[Federal Register Volume 85, Number 224 (Thursday, November 19, 2020)]
[Notices]
[Pages 73806-73808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25524]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 20-24]


Jonathan Rosenfield, M.D.; Decision and Order

    On June 18, 2020, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to 
Jonathan Rosenfield, M.D. (hereinafter, Respondent) of Houston, Texas, 
and Grand Forks, North Dakota. OSC, at 1. The OSC proposed the 
revocation of Respondent's Certificates of Registration Nos. FR7251642 
and FR5327285. Id. It alleged that Respondent is without ``authority to 
handle controlled substances.'' Id. (citing 21 U.S.C. 824(a)(3)).
    Specifically, the OSC alleged that on ``October 10, 2019, the Texas 
Medical Board issued an Order of Temporary Suspension, suspending 
[Respondent's] Texas medical license. That order remains in effect.'' 
Id. at 2. The OSC further stated that ``[s]ubsequently, on December 30, 
2019, [Respondent] entered into a Stipulation and Non-Practice 
Agreement with the North Dakota Board of Medicine in which [Respondent] 
agreed not to practice medicine in the State of North Dakota and in 
which [Respondent] agreed that [his] North Dakota medical license will 
be inactive for all purposes.'' Id. The OSC concluded that ``DEA must 
revoke [Respondent's] DEA registrations based on [his] lack of 
authority to handle controlled substances in the State of Texas and the 
State of North Dakota.'' Id. (citing 21 U.S.C. 824(a)(3); 21 CFR 
1301.37(b)).
    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 2-3 (citing 21 
CFR 1301.43). The OSC also notified Respondent of the opportunity to 
submit a corrective action plan. Id. at 3 (citing 21 U.S.C. 
824(c)(2)(C)).
    On July 30, 2020, Respondent, through counsel, requested a hearing, 
stating that his ``medical license in Texas is only temporarily 
suspended'' and he ``maintains an active medical license in Ohio and 
Georgia.'' Request for a Hearing, at 1.
    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), who issued an Order Directing 
the Filing of Government Evidence Regarding its Lack of State Authority 
Allegation and Briefing Schedule on July 30, 2020, with which the 
Government complied by filing a Motion for Summary Disposition 
(hereinafter, Govt Motion) on August 10, 2020.
    In its Motion, the Government submitted evidence that the ``Texas 
Medical Board issued an Order of Temporary Suspension, suspending 
Respondent's Texas Medical License,'' and ``Respondent entered into a 
Stipulation and Non-practice agreement with the North Dakota Board of 
Medicine in which Respondent agreed not to practice medicine in the 
State of North Dakota.'' Govt Motion, at 3-4. In light of these facts, 
the Government argued that DEA must revoke Respondent's registration. 
Id. at 5.
    On August 20, 2020, Respondent filed a ``Memorandum Contra to the 
Government's Motion for Summary Disposition'' (hereinafter, Resp 
Opposition), in which he argued that ``[t]he matter in Texas is 
temporary in nature, as it is a Temporary Suspension.'' Resp 
Opposition, at 1. He also argued that he has active medical licenses in 
Georgia and Ohio and that Respondent ``contends that he does'' have 
state authority in Texas. Id. at 2.
    On August 25, 2020, the Chief 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). The 
Chief ALJ noted that, ``Respondent has made the confusing assertion 
that he `has the authority to handle controlled substances' because the 
suspension imposed by Texas is temporary and `can be lifted at any 
time' . . . .'' SD, at 4 (quoting Resp Opposition, at 1). However, he 
also noted that ``[t]he Respondent has represented that no superseding 
order from the Texas Board has been issued.'' Id. at 3 (citing Resp 
Opposition, at 1). Therefore, the ALJ determined that ``in view of the 
Respondent's current lack of state authority, revocation of the 
Respondent's [registrations] stands as the only legally available 
resolution.''

