[Federal Register Volume 86, Number 170 (Tuesday, September 7, 2021)]
[Notices]
[Pages 50180-50182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19203]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 21-13]


Lora L. Thaxton, M.D.; Decision and Order

    On March 24, 2021, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to Lora 
L. Thaxton, M.D. (hereinafter, Respondent) of Naples, Florida. OSC, at 
1. The OSC proposed the revocation of Respondent's Certificate of 
Registration No. FT3429227. It alleged that Respondent is without 
``authority to handle controlled substances in Florida, the state in 
which [Respondent is] registered with DEA.'' Id. at 2 (citing 21 U.S.C. 
824(a)(3)).
    Specifically, the OSC alleged that the Florida Department of Health 
issued an Order of Emergency Restriction of License on April 14, 2020. 
Id. at 1. This Order, according to the OSC, suspended Respondent's 
Florida medical license following its findings, inter alia, that a 
medical evaluator from the impaired practitioner program for the 
Florida Board of Medicine had determined that Respondent was ``unable 
to practice medicine with reasonable skill and safety to patients due 
to alcohol use disorder.'' Id. at 2. According to the OSC, Respondent 
subsequently entered into a settlement agreement with the Florida Board 
of Medicine on February 5, 2021,\1\ under which Respondent's medical 
license would remain suspended until she demonstrated her ability to 
practice medicine with reasonable skill and safety, submitted to an 
evaluation by the impaired practitioner program, and petitioned the 
Florida Board of Medicine for reinstatement of her medical license. Id.
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    \1\ The Government's Exhibit demonstrates that the Florida Board 
of Medicine approved the settlement agreement on April 5, 2021. See 
Government's Motion for Summary Disposition, Exhibit D, at 1-2.
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    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)).
    By letter dated April 29, 2021, Respondent timely requested a 
hearing.\2\ Request for Hearing (Official Notification). The Office of 
Administrative Law Judges put the matter on the docket and assigned it 
to

[[Page 50181]]

Administrative Law Judge Paul E. Soeffing (hereinafter, ALJ). On April 
29, 2021, the ALJ issued an Order for Evidence of Lack of State 
Authority and Directing the Filing of Evidence Regarding the Service of 
the Order to Show Cause, which directed the parties to brief the 
Government's allegation that Respondent lacks state authority to handle 
controlled substances. Order Granting the Government's Motion for 
Summary Disposition, and Recommended Rulings, Findings of Fact, 
Conclusions of Law, and Decision of the Administrative Law Judge 
(hereinafter, Recommended Decision or RD), at 2. The Government timely 
filed its Submission of Evidence and Motion for Summary Disposition 
(hereinafter, Government Motion) on May 18, 2021.\3\ Id.
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    \2\ According to the Declaration of the lead Diversion Investor 
(hereinafter, DI) assigned to this case, the DI mailed two copies of 
the OSC to Respondent on March 31, 2021. Government Motion Exhibit 
1, at 1-2. By email dated April 2, 2021, Respondent's counsel 
indicated that Respondent had received the OSC on April 2, 2021, and 
would be filing a request for hearing within 30 days, as well as a 
proposed corrective action plan. Request for Hearing (Emailed). 
Because Respondent's hearing request, was filed within thirty days 
of the DI's mailing the OSC on April 29, 2021, I find that the 
Government's service of the OSC was adequate and that the hearing 
request was timely filed.
    \3\ On May 7, 2021, the Government filed an Unopposed Motion for 
Extension of Time. On May 10, 2021, the ALJ issued an Order Granting 
Government's Unopposed Motion for Extension of Time, extending the 
Government's due date from May 17, 2021, to May 18, 2021.
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    In its motion, the Government argued that because Respondent lacks 
authority to handle controlled substances in Florida, the state in 
which she is registered with the DEA, the DEA must therefore revoke her 
registration. Government Motion, at 5. Respondent did not answer the 
Government Motion. RD, at 3.
    On June 4, 2021, the ALJ issued an Order Directing Compliance after 
Respondent failed to file her response to the Government Motion by the 
June 3, 2021 deadline. Order Directing Compliance, at 1. The Order 
Directing Compliance directed Respondent to file her response by June 
11, 2021, and to show good cause for failing to meet the deadline. Id. 
at 2. Respondent did not answer the Order Directing Compliance. RD, at 
3.
    On July 6, 2021, the ALJ granted the Government Motion, finding 
that the Government had demonstrated that Respondent lacked state 
authority in the State of Florida and the ``Respondent has failed to 
counter the Government's evidence or otherwise dispute the allegation 
that she lacks state authority.'' RD, at 5. The ALJ further found that 
``[a]s a matter of law, the facts [of this case] can only result in one 
outcome and a hearing is therefore unnecessary to resolve this 
action.'' Id. at 6.
    The ALJ recommended that Respondent's DEA registration be revoked 
and that any applications to renew her registration or any applications 
for any other DEA registrations in Florida be denied based on her lack 
of state authority to practice medicine or handle controlled substances 
in Florida. RD, at 7. By letter dated August 2, 2021, the ALJ certified 
and transmitted the record to me for final Agency action. In the 
letter, the ALJ advised that neither party filed exceptions.
    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. 
FT3429227 at the registered address of 12079 Wicklow Ln, Naples, FL 
34120. Government Motion Exhibit (hereinafter, GX) A (Controlled 
Substance Registration Certificate). 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 November 30, 2021. Id.

