[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Notices]
[Pages 21217-21219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07723]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 22-12]


Lezlie McKenzie, N.P.; Decision and Order

    On December 10, 2021, a former Acting Assistant Administrator, 
Diversion Control Division, Drug Enforcement Administration 
(hereinafter, DEA or Government), issued an Order to Show Cause 
(hereinafter, OSC) to Lezlie McKenzie, N.P. (hereinafter, Respondent) 
of Missoula, Montana. OSC, at 1. The OSC proposed the revocation of 
Respondent's Certificate of Registration Number MM0938261 (hereinafter, 
registration or COR). Id. It alleged that Respondent ``[is] currently 
without authority to handle controlled substances in Montana, the state 
in which [she is] registered with DEA.'' Id. at 2 (citing 21 U.S.C. 
824(a)(3)).
    Specifically, the OSC alleged that on July 26, 2021, the Montana 
Board of Nursing entered a Final Order that outlined ``conditions 
[Respondent was] required to meet in order to maintain [her] Montana 
nursing license.'' Id. The OSC further alleged that on October 26, 
2021, the Montana Board of Nursing ``indefinitely suspended 
[Respondent's] Montana nursing licenses for failure to abide by the 
terms'' of the July 26, 2021 Order. 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. (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 January 6, 2022, Respondent timely requested a 
hearing.\1\ Request for Hearing, at 1. In her Request for Hearing, 
Respondent stated that she ``wish[es] to not relinquish any rights in 
regards to this matter and intend[s] to comply fully with any 
regulations of the DEA.'' Id.
---------------------------------------------------------------------------

    \1\ The Request for Hearing was filed on January 6, 2022. Order 
Directing the Filing of Government Evidence Regarding Its Lack of 
State Authority Allegation and Briefing Schedule dated January 10, 
2022, at 1. I find that the Government's service of the OSC was 
adequate and that the Request for Hearing was timely filed on 
January 6, 2022.
---------------------------------------------------------------------------

    The Office of Administrative Law Judges put the matter on the 
docket and assigned it to Chief Administrative Law Judge John J. 
Mulrooney II (hereinafter, the Chief ALJ). On January 10, 2022, the 
Chief ALJ issued an Order Directing the Filing of Government Evidence 
Regarding Its Lack of State Authority Allegation and Briefing Schedule 
(hereinafter, Briefing Schedule). On January 24, 2022, the Government 
timely filed its Submission of Evidence and Motion for Summary 
Disposition (hereinafter, Government's Motion). In its Motion, the 
Government argued that because Respondent lacks authority to handle 
controlled substances in Montana, the state in which she is registered 
with the DEA, her DEA registration should be revoked. Government's 
Motion, at 2-5. Respondent did not file any answer to the 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 dated February 8, 2022 
(hereinafter, Recommended Decision or RD), at 2.
    On February 8, 2022, the Chief ALJ granted the Government's Motion, 
finding that ``[s]ince the Respondent does not have authority as a 
practitioner in Montana, and this fact is not challenged by the 
Respondent, there is no other fact of consequence for this tribunal to 
decide in order to determine whether or not she is entitled to hold a 
COR.'' RD, at 5. Accordingly, the Chief

[[Page 21218]]

ALJ recommended that Respondent's DEA registration be revoked based on 
Respondent's lack of state authority to handle controlled substances. 
Id. By letter dated March 7, 2022, the Chief ALJ certified and 
transmitted the record to me for final Agency action and 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 registration MM0938261 at the 
registered address of 715A Skyla Ct., Missoula, Montana 59801-1480. 
Government's Motion, Exhibit (hereinafter, GX) D (Declaration of 
[Diversion Investigator (DI)]), at 1. Pursuant to this DEA 
registration, Respondent is authorized to prescribe controlled 
substances in schedules II through V as a mid-level practitioner. GX A 
(Printout of Respondent's registration information from DEA's 
Registrant Information Consolidated System). Respondent's registration 
expires on January 31, 2024. Id.

