Decision and Order: Kevin G. Morgan, RN/APN, 29573-29575 [2018-13530]
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Gregory D. Owens, D.D.S., 74 FR 36751,
36757 and n.22 (2009) (‘‘The residents
of this Nation’s poorer areas are as
deserving of protection from diverters as
are the citizens of its wealthier
communities, and there is no legitimate
reason why practitioners should be
treated any differently because of where
they practice or the socioeconomic
status of their patients.’’ Considering
community impact evidence would
‘‘inject a new level of complexity into
already complex proceedings and take
the Agency far afield of the purpose of
the . . . registration provisions, which
is to prevent diversion.’’).3
Counsel’s Written Statement suggests
that Respondent, like the respondent in
Seglin, ‘‘did not ‘attempt to conceal his
misconduct and in fact was quite
straightforward with the investigators.’ ’’
GX 7 (Written Statement, at 3, citing
Melvin N. Seglin, M.D., 63 FR at 70,433).
As already discussed, Respondent’s
obstruction of justice was recorded on
more than one occasion. Thus, although
I will not revoke Respondent’s
registration, I reject Counsel’s argument
that Respondent did not attempt to
conceal his misconduct.
As for acceptance of responsibility,
Agency precedent requires unequivocal
acceptance of responsibility when a
respondent has committed knowing or
intentional misconduct. Lon F.
Alexander, M.D., 82 FR 49704, 49728
(2017) (collecting cases) (A respondent
who committed knowing or intentional
misconduct must unequivocally
acknowledge his misconduct.). Cf.
Melvin N. Seglin, 63 FR at 70433
(Respondent thought the billing method
he used was acceptable). Respondent’s
participation in the multi-year illegal
cash kickback payment conspiracy was
just that, knowing and intentional. See,
e.g., GX 3, at 2–3 (Respondent’s
admissions in the Plea Agreement to
knowing and willful criminality); GX 7
(Government Sentencing Memo, at 2–3)
(describing the recorded acts forming
the basis for the obstruction of justice
enhancement); GX 7 (Transcript of
Sentencing Hearing, at 37) (AUSA’s
description of Respondent’s knowing
and willful acts).
3 DEA’s brief appears to agree with Respondent’s
reading of Kwan Bo Jin while distinguishing it on
the facts. RFAA, at 5–6. As recognized in 21 CFR
1301.43, a written statement ‘‘shall be considered
in light of the lack of opportunity for crossexamination in determining the weight to be
attached to matters of fact asserted therein.’’ In this
case, other credible evidence, such as the District
Court’s acceptance of the Respondent’s guilty plea,
the application of the Sentencing Guidelines
provision crediting Respondent with accepting
responsibility, and the concession by the AUSA in
the criminal case that Respondent accepted
responsibility, supports Respondent’s contention
that he has accepted responsibility.
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I find, however, that the record as a
whole shows the requisite acceptance of
responsibility. According to the Plea
Agreement, Respondent ‘‘has clearly
demonstrated a recognition and
affirmative acceptance of personal
responsibility for his criminal conduct.’’
GX 3, at 9. While Respondent ‘‘appeared
to have no plans to stop committing his
crime prior to being approached by law
enforcement,’’ the AUSA acknowledged
that ‘‘he did accept responsibility for his
actions immediately.’’ GX 7
(Government Sentencing Memo, at 5).
The AUSA also stated that Respondent
‘‘has unquestionably taken full
responsibility for his action going so far
as to provide significant cooperation to
the government after his arrest.’’ Id. at
7. Moreover, at the sentencing hearing,
in addressing the need for specific
deterrence, the AUSA concluded there
was ‘‘no need’’ for it, stating that
Respondent’s ‘‘immediate acceptance of
responsibility demonstrate[s] not only
an acknowledgement of his wrongdoing,
but a sincere effort to take steps to make
amends for the crime that [he] has
committed.’’ Id. at 8–9. Notably, DEA
has put forward no evidence
challenging the sincerity of
Respondent’s acceptance of
responsibility.
