[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Notices]
[Pages 21215-21217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07726]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 22-7]


Adam T. Rodman, P.A.; Decision and Order

    On November 8, 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 Adam T. Rodman, P.A. (hereinafter, Respondent) of 
Dedham, Massachusetts. OSC, at 1 and 3. The OSC proposed the revocation 
of Respondent's Certificate of Registration No. MR0956586. Id. at 1. It 
alleged that Respondent ``[does] not have authority to dispense or 
prescribe controlled substances in the Commonwealth of Massachusetts, 
the state in which [he is] registered with the DEA.'' Id. (citing 21 
U.S.C. 824(a)(3)).
    Specifically, the OSC alleged that on or about June 30, 2021, the 
Massachusetts Drug Control Program accepted Respondent's voluntary 
surrender of his state controlled substances registration for schedules 
II through V. Id. at 2. According to the OSC, Respondent retained 
authority in schedule VI, which does not include federally-scheduled 
drugs. Id. (citing Mass. Gen. Laws ch. 94C, Sec.  2).
    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 December 1, 2021, Respondent timely requested a 
hearing.\1\ Request for Hearing, at 1. In his Request for Hearing, 
Respondent objected to the revocation of his DEA registration and 
stated: ``The basis for my objection is, in part, that my Massachusetts 
Controlled Substance Registration has not been suspended, revoked, or 
denied, and therefore 21 U.S.C. 824(a)(3) is not applicable.'' Id.
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    \1\ The Request for Hearing was filed on December 1, 2021. Order 
Directing the Government to File Evidence Regarding Its Lack of 
State Authority Allegation and Briefing Schedule dated December 2, 
2021, at 1. I find that the Government's service of the OSC was 
adequate and that the Request for Hearing was timely filed on 
December 1, 2021.
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    The Office of Administrative Law Judges put the matter on the 
docket and assigned it to Administrative Law Judge Teresa A. Wallbaum 
(hereinafter, the ALJ). On December 2, 2021, the ALJ issued an Order 
Directing the Government to File Evidence Regarding Its Lack of State 
Authority Allegation and Briefing Schedule (hereinafter, Briefing 
Schedule). On December 15, 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

[[Page 21216]]

of Law, and Decision of the Administrative Law Judge dated January 27, 
2022 (hereinafter, Recommended Decision or RD), at 2. In its Motion, 
the Government argued that because Respondent lacks authority to handle 
controlled substances in Massachusetts, the state in which he is 
registered with the DEA, his DEA registration should be revoked. 
Government's Motion, at 2-3. On January 18, 2022, Respondent timely \2\ 
filed his Opposition to Government's Motion for Summary Disposition 
(hereinafter, Respondent's Opposition). RD, at 2. In his Opposition, 
Respondent argued that the plain language of 21 U.S.C. 824(a)(3) does 
not apply to him and that his DEA registration should not be revoked 
because his Massachusetts Controlled Substance Registration was not 
suspended, revoked, or denied, but instead voluntarily surrendered. 
Respondent's Opposition, at 2-4.
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    \2\ Respondent was granted an extension of time to file a reply 
to the Government's Motion. See Order Amending Briefing Schedule 
dated December 23, 2021.
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    On January 27, 2022, the ALJ granted the Government's Motion, 
finding that ``[t]here is no genuine issue of material fact in this 
case.'' RD, at 6. Further, the ALJ found that Respondent's argument 
regarding the plain language of 21 U.S.C. 824(a)(3) was ``at odds with 
clear Agency precedent on the issue and must therefore fail,'' because 
``regardless of how or why [Respondent] lost his authority to handle 
controlled substances under state law, he has lost it.'' Id. at 7. 
Accordingly, the ALJ recommended that Respondent's DEA registration be 
revoked and that any application to renew or modify his registration, 
or any applications for any other DEA registrations in Massachusetts, 
be denied based on Respondent's lack of state authority to handle 
controlled substances. Id. at 8. By letter dated February 22, 2022, the 
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 Certificate of Registration No. 
MR0956586 at the registered address of 983 Providence Highway, Dedham, 
Massachusetts 02026. Government's Motion, Declaration of [Diversion 
Investigator (DI)], at 1. Pursuant to this DEA registration, Respondent 
is authorized to dispense controlled substances in schedules II through 
V as a mid-level practitioner. Id. Respondent's registration expires on 
April 30, 2024. Id.

