[Federal Register Volume 88, Number 22 (Thursday, February 2, 2023)]
[Notices]
[Pages 7105-7106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02122]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Fernando Mendez, P.A.; Decision and Order

    On August 9, 2022, the Drug Enforcement Administration 
(hereinafter, DEA or Government) issued an Order to Show Cause 
(hereinafter, OSC) to Fernando Mendez, P.A. (hereinafter, Registrant). 
Request for Final Agency Action (hereinafter, RFAA), Exhibit 
(hereinafter, RFAAX) 1 (OSC), at 1, 3. The OSC proposed the revocation 
of Registrant's Certificate of Registration No. MM3333109 at the 
registered address of 1001 East Tyler

[[Page 7106]]

Avenue, Harlingen, Texas 78550. Id. at 1. The OSC alleged that 
Registrant's registration should be revoked because Registrant is 
``currently without authority to handle controlled substances in the 
State of Texas, the state in which [he is] registered with DEA.'' Id. 
at 2 (citing 21 U.S.C. 824(a)(3)).
    The Agency makes the following findings of fact based on the 
uncontroverted evidence submitted by the Government in its RFAA dated 
January 3, 2023.\1\
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    \1\ Based on the Declarations from a DEA Diversion Investigator 
and a DEA Special Agent, the Agency finds that the Government's 
service of the OSC on Registrant was adequate. RFAAX 2, at 1-2; 
RFAAX 3, at 2-3. Further, based on the Government's assertions in 
its RFAA, the Agency finds that more than thirty days have passed 
since Registrant was served with the OSC and Registrant has neither 
requested a hearing nor submitted a written statement or corrective 
action plan and therefore has waived any such rights. RFAA, at 3; 
RFAAX 3, at 3; see also 21 CFR 1301.43 and 21 U.S.C. 824(c)(2).
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Findings of Fact

    On July 20, 2021, the Texas Physician Assistant Board issued an 
Order of Temporary Suspension that suspended Registrant's Texas 
physician assistant license. RFAAX 3, Attachment B, at 1, 5-6. 
According to Texas online records, of which the Agency takes official 
notice, Registrant's license is still suspended.\2\ Texas Medical Board 
License Verification, https://profile.tmb.state.tx.us (last visited 
date of signature of this Order). Accordingly, the Agency finds that 
Registrant is not currently licensed to engage in the practice of 
medicine in Texas, the state in which he is registered with the DEA.
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    \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, Registrant may dispute the Agency's 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 the DEA Office of the Administrator, 
Drug Enforcement Administration at [email protected].
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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 (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 71371 (2011), pet. for rev. denied, 481 F. App'x 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 
(1978).\3\
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    \3\ 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 
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.
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    According to Texas statute, ``[d]ispense'' means ``the delivery of 
a controlled substance in the course of professional practice or 
research, by a practitioner or person acting under the lawful order of 
a practitioner, to an ultimate user or research subject. The term 
includes the prescribing, administering, packaging, labeling, or 
compounding necessary to prepare the substance for delivery.'' Tex. 
Health & Safety Code Ann. section 481.002(12) (2022). Further, a 
``practitioner'' means a ``a physician . . . or other person licensed, 
registered, or otherwise permitted to distribute, dispense, analyze, 
conduct research with respect to, or administer a controlled substance 
in the course of professional practice or research in this state.'' Id. 
at section 481.002(39)(A).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in Texas. As discussed 
above, a person must be a licensed practitioner to dispense a 
controlled substance in Texas. Thus, because Registrant lacks authority 
to practice medicine in Texas and, therefore, is not authorized to 
handle controlled substances in Texas, Registrant is not eligible to 
maintain a DEA registration. Accordingly, the Agency 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. 
MM3333109 issued to Fernando Mendez, 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 applications of Fernando Mendez, P.A., to renew or 
modify this registration, as well as any other pending application of 
Fernando Mendez, P.A., for additional registration in Texas. This Order 
is effective March 6, 2023.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
January 25, 2023, 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. 2023-02122 Filed 2-1-23; 8:45 am]
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