The Status of Respondent's State License

    On April 14, 2020, the Florida Department of Health issued an Order 
of Emergency Restriction of License (hereinafter, Emergency 
Restriction) that restricted Respondent's license to practice medicine 
in Florida. GX C, at 1.
    According to the Emergency Restriction, in December 2019, a nurse 
at the hospital where Respondent was employed reported that Respondent 
appeared impaired while at work. Id. at 2. Respondent was asked by the 
hospital supervisor to provide a breath sample for a breath alcohol 
test, the result of which was positive for alcohol at a concentration 
indicating that she was impaired. Id.
    On or about December 6, 2019, Respondent self-reported the results 
of the breath alcohol test to the Professionals Resource Network 
(hereinafter, PRN), the impaired practitioner program for the Florida 
Board of Medicine that monitors the evaluation, care, and treatment of 
impaired practitioners licensed by the Florida Department of Health. 
Id. On or about January 13, 2020, Respondent was evaluated by an expert 
in addiction medicine at PRN's request. Id.
    According to the Emergency Restriction, as of April 14, 2020, 
Respondent had not undergone the PRN recommended treatment or engaged 
in PRN monitoring. Id. at 4.
    The Emergency Restriction concluded that ``Respondent's continued 
unrestricted practice as a medical doctor constitutes an immediate, 
serious danger to the health, safety or welfare of the citizens of the 
State of Florida'' and ordered that her license be restricted until a 
PRN or a PRN-approved evaluator notified the Florida Department of 
Health that Respondent could safely resume practicing medicine. Id. at 
4 and 6. The Emergency Restriction also ordered a proceeding seeking 
formal discipline of Respondent's license. Id. at 6.
    On April 24, 2020, the Florida Department of Health filed an 
Administrative Complaint before the Florida Board of Medicine seeking 
various potential penalties including permanent revocation or 
suspension of Respondent's license. GX D, at 12-14.
    On October 26, 2020, the Florida Department of Health and 
Respondent proposed a Settlement Agreement. Id. at 4 and 11. Under the 
Settlement Agreement, Respondent would pay an administrative fine, 
would reimburse the Florida Department of Health for the costs incurred 
in the case, and Respondent's medical license would be suspended until 
she could demonstrate to the Florida Medicine Board her ability to 
practice medicine with reasonable skill and safety. Id. at 5-7. On 
April 5, 2021, the Florida Board of Medicine issued a Final Order that 
approved the Settlement Agreement. Id. at 1-2.
    According to Florida's online records, of which I take official 
notice,\4\ Respondent's license is listed as ``delinquent'' \5\ and 
Respondent is not authorized to practice medicine in Florida. Florida 
Department of Health License Verification, https://mqa-internet.doh.state.fl.us/MQASearchServices/HealthCareProviders (last 
visited date of signature of this Order).

[[Page 50182]]

Accordingly, I find that Respondent is not currently licensed to 
practice medicine in Florida, the state in which Respondent is 
registered with the DEA.
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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 and response shall be filed and served by email to the other 
party and to Office of the Administrator, Drug Enforcement 
Administration at [email protected].
    \5\ Within the Florida Department of Health License Verification 
database, ``delinquent'' means ``the licensed practitioner who held 
a clear active or clear inactive license, but failed to renew the 
license by the expiration date. The licensed practitioner is not 
authorized to practice in the state of Florida.''
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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 
Controlled Substances Act (hereinafter, 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 F. App'x 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.
    According to Florida statute, ``A practitioner, in good faith and 
in the course of his or her professional practice only, may prescribe, 
administer, dispense, mix, or otherwise prepare a controlled 
substance.'' Fla. Stat. Sec.  893.05(1)(a) (2021). Further, a 
``practitioner'' as defined by Florida statute includes ``a physician 
licensed under chapter 458.'' \6\ Id. at Sec.  893.02(23).
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    \6\ Chapter 458 regulates medical practice.
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    Here, the undisputed evidence in the record is that Respondent 
currently lacks authority to practice medicine in Florida. As already 
discussed, a physician must be a licensed practitioner to dispense a 
controlled substance in Florida. Thus, because Respondent lacks 
authority to practice medicine in Florida and, therefore, is not 
authorized to handle controlled substances in Florida, Respondent is 
not eligible to maintain a DEA registration. Accordingly, 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. 
FT3429227 issued to Lora L. Thaxton, 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 Lora L. Thaxton to renew or modify this 
registration, as well as any other pending application of Lora L. 
Thaxton for additional registration in Florida. This Order is effective 
October 7, 2021.

Anne Milgram,
Administrator.
[FR Doc. 2021-19203 Filed 9-3-21; 8:45 am]
BILLING CODE 4410-09-P