[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Notices]
[Pages 21137-21139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07700]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Jennifer Smith, M.D.; Decision and Order
On July 8, 2021, a former Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration (hereinafter,
Government), issued an Order to Show Cause (hereinafter, OSC) to
Jennifer Smith, M.D. (hereinafter, Registrant) of New Hartford, New
York. OSC, at 1 and 3. The OSC proposed the revocation of Registrant's
Certificate of Registration No. FS0290875. Id. at 1. It alleged that
Registrant is ``without authority to handle controlled substances in
New York, the state in which [she is] registered with DEA'' and alleged
that her DEA registration must be revoked based on her lack of state
authority. Id. at 2 (citing 21 U.S.C. 824(a)(3)).
Specifically, the OSC alleged that on January 28, 2021, the New
York State Board for Professional Medical Conduct (hereinafter, the
Board) issued a Determination and Order revoking Registrant's New York
medical license, effective February 5, 2021. Id. at 1-2. The Board
revoked Registrant's New York medical license following its findings,
inter alia, that Registrant ``failed to comply with the terms of an
earlier Consent Order that [she] entered into with the Board on
February 15, 2013'' and ``failed to cooperate with an investigation by
the New York State Office of Professional Medical Conduct.'' Id. at 2.
The OSC notified Registrant 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 Registrant of the opportunity to
submit a corrective action plan. Id. at 3 (citing 21 U.S.C.
824(c)(2)(C)).
Adequacy of Service
In a Declaration dated December 21, 2021, a Diversion Investigator
(hereinafter, the DI) assigned to the Syracuse Resident Office of DEA's
New York Field Division stated that on or about July 28, 2021, DEA sent
a copy of the OSC to Registrant via certified mail, return receipt
requested, and on or about July 31, 2021, Registrant herself signed the
return receipt for the OSC. Request for Final Agency Action
(hereinafter, RFAA) Exhibit (hereinafter, RFAAX) 3 (DI's Declaration),
at 1; see also RFAAX 3, Appendix (hereinafter, App.) A (Return Receipt
Signed by Registrant) and B.
The Government forwarded its RFAA, along with the evidentiary
record, to this office on January 26, 2022. In its RFAA, the Government
represents that neither Registrant nor any attorney representing
Registrant has requested a hearing or submitted a written statement.
RFAA, at 2; RFAAX 3, at 2. The Government requests that Registrant's
DEA registration be revoked and that any applications for any other DEA
registrations by Registrant be denied based on Registrant's lack of
authority to handle controlled substances in New York, the state in
which she is registered with the DEA. RFAA, at 5.
Based on the DI's Declaration, the Government's written
representations, and my review of the record, I find that the
Government accomplished service of the OSC on Registrant on or about
July 31, 2021. I also find that more than thirty days have now passed
since the Government accomplished service of the OSC. Further, based on
the DI's Declaration, the Government's written representations, and my
review of the record, 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. 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 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).
Findings of Fact
Registrant's DEA Registration
Registrant is the holder of DEA Certificate of Registration No.
FS0290875 at the registered address of 3985 Oneida Street, Suite 204,
New Hartford, New York 13413. RFAAX 1 (Certificate of Registration).
Pursuant to this registration, Registrant is authorized to dispense
controlled substances in schedules IIN, IIIN,\1\ IV and V as a
practitioner. Id.
---------------------------------------------------------------------------
\1\ Registrant only is authorized to dispense non-narcotic
controlled substances in Schedules II and III.
---------------------------------------------------------------------------
The Status of Registrant's State License
On October 16, 2020, the New York State Board for Professional
Medical Conduct (hereinafter, the Board) issued a Statement of Charges
against
[[Page 21138]]
Registrant. RFAAX 3, App. C, at 10 and 12. The Statement of Charges
alleged that on or about February 12, 2013, Registrant voluntarily
entered into a Consent Order with the Board, in which Registrant ``did
not contest pending professional misconduct charges alleging negligence
on more than one occasion in violation of N.Y. Educ. Law Sec. 6530(3)
and [failure] to maintain records in violation of N.Y. Educ. Law Sec.
