[Federal Register Volume 85, Number 224 (Thursday, November 19, 2020)]
[Notices]
[Pages 73751-73753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25521]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 20-18]


Lewis Leavitt III, M.D.; Decision and Order

    On March 11, 2020, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to Lewis 
Leavitt III, M.D. (hereinafter, Respondent) of Houston, Texas. OSC, at 
1. The OSC proposed the revocation of Respondent's Certificate of 
Registration No. AL1308370. Id. It alleged that Respondent is without 
``authority to handle controlled substances in Texas, the state in 
which [Respondent is] registered with DEA.'' Id. at 1-2.
    Specifically, the OSC alleged that on January 6, 2020, the Texas 
Medical Board (hereinafter, Board) suspended Respondent's medical 
license, which also expired on February 28, 2020. Id. The OSC therefore 
alleged that Respondent lacks authority to handle controlled substances 
in Texas. Id. (citing 21 U.S.C. 824(a)(3)).
    The OSC notified Respondent of the right to request a hearing on 
the allegations or to submit a written statement, while waiving 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 Respondent of the opportunity to

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submit a corrective action plan. Id. at 2-3 (citing 21 U.S.C. 
824(c)(2)(C)).
    By letter dated April 10, 2020, Respondent timely requested a 
hearing.\1\ Hearing Request, at 1. In the Hearing Request, Respondent 
stated that he ``expects to prevail in the Texas Medical Board 
proceedings that are pending.'' Id.
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    \1\ The Hearing Request was deemed filed on April 10, 2020. 
Order for Prehearing Statements, 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 Mark M. Dowd 
(hereinafter, ALJ). The ALJ issued an Order for Prehearing Statements, 
dated April 13, 2020. The Government timely complied with the Briefing 
Schedule by filing a Motion for Summary Disposition on April 22, 2020, 
(hereinafter, Government Motion or Govt Motion). In its Motion, the 
Government submitted evidence that Respondent's Texas medical license 
had been suspended and that he therefore lacked authority to handle 
controlled substances in Texas, the state in which he is registered 
with DEA. Govt Motion, at 1. In light of these facts, the Government 
argued that DEA must revoke his registration. Govt Motion, at 3.
    On May 1, 2020,\2\ Respondent, requested that the revocation action 
be suspended until the Board made a final decision on the temporary 
suspension. Respondent's Prehearing Statement, at 1.
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    \2\ Respondent submitted a ``Motion to Accept Late Filed 
Prehearing Statement,'' which noted that the prehearing statement 
was emailed a few hours after the deadline set by the ALJ and 
requested that it be accepted nonetheless. The ALJ found, and I 
agree, that ``neither party [would] be unduly prejudiced by 
acceptance of the Respondent's out-of-time Prehearing Statement.'' 
Order Granting the Government's Motion for Summary Disposition, and 
Recommended Rulings, Findings of Fact, Conclusions of Law, and 
Recommended Decision of the Administrative Law Judge, at 3 n.1.
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    On May 6, 2020, the ALJ issued an Order Granting the Government's 
Motion for Summary Disposition, and Recommended Rulings, Findings of 
Fact, Conclusions of Law, and Recommended Decision of the 
Administrative Law Judge (hereinafter, Summary Disposition or SD). In 
the Summary Disposition, the ALJ denied Respondent's request for a stay 
of the proceedings until the Texas Medical Board had concluded its 
proceedings.\3\ SD, at 4-5. The ALJ noted that, ``even though the 
Respondent was actively engaged in negotiating or appealing a State 
Board decision, `[i]t is not DEA's policy to stay [administrative] 
proceedings . . . while registrants litigate in other forums.' '' SD, 
at 5 (citing Newcare Home Health Servs., 72 FR 42,126, 42,127 n.2 
(2007)). The ALJ then granted the Government Motion for Summary 
Disposition. Id. The ALJ found that ``summary disposition of an 
administrative case is warranted where, as here, `there is no factual 
dispute of substance.' '' SD, at 7 (citing Veg-Mix, Inc. v. U.S. Dep't 
of Agric., 832 F.2d 601, 607 (D.C. Cir. 1987) (``[A]n agency may 
ordinarily dispense with a hearing when no genuine dispute exists.'' 
(citations omitted))). By letter dated June 15, 2020, the ALJ certified 
and transmitted the record to me for final Agency action. In that 
letter, the ALJ advised that neither party filed exceptions. I find 
that the time period to file exceptions has expired. See 21 CFR 
1316.66.
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    \3\ I find no error in the ALJ's decision to continue DEA's 
proceedings.
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    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. 
AL1308370 at the registered address of 1900 Yorktown Street, Apartment 
728, Houston, Texas 77056. Govt Motion Exhibit (hereinafter, 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 March 31, 2021, and is 
currently in ``active pending status.'' Id.

