Matthew S. Katz, M.D.; Decision and Order, 22480-22481 [2023-07834]
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22480
Federal Register / Vol. 88, No. 71 / Thursday, April 13, 2023 / Notices
submissions will be available for public
inspection on EDIS.
This action is taken under the
authority of section 337 of the Tariff Act
of 1930, as amended (19 U.S.C. 1337),
and in Part 210 of the Commission’s
Rules of Practice and Procedure (19 CFR
part 210).
By order of the Commission.
Issued: April 10, 2023.
Lisa Barton,
Secretary to the Commission.
II. Findings
[FR Doc. 2023–07844 Filed 4–12–23; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 22–53]
Matthew S. Katz, M.D.; Decision and
Order
I. Introduction
lotter on DSK11XQN23PROD with NOTICES1
On August 16, 2022, the Drug
Enforcement Administration (DEA or
Government) issued an Order to Show
Cause (OSC) to Matthew S. Katz, M.D.
(Respondent), of Nashville, Tennessee,
the state where Respondent is registered
with the DEA.1 OSC, at 1. The OSC
proposes the revocation of Respondent’s
DEA Certificate of Registration
(registration), FK7432278, and the
denial of any applications for renewal or
modification of it, alleging that
Respondent was convicted of a
Tennessee felony relating to controlled
substances.2 Id., citing 21 U.S.C.
824(a)(2).3
The hearing Respondent requested
was held on December 20, 2022. Tr. 1.
Concluding that Respondent’s
acceptance of responsibility was short of
unequivocal, and that his misconduct
1 Effective December 2, 2022, the Medical
Marijuana and Cannabidiol Research Expansion
Act, Public Law 117–215, 136 Stat. 2257 (2022)
(MRA), amended the Controlled Substances Act
(CSA) and other statutes. Relevant to this matter,
the MRA redesignated 21 U.S.C. 823(f), cited in the
OSC, as 21 U.S.C. 823(g)(1). Accordingly, this
Decision cites to the current designation, 21 U.S.C.
823(g)(1), and to the MRA-amended CSA
throughout.
2 The OSC also seeks denial of ‘‘any applications
for any other DEA registrations.’’ OSC, at 1.
3 The OSC alleges that Respondent ‘‘pled guilty’’
to the Class D felony, Tenn. Code Ann. section 53–
11–402. OSC, at 2. The Government acknowledges
that Respondent pled ‘‘nolo contendere.’’ See, e.g.,
Government’s Prehearing Statement (September 30,
2022), at 2. The parties agree that Respondent’s plea
is subject to an Order of Deferral. See, e.g. id.;
Request for Hearing (September 22, 2022), at 1. The
parties also agree that the Agency considers
Respondent’s nolo contendere plea to be a
‘‘conviction’’ for purposes of 21 U.S.C. 824(a)(4).
Respondent’s Post-Hearing Brief (January 20, 2023)
(Resp Posthearing), at 13.
VerDate Sep<11>2014
17:56 Apr 12, 2023
was egregious, the Recommended
Rulings, Findings of Fact, Conclusions
of Law, and Decision of the
Administrative Law Judge (RD)
recommends that Respondent’s
registration be revoked. RD, at 22–23.
Given the egregiousness of the
uncontested facts and the facts based on
substantial record evidence, the Agency
agrees with the RD that revocation is the
appropriate sanction.
Jkt 259001
A. Background Findings
Having thoroughly analyzed the
certified record, the Agency finds
substantial record evidence that: (1)
Respondent prescribed Schedule II
controlled substances without a
legitimate medical purpose, (2)
Respondent then instructed the patients
to bring him the filled prescriptions,
and (3) Respondent took most of the
controlled substances for his own use
after, he testified, making sure that the
patient did not need them to relieve
pain. Stipulation No. 6; Resp
Posthearing, at 13. There is no record
evidence that Respondent complied
with Tennessee’s legal requirements for
issuing controlled substances. The
Agency finds no record evidence that
Respondent took steps to make sure he
did not over-prescribe opiates to
individuals who were already opioidaddicted, who were addicted to another
substance, or who were at a particular
risk of becoming opioid-addicted.
