Michael Thomas Watkins, M.D.; Decision and Order, 27246-27247 [2020-09721]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 85, Number 89 (Thursday, May 7, 2020)]
[Notices]
[Pages 27246-27247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09721]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Michael Thomas Watkins, M.D.; Decision and Order

    On November 4, 2019, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to 
Michael Thomas Watkins, M.D. (hereinafter, Registrant) of Boston, 
Massachusetts. OSC, at 1. The OSC proposed the revocation of 
Registrant's Certificate of Registration No. BW0913132 and the denial 
of ``any applications for renewal or modification of such registration 
and any applications for any other DEA registrations.'' Id. It alleged 
that Registrant is ``without authority to handle controlled substances 
in the Commonwealth of Massachusetts, the state in which . . . [he is] 
registered with the DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3); 21 CFR 
1301.37(b)).
    Specifically, the OSC alleged that, ``[o]n or about May 30, 2019, 
the Massachusetts Board of Registration in Medicine . . . ratified a 
`Voluntary Agreement Not to Practice Medicine' that . . . [Registrant] 
signed on May 22, 2019, in which . . . [he] agreed to `cease . . . 
[his] practice of medicine in the Commonwealth of Massachusetts 
effective immediately.''' OSC, at 1. The OSC further alleged that 
Registrant's ``Massachusetts Controlled Substances License was 
terminated due to the Board action'' and, ``[t]hus, . . . [he is] 
currently without authority to handle controlled substances in . . . 
the state in which . . . [he is] registered with the DEA.'' Id. at 2. 
The OSC concluded that ``DEA must revoke . . . [Registrant's] DEA 
registration based on . . . [his] lack of authority to handle 
controlled substances in the Commonwealth of Massachusetts.'' Id.
    The OSC notified Registrant of the right to request a hearing on 
the allegations or to submit a written statement, while waiving the 
right to a hearing, the procedures for electing each option, and the 
consequences for failing to elect either option. Id. (citing 21 CFR 
1301.43). The OSC also notified Registrant of the opportunity to submit 
a corrective action plan. OSC, at 3 (citing 21 U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated February 24, 2020, a Diversion Investigator 
(hereinafter, DI) assigned to the New England Division, stated that she 
and another DI traveled to the address her investigation identified to 
be Registrant's home on November 12, 2019. Request for Final Agency 
Action dated February 26, 2020 (hereinafter, RFAA), Exhibit 
(hereinafter, EX) 4 (Declaration of Service of Order to Show Cause 
dated February 24, 2020), at 1. The DI stated that she and the other DI 
showed their credentials to the ``woman who answered the door'' and 
asked if Registrant was ``available.'' Id. The woman, according to the 
DI's Declaration, responded that Registrant ``was not home.'' Id. After 
verifying the woman's identity as Registrant's spouse, DI ``explained . 
. . that Registrant was being served with the . . . [OSC] and handed 
the . . . [OSC] to . . . [the woman] to give to Registrant.'' Id. The 
woman signed a receipt for the OSC. Id.; see also id. at EX 4B (signed 
DEA-12 receipt dated November 12, 2019), at 1. According to the DI's 
Declaration, the woman ``stated that she would give the documents to 
Registrant.'' Id. at EX 4, at 1.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on February 26, 2020. In its RFAA, the 
Government represented that ``[a]t least 30 days have passed since the 
time the Order was served on Registrant. Registrant has not requested a 
hearing and has not otherwise corresponded or communicated with DEA 
regarding the Order . . . including the filing of any written statement 
in lieu of a hearing.'' RFAA, at 2. The Government requested that 
Registrant's registration be revoked, based on his having ``no valid 
medical license in Massachusetts'' and his being ``without state 
authority to handle controlled substances in Massachusetts, the state 
where he is registered with DEA.'' Id. at 3.
    Based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government accomplished service of the OSC on Registrant on November 
12, 2019. Dale L. Taylor, M.D., 72 FR 30,855, 30,855 (2007) (concluding 
that service was sufficient when OSC and Immediate Suspension Order 
were left at registrant's residence with his wife); Sajjan Gangappa 
Chikkannaiah, M.D., 54 FR 8608, 8608 (1989) (noticing OSC and Immediate 
Suspension Order to registrant through the Federal Register when 
family, wife, and staff were unable to provide any information on 
registrant's whereabouts); Fredric J. Sloan, M.D., 52 FR 10,957, 10,957 
(1987) (serving registrant's wife with OSC at their residence was 
sufficient notice to registrant).
    I also find that more than thirty days have now passed since the 
Government accomplished service of the OSC. Further, based on the 
Government's written representations and my review of the record, I 
find that neither Registrant, nor anyone purporting to represent 
Registrant, requested a hearing, submitted a written statement while 
waiving Registrant's right to a hearing, or submitted a corrective 
action plan. Accordingly, I find that Registrant has waived the right 
to a hearing and the right to submit a written statement and corrective 
action plan. 21 CFR 1301.43(d) and 21 U.S.C. 824(c)(2)(C). I, 
therefore, issue this Decision and Order based on the record submitted 
by the Government, which constitutes the entire record before me. 21 
CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
BW0913132 at the registered address of Dept. of Surgery-Vascular-MGH, 
15 Parkman Street, ACC 440, Boston, MA 02114. RFAA, EX 1 (Certification 
of Registration Status for DEA No. BW0913132 dated December 4, 2019), 
at 1. Pursuant to this registration, Registrant is authorized to 
dispense controlled substances in schedules II

[[Page 27247]]

through V as a practitioner. Id. Registrant's registration expires on 
May 31, 2020 and is in an ``active pending status.'' Id.

