[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Notices]
[Pages 55074-55076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17383]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Debora Ryder, N.P.; Decision and Order

    On August 24, 2022, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause and Immediate Suspension of 
Registration (OSC/ISO) to Debora Ryder, N.P. (Registrant) of Tarpon 
Springs, Florida. Request for Final Agency Action (RFAA), Exhibit 
(RFAAX) 2, at 1. The OSC/ISO informed Registrant of the immediate 
suspension of her DEA Certificate of Registration, Control No. 
MR4236584, pursuant to 21 U.S.C. 824(d), alleging that Registrant's 
continued registration constitutes ```an imminent danger to the public 
health or safety.' '' Id. The OSC/ISO also proposed the revocation of 
Registrant's registration, alleging that Registrant's continued 
registration is inconsistent with the public interest and that 
Registrant is without authority to handle controlled substances in 
Florida, the state in which she is registered with DEA.\1\ Id. at 1 
(citing 21 U.S.C. 824(a)(4), 823(g)(1),\2\ 824(a)(3)).\3\
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    \1\ The registered address of Registrant's DEA Certificate of 
Registration, Control No. MR4236584, is 900 Beckett Way, Tarpon 
Springs, Florida 34689. Id. at 3.
    \2\ Effective December 2, 2022, the Medical Marijuana and 
Cannabidiol Research Expansion Act, Public Law 117-215, 136 Stat. 
2257 (2022) (Marijuana Research Amendments or 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/ISO, 
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.
    \3\ According to Agency records, Registrant's Certificate of 
Registration No. MR4236584 expired on April 30, 2023. The fact that 
a registrant allows her registration to expire during the pendency 
of an OSC does not impact the Agency's jurisdiction or prerogative 
under the CSA to adjudicate the OSC to finality. Jeffrey D. Olsen, 
M.D., 84 FR 68474, 68476-79 (2019).
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    The Agency makes the following findings of fact based on the 
uncontroverted evidence submitted by the Government in its RFAA dated 
February 28, 2023.\4\
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    \4\ Based on a Declaration from a DEA Diversion Investigator, 
the Agency finds that the Government's service of the OSC/ISO on 
Registrant was adequate. RFAAX 3, at 2. 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/ISO 
and Registrant has neither requested a hearing nor submitted a 
corrective action plan and therefore has waived any such rights. 
RFAA, at 2; see also 21 CFR 1301.43 and 21 U.S.C. 824(c)(2).
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I. Findings of Fact