As for evidence in the record
regarding whether Respondent should
continue to be entrusted with a
registration, the District Judge was
troubled by Respondent’s greed and the
fact that Respondent took affirmative
steps to obstruct justice. I, too, am
troubled by the same facts. I do note,
however, that Respondent’s criminality
did not directly involve his registration
or controlled substances. There is
nothing in the record addressing, let
alone impugning, Respondent’s use of
his registration.
As for the Agency’s interest in
deterrence, I adopt the District Judge’s
conclusion that specific deterrence is
not a concern. GX 7 (Transcript of
Sentencing Hearing, at 8). I agree with
the District Judge that ‘‘[g]eneral
deterrence is the question.’’ Id. at 30.
While not issuing some sanction due to
Respondent’s outrageous misconduct
sends the wrong message to the
registrant community, not
acknowledging the prosecutors’
unqualified satisfaction with
Respondent’s significant cooperation
likewise sends the wrong message.
On the whole, while I find that the
Respondent was involved in knowing
and willful criminal conduct, I also find
that this conduct did not involve the
misuse of his registration to handle
controlled substances. I further find, as
the District Judge did, that the
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Respondent has accepted responsibility
for his conduct. In sum, this case is
factually unique, and, as such, I will
impose a unique sanction.
Based on all of the evidence in the
record, I shall suspend Respondent’s
registration for a minimum period of
two years. Said suspension shall
terminate upon Respondent’s providing
evidence that he has satisfied the
judgment of the District Court by paying
the entire amount due pursuant to the
District Court’s Judgment.
Order
Pursuant to the authority vested in me
by 21 U.S.C. 824(a), as well as 28 CFR
0.100(b), I order that DEA Certificate of
Registration FA3926055 issued to
Mohammed Asgar, M.D., be, and it
hereby is, suspended for a minimum
period of two years and that said
suspension shall terminate upon
Respondent’s providing evidence that
he has satisfied the judgment of the
District Court by paying the amount he
was ordered to pay pursuant to the
Court’s judgment. This Order is effective
July 25, 2018.
Dated: June 11, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018–13531 Filed 6–22–18; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 18–15]
Decision and Order: Kevin G. Morgan,
RN/APN
On December 22, 2017, the Acting
Assistant Administrator, Diversion
Control Division, Drug Enforcement
Administration (DEA), issued an Order
to Show Cause to Kevin G. Morgan, RN/
APN (Respondent), of Nederland, Texas.
The Show Cause Order proposed the
revocation of Respondent’s DEA
Certificate of Registration No.
MM2890312 on the ground that he does
‘‘not have authority to handle controlled
substances in the state of Texas, the
state in which [Respondent is]
registered with the DEA.’’ Order to
Show Cause, at 1 (citing 21 U.S.C.
823(f), 824(a)(3)).
With respect to the Agency’s
jurisdiction, the Show Cause Order
alleged that Respondent is the holder of
Certificate of Registration No.
MM2890312, pursuant to which he is
authorized to dispense controlled
substances as a practitioner in schedules
III through V, at the registered address
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of 1003 Nederland Ave., Nederland,
Texas. Id. The Order also alleged that
this registration does not expire until
January 31, 2019. Id.
Regarding the substantive ground for
the proceeding, the Show Cause Order
alleged that on December 1, 2017, the
Texas State Board of Nursing (TSBN),
‘‘suspended [Respondent’s] nursing
license, including [Respondent’s]
prescriptive authority’’ and that ‘‘[t]his
suspension remains in effect.’’ Id. at 2.
The Order alleged that the TSBN’s
suspension was ‘‘based on allegations
that [Respondent] acted outside [his]
authorized scope of practice and
misrepresented information to the
public which was likely to deceive the
public.’’ Id. The Order further alleged
that Respondent is therefore ‘‘without
authority to handle controlled
substances in Texas, the [S]tate in
which [he is] registered with the DEA.’’
Id. Based on his ‘‘lack of authority to
[dispense] controlled substances in . . .