The Status of Respondent's State License

    On January 6, 2020, the Texas State Medical Board issued an Order 
of Temporary Suspension (hereinafter, Board Order) without notice of 
hearing to Respondent ``effective on the date rendered.'' GX 2 (Board 
Order), at 5-6. According to the Board Order, Respondent ``engaged in 
unprofessional and dishonorable conduct'' and ``also engaged in the 
non-therapeutically prescribing of opioids and a muscle relaxant, 
carisprodol, to multiple patients.'' Id. The Board found that 
Respondent's ``continuation in the practice of medicine would 
constitute a continuing threat to the public welfare.'' Id. at 5.
    According to Texas's online records, of which I take official 
notice, Respondent's registration status is ``delinquent-non payment'' 
and his disciplinary status is ``suspended by board.'' \4\ Texas 
Medical Board Healthcare Provider Search, https://public.tmb.state.tx.us/HCP_Search/SearchNotice.aspx (last visited 
October 27, 2020).
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    \4\ 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 of findings 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 Respondent 
files a motion, the Government shall have fifteen calendar days to 
file a response. Any motion and response shall be filed and served 
by email to the other party and to the Office of the Administrator 
at [email protected].
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    Based on the entire record before me, I find that Respondent 
currently is not licensed to engage in the practice of medicine in 
Texas, the state in which Respondent is registered with 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 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[\5\] 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 F. App'x 826 (4th Cir. 2012); Frederick Marsh 
Blanton, M.D., 43 FR 27,616, 27,617 (1978).
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    \5\ ``[D]ispense[ ] means to deliver a controlled substance to 
an ultimate user . . . by, or pursuant to the lawful order of, a 
practitioner, including the prescribing and administering of a 
controlled substance . . . .'' 21 CFR 802(10).
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    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.

[[Page 73753]]

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.
    Moreover, because ``the controlling question'' in a proceeding 
brought under 21 U.S.C. 824(a)(3) is whether the holder of a 
practitioner's registration ``is currently authorized to handle 
controlled substances in the state,'' Hooper, 76 FR at 71,371 (quoting 
Anne Lazar Thorn, 62 FR 12,847, 12,848 (1997)), the Agency has long 
held that revocation is warranted even where a practitioner is still 
challenging the underlying action. Bourne Pharmacy, 72 FR 18,273, 
18,274 (2007); Wingfield Drugs, 52 FR 27,070, 27,071 (1987). Thus, it 
is of no consequence that the action is being appealed. What is 
consequential is my finding that Respondent is no longer currently 
authorized to dispense controlled substances in Texas, the state in 
which he is registered.
    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.''). Additionally, ``[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 Respondent 
currently lacks authority to practice medicine in Texas. I, therefore, 
find that Respondent is currently without authority to dispense 
controlled substance in Texas, the state in which he is registered with 
DEA, and 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. 
AL1308370 issued to Lewis Leavitt III, M.D. 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 Lewis Leavitt III, M.D. to renew or 
modify this registration, as well as any other application of Lewis 
Leavitt III, M.D. for additional registration in Texas. This Order is 
effective December 21, 2020.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-25521 Filed 11-18-20; 8:45 am]
BILLING CODE 4410-09-P