    On July 31, 2022, Registrant's Florida advanced practice registered 
nurse (APRN) license number APRN2943222 expired by its own terms. RFAAX 
3, Attachment B. According to Florida online records, of which the 
Agency takes official notice, Registrant's Florida APRN license number 
APRN2943222 is listed as ``Delinquent,'' indicating that ``[t]he 
licensed practitioner is not authorized to practice in the state of 
Florida.'' \5\ Florida Department of Health License Verification, 
https://mqa-internet.doh.state.fl.us/MQASearchServices/ (last visited 
date of signature of this Order). Accordingly, the Agency finds that 
Registrant is not currently licensed to practice as an APRN in Florida, 
the state in which she is registered with the DEA.\6\
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    \5\ 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 Office of the Administrator, Drug 
Enforcement Administration at [email protected].
    \6\ According to Florida online records, of which the Agency 
takes official notice, Registrant's Florida registered nurse license 
number RN2943222 is listed as ``clear/active.'' Florida Department 
of Health License Verification, https://mqa-internet.doh.state.fl.us/MQASearchServices/ (last visited date of 
signature of this Order). Although both the Government's RFAA and an 
attached Declaration from a DEA Diversion Investigator correctly 
note that Registrant is a current holder of a Florida registered 
nurse license number RN2943222, the cited Attachment A of the 
Diversion Investigator's Declaration appears to be an erroneous 
printout from the Florida Department of Health License Verification 
database pertaining to a different practitioner who shares 
Registrant's first and last name and whose registered nurse license 
number RN3151242 is listed as null and void. See RFAA, at 3; RFAAX 
3, at 1; RFAAX 3, Attachment A.
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    The Agency further finds that the Government's evidence shows that 
from June 11, 2021, through July 28, 2022, Registrant issued at least 
83 prescriptions for controlled substances in the names of two deceased 
individuals, Deceased Patient B.K.\7\ and Deceased Patient J.R.\8\ 
RFAAX 3, at 2-3. After Deceased Patient B.K.'s death, from at least 
July 19, 2021 through July 28, 2022, Registrant issued at least 47 
prescriptions for controlled substances in Deceased Patient B.K.'s 
name, including prescriptions for hydromorphone, oxycodone, alprazolam, 
and promethazine-codeine syrup. Id.; see also RFAAX 3, Attachment F. 
After Deceased Patient J.R.'s death, from at least June 11, 2021 
through July 28, 2022, Registrant issued at least 36 prescriptions for 
controlled substances in Deceased Patient J.R.'s name, including 
prescriptions for hydromorphone, oxycodone, phendimetrazine, and 
promethazine-codeine syrup. RFAAX 3, at 2-3; see also RFAAX 3, 
Attachment H.
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    \7\ Deceased Patient B.K. died on or about June 21, 2019. RFAAX 
3, at 3; see also RFAAX 3, Attachment D-E.
    \8\ Deceased Patient J.R. was found deceased by Registrant on or 
about October 19, 2018. RFAAX 3, at 3; see also RFAAX 3, Attachment 
G.
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    Additionally, the Agency finds that the Government's evidence shows 
that on March 1, 2022, during a probable cause search of Registrant's 
vehicle during a traffic stop on an individual who was driving 
Registrant's vehicle at the time, law enforcement discovered 14 pre-
signed prescriptions for controlled substances dated from March 1, 
2022, through March 4, 2022, and issued to multiple individuals, 
including the driver of the vehicle. RFAAX 4, at 1-2; see also RFAAX 4, 
Attachment I. The prescriptions were signed by Registrant and issued 
for oxycodone, hydrocodone, and Xanax, a brand name drug containing 
alprazolam. Id.\9\
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    \9\ As Registrant was not present at the time of the traffic 
stop, law enforcement called Registrant ``multiple times'' and 
confirmed her identity as well as that she had written out the 14 
pre-signed prescriptions. RFAAX 4, at 1-2. During one of the phone 
calls, Registrant ``advised she fills out prescriptions for her 
patients `ahead of time' '' and that ``she had given her nephew, the 
driver of the vehicle, permission to bring the prescriptions to her 
office.'' Id. at 2.
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    Further, the Agency finds that the Government's evidence shows that 
on June 27, 2022, pursuant to a search warrant of a business, law 
enforcement discovered four prescriptions for promethazine-codeine 
syrup pre-signed by Registrant.\10\ Id. at 1; see also RFAAX 5, 
Attachment J. Notably, although the controlled substance portions were 
filled out on all four prescriptions, ``the patient information 
portion[s], including the patient name[s] and date[s] of birth[,] were 
blank.'' Id.
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    \10\ During the execution of the search warrant, law enforcement 
discovered 12 prescriptions in total pre-signed by Registrant. RFAAX 
5, at 1.

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[[Page 55075]]

II. Discussion

A. 21 U.S.C. 824(a)(3): Loss of State Authority

    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 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).\11\
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    \11\ 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). 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 Florida statute, ``[a] practitioner, in good faith and 
in the course of his or her professional practice only, may prescribe, 
administer, dispense, mix, or otherwise prepare a controlled 
substance.'' Fla. Stat. 893.05(1)(a) (2022). Further, a 
``practitioner'' as defined by Florida statute includes ``an [APRN] 
licensed under chapter 464.'' \12\ Id. Sec.  893.02(23).\13\
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    \12\ Chapter 464 regulates nursing and applies to Registrant; it 
defines an APRN as ``any person licensed in [the] state to practice 
professional nursing and who is licensed in an advanced nursing 
practice, including . . . certified nurse practitioners.'' Id. Sec.  
464.003(3).
    \13\ A ``practitioner'' as defined by Florida statute does not 
include a registered nurse. Id. Further, Florida statute states that 
a registered nurse is only authorized to administer ``medications 
and treatments as prescribed or authorized by a duly licensed 
practitioner.'' Id. Sec.  464.003(19)(b). As such, the ``clear/
active'' status of Registrant's Florida registered nurse license, 
see supra at n.5, does not authorize Registrant to handle controlled 
substances in the state of Florida.
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    Here, the undisputed evidence in the record is that Registrant 
lacks authority to practice as an APRN in Florida. As discussed, a 
person must be a licensed practitioner to dispense a controlled 
substance in Florida. Accordingly, the Agency finds that because 
Registrant lacks authority to practice as an APRN in Florida, 
Registrant is, therefore, unauthorized to handle controlled substances 
in Florida, the state in which she is registered with DEA.