B. Undisputed Matters of Fact and Law
The Agency finds, to Respondent’s
credit, that he advised the Chief
Administrative Law Judge and the
Government that the Consent Order of
the Tennessee Board of Medical
Examiners (TMB) restricts him from
prescribing Schedule II controlled
substances in Tennessee for twelve (12)
months beginning on the date of the
Consent Order’s entry.4 TMB Consent
Order (entered September 27, 2022), RX
7, at 6, citing Tenn. Comp. R. & Regs.
0880–02–.25 (2019). Indeed, the Agency
finds that, according to the Consent
Order, Respondent’s loss of authority in
Tennessee to prescribe Schedule II
controlled substances predates the
Consent Order. RX 7, at 3 (‘‘Due to the
allegations in the indictment . . ., the
Respondent lost his authorization to
prescribe Schedule II controlled
substances in this state until the
criminal cases against him reach final
disposition.’’). Accordingly, the Agency
finds uncontroverted record evidence
4 The Consent Order also places Respondent’s
medical license on probation for three years. RX 7,
at 5.
PO 00000
Frm 00077
Fmt 4703
Sfmt 4703
that Respondent presently lacks
authority in Tennessee to prescribe
Schedule II controlled substances.
Additionally, the parties agree to the
following factual and legal matters.
1. Respondent pled nolo contendere
to three counts of obtaining possession
of oxycodone by misrepresentation,
fraud, forgery, deception or subterfuge,
a Class D Tennessee felony. Tenn. Code
Ann. section 53–11–402(a)(3) and (b)(1);
see, e.g., OSC, at 2; Stipulation No. 6;
Resp Posthearing, at 2, 13.
2. Prior Agency decisions state that a
nolo contendere plea is a ‘‘conviction’’
for purposes of 21 U.S.C. 824(a)(2). See,
e.g., Erica N. Grant, M.D., 86 FR 40641,
40646–48 (2021) (collecting cases); Resp
Posthearing, at 13; but cf. Transcript of
Guilty Plea Proceedings, State of
Tennessee v. Matthew S. J. Katz, No.
2021–B–794 (Criminal Court for
Davidson County, Tennessee, Division
III, June 30, 2022), GX 3b, at 4 (The
Court: ‘‘So do you understand that this
is a special probation, that is . . . you’re
not going to be convicted, and it will be
removed from your record if you follow
the conditions.’’).
3. Respondent is not eligible for a
Schedule II registration because he lacks
authority in Tennessee to dispense
Schedule II controlled substances. Resp
Posthearing, at 16–17; Government’s
Post-Hearing Brief (dated January 20,
2023) (Govt Posthearing), at 10.
III. Discussion
According to the Controlled
Substances Act (CSA), the Attorney
General ‘‘shall register practitioners . . .
to dispense . . . controlled substances
. . . 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). The CSA
defines ‘‘practitioner’’ as a ‘‘physician
. . . 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). The Agency has long
interpreted these two CSA provisions to
mean that state authority to dispense
controlled substances is a prerequisite
to the Agency’s issuance of a
registration. See, e.g., Valerie Augustus,
M.D., 88 FR 1098, 1099 (2023).
Further, the Attorney General is
authorized to suspend or revoke a
registration ‘‘upon a finding that the
registrant . . . has been convicted of a
felony . . . of any State . . . relating to
any substance defined in this
subchapter as a controlled substance
. . . .’’ 21 U.S.C. 824(a)(2).
E:\FR\FM\13APN1.SGM
13APN1
Federal Register / Vol. 88, No. 71 / Thursday, April 13, 2023 / Notices
The Government has the burden of
proof in this proceeding. 21 CFR
1301.44.
Based on undisputed factual and legal
matters, the Agency finds conclusive
record evidence that: (1) Respondent
lacks authority in Tennessee to dispense
Schedule II controlled substances, and
(2) the Government presented a prima
facie case that Respondent is a felon
convicted of an offense relating to a
controlled substance. Supra section II.A.
Accordingly, the Agency finds that: (1)
Respondent is not eligible for a
registration to dispense Schedule II
controlled substances, and that (2)
Respondent’s registration, as to
Schedules III through V, is subject to
revocation due to his felony conviction
relating to controlled substances. 21
U.S.C. 802(21), 823(g)(1); see, e.g.,
Valerie Augustus, M.D., 88 FR 1099 (as
to Schedule II eligibility); 21 U.S.C.
824(a)(2); see, e.g., Johnny C. Benjamin,
Jr., M.D., 86 FR 32280, 32282 (2021) (as
to felony conviction).