[[Page 73807]]

SD, at 5. The Chief ALJ further concluded that ``[s]ummary disposition 
is proper in an administrative enforcement proceeding where no genuine 
factual dispute exists.'' Id. at 6 (citing Veg-Mix, Inc. v. U.S. Dept. 
of Agriculture, 832 F.3d 601, 607 (D.C. Cir. 1987) (comparing the 
standard for summary disposition in an administrative proceeding to 
summary judgment in a civil proceeding); Citizens for Allegan County, 
Inc. v. Federal Power Commission, 414 F.2d 1125, 1128 (D.C. Cir. 1969) 
(affirming that ``the right of opportunity for hearing does not require 
a procedure that will be empty sound and show, signifying nothing'')).
    By letter dated September 22, 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.
    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. 
FR7251642 at the registered address of 4561 Edfield Street, Houston, 
Texas 77051. Govt Motion Exhibit (hereinafter, GX) 1 (Certification of 
Registration History Texas),\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 
expired on April 20, 2020, and is in ``a renewal pending status until 
the resolution of administrative proceedings.'' Id. Respondent is also 
the holder of DEA Certificate of Registration No. FR5327285 at the 
registered address of 1451 44th Avenue South, Unit E, Grand Forks, 
North Dakota 58201. GX 2 (Certification of Registration History North 
Dakota), 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 April 30, 
2021, and is in ``an active pending status until the resolution of 
administrative proceedings.'' Id.
---------------------------------------------------------------------------

    \1\ It is noted that the Government's Exhibits 1 and 2 list 
several other registrations held by Respondent that are not subject 
to these proceedings.
---------------------------------------------------------------------------

The Status of Respondent's State Licenses

Texas
    On October 10, 2019, the Texas Medical Board (hereinafter, Texas 
Board) entered an Order of Temporary Suspension (hereinafter, 
Suspension Order) ``effective on the date rendered.'' GX 4 (Suspension 
Order), at 4. According to the Suspension Order, Respondent engaged in 
``unprofessional or dishonorable conduct'' and the Texas Board had 
authority to discipline Respondent for ``prescribing, administering, or 
dispensing in a manner inconsistent with public health and welfare 
dangerous drugs . . . .'' Id. at 3. The Texas Board found that 
Respondent's ``continued practice of medicine would constitute a 
continuing threat to the public welfare.'' Id. at 3. The Order further 
stated that it ``shall remain in effect until it is superseded by an 
Order of the Board.'' Id. at 4.
    According to Texas's online records, of which I take official 
notice, Respondent's registration status is ``suspended, active as of 
10/10/2019'' and his disciplinary restrictions are ``suspended by board 
as of 10/10/2019.'' \2\ Texas Medical Board Healthcare Provider Search, 
https://public.tmb.state.tx.us/HCP_Search/SearchNotice.aspx (last 
visited October 27, 2020).
---------------------------------------------------------------------------

    \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, 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].
---------------------------------------------------------------------------

    Based on the entire record before me, I find that Respondent 
currently is not licensed to engage in the practice of medicine in 
Texas, one of the two states where Respondent maintains a registration 
subject to this action.
North Dakota
    On January 14, 2020, the North Dakota Board of Medicine 
(hereinafter, North Dakota Board) entered into a Stipulation and 
Nonpractice Agreement (hereinafter, Nonpractice Agreement) effective 
``upon execution of [the] agreement.'' GX 5 (Nonpractice Agreement), at 
1. According to the Nonpractice Agreement, Respondent agreed that ``he 
will immediately cease the practice of medicine in North Dakota'' and 
``he will not practice medicine in the State of North Dakota until such 
time as the Board finalizes any disciplinary action that may be brought 
against him based on the information obtained by the Board from the 
Federation of State Medical Boards Physician Data Center, the Texas 
Medical Board and the United States District Court for the Southern 
District of Texas.'' Id.
    According to North Dakota's online records, of which I take 
official notice, Respondent's registration status is ``inactive-other'' 
and his disciplinary history is ``Entered into a stipulated non-
practice agreement.'' \3\ North Dakota Board of Medicine Find a 
Practitioner/Verify License Status, https://www.ndbom.org/public/find_verify/verify.asp (last visited October 27, 2020).
---------------------------------------------------------------------------

