Fernando Mendez, P.A.; Decision and Order, 7105-7106 [2023-02122]
Download as PDF
Federal Register / Vol. 88, No. 22 / Thursday, February 2, 2023 / Notices
(OSC), at 1, 3. The OSC proposed the
revocation of Registrant’s Certificate of
Registration No. FO7776644 at the
registered address of 300 Pasteur Dr.,
Stanford, CA 94305–2295. Id. at 1. The
OSC alleged that Registrant’s
registration should be revoked because
Registrant is ‘‘without authority to
handle controlled substances in the
State of California, the state in which
[he is] registered with DEA.’’ Id. at 2
(citing 21 U.S.C. 824(a)(3)).
The Agency makes the following
findings of fact based on the
uncontroverted evidence submitted by
the Government in its RFAA,1 which
was received on January 5, 2023.2
Findings of Fact
On May 26, 2022, the Medical Board
of California issued a Notice of
Automatic Revocation of License that
revoked Registrant’s California medical
license. RFAAX 2, Attachment C, at 1–
3. According to California’s online
records, of which the Agency takes
official notice, Registrant’s California
medical license is revoked.3 Medical
Board of California License Verification,
https://www.mbc.ca.gov/LicenseVerification (last visited date of
signature of this Order). Accordingly,
the Agency finds that Registrant is not
licensed to engage in the practice of
medicine in California, the state in
which he is registered with the DEA.
khammond on DSKJM1Z7X2PROD with NOTICES
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
1 The Government’s RFAA is dated November 29,
2022. RFAA, at 5.
2 Based on a Declaration from a DEA Diversion
Investigator, the Agency finds that the
Government’s service of the OSC on Registrant was
adequate. RFAAX 2, at 2. Further, based on the
Government’s assertions in its RFAA, the Agency
finds that more than thirty days have passed since
Registrant was served with the OSC and Registrant
has neither requested a hearing nor submitted a
written statement or corrective action plan and
therefore has waived any such rights. RFAA, at 1–
2; see also 21 CFR 1301.43 and 21 U.S.C. 824(c)(2).
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,
Registrant may dispute the Agency’s finding by
filing a properly supported motion for
reconsideration of findings 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
dea.addo.attorneys@dea.gov.
VerDate Sep<11>2014
18:57 Feb 01, 2023
Jkt 259001
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 71371
(2011), pet. for rev. denied, 481 F. App’x
826 (4th Cir. 2012); Frederick Marsh
Blanton, M.D., 43 FR 27616, 27617
(1978).4
According to California statute,
‘‘dispense’’ means ‘‘to deliver a
controlled substance to an ultimate user
or research subject by or pursuant to the
lawful order of a practitioner, including
the prescribing, furnishing, packaging,
labeling, or compounding necessary to
prepare the substance for that delivery.’’
Cal. Health & Safety Code § 11010 (West
2022). Further, a ‘‘practitioner’’ means a
person ‘‘licensed, registered, or
otherwise permitted, to distribute,
dispense, conduct research with respect
to, or administer, a controlled substance
in the course of professional practice or
research in [the] state.’’ Id. at § 11026(c).
Here, the undisputed evidence in the
record is that Registrant lacks authority
to practice medicine in California. As
discussed above, a physician must be a
licensed practitioner to dispense a
controlled substance in California.
Thus, because Registrant lacks authority
4 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(g)(1) (this section,
formerly § 823(f), was redesignated as part of the
Medical Marijuana and Cannabidiol Research
Expansion Act, Public Law 117–215, 136 Stat. 2257
(2022)). 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
71371–72; Sheran Arden Yeates, M.D., 71 FR
39130, 39131 (2006); Dominick A. Ricci, M.D., 58
FR 51104, 51105 (1993); Bobby Watts, M.D., 53 FR
11919, 11920 (1988); Frederick Marsh Blanton, 43
FR at 27617.
PO 00000
Frm 00048
Fmt 4703
Sfmt 4703
7105
to practice medicine in California and,
therefore, is not authorized to handle
controlled substances in California,
Registrant is not eligible to maintain a
DEA registration. Accordingly, the
Agency 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. FO7776644 issued to
Dylan E. O’Connor, M.D. Further,
pursuant to 28 CFR 0.100(b) and the
authority vested in me by 21 U.S.C.
823(g)(1), I hereby deny any pending
applications of Dylan E. O’Connor,
M.D., to renew or modify this
registration, as well as any other
pending application of Dylan E.
O’Connor, M.D., for additional
registration in California. This Order is
effective March 6, 2023.
Signing Authority
This document of the Drug
Enforcement Administration was signed
on January 25, 2023, by Administrator
Anne Milgram. That document with the
original signature and date is
maintained by DEA. For administrative
purposes only, and in compliance with
requirements of the Office of the Federal
Register, the undersigned DEA Federal
Register Liaison Officer has been
authorized to sign and submit the
document in electronic format for
publication, as an official document of
DEA. This administrative process in no
way alters the legal effect of this
document upon publication in the
Federal Register.
Heather Achbach,
Federal Register Liaison Officer, Drug
Enforcement Administration.
