Thomas M. Fausset, O.D.; Decision and Order, 66141-66142 [2024-18096]

Download as PDF Federal Register / Vol. 89, No. 157 / Wednesday, August 14, 2024 / Notices According to Washington statute, ‘‘[a] practitioner may dispense or deliver a controlled substance to or for an individual or animal only for medical treatment or authorized research in the ordinary course of that practitioner’s profession.’’ Wash. Rev. Code section 69.50.308(j) (2024). Further, a ‘‘prescription’’ means ‘‘an order for controlled substances issued by a practitioner duly authorized by law or rule in the state of Washington to prescribe controlled substances within the scope of his or her professional practice for a legitimate medical purpose.’’ Id. section 69.50.101(oo). Finally, a ‘‘practitioner’’ as defined by Washington statute includes ‘‘[a] physician under chapter 18.71 RCW.’’ Id. section 69.50.101(nn)(1).4 Here, the undisputed evidence in the record is that Registrant currently lacks authority to practice medicine in Washington. As discussed above, a physician must be a licensed practitioner to dispense or prescribe a controlled substance in Washington. Thus, because Registrant currently lacks authority to practice medicine in Washington and, therefore, is not currently authorized to handle controlled substances in Washington, 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. BK4376112 issued to Irene Kimura, 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 Irene Kimura, M.D., to renew or modify this registration, as well as any other pending application of Irene Kimura, M.D., for additional registration in Washington. This Order is effective September 13, 2024. ddrumheller on DSK120RN23PROD with NOTICES1 Signing Authority This document of the Drug Enforcement Administration was signed on August 8, 2024, by Administrator 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 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. 4 Chapter 18.71 regulates physicians. VerDate Sep<11>2014 18:22 Aug 13, 2024 Jkt 262001 66141 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. 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), 1301.46. RFAA, at 2; see also 21 CFR 1316.67. Heather Achbach, Federal Register Liaison Officer, Drug Enforcement Administration. 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, effective April 22, 2023, the California State Board of Optometry revoked Registrant’s California optometry license. RFAAX 2, at 2. According to California online records, of which the Agency takes official notice, Registrant’s California optometry license remains revoked.2 California DCA License Search, https:// search.dca.ca.gov (last visited date of signature of this Order). Accordingly, the Agency finds that Registrant is not licensed to practice optometry in California, the state in which he is registered with DEA. [FR Doc. 2024–18100 Filed 8–13–24; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration Thomas M. Fausset, O.D.; Decision and Order On August 8, 2023, the Drug Enforcement Administration (DEA or Government) issued an Order to Show Cause (OSC) to Thomas Fausset O.D. (Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX) 2, at 1, 4. The OSC proposed the revocation of Registrant’s Certification of Registration No. MF5263481 at the registered address of 237 N Western Ave., Los Angeles, CA 90004. 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 California, the state in which he is registered with DEA.’’ Id. at 2 (citing 21 U.S.C. 824(a)(3)). 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 have waived his right to a hearing and be in default. Id. (citing 21 CFR 1301.43). Here, Registrant did not request a hearing. RFAA, at 2.1 ‘‘A default, unless excused, shall be deemed to constitute a waiver of the registrant’s/applicant’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 October 23, 2023, the Agency finds that service of the OSC on Registrant was adequate. Specifically, the submitted Declaration from a DEA Diversion Investigator indicates that Registrant was successfully mailed a copy of the OSC at both his last known home address and his registered address on August 11, 2023. RFAAX 3, at 2; see also RFAAX 3, Appendix A, at 1–2. PO 00000 Frm 00112 Fmt 4703 Sfmt 4703 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 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. E:\FR\FM\14AUN1.SGM 14AUN1 66142 Federal Register / Vol. 89, No. 157 / Wednesday, August 14, 2024 / Notices 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, ‘‘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 section 11010 (West 2024). 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. section 11026(c). Here, the undisputed evidence in the record is that Registrant currently lacks authority to practice optometry in California. As discussed above, an optometrist must be a licensed practitioner to dispense a controlled substance in California. Thus, because Registrant currently lacks authority to practice optometry in California and, therefore, is not currently 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. ddrumheller on DSK120RN23PROD with NOTICES1 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. MF5263481 issued to Thomas Fausset, O.D. Further, pursuant 3 This rule derives from the text of two provisions of the Controlled Substances Act (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). 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 71371–72; Sheran Arden Yeates, D.O., 71 FR 39130, 39131 (2006); Dominick A. Ricci, D.O., 58 FR 51104, 51,105 (1993); Bobby Watts, D.O., 53 FR 11919, 11920 (1988); Frederick Marsh Blanton, 43 FR 27617. VerDate Sep<11>2014 18:22 Aug 13, 2024 Jkt 262001 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 Thomas Fausset, O.D., to renew or modify this registration, as well as any other pending application of Thomas Fausset, O.D., for additional registration in California. This Order is effective September 13, 2024. Signing Authority This document of the Drug Enforcement Administration was signed on August 8, 2024, 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. 2024–18096 Filed 8–13–24; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration Michael L. Brodie, M.D.; Decision and Order On July 12, 2023, the Drug Enforcement Administration (DEA or Government) issued an Order to Show Cause (OSC) to Michael L. Brodie, M.D. (Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX) 1, at 1, 3. The OSC proposed the revocation of Registrant’s Certificate of Registration No. FB0279150 at the registered address of 2851 Geer Road, Suite B, Turlock, CA 95382. Id. at 1. The OSC alleged that Registrant’s registration should be revoked because Registrant is ‘‘currently without authority to prescribe, administer, dispense, or otherwise handle controlled substances in California, the state in which [he is] registered with DEA.’’ Id. at 2 (citing 21 U.S.C. 824(a)(3)). 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 have waived his right to a hearing and be in default. Id. (citing 21 CFR 1301.43). Here, Registrant did not PO 00000 Frm 00113 Fmt 4703 Sfmt 4703 request a hearing. RFAA, at 2.1 ‘‘A default, unless excused, shall be deemed to constitute a waiver of the registrant’s/applicant’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), 1301.46. RFAA, at 1; see also 21 CFR 1316.67. 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, effective March 2, 2023, Registrant surrendered his California medical license. RFAAX 1, at 1. According to California online records, of which the Agency takes official notice, Registrant’s California medical license remains surrendered.2 California DCA License Search, https:// search.dca.ca.gov (last visited date of signature of this Order). Accordingly, the Agency finds that Registrant is not licensed to practice medicine in California, the state in which he is registered with DEA. 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 1 Based on the Government’s submissions in its RFAA dated October 18, 2023, the Agency finds that service of the OSC on Registrant was adequate. Specifically, the submitted Declaration from a DEA Diversion Investigator includes as an attachment a Form DEA–12 signed by Registrant indicating that Registrant was personally served with the OSC on July 20, 2023. RFAAX 2, at 3. 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. E:\FR\FM\14AUN1.SGM 14AUN1