IV. Sanction
Where, as here, the Government has
met its prima facie burden of showing
that one or more grounds for revocation
exists, the burden shifts to the
Respondent to show why he can be
entrusted with a registration.5 Garrett
Howard Smith, M.D., 83 FR 18882
(2018). Moreover, as past performance is
the best predictor of future performance,
the Agency has required that a
respondent must unequivocally accept
responsibility for the unlawful acts for
which he was convicted, and
demonstrate that he will not engage in
future misconduct.6 Id. In addition, the
lotter on DSK11XQN23PROD with NOTICES1
5 Respondent
describes himself as a ‘‘highly
trained vitreoretinal surgeon’’ who ‘‘credibly
explained’’ that ‘‘he developed an addiction to
opioid pain killers’’ after a back injury that ‘‘he
attempted to manage himself.’’ Resp Posthearing, at
3. Although ‘‘it felt appropriate to him’’ at the time
to manage himself, ‘‘he now acknowledges that
behavior sounds ‘crazy’ to him.’’ Id. Respondent’s
brief also states that he ‘‘candidly acknowledged he
engaged in dishonest, inappropriate, and unlawful
behaviors in pursuit of substances to sustain the
addiction.’’ Id.; infra. Respondent was not asked to
address his listing of ‘‘cocaine’’ in the ‘‘drug(s) of
choice’’ section of the Tennessee Medical
Foundation contract. RX 5, at 8.
6 Respondent argues that his ability to continue
his medical work requires his maintenance of a
registration. See, e.g., Resp Posthearing, at 11–12.
After carefully reviewing his argument and the
bases he posits for it, including RX 4 and RX 6, the
Agency finds that the evidence Respondent,
himself, offered belies this argument. Indeed, the
record includes evidence that Respondent’s skill,
commitment to his sobriety, willingness to undergo
extensive monitoring, and the apparent good will
he has engendered have been sufficient for him to
obtain and/or retain his current professional
employment. See, e.g., Resp Posthearing, at 7–12,
14–15.
The Agency notes that Respondent’s argument,
even if proven, is irrelevant to whether Respondent
VerDate Sep<11>2014
17:56 Apr 12, 2023
Jkt 259001
Agency has found that the egregiousness
and extent of the misconduct are
significant factors in determining the
appropriate sanction. Id. The Agency
has also considered the need to deter
similar acts by applicants and by the
community of registrants. Id.
The OSC that initiated this
adjudication alleges that the registration
of Respondent, who has been convicted
of a felony relating to a controlled
substance, should be revoked. Supra
section I. As already discussed, the
Agency is without authority to allow
Respondent to maintain his registration
to dispense Schedule II controlled
substances. Supra section III.
Accordingly, at a minimum,
Respondent’s authorization to dispense
Schedule II controlled substances must
now be revoked.
It is the Administrator’s CSAmandated exercise of discretion,
however, that determines whether
Respondent will continue to hold a
registration to dispense Schedules III
through V. 21 U.S.C. 824(a). The parties
disagree about whether Respondent
unequivocally accepted responsibility.
See, e.g., Resp Posthearing, at 13–14;
Govt Posthearing at 6–9. The certified
record in this matter is not sufficiently
developed to determine whether
Respondent unequivocally accepted
responsibility. However, based on the
facts in the certified record that are
well-developed and undisputed, the
Agency concludes that whether
Respondent unequivocally accepted
responsibility would not impact a
finding as to the appropriate sanction
given the egregiousness of Respondent’s
conduct.
In this matter, the Agency found
substantial record evidence that,
regardless of the resulting harm his
patients could suffer, Respondent
prescribed controlled substances so that
he could divert at least a portion of
them to himself. See, e.g., Resp
Posthearing, at 4–6, 13–14. These most
egregious facts must result in the
revocation of Respondent’s registration.
To allow Respondent to maintain any
controlled substance prescribing
authority in the face of the
egregiousness of the found facts, the
danger of his disregard for the CSA, and
the safety of his patients would send a
message to the current and prospective
registrant community that compliance
with the CSA is not a condition
precedent to the issuance and retention
of a registration. Garrett Howard Smith,
M.D., 83 FR 18910. Accordingly, the
Agency shall order the sanction the
may be entrusted with a registration, the salient
issue in this adjudication.