[FR Doc. 2023–02120 Filed 2–1–23; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Fernando Mendez, P.A.; Decision and
Order
On August 9, 2022, the Drug
Enforcement Administration
(hereinafter, DEA or Government)
issued an Order to Show Cause
(hereinafter, OSC) to Fernando Mendez,
P.A. (hereinafter, Registrant). Request
for Final Agency Action (hereinafter,
RFAA), Exhibit (hereinafter, RFAAX) 1
(OSC), at 1, 3. The OSC proposed the
revocation of Registrant’s Certificate of
Registration No. MM3333109 at the
registered address of 1001 East Tyler
E:\FR\FM\02FEN1.SGM
02FEN1
7106
Federal Register / Vol. 88, No. 22 / Thursday, February 2, 2023 / Notices
Avenue, Harlingen, Texas 78550. Id. at
1. The OSC alleged that Registrant’s
registration should be revoked because
Registrant is ‘‘currently without
authority to handle controlled
substances in the State of Texas, the
state in which [he is] registered with
DEA.’’ Id. at 2 (citing 21 U.S.C.
824(a)(3)).
The Agency makes the following
findings of fact based on the
uncontroverted evidence submitted by
the Government in its RFAA dated
January 3, 2023.1
Findings of Fact
On July 20, 2021, the Texas Physician
Assistant Board issued an Order of
Temporary Suspension that suspended
Registrant’s Texas physician assistant
license. RFAAX 3, Attachment B, at 1,
5–6. According to Texas online records,
of which the Agency takes official
notice, Registrant’s license is still
suspended.2 Texas Medical Board
License Verification, https://
profile.tmb.state.tx.us (last visited date
of signature of this Order). Accordingly,
the Agency finds that Registrant is not
currently licensed to engage in the
practice of medicine in Texas, the state
in which he is registered with the DEA.
khammond on DSKJM1Z7X2PROD with NOTICES
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
1 Based on the Declarations from a DEA Diversion
Investigator and a DEA Special Agent, the Agency
finds that the Government’s service of the OSC on
Registrant was adequate. RFAAX 2, at 1–2; RFAAX
3, at 2–3. Further, based on the Government’s
assertions in its RFAA, the Agency finds that more
than thirty days have passed since Registrant was
served with the OSC and Registrant has neither
requested a hearing nor submitted a written
statement or corrective action plan and therefore
has waived any such rights. RFAA, at 3; RFAAX 3,
at 3; see also 21 CFR 1301.43 and 21 U.S.C.
824(c)(2).
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 the Agency’s finding by
filing a properly supported motion for
reconsideration of findings 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 the DEA Office of
the Administrator, Drug Enforcement
Administration at dea.addo.attorneys@dea.gov.
VerDate Sep<11>2014
18:57 Feb 01, 2023
Jkt 259001
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 71371
(2011), pet. for rev. denied, 481 F. App’x
826 (4th Cir. 2012); Frederick Marsh
Blanton, M.D., 43 FR 27616, 27617
(1978).3
According to Texas statute,
‘‘[d]ispense’’ means ‘‘the delivery of a
controlled substance in the course of
professional practice or research, by a
practitioner or person acting under the
lawful order of a practitioner, to an
ultimate user or research subject. The
term includes the prescribing,
administering, packaging, labeling, or
compounding necessary to prepare the
substance for delivery.’’ Tex. Health &
Safety Code Ann. section 481.002(12)
(2022). Further, a ‘‘practitioner’’ means
a ‘‘a physician . . . or other person
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 section
481.002(39)(A).
Here, the undisputed evidence in the
record is that Registrant currently lacks
authority to practice medicine in Texas.
As discussed above, a person must be a
licensed practitioner to dispense a
controlled substance in Texas. Thus,
because Registrant lacks authority to
practice medicine in Texas and,
therefore, is not authorized to handle
controlled substances in Texas,
Registrant is not eligible to maintain a
DEA registration. Accordingly, the
Agency 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. MM3333109 issued
to Fernando Mendez, P.A. 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
applications of Fernando Mendez, P.A.,
to renew or modify this registration, as
well as any other pending application of
Fernando Mendez, P.A., for additional
registration in Texas. This Order is
effective March 6, 2023.
Signing Authority
This document of the Drug
Enforcement Administration was signed
on January 25, 2023, by Administrator
Anne Milgram. That document with the
original signature and date is
maintained by DEA. For administrative
purposes only, and in compliance with
requirements of the Office of the Federal
Register, the undersigned DEA Federal
Register Liaison Officer has been
authorized to sign and submit the
document in electronic format for
publication, as an official document of
DEA. This administrative process in no
way alters the legal effect of this
document upon publication in the
Federal Register.
Heather Achbach,
Federal Register Liaison Officer, Drug
Enforcement Administration.
[FR Doc. 2023–02122 Filed 2–1–23; 8:45 am]
BILLING CODE 4410–09–P
3 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 71371–72; Sheran Arden
Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick
A. Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby
Watts, M.D., 53 FR 11919, 11920 (1988); Frederick
Marsh Blanton, 43 FR at 27617.