Texas,’’ the Order asserted that ‘‘DEA
must revoke’’ his registration. Id. (citing
21 U.S.C. 802(21), 823(f)(1), 824(a)(3)).
The Show Cause Order notified
Respondent of (1) his right to request a
hearing on the allegations or to submit
a written statement in lieu of a hearing,
(2) the procedure for electing either
option, and (3) the consequence for
failing to elect either option. Id. at 2–3
(citing 21 CFR 1301.43). The Show
Cause Order also notified Respondent of
his right to submit a corrective action
plan. Id. at 3–4 (citing 21 U.S.C.
824(c)(2)(C)).
On January 23, 2018, Respondent
filed a letter with the Office of
Administrative Law Judges (OALJ) in
which he requested a hearing on the
allegation of the Show Cause Order and
stated his desire to explain ‘‘how he is
not a threat, provided great care, and
how the State of Texas erroneously and
wrongly suspended his license.’’ Letter
from Respondent’s Counsel to Hearing
Clerk (dated January 22, 2018)
(hereinafter, Hearing Request), at 1. The
matter was placed on the OALJ’s docket
and assigned to Chief Administrative
Law Judge John J. Mulrooney, II
(hereinafter, CALJ). On January 23,
2018, the CALJ issued an order entitled
‘‘Order Directing the Filing of
Government Evidence of Lack of State
Authority Allegation and Briefing
Schedule’’ (hereinafter, ‘‘Briefing
Order’’) in which the CALJ found, inter
alia, that ‘‘the Respondent, by counsel,
filed a letter which requested a hearing
in the matter of [sic] order to show
cause. Therefore, the letter is construed
as the Respondent’s Request for
Hearing.’’ Briefing Order, at 1.
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Pursuant to 21 CFR 1301.43(a), ‘‘any
person entitled to a hearing . . . and
desiring a hearing shall, within 30 days
after the date of receipt of the order to
show cause, . . . file with the
Administrator a written request for a
hearing.’’ Accord Show Cause Order, at
2. The CALJ did not indicate in his
Briefing Order or in his Recommended
Decision—and the rest of the
administrative record does not
indicate—when Respondent received
the Show Cause Order. Without any
evidence in the record establishing
when Respondent received the Show
Cause Order, the only way in which I
could find that Respondent’s Hearing
Request was timely is if it had been filed
with the Administrator within 30 days
of the December 22, 2017 date of the
Show Cause Order. However, the OALJ
did not receive Respondent’s Hearing
Request until January 23, 2018.1 Hearing
Request, at 1. Accordingly, I find that
Respondent’s Hearing Request was not
timely filed pursuant to 21 CFR
1301.43(a), and as a result, Respondent
waived his right to a hearing.
In the absence of a timely hearing
request, I also find that the CALJ
consequently lacked jurisdiction to hear
the case. Accord David A. Ruben, M.D.,
83 FR 12027, 12028 (2018) (same)
(citing Brown’s Discount Apothecary
BC, Inc., and Bolling Apothecary, Inc.,
80 FR 57393, 57394 (2015) (‘‘in the
absence of a hearing request, the ALJ
had no authority to rule on the issue of
whether its registration should be
revoked’’)). I therefore cancel the
hearing nunc pro tunc held by the CALJ
by summary disposition. See 21 CFR
1301.43(e); accord Ruben, 83 FR at
12028. Accordingly, I will treat this case
as a Request for Final Agency Action
and issue this Decision and Order based
on the relevant evidence forwarded to
my office by the CALJ on March 19,
2018.2 See id. I make the following
findings.
1 Although the front of Respondent’s Hearing
Request is stamped ‘‘Received’’ by the Office of
Administrative Law Judges on January 23, 2018, the
fax confirmation page attached to the Hearing
Request states that it arrived in that office on
‘‘January 22, 2018.’’ Compare Hearing Request, at 1,
with id. at 3. In any event, neither date is within
30 days of the December 22, 2017 date of the Show
Cause Order.
2 In his Briefing Order, the CALJ ordered the
Government to file evidence to support its
allegation that Respondent lacks state authority to
handle controlled substances, and any motion for
summary disposition on these grounds, on February
2, 2018. Briefing Order at 1–2. The CALJ also
directed Respondent to file his response to any
summary disposition motion on February 15, 2018.
