Martin A. Barrios, M.D.; Decision and Order, 13955-13957 [2019-06836]

Download as PDF Federal Register / Vol. 84, No. 67 / Monday, April 8, 2019 / Notices comments on or objections to the issuance of the proposed registration on or before May 8, 2019. Such persons may also file a written request for a hearing on the application on or before May 8, 2019. ADDRESSES: Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing should also be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette Drive, Springfield, Virginia 22152; and (2) Drug Enforcement Administration, Attn: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. Comments and requests for hearings on applications to import narcotic raw materials are not appropriate. 72 FR 3417 (January 25, 2007). SUPPLEMENTARY INFORMATION: The Attorney General has delegated his authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Assistant Administrator of the DEA Diversion Control Division (‘‘Assistant Administrator’’) pursuant to section 7 of 28 CFR part 0, appendix to subpart R. In accordance with 21 CFR 1301.34(a), this is notice that on February 1, 2019, SpecGx LLC, 3600 North Second Street, Saint Louis, Missouri 63147 applied to be registered as an importer of the following basic classes of controlled substances: jbell on DSK30RV082PROD with NOTICES Controlled substance Drug code Marihuana .............. Phenylacetone ....... Coca Leaves ......... Opium, raw ............ Poppy Straw Concentrate. 7360 8501 9040 9600 9670 Schedule I II II II II The company plans to import the listed controlled substances to bulk manufacture into Active Pharmaceutical VerDate Sep<11>2014 17:45 Apr 05, 2019 Jkt 247001 Ingredients (API) for distribution to its customers. In reference to drug code 7360 (marihuana), the company plans to import synthetic cannabidiol. No other activity for this drug code is authorized for this registration. Placement of these codes onto the company’s registration does not translate into automatic approval of subsequent permit applications to import controlled substances. Approval of permit applications will occur only when the registrant’s business activity is consistent with what is authorized under 21 U.S.C. 952 (a)(2). Authorization will not extend to the import of FDA approved or nonapproved finished dosage forms for commercial sale. Dated: March 21, 2019. John J. Martin, Assistant Administrator. [FR Doc. 2019–06852 Filed 4–5–19; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 19–3] Martin A. Barrios, M.D.; Decision and Order On October 22, 2018, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause to Martin A. Barrios, M.D. (hereinafter, Respondent), of Jackson, Kentucky. Order to Show Cause (hereinafter, OSC), at 1. The Show Cause Order proposes the revocation of Respondent’s Certificate of Registration on the ground that he does ‘‘not have authority to handle controlled substances in the State of Kentucky, the state in which . . . [he is] registered with the DEA.’’ Id. (citing 21 U.S.C. 823(f) and 824(a)(3)). Regarding jurisdiction, the Show Cause Order alleges that Respondent holds DEA Certificate of Registration No. FB0348563 at the registered address of 540 Jett Drive, Jackson, Kentucky 41339. OSC, at 1. This registration is alleged to authorize Respondent to dispense controlled substances in schedules II through V as a practitioner. The Show Cause Order alleges that this registration expires on July 31, 2019. Id. The substantive ground for the proceeding, as alleged in the Show Cause Order, is that Respondent is ‘‘without authority to handle controlled substances in the State of Kentucky, the state in which . . . [he is] registered PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 13955 . . . with the DEA.’’ Id. at 2. Specifically, the Show Cause Order alleges that, on or about May 18, 2018, the Commonwealth of Kentucky Board of Medical Licensure (hereinafter, Kentucky Board) issued an Amended Emergency Order of Restriction prohibiting Respondent from ‘‘prescribing, dispensing, or otherwise professionally utilizing controlled substances until the Board’s hearing panel has finally resolved the Complaint after receipt of the court documents resolving the criminal charges in the [criminal] indictment . . . or until such further Order of the Board.’’ Id. The Show Cause Order notifies Respondent of his right to request a hearing on the allegations or to submit a written statement while waiving his right to a hearing, the procedures for electing each option, and the consequences for failing to elect either option. Id. at 2–3 (citing 21 CFR 1301.43). The Show Cause Order also notifies Respondent of the opportunity to submit a corrective action plan. OSC, at 3 (citing 21 U.S.C. 824(c)(2)(C)). By letter dated November 12, 2018, Respondent timely requested a hearing.1 Hearing Request, at 1. According to the Hearing Request, Respondent’s ‘‘interest in the proceedings is to defend . . . [his] innocence.’’ Id. Respondent’s Hearing Request ‘‘acknowledge[s] . . . the actions taken by both the Kentucky medical board and American Board of [S]urgery.’’ Id. at 2. It states that Respondent is ‘‘in the process of appealing the American Board of Surgery’s action.’’ Id. The Office of Administrative Law Judges put the matter on the docket and assigned it to Administrative Law Judge Charles Wm. Dorman (hereinafter, ALJ). The ALJ issued a Briefing Schedule for Lack of State Authority Allegations dated November 16, 2018. The Government timely complied with the Briefing Schedule by filing a Motion for Summary Disposition on November 30, 2018 (hereinafter, Government Motion). Order Granting Summary Disposition and Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision dated December 20, 2018 (hereinafter, R.D.), at 2. In its motion, the Government stated that Respondent lacks authority to handle controlled substances in Kentucky, the State in which he is registered with the DEA and argued that, therefore, DEA must revoke his registration. Id. Respondent did not 1 The Hearing Request was filed on November 15, 2018. Briefing Schedule for Lack of State Authority Allegations dated November 16, 2018, at 1. I, thus, find that the Government’s service of the OSC was adequate. E:\FR\FM\08APN1.SGM 08APN1 13956 Federal Register / Vol. 84, No. 67 / Monday, April 8, 2019 / Notices answer the Government Motion.2 Id. at 4. He did, however, ‘‘address the order to show cause’’ in his Hearing Request. Hearing Request, at 2. I reviewed and considered the Hearing Request as part of, and along with, the entire record before me. The ALJ granted the Government Motion finding that ‘‘there is no dispute of material fact necessitating an adversarial hearing.’’ R.D., at 10. The ALJ recommended that Respondent’s registration and DATA-Waiver Identification Number be revoked because ‘‘the fact remains that Kentucky has stripped . . . [Respondent] of the ability to handle controlled substances.’’ Id. at 8. By letter dated January 16, 2019, the ALJ certified and transmitted the record to me for final Agency action. In that letter, the ALJ advised that neither party filed exceptions and that the time period to do so had expired. I issue this Decision and Order based on the entire record before me. 21 CFR 1301.43(e). I make the following findings of fact. Findings of Fact Respondent’s DEA Registration Respondent is the holder of DEA Certificate of Registration No. FB0348563, pursuant to which he is authorized to dispense controlled substances in schedules II through V as a practitioner-DW/275, at the registered address of 540 Jett Drive, Jackson, Kentucky 41339. Government Motion, Exh. 1 (Certification of Registration History), at 1. Respondent’s registration expires on July 31, 2019. Id. jbell on DSK30RV082PROD with NOTICES The Status of Respondent’s State License By Amended Emergency Order of Restriction dated May 18, 2018, the Kentucky Board ordered that Respondent’s license to practice medicine in the Commonwealth of Kentucky be restricted. Government Motion, Exh. 3 (Amended Emergency Order of Restriction), at 5. The restriction prohibits Respondent ‘‘from prescribing, dispensing, or otherwise professionally utilizing controlled substances until the Board’s hearing panel has finally resolved the Complaint after receipt of the court documents resolving the criminal charges in the indictment . . . or until such further Order of the Board.’’ Id. According to the online records of the 2 I agree that the Office of Administrative Law Judges properly served Respondent on all occasions. R.D., at 4–5, 11. The Certificate of Service for the Government Motion certifies that the Government served Respondent at the physical and electronic addresses he requested in his Hearing Request. Hearing Request, at 1. VerDate Sep<11>2014 17:45 Apr 05, 2019 Jkt 247001 Commonwealth of Kentucky, of which I take official notice, I find that Respondent’s medical license is still subject to this controlled substances restriction.3 Commonwealth of Kentucky Board of Medical Licensure Physician Profile/Verification of License, https://kbml.ky.gov/physician/ Pages/Physician-Profile-Verification-ofPhysician-License.aspx (last visited March 18, 2019). Accordingly, I find that Respondent currently is without authority to handle controlled substances in the Commonwealth of Kentucky, the State in which he is registered. 