[Federal Register Volume 86, Number 204 (Tuesday, October 26, 2021)]
[Notices]
[Pages 59196-59198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23262]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Maura Tuso, D.M.D.' Decision and Order

I. Procedural Background

    On August 20, 2018, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to Maura 
Tuso, D.M.D. (hereinafter, Applicant) of San Diego, California. OSC, at 
1. The OSC proposed the denial of Applicant's application for DEA 
Certificate of Registration, Application Control No. W18011889C, 
because Applicant has ``been convicted of a felony relating to 
controlled substances and because [she has] committed acts which render 
[her] registration inconsistent with the public interest.'' Id. (citing 
21 U.S.C. 824(a)(2) & (a)(4)).
    Specifically, the OSC alleged that on August 25, 2015, Applicant 
entered a guilty plea to ``four felony counts related to unlawfully 
issuing controlled substance prescriptions in violation of California 
Health and Safety Code Section 11153(a), and related counts of 
conspiracy, prescription fraud, and insurance fraud. This guilty plea 
was accepted in the Superior Court of California, County of San Diego, 
as part of the Court's Finding and Order.'' Id. at 2.
    The OSC also alleged that, ``[p]ursuant to a July 6, 2016 
Stipulated Settlement and Disciplinary Order between [Applicant] and 
the Dental Board of California (the ``Board''), which was effective on 
September 16, 2016, [Applicant was] ordered to surrender a DEA 
Registration which [she] previously held and ordered not to reapply for 
a new DEA Registration without approval from the Board.'' Id.
    Further, the OSC stated that, ``[o]n April 12, 2018 and April 13, 
2018, the [DEA San Diego Field Division (hereinafter, SDFD)] attempted 
to provide'' Applicant with a proposed Memorandum of Agreement with 
conditions in order to grant her application. Id. During Applicant's 
visits to the SDFD, the OSC alleged that she used ``vulgar language and 
obscenities in an uncivilized display.'' Id.
    The OSC continued to allege that since this encounter, Applicant 
has ``engaged in a pattern of sending many dozens of emails to various 
DEA personnel, including emails of a harassing nature.'' Id. It alleged 
that Applicant's actions constitute ``conduct

[[Page 59197]]

which may threaten the public health and safety within the meaning of 
21 U.S.C. 823(f)(5) and [ ] acts that render [her] registration 
inconsistent with the public interest within the meaning of 21 U.S.C. 
824(a)(4).'' Id.
    The OSC notified Applicant 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 4 (citing 21 
CFR 1301.43). The OSC also notified Applicant of the opportunity to 
submit a corrective action plan. OSC, at 4-5 (citing 21 U.S.C. 
824(c)(2)(C)).
    On October 2, 2018, Applicant, represented by counsel, filed a 
timely request for hearing, in which she disputed the allegations. 
Request for Final Agency Action (hereinafter, RFAA) Exhibit 
(hereinafter, RFAAX) 3. However, on October 25, 2018, Applicant 
withdrew her request for hearing. RFAAX 5. The Administrative Law Judge 
thereby entered an Order Terminating Proceedings on October 25, 2018. 
RFAAX 6.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on April 1, 2020. The Government requests denial 
of Applicant's application for a DEA Certificate of Registration, 
``because of her previous state felony conviction related to controlled 
substances.'' \1\ \2\ Id. at 5.
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    \1\ It is noted that the Government no longer requests denial of 
Applicant's DEA application based on the allegation in the OSC that 
her registration would be inconsistent with the public interest; 
therefore, I will not assess the allegations in the OSC related to 
the public interest grounds.
    \2\ In the RFAA, the Government also argued for revocation based 
on a ground that does not appear in the OSC--that the Applicant 
currently lacks a dental license in California, the state in which 
she is applying for a DEA registration, and that her application is 
thus also subject to denial pursuant to 21 U.S.C. 824(a)(3). 
Although state authority is a prerequisite to holding (or having) a 
DEA registration, see 21 U.S.C. 823, I see no evidence in the record 
that Applicant was notified of this additional charge and I am 
declining to consider it at this time. See Shelton Barnes, M.D., 85 
FR 5983 n.3 (2020).
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    I find that Applicant has waived the right to a hearing and the 
right to submit a written statement and corrective action plan. 21 CFR 
1301.43(d) and 21 U.S.C. 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 CFR 1301.43(e).

II. Findings of Fact

A. Applicant's DEA Application

    On February 8, 2018, Applicant submitted an application 
(Application Control No. W18011889C) for a DEA Certificate of 
Registration, at the proposed registered location of 4177 West Point 
Loma Blvd., San Diego, CA 92110, for the business activity of 
practitioner in drug schedule V. RFAAX 1 (Certification of 
Nonregistration), at 1. The application is in ``a new pending status.'' 
Id.