PO 00000
Frm 00078
Fmt 4703
Sfmt 4703
22481
Government requested, without
restricting Respondent from applying
for a registration in the future.
Order
Pursuant to 28 CFR 0.100(b) and the
authority vested in me by 21 U.S.C.
823(g)(1) and 824(a)(2), I hereby revoke
DEA Certificate of Registration
FK7432278 issued to Matthew S. Katz,
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 application of Matthew S.
Katz, M.D., to renew or modify this
registration, as well as for any other
pending application(s) of Matthew S.
Katz, M.D., for registration in
Tennessee. This Order is effective May
15, 2023.
Signing Authority
This document of the Drug
Enforcement Administration was signed
on April 10, 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. 2023–07834 Filed 4–12–23; 8:45 am]
BILLING CODE 4410–09–P
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On April 7, 2023, the Maxus
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Agencies
[Federal Register Volume 88, Number 71 (Thursday, April 13, 2023)]
[Notices]
[Pages 22480-22481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07834]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 22-53]
Matthew S. Katz, M.D.; Decision and Order
I. Introduction
On August 16, 2022, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Matthew S. Katz,
M.D. (Respondent), of Nashville, Tennessee, the state where Respondent
is registered with the DEA.\1\ OSC, at 1. The OSC proposes the
revocation of Respondent's DEA Certificate of Registration
(registration), FK7432278, and the denial of any applications for
renewal or modification of it, alleging that Respondent was convicted
of a Tennessee felony relating to controlled substances.\2\ Id., citing
21 U.S.C. 824(a)(2).\3\
---------------------------------------------------------------------------
\1\ Effective December 2, 2022, the Medical Marijuana and
Cannabidiol Research Expansion Act, Public Law 117-215, 136 Stat.
2257 (2022) (MRA), amended the Controlled Substances Act (CSA) and
other statutes. Relevant to this matter, the MRA redesignated 21
U.S.C. 823(f), cited in the OSC, as 21 U.S.C. 823(g)(1).
Accordingly, this Decision cites to the current designation, 21
U.S.C. 823(g)(1), and to the MRA-amended CSA throughout.
\2\ The OSC also seeks denial of ``any applications for any
other DEA registrations.'' OSC, at 1.
\3\ The OSC alleges that Respondent ``pled guilty'' to the Class
D felony, Tenn. Code Ann. section 53-11-402. OSC, at 2. The
Government acknowledges that Respondent pled ``nolo contendere.''
See, e.g., Government's Prehearing Statement (September 30, 2022),
at 2. The parties agree that Respondent's plea is subject to an
Order of Deferral. See, e.g. id.; Request for Hearing (September 22,
2022), at 1. The parties also agree that the Agency considers
Respondent's nolo contendere plea to be a ``conviction'' for
purposes of 21 U.S.C. 824(a)(4). Respondent's Post-Hearing Brief
(January 20, 2023) (Resp Posthearing), at 13.
---------------------------------------------------------------------------
The hearing Respondent requested was held on December 20, 2022. Tr.
1. Concluding that Respondent's acceptance of responsibility was short
of unequivocal, and that his misconduct was egregious, the Recommended
Rulings, Findings of Fact, Conclusions of Law, and Decision of the
Administrative Law Judge (RD) recommends that Respondent's registration
be revoked. RD, at 22-23. Given the egregiousness of the uncontested
facts and the facts based on substantial record evidence, the Agency
agrees with the RD that revocation is the appropriate sanction.
II. Findings
A. Background Findings
Having thoroughly analyzed the certified record, the Agency finds
substantial record evidence that: (1) Respondent prescribed Schedule II
controlled substances without a legitimate medical purpose, (2)
Respondent then instructed the patients to bring him the filled
prescriptions, and (3) Respondent took most of the controlled
substances for his own use after, he testified, making sure that the
patient did not need them to relieve pain. Stipulation No. 6; Resp
Posthearing, at 13. There is no record evidence that Respondent
complied with Tennessee's legal requirements for issuing controlled
substances. The Agency finds no record evidence that Respondent took
steps to make sure he did not over-prescribe opiates to individuals who
were already opioid-addicted, who were addicted to another substance,
or who were at a particular risk of becoming opioid-addicted.
