Barbara D. Marino, M.D.; Decision and Order, 63292-63294 [2020-22214]

Download as PDF 63292 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the Federal Register. There will be further opportunities for comment on the public interest after the issuance of any final initial determination in this investigation. Any written submissions on other issues must also be filed by no later than the close of business, eight calendar days after publication of this notice in the Federal Register. Complainant may file replies to any written submissions no later than three calendar days after the date on which any initial submissions were due. Any submissions and replies filed in response to this Notice are limited to five (5) pages in length, inclusive of attachments. Persons filing written submissions must file the original document electronically on or before the deadlines stated above. Submissions should refer to the docket number (‘‘Docket No. 3498’’) in a prominent place on the cover page and/or the first page. (See Handbook for Electronic Filing Procedures, Electronic Filing Procedures).1 Please note the Secretary’s Office will accept only electronic filings during this time. Filings must be made through the Commission’s Electronic Document Information System (EDIS, https://edis.usitc.gov.) No in-person paper-based filings or paper copies of any electronic filings will be accepted until further notice. Persons with questions regarding filing should contact the Secretary at EDIS3Help@ usitc.gov. Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment. See 19 CFR 201.6. Documents for which confidential treatment by the Commission is properly sought will be treated accordingly. All information, including confidential business information and documents for which confidential treatment is properly sought, submitted to the Commission for purposes of this Investigation may be disclosed to and used: (i) By the Commission, its employees and Offices, and contract personnel (a) for developing or maintaining the records of this or a related proceeding, or (b) in internal investigations, audits, reviews, 1 Handbook for Electronic Filing Procedures: https://www.usitc.gov/documents/handbook_on_ filing_procedures.pdf. VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 and evaluations relating to the programs, personnel, and operations of the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. government employees and contract personnel,2 solely for cybersecurity purposes. All nonconfidential written submissions will be available for public inspection at the Office of the Secretary and on EDIS.3 This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission’s Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)). By order of the Commission. Issued: October 1, 2020. Lisa Barton, Secretary to the Commission. [FR Doc. 2020–22104 Filed 10–6–20; 8:45 am] BILLING CODE 7020–02–P DEPARTMENT OF JUSTICE Drug Enforcement Administration Barbara D. Marino, M.D.; Decision and Order On June 12, 2020, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to Barbara D. Marino, M.D. (hereinafter, Registrant), of Houston, Texas. Government’s Request for Final Agency Action Exhibit (hereinafter, RFAAX) 4 (OSC), at 1. The OSC proposed the revocation of Registrant’s Certificate of Registration No. BD0903244. It alleged that Registrant is without ‘‘authority to handle controlled substances in Texas, the state in which [Registrant] is registered with DEA.’’ Id. at 1–2 (citing 21 U.S.C. 802(21), 823(f), and 824(a)(3)). Specifically, the OSC alleged that Registrant’s state license to practice medicine in Texas has been temporarily suspended. Id. The OSC further alleged that, because Registrant’s Texas medical license is suspended, Registrant lacks the authority to handle controlled substances in Texas, and is, therefore, ineligible to maintain a DEA registration. Id. The OSC notified Registrant of the right to either request a hearing on the allegations or submit a written statement in lieu of exercising the right to a hearing, the procedures for electing 2 All contract personnel will sign appropriate nondisclosure agreements. 3 Electronic Document Information System (EDIS): https://edis.usitc.gov. PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 each option, and the consequences for failing to elect either option. Id. at 2 (citing 21 CFR 1301.43). The OSC also notified Registrant of the opportunity to submit a corrective action plan. Id. at 2– 3 (citing 21 U.S.C. 824(c)(2)(C)). I. Adequacy of Service A DEA Task Force Officer (hereinafter, TFO) declared that he personally served Registrant with the OSC on July 9, 2020. RFAAX 9, at 3 (Declaration of TFO). During the service of the OSC, Registrant signed a Form DEA–12 documenting Registrant’s acknowledgement that she had received the OSC. RFAAX 5; RFAAX 9, at 3. The Government forwarded its Request for Final Agency Action (hereinafter, RFAA), along with the evidentiary record, to this office on August 27, 2020. In its RFAA, the Government represents that ‘‘neither the [Houston Field Division] nor the DEA Office of Administrative Law Judges had received any written correspondence, telephonic communication, or any other communication from Registrant, or any representative on her behalf in response to the [OSC].’’ RFAA, at 4 (citing RFAAX 6 (Email from Office of Administrative Law Judges), 7 (Email from Houston Division Office), 9, and 10 (Declaration of DEA Diversion Investigator)). Based on the TFO’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 July 9, 2020. 