[Federal Register Volume 88, Number 71 (Thursday, April 13, 2023)]
[Notices]
[Pages 22480-22481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07834]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 22-53]


Matthew S. Katz, M.D.; Decision and Order

I. Introduction

    On August 16, 2022, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Matthew S. Katz, 
M.D. (Respondent), of Nashville, Tennessee, the state where Respondent 
is registered with the DEA.\1\ OSC, at 1. The OSC proposes the 
revocation of Respondent's DEA Certificate of Registration 
(registration), FK7432278, and the denial of any applications for 
renewal or modification of it, alleging that Respondent was convicted 
of a Tennessee felony relating to controlled substances.\2\ Id., citing 
21 U.S.C. 824(a)(2).\3\
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    \1\ Effective December 2, 2022, the Medical Marijuana and 
Cannabidiol Research Expansion Act, Public Law 117-215, 136 Stat. 
2257 (2022) (MRA), amended the Controlled Substances Act (CSA) and 
other statutes. Relevant to this matter, the MRA redesignated 21 
U.S.C. 823(f), cited in the OSC, as 21 U.S.C. 823(g)(1). 
Accordingly, this Decision cites to the current designation, 21 
U.S.C. 823(g)(1), and to the MRA-amended CSA throughout.
    \2\ The OSC also seeks denial of ``any applications for any 
other DEA registrations.'' OSC, at 1.
    \3\ The OSC alleges that Respondent ``pled guilty'' to the Class 
D felony, Tenn. Code Ann. section 53-11-402. OSC, at 2. The 
Government acknowledges that Respondent pled ``nolo contendere.'' 
See, e.g., Government's Prehearing Statement (September 30, 2022), 
at 2. The parties agree that Respondent's plea is subject to an 
Order of Deferral. See, e.g. id.; Request for Hearing (September 22, 
2022), at 1. The parties also agree that the Agency considers 
Respondent's nolo contendere plea to be a ``conviction'' for 
purposes of 21 U.S.C. 824(a)(4). Respondent's Post-Hearing Brief 
(January 20, 2023) (Resp Posthearing), at 13.
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    The hearing Respondent requested was held on December 20, 2022. Tr. 
1. Concluding that Respondent's acceptance of responsibility was short 
of unequivocal, and that his misconduct was egregious, the Recommended 
Rulings, Findings of Fact, Conclusions of Law, and Decision of the 
Administrative Law Judge (RD) recommends that Respondent's registration 
be revoked. RD, at 22-23. Given the egregiousness of the uncontested 
facts and the facts based on substantial record evidence, the Agency 
agrees with the RD that revocation is the appropriate sanction.

II. Findings

A. Background Findings

    Having thoroughly analyzed the certified record, the Agency finds 
substantial record evidence that: (1) Respondent prescribed Schedule II 
controlled substances without a legitimate medical purpose, (2) 
Respondent then instructed the patients to bring him the filled 
prescriptions, and (3) Respondent took most of the controlled 
substances for his own use after, he testified, making sure that the 
patient did not need them to relieve pain. Stipulation No. 6; Resp 
Posthearing, at 13. There is no record evidence that Respondent 
complied with Tennessee's legal requirements for issuing controlled 
substances. The Agency finds no record evidence that Respondent took 
steps to make sure he did not over-prescribe opiates to individuals who 
were already opioid-addicted, who were addicted to another substance, 
or who were at a particular risk of becoming opioid-addicted.

