[Federal Register Volume 85, Number 224 (Thursday, November 19, 2020)]
[Notices]
[Pages 73782-73784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25534]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 20-13]


Julie I. Dee, M.D.; Decision and Order

    On February 26, 2020, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to Julie 
I. Dee, M.D. (hereinafter, Respondent) of Mountain Green, Utah. OSC, at 
1. The OSC proposed the revocation of Respondent's Certificate of 
Registration No. FD6139491. Id. It alleged that Respondent is without 
``authority to handle controlled substances in Utah, the state in which 
[Respondent is] registered with DEA.'' Id. at 1-2 (citing 21 U.S.C. 
823(f) and 824(a)(3)).
    Specifically, the OSC alleged that on April 9, 2019, the Utah 
Division of Occupational and Professional Licensing and [Respondent] 
``entered into a Disciplinary Limitation Stipulation and Order whereby 
[Respondent] agreed, inter alia, that [Respondent] will not `engage in 
activity or employment where [Respondent] will have access to, or 
prescribe, controlled substance[s]' pending [Respondent's]

[[Page 73783]]

completion of certain terms and conditions.'' Id. at 1-2. The OSC 
further alleged that the terms and conditions were still in place and 
therefore alleged that Respondent lacks authority to handle controlled 
substances in Utah. 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 
submit a corrective action plan. Id. at 2-3 (citing 21 U.S.C. 
824(c)(2)(C)).
    On March 19, 2020, Respondent through counsel requested an 
Extension of Time to Respond to the Order to Show Cause, arguing that 
the OSC was mailed to Respondent on February 18, 2020, but she was not 
properly served until March 3, 2020, when her counsel received the OSC. 
Extension of Time to Respond, at 2-3.
    The Office of Administrative Law Judges put the matter on the 
docket and assigned it to Chief Administrative Judge Law John J. 
Mulrooney II (hereinafter, Chief ALJ), who granted Respondent's request 
for an extension of time on March 20, 2020, finding that it was both 
timely and that Respondent provided good cause. Order Granting 
Respondent's Request for Extension of Time to Respond to Order to Show 
Cause, at 1. Respondent timely filed a Request for a Hearing on April 
8, 2020, in which she argued that she has a ``temporary limitation'' in 
Utah, which ``is not a suspension, revocation, or denial as 
contemplated by 21 U.S.C. 824(a)(3). Upon completion of 2 requirements 
set forth by DOPL, the temporary limitation will be removed . . . It is 
anticipated that such temporary limitation will be lifted by November 
31, 2020.'' Request for a Hearing, at 2. On April 9, 2020, the Chief 
ALJ issued an Order Directing the Filing of Government Evidence 
Regarding its Lack of State Authority Allegation and Briefing Schedule, 
with which the Government complied by filing a Motion for Summary 
Disposition and Argument in Support of Finding that Respondent Lacks 
State Authorization to Handle Controlled Substances (hereinafter, Govt 
Motion) on April 20, 2020.
    In its Motion, the Government submitted evidence that Respondent 
and the Utah Division of Occupational and Professional Licensing 
entered into a Disciplinary Limitation Stipulation and Order in which 
``the parties agreed, inter alia, that Respondent would `not engage in 
any activity or employment where [she would] have access to, or 
prescribe, controlled substance[s]', and further, that she would not 
engage in `any conduct described in Utah Code Ann. Sec.  58-67-
102(17).' '' Govt Motion, at 2 (quoting Utah Disciplinary Limitation 
Stipulation and Order). In light of these facts, the Government argued 
that DEA must revoke Respondent's registration. Govt Motion, at 5.
    On May 4, 2020, Respondent filed a ``Motion to Enlarge Time for 
Respondent to Respond to the Government's Motion for Summary 
Disposition,'' which the Chief ALJ granted on May 5, 2020. On May 18, 
2020, Respondent filed an Opposition to Government's Motion for Summary 
Disposition (hereinafter, Resp Opposition), in which she argued that 
``Respondent's Utah Licenses are currently active with a temporary 
limitation. Because Respondent's Utah licenses have not be [sic] 
suspended, revoked, or denied, the power of revocation pursuant to 21 
U.S.C. 824(a)(3) does not apply.'' Resp Opposition, at 1.
    On May 20, 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, ``[w]hile the parties disagree as to the legal 
significance of the Respondent's licensure status, there is no 
disagreement that at present, the Respondent does not have state 
authority to handle controlled substances and practice medicine.'' SD, 
at 7 (citing Govt Motion Exhibit (hereinafter, GX) 2 at 2-5; GX 3; GX 
5; Resp Opposition, at 2-4). He further concluded that ``[i]t is her 
lack of state authority at the present moment, not some speculative 
moment in the future, that excludes the Respondent from the definition 
of a `practitioner' under 21 U.S.C. 823(f).'' Id. (citing John B. 
Freitas, D.O., 74 FR 17,524, 17,525 (2009)). By letter dated June 25, 
2020, the ALJ certified and transmitted the record to me for final 
Agency action. I find that the time period to file exceptions has 
expired. See 21 CFR 1316.66.
    A Proposed Corrective Action Plan was received on April 13, 2020. I 
agree with the decision of the Assistant Administrator of the Diversion 
Control Division on May 29, 2020, that the Proposed Corrective Action 
Plan provides no basis for me to discontinue or defer this proceeding. 
As explained herein, current state authority is necessary to retain a 
DEA registration.
    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. 
FD6139491 at the registered address of 6496 Fairview Drive, Mountain 
Green, Utah 84050. 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 June 30, 2022. Id.

