[Federal Register Volume 87, Number 215 (Tuesday, November 8, 2022)]
[Notices]
[Pages 67499-67500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24303]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 22-34]


Gerald M. Baltz, N.P.; Decision and Order

    On June 3, 2022, the Drug Enforcement Administration (hereinafter, 
DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to 
Gerald M. Baltz, N.P. (hereinafter, Respondent). OSC, at 1, 3. The OSC 
proposed the revocation of Respondent's Certificate of Registration No. 
MB2171128 at the registered address of 8060 Melrose Ave., Ste. 200, Los 
Angeles, CA 90046. Id. at 1. The OSC alleged that Respondent's 
registration should be revoked because Respondent is ``without 
authority to handle controlled substances in the State of California, 
the state in which [he is] registered with DEA.'' Id. at 1-2 (citing 21 
U.S.C. 824(a)(3)).\1\
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    \1\ According to Agency records, Respondent's Certificate of 
Registration No. MB2171128 expired on July 31, 2022. The fact that a 
registrant allows his registration to expire during the pendency of 
an OSC does not impact the Agency's jurisdiction or prerogative 
under the Controlled Substances Act (hereinafter, CSA) to adjudicate 
the OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 68,474 (2019).
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    By letter dated July 11, 2022,\2\ Respondent requested a hearing. 
On July 12, 2022, Administrative Law Judge Paul E. Soeffing 
(hereinafter, the ALJ) issued an 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 Order). On 
July 26, 2022, the Government filed its Submission of Evidence and 
Motion for Summary Disposition (hereinafter, Motion for Summary 
Disposition). On August 10, 2022,\3\ Respondent filed his Opposition to 
Government's Motion for Summary Disposition (hereinafter, 
Opposition).\4\
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    \2\ The record demonstrates that service of the OSC on 
Respondent was accomplished on or before June 28, 2022, see 
Government Exhibit (hereinafter, GX) E, at 1-2, and the Government 
does not contest the timeliness of the request for a hearing.
    \3\ The record demonstrates that Respondent's filing was 
untimely. See Briefing Order, at 2; 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), at 2 n.2. Nonetheless, 
the Agency will fully consider the Respondent's arguments made 
therein.
    \4\ In his Opposition, Respondent argued that his DEA 
registration should not be revoked because he maintains active 
nursing licenses in Colorado and because he is still challenging the 
underlying action against his California nursing licenses. 
Opposition, at 3-6.
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    On August 25, 2022, the ALJ granted the Government's Motion for 
Summary Disposition and recommended the revocation of Respondent's DEA 
registration, finding that because Respondent lacks authority to handle 
controlled substances in California, there is no genuine issue of 
material fact. Recommended Decision, at 6.\5\
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    \5\ By letter dated September 21, 2022, the ALJ certified and 
transmitted the record to the Agency for final agency action and 
advised that neither party filed exceptions.
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    The Agency issues this Decision and Order based on the entire 
record before it, 21 CFR 1301.43(e), and makes the following findings 
of fact.

Findings of Fact

    On November 19, 2021, an Administrative Law Judge from the State of 
California, Office of Administrative Hearings, issued a Proposed 
Decision revoking Respondent's California nursing licenses. Government 
Exhibit (hereinafter, GX) C, at 45. On January 21, 2022, the State of 
California, Department of Consumer Affairs, Board of Registered Nursing 
(hereinafter, the Board), issued a Decision and Order adopting the 
Administrative Law Judge's Proposed Decision, effective February 18, 
2022. Id. at 1. On February 24, 2022, the Board issued an Order Denying 
Reconsideration in which Respondent's request for reconsideration of 
the Proposed Decision was denied and the Board's January 21, 2022 
Decision and Order was made effective February 28, 2022. GX B.
    According to California's online records, of which the Agency takes 
official notice, Respondent's nursing licenses are revoked. \6\ 
California DCA

[[Page 67500]]

License Search, https://search.dca.ca.gov (last visited date of 
signature of this Order). Accordingly, the Agency finds that Respondent 
is not licensed to engage in the practice of nursing in California, the 
state in which he is registered with the DEA. \7\
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    \6\ 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 the Agency's 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].
    \7\ Regarding Respondent's argument that his DEA registration 
should not be revoked because he maintains active nursing licenses 
in Colorado, Respondent's DEA registration is based on his 
California nursing licenses, which have undeniably been revoked. 
Omar Garcia, M.D., 87 FR 32,186, 32,187 n.6 (2022).
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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 ``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). \8\
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    \8\ 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. Moreover, because ``the controlling question'' in a 
proceeding brought under 21 U.S.C. 824(a)(3) is whether the holder 
of a practitioner's registration ``is currently authorized to handle 
controlled substances in the [S]tate,'' Hooper, 76 FR at 71,371 
(quoting Anne Lazar Thorn, 62 FR 12,847, 12,848 (1997)), the Agency 
has also long held that revocation is warranted even where a 
practitioner is still challenging the underlying action. Bourne 
Pharmacy, 72 FR 18,273, 18,274 (2007); Wingfield Drugs, 52 FR 
27,070, 27,071 (1987). Thus, it is of no consequence that Respondent 
is still challenging the underlying action. What is consequential is 
the Agency's finding that Respondent is not currently authorized to 
dispense controlled substances in California, the state in which he 
is registered with the DEA.
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    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 2022). 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).
    Here, the undisputed evidence in the record is that Respondent 
lacks authority to practice nursing in California. As discussed above, 
an individual must be a licensed practitioner to dispense a controlled 
substance in California. Thus, because Respondent lacks authority to 
practice nursing in California and, therefore, is not authorized to 
handle controlled substances in California, Respondent is not eligible 
to maintain a DEA registration. Accordingly, the Agency 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. 
MB2171128 issued to Gerald M. Baltz, 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 applications of Gerald M. Baltz, N.P., to renew or 
modify this registration, as well as any other pending application of 
Gerald M. Baltz, N.P., for additional registration in California. This 
Order is effective December 8, 2022.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
November 1, 2022, by Administrator Anne Milgram. That document with the 
original signature and date is maintained by DEA. For administrative 
purposes only, and in compliance with requirements of the Office of the 
Federal Register, the undersigned DEA Federal Register Liaison Officer 
has been authorized to sign and submit the document in electronic 
format for publication, as an official document of DEA. This 
administrative process in no way alters the legal effect of this 
document upon publication in the Federal Register.

Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2022-24303 Filed 11-7-22; 8:45 am]
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