Id. at 2. On February 2, 2018, the Government filed
its Motion for Summary Disposition, and the
Respondent filed his response on February 15,
2018. See Government’s Motion for Summary
Disposition (hereinafter, ‘‘Govt. Mot.’’); Response to
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Findings of Fact
Respondent is a holder of DEA
Certificate of Registration No.
MM2890312. Government Exhibit (GX)
1 to Govt. Mot. Pursuant to his
registration, Respondent is authorized to
dispense controlled substances in
schedules III through V as an ‘‘MLPNurse Practitioner.’’ Id. Respondent’s
registered address is 1003 Nederland
Ave., Nederland, Texas. Id.
Respondent’s registration does not
expire until January 31, 2019. Id.
On December 1, 2017, the TSBN
issued an ‘‘Order of Temporary
Suspension’’ stating that Respondent’s
‘‘Permanent Advanced Practice
Registered Nurse License Number
AP123323 with Prescription
Authorization Number 13799 and
Permanent Registered Nurse License
Number 758246 . . . to practice nursing
in the State of Texas is/are, hereby
SUSPENDED IMMEDIATELY.’’ GX 2, at
17. The TSBN issued this Order after
finding that ‘‘given the nature of the
charges, the continued practice of
nursing by [Respondent] constitutes a
continuing and imminent threat to
public welfare.’’ Id. Finally, the TSBN
stated that ‘‘a probable cause hearing be
conducted . . . not later than seventeen
(17) days following the date of the entry
of this order, and a final hearing on the
matter be conducted . . . not later than
the 61st day following the date of the
entry of this order.’’ Id. There is no
evidence in the record establishing that
the TSBN ever lifted this suspension.
Based on the above, I find that
Respondent does not currently have
authority under the laws of Texas to
dispense controlled substances.
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 CSA, ‘‘upon a
finding that the registrant . . . has had
his State license . . . suspended [or]
revoked . . . by competent State
authority and is no longer authorized by
State law to engage in the . . .
dispensing of controlled substances.’’
the DEA’s Proposed Revocation and Motion to
Temporarily Abate and Stay the Proceedings for
Fifty Days (hereinafter, ‘‘Respondent’s Brief’’ or
‘‘Resp. Br.’’). On February 20, 2018, the CALJ issued
his Order granting summary disposition and
Recommended Decision. Order Granting the
Government’s Motion for Summary Disposition and
Recommended Rulings, Findings of Fact,
Conclusions of Law, and Decision (hereinafter,
Recommended Decision or R.D.). Neither party filed
exceptions to the CALJ’s Recommended Decision.
Although the CALJ’s Recommended Decision did
not establish that he had jurisdiction in this case,
I will nonetheless consider the administrative
record that he submitted to me in its entirety.
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Also, DEA has 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,
76 FR 71371 (2011), pet. for rev. denied,
481 Fed. Appx. 826 (4th Cir. 2012); see
also Frederick Marsh Blanton, 43 FR
27616 (1978) (‘‘State authorization to
dispense or otherwise handle controlled
substances is a prerequisite to the
issuance and maintenance of a Federal
controlled substances registration.’’).
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(f). 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 engages in professional
practice. See, e.g., Calvin Ramsey, 76 FR
20034, 20036 (2011); Sheran Arden
Yeates, M.D., 71 FR 39130, 39131
(2006); Dominick A. Ricci, 58 FR 51104,
51105 (1993); Bobby Watts, 53 FR
11919, 11920 (1988); Blanton, 43 FR at
27616.
Moreover, because ‘‘the controlling
question’’ in a proceeding brought
under 21 U.S.C. 824(a)(3) is whether the
holder of a practitioner’s registration ‘‘is
currently authorized to handle
controlled substances in the [S]tate,’’
Hooper, 76 FR at 71371 (quoting Anne
Lazar Thorn, 62 FR 12847, 12848
(1997)), the Agency has also long held
that revocation is warranted even where
a practitioner has lost his state authority
by virtue of the State’s use of summary
process and the State has yet to provide
a hearing to challenge the suspension.