Agencies

[Federal Register Volume 89, Number 157 (Wednesday, August 14, 2024)]
[Notices]
[Pages 66141-66142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18096]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Thomas M. Fausset, O.D.; Decision and Order

    On August 8, 2023, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Thomas Fausset O.D. 
(Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX) 
2, at 1, 4. The OSC proposed the revocation of Registrant's 
Certification of Registration No. MF5263481 at the registered address 
of 237 N Western Ave., Los Angeles, CA 90004. 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 California, the state in which he is registered with DEA.'' 
Id. at 2 (citing 21 U.S.C. 824(a)(3)).
    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 have waived his right to a hearing and be in 
default. Id. (citing 21 CFR 1301.43). Here, Registrant did not request 
a hearing. RFAA, at 2.\1\ ``A default, unless excused, shall be deemed 
to constitute a waiver of the registrant's/applicant'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 
October 23, 2023, the Agency finds that service of the OSC on 
Registrant was adequate. Specifically, the submitted Declaration 
from a DEA Diversion Investigator indicates that Registrant was 
successfully mailed a copy of the OSC at both his last known home 
address and his registered address on August 11, 2023. RFAAX 3, at 
2; see also RFAAX 3, Appendix A, at 1-2.
---------------------------------------------------------------------------

    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] Sec.  1316.67.'' Id. Sec.  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), 1301.46. RFAA, at 2; see 
also 21 CFR 1316.67.

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, 
effective April 22, 2023, the California State Board of Optometry 
revoked Registrant's California optometry license. RFAAX 2, at 2. 
According to California online records, of which the Agency takes 
official notice, Registrant's California optometry license remains 
revoked.\2\ California DCA License Search, https://search.dca.ca.gov 
(last visited date of signature of this Order). Accordingly, the Agency 
finds that Registrant is not licensed to practice optometry 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

[[Page