[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Notices]
[Pages 55069-55070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17386]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


David H. Marcowitz, D.O.; Decision and Order

    On January 11, 2023, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to David H. Marcowitz, 
D.O. (Registrant). Request for Final Agency Action (RFAA), Exhibit 
(RFAAX) 2, at 1, 3. The OSC proposed the revocation of Registrant's 
Certificate of Registration No. FM6860818 at the registered address of 
17019 County Farm Road, Rushville, Illinois 62681. Id. at 1. The OSC 
alleged that Registrant's registration should be revoked because 
Registrant is ``currently without authority to handle controlled 
substances in Illinois, the state in which [he is] registered with 
DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
    The OSC notified Registrant of his right to file with DEA a written 
request for hearing, and that if he failed to file such a request, he 
would be deemed to have waived his right to a hearing and be in 
default. OSC, at 2 (citing 21 CFR 1301.43). Here, Registrant did not 
request a hearing. RFAA, at 1.\1\ ``A default, unless excused, shall be 
deemed to constitute a waiver of the registrant's/applicant's right to 
a hearing and an admission of the factual allegations of the [OSC].'' 
21 CFR 1301.43(e).
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    \1\ Based on the Government's submissions in its RFAA dated May 
2, 2023, the Agency finds that service of the OSC on Registrant was 
adequate. Specifically, the included Declaration of a DEA Diversion 
Investigator asserts that on January 11, 2023, Registrant was 
personally served with the OSC at his private residence. RFAAX 3, at 
1.
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    Further, ``[i]n the event that a registrant . . . is deemed to be 
in default . . . DEA may then file a request for final agency action 
with the Administrator, along with a record to support its request. In 
such circumstances, the Administrator may enter a default final order 
pursuant to [21 CFR] Sec.  1316.67.'' Id. Sec.  1301.43(f)(1). Here, 
the Government has requested final agency action based on Registrant's 
default pursuant to 21 CFR 1301.43(c), (f). See also id. Sec.  1316.67.

Findings of Fact

    The Agency finds that, in light of Registrant's default, the 
factual allegations in the OSC are admitted. According to the OSC, on 
September 9, 2021, both Registrant's Illinois medical license and 
Registrant's Illinois controlled substance license were suspended. 
RFAAX 2, at 1.
    According to Illinois' online records, of which the Agency takes 
official notice, both Registrant's Illinois medical license and 
Registrant's Illinois controlled substance license remain suspended.\2\ 
Illinois Department of Financial and Professional Regulation, License 
Lookup, https://online-dfpr.micropact.com/lookup/licenselookup.aspx 
(last visited date of signature of this Order). Therefore, the Agency 
finds that Registrant is not authorized to practice medicine nor to 
handle controlled substances in Illinois, the state in which he is 
registered with 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 21 U.S.C. 823 ``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, 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, D.O., 76 FR 71371 (2011), pet. for rev. 
denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh Blanton, 
D.O., 43 FR 27616, 27617 (1978).\3\
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    \3\ This rule derives from the text of two provisions of the 
Controlled Substances Act (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 section 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, 
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, D.O., 71 FR 39130, 39131 (2006); 
Dominick A. Ricci, D.O., 58 FR 51104, 51105 (1993); Bobby Watts, 
D.O., 53 FR 11919, 11920 (1988); Frederick Marsh Blanton, 43 FR 
27617.

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[[Page 55070]]

    Pursuant to the Illinois Controlled Substances Act, a 
``practitioner'' means ``a physician licensed to practice medicine in 
all its branches . . . or other person licensed, registered, or 
otherwise lawfully permitted by the United States or this State to 
distribute [or] dispense . . . a controlled substance in the course of 
professional practice or research.'' 720 Ill. Comp. Stat. Ann. 570/
102(kk) (2023). Further, the Illinois Controlled Substances Act 
requires that ``[e]very person who manufactures, distributes, or 
dispenses any controlled substances . . . must obtain a registration 
issued by the Department of Financial and Professional Regulation in 
accordance with its rules.'' Id. 570/302(a).\4\
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    \4\ The Illinois Controlled Substances Act also authorizes the 
Department of Financial and Professional Regulation to discipline a 
practitioner holding a controlled substance license, stating that 
``[a] registration under Section 303 to manufacture, distribute, or 
dispense a controlled substance . . . may be denied, refused 
renewal, suspended, or revoked by the Department of Financial and 
Professional Regulation.'' Id. 570/304(a).
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    Here, the evidence in the record is that Registrant currently lacks 
authority to handle controlled substances in Illinois because both his 
Illinois medical license and his Illinois controlled substance license 
are suspended. As already discussed, a practitioner must hold a valid 
controlled substance license to dispense a controlled substance in 
Illinois. Thus, because Registrant lacks authority to handle controlled 
substances in Illinois, 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. 
FM6860818 issued to David H. Marcowitz, D.O. 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 David H. Marcowitz, D.O., to 
renew or modify this registration, as well as any other pending 
application of David H. Marcowitz, D.O., for additional registration in 
Illinois. 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. 2023-17386 Filed 8-11-23; 8:45 am]
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