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 Controlled Substances Act (hereinafter, 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 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 (1978). 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 3 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, Respondent may dispute my finding by filing a properly supported motion for reconsideration within 15 calendar days of the date of this Order. Any such motion shall be filed with the Office of the Administrator and a copy shall be served on the Government. In the event Respondent files a motion, the Government shall have 15 calendar days to file a response. PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 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, 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, M.D., supra, 76 FR at 71,371–72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 (2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby Watts, M.D., 53 FR 11,919, 11,920 (1988); Frederick Marsh Blanton, M.D., supra, 43 FR at 27,617. According to the Kentucky ‘‘Controlled Substances’’ statute, ‘‘No person shall dispense, prescribe, distribute, or administer any controlled substance except as authorized by law.’’ 4 Ky. Rev. Stat. Ann. § 218A.1404(3) (Westlaw, current through the end of the 2018 regular session). Here, there is no dispute about the material fact that the Kentucky Board restricted Respondent’s medical license by prohibiting him from prescribing, dispensing, or otherwise professionally utilizing controlled substances. Hearing Request, at 2 (‘‘I first want to acknowledge the indictment in Madison County Kentucky and the actions taken by both the Kentucky medical board and American Board of [S]urgery.’’). Based on this uncontroverted fact, Kentucky law, and past Agency decisions, I find that Respondent is currently without authority to dispense controlled substances under the laws of Kentucky, the State in which he is registered. See Judson J. Somerville, M.D., 82 FR 21,408, 21,410 (2017) (revoking the registration of a physician whose Texas Medical License was temporarily suspended by the Texas Medical Board Disciplinary Panel, finding that the physician did not currently have authority under the laws of Texas to dispense controlled substances, and rejecting as ‘‘of no consequence’’ physician’s argument that his license 4 ‘‘Dispenser’’ is a ‘‘person who lawfully dispenses a Schedule II, III, IV, or V controlled substance to or for the use of an ultimate user.’’ Ky. Rev. Stat. Ann. § 218A.010(11) (Westlaw, current through the end of the 2018 regular session). E:\FR\FM\08APN1.SGM 08APN1 Federal Register / Vol. 84, No. 67 / Monday, April 8, 2019 / Notices was suspended through summary process and that he may prevail at hearing). I will therefore order that Respondent’s registration be revoked. In sum, Respondent currently lacks authority in Kentucky to handle controlled substances. He is not, therefore, eligible for a DEA registration in Kentucky. As such, I will order that Respondent’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 order that DEA Certificate of Registration No. FB0348563 issued to Martin A. Barrios, M.D., be, and it hereby is, revoked.5 This Order is effective May 8, 2019. Dated: March 18, 2019. Uttam Dhillon, Acting Administrator. [FR Doc. 2019–06836 Filed 4–5–19; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 19–7] jbell on DSK30RV082PROD with NOTICES Craig M. Weingrow, M.D.; Decision and Order On November 7, 2018, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Craig M. Weingrow, M.D. (Respondent), of Las Vegas, Nevada. The Show Cause Order proposed the revocation of Respondent’s DEA Certificate of Registration No. FW3352539 on the ground that he does ‘‘not have authority to handle controlled substances in Nevada, the [S]tate in which [he is] registered.’’ 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. FW3352539, pursuant to which he is authorized to dispense controlled substances as a practitioner in schedules II through V, at the registered address of 7200 Smoke Ranch Road, Suite #120, Las Vegas, Nevada. Id. The Order also alleged that this registration does not expire until May 31, 2021. Id. Regarding the substantive grounds for the proceeding, the Show Cause Order alleged that effective July 18, 2018, the Nevada State Board of Pharmacy (NSBP) 5 This revocation Order automatically withdraws XB0348563. See 21 CFR 1301.28. VerDate Sep<11>2014 17:45 Apr 05, 2019 Jkt 247001 revoked Respondent’s Nevada ‘‘Controlled Substance Registration’’ and his Nevada ‘‘Practitioner Dispensing Registration.’’ Id. The Show Cause Order also alleged that on September 18, 2018, Respondent entered into a Settlement Agreement with the Board of Medical Examiners of the State of Nevada (NBME) ‘‘whereby [he was] placed on probation for a period of 36 months, and during which [he is] prohibited from prescribing or dispensing controlled substances.’’ Id. at 1–2. As a result, the Order alleged that Respondent ‘‘currently lack[s] the authority to handle controlled substances in Nevada.’’ Id. at 2. Based on his ‘‘lack of authority to [dispense] controlled substances in . . . Nevada,’’ the Order asserted that ‘‘DEA must revoke’’ Respondent’s registration. Id. (citing 21 U.S.C. 823(f); 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. (citing 21 CFR 1301.43). The Order also notified Respondent of his right to submit a corrective action plan. Id. at 3 (citing 21 U.S.C. 824(c)(2)(C)). On December 10, 2018, Respondent, through counsel, filed a letter requesting a hearing on the allegations and indicating that the Show Cause Order ‘‘was received on November 13, 2018.’’ Dec. 10, 2018 Letter from Respondent’s Counsel to Hearing Clerk (hereinafter, Hearing Request), at 1. In his Hearing Request, Respondent specifically contends that suspension, rather than revocation, ‘‘is an appropriate sanction in this case’’ because he had not committed a crime and neither the conduct set forth in the Settlement Agreement with the NBME nor the findings of the NSBP ‘‘warrant a revocation.’’ Id. at 2–4. The matter was then placed on the docket of the Office of Administrative Law Judges and assigned to Chief Administrative Law Judge John J. Mulrooney, II (hereinafter, CALJ). On December 11, 2018, the CALJ issued an Order directing the Government to file its ‘‘evidence to support the allegation that the Respondent lacks state authority to handle controlled substances’’ and ‘‘any Government motion for summary disposition’’ no later than December 28, 2018. Order Directing the Filing of Government Evidence of Lack of State Authority Allegation and Briefing Schedule, at 1. The CALJ issued a separate Order directing Respondent to file his response to any summary disposition PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 13957 motion no later than January 14, 2019. Order Granting Unopposed Motion for Enlargement of Time, at 1. On December 27, 2018, the Government filed its Motion for Summary Disposition. In its Motion, the Government argued that Respondent currently lacks authority to handle controlled substances in Nevada because the NSBP revoked Respondent’s Nevada Controlled Substance Registration and Nevada Practitioner Dispensing Registration effective July 18, 2018. Government’s Motion for Summary Disposition (hereinafter Government’s Motion or Govt. Mot.) at 1, 5. The Government also alleged that neither registration has been reinstated. Id. In addition, the Government alleged that the NBME placed Respondent’s Nevada medical license on probation for 36 months as part of a Settlement Agreement and that, as part of this Agreement, Respondent ‘‘has been prohibited from prescribing or dispensing controlled substances’’ during this period. Id. On January 14, 2019, Respondent filed his ‘‘NonOpposition’’ to the Government’s Motion, stating that he no longer opposes the Government’s Motion based upon his review of the Government’s Motion and past DEA and federal court decisions. Respondent’s NonOpposition to Government’s Motion for Summary Disposition, at 1. After considering these pleadings, the CALJ issued an Order on January 16, 2019, recommending that I find that it is ‘‘undisputed that the Respondent lacks the state authority to handle controlled substances.’’ Order Granting the Government’s Motion for Summary Disposition and Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision of the Administrative Law Judge (hereinafter ‘‘Recommended Decision’’ or ‘‘R.D.’’), at 4. As a result, the ALJ granted the Government’s motion for summary disposition and recommended that I revoke Respondent’s DEA registration and deny any pending applications for renewal. Id. at 5. Neither party filed exceptions to the ALJ’s Recommended Decision. Thereafter, the record was forwarded to my Office for Final Agency Action. Having reviewed the record, I find that Respondent is currently without authority to handle controlled substances in Nevada, the State in which he holds his registration with the Agency, and thus he is not entitled to maintain his DEA registration. I adopt the ALJ’s recommendation that I revoke Respondent’s registration. I make the following factual findings. E:\FR\FM\08APN1.SGM 08APN1