B. Undisputed Matters of Fact and Law

    The Agency finds, to Respondent's credit, that he advised the Chief 
Administrative Law Judge and the Government that the Consent Order of 
the Tennessee Board of Medical Examiners (TMB) restricts him from 
prescribing Schedule II controlled substances in Tennessee for twelve 
(12) months beginning on the date of the Consent Order's entry.\4\ TMB 
Consent Order (entered September 27, 2022), RX 7, at 6, citing Tenn. 
Comp. R. & Regs. 0880-02-.25 (2019). Indeed, the Agency finds that, 
according to the Consent Order, Respondent's loss of authority in 
Tennessee to prescribe Schedule II controlled substances predates the 
Consent Order. RX 7, at 3 (``Due to the allegations in the indictment . 
. ., the Respondent lost his authorization to prescribe Schedule II 
controlled substances in this state until the criminal cases against 
him reach final disposition.''). Accordingly, the Agency finds 
uncontroverted record evidence that Respondent presently lacks 
authority in Tennessee to prescribe Schedule II controlled substances.
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    \4\ The Consent Order also places Respondent's medical license 
on probation for three years. RX 7, at 5.
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    Additionally, the parties agree to the following factual and legal 
matters.
    1. Respondent pled nolo contendere to three counts of obtaining 
possession of oxycodone by misrepresentation, fraud, forgery, deception 
or subterfuge, a Class D Tennessee felony. Tenn. Code Ann. section 53-
11-402(a)(3) and (b)(1); see, e.g., OSC, at 2; Stipulation No. 6; Resp 
Posthearing, at 2, 13.
    2. Prior Agency decisions state that a nolo contendere plea is a 
``conviction'' for purposes of 21 U.S.C. 824(a)(2). See, e.g., Erica N. 
Grant, M.D., 86 FR 40641, 40646-48 (2021) (collecting cases); Resp 
Posthearing, at 13; but cf. Transcript of Guilty Plea Proceedings, 
State of Tennessee v. Matthew S. J. Katz, No. 2021-B-794 (Criminal 
Court for Davidson County, Tennessee, Division III, June 30, 2022), GX 
3b, at 4 (The Court: ``So do you understand that this is a special 
probation, that is . . . you're not going to be convicted, and it will 
be removed from your record if you follow the conditions.'').
    3. Respondent is not eligible for a Schedule II registration 
because he lacks authority in Tennessee to dispense Schedule II 
controlled substances. Resp Posthearing, at 16-17; Government's Post-
Hearing Brief (dated January 20, 2023) (Govt Posthearing), at 10.

III. Discussion

    According to the Controlled Substances Act (CSA), the Attorney 
General ``shall register practitioners . . . to dispense . . . 
controlled substances . . . 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). The CSA defines ``practitioner'' as a 
``physician . . . 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). The Agency has long 
interpreted these two CSA provisions to mean that state authority to 
dispense controlled substances is a prerequisite to the Agency's 
issuance of a registration. See, e.g., Valerie Augustus, M.D., 88 FR 
1098, 1099 (2023).
    Further, the Attorney General is authorized to suspend or revoke a 
registration ``upon a finding that the registrant . . . has been 
convicted of a felony . . . of any State . . . relating to any 
substance defined in this subchapter as a controlled substance . . . 
.'' 21 U.S.C. 824(a)(2).

[[Page 22481]]

    The Government has the burden of proof in this proceeding. 21 CFR 
1301.44.
    Based on undisputed factual and legal matters, the Agency finds 
conclusive record evidence that: (1) Respondent lacks authority in 
Tennessee to dispense Schedule II controlled substances, and (2) the 
Government presented a prima facie case that Respondent is a felon 
convicted of an offense relating to a controlled substance. Supra 
section II.A. Accordingly, the Agency finds that: (1) Respondent is not 
eligible for a registration to dispense Schedule II controlled 
substances, and that (2) Respondent's registration, as to Schedules III 
through V, is subject to revocation due to his felony conviction 
relating to controlled substances. 21 U.S.C. 802(21), 823(g)(1); see, 
e.g., Valerie Augustus, M.D., 88 FR 1099 (as to Schedule II 
eligibility); 21 U.S.C. 824(a)(2); see, e.g., Johnny C. Benjamin, Jr., 
M.D., 86 FR 32280, 32282 (2021) (as to felony conviction).

