[Federal Register Volume 85, Number 239 (Friday, December 11, 2020)]
[Notices]
[Pages 80190-80192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27233]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Ernesto C. Torres, M.D.; Decision and Order

    On July 20, 2020, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, 
Government or DEA), issued an Order to Show Cause (hereinafter, OSC) to 
Ernesto C. Torres, M.D., (hereinafter, Registrant), of Frederick, 
Maryland. Government's Request for Final Agency Action (hereinafter, 
RFAA) Exhibit (hereinafter RFAAX) 4 (OSC), at 1. The OSC proposed the 
revocation of Registrant's Certificate of Registration No. AT8751213. 
Id. It alleged that Registrant is without ``authority to handle 
controlled substances in Maryland, the state in which [Registrant is] 
registered with DEA.'' Id. at 2 (citing 21 U.S.C. Sec.  824(a)(3)).
    Specifically, the OSC alleged that ``[o]n January 6, 2020, the 
[Maryland Board of Physicians (hereinafter, MBP)] issued [a] Final 
Decision and Order on Order for Summary Suspension, whereby the MBP 
affirmed its May 2019 suspension ruling. Moreover, during the pendency 
of the above MBP suspension proceedings, [Registrant's] state medical 
license expired on September 30, 2019,

[[Page 80191]]

and has not been renewed.'' Id. at 2. The OSC further alleged that 
Registrant is not eligible to obtain or retain a DEA registration 
because he lacks state authority to handle controlled substances in 
Maryland. 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 
2-3 (citing 21 C.F.R. Sec.  1301.43). The OSC also notified Registrant 
of the opportunity to submit a corrective action plan. Id. at 3 (citing 
21 U.S.C. Sec.  824(c)(2)(C)).

I.Adequacy of Service

    A DEA Diversion Investigator (hereinafter, DI) provided details 
regarding DEA's ``multiple efforts'' to serve Registrant with the OSC, 
which were complicated by the fact that Registrant is currently at a 
Maryland Department of Health facility. RFAAX 11, at 3 (Declaration of 
Diversion Investigator, dated October 22, 2020). The DI stated that due 
to visitor restrictions at the facility, the DI arranged to email the 
OSC to Registrant's doctor, who confirmed via reply email that 
Registrant had received the OSC. Registrant's doctor attached a signed 
DEA Form 12, Receipt for Cash or Other Items, which demonstrated that 
Registrant received the OSC on September 17, 2020, and was signed by 
Registrant and witnessed by his doctor. Id. at 4; see also RFAAX 6, at 
1 (signed DEA Form 12).
    The Government forwarded its RFAA along with the evidentiary 
record, to this office on October 23, 2020. In its RFAA, the Government 
represents that Registrant has not requested a hearing nor ```otherwise 
corresponded or communicated with DEA regarding the... [OSC], including 
the filing of any written statement in lieu of a hearing' and therefore 
has waived his right to a hearing.'' RFAA, at 6 (quoting Warren B. 
Dailey. M.D., 82 Fed. Reg. 46,525-26 (2017); David D. Moon, D.O., 82 
Fed. Reg. 19,385, 19,387 (2017)). The Government argued that ``grounds 
exist for the revocation of Registrant's DEA [registration] pursuant to 
21 U.S.C. Sec. Sec.  823(f) and 824(a)(3)'' and requests ``the issuance 
of a DEA Final Order for the revocation'' of Registrant's registration. 
Id. at 6, 7.
    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 and Registrant's own statements, 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. RFAA, at 6. 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 C.F.R. Sec.  1301.43(d) and 21 U.S.C. Sec.  
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 C.F.R. Sec.  1301.46.