B. 21 U.S.C. 823(g)(1): The Five Public Interest Factors

    Under the Controlled Substances Act (CSA), ``[a] registration . . . 
to . . . dispense a controlled substance . . . may be suspended or 
revoked by the Attorney General upon a finding that the registrant . . 
. has committed such acts as would render his registration under 
section 823 of this title inconsistent with the public interest as 
determined under such section.'' 21 U.S.C. 824(a). In making the public 
interest determination, the CSA requires consideration of the following 
factors:
    (A) The recommendation of the appropriate State licensing board or 
professional disciplinary authority.
    (B) The applicant's experience in dispensing, or conducting 
research with respect to controlled substances.
    (C) The applicant's conviction record under Federal or State laws 
relating to the manufacture, distribution, or dispensing of controlled 
substances.
    (D) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (E) Such other conduct which may threaten the public health and 
safety.
    21 U.S.C. 823(g)(1).
    The DEA considers these public interest factors in the disjunctive. 
Robert A. Leslie, M.D., 68 FR 15227, 15230 (2003). Each factor is 
weighed on a case-by-case basis. Morall v. Drug Enf't Admin., 412 F.3d 
165, 173-74 (D.C. Cir. 2005). Any one factor, or combination of 
factors, may be decisive. David H. Gillis, M.D., 58 FR 37507, 37508 
(1993).
    While the Agency has considered all of the public interest factors 
in 21 U.S.C. 823(g)(1),\14\ the Government's evidence in support of its 
prima facie case for revocation of Registrant's registration is 
confined to Factors B and D. See RFAA, at 8-11. The Government has the 
burden of proof in this proceeding. 21 CFR 1301.44. Here, the Agency 
finds that the Government's evidence satisfies its prima facie burden 
of showing that Registrant's continued registration would be 
``inconsistent with the public interest.'' 21 U.S.C. 824(a). The Agency 
further finds that Registrant failed to provide sufficient evidence to 
rebut the Government's prima facie case.
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    \14\ As to Factor A, there is no record evidence of disciplinary 
action against Registrant's state APRN license. 21 U.S.C. 
823(g)(1)(A). Here, Registrant's Florida APRN license expired by its 
own terms. See supra at I. DEA precedent establishes that where the 
record contains no evidence of a recommendation by a state licensing 
board, such absence does not weigh for or against revocation. Ester 
Mark, M.D., 86 FR 16760, 16771 (2021) (citing Roni Dreszer, M.D., 76 
FR 19434, 19444 (2011)). As to Factor C, there is no evidence in the 
record that Registrant has been convicted of an offense under either 
federal or state law ``relating to the manufacture, distribution, or 
dispensing of controlled substances.'' 21 U.S.C. 823(g)(1)(C). 
However, as Agency cases have noted, there are a number of reasons 
why a person who has engaged in criminal misconduct may never have 
been convicted of an offense under this factor. Dewey C. MacKay, 
M.D., 75 FR 49956, 49973 (2010). Agency cases have therefore found 
that ``the absence of such a conviction is of considerably less 
consequence in the public interest inquiry'' and is therefore not 
dispositive. Id. As to Factor E, the Government's evidence fits 
squarely within the parameters of Factors B and D and does not raise 
``other conduct which may threaten the public health and safety.'' 
21 U.S.C. 823(g)(1)(E). Accordingly, Factor E does not weigh for or 
against revocation.
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1. Factors B and D
    Evidence is considered under Public Interest Factors B and D when 
it reflects compliance (or non-compliance) with laws related to 
controlled substances and experience dispensing controlled substances. 
See Kareem Hubbard, M.D., 87 FR 21156, 21162 (2022). The Government has 
alleged that Registrant violated both federal and Florida state law 
regulating controlled substances. RFAAX 2, at 2-5. According to the 
CSA's implementing regulations, a lawful controlled substance order or 
prescription is one that is ``issued for a legitimate medical purpose 
by an individual practitioner acting in the usual course of his 
professional practice.'' 21 CFR 1306.04(a). The CSA also requires that 
all prescriptions for controlled substances ``shall be dated as of, and 
signed on, the day when issued.'' 21 CFR 1306.05(a). Further, Florida 
state law lists numerous requirements for the prescribing of controlled 
substances, including, but not limited to, requirements that the 
prescriber: conduct a complete medical history and physical 
examination; document any medical indications for the use of a 
controlled substance; create a written treatment plan; discuss with the 
patient the risks and benefits of the use of controlled substances; 
conduct periodic reviews of the effectiveness of any treatment with 
controlled

