[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Notices]
[Pages 55071-55072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17382]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 23-16]


Olga Wildfeuer, M.D.; Decision and Order

    On November 21, 2022, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Olga Wildfeuer, M.D. 
(Respondent). OSC, at 1-3. The OSC proposed the revocation of 
Respondent's registration \1\ because Respondent is ``without authority 
to handle controlled substances in the State of New York, the state in 
which [she is] registered with DEA.'' Id. at 2.
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    \1\ Certificate of Registration No. BW2841446 at the registered 
address of 1400 5th Ave., Apt. 7R, New York, New York 10026. Id. at 
1.
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    Respondent timely requested a hearing; thereafter, the 
Administrative Law Judge (ALJ) granted a Motion for Summary Disposition 
recommending the revocation of Respondent's registration. 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 (RD), at 7. Respondent did not file 
exceptions to the RD. Having reviewed the entire record, the Agency 
adopts and hereby incorporates by reference the entirety of the ALJ's 
rulings, findings of fact, conclusions of law, and recommended sanction 
and summarizes and expands upon portions thereof herein.

[[Page 55072]]

Findings of Fact

    On July 22, 2021, Respondent signed a voluntary agreement with the 
New York State Board for Professional Medical Conduct (the Board),\2\ 
which permanently precluded her from ``ordering, prescribing, 
administering, distributing and/or dispensing controlled substances.'' 
RD, at 4; see also Govt Motion for Summary Disposition, Exhibit A, at 
4. According to New York online records, of which the Agency takes 
official notice,\3\ Respondent is registered to practice medicine. New 
York State Office of the Professions Verification Search, https://www.op.nysed.gov/verification-search (last visited date of signature of 
this Order). But, the Board ``permanently limited'' her medical license 
``to preclude [her] ordering, prescribing, administering, distributing 
and/or dispensing of controlled substances.'' New York Department of 
Health Professional Misconduct and Physician Discipline, https://apps.health.ny.gov/pubdoh/professionals/doctors/conduct/factions/HomeAction.action (last visited date of signature of this Order). 
Moreover, Respondent must refer any patient for whom controlled 
substances may be needed to another physician. Id. Accordingly, the 
Agency finds that Respondent is not currently authorized to engage in 
the ordering, prescribing, administering, distributing and/or 
dispensing of controlled substances in the state of New York, the state 
in which she is registered with the DEA.
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    \2\ The agreement was effective August 18, 2021. Govt Motion for 
Summary Disposition, Exhibit C, at 1.
    \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 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 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 (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 \4\ 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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    \4\ As such, the Agency finds Respondent's arguments regarding 
the permissive nature of 21 U.S.C. 824(a)(3), see Resp Opposition to 
Summary Disposition, at 7, to be unavailing. RD at 4-5; see also 
Bhanoo Sharma, M.D., 87 FR 41355, 41356 n.4 (2022).
    \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 New York Controlled Substances Act, ``[i]t shall 
be unlawful for any person to manufacture, sell, prescribe, distribute, 
dispense, administer, possess, have under his control, abandon, or 
transport a controlled substance except as expressly allowed by this 
article.'' N.Y. Pub. Health Law 3304 (2023). Further, New York defines 
a ``practitioner'' as ``[a] physician . . . or other person licensed, 
or otherwise permitted to dispense, administer or conduct research with 
respect to a controlled substance in the course of a licensed 
professional practice . . . .'' Id. at Sec.  3302(27). Finally, New 
York regulations state that ``[a] prescription for a controlled 
substance may be issued only by a practitioner who is . . . authorized 
to prescribe controlled substances pursuant to his licensed 
professional practice . . . .'' N.Y. Comp. Codes R. & Regs. tit. 10, 
80.64 (2023).
    Here, the undisputed evidence in the record is that Respondent 
currently lacks authority to prescribe controlled substances in New 
York. RD, at 5. Thus, because Respondent lacks authority to prescribe 
controlled substances in New York, Respondent is not eligible to 
maintain a DEA registration. Id., at 6. Accordingly, the Agency orders 
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. 
BW2841446, issued to Olga Wildfeuer, 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 applications of Olga Wildfeuer, M.D., to renew 
or modify this registration, as well as any other pending application 
of Olga Wildfeuer, M.D., for additional registration in New York. This 
Order is effective September 13, 2023.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
August 7, 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. 2023-17382 Filed 8-11-23; 8:45 am]
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