Rosa A. Fuentes, M.D.; Decision and Order, 25888-25890 [2021-09907]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 86, Number 89 (Tuesday, May 11, 2021)]
[Notices]
[Pages 25888-25890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09907]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Rosa A. Fuentes, M.D.; Decision and Order

    On March 1, 2021, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, Government), 
issued an Order to Show Cause (hereinafter, OSC) to Rosa A. Fuentes, 
M.D. (hereinafter, Registrant) of San Antonio, Texas. OSC, at 1. The 
OSC proposed the revocation of Registrant's Certificate of Registration 
No. FF5063172. It alleged that Registrant is without ``authority to 
handle controlled substances in Texas, the state in which [Registrant 
is] registered with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
    Specifically, the OSC alleged that the Texas Medical Board issued 
an order of Temporary Suspension with Notice of Hearing on December 18, 
2020. Id. This Order, according to the OSC, immediately suspended 
Registrant's Texas state medical license following the Texas Medical 
Board's finding that Registrant ``prescribed controlled substances in 
violation of the restrictions that the Board had imposed on 
[Registrant's] prescribing authority.'' 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. OSC, at 3 (citing 21 U.S.C. 
824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated April 20, 2021, a Diversion Investigator 
(hereinafter, DI) assigned to the San Antonio District Office, Houston 
Field Division, stated that on March 5, 2021, she, another DI, and a 
DEA Task Force Officer traveled to Registrant's last known residential 
address on her 2018-issued driver's license. Request for Final Agency 
Action, dated April 20, 2021 (hereinafter, RFAA), Exhibit (hereinafter, 
RFAAX) 3 (DI's Declaration), at 2. The DI stated that they met and 
spoke with Registrant's mother who told them that Registrant was not 
there. Id. While at the same address, the DI then called Registrant at 
the contact number indicated on her DEA registration and spoke with 
Registrant, and asked if the DI could leave the OSC with her mother. 
Id.

[[Page 25889]]

Registrant confirmed that the DI could leave the OSC with her mother 
and said that she would come to the address later to retrieve it. Id. 
The DI stated that she then personally handed Registrant's mother a 
copy of the OSC and asked Registrant's mother to sign DEA Form 12, 
``Receipt for Cash or Other Items'' (hereinafter, DEA 12) to indicate 
that she had received the OSC. Id. On March 10, 2021, the DI, along 
with another DI, visited Registrant's place of business. Id. The DI 
verified Registrant's identity at her place of business by observing 
Registrant's State of Texas driver's license. Id. at 2-3. The DI stated 
that she then personally handed Registrant an additional copy of the 
OSC and explained that the 30-day timeline to respond to the OSC began 
on March 5, 2021, the date when Registrant's mother had been served 
with the OSC. Id. at 3.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on April 20, 2021. In its RFAA, the Government 
represents that ``[Registrant] has not submitted a timely request for a 
hearing in this matter.'' \1\ RFAA, at 1. The Government requests that 
the Administrator revoke Registrant's DEA registration on the ground 
that Registrant is ``presently not authorized to handle controlled 
substances in the State of Texas.'' Id. at 2 and 6.
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    \1\ The Government also represents that as of the date of the 
RFAA, ``neither [Registrant] nor any attorney representing her has 
requested a hearing'' and ``[neither Registrant] nor any attorney 
for her [has] submitted a written statement.'' RFAA, at 2.
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    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 March 5, 
2021. 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 the 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. 
FF5063172 at the registered address of Texas Low T & Weight Loss Clinic 
PLLC, 7551 Callaghan Road, Suite 120, San Antonio, Texas 78229. RFAAX 1 
(DEA Certificate of Registration). Pursuant to this registration, 
Registrant is authorized to dispense controlled substances in schedules 
IV and V as a practitioner. Id.

