[Federal Register Volume 87, Number 14 (Friday, January 21, 2022)]
[Notices]
[Pages 3352-3354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01109]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 22-1]


Alex E. Torres, M.D.; Decision and Order

    On August 11, 2021, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to Alex 
E. Torres, M.D. (hereinafter, Respondent) of San Diego, California. 
OSC, at 1 and 3. The OSC proposed the revocation of Respondent's 
Certificate of Registration No. BT1734943. Id. at 1. It alleged that 
Respondent is ``without authority to handle controlled substances in 
California, 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 on March 18, 2021, Respondent 
entered into a Stipulated Surrender of License and Order (hereinafter, 
Stipulated Surrender) with the Medical Board of California 
(hereinafter, the Board) ``whereby [Respondent] agreed to surrender 
[his] California state medical license.'' Id. According to the OSC, 
Respondent agreed to the Stipulated Surrender after the Board alleged, 
inter alia, that ``[Respondent] negligently treated three patients, 
failed to maintain adequate and accurate records, and [was] impaired 
due to mental illness.'' Id. The OSC stated that the Board issued its 
Decision adopting the Stipulated Surrender on March 22, 2021, with the 
Decision becoming effective on March 29, 2021. Id.
    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 October 12, 2021, Respondent timely requested a 
hearing.\1\ Administrative Law Judge Exhibit (hereinafter, ALJX) 4 
(Request for Hearing), at 1. According to the Request for Hearing, 
``[Respondent] never agreed to surrender his California DEA license . . 
. [and] the [Board] didn't make any claim against [Respondent's] DEA 
license.'' Id. at 2. Further, the Request for Hearing states that 
``[d]uring [the Board] process [Respondent] denied the allegations 
against him.'' Id. According to the Request for Hearing, ``[n]one of 
the allegations against [Respondent] were related to drug prescription 
[sic]'' and ``the patient's [sic] allegations against [Respondent] were 
made because he refused to prescribe them controlled pain 
medications.'' Id. Finally, the Request for Hearing states that, 
``[t]he mental illness claimed by [the Board] was refuted and proved 
wrong with a psychiatric evaluation performed to [Respondent] after the 
Board alleged [that] he was mentally ill.'' Id.
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    \1\ The Request for Hearing was filed on October 13, 2021. Order 
for Evidence of Lack of State Authority and Directing the Government 
to File Evidence Regarding the Service of the Order to Show Cause 
(hereinafter, Briefing Schedule), at 1. I find that the Government's 
service of the OSC was adequate and that the Request for Hearing was 
timely filed on October 13, 2021. See RD, at n.1.
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    The Office of Administrative Law Judges put the matter on the 
docket and assigned it to Administrative Law Judge Paul E. Soeffing 
(hereinafter, the ALJ). The ALJ issued the Briefing Schedule on October 
13, 2021. On October 21, 2021, the Government timely filed its Notice 
of Filing of Evidence and Motion for Summary Disposition (hereinafter, 
Government's Motion). 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. In its Motion, the 
Government ``request[ed] summary disposition and a recommendation that 
Respondent's DEA Certificate of Registration as a practitioner be 
revoked based on his lack of authority to handle controlled substances 
in the State of California, the state in which he is registered with 
the DEA.'' Government's Motion, at 5. Respondent did not answer the 
Government's Motion.\2\ He did, however, address the OSC and the 
Government's allegations in his Request for Hearing. Request for 
Hearing, at 1-2. I have reviewed and considered the Request for Hearing 
as part of, and along with, the entire record before me.
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    \2\ I find that the Office of Administrative Law Judges properly 
served Respondent on all occasions. The Certificate of Service for 
the Government's Motion certifies that the Government served 
Respondent's counsel at the email address provided in Respondent's 
Request for Hearing. Request for Hearing, at 1-2.
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    The ALJ issued his Recommended Decision on November 2, 2021, 
granting the Government's Motion and finding that ``[a]s the Respondent 
does not have authority as a practitioner in California, there is no 
other fact of consequence for [the] tribunal to decide in order to 
determine whether or not he is entitled to hold a [DEA registration].'' 
RD, at 6. Further, the ALJ recommended that Respondent's DEA 
registration be revoked and that any application to renew or modify his 
registration and any applications for any other DEA registrations in 
California be denied ``based on [Respondent's] lack of state authority 
to practice medicine or handle controlled substances in California.'' 
Id. at 6-7. By letter dated November 29, 2021, the ALJ certified and 
transmitted the record to me for final Agency action. In the letter, 
the ALJ advised that no exceptions were filed by either party. 
Transmittal Letter, at 1.
    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.

