Gary R. Wisner, M.D.; Decision and Order, 86944-86945 [2023-27522]
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Federal Register / Vol. 88, No. 240 / Friday, December 15, 2023 / Notices
ddrumheller on DSK120RN23PROD with NOTICES1
believe that Respondent’s future
controlled substance prescription filling
will comply with legal requirements.10
Indeed, Respondent’s owner/PIC’s own
testimony suggests that he has no
intention of complying with the CSA in
the future because he believes
compliance is unduly burdensome.11
Further, given the foundational nature
and vast number of Respondent’s
violations, a sanction less than
revocation would send a message to the
existing and prospective registrant
community that compliance with the
law is not a condition precedent to
maintaining a registration.
The Agency finds that it cannot
entrust Respondent with a
registration.12 It finds that Respondent’s
actions were motivated by profiting
while avoiding DEA’s detection and
lacked any genuine care for the health
and welfare of its customers. For
example, the record evidence shows
that Respondent coached customers
regarding what to write on their forms
in order to get the desired controlled
substances, see, e.g., GX 5, at 3, 4, and
shows the complete willingness of
Respondent’s owner/PIC to continue to
fill the controlled substance
prescriptions that S/A and undercover
officer ‘‘sponsors’’ were bringing him.
GX 5, at 1, 7.13
Respondent’s owner/PIC’s testimony
regarding those matters further erodes
the Agency’s trust in the truthfulness of
Respondent’s owner/PIC and in the
10 The Agency notes the record evidence, in GX
5, of two incidents when Respondent’s owner/PIC
declined to provide the undercover officers with
additional controlled substances without a
prescription. GX 5, at 6, 8–9. These incidents do not
excuse Respondent’s owner/PIC’s otherwise laserfocused pursuit of controlled substances sales
regardless of legal requirements. Supra section II.
11 Respondent’s owner/PIC testified that ‘‘filling
controls is a lot of headache. You have to record
it down, you have to go through a lot of process,
and nobody wants to deal with that.’’ Tr. 297.
Respondent’s owner/PIC further testified that when
he worked for larger pharmacies in the past, he
would tell customers that controlled substances
were not in stock because he got paid the same
amount whether he filled controlled or noncontrolled substances. Id. He testified, ‘‘why would
pharmacies . . . want to fill a control medication
for somebody when it can come back to haunt him
when he can say I don’t have it, I will fill just the
non-controls.’’ Id.
12 While only the evidence relating to the found
violation, supra, was used to determine that the
Government made a prima facie case, the entire
record supports the Agency’s determination that
Respondent’s owner/PIC is not credible and that,
therefore, the Agency cannot entrust Respondent
with a registration.
13 GX 5, at 1 (‘‘S/A: ‘Can I drop you some more
scripts?’ . . . . Respondent’s owner/PIC: ‘How
many is there?’ ’’); GX 5, at 7 (‘‘Undercover Officer:
‘I got some more people I’m taking to the doc. you
good with me bringing them here again? Um next
week.’ . . . . Respondent’s owner/PIC: ‘Next week,
yeah, next week that’s fine.’ ’’).
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17:57 Dec 14, 2023
Jkt 262001
ability of Respondent to maintain a
registration in compliance with the law.
In sum, the record supports the
imposition of a sanction because
Respondent did not unequivocally
accept responsibility for its egregious
and extensive violations, and has not
convinced the Agency that it can be
entrusted with a registration.
Accordingly, the Agency shall order
the sanction the Government requested,
as contained in the Order below.
Order
Pursuant to 28 CFR 0.100(b) and the
authority vested in me by 21 U.S.C.
824(a)(4), I hereby revoke DEA
registration No. FA5493363 issued to
APEXX Pharmacy, LLC. 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 APEXX Pharmacy, LLC,
for a DEA Registration in Florida. This
Order is effective January 16, 2024.
Signing Authority
This document of the Drug
Enforcement Administration was signed
on December 7, 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. 2023–27524 Filed 12–14–23; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Gary R. Wisner, M.D.; Decision and
Order
On March 1, 2023, the Drug
Enforcement Administration (DEA or
Government) issued an Order to Show
Cause (OSC) to Gary R. Wisner, M.D.