The Status of Respondent's State License

    On July 26, 2021, the Montana Board of Nursing (hereinafter, MBN) 
entered a Final Order regarding Respondent's nursing licenses 
(hereinafter, MBN Order or Order). GX B. The Order stated that 
Respondent held licenses in Montana as a registered nurse (hereinafter, 
RN) and an advanced practice RN (hereinafter, APRN), and that 
Respondent possessed prescriptive authority under her APRN license. Id. 
at 2. The Order further stated that Respondent had engaged in 
unprofessional conduct under Montana law, and provided conditions that 
Respondent was required to meet in order to maintain her state 
prescribing privileges. Id.
    According to the DI's declaration, DEA learned on October 26, 2021, 
that the MBN had indefinitely suspended Respondent's state nursing 
licenses ``for failure to abide by the terms'' of the conditions set 
forth in the July 26, 2021 MBN Order. GX D, at 2. DI represented that 
Respondent's license remained suspended as of January 13, 2022, and 
submitted a printout of the Montana Department of Labor and Industry's 
online licensing verification page confirming the suspension of 
Respondent's APRN license. Id. at 3; GX C
    According to online records for Montana, of which I take official 
notice, Respondent's Montana APRN license is suspended and expired.\2\ 
Montana Department of Labor and Industry, https://ebizws.mt.gov/PUBLICPORTAL/searchform?mylist=licenses&pk_vid=d831a8116efb756d16474448085e834e 
(last visited date of signature of this Order). Accordingly, I find 
that Respondent is not currently licensed to dispense controlled 
substances in schedules II through V in Montana, the state in which she 
is registered with the DEA.
---------------------------------------------------------------------------

    \2\ 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].
---------------------------------------------------------------------------

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, 
revoked, or denied 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 the Montana Administrative Code, ``[o]nly an APRN 
granted prescriptive authority by the board may prescribe, procure, 
administer, and dispense . . . controlled substances pursuant to 
applicable state and federal laws and within the APRN's role and 
population focus.'' Mont. Admin. R. 24.159.1461 (2013) (Westlaw, 
current through Issue 4 of the 2022 Montana Administrative Register). 
Further, according to the Montana Controlled Substances Act, 
``dangerous drug[s]'' \3\ in schedules II through IV may only be 
dispensed with a ``prescription by a practitioner.'' \4\ Mont. Code 
Ann. Sec.  50-32-208 (West 2015) (Westlaw, current through the 2021 
session of the Montana Legislature). A ``practitioner'' is defined as a 
``physician, dentist, veterinarian, scientific investigator, or other 
person licensed, registered, or otherwise permitted to distribute, 
dispense, or conduct research with respect to or to administer a 
dangerous drug in the course of professional practice or research in 
this state.'' Mont. Code Ann. Sec.  50-32-101(24)(a) (West 2013) 
(Westlaw, current through the 2021 session of the Montana Legislature).
---------------------------------------------------------------------------

    \3\ The state's criteria for labeling drugs as ``dangerous 
drugs'' are similar to the CSA's criteria for labeling drugs as 
controlled substances. See generally id. at Sec.  50-32-201 through 
Sec.  50-32-233.
    \4\ ``[A] dangerous drug included in Schedule V may not be 
distributed or dispensed other than for a medical purpose.'' Mont. 
Code Ann. Sec.  50-32-208(3) (West 2015).
---------------------------------------------------------------------------

    Here, the undisputed evidence in the record is that Respondent is 
not authorized to dispense controlled substances in schedules II 
through V in Montana. Thus, because Respondent is

[[Page 21219]]

not authorized to prescribe controlled substances in schedules II 
through V in Montana, 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. 
MM0938261 issued to Lezlie McKenzie, N.P. 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 Lezlie McKenzie, N.P., to renew or 
modify this registration, as well as any other pending application of 
Lezlie McKenzie, N.P., for additional registration in Montana. This 
Order is effective May 11, 2022.

Anne Milgram,
Administrator.
[FR Doc. 2022-07723 Filed 4-8-22; 8:45 am]
BILLING CODE 4410-09-P