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, 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). II. Findings of Fact A. Registrant’s DEA Registration Registrant is the holder of DEA Certificate of Registration No. BD0903244 at the registered address of 8188 Long Point Road, Houston, Texas 77055. RFAAX 1 (Certificate of E:\FR\FM\07OCN1.SGM 07OCN1 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices Registration) and 2 (Certification of Registration History, dated August 10, 2020). Pursuant to this registration, Registrant is authorized to dispense controlled substances in schedules II–V as a practitioner DW/275. RFAAX 2. B. The Status of Registrant’s State License On February 7, 2020, the Texas Medical Board (hereinafter, Board) issued an Order of Temporary Suspension (hereinafter, Order). RFAAX 3. According to the Order, Registrant failed to meet the standard of care and documentation standards for six patients. Id. at 3. Specifically, the Order stated that Registrant ‘‘failed to obtain or perform an adequate history or assessment of the patients by neglecting to obtain prior treating provider’s records, a history of prior treatments, and the patient’s response to treatment,’’ or ‘‘conducting and documenting an adequate examination of the patient’s source of pain’’; ‘‘failed to have or document adequate medical rationale or evidence of therapeutic benefit of the Norco and Soma that [Registrant] prescribed to each of the six patients’’; and ‘‘failed to monitor the patients for therapeutic benefit, diversion, or abuse of the medications she prescribed, including controlled substances.’’ Id. The Order also stated that Registrant had ten medical malpractice claims/ lawsuits between 2005 and 2013, entered into an Agreed Order with the Board in 2006, and entered into a Mediated Agreed Order in 2012, resolving four investigations into Registrant’s cosmetic surgery practice. Id. at 1–2. The Order further stated that the Board entered an Order of Temporary Suspension Without Notice suspending Registrant’s license after finding out that Registrant was ‘‘arrested and indicted for conspiracy to unlawfully distribute and dispense controlled substances and aiding and abetting the same . . . in the United States District Court for the Southern District of Texas.’’ Id. at 2. In the Order, the Board found that Registrant’s conduct ‘‘shows that [Registrant’s] continued practice of medicine would constitute a continuing threat to the public welfare, as defined by Section 151.002(a)(2) of the [Medical Practice] Act.’’ Id. at 7. The Board, therefore, ordered that Registrant’s Texas medical license be temporarily suspended effective February 7, 2020, and stated that the ‘‘Order shall remain in effect until it is superseded by an Order of the Board.’’ Id. at 9. According to Texas’s online records, of which I take official notice, Registrant’s medical license is still VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 suspended.1 Texas Medical Board, Look Up a License, available at https:// reg.tmb.state.tx.us/page/look-up-alicense (last visited September 24, 2020). Accordingly, I find that Registrant currently is not licensed to engage in the practice of medicine in Texas, the state in which Registrant is registered with DEA. III. 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, 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 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 (dea.addo.attorneys@dea.usdoj.gov). PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 63293 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, 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, 43 FR at 27,617. Under the Texas Controlled Substances Act, a practitioner in Texas ‘‘may not prescribe, dispense, deliver, or administer a controlled substance or cause a controlled substance to be administered under the practitioner’s direction and supervision except for a valid medical purpose and in the course of medical practice.’’ Tex. Health and Safety Code Ann. § 481.071 (West 2019). The Texas Controlled Substances Act defines ‘‘practitioner,’’ in relevant part, as ‘‘a physician . . . licensed, registered, or otherwise permitted to distribute, dispense, analyze, conduct research with respect to, or administer a controlled substance in the course of professional practice or research in this state.’’ Id. at § 481.002 (39)(A). Further, under the Texas Medical Practice Act, a person must hold a license to practice medicine in Texas, Tex. Occupations Code Ann. § 155.001 (West 2019) (‘‘A person may not practice medicine in this state unless the person holds a license issued under [the Medical Practice Act].’’); see also id. at § 151.002 (‘‘ ‘Physician’ means a person licensed to practice medicine in this state.’’), and ‘‘[a] person commits an offense if the person practices medicine in [Texas] in violation of’’ the Act, id. at § 165.152(a). Here, the undisputed evidence in the record is that Registrant currently lacks authority to practice medicine in Texas. I, therefore, find that Registrant is currently without authority to dispense controlled substance in Texas, the state in which she is registered with DEA, and I will order that Registrant’s DEA registration be revoked. IV. 