B. Undisputed Matters of Fact and Law
The Agency finds, to Respondent's credit, that he advised the Chief
Administrative Law Judge and the Government that the Consent Order of
the Tennessee Board of Medical Examiners (TMB) restricts him from
prescribing Schedule II controlled substances in Tennessee for twelve
(12) months beginning on the date of the Consent Order's entry.\4\ TMB
Consent Order (entered September 27, 2022), RX 7, at 6, citing Tenn.
Comp. R. & Regs. 0880-02-.25 (2019). Indeed, the Agency finds that,
according to the Consent Order, Respondent's loss of authority in
Tennessee to prescribe Schedule II controlled substances predates the
Consent Order. RX 7, at 3 (``Due to the allegations in the indictment .
. ., the Respondent lost his authorization to prescribe Schedule II
controlled substances in this state until the criminal cases against
him reach final disposition.''). Accordingly, the Agency finds
uncontroverted record evidence that Respondent presently lacks
authority in Tennessee to prescribe Schedule II controlled substances.
---------------------------------------------------------------------------
\4\ The Consent Order also places Respondent's medical license
on probation for three years. RX 7, at 5.
---------------------------------------------------------------------------
Additionally, the parties agree to the following factual and legal
matters.
1. Respondent pled nolo contendere to three counts of obtaining
possession of oxycodone by misrepresentation, fraud, forgery, deception
or subterfuge, a Class D Tennessee felony. Tenn. Code Ann. section 53-
11-402(a)(3) and (b)(1); see, e.g., OSC, at 2; Stipulation No. 6; Resp
Posthearing, at 2, 13.
2. Prior Agency decisions state that a nolo contendere plea is a
``conviction'' for purposes of 21 U.S.C. 824(a)(2). See, e.g., Erica N.
Grant, M.D., 86 FR 40641, 40646-48 (2021) (collecting cases); Resp
Posthearing, at 13; but cf. Transcript of Guilty Plea Proceedings,
State of Tennessee v. Matthew S. J. Katz, No. 2021-B-794 (Criminal
Court for Davidson County, Tennessee, Division III, June 30, 2022), GX
3b, at 4 (The Court: ``So do you understand that this is a special
probation, that is . . . you're not going to be convicted, and it will
be removed from your record if you follow the conditions.'').
3. Respondent is not eligible for a Schedule II registration
because he lacks authority in Tennessee to dispense Schedule II
controlled substances. Resp Posthearing, at 16-17; Government's Post-
Hearing Brief (dated January 20, 2023) (Govt Posthearing), at 10.
III. Discussion
According to the Controlled Substances Act (CSA), the Attorney
General ``shall register practitioners . . . to dispense . . .
controlled substances . . . 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). The CSA defines ``practitioner'' as a
``physician . . . 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). The Agency has long
interpreted these two CSA provisions to mean that state authority to
dispense controlled substances is a prerequisite to the Agency's
issuance of a registration. See, e.g., Valerie Augustus, M.D., 88 FR
1098, 1099 (2023).
Further, the Attorney General is authorized to suspend or revoke a
registration ``upon a finding that the registrant . . . has been
convicted of a felony . . . of any State . . . relating to any
substance defined in this subchapter as a controlled substance . . .
.'' 21 U.S.C. 824(a)(2).
[[Page 22481]]
The Government has the burden of proof in this proceeding. 21 CFR
1301.44.
Based on undisputed factual and legal matters, the Agency finds
conclusive record evidence that: (1) Respondent lacks authority in
Tennessee to dispense Schedule II controlled substances, and (2) the
Government presented a prima facie case that Respondent is a felon
convicted of an offense relating to a controlled substance. Supra
section II.A. Accordingly, the Agency finds that: (1) Respondent is not
eligible for a registration to dispense Schedule II controlled
substances, and that (2) Respondent's registration, as to Schedules III
through V, is subject to revocation due to his felony conviction
relating to controlled substances. 21 U.S.C. 802(21), 823(g)(1); see,
e.g., Valerie Augustus, M.D., 88 FR 1099 (as to Schedule II
eligibility); 21 U.S.C. 824(a)(2); see, e.g., Johnny C. Benjamin, Jr.,
M.D., 86 FR 32280, 32282 (2021) (as to felony conviction).
IV. Sanction
Where, as here, the Government has met its prima facie burden of
showing that one or more grounds for revocation exists, the burden
shifts to the Respondent to show why he can be entrusted with a
registration.\5\ Garrett Howard Smith, M.D., 83 FR 18882 (2018).