B. Applicant's Conviction

    On August 25, 2015, Applicant \3\ entered a guilty plea to one 
felony count related to unlawfully issuing controlled substance 
prescriptions in violation of California Health and Safety Code Section 
11153(a), and one related count for obtaining a prescription by fraud 
under California Health and Safety Code Section 11173(a), and two other 
felony counts for conspiracy and insurance fraud related to the 
prescriptions. RFAAX 8, at 12-14.
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    \3\ There is substantial record evidence to support a finding 
that Maura Cathleen O'Neill is the same person as Maura Tuso. The 
Government's Certification of Non Registration for Maura Tuso lists 
previous registrations ``assigned to Maura Tuso under the name of 
Maura C O'Neill DMD.'' RFAAX 1, at 2; see also, RFAAX 7a & b (Dental 
Board of California records naming Maura Tuso as an alias for Maura 
O'Neill). Therefore, I find that the substantial record evidence 
demonstrates that the conviction in RFAAX 8 for Maura O'Neill 
applies to Applicant.
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    On August 25, 2015, the Superior Court of California, County of San 
Diego (the ``state court'') accepted Applicant's guilty plea. Id. at 
12-14. In her guilty plea, Applicant admitted that she ``knowingly and 
unlawfully obtained prescriptions for controlled substances . . . for 
reasons other than a medical purpose.'' Id. at 14.
    In its Finding and Order, the state court held, it ``accepts the 
defendant's plea and admissions, and the defendant is convicted 
thereby.'' Id. On September 23, 2015, the state court ordered Applicant 
to receive five years of probation. Id. at 17-19. On October 2, 2017, 
the state court reduced the four felony counts to misdemeanors and 
ordered summary probation. Id. at 20-21.

III. Discussion

A. Analysis of Applicant's Application for Registration

    In this matter, the Government calls for my adjudication of the 
application for registration based on the charge that Applicant was 
convicted of a felony related to controlled substances, which is a 
basis for revocation or suspension under 21 U.S.C. 824(a)(2). OSC, at 
1-2. The Government dropped the allegation that Applicant's application 
should be denied because her registration would be inconsistent with 
the public interest pursuant to section 823 in the OSC and did not 
advance any arguments or present any evidence under the public interest 
factors in its RFAA. See supra n.1. Accordingly, the remaining 
actionable substantive basis for proposing the denial of applicant's 
registration application is her felony conviction under 21 U.S.C. 
824(a)(2).
    Prior Agency decisions have addressed whether it is appropriate to 
consider a provision of 21 U.S.C. 824(a) when determining whether or 
not to grant a practitioner registration application. For over forty-
five years, Agency decisions have concluded that it is. Robert Wayne 
Locklear, M.D., 86 FR 33744-45 (collecting cases). In the recent 
decision Robert Wayne Locklear, M.D., the former Acting Administrator 
stated his agreement with the results of these past decisions and 
reaffirmed that a provision of section 824 may be the basis for the 
denial of a practitioner registration application. 86 FR 33745. He also 
clarified that allegations related to section 823 remain relevant to 
the adjudication of a practitioner registration application when a 
provision of section 824 is involved. Id.
    Accordingly, when considering an application for a registration, I 
will consider any actionable allegations related to the grounds for 
denial of an application under 823 and will also consider any 
allegations that the applicant meets one of the five grounds for 
revocation or suspension of a registration under section 824. Id.; see 
also Dinorah Drug Store, Inc., 61 FR 15972, 15973-74 (1996).
1. 21 U.S.C. 823(f): The Five Public Interest Factors
    Under Section 304 of the Controlled Substances Act, ``[a] 
registration . . . to . . . dispense a controlled substance . . . may 
be suspended or revoked by the Attorney General upon a finding that the 
registrant . . . has committed such acts as would render his 
registration under section 823 of this title inconsistent with the 
public interest as determined by such section.'' 21 U.S.C. 824(a)(4). 
Because the Government has not alleged that Applicant's registration is 
inconsistent with the public interest under section 823, I will not 
deny Applicant's application based on section 823, and although I have 
considered 823, I will not analyze Applicant's application under the 
public interest factors. Therefore, in accordance with prior agency 
decisions, I will move to assess whether the Government has proven by 
substantial evidence that a ground for revocation exists under 21 
U.S.C. 824(a). Supra II.C.

[[Page 59198]]

