[Federal Register Volume 88, Number 240 (Friday, December 15, 2023)]
[Notices]
[Pages 86944-86945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27522]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Gary R. Wisner, M.D.; Decision and Order
On March 1, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Gary R. Wisner, M.D.
(Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX)
1, at 1, 3. The OSC proposed the revocation of Registrant's
Certificates of Registration (COR) Nos. FW8432471 and AW2971073 at the
registered addresses of 621 S. Ham Ln., Ste. A, Lodi, California 95242,
and 16246 N. Locust Tree Road, Lodi, California 95240, respectively.
Id. at 1. The OSC alleged that Registrant's registrations should be
revoked because Registrant was ``without authority to prescribe,
administer, dispense, or otherwise handle controlled substances in the
State of California, the state in which [he is] registered with DEA.''
Id. at 2 (citing, inter alia, 21 U.S.C. 824(a)(3); 21 CFR 1301.37(b)).
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 be in default. Id. at 2 (citing 21 CFR
1301.43(c)(1)). 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] 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
August 3, 2023, the Agency finds that service of the OSC on
Registrant was adequate. Specifically, the included declaration by a
DEA Diversion Investigator (DI) indicates that on March 13, 2023,
the DI personally ``served [Respondent] a copy of the [OSC] by hand
delivery.'' RFAAX 2, 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] 1316.67.'' Id. 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), and 1301.46. RFAA, at 1.
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,
``[e]ffective January 30, 2023, as part of an agreement with the
[Medical Board of California] . . . [Registrant] surrendered [his]
license to practice medicine in the State of California.'' RFAAX 1, at
1-2.
According to California's online records, of which the Agency takes
official notice, the status of Registrant's physician and surgeon
license (type A) is listed as surrendered, and he is not permitted to
practice.\2\ California
[[Page 86945]]
Department of Consumer Affairs, License Search, https://search.dca.ca.gov/ (last visited date of signature of this Order).
Therefore, the Agency finds that Registrant is not currently authorized
to dispense or handle controlled substances in California, 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, 71372 (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. 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, 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, 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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According to California statute and relevant to Registrant's COR,
``[n]o person other than a physician . . . shall write or issue a
prescription.'' \4\ Cal. Health & Safety Code 11150. Further,
``physician,'' as defined by California statute, is a person who is
``licensed to practice'' in California. Id. 11024.
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\4\ Although additional specified categories of persons are
permitted to write or issue prescriptions, none of those
practitioner categories are applicable to Registrant.
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Here, the evidence in the record is that Registrant currently lacks
authority to handle controlled substances in California because his
California physician and surgeon license has been surrendered. As
already discussed, a person must hold a valid license to dispense a
controlled substance in California. Thus, because Registrant lacks
authority to handle controlled substances in California, Registrant is
not eligible to maintain a DEA registration. Accordingly, the Agency
will order that Registrant's DEA registrations 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 Certificates of Registration Nos.
FW8432471 and AW2971073 issued to Gary R. Wisner, 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 Gary R. Wisner,
M.D., to renew or modify these registrations, as well as any other
pending application of Gary R. Wisner, M.D., for additional
registration in California. This Order is effective January 16, 2024.
Signing Authority
This document of the Drug Enforcement Administration was signed on
December 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. 2023-27522 Filed 12-14-23; 8:45 am]
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