II. Findings of Fact

A. Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
AT8751213 at the registered address of 188 Thomas Johnson Drive, Suite 
202, Frederick, Maryland 21702. RFAAX 2 (Certification of Registration 
History). Pursuant to this registration, Registrant is authorized to 
dispense controlled substances in schedules II through V as a 
practitioner. Id. Registrant's registration expires on November 30, 
2021. Id. The registration ``is in active pending status until the 
resolution of administrative proceedings.'' Id.

B.The Status of Registrant's State License

    On May 28, 2019, the MBP issued an Order for Summary Suspension of 
License to Medicine against Registrant. RFAAX 3 (Final Decision and 
Order on Order for Summary Suspension (hereinafter, Suspension Order)), 
at 1. After a hearing, the MBP issued a Suspension Order affirming 
Registrant's suspension on January 6, 2020, in which it concluded that 
summary suspension of Registrant's medical license ``is imperatively 
required to protect the public health, safety, and welfare.'' Id. at 2. 
The MBP ordered that ``the summary suspension of [Registrant's] license 
to practice medicine in Maryland remains in effect.'' Id. at 3.
    According to Maryland's online records, of which I take official 
notice, Registrant's medical license status and Controlled Dangerous 
Substances (CDS) registration are both ``expired.''\1\ Maryland Board 
of Physicians Profile Search, available at https://www.mbp.state.md.us/bpqapp/ (last visited date of signature of this Order), and Maryland 
Office of Provider Engagement and Regulation (Oper) Controlled 
Dangerous Substances Registration Search, available at https://health.maryland.gov/ocsa/Pages/cdssearch.aspx (last visited date of 
signature of this Order).
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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. Sec.  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 e-mail 
([email protected]).
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    Accordingly, I find that Registrant currently is neither licensed 
to engage in the practice of medicine nor registered to dispense 
controlled substances in Maryland, the state in which Registrant is 
registered with the DEA.

III. Discussion

    Pursuant to 21 U.S.C. Sec.  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 Fed. Reg. 71,371 
(2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); 
Frederick Marsh Blanton, M.D., 43 Fed. Reg. 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. Sec.  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

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U.S.C. Sec.  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 Fed. Reg. at 71,371-72; Sheran Arden Yeates, M.D., 71 Fed. Reg. 
39,130, 39,131 (2006); Dominick A. Ricci, M.D., 58 Fed. Reg. 51,104, 
51,105 (1993); Bobby Watts, M.D., 53 Fed. Reg. 11,919, 11,920 (1988); 
Frederick Marsh Blanton, 43 Fed. Reg. at 27,617.
    Pursuant to the Maryland Controlled Dangerous Substances Act, ``a 
person shall be registered by the Department before the person 
manufactures, distributes, or dispenses a controlled dangerous 
substance in the State or transports a controlled dangerous substance 
into the State.'' Md. Code Ann., Crim. Law Sec.  5-301 (West 2020). 
Maryland law further defines ``dispense'' to ``mean[] to deliver to the 
ultimate user of the human research subject by or in accordance with 
the lawful order of an authorized provider'' and states that the term 
``includes to prescribe, administer, package, label, or compound a 
substance for delivery.'' Id. at Sec.  5-101(l)(1)&(2).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to dispense controlled substances in 
Maryland, as his controlled substance license is ``expired.'' As 
already discussed, a practitioner must hold a valid controlled 
substance license to dispense a controlled substance in Maryland. Thus, 
because Registrant lacks authority to handle controlled substances in 
Maryland, Registrant is not eligible to maintain a DEA registration. 
Accordingly, I order that Registrant's DEA registration be revoked.

Order

    Pursuant to 28 C.F.R. Sec.  0.100(b) and the authority vested in me 
by 21 U.S.C. Sec.  824(a), I hereby revoke DEA Certificate of 
Registration No. AT8751213 issued to Ernesto C. Torres, M.D. This Order 
is effective January 11, 2021.

Timothy J. Shea,
Acting Administrator.
 [FR Doc. 2020-27233 Filed 12-10-20; 8:45 am]
 BILLING CODE 4410-09-P