[Federal Register Volume 88, Number 69 (Tuesday, April 11, 2023)]
[Notices]
[Pages 21721-21722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07501]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 23-3]
Donn Bullens, J.R., N.P.; Decision and Order
On September 7, 2022, the Drug Enforcement Administration
(hereinafter, DEA or Government) issued an Order to Show Cause
(hereinafter, OSC) to Donn Bullens, Jr., N.P. (hereinafter,
Registrant). Request for Final Agency Action (hereinafter, RFAA),
Exhibit (hereinafter, RFAAX) 2 (OSC), at 1, 3. The OSC proposed the
revocation of Registrant's Certificate of Registration No. MB4611744 at
the registered address of 227 Babcock Street, Brookline, MA 02446. 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 Commonwealth of Massachusetts, 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
[[Page 21722]]
the Government in its RFAA dated February 22, 2023.\1\
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\1\ On November 1, 2022, Registrant represented that he was not
served with the OSC until October 21, 2022, and requested a thirty-
day extension to determine whether to request a hearing. RFFAX 4, at
1. On November 7, 2022, the Government filed a Notice of Filing of
Evidence Regarding Proof of Service agreeing that Registrant had not
been served with the OSC until October 21, 2022 and thus that
Registrant's extension request was timely. Id. On November 7, 2022,
Administrative Law Judge Teresa A. Wallbaum (hereinafter, the ALJ)
issued an Order Granting in Part [Registrant's] Extension Request to
File a Request for Hearing that gave Registrant until 2:00 p.m. on
December 5, 2022 to file a Request for Hearing. Id. at 1, 3. On
December 6, 2022, the ALJ issued an Order Terminating Proceedings,
indicating that, as of December 6, 2022, Registrant had not filed
anything with the tribunal. RFAAX 5, at 1.
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Findings of Fact
On September 7, 2021, the Massachusetts Drug Control Program issued
a letter to Registrant accepting Registrant's voluntary surrender of
his Massachusetts controlled substance registration (hereinafter,
MCSR). RFAAX 3, Attachment D.\2\ According to Massachusetts online
records, of which the Agency takes official notice, Registrant's MCSR
was voluntarily surrendered and is expired.\3\ Massachusetts Health
Professions License Verification Site, https://madph.mylicense.com/verification (last visited date of signature of this Order).\4\
Accordingly, the Agency finds that Registrant is not authorized to
handle controlled substances in Massachusetts, the state in which he is
registered with the DEA.
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\2\ The letter states, ``[u]pon receipt of this letter, you are
no longer authorized to prescribe, distribute, possess, dispense or
administer controlled substances in Massachussets.'' Id. On
September 9, 2021, Registrant signed the letter to confirm that he
had received it and had voluntarily surrendered his MCSR as of that
date. Id. Further, on September 9, 2021, the Massachusetts Board of
Registration in Nursing issued an Order of Summary Suspension and
Notice of Hearing that suspended both Registrant's Massachusetts
registered nurse license and Registrant's Massachusetts certified
nurse practitioner authorization. RFAAX 3, Attachment E, at 1 and 4.
\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 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].
\4\ Further, both Registrant's Massachusetts registered nurse
license and Registrant's Massachusetts certified nurse practitioner
authorization are listed as suspended and expired. Id.
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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).\5\
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\5\ 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(g)(1) (this
section, formerly Sec. 823(f), was redesignated as part of the
Medical Marijuana and Cannabidiol Research Expansion Act, Pub. L.
117-215, 136 Stat. 2257 (2022)). 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.
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According to the Massachusetts Controlled Substances Act, ``every
person who manufactures, distributes or dispenses, or possesses with
intent to manufacture, distribute or dispense 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) (2022). 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 Registrant
lacks authority to handle controlled substances in Massachusetts
because Registrant voluntarily surrendered his MCSR and his MCSR has
expired. As already discussed, a practitioner must hold a valid
controlled substance registration to dispense a controlled substance in
Massachusetts. Thus, because Registrant lacks state authority to handle
controlled substances, 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.
MB4611744 issued to Donn Bullens, Jr., N.P. Further, pursuant to 28 CFR
0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I
hereby deny any pending applications of Donn Bullens, Jr., N.P., to
renew or modify this registration, as well as any other pending
application of Donn Bullens, Jr., N.P., for additional registration in
Massachusetts. This Order is effective May 11, 2023.
Signing Authority
This document of the Drug Enforcement Administration was signed on
April 4, 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. 2023-07501 Filed 4-10-23; 8:45 am]
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