Bourne Pharmacy, 72 FR 18273, 18274
(2007); Wingfield Drugs, 52 FR 27070,
27071 (1987). Thus, it is of no
consequence that the TSBN summarily
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suspended Respondent’s state medical
license. What is consequential is the
undisputed fact that Respondent is no
longer currently authorized to dispense
controlled substances in Texas, the State
in which he is registered. Accordingly,
Respondent is not entitled to maintain
his DEA registration, and I will therefore
order that his registration be revoked.3
Order
Pursuant to the authority vested in me
by 21 U.S.C. 823(f) and 824(a), as well
as 28 CFR 0.100(b), I order that DEA
Certificate of Registration No.
MM2890312, issued to Kevin G.
Morgan, RN/APN, be, and it hereby is,
revoked. I further order that any
pending application of Kevin G. Morgan
to renew or modify the above
registration, or any pending application
of Kevin G. Morgan for any other DEA
registration in the State of Texas, be,
and it hereby is, denied. This Order is
effective immediately.4
Dated: June 14, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018–13530 Filed 6–22–18; 8:45 am]
BILLING CODE 4410–09–P
3 The CALJ received and considered the
Government’s Motion for Summary Disposition and
Respondent’s Brief. In his brief, Respondent ‘‘d[id]
not contest that he is subject to a temporary
suspension of his state prescriptive authority.’’
Resp. Br. at 1. However, Respondent argued that he
will be presenting evidence at ‘‘a probable cause
hearing to be held on March 6, 2018,’’ that his
suspension ‘‘was granted on flawed information
and false allegations,’’ and that he ‘‘has not had the
chance to defend his self [sic] against these
allegations.’’ Id. However, as already noted above,
the TSBN suspended Respondent’s nursing license
and his authority to issue prescriptions. GX 2, at 17.
As of the date of this order, Respondent has not
filed a motion for reconsideration on the ground
that the TSBN has lifted the suspension. The CALJ
concluded that the fact that the State has yet to
provide a hearing to challenge Respondent’s
suspension does not change the undisputed fact
that Respondent’s state prescriptive authority is
suspended. R.D. at 7–8. Accordingly, if the CALJ
had the authority to issue his conclusion rejecting
Respondent’s argument, I would have adopted this
conclusion.
4 For the same reasons which led the TSBN to
suspend Respondent’s license and prescriptive
authority, I conclude that the public interest
necessitates that this Order be effective
immediately. 21 CFR 1316.67.
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DEPARTMENT OF JUSTICE
Executive Office for Immigration
Review
[EOIR Docket No. 18–0202]
RIN 1125–AA81
EOIR Electronic Filing Pilot Program
Executive Office for
Immigration Review, Department of
Justice.
ACTION: Public notice.
AGENCY:
The Executive Office for
Immigration Review (EOIR) is creating a
voluntary pilot program to test an
expansion of electronic filing for cases
filed with the immigration courts and
the Board of Immigration Appeals (BIA).
This notice describes the procedures for
participation in the pilot program.
DATES: The pilot program will be in
effect from July 16, 2018 until July 31,
2019. Initially, expanded electronic
filing will be available in six
immigration courts, but will be
expanded to all remaining courts and
the BIA incrementally. Eligible
attorneys and accredited representatives
may choose to participate at any time
during the pilot program and will be
permitted to continue using electronic
filing throughout the pendency of
electronically filed cases.
FOR FURTHER INFORMATION CONTACT:
Nathan Berkeley, Acting Chief,
Communications and Legislative Affairs
Division, Office of Policy, Executive
Office for Immigration Review, 5107
Leesburg Pike, Suite 2618, Falls Church,
VA 22041, telephone (703) 305–0289
(not a toll-free call) or email PAO.EOIR@
usdoj.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
In 1998, Congress passed the
Government Paperwork Elimination
Act, which required federal agencies to
provide the public with the ability to
conduct business electronically with the
federal government. See Public Law
105–277 (Oct. 21, 1998). Similarly, in
2002, Congress passed the EGovernment Act of 2002, which
promoted electronic government
services and required agencies to use
internet-based technology to increase
the public’s access to government
information and services. See Public
Law 107–347 (Dec. 17, 2002).