The Status of Respondent's State License

    On April 9, 2019, the Division of Occupational and Professional 
Licensing of the Department of Commerce of the State of Utah 
(hereinafter, Utah Licensing Division) entered a Disciplinary 
Limitation Stipulation and Order. GX 2 (Disciplinary Limitation Order). 
According to the Disciplinary Limitation Order, Respondent ``admitted 
to inappropriately taking fentanyl from her work and becoming addicted 
to the drug.'' Id. Respondent agreed in the Order ``not to engage in 
any activity or employment where she will have access to, or be able to 
prescribe, controlled substances, and she also agrees to not engage in 
any conduct described in Utah Code Ann. Sec.  58-67-102(17).'' \1\ Id. 
at 3. She further agreed that prior to engaging in such activity, she 
``will submit to the Division at least six months of consecutive clean 
drug testing results before she applies for licensure.'' Id. at 4. The 
Order further stated that, ``practicing medicine without a license is a 
criminal offense and that engaging in any conduct described in Utah 
Code Ann. Sec.  58-67-102(17) after the effective date of this 
Stipulation would, in effect, be practicing medicine without a license 
(or without a non-restricted license).'' Id. at 6.
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    \1\ It is noted that this section of Utah law defines the 
``practice of medicine.'' Utah Code Ann. Sec.  58-67-102(17) (2020). 
Therefore, I find that this provision of the Disciplinary Limitation 
Order restricted Respondent's practice of medicine.
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    The Government presented evidence that on, December 8, 2019, a Utah 
Assistant Attorney informed a DEA Diversion Investigator (hereinafter, 
DI) that based on conditions set forth in the April 2019 Order, 
Respondent `` . . . cannot engage in anything that

[[Page 73784]]

constitutes the practice of medicine, including prescribing, 
administering, dispensing or handling [controlled substances] while her 
license is limited.'' GX 3 (email), GX 5 (Declaration of DI), at 2.
    Respondent does not contest the contents of the documents or the 
fact that she cannot currently prescribe controlled substances. Resp 
Opposition, at 2-3; SD, at 7.
    According to Utah's online records, of which I take official 
notice, Respondent's Physician and Surgeon license remains ``Limited 
Active.'' \2\ Utah Division of Occupational and Professional Licensing 
Licensee Lookup and Verification System, https://secure.utah.gov/llv/search/index.html (last visited October 27, 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, 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 is 
currently prohibited from dispensing controlled substances in Utah, 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 [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[\3\] 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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    \3\ ``[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. 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 
the practitioner is no longer authorized to dispense controlled 
substances under the laws of the state in which the practitioner 
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 argues that ``[i]n the present matter, the temporary 
limitation on Respondent's Utah licenses will be removed once she 
completes a fitness for duty certification and six months of clean drug 
tests. Respondent's reinstatement of handling controlled substances in 
Utah is not speculative, but rather is automatic upon completion of the 
fore mentioned tasks.'' Resp Opposition, at 6. Therefore, she argues 
that she has not been ``suspended'' under the terms of the CSA. Id. 
However, the agreement itself is clear that ``practicing medicine 
without a license is a criminal offense and that engaging in any 
conduct described in Utah Code Ann. Sec.  58-67-102(17) after the 
effective date of this Stipulation would, in effect, be practicing 
medicine without a license (or without a non-restricted license).'' GX 
2, at 6.
    Furthermore, 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 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 temporary. 
What is consequential is my finding that Respondent is not currently 
authorized to dispense controlled substances in Utah, the state in 
which she is registered.
    Here, the undisputed evidence in the record, in accordance with the 
explicit terms of the Disciplinary Limitation Order, is that Respondent 
is currently without authority to dispense controlled substance in 
Utah, the state in which she 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. 
FD6139491 issued to Julie I. Dee, 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 Julie I. Dee, M.D. to renew or modify 
this registration, as well as any other pending application of Julie I. 
Dee, M.D. for additional registration in Utah. This Order is effective 
December 21, 2020.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-25534 Filed 11-18-20; 8:45 am]
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