    \3\ I take official notice of this fact. See n.1
---------------------------------------------------------------------------

    Based on the entire record before me, I find that Respondent 
currently is not licensed to engage in the practice of medicine in 
North Dakota, one of the two states where Respondent maintains a 
registration subject to this action

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 [her]State license 
or registration suspended . . . [or] revoked . . . by competent State 
authority and is no longer authorized by State law to engage in the . . 
. dispensing[\4\] 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).
---------------------------------------------------------------------------

    \4\ ``[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).
---------------------------------------------------------------------------

    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

[[Page 73808]]

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.
    Respondent argued that ``[t]he matter in Texas is temporary in 
nature, as it is a Temporary Suspension.'' \5\ Resp Opposition, at 1. 
He also argued that he has active medical licenses in Georgia and Ohio 
and that he does have state authority in Texas. Id. at 2. However, the 
Suspension Order issued by the Texas Board clearly states that the 
suspension is in effect until the Board issues a superseding Order. GX 
4, at 4. Further, I agree with the Chief ALJ that ``[a]s has been long 
established by Agency [decisions], state licensure in a state other 
than a respondent's [] registration state is irrelevant to a DEA 
enforcement proceeding. SD, at 4-5 (citing Craig K. Alhanati, D.D.S., 
62 FR 32,658, 32,658 (1997)).
---------------------------------------------------------------------------

    \5\ It is noted that Respondent presented no arguments about the 
status of his medical license in North Dakota.
---------------------------------------------------------------------------

    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,'' James L. Hooper, 76 FR at 71,371 (quoting Anne Lazar 
Thorn, 62 FR 12,847, 12,848 (1997)), the Agency has also long held that 
revocation is warranted even where a practitioner is still challenging 
the underlying action or where the state action is temporary. Kambiz 
Haghighi, M.D., 85 FR 5989 (2020); 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 a suspension. What is 
consequential is my finding that Respondent is no longer currently 
authorized to dispense controlled substances in Texas and North Dakota, 
the two states where Respondent maintains the registrations subject to 
this action.
    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).
    Under North Dakota law, ```[d]ispense' 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, administering, packaging, labeling, or compounding 
necessary to prepare the substance for that delivery.'' N.D. Cent. Code 
Sec.  19-03.1-01(10) (West 2019). Further, a ``practitioner'' is 
defined as, ``A physician, dentist, veterinarian, pharmacist, 
scientific investigator, or other person licensed, registered, or 
otherwise permitted by the jurisdiction in which the individual is 
practicing to distribute, dispense, conduct research with respect to, 
or to administer a controlled substance in the course of professional 
practice or research.'' Id. at Sec.  19-03.1-01(25)(a). Therefore, 
because Registrant currently is not licensed by the jurisdiction in 
which he is practicing, he is not authorized to dispense controlled 
substances in North Dakota.
    Here, the undisputed evidence in the record is that Respondent 
currently lacks authority to practice medicine in Texas and North 
Dakota. I, therefore, find that Respondent is currently without 
authority to dispense controlled substance in Texas and North Dakota, 
two states in which he is registered with DEA, and I will order that 
Respondent's DEA registrations in these states 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 Certificates of Registration Nos. 
FR7251642 and FR5327285 issued to Jonathan Rosenfield, 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 Jonathan Rosenfield, 
M.D. to renew or modify these registrations, as well as any other 
application of Jonathan Rosenfield, M.D. for additional registrations 
in Texas and North Dakota. This Order is applicable December 21, 2020.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-25524 Filed 11-18-20; 8:45 am]
BILLING CODE 4410-09-P