The Status of Registrant's State License

    On December 18, 2020, the Texas Medical Board (hereinafter, Board) 
issued an Order of Temporary Suspension with Notice of Hearing 
(hereinafter, Suspension Order). RFAAX 3, App. A (Suspension Order), at 
1. According to the Suspension Order, Registrant has a ``lengthy 
disciplinary history with the Board.'' Id. at 2.
    On or around August 31, 2012, the Board publicly reprimanded 
Registrant through an Agreed Order (hereinafter, 2012 Order) and 
imposed certain terms and conditions on her medical license based on 
her ``failure to adequately supervise mid-level practitioners, 
prescribing controlled substances without valid controlled substance 
registration certificates, and providing false information to the 
Board.'' Id. The 2012 Order also required that Registrant take and pass 
the JP Exam, complete eight hours of continuing medical education in 
risk management, complete sixteen hours of continuing medical education 
in supervision of mid-level providers, and pay an administrative 
penalty of $5,000. Id. On or about June 12, 2015, the 2012 Order was 
terminated by the Board based on Registrant's representation that she 
``no longer employed mid-level practitioners and had no plans to employ 
mid-level practitioners in the future.'' Id.
    On March 2, 2018, the Board entered a Final Order (2018 Final 
Order) that ``prohibited [Registrant] from possessing, administering, 
dispensing, or prescribing Schedules II and III controlled substances 
with the sole exception of testosterone therapy and that only allowed 
her to prescribe Schedules IV and V controlled substances to patients 
for periods of less than 30 days with refills prohibited.'' Id. at 2-3. 
Registrant was also prohibited from issuing any refills for controlled 
substances for a minimum of five years, as well as prohibited from 
``delegating to or supervising the activities of mid-level 
practitioners.'' Id. at 3. The 2018 Final Order followed a contested 
case proceeding at the State Office of Administrative Hearings. Id. at 
2. The action was based on Registrant ``being placed on deferred 
adjudication following a guilty plea for violating provisions of the 
Medical Practice Act.'' Id. at 3.
    On December 6, 2019, the Board entered an Agreed Order on Formal 
Filling (2019 Order) after determining that Registrant was in violation 
of the prescribing restrictions in the 2018 Final Order. Id. The 2019 
Order first required that Registrant ``request modification of her DEA 
Controlled Substances Registration Certificates to eliminate Schedules 
II and III within seven days of entry of the [2019 Order].'' Id. The 
2019 Order also required that Registrant ``could only prescribe 
controlled substances in accordance with the conditions set forth in 
the [2018 Final Order]'' and that Registrant was ``prohibited from re-
registering with the DEA for Schedules II and III controlled substances 
without written authorization from the Board after a personal 
appearance.'' Id. Additionally, the 2019 Order prohibited Registrant 
from ``possessing, administering, or prescribing controlled substances 
in Texas other than prescriptions written to her by a licensed provider 
for legitimate personal use'' and required, effective February 1, 2020, 
that Registrant ``limit her practice to a pre-approved group or 
institutional setting.'' Id. Further, the 2019 Order required that 
Registrant undergo eight consecutive cycles of chart monitoring and 
prohibited Registrant from supervising or delegating prescriptive 
authority to mid-level providers. Id. Finally, the 2019 Order required 
Registrant to ``provide a copy of the [2019 Order] to all healthcare 
entities where privileged or practicing and to provide proof of such 
delivery within 30 days.'' Id.
    According to the Suspension Order, Registrant violated multiple 
conditions set forth in the 2018 and 2019 orders. First, Registrant 
``failed to surrender her controlled substances registrations with the 
DEA to eliminate Schedules II and III by the December 13, 2019 deadline 
in the 2019 Order. In fact, [Registrant] did not surrender these 
registrations until on or around October 20, 2020.'' Id. Additionally, 
Registrant ``prescribed controlled substances in violation of the 2018 
and 2019 [orders], as evidenced by controlled substance refills that 
were written between March 16, 2019 and March 16, 2020 in violation of 
. . . the 2018 Order.'' Id. Furthermore, although Registrant was 
prohibited, effective February 1, 2020, from practicing medicine in any 
setting other than a pre-approved group or institutional setting, 
Registrant failed to request approval for

[[Page 25890]]

a group/institutional setting by the February 1, 2020 deadline and 
``instead, [Registrant] has continued to practice medicine at Texas Low 
T clinic in violation of . . . the 2019 Order to date.'' Id. The 
Suspension Order went on to list how Registrant had also ``failed to 
initiate chart monitoring in violation of . . . the 2019 Order'' as 
well as ``failed to cooperate with Board Staff by failing to timely 
respond to communications from her Compliance Officer, by failing to 
return compliance-related documentation including but not limited to 
evidence that she has surrendered her Schedule II and III controlled 
substances registrations, by failing to file quarterly compliance 
reports, and by mispresenting the nature and scope of her current 
practice setting.'' Id.
    The Suspension Order concluded that Registrant ``has engaged in 
unprofessional conduct by violating the terms and conditions set forth 
in the 2018 [Final] Order and the 2019 Order.'' Id. at 5. The 
Suspension Order stated that despite the ``significant restrictions and 
requirements imposed on [Registrant's] medical practice as the result 
of two separate Board orders, [Registrant's] practice has continued 
almost unchanged since March 2018'' and that ``[Registrant's] 
willingness to defy the Board through repeated, flagrant, and ongoing 
violations of previous Board Orders intended to restrict her practice 
and protect the public--including one order that [Registrant] 
explicitly agreed to--demonstrates that her continuation in the 
practice of medicine poses a continuing threat to public health and 
welfare.'' Id. Based on its findings and conclusions, the Board ordered 
that Registrant's medical license be temporarily suspended ``effective 
on the date rendered'' until superseded by a subsequent Board order. 
Id. at 6.
    According to Texas's online records, of which I take official 
notice, Registrant's license is still suspended.\2\ Texas Medical 
Board, https://www.tmb.state.tx.us/page/look-up-a-license (last visited 
date of signature of this Order). Texas's online records show that 
Registrant's medical license remains suspended and that Registrant is 
not authorized in Texas to practice medicine. Id.
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    \2\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Registrant may dispute 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 and response shall be filed and served by email to the other 
party and to Office of the Administrator, Drug Enforcement 
Administration at [email protected].
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    Accordingly, I find that Registrant is not currently licensed to 
engage in the practice of medicine in Texas, the State in which 
Registrant is registered with the DEA.

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 F. App'x 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 substances in Texas, the state in which she is registered 
with DEA. 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. 
FF5063172 issued to Rosa A. Fuentes, M.D. Further, pursuant to 28 CFR 
0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby 
deny any pending application of Rosa A. Fuentes, M.D. to renew or 
modify this registration, as well as any other pending application of 
Rosa A. Fuentes, M.D., for additional registration in Texas. This Order 
is effective June 10, 2021.

D. Christopher Evans,
Acting Administrator.
[FR Doc. 2021-09907 Filed 5-10-21; 8:45 am]
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