Agencies

[Federal Register Volume 84, Number 67 (Monday, April 8, 2019)]
[Notices]
[Pages 13955-13957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06836]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 19-3]


Martin A. Barrios, M.D.; Decision and Order

    On October 22, 2018, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause to Martin A. Barrios, M.D. 
(hereinafter, Respondent), of Jackson, Kentucky. Order to Show Cause 
(hereinafter, OSC), at 1. The Show Cause Order proposes the revocation 
of Respondent's Certificate of Registration on the ground that he does 
``not have authority to handle controlled substances in the State of 
Kentucky, the state in which . . . [he is] registered with the DEA.'' 
Id. (citing 21 U.S.C. 823(f) and 824(a)(3)).
    Regarding jurisdiction, the Show Cause Order alleges that 
Respondent holds DEA Certificate of Registration No. FB0348563 at the 
registered address of 540 Jett Drive, Jackson, Kentucky 41339. OSC, at 
1. This registration is alleged to authorize Respondent to dispense 
controlled substances in schedules II through V as a practitioner. The 
Show Cause Order alleges that this registration expires on July 31, 
2019. Id.
    The substantive ground for the proceeding, as alleged in the Show 
Cause Order, is that Respondent is ``without authority to handle 
controlled substances in the State of Kentucky, the state in which . . 
. [he is] registered . . . with the DEA.'' Id. at 2. Specifically, the 
Show Cause Order alleges that, on or about May 18, 2018, the 
Commonwealth of Kentucky Board of Medical Licensure (hereinafter, 
Kentucky Board) issued an Amended Emergency Order of Restriction 
prohibiting Respondent from ``prescribing, dispensing, or otherwise 
professionally utilizing controlled substances until the Board's 
hearing panel has finally resolved the Complaint after receipt of the 
court documents resolving the criminal charges in the [criminal] 
indictment . . . or until such further Order of the Board.'' Id.
    The Show Cause Order notifies Respondent of his right to request a 
hearing on the allegations or to submit a written statement while 
waiving his right to a hearing, the procedures for electing each 
option, and the consequences for failing to elect either option. Id. at 
2-3 (citing 21 CFR 1301.43). The Show Cause Order also notifies 
Respondent of the opportunity to submit a corrective action plan. OSC, 
at 3 (citing 21 U.S.C. 824(c)(2)(C)).
    By letter dated November 12, 2018, Respondent timely requested a 
hearing.\1\ Hearing Request, at 1. According to the Hearing Request, 
Respondent's ``interest in the proceedings is to defend . . . [his] 
innocence.'' Id. Respondent's Hearing Request ``acknowledge[s] . . . 
the actions taken by both the Kentucky medical board and American Board 
of [S]urgery.'' Id. at 2. It states that Respondent is ``in the process 
of appealing the American Board of Surgery's action.'' Id.
---------------------------------------------------------------------------

    \1\ The Hearing Request was filed on November 15, 2018. Briefing 
Schedule for Lack of State Authority Allegations dated November 16, 
2018, at 1. I, thus, find that the Government's service of the OSC 
was adequate.
---------------------------------------------------------------------------

    The Office of Administrative Law Judges put the matter on the 
docket and assigned it to Administrative Law Judge Charles Wm. Dorman 
(hereinafter, ALJ). The ALJ issued a Briefing Schedule for Lack of 
State Authority Allegations dated November 16, 2018. The Government 
timely complied with the Briefing Schedule by filing a Motion for 
Summary Disposition on November 30, 2018 (hereinafter, Government 
Motion). Order Granting Summary Disposition and Recommended Rulings, 
Findings of Fact, Conclusions of Law, and Decision dated December 20, 
2018 (hereinafter, R.D.), at 2. In its motion, the Government stated 
that Respondent lacks authority to handle controlled substances in 
Kentucky, the State in which he is registered with the DEA and argued 
that, therefore, DEA must revoke his registration. Id. Respondent did 
not

[[Page 13956]]

answer the Government Motion.\2\ Id. at 4. He did, however, ``address 
the order to show cause'' in his Hearing Request. Hearing Request, at 
2. I reviewed and considered the Hearing Request as part of, and along 
with, the entire record before me.
---------------------------------------------------------------------------

    \2\ I agree that the Office of Administrative Law Judges 
properly served Respondent on all occasions. R.D., at 4-5, 11. The 
Certificate of Service for the Government Motion certifies that the 
Government served Respondent at the physical and electronic 
addresses he requested in his Hearing Request. Hearing Request, at 
1.
---------------------------------------------------------------------------

    The ALJ granted the Government Motion finding that ``there is no 
dispute of material fact necessitating an adversarial hearing.'' R.D., 
at 10. The ALJ recommended that Respondent's registration and DATA-
Waiver Identification Number be revoked because ``the fact remains that 
Kentucky has stripped . . . [Respondent] of the ability to handle 
controlled substances.'' Id. at 8. By letter dated January 16, 2019, 
the ALJ certified and transmitted the record to me for final Agency 
action. In that letter, the ALJ advised that neither party filed 
exceptions and that the time period to do so had expired.
    I issue this Decision and Order based on the entire record before 
me. 21 CFR 1301.43(e). I make the following findings of fact.