[[Page 3353]]

Findings of Fact

Respondent's DEA Registration

    According to Agency records, Respondent is the holder of DEA 
Certificate of Registration No. BT1734943 at the registered address of 
4982 1/2 Field St. San Diego, CA 92110. Pursuant to this registration, 
Respondent is authorized to dispense controlled substances in schedules 
II through V as a practitioner. Respondent's registration expired on 
November 30, 2021.\3\
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    \3\ The fact that Respondent allowed his registration to expire 
during the pendency of an OSC does not impact my jurisdiction or 
prerogative under the Controlled Substances Act (hereinafter, CSA) 
to adjudicate the OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 
68474 (2019).
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The Status of Respondent's State License

    On January 31, 2020, the Medical Board of California (hereinafter, 
the Board) issued an Accusation against Respondent. Government Exhibit 
(hereinafter, GX) 2, Appendix (hereinafter, App.) A, at 10. The 
Accusation detailed four causes for discipline against Respondent 
regarding his treatment of three patients, including repeated negligent 
acts, failure to maintain adequate and accurate records, unprofessional 
conduct, and violation of the Medical Practice Act. Id. at 13-15. The 
Accusation also stated that Respondent was ``subject to Board action in 
that his ability to practice medicine safely [was] impaired because he 
[was] mentally ill, or physically ill, affecting competency.'' Id. at 
16. According to the Accusation, in or around December 2018, Respondent 
received a mental examination in which the examining physician 
``concluded that Respondent's ability to practice medicine safely [was] 
impaired due to mental illness.'' Id.
    On March 18, 2021, the Board issued its Stipulated Surrender of 
License and Order (hereinafter, Stipulated Surrender). Id. at 3 and 8. 
According to the Stipulated Surrender, ``Respondent [did] not contest 
that, at an administrative hearing, [the Board] could establish a prima 
facie case with respect to all of the charges and allegations in [the 
Accusation].'' Id. at 5. Further, according to the Stipulated 
Surrender, ``Respondent further [agreed] that his [California medical 
license] [was] subject to disciplinary action and [thereby surrendered] 
his [California medical license] for the Board's formal acceptance.'' 
Id. The Stipulated Surrender ordered Respondent's medical license 
surrendered and was signed by Respondent and his attorney. Id. at 7-8. 
On March 22, 2021, the Stipulated Surrender was adopted by the Board, 
effective March 29, 2021.\4\ Id. at 2.
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    \4\ On March 30, 2021, the Board issued a correction to a 
clerical error regarding Respondent's license number in the order 
adopting the Stipulated Surrender. See Id. at 1.
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    According to California's online records, of which I take official 
notice, Respondent's license is still surrendered.\5\ Medical Board of 
California License Verification, https://www.mbc.ca.gov/License-Verification (last visited date of signature of this Order). 
California's online records show that Respondent's medical license 
remains surrendered and that Respondent is not authorized in California 
to practice medicine. Id.
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    \5\ 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, 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 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].
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    Accordingly, I find that Respondent is not licensed to engage in 
the practice of medicine in California, the state in which Respondent 
is registered with the 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 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 71371 (2011), 
pet. for rev. denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh 
Blanton, M.D., 43 FR 27616, 27617 (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 71371-72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); 
Dominick A. Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby Watts, M.D., 
53 FR 11919, 11920 (1988); Frederick Marsh Blanton, 43 FR at 27617.
    According to California statute, ``dispense'' 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, furnishing, packaging, labeling, or compounding necessary 
to prepare the substance for that delivery.'' Cal. Health & Safety Code 
Sec.  11010 (West, current with urgency legislation through Ch. 770 of 
2021 Reg. Sess). Further, a ``practitioner'' means a person ``licensed, 
registered, or otherwise permitted, to distribute, dispense, conduct 
research with respect to, or administer, a controlled substance in the 
course of professional practice or research in this state.'' Id. at 
Sec.  11026(c). Because Respondent is not currently licensed as a 
physician, or otherwise licensed in California, he is not authorized to 
dispense controlled substances in California.
    Here, the undisputed evidence in the record is that Respondent 
currently lacks authority to practice medicine in California. As 
already discussed, a physician must be a licensed practitioner to 
dispense a controlled substance in California. Thus, because Respondent 
lacks authority to practice medicine in California and, therefore, is 
not authorized to handle controlled substances in California, 
Respondent is not eligible to maintain a DEA registration. Accordingly, 
I will order

[[Page 3354]]

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. 
BT1734943 issued to Alex E. Torres. 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 Alex E. Torres to renew or modify this 
registration, as well as any other pending application of Alex E. 
Torres for additional registration in California. This Order is 
effective February 22, 2022.

Anne Milgram,
Administrator.
[FR Doc. 2022-01109 Filed 1-20-22; 8:45 am]
BILLING CODE 4410-09-P