IV. Sanction

    Where, as here, the Government has met its prima facie burden of 
showing that one or more grounds for revocation exists, the burden 
shifts to the Respondent to show why he can be entrusted with a 
registration.\5\ Garrett Howard Smith, M.D., 83 FR 18882 (2018). 
Moreover, as past performance is the best predictor of future 
performance, the Agency has required that a respondent must 
unequivocally accept responsibility for the unlawful acts for which he 
was convicted, and demonstrate that he will not engage in future 
misconduct.\6\ Id. In addition, the Agency has found that the 
egregiousness and extent of the misconduct are significant factors in 
determining the appropriate sanction. Id. The Agency has also 
considered the need to deter similar acts by applicants and by the 
community of registrants. Id.
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    \5\ Respondent describes himself as a ``highly trained 
vitreoretinal surgeon'' who ``credibly explained'' that ``he 
developed an addiction to opioid pain killers'' after a back injury 
that ``he attempted to manage himself.'' Resp Posthearing, at 3. 
Although ``it felt appropriate to him'' at the time to manage 
himself, ``he now acknowledges that behavior sounds `crazy' to 
him.'' Id. Respondent's brief also states that he ``candidly 
acknowledged he engaged in dishonest, inappropriate, and unlawful 
behaviors in pursuit of substances to sustain the addiction.'' Id.; 
infra. Respondent was not asked to address his listing of 
``cocaine'' in the ``drug(s) of choice'' section of the Tennessee 
Medical Foundation contract. RX 5, at 8.
    \6\ Respondent argues that his ability to continue his medical 
work requires his maintenance of a registration. See, e.g., Resp 
Posthearing, at 11-12. After carefully reviewing his argument and 
the bases he posits for it, including RX 4 and RX 6, the Agency 
finds that the evidence Respondent, himself, offered belies this 
argument. Indeed, the record includes evidence that Respondent's 
skill, commitment to his sobriety, willingness to undergo extensive 
monitoring, and the apparent good will he has engendered have been 
sufficient for him to obtain and/or retain his current professional 
employment. See, e.g., Resp Posthearing, at 7-12, 14-15.
    The Agency notes that Respondent's argument, even if proven, is 
irrelevant to whether Respondent may be entrusted with a 
registration, the salient issue in this adjudication.
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    The OSC that initiated this adjudication alleges that the 
registration of Respondent, who has been convicted of a felony relating 
to a controlled substance, should be revoked. Supra section I. As 
already discussed, the Agency is without authority to allow Respondent 
to maintain his registration to dispense Schedule II controlled 
substances. Supra section III. Accordingly, at a minimum, Respondent's 
authorization to dispense Schedule II controlled substances must now be 
revoked.
    It is the Administrator's CSA-mandated exercise of discretion, 
however, that determines whether Respondent will continue to hold a 
registration to dispense Schedules III through V. 21 U.S.C. 824(a). The 
parties disagree about whether Respondent unequivocally accepted 
responsibility. See, e.g., Resp Posthearing, at 13-14; Govt Posthearing 
at 6-9. The certified record in this matter is not sufficiently 
developed to determine whether Respondent unequivocally accepted 
responsibility. However, based on the facts in the certified record 
that are well-developed and undisputed, the Agency concludes that 
whether Respondent unequivocally accepted responsibility would not 
impact a finding as to the appropriate sanction given the egregiousness 
of Respondent's conduct.
    In this matter, the Agency found substantial record evidence that, 
regardless of the resulting harm his patients could suffer, Respondent 
prescribed controlled substances so that he could divert at least a 
portion of them to himself. See, e.g., Resp Posthearing, at 4-6, 13-14. 
These most egregious facts must result in the revocation of 
Respondent's registration. To allow Respondent to maintain any 
controlled substance prescribing authority in the face of the 
egregiousness of the found facts, the danger of his disregard for the 
CSA, and the safety of his patients would send a message to the current 
and prospective registrant community that compliance with the CSA is 
not a condition precedent to the issuance and retention of a 
registration. Garrett Howard Smith, M.D., 83 FR 18910. Accordingly, the 
Agency shall order the sanction the Government requested, without 
restricting Respondent from applying for a registration in the future.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 823(g)(1) and 824(a)(2), I hereby revoke DEA Certificate of 
Registration FK7432278 issued to Matthew S. Katz, M.D. 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 application of Matthew S. Katz, 
M.D., to renew or modify this registration, as well as for any other 
pending application(s) of Matthew S. Katz, M.D., for registration in 
Tennessee. This Order is effective May 15, 2023.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
April 10, 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. 2023-07834 Filed 4-12-23; 8:45 am]
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