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. BD0903244 issued to Barbara D. Marino, M.D. Further, pursuant to 28 CFR 0.100(b) and the E:\FR\FM\07OCN1.SGM 07OCN1 63294 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices authority vested in me by 21 U.S.C. 823(f), I hereby deny any pending application of Barbara D. Marino, M.D. to renew or modify this registration, as well as any pending application of Barbara D. Marino, M.D. for registration in Texas. This Order is effective November 6, 2020. Timothy J. Shea, Acting Administrator. [FR Doc. 2020–22214 Filed 10–6–20; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration Jacqueline G. Curtis, M.D.; Decision and Order On December 18, 2019, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, Government), issued an Order to Show Cause (hereinafter, OSC) to Jacqueline G. Curtis, M.D. (hereinafter, Registrant) of Jackson, Mississippi. OSC, at 1. The OSC proposed the revocation of Registrant’s Certificate of Registration No. FC8151475. It alleged that Registrant is without ‘‘authority to handle controlled substances in the State of Mississippi, the state in which [Registrant is] registered with the DEA.’’ Id. (citing 21 U.S.C. 823(f) and 824(a)(3)). Specifically, the OSC alleged that the Mississippi State Board of Medical Licensure (hereinafter, MSBML) issued an Order of Temporary Suspension on November 6, 2019. Id. at 2. This Order, according to the OSC, suspended Registrant’s license to practice medicine. Id. at 2. The OSC further stated that Registrant’s license to practice medicine had expired on November 8, 2019, and remained expired; therefore, the OSC concluded that Registrant ‘‘currently lack[s] authority to handle controlled substances in Mississippi.’’ 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. at 2 (citing 21 CFR 1301.43). The OSC also notified Registrant of the opportunity to submit a corrective action plan. Id. at 3 (citing 21 U.S.C. 824(c)(2)(C)). Adequacy of Service In a Declaration dated April 24, 2020, a Diversion Investigator (hereinafter, DI 1) stated that her investigation revealed VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 that although Registrant was registered with DEA to handle controlled substances in Mississippi, Registrant was separately licensed to practice medicine in the State of Texas and also resides in that state. Request for Final Agency Action (hereinafter, RFAA) Exhibit (hereinafter, RFAAX) 11 (Declaration of DI 1), at 2–3. As a result, and shortly after the December 18th issuance of the OSC, DI 1 contacted another Diversion Investigator (hereinafter, DI 2) of the agency’s Dallas Field Division to request that office’s assistance with service of the OSC on Registrant. Id. In a Declaration dated April 24, 2020, DI 2 stated that he and DEA Special Agent travelled to 4834 Worth Street, Dallas, Texas 75246 to meet with Registrant and serve her with the OSC on December 30, 2019. RFAAX 12 (Declaration of DI 2), at 2. Once at the above location, DEA personnel displayed their credentials and introduced themselves. Id. Based on a previous interaction, DI 2 stated that he recognized the individual who answered the door as the Registrant. Id. Registrant signed a DEA Form 12, Receipt for Cash or Other Items, to acknowledge her receipt of the Show Cause Order. Id.; see also RFAAX 6 (DEA Form 12). The Government forwarded its RFAA, along with the evidentiary record, to this office on May 14, 2020. In its RFAA, the Government represents that it ‘‘has not received any written correspondence, telephonic communication, or any other communication from Registrant, or any representative on her behalf in response to the [OSC].’’ RFAA, at 4 (citing RFAAX 7, 8, and 9). The Government requests that Registrant’s Certificate of Registration be revoked pursuant to 21 U.S.C. 823(f) and 824(a)(3). Id. 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 December 30, 2019. 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, 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 PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 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. FC8151475 at the registered address of the Clarity Clinic, 2500 N State Street, Jackson, Mississippi 39216. RFAAX 2 (Certification of Registration History). Pursuant to this registration, Registrant is authorized to dispense controlled substances in schedules II, IIN, III, IIIN, IV and V as a practitioner. Id. The Status of Registrant’s State License On November 6, 2019, the MSBML issued a Determination of Need for Temporary Suspension (hereinafter, Suspension). RFAAX 3, at 3–4. According to the Suspension, Registrant’s ‘‘continued practice o[f] unrestricted of medicine . . . would constitute an immediate danger to the public,’’ and the Suspension suspended Registrant’s license to practice medicine effective immediately. Id. After receiving the Suspension, Registrant agreed in writing to ‘‘voluntarily surrender her medical license [ ] to practice medicine in the State of Mississippi . . . effective immediately upon execution.’’ 1 RFAAX 4 (Surrender of Medical License (hereinafter, Surrender)), at 1. According to Mississippi’s online records, of which I take official notice, Registrant’s license remains ‘‘inactive’’ and provides links to the Suspension and Surrender.2 Mississippi State Board of Medical Licensure, https:// 1 The Surrender was signed by Registrant and dated December ll 2019. DI 1 stated in her declaration that she ‘‘learned that it was accepted by the MSBML with an effective date of January 16, 2020.’’ RFAAX 11, at 2. Based on the assertions of the DI and the evidence on the MSBML website, I find that the facts support that the Surrender was executed and is currently in effect. 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 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 to dea.addo.attorneys@dea.usdoj.gov. E:\FR\FM\07OCN1.SGM 07OCN1