Moreover, as past performance is the best predictor of future
performance, the Agency has required that a respondent must
unequivocally accept responsibility for the unlawful acts for which he
was convicted, and demonstrate that he will not engage in future
misconduct.\6\ Id. In addition, the Agency has found that the
egregiousness and extent of the misconduct are significant factors in
determining the appropriate sanction. Id. The Agency has also
considered the need to deter similar acts by applicants and by the
community of registrants. Id.
---------------------------------------------------------------------------
\5\ Respondent describes himself as a ``highly trained
vitreoretinal surgeon'' who ``credibly explained'' that ``he
developed an addiction to opioid pain killers'' after a back injury
that ``he attempted to manage himself.'' Resp Posthearing, at 3.
Although ``it felt appropriate to him'' at the time to manage
himself, ``he now acknowledges that behavior sounds `crazy' to
him.'' Id. Respondent's brief also states that he ``candidly
acknowledged he engaged in dishonest, inappropriate, and unlawful
behaviors in pursuit of substances to sustain the addiction.'' Id.;
infra. Respondent was not asked to address his listing of
``cocaine'' in the ``drug(s) of choice'' section of the Tennessee
Medical Foundation contract. RX 5, at 8.
\6\ Respondent argues that his ability to continue his medical
work requires his maintenance of a registration. See, e.g., Resp
Posthearing, at 11-12. After carefully reviewing his argument and
the bases he posits for it, including RX 4 and RX 6, the Agency
finds that the evidence Respondent, himself, offered belies this
argument. Indeed, the record includes evidence that Respondent's
skill, commitment to his sobriety, willingness to undergo extensive
monitoring, and the apparent good will he has engendered have been
sufficient for him to obtain and/or retain his current professional
employment. See, e.g., Resp Posthearing, at 7-12, 14-15.
The Agency notes that Respondent's argument, even if proven, is
irrelevant to whether Respondent may be entrusted with a
registration, the salient issue in this adjudication.
---------------------------------------------------------------------------
The OSC that initiated this adjudication alleges that the
registration of Respondent, who has been convicted of a felony relating
to a controlled substance, should be revoked. Supra section I. As
already discussed, the Agency is without authority to allow Respondent
to maintain his registration to dispense Schedule II controlled
substances. Supra section III. Accordingly, at a minimum, Respondent's
authorization to dispense Schedule II controlled substances must now be
revoked.
It is the Administrator's CSA-mandated exercise of discretion,
however, that determines whether Respondent will continue to hold a
registration to dispense Schedules III through V. 21 U.S.C. 824(a). The
parties disagree about whether Respondent unequivocally accepted
responsibility. See, e.g., Resp Posthearing, at 13-14; Govt Posthearing
at 6-9. The certified record in this matter is not sufficiently
developed to determine whether Respondent unequivocally accepted
responsibility. However, based on the facts in the certified record
that are well-developed and undisputed, the Agency concludes that
whether Respondent unequivocally accepted responsibility would not
impact a finding as to the appropriate sanction given the egregiousness
of Respondent's conduct.
In this matter, the Agency found substantial record evidence that,
regardless of the resulting harm his patients could suffer, Respondent
prescribed controlled substances so that he could divert at least a
portion of them to himself. See, e.g., Resp Posthearing, at 4-6, 13-14.
These most egregious facts must result in the revocation of
Respondent's registration. To allow Respondent to maintain any
controlled substance prescribing authority in the face of the
egregiousness of the found facts, the danger of his disregard for the
CSA, and the safety of his patients would send a message to the current
and prospective registrant community that compliance with the CSA is
not a condition precedent to the issuance and retention of a
registration. Garrett Howard Smith, M.D., 83 FR 18910. Accordingly, the
Agency shall order the sanction the Government requested, without
restricting Respondent from applying for a registration in the future.
Order
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21
U.S.C. 823(g)(1) and 824(a)(2), I hereby revoke DEA Certificate of
Registration FK7432278 issued to Matthew S. Katz, 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 application of Matthew S. Katz,
M.D., to renew or modify this registration, as well as for any other
pending application(s) of Matthew S. Katz, M.D., for registration in
Tennessee. This Order is effective May 15, 2023.
Signing Authority
This document of the Drug Enforcement Administration was signed on
April 10, 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. 2023-07834 Filed 4-12-23; 8:45 am]
BILLING CODE 4410-09-P