(Registrant). Request for Final Agency
Action (RFAA), Exhibit (RFAAX) 1, at 1,
3. The OSC proposed the revocation of
Registrant’s Certificates of Registration
(COR) Nos. FW8432471 and
AW2971073 at the registered addresses
of 621 S. Ham Ln., Ste. A, Lodi,
PO 00000
Frm 00072
Fmt 4703
Sfmt 4703
California 95242, and 16246 N. Locust
Tree Road, Lodi, California 95240,
respectively. Id. at 1. The OSC alleged
that Registrant’s registrations should be
revoked because Registrant was
‘‘without authority to prescribe,
administer, dispense, or otherwise
handle controlled substances in the
State of California, the state in which
[he is] registered with DEA.’’ Id. at 2
(citing, inter alia, 21 U.S.C. 824(a)(3); 21
CFR 1301.37(b)).
The OSC notified Registrant of his
right to file with DEA a written request
for hearing, and that if he failed to file
such a request, he would be deemed to
be in default. Id. at 2 (citing 21 CFR
1301.43(c)(1)). Here, Registrant did not
request a hearing. RFAA, at 1.1 ‘‘A
default, unless excused, shall be
deemed to constitute a waiver of the
[registrant’s] right to a hearing and an
admission of the factual allegations of
the [OSC].’’ 21 CFR 1301.43(e).
Further, ‘‘[i]n the event that a
registrant . . . is deemed to be in
default . . . DEA may then file a request
for final agency action with the
Administrator, along with a record to
support its request. In such
circumstances, the Administrator may
enter a default final order pursuant to
[21 CFR] 1316.67.’’ Id. 1301.43(f)(1).
Here, the Government has requested
final agency action based on Registrant’s
default pursuant to 21 CFR 1301.43(c),
(f), and 1301.46. RFAA, at 1.
Findings of Fact
The Agency finds that, in light of
Registrant’s default, the factual
allegations in the OSC are admitted.
According to the OSC, ‘‘[e]ffective
January 30, 2023, as part of an
agreement with the [Medical Board of
California] . . . [Registrant] surrendered
[his] license to practice medicine in the
State of California.’’ RFAAX 1, at 1–2.
According to California’s online
records, of which the Agency takes
official notice, the status of Registrant’s
physician and surgeon license (type A)
is listed as surrendered, and he is not
permitted to practice.2 California
1 Based on the Government’s submissions in its
RFAA dated August 3, 2023, the Agency finds that
service of the OSC on Registrant was adequate.
Specifically, the included declaration by a DEA
Diversion Investigator (DI) indicates that on March
13, 2023, the DI personally ‘‘served [Respondent] a
copy of the [OSC] by hand delivery.’’ RFAAX 2, at
1.
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
E:\FR\FM\15DEN1.SGM
15DEN1
Federal Register / Vol. 88, No. 240 / Friday, December 15, 2023 / Notices
Department of Consumer Affairs,
License Search, https://search.dca.
ca.gov/ (last visited date of signature of
this Order). Therefore, the Agency finds
that Registrant is not currently
authorized to dispense or handle
controlled substances in California, the
state in which he is registered with
DEA.
Discussion
ddrumheller on DSK120RN23PROD with NOTICES1
Pursuant to 21 U.S.C. 824(a)(3), the
Attorney General is authorized to
suspend or revoke a registration issued
under 21 U.S.C. 823 ‘‘upon a finding
that the registrant . . . has had his State
license or registration suspended . . .
[or] revoked . . . by competent State
authority and is no longer authorized by
State law to engage in the . . .
dispensing of controlled substances.’’
With respect to a practitioner, DEA has
also long held that the possession of
authority to dispense controlled
substances under the laws of the state in
which a practitioner engages in
professional practice is a fundamental
condition for obtaining and maintaining
a practitioner’s registration. See, e.g.,
James L. Hooper, D.O., 76 FR 71371,
71372 (2011), pet. for rev. denied, 481
F. App’x 826 (4th Cir. 2012); Frederick
Marsh Blanton, D.O., 43 FR 27616,
27617 (1978).3
According to California statute and
relevant to Registrant’s COR, ‘‘[n]o
person other than a physician . . . shall
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.
3 This rule derives from the text of two provisions
of the Controlled Substances Act. 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). Because Congress has clearly mandated
that a practitioner possess state authority in order
to be deemed a practitioner under the CSA, DEA
has held repeatedly that revocation of a
practitioner’s registration is the appropriate
sanction whenever 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,
D.O., 71 FR 39130, 39131 (2006); Dominick A. Ricci,
D.O., 58 FR 51104, 51105 (1993); Bobby Watts, D.O.,
53 FR 11919, 11920 (1988); Frederick Marsh
Blanton, 43 FR 27617.
VerDate Sep<11>2014
17:57 Dec 14, 2023
Jkt 262001
write or issue a prescription.’’ 4 Cal.
