[Federal Register Volume 89, Number 154 (Friday, August 9, 2024)]
[Notices]
[Pages 65398-65399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17715]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Stephen Matthews, M.D.; Decision and Order

    On July 27, 2023, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Stephen Matthews, 
M.D. (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. FM0055841 at the registered address of 
11700 West 2nd Place, Suite 350, Medical Plaza 2, Lakewood, CO 80228. 
Id. at 1. The OSC alleged that Registrant's registration should be 
revoked because Registrant is ``currently without authority to 
prescribe, administer, dispense, or otherwise handle controlled 
substances in the State of Colorado, 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. Id. (citing 21 CFR 1301.43). Here, Registrant did not request 
a hearing. RFAA, at 2.\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 
September 21, 2023, the Agency finds that service of the OSC on 
Registrant was adequate. Specifically, the Government's included 
Notice of Service of Order to Show Cause asserts that Registrant was 
personally served with the OSC on July 31, 2023; the Government 
notes that ``[d]ue to law enforcement safety concerns upon service, 
[Registrant] did not sign a Form DEA-12 acknowledging receipt of the 
[OSC].'' RFAAX 1, 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

[[Page 65399]]

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), 1301.46. RFAA, at 3; see 
also 21 CFR 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 
May 22, 2023, the Colorado Medical Board issued a Non-Disciplinary 
Interim Cessation of Practice Agreement, in which Registrant agreed to 
not practice medicine in the State of Colorado. RFAAX 2, at 2; see 
RFAAX 3. According to Colorado online records, of which the Agency 
takes official notice, Registrant's medical license is under an 
``Active--Restricted'' status with a stipulation that Registrant 
``Cannot Practice.'' \2\ Colorado Division of Professions and 
Occupations License Search, https://apps2.colorado.gov/dora/licensing/lookup/licenselookup.aspx (last visited date of signature of this 
Order). Accordingly, the Agency finds that Registrant is not licensed 
to practice medicine in Colorado, 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 (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, 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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    According to Colorado statute, ``dispense'' means ``to deliver a 
controlled substance to an ultimate user, patient, or research subject 
by or pursuant to the lawful order of a practitioner, including the 
prescribing, administering, packaging, labeling, or compounding 
necessary to prepare the substance for that delivery.'' Colo. Rev. 
Stat. section 18-18-102(9) (2024). Further, a ``practitioner'' means a 
``physician . . . or other person licensed, registered, or otherwise 
permitted, by this state, to distribute, dispense, conduct research 
with respect to, administer, or to use in teaching or chemical 
analysis, a controlled substance in the course of professional practice 
or research.'' Id. section 18-18-102(29).
    Here, the undisputed evidence in the record is that Registrant 
lacks authority to practice medicine in Colorado. As discussed above a 
physician must be a licensed practitioner permitted to dispense a 
controlled substance in Colorado. Thus, because Registrant lacks 
authority to practice medicine in Colorado and, therefore, is not 
authorized to handle controlled substances in Colorado, 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. 
FM0055841 issued to Stephen Matthews, 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 Stephen Matthews, M.D., to 
renew or modify this registration, as well as any other pending 
application of Stephen Matthews, M.D., for additional registration in 
Colorado. This Order is effective September 9, 2024.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
August 2, 2024, 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. 2024-17715 Filed 8-8-24; 8:45 am]
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