The Status of Respondent's State License

    On June 30, 2021, the Massachusetts Drug Control Program accepted 
Respondent's voluntary surrender of his Massachusetts controlled 
substances registration for Massachusetts drug schedules II through V 
and stated that Respondent was ``no longer authorized to prescribe, 
distribute, possess, dispense or administer controlled substances from 
schedules II through V in the Commonwealth of Massachusetts.'' 
Government's Motion, Declaration of DI, Exhibit (hereinafter GX) A. The 
Massachusetts Drug Control Program also clarified that Respondent's 
Massachusetts controlled substances registration would retain 
authorization for schedule VI medications only. Id.
    On August 30, 2021, the Massachusetts Board of Registration of 
Physician Assistants (hereinafter, the Board) entered into a Consent 
Agreement for Probation (hereinafter, Consent Agreement) with 
Respondent regarding Respondent's Massachusetts Physician Assistant 
license. Respondent's Opposition, Exhibit (hereinafter, RX) A, at 1-2. 
By signing the Consent Agreement, Respondent admitted that on various 
dates between October 4, 2018, and September 30, 2019, he had diverted 
controlled substances. Id. at 2. Specifically, Respondent admitted that 
for multiple patients, he had examined them, written them prescriptions 
for controlled substances, and asked them to bring him the filled 
prescriptions. Id. The Consent Agreement placed Respondent's 
Massachusetts Physician Assistant license on probation for two years 
subject to various requirements and conditions. Id. at 2-8.
    According to online records for Massachusetts, of which I take 
official notice, Respondent's Massachusetts controlled substances 
registration is current, but authorized only for drug schedule VI.\3\ 
Massachusetts Health Professions License Verification Site, https://madph.mylicense.com/verification (last visited date of signature of 
this Order). Further, online records for Massachusetts list 
Respondent's Massachusetts Physician Assistant license as on probation. 
Id.
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    \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, 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].
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    Accordingly, I find that Respondent is not currently licensed to 
dispense controlled substances in schedules II through V in 
Massachusetts, the state in which he 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 
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.'' \4\ 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).
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    \4\ Respondent argues that 21 U.S.C. 824(a)(3) only refers to 
revocation, suspension, or denial; however, the Agency has 
consistently stated that the central issue is whether or not the 
registrant is ``currently authorized to handle controlled substances 
in the state,'' James Hooper, 76 FR 71371 (2011) (quoting Anne Lazar 
Thorn, 62 FR 12847, 12848 (1997)); thus, it is of no consequence 
whether the registrant's state license was revoked or suspended, has 
expired, or was voluntarily surrendered. See, e.g., Alex E. Torres, 
M.D., 87 FR 3352 (2022) (voluntary surrender of medical license); 
Tel-Pharmacy, 87 FR 2904 (2022) (state pharmacy license expired); 
Humberto A. Florian, M.D., 86 FR 52203 (2021) (state medical license 
revoked); Javaid A. Perwaiz, M.D., 86 FR 20732 (2021) (state medical 
license expired); Michael Thomas Watkins, M.D., 85 FR 27246 (2020) 
(voluntary agreement to cease practicing medicine in Massachusetts). 
What is of consequence is the fact that Respondent is no longer 
authorized to handle controlled substances in the Commonwealth of 
Massachusetts, where he is registered with the DEA. Furthermore, the 
letter of acceptance of the consent agreement from the Massachusetts 
Drug Control Program implies that Respondent may only re-apply for 
such a registration in September 2023. See GX A, at 1.
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    This rule derives from the text of two provisions of the CSA. 
First, Congress

[[Page 21217]]

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 Massachusetts Controlled Substances Act, ``every 
person who . . . dispenses . . . any controlled substance within the 
commonwealth shall . . . register with the commissioner of public 
health, in accordance with his regulations.'' Mass. Gen. Laws ch. 94C, 
Sec.  7(a) (Westlaw, current through Chapter 14 of the 2022 2nd Annual 
Session). Further, ``[a] prescription for a controlled substance may be 
issued only by a practitioner who is (1) authorized to prescribe 
controlled substances; and (2) registered pursuant to the provisions of 
[the Massachusetts Controlled Substances Act].'' Id. at Sec.  18(a).
    Here, the undisputed evidence in the record is that Respondent is 
not authorized to dispense controlled substances in schedules II 
through V in Massachusetts.\5\ Further, I agree with the ALJ that it is 
of no consequence that Respondent's Massachusetts controlled substances 
registration for drug schedules II through V was voluntarily 
surrendered rather than revoked or suspended. Thus, because Respondent 
is not authorized to prescribe controlled substances in schedules II 
through V in Massachusetts, Respondent is not eligible to maintain a 
DEA registration. Accordingly, I will order that Respondent's DEA 
registration be revoked.
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    \5\ As previously discussed, Respondent is only authorized to 
dispense controlled substances in schedule VI in Massachusetts. See 
supra. According to the Massachusetts Controlled Substances Act, 
schedules I through V incorporate the five schedules of controlled 
substances under the CSA, with schedule VI consisting of ``all 
prescription drugs not included in the first five schedules.'' Mass. 
Gen. Laws ch. 94C, Sec.  2(a) (Westlaw, current through Chapter 14 
of the 2022 2nd Annual Session). As such, Respondent does not have 
state authority to dispense CSA controlled substances in 
Massachusetts.
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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. 
MR0956586 issued to Adam T. Rodman, P.A. 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 Adam T. Rodman, P.A. to renew or modify 
this registration, as well as any other pending application of Adam T. 
Rodman, P.A. for additional registration in Massachusetts. This Order 
is effective May 11, 2022.

Anne Milgram,
Administrator.
[FR Doc. 2022-07726 Filed 4-8-22; 8:45 am]
BILLING CODE 4410-09-P