6530(32).'' Id. at 10. Further, according to the Statement of Charges,
the Consent Order stated that Registrant ``stipulated that her failure
to comply with any conditions of the [Consent Order] [would] constitute
misconduct as defined by N.Y. Educ. Law Sec. 6530(29).'' Id. The
Statement of Charges stated that the Consent Order was approved on or
about February 15, 2013, and became effective on or about February 26,
2013. Id. According to the Statement of Charges, the Consent Order
required that Registrant remain in continuous compliance with various
state laws and regulations and that Registrant cooperate fully with any
administration and enforcement, or investigation by the Office of
Professional Medical Conduct (hereinafter, OPMC). Id. at 10-11. The
Statement of Charges stated that the Consent Order also imposed various
penalties, including censure, reprimand, license limitation, and
probation. Id. at 10. According to the Statement of Charges, Registrant
violated the terms of the Consent Order when she: Failed to renew her
registration with the New York State Education Department after her
registration expired at the end of March 2020; failed to update her New
York State Physician Profile within the six months prior to the
expiration of her registration; failed to fully cooperate with an
investigation from OPMC; failed to respond to various correspondences
from OPMC; failed to provide records requested from OPMC; and failed to
schedule and attend an interview with OPMC.\2\ Id. at 11. On January
28, 2021, the Board's Order sustained the charge that Registrant
committed professional misconduct by violating conditions imposed on
her medical license and revoked Registrant's medical license. Id. at 3
and 7.
---------------------------------------------------------------------------
\2\ The Board detailed the grounds in which OPMC had begun to
investigate Registrant in its Determination and Order (hereinafter,
Order) issued January 28, 2021. Id. at 3 and 6-7. According to the
Order, OPMC had begun to investigate Registrant because ``it had
reasonable grounds to believe that [Registrant] was impaired to
practice medicine by drugs or a physical and/or psychiatric
condition.'' Id. at 6.
---------------------------------------------------------------------------
According to New York's online records, of which I take official
notice, Registrant's New York medical license is still revoked.\3\
Office of the Professions Verification Searches, www.op.nysed.gov/opsearches.htm (last visited date of signature of this Order).
Accordingly, I find that Registrant is not currently licensed to engage
in the practice of medicine in New York, the state in which she is
registered with the DEA.
---------------------------------------------------------------------------
\3\ 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].
---------------------------------------------------------------------------
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 the New York Controlled Substances Act (hereinafter,
the Act), ``[i]t shall be unlawful for any person to manufacture, sell,
prescribe, distribute, dispense, administer, possess, have under his
control, abandon, or transport a controlled substance except as
expressly allowed by this article.'' N.Y. Pub. Health Law Sec. 3304
(McKinney 2022). Further, the Act defines a ``practitioner'' as ``[a]
physician . . . or other person licensed, or otherwise permitted to
dispense, administer or conduct research with respect to a controlled
substance in the course of a licensed professional practice . . . .''
Id. at Sec. 3302(27). Finally, New York regulations state that ``[a]
prescription for a controlled substance may be issued only by a
practitioner who is . . . authorized to prescribe controlled substances
pursuant to his licensed professional practice . . .'' N.Y. Comp. Codes
R. & Regs. tit. 10, 80.64 (2022).
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice medicine in New York. As already
discussed, a physician must be a licensed practitioner to dispense a
controlled substance in New York. Thus, because Registrant lacks
authority to practice medicine in New York and, therefore, is not
authorized to handle controlled substances in New York, Registrant is
not eligible to maintain a DEA registration. Accordingly, I will order
that Registrant'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.
FS0290875 issued to Jennifer Smith, 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
[[Page 21139]]
Jennifer Smith, M.D. to renew or modify this registration, as well as
any other pending application of Jennifer Smith, M.D., for additional
registration in New York. This Order is effective May 11, 2022.
Anne Milgram,
Administrator.
[FR Doc. 2022-07700 Filed 4-8-22; 8:45 am]
BILLING CODE 4410-09-P