2. Applicant's Felony Conviction
    Pursuant to section 304(a)(2) of the CSA, the Attorney General is 
authorized to suspend or revoke a registration ``upon a finding that 
the registrant . . . has been convicted of a felony under this 
subchapter or subchapter II of this chapter or any other law of the 
United States, or of any State, relating to any substance defined in 
this subchapter as a controlled substance or a list I chemical.'' 21 
U.S.C. 824(a)(2); see also Edward A. Ridgill, M.D., 83 FR 58599, 58600 
(2018) (denying application based on conviction under 21 U.S.C. 841 for 
unlawful prescribing of controlled substances). Each subsection of 
Section 824(a) provides an independent ground to impose a sanction. 
Arnold E. Feldman, M.D., 82 FR 39614, 39617 (2017).
    Here, there is no dispute in the record that Applicant was 
convicted of felony counts related to unlawfully issuing controlled 
substance prescriptions in violation of California Health and Safety 
Code Section 11153(a), prescription fraud under California Health and 
Safety Code Section 11173(a), and related felony counts of conspiracy 
and insurance fraud. See RFAAX 8. Two of these state statutes 
specifically address controlled substance prescriptions and the 
underlying facts of the fraud and conspiracy counts were related to 
Applicant's unlawful prescribing and obtaining of controlled 
substances. See Cal. Health & Safety Code Sec.  11153(a) (``A 
prescription for a controlled substance shall only be issued for a 
legitimate medical purpose by an individual practitioner acting in the 
usual course of his or her professional practice.''); Cal. Health & 
Safety Code Sec.  11173(a) (``No person shall obtain or attempt to 
obtain controlled substances, or procure or attempt to procure the 
administration of or prescription for controlled substances . . . by 
fraud, deceit, misrepresentation, or subterfuge''). Therefore, I find 
that these provisions constitute state laws ``relating to'' controlled 
substances, as those terms are defined in 21 U.S.C. 824(a)(2). See 
Uvienome Linda Sakor, N.P., 86 FR 50173, 50178 (2021).
    Although the Government has noted in its RFAA that two years after 
Applicant's conviction, the state court reduced the four felony counts 
to misdemeanors and ordered summary probation, see RFAAX 8, at 20 and 
RFAA, at 6, the Agency established over thirty years ago, and has 
recently reiterated, that a deferred adjudication is ``still a 
`conviction' within the meaning of the . . . [CSA] even if the 
proceedings are later dismissed.'' Kimberly Maloney, N.P., 76 FR 60922, 
60922 (2011). In reaching this conclusion, the Agency explained that, 
``[a]ny other interpretation would mean that the conviction could only 
be considered between its date and the date of its subsequent 
dismissal.'' Id. (citing Edson W. Redard, M.D., 65 FR 30616, 30618 
(2000)); see also Erica N. Grant, M.D., 40,641, 40,650 (2021). Thus, in 
accordance with prior agency decisions, I find that the subsequent 
reduction of Applicant's charges, much like a subsequent deferral or 
dismissal, does not affect my finding that she was convicted of a 
felony related to controlled substances for purposes of 21 U.S.C. 
824(a)(2).
    Although the language of 21 U.S.C. 824(a)(2) discusses suspension 
and revocation of a registration, for the reasons discussed above in 
supra III.A, it may also serve as the basis for the denial of a DEA 
registration application. Applicant's felony conviction, therefore, 
serves as an independent basis for denying her application for a DEA 
registration. 21 U.S.C. 824(a)(2).

IV. Sanction

    Where, as here, the Government has met its prima facie burden of 
showing that a ground for revocation exists, the burden shifts to the 
Applicant to show why she can be entrusted with a registration. See 
Jeffrey Stein, M.D., 84 FR 46968, 46972 (2019). Applicant, as already 
discussed, waived her right to a hearing and failed to submit a written 
statement. See RFAA, at 6. Therefore, among other things, Applicant has 
not accepted responsibility for her criminality, shown any remorse for 
it, or provided any assurance that she would not repeat it. See Jeffrey 
Stein, M.D., 84 FR 46972-74. Such silence weighs against granting the 
Applicant's registration. Zvi H. Perper, M.D., 77 FR 64131, 64142 
(2012) (citing Medicine Shoppe-Jonesborough, 73 FR 264, 387 (2008); 
Samuel S. Jackson, 72 FR 23848, 23853 (2007)); see also Jones Total 
Health Care Pharmacy, LLC v. Drug Enf't Admin., 881 F3d. 823, 831 (11th 
Cir. 2018) (```An agency rationally may conclude that past performance 
is the best predictor of future performance.''' (quoting Alra 
Laboratories, Inc. v. Drug Enf't Admin., 54 F.3d 450, 452 (7th Cir. 
1995))).
    Further, the CSA authorizes the Attorney General to ``promulgate 
and enforce any rules, regulations, and procedures which he may deem 
necessary and appropriate for the efficient execution of his functions 
under this subchapter.'' 21 U.S.C. 871(b). This authority specifically 
relates ``to `registration' and `control,' and `for the efficient 
execution of his functions' under the statute.'' Gonzales v. Oregon, 
546 U.S. 243, 259 (2006). A clear purpose of this authority is to 
``bar[] doctors from using their prescription-writing powers as a means 
to engage in illicit drug dealing and trafficking . . . .'' Id. at 270. 
In this case, Applicant pled guilty to counts directly related to 
issuing controlled substance prescriptions without a legitimate medical 
purpose. Applicant's unlawful activity is exactly the type of activity 
that the CSA was intended to prevent and she has given me no indication 
that she will not repeat her illicit behavior.
    Based on the record before me, I conclude that Applicant's founded 
criminality makes her ineligible for a DEA registration. Accordingly, I 
shall order the sanction the Government requested, as contained in the 
Order below.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 823, I hereby order that the pending application for a 
Certificate of Registration, Control Number W18011889C, submitted by 
Maura Tuso, D.M.D., is denied. This Order is effective November 26, 
2021.

Anne Milgram,
Administrator.
[FR Doc. 2021-23262 Filed 10-25-21; 8:45 am]
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