As a result, EOIR began pursuing a
long-term agency plan to create an
electronic case access and filing system
for the immigration courts and BIA. See
68 FR 71650 (Dec. 20, 2003) (‘‘The
Department is . . . designing an
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]]>Agencies
[Federal Register Volume 83, Number 122 (Monday, June 25, 2018)]
[Notices]
[Pages 29573-29575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13530]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 18-15]
Decision and Order: Kevin G. Morgan, RN/APN
On December 22, 2017, the Acting Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Kevin G. Morgan, RN/APN (Respondent), of
Nederland, Texas. The Show Cause Order proposed the revocation of
Respondent's DEA Certificate of Registration No. MM2890312 on the
ground that he does ``not have authority to handle controlled
substances in the state of Texas, the state in which [Respondent is]
registered with the DEA.'' Order to Show Cause, at 1 (citing 21 U.S.C.
823(f), 824(a)(3)).
With respect to the Agency's jurisdiction, the Show Cause Order
alleged that Respondent is the holder of Certificate of Registration
No. MM2890312, pursuant to which he is authorized to dispense
controlled substances as a practitioner in schedules III through V, at
the registered address
[[Page 29574]]
of 1003 Nederland Ave., Nederland, Texas. Id. The Order also alleged
that this registration does not expire until January 31, 2019. Id.
Regarding the substantive ground for the proceeding, the Show Cause
Order alleged that on December 1, 2017, the Texas State Board of
Nursing (TSBN), ``suspended [Respondent's] nursing license, including
[Respondent's] prescriptive authority'' and that ``[t]his suspension
remains in effect.'' Id. at 2. The Order alleged that the TSBN's
suspension was ``based on allegations that [Respondent] acted outside
[his] authorized scope of practice and misrepresented information to
the public which was likely to deceive the public.'' Id. The Order
further alleged that Respondent is therefore ``without authority to
handle controlled substances in Texas, the [S]tate in which [he is]
registered with the DEA.'' Id. Based on his ``lack of authority to
[dispense] controlled substances in . . . Texas,'' the Order asserted
that ``DEA must revoke'' his registration. Id. (citing 21 U.S.C.
802(21), 823(f)(1), 824(a)(3)).
The Show Cause Order notified Respondent of (1) his right to
request a hearing on the allegations or to submit a written statement
in lieu of a hearing, (2) the procedure for electing either option, and
(3) the consequence for failing to elect either option. Id. at 2-3
(citing 21 CFR 1301.43). The Show Cause Order also notified Respondent
of his right to submit a corrective action plan. Id. at 3-4 (citing 21
U.S.C. 824(c)(2)(C)).
On January 23, 2018, Respondent filed a letter with the Office of
Administrative Law Judges (OALJ) in which he requested a hearing on the
allegation of the Show Cause Order and stated his desire to explain
``how he is not a threat, provided great care, and how the State of
Texas erroneously and wrongly suspended his license.'' Letter from
Respondent's Counsel to Hearing Clerk (dated January 22, 2018)
(hereinafter, Hearing Request), at 1. The matter was placed on the
OALJ's docket and assigned to Chief Administrative Law Judge John J.
Mulrooney, II (hereinafter, CALJ). On January 23, 2018, the CALJ issued
an order entitled ``Order Directing the Filing of Government Evidence
of Lack of State Authority Allegation and Briefing Schedule''
(hereinafter, ``Briefing Order'') in which the CALJ found, inter alia,
that ``the Respondent, by counsel, filed a letter which requested a
hearing in the matter of [sic] order to show cause. Therefore, the
letter is construed as the Respondent's Request for Hearing.'' Briefing
Order, at 1.
Pursuant to 21 CFR 1301.43(a), ``any person entitled to a hearing .