The Status of Registrant's State License

    The Government submitted evidence that Registrant signed a 
``Voluntary Agreement Not to Practice Medicine'' (hereinafter, 
Voluntary Agreement) on May 22, 2019. RFAA, EX 3, at 3. The 
Massachusetts Board of Registration in Medicine (hereinafter, MBRM) 
accepted the Voluntary Agreement on May 23, 2019, and ratified it on 
May 30, 2019. Id. According to the Voluntary Agreement, Registrant 
ceased his practice of medicine in Massachusetts ``effective 
immediately.'' Id. at 1. By signing the Voluntary Agreement, Registrant 
also agreed that ``[a]ny violation of this [Voluntary] Agreement shall 
be prima facie evidence for immediate summary suspension of my license 
to practice medicine.'' Id. According to the records of the MBRM, of 
which I take official notice, the Voluntary Agreement remains in 
effect.\1\ MBRM Physician Search, https://www.mass.gov/orgs/board-of-registration-in-medicine (last visited April 28, 2020).\2\
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    \1\ 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 my finding by filing 
a properly supported motion for reconsideration of finding of fact 
within fifteen 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 Registrant 
files a motion, the Government shall have fifteen calendar days to 
file a response. Any such motion and response may be filed and 
served by email ([email protected]) or by mail to 
Office of the Administrator, Attn: ADDO, Drug Enforcement 
Administration, 8701 Morrissette Drive, Springfield, VA 22152.
    \2\ The same record from the MBRM Physician Search shows that 
Registrant's Massachusetts medical license expired on November 17, 
2019. The RFAA does not address the expiration of Registrant's 
Massachusetts medical license, although evidence submitted with the 
RFAA about the Voluntary Agreement shows that Registrant's medical 
license expired. RFAA, EX 5, at 1.
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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 section 823 of the 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, 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, DEA has held repeatedly that revocation of 
a practitioner's registration is the appropriate sanction whenever she 
is no longer authorized to dispense controlled substances under the 
laws of the state in which she practices. See, e.g., James L. Hooper, 
M.D., 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., 43 FR at 27,617.
    According to the Massachusetts Controlled Substances Act, ``every 
person who . . . dispenses . . . any controlled substance within the 
commonwealth shall . . . register with the commissioner of public 
health, in accordance with his regulations.'' Mass. Gen. Laws ch. 94C, 
Sec.  7(a) (Westlaw, current through Chapter 44 of the 2020 2nd Annual 
Session). Further, the automatic issuance of a controlled substances 
registration to a physician is only required when the physician is 
``duly authorized to practice his profession in the commonwealth.'' 
Mass. Gen. Laws ch. 94C Sec.  7(f) (Westlaw, current through Chapter 44 
of the 2020 2nd Annual Session).
    Here, the undisputed evidence in the record is that Registrant 
voluntarily agreed to cease practicing medicine in Massachusetts.\3\ 
According to Julian A. Abbey, M.D., 72 FR 10,788, 10,788 (2007), the 
MBRM announced by press release dated November 9, 2005, that a 
``consequence'' of a Voluntary Agreement is that the ``physician may 
not prescribe controlled substances.'' This result of a Voluntary 
Agreement is consistent with the provision of Massachusetts statute 
that the automatic issuance of a controlled substances registration to 
a physician is only required when the physician is ``duly authorized to 
practice his profession in the commonwealth.'' Mass. Gen. Laws ch. 94C 
Sec.  7(f) (Westlaw, current through Chapter 44 of the 2020 2nd Annual 
Session). This result of a Voluntary Agreement is also consistent with 
a regulation implementing the Massachusetts Controlled Substances Act 
stating that a ``registration is void if the registrant's underlying 
professional licensure on which the registration is based is suspended 
or revoked.'' 105 Mass. Code Regs. Sec.  700.120 (Westlaw, current 
through Register No. 1413, dated March 20, 2020).\4\
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    \3\ In addition, as already noted, MBRM's online records show 
that Registrant allowed his medical license to expire.
    \4\ Regarding 105 Mass. Code Regs. Sec.  700.120, I note that 
the Massachusetts Controlled Substances Act explicitly authorizes 
the Public Health Commissioner to ``promulgate rules and regulations 
relative to registration and control of the manufacture, 
distribution, dispensing and possession of controlled substances 
within the commonwealth.'' Mass. Gen. Laws ch. 94C, Sec.  6 
(Westlaw, current through Chapter 44 of the 2020 2nd Annual 
Session).
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    In sum, Registrant voluntarily agreed to cease practicing medicine 
in Massachusetts and, as a result, lacks authority in Massachusetts to 
handle controlled substances. He is, therefore, not eligible to 
maintain a DEA registration. Accordingly, I 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. 
BW0913132 issued to Michael Thomas Watkins, M.D. This Order is 
effective June 8, 2020.

Uttam Dhillon,
Acting Administrator.
[FR Doc. 2020-09721 Filed 5-6-20; 8:45 am]
 BILLING CODE 4410-09-P