Health & Safety Code 11150. Further,
‘‘physician,’’ as defined by California
statute, is a person who is ‘‘licensed to
practice’’ in California. Id. 11024.
Here, the evidence in the record is
that Registrant currently lacks authority
to handle controlled substances in
California because his California
physician and surgeon license has been
surrendered. As already discussed, a
person must hold a valid license to
dispense a controlled substance in
California. Thus, because Registrant
lacks authority to handle controlled
substances in California, Registrant is
not eligible to maintain a DEA
registration. Accordingly, the Agency
will order that Registrant’s DEA
registrations 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 Certificates
of Registration Nos. FW8432471 and
AW2971073 issued to Gary R. Wisner,
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 Gary R.
Wisner, M.D., to renew or modify these
registrations, as well as any other
pending application of Gary R. Wisner,
M.D., for additional registration in
California. This Order is effective
January 16, 2024.
Signing Authority
This document of the Drug
Enforcement Administration was signed
on December 7 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. 2023–27522 Filed 12–14–23; 8:45 am]
BILLING CODE 4410–09–P
4 Although additional specified categories of
persons are permitted to write or issue
prescriptions, none of those practitioner categories
are applicable to Registrant.
PO 00000
Frm 00073
Fmt 4703
Sfmt 4703
86945
DEPARTMENT OF LABOR
Bureau of Labor Statistics
Technical Advisory Committee;
Request for Nominations
Bureau of Labor Statistics
(BLS), Department of Labor.
ACTION: Request for nominations.
AGENCY:
The BLS is soliciting new
members for the Technical Advisory
Committee (TAC) to address four
member terms expiring on April 13,
2024, and any additional vacancies that
may occur on the TAC between the date
of publication of this notice and April
13, 2024.
DATES: Nominations for the TAC
membership should be transmitted by
January 16, 2024.
ADDRESSES: Nominations for the TAC
membership should be emailed to
BLSTAC@bls.gov. Nominations are only
being accepted through email as BLS is
in maximum telework status pending its
relocation to Suitland.
FOR FURTHER INFORMATION CONTACT: Jay
Stewart, Senior Research Economist,
U.S. Bureau of Labor Statistics.
Telephone: 202–691–7376. This is not a
toll-free number. Email: BLSTAC@
bls.gov.
SUMMARY:
The TAC
provides advice to the Bureau of Labor
Statistics on technical aspects of data
collection and the formulation of
economic measures and makes
recommendations on areas of research.
On some technical issues, there are
differing views and receiving feedback
at public meetings provides BLS with
the opportunity to consider all
viewpoints.
The Committee consists of
approximately 16 members who serve as
Special Government Employees.
Members are appointed by the BLS and
are approved by the Secretary of Labor.
Committee members are experts in
economics, statistics, data science, and
survey design. Members typically have
Ph.D.s in their field and have significant
experience. They are prominent experts
in their fields and recognized for their
professional achievements and
objectivity. The economic experts will
have research experience with technical
issues related to BLS data and will be
familiar with employment and
unemployment statistics, price index
numbers, compensation measures,
productivity measures, occupational
and health statistics, or other topics
relevant to BLS data series. The
statistical experts will have experience
with sample design, data analysis,
SUPPLEMENTARY INFORMATION:
E:\FR\FM\15DEN1.SGM
15DEN1
]]>Agencies
[Federal Register Volume 88, Number 240 (Friday, December 15, 2023)]
[Notices]
[Pages 86944-86945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27522]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Gary R. Wisner, M.D.; Decision and Order
On March 1, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Gary R. Wisner, M.D.
(Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX)
1, at 1, 3. The OSC proposed the revocation of Registrant's
Certificates of Registration (COR) Nos. FW8432471 and AW2971073 at the
registered addresses of 621 S. Ham Ln., Ste. A, Lodi, California 95242,
and 16246 N. Locust Tree Road, Lodi, California 95240, respectively.
Id. at 1. The OSC alleged that Registrant's registrations should be
revoked because Registrant was ``without authority to prescribe,
administer, dispense, or otherwise handle controlled substances in the
State of California, the state in which [he is] registered with DEA.''
Id. at 2 (citing, inter alia, 21 U.S.C. 824(a)(3); 21 CFR 1301.37(b)).