. . and desiring a hearing shall, within 30 days after the date of
receipt of the order to show cause, . . . file with the Administrator a
written request for a hearing.'' Accord Show Cause Order, at 2. The
CALJ did not indicate in his Briefing Order or in his Recommended
Decision--and the rest of the administrative record does not indicate--
when Respondent received the Show Cause Order. Without any evidence in
the record establishing when Respondent received the Show Cause Order,
the only way in which I could find that Respondent's Hearing Request
was timely is if it had been filed with the Administrator within 30
days of the December 22, 2017 date of the Show Cause Order. However,
the OALJ did not receive Respondent's Hearing Request until January 23,
2018.\1\ Hearing Request, at 1. Accordingly, I find that Respondent's
Hearing Request was not timely filed pursuant to 21 CFR 1301.43(a), and
as a result, Respondent waived his right to a hearing.
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\1\ Although the front of Respondent's Hearing Request is
stamped ``Received'' by the Office of Administrative Law Judges on
January 23, 2018, the fax confirmation page attached to the Hearing
Request states that it arrived in that office on ``January 22,
2018.'' Compare Hearing Request, at 1, with id. at 3. In any event,
neither date is within 30 days of the December 22, 2017 date of the
Show Cause Order.
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In the absence of a timely hearing request, I also find that the
CALJ consequently lacked jurisdiction to hear the case. Accord David A.
Ruben, M.D., 83 FR 12027, 12028 (2018) (same) (citing Brown's Discount
Apothecary BC, Inc., and Bolling Apothecary, Inc., 80 FR 57393, 57394
(2015) (``in the absence of a hearing request, the ALJ had no authority
to rule on the issue of whether its registration should be revoked'')).
I therefore cancel the hearing nunc pro tunc held by the CALJ by
summary disposition. See 21 CFR 1301.43(e); accord Ruben, 83 FR at
12028. Accordingly, I will treat this case as a Request for Final
Agency Action and issue this Decision and Order based on the relevant
evidence forwarded to my office by the CALJ on March 19, 2018.\2\ See
id. I make the following findings.
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\2\ In his Briefing Order, the CALJ ordered the Government to
file evidence to support its allegation that Respondent lacks state
authority to handle controlled substances, and any motion for
summary disposition on these grounds, on February 2, 2018. Briefing
Order at 1-2. The CALJ also directed Respondent to file his response
to any summary disposition motion on February 15, 2018. Id. at 2. On
February 2, 2018, the Government filed its Motion for Summary
Disposition, and the Respondent filed his response on February 15,
2018. See Government's Motion for Summary Disposition (hereinafter,
``Govt. Mot.''); Response to the DEA's Proposed Revocation and
Motion to Temporarily Abate and Stay the Proceedings for Fifty Days
(hereinafter, ``Respondent's Brief'' or ``Resp. Br.''). On February
20, 2018, the CALJ issued his Order granting summary disposition and
Recommended Decision. Order Granting the Government's Motion for
Summary Disposition and Recommended Rulings, Findings of Fact,
Conclusions of Law, and Decision (hereinafter, Recommended Decision
or R.D.). Neither party filed exceptions to the CALJ's Recommended
Decision. Although the CALJ's Recommended Decision did not establish
that he had jurisdiction in this case, I will nonetheless consider
the administrative record that he submitted to me in its entirety.
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Findings of Fact
Respondent is a holder of DEA Certificate of Registration No.
MM2890312. Government Exhibit (GX) 1 to Govt. Mot. Pursuant to his
registration, Respondent is authorized to dispense controlled
substances in schedules III through V as an ``MLP-Nurse Practitioner.''
Id. Respondent's registered address is 1003 Nederland Ave., Nederland,
Texas. Id. Respondent's registration does not expire until January 31,
2019. Id.
On December 1, 2017, the TSBN issued an ``Order of Temporary
Suspension'' stating that Respondent's ``Permanent Advanced Practice
Registered Nurse License Number AP123323 with Prescription
Authorization Number 13799 and Permanent Registered Nurse License
Number 758246 . . . to practice nursing in the State of Texas is/are,
hereby SUSPENDED IMMEDIATELY.'' GX 2, at 17. The TSBN issued this Order
after finding that ``given the nature of the charges, the continued
practice of nursing by [Respondent] constitutes a continuing and
imminent threat to public welfare.'' Id. Finally, the TSBN stated that
``a probable cause hearing be conducted . . . not later than seventeen
(17) days following the date of the entry of this order, and a final
hearing on the matter be conducted . . . not later than the 61st day
following the date of the entry of this order.'' Id. There is no
evidence in the record establishing that the TSBN ever lifted this
suspension. Based on the above, I find that Respondent does not
currently have authority under the laws of Texas to dispense controlled
substances.