Findings of Fact

Respondent's DEA Registration

    Respondent is the holder of DEA Certificate of Registration No. 
FB0348563, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V as a practitioner-DW/275, at the 
registered address of 540 Jett Drive, Jackson, Kentucky 41339. 
Government Motion, Exh. 1 (Certification of Registration History), at 
1. Respondent's registration expires on July 31, 2019. Id.

The Status of Respondent's State License

    By Amended Emergency Order of Restriction dated May 18, 2018, the 
Kentucky Board ordered that Respondent's license to practice medicine 
in the Commonwealth of Kentucky be restricted. Government Motion, Exh. 
3 (Amended Emergency Order of Restriction), at 5. The restriction 
prohibits Respondent ``from prescribing, dispensing, or otherwise 
professionally utilizing controlled substances until the Board's 
hearing panel has finally resolved the Complaint after receipt of the 
court documents resolving the criminal charges in the indictment . . . 
or until such further Order of the Board.'' Id. According to the online 
records of the Commonwealth of Kentucky, of which I take official 
notice, I find that Respondent's medical license is still subject to 
this controlled substances restriction.\3\ Commonwealth of Kentucky 
Board of Medical Licensure Physician Profile/Verification of License, 
https://kbml.ky.gov/physician/Pages/Physician-Profile-Verification-of-Physician-License.aspx (last visited March 18, 2019).
---------------------------------------------------------------------------

    \3\ 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, Respondent may dispute my finding by filing 
a properly supported motion for reconsideration within 15 calendar 
days of the date of this Order. Any such motion shall be filed with 
the Office of the Administrator and a copy shall be served on the 
Government. In the event Respondent files a motion, the Government 
shall have 15 calendar days to file a response.
---------------------------------------------------------------------------

    Accordingly, I find that Respondent currently is without authority 
to handle controlled substances in the Commonwealth of Kentucky, the 
State in which he is registered.

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 
Controlled Substances Act (hereinafter, 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 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 
(4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 
(1978).
    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, 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, 
M.D., supra, 76 FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 
39,130, 39,131 (2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 
(1993); Bobby Watts, M.D., 53 FR 11,919, 11,920 (1988); Frederick Marsh 
Blanton, M.D., supra, 43 FR at 27,617.
    According to the Kentucky ``Controlled Substances'' statute, ``No 
person shall dispense, prescribe, distribute, or administer any 
controlled substance except as authorized by law.'' \4\ Ky. Rev. Stat. 
Ann. Sec.  218A.1404(3) (Westlaw, current through the end of the 2018 
regular session). Here, there is no dispute about the material fact 
that the Kentucky Board restricted Respondent's medical license by 
prohibiting him from prescribing, dispensing, or otherwise 
professionally utilizing controlled substances. Hearing Request, at 2 
(``I first want to acknowledge the indictment in Madison County 
Kentucky and the actions taken by both the Kentucky medical board and 
American Board of [S]urgery.''). Based on this uncontroverted fact, 
Kentucky law, and past Agency decisions, I find that Respondent is 
currently without authority to dispense controlled substances under the 
laws of Kentucky, the State in which he is registered. See Judson J. 
Somerville, M.D., 82 FR 21,408, 21,410 (2017) (revoking the 
registration of a physician whose Texas Medical License was temporarily 
suspended by the Texas Medical Board Disciplinary Panel, finding that 
the physician did not currently have authority under the laws of Texas 
to dispense controlled substances, and rejecting as ``of no 
consequence'' physician's argument that his license

[[Page 13957]]

was suspended through summary process and that he may prevail at 
hearing). I will therefore order that Respondent's registration be 
revoked.
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    \4\ ``Dispenser'' is a ``person who lawfully dispenses a 
Schedule II, III, IV, or V controlled substance to or for the use of 
an ultimate user.'' Ky. Rev. Stat. Ann. Sec.  218A.010(11) (Westlaw, 
current through the end of the 2018 regular session).
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    In sum, Respondent currently lacks authority in Kentucky to handle 
controlled substances. He is not, therefore, eligible for a DEA 
registration in Kentucky. As such, I will order that Respondent'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 order that DEA Certificate of Registration No. 
FB0348563 issued to Martin A. Barrios, M.D., be, and it hereby is, 
revoked.\5\ This Order is effective May 8, 2019.
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    \5\ This revocation Order automatically withdraws XB0348563. See 
21 CFR 1301.28.

    Dated: March 18, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-06836 Filed 4-5-19; 8:45 am]
 BILLING CODE 4410-09-P