Agencies

[Federal Register Volume 85, Number 195 (Wednesday, October 7, 2020)]
[Notices]
[Pages 63292-63294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22214]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Barbara D. Marino, M.D.; Decision and Order

    On June 12, 2020, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to 
Barbara D. Marino, M.D. (hereinafter, Registrant), of Houston, Texas. 
Government's Request for Final Agency Action Exhibit (hereinafter, 
RFAAX) 4 (OSC), at 1. The OSC proposed the revocation of Registrant's 
Certificate of Registration No. BD0903244. It alleged that Registrant 
is without ``authority to handle controlled substances in Texas, the 
state in which [Registrant] is registered with DEA.'' Id. at 1-2 
(citing 21 U.S.C. 802(21), 823(f), and 824(a)(3)).
    Specifically, the OSC alleged that Registrant's state license to 
practice medicine in Texas has been temporarily suspended. Id. The OSC 
further alleged that, because Registrant's Texas medical license is 
suspended, Registrant lacks the authority to handle controlled 
substances in Texas, and is, therefore, ineligible to maintain a DEA 
registration. Id.
    The OSC notified Registrant of the right to either request a 
hearing on the allegations or submit a written statement in lieu of 
exercising the right to a hearing, the procedures for electing each 
option, and the consequences for failing to elect either option. Id. at 
2 (citing 21 CFR 1301.43). The OSC also notified Registrant of the 
opportunity to submit a corrective action plan. Id. at 2-3 (citing 21 
U.S.C. 824(c)(2)(C)).

I. Adequacy of Service

    A DEA Task Force Officer (hereinafter, TFO) declared that he 
personally served Registrant with the OSC on July 9, 2020. RFAAX 9, at 
3 (Declaration of TFO). During the service of the OSC, Registrant 
signed a Form DEA-12 documenting Registrant's acknowledgement that she 
had received the OSC. RFAAX 5; RFAAX 9, at 3.
    The Government forwarded its Request for Final Agency Action 
(hereinafter, RFAA), along with the evidentiary record, to this office 
on August 27, 2020. In its RFAA, the Government represents that 
``neither the [Houston Field Division] nor the DEA Office of 
Administrative Law Judges had received any written correspondence, 
telephonic communication, or any other communication from Registrant, 
or any representative on her behalf in response to the [OSC].'' RFAA, 
at 4 (citing RFAAX 6 (Email from Office of Administrative Law Judges), 
7 (Email from Houston Division Office), 9, and 10 (Declaration of DEA 
Diversion Investigator)).
    Based on the TFO'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 July 9, 
2020. 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, 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).

II. Findings of Fact

A. Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
BD0903244 at the registered address of 8188 Long Point Road, Houston, 
Texas 77055. RFAAX 1 (Certificate of

[[Page 63293]]

Registration) and 2 (Certification of Registration History, dated 
August 10, 2020). Pursuant to this registration, Registrant is 
authorized to dispense controlled substances in schedules II-V as a 
practitioner DW/275. RFAAX 2.