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
CSA, ``upon a finding that the registrant . . . has had his State
license . . . suspended [or] revoked . . . by competent State authority
and is no longer authorized by State law to engage in the . . .
dispensing of controlled substances.''
[[Page 29575]]
Also, DEA has 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, 76 FR 71371 (2011), pet. for rev. denied,
481 Fed. Appx. 826 (4th Cir. 2012); see also Frederick Marsh Blanton,
43 FR 27616 (1978) (``State authorization to dispense or otherwise
handle controlled substances is a prerequisite to the issuance and
maintenance of a Federal controlled substances registration.'').
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(f). 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 engages in professional practice. See,
e.g., Calvin Ramsey, 76 FR 20034, 20036 (2011); Sheran Arden Yeates,
M.D., 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105
(1993); Bobby Watts, 53 FR 11919, 11920 (1988); Blanton, 43 FR at
27616.
Moreover, because ``the controlling question'' in a proceeding
brought under 21 U.S.C. 824(a)(3) is whether the holder of a
practitioner's registration ``is currently authorized to handle
controlled substances in the [S]tate,'' Hooper, 76 FR at 71371 (quoting
Anne Lazar Thorn, 62 FR 12847, 12848 (1997)), the Agency has also long
held that revocation is warranted even where a practitioner has lost
his state authority by virtue of the State's use of summary process and
the State has yet to provide a hearing to challenge the suspension.
Bourne Pharmacy, 72 FR 18273, 18274 (2007); Wingfield Drugs, 52 FR
27070, 27071 (1987). Thus, it is of no consequence that the TSBN
summarily suspended Respondent's state medical license. What is
consequential is the undisputed fact that Respondent is no longer
currently authorized to dispense controlled substances in Texas, the
State in which he is registered. Accordingly, Respondent is not
entitled to maintain his DEA registration, and I will therefore order
that his registration be revoked.\3\
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\3\ The CALJ received and considered the Government's Motion for
Summary Disposition and Respondent's Brief. In his brief, Respondent
``d[id] not contest that he is subject to a temporary suspension of
his state prescriptive authority.'' Resp. Br. at 1. However,
Respondent argued that he will be presenting evidence at ``a
probable cause hearing to be held on March 6, 2018,'' that his
suspension ``was granted on flawed information and false
allegations,'' and that he ``has not had the chance to defend his
self [sic] against these allegations.'' Id. However, as already
noted above, the TSBN suspended Respondent's nursing license and his
authority to issue prescriptions. GX 2, at 17. As of the date of
this order, Respondent has not filed a motion for reconsideration on
the ground that the TSBN has lifted the suspension. The CALJ
concluded that the fact that the State has yet to provide a hearing
to challenge Respondent's suspension does not change the undisputed
fact that Respondent's state prescriptive authority is suspended.
R.D. at 7-8. Accordingly, if the CALJ had the authority to issue his
conclusion rejecting Respondent's argument, I would have adopted
this conclusion.
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Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of
Registration No. MM2890312, issued to Kevin G. Morgan, RN/APN, be, and
it hereby is, revoked. I further order that any pending application of
Kevin G. Morgan to renew or modify the above registration, or any
pending application of Kevin G. Morgan for any other DEA registration
in the State of Texas, be, and it hereby is, denied. This Order is
effective immediately.\4\
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\4\ For the same reasons which led the TSBN to suspend
Respondent's license and prescriptive authority, I conclude that the
public interest necessitates that this Order be effective
immediately. 21 CFR 1316.67.
Dated: June 14, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-13530 Filed 6-22-18; 8:45 am]
BILLING CODE 4410-09-P
