
Act defines ``practitioner,'' in relevant part, as ``a physician . . . 
licensed, registered, or otherwise permitted to distribute, dispense, 
analyze, conduct research with respect to, or administer a controlled 
substance in the course of professional practice or research in this 
state.'' Id. at Sec.  481.002 (39)(A). Further, under the Texas Medical 
Practice Act, a person must hold a license to practice medicine in 
Texas, Tex. Occupations Code Ann. Sec.  155.001 (West 2019) (``A person 
may not practice medicine in this state unless the person holds a 
license issued under [the Medical Practice Act].''); see also id. at 
Sec.  151.002 (`` `Physician' means a person licensed to practice 
medicine in this state.''), and ``[a] person commits an offense if the 
person practices medicine in [Texas] in violation of'' the Act, id. at 
Sec.  165.152(a).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in Texas. I, therefore, 
find that Registrant is currently without authority to dispense 
controlled substance in Texas, the state in which she is registered 
with DEA, and I will order that Registrant's DEA registration be 
revoked.

IV. 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. 
BD0903244 issued to Barbara D. Marino, M.D. Further, pursuant to 28 CFR 
0.100(b) and the

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authority vested in me by 21 U.S.C. 823(f), I hereby deny any pending 
application of Barbara D. Marino, M.D. to renew or modify this 
registration, as well as any pending application of Barbara D. Marino, 
M.D. for registration in Texas. This Order is effective November 6, 
2020.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-22214 Filed 10-6-20; 8:45 am]
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