B. The Status of Registrant's State License

    On February 7, 2020, the Texas Medical Board (hereinafter, Board) 
issued an Order of Temporary Suspension (hereinafter, Order). RFAAX 3. 
According to the Order, Registrant failed to meet the standard of care 
and documentation standards for six patients. Id. at 3. Specifically, 
the Order stated that Registrant ``failed to obtain or perform an 
adequate history or assessment of the patients by neglecting to obtain 
prior treating provider's records, a history of prior treatments, and 
the patient's response to treatment,'' or ``conducting and documenting 
an adequate examination of the patient's source of pain''; ``failed to 
have or document adequate medical rationale or evidence of therapeutic 
benefit of the Norco and Soma that [Registrant] prescribed to each of 
the six patients''; and ``failed to monitor the patients for 
therapeutic benefit, diversion, or abuse of the medications she 
prescribed, including controlled substances.'' Id. The Order also 
stated that Registrant had ten medical malpractice claims/lawsuits 
between 2005 and 2013, entered into an Agreed Order with the Board in 
2006, and entered into a Mediated Agreed Order in 2012, resolving four 
investigations into Registrant's cosmetic surgery practice. Id. at 1-2. 
The Order further stated that the Board entered an Order of Temporary 
Suspension Without Notice suspending Registrant's license after finding 
out that Registrant was ``arrested and indicted for conspiracy to 
unlawfully distribute and dispense controlled substances and aiding and 
abetting the same . . . in the United States District Court for the 
Southern District of Texas.'' Id. at 2.
    In the Order, the Board found that Registrant's conduct ``shows 
that [Registrant's] continued practice of medicine would constitute a 
continuing threat to the public welfare, as defined by Section 
151.002(a)(2) of the [Medical Practice] Act.'' Id. at 7. The Board, 
therefore, ordered that Registrant's Texas medical license be 
temporarily suspended effective February 7, 2020, and stated that the 
``Order shall remain in effect until it is superseded by an Order of 
the Board.'' Id. at 9.
    According to Texas's online records, of which I take official 
notice, Registrant's medical license is still suspended.\1\ Texas 
Medical Board, Look Up a License, available at https://reg.tmb.state.tx.us/page/look-up-a-license (last visited September 24, 
2020).
---------------------------------------------------------------------------

    \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]).
---------------------------------------------------------------------------

    Accordingly, I find that Registrant currently is not licensed to 
engage in the practice of medicine in Texas, the state in which 
Registrant is registered with DEA.

III. 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, 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, 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, 43 
FR at 27,617.
    Under the Texas Controlled Substances Act, a practitioner in Texas 
``may not prescribe, dispense, deliver, or administer a controlled 
substance or cause a controlled substance to be administered under the 
practitioner's direction and supervision except for a valid medical 
purpose and in the course of medical practice.'' Tex. Health and Safety 
Code Ann. Sec.  481.071 (West 2019). The Texas Controlled Substances 
Act defines ``practitioner,'' in relevant part, as ``a physician . . . 
licensed, registered, or otherwise permitted to distribute, dispense, 
analyze, conduct research with respect to, or administer a controlled 
substance in the course of professional practice or research in this 
state.'' Id. at Sec.  481.002 (39)(A). Further, under the Texas Medical 
Practice Act, a person must hold a license to practice medicine in 
Texas, Tex. Occupations Code Ann. Sec.  155.001 (West 2019) (``A person 
may not practice medicine in this state unless the person holds a 
license issued under [the Medical Practice Act].''); see also id. at 
Sec.  151.002 (`` `Physician' means a person licensed to practice 
medicine in this state.''), and ``[a] person commits an offense if the 
person practices medicine in [Texas] in violation of'' the Act, id. at 
Sec.  165.152(a).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in Texas. I, therefore, 
find that Registrant is currently without authority to dispense 
controlled substance in Texas, the state in which she is registered 
with DEA, and I will order that Registrant's DEA registration be 
revoked.

IV. 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. 
BD0903244 issued to Barbara D. Marino, M.D. Further, pursuant to 28 CFR 
0.100(b) and the

[[Page 63294]]

authority vested in me by 21 U.S.C. 823(f), I hereby deny any pending 
application of Barbara D. Marino, M.D. to renew or modify this 
registration, as well as any pending application of Barbara D. Marino, 
M.D. for registration in Texas. This Order is effective November 6, 
2020.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-22214 Filed 10-6-20; 8:45 am]
BILLING CODE 4410-09-P
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