PO 00000
Frm 00049
Fmt 4703
Sfmt 4703
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 22–22]
Ester Mark, M.D.; Decision and Order
On March 12, 2022, the Drug
Enforcement Administration
(hereinafter, DEA or Government)
issued an Order to Show Cause
(hereinafter, OSC) to Ester Mark, M.D.
(hereinafter, Respondent) of California,
alleging that Respondent materially
falsified both her April 2019 initial
application for a DEA Certificate of
Registration and her February 2022
renewal application for that same
E:\FR\FM\02FEN1.SGM
02FEN1
Agencies
[Federal Register Volume 88, Number 22 (Thursday, February 2, 2023)]
[Notices]
[Pages 7105-7106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02122]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Fernando Mendez, P.A.; Decision and Order
On August 9, 2022, the Drug Enforcement Administration
(hereinafter, DEA or Government) issued an Order to Show Cause
(hereinafter, OSC) to Fernando Mendez, P.A. (hereinafter, Registrant).
Request for Final Agency Action (hereinafter, RFAA), Exhibit
(hereinafter, RFAAX) 1 (OSC), at 1, 3. The OSC proposed the revocation
of Registrant's Certificate of Registration No. MM3333109 at the
registered address of 1001 East Tyler
[[Page 7106]]
Avenue, Harlingen, Texas 78550. Id. at 1. The OSC alleged that
Registrant's registration should be revoked because Registrant is
``currently without authority to handle controlled substances in the
State of Texas, the state in which [he is] registered with DEA.'' Id.
at 2 (citing 21 U.S.C. 824(a)(3)).
The Agency makes the following findings of fact based on the
uncontroverted evidence submitted by the Government in its RFAA dated
January 3, 2023.\1\
---------------------------------------------------------------------------
\1\ Based on the Declarations from a DEA Diversion Investigator
and a DEA Special Agent, the Agency finds that the Government's
service of the OSC on Registrant was adequate. RFAAX 2, at 1-2;
RFAAX 3, at 2-3. Further, based on the Government's assertions in
its RFAA, the Agency finds that more than thirty days have passed
since Registrant was served with the OSC and Registrant has neither
requested a hearing nor submitted a written statement or corrective
action plan and therefore has waived any such rights. RFAA, at 3;
RFAAX 3, at 3; see also 21 CFR 1301.43 and 21 U.S.C. 824(c)(2).
---------------------------------------------------------------------------
Findings of Fact
On July 20, 2021, the Texas Physician Assistant Board issued an
Order of Temporary Suspension that suspended Registrant's Texas
physician assistant license. RFAAX 3, Attachment B, at 1, 5-6.
According to Texas online records, of which the Agency takes official
notice, Registrant's license is still suspended.\2\ Texas Medical Board
License Verification, https://profile.tmb.state.tx.us (last visited
date of signature of this Order). Accordingly, the Agency finds that
Registrant is not currently licensed to engage in the practice of
medicine in Texas, the state in which he is registered with the DEA.
---------------------------------------------------------------------------
\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 the Agency's finding
by filing a properly supported motion for reconsideration of
findings 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 the DEA Office of the Administrator,
Drug Enforcement Administration at [email protected].
---------------------------------------------------------------------------
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 71371 (2011), pet. for rev. denied, 481 F. App'x 826 (4th
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617
(1978).\3\
---------------------------------------------------------------------------
\3\ 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
71371-72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006);
Dominick A. Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby Watts,
M.D., 53 FR 11919, 11920 (1988); Frederick Marsh Blanton, 43 FR at
27617.
---------------------------------------------------------------------------
According to Texas statute, ``[d]ispense'' means ``the delivery of
a controlled substance in the course of professional practice or
research, by a practitioner or person acting under the lawful order of
a practitioner, to an ultimate user or research subject. The term
includes the prescribing, administering, packaging, labeling, or
compounding necessary to prepare the substance for delivery.'' Tex.
Health & Safety Code Ann. section 481.002(12) (2022). Further, a
``practitioner'' means a ``a physician . . . or other person 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 section 481.002(39)(A).
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice medicine in Texas. As discussed
above, a person must be a licensed practitioner to dispense a
controlled substance in Texas. Thus, because Registrant lacks authority
to practice medicine in Texas and, therefore, is not authorized to
handle controlled substances in Texas, Registrant is not eligible to
maintain a DEA registration. Accordingly, the Agency 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.
MM3333109 issued to Fernando Mendez, P.A. 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 applications of Fernando Mendez, P.A., to renew or
modify this registration, as well as any other pending application of
Fernando Mendez, P.A., for additional registration in Texas. This Order
is effective March 6, 2023.
Signing Authority
This document of the Drug Enforcement Administration was signed on
January 25, 2023, by Administrator Anne Milgram. That document with the
original signature and date is maintained by DEA. For administrative
purposes only, and in compliance with requirements of the Office of the
Federal Register, the undersigned DEA Federal Register Liaison Officer
has been authorized to sign and submit the document in electronic
format for publication, as an official document of DEA. This
administrative process in no way alters the legal effect of this
document upon publication in the Federal Register.
Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2023-02122 Filed 2-1-23; 8:45 am]
BILLING CODE 4410-09-P