[[Page 55076]]

substances; assess and monitor the patient's risk for aberrant drug-
related behavior; and maintain accurate, current, complete, and 
accessible records. Fla. Stat. 456.44; Fla. Admin. Code Ann. r. 64B8-
9.013. Additionally, Florida state law requires that prescriptions 
``must be signed by the prescribing practitioner on the day when 
issued.'' Fla. Stat. 456.42(1).
    Here, the record demonstrates that Registrant issued at least 83 
prescriptions for controlled substances in the names of two deceased 
individuals, as well as pre-signed at least 18 prescriptions for 
controlled substances. As discussed above, such conduct is in clear 
violation of Florida state law and thus renders Registrant's 
prescribing outside the usual course of professional practice. As such, 
the Agency sustains the Government's allegations that Registrant 
violated 21 CFR 1306.04(a), 1306.05(a); Florida Statutes 456.44 and 
456.2(1); and Florida Administrative Code Rule 64B8-9.013.
    In sum, the Agency finds that Factors B and D weigh in favor of 
revocation of Registrant's registration and thus finds, after 
considering the factors set forth in 21 U.S.C. 823(g)(1), Registrant's 
continued registration to be inconsistent with the public interest.

III. Sanction

    Where, as here, the Government has established grounds to revoke 
Registrant's registration, the burden shifts to the registrant to show 
why he can be entrusted with the responsibility carried by a 
registration. Garret Howard Smith, M.D., 83 FR 18882, 18910 (2018). 
When a registrant has committed acts inconsistent with the public 
interest, he must both accept responsibility and demonstrate that he 
has undertaken corrective measures. Holiday CVS, L.L.C., dba CVS 
Pharmacy Nos 219 and 5195, 77 FR 62316, 62339 (2012). Trust is 
necessarily a fact-dependent determination based on individual 
circumstances; therefore, the Agency looks at factors such as the 
acceptance of responsibility, the credibility of that acceptance as it 
relates to the probability of repeat violations or behavior, the nature 
of the misconduct that forms the basis for sanction, and the Agency's 
interest in deterring similar acts. See, e.g., Robert Wayne Locklear, 
M.D., 86 FR 33738, 33746 (2021).
    Here, Registrant did not request a hearing, submit a corrective 
action plan, respond to the OSC/ISO, or otherwise avail herself of the 
opportunity to refute the Government's case. As such, Registrant has 
made no representations as to her future compliance with the CSA nor 
demonstrated that she can be entrusted with registration. Moreover, the 
Agency has found that Registrant is ineligible to maintain a DEA 
registration and that the evidence presented by the Government clearly 
shows that Registrant violated the CSA. See supra at II. Accordingly, 
the Agency orders the revocation of Registrant's registration.

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. 
MR4236584 issued to Debora Ryder, 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 Debora Ryder, N.P., to renew or 
modify this registration, as well as any other pending application of 
Debora Ryder, N.P., for additional registration in Florida. 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. 2023-17383 Filed 8-11-23; 8:45 am]
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