The OSC notified Registrant of his right to file with DEA a written
request for hearing, and that if he failed to file such a request, he
would be deemed to be in default. Id. at 2 (citing 21 CFR
1301.43(c)(1)). Here, Registrant did not request a hearing. RFAA, at
1.\1\ ``A default, unless excused, shall be deemed to constitute a
waiver of the [registrant's] right to a hearing and an admission of the
factual allegations of the [OSC].'' 21 CFR 1301.43(e).
---------------------------------------------------------------------------
\1\ Based on the Government's submissions in its RFAA dated
August 3, 2023, the Agency finds that service of the OSC on
Registrant was adequate. Specifically, the included declaration by a
DEA Diversion Investigator (DI) indicates that on March 13, 2023,
the DI personally ``served [Respondent] a copy of the [OSC] by hand
delivery.'' RFAAX 2, at 1.
---------------------------------------------------------------------------
Further, ``[i]n the event that a registrant . . . is deemed to be
in default . . . DEA may then file a request for final agency action
with the Administrator, along with a record to support its request. In
such circumstances, the Administrator may enter a default final order
pursuant to [21 CFR] 1316.67.'' Id. 1301.43(f)(1). Here, the Government
has requested final agency action based on Registrant's default
pursuant to 21 CFR 1301.43(c), (f), and 1301.46. RFAA, at 1.
Findings of Fact
The Agency finds that, in light of Registrant's default, the
factual allegations in the OSC are admitted. According to the OSC,
``[e]ffective January 30, 2023, as part of an agreement with the
[Medical Board of California] . . . [Registrant] surrendered [his]
license to practice medicine in the State of California.'' RFAAX 1, at
1-2.
According to California's online records, of which the Agency takes
official notice, the status of Registrant's physician and surgeon
license (type A) is listed as surrendered, and he is not permitted to
practice.\2\ California
[[Page 86945]]
Department of Consumer Affairs, License Search, https://search.dca.ca.gov/ (last visited date of signature of this Order).
Therefore, the Agency finds that Registrant is not currently authorized
to dispense or handle controlled substances in California, the state in
which he is registered with 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 21 U.S.C. 823 ``upon a
finding that the registrant . . . has had his State license or
registration suspended . . . [or] revoked . . . by competent State
authority and is no longer authorized by State law to engage in the . .
. dispensing of controlled substances.'' With respect to a
practitioner, DEA has also long held that the possession of authority
to dispense controlled substances under the laws of the state in which
a practitioner engages in professional practice is a fundamental
condition for obtaining and maintaining a practitioner's registration.
See, e.g., James L. Hooper, D.O., 76 FR 71371, 71372 (2011), pet. for
rev. denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh Blanton,
D.O., 43 FR 27616, 27617 (1978).\3\
---------------------------------------------------------------------------
\3\ This rule derives from the text of two provisions of the
Controlled Substances Act. 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). Because Congress has clearly mandated that a
practitioner possess state authority in order to be deemed a
practitioner under the CSA, DEA has held repeatedly that revocation
of a practitioner's registration is the appropriate sanction
whenever 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, D.O.,
71 FR 39130, 39131 (2006); Dominick A. Ricci, D.O., 58 FR 51104,
51105 (1993); Bobby Watts, D.O., 53 FR 11919, 11920 (1988);
Frederick Marsh Blanton, 43 FR 27617.
---------------------------------------------------------------------------
According to California statute and relevant to Registrant's COR,
``[n]o person other than a physician . . . shall write or issue a
prescription.'' \4\ Cal. Health & Safety Code 11150. Further,
``physician,'' as defined by California statute, is a person who is
``licensed to practice'' in California. Id. 11024.
---------------------------------------------------------------------------
\4\ Although additional specified categories of persons are
permitted to write or issue prescriptions, none of those
practitioner categories are applicable to Registrant.
---------------------------------------------------------------------------
Here, the evidence in the record is that Registrant currently lacks
authority to handle controlled substances in California because his
California physician and surgeon license has been surrendered. As
already discussed, a person must hold a valid license to dispense a
controlled substance in California. Thus, because Registrant lacks
authority to handle controlled substances in California, Registrant is
not eligible to maintain a DEA registration. Accordingly, the Agency
will order that Registrant's DEA registrations 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 Certificates of Registration Nos.
FW8432471 and AW2971073 issued to Gary R. Wisner, 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 Gary R. Wisner,
M.D., to renew or modify these registrations, as well as any other
pending application of Gary R. Wisner, M.D., for additional
registration in California. This Order is effective January 16, 2024.
Signing Authority
This document of the Drug Enforcement Administration was signed on
December 7 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. 2023-27522 Filed 12-14-23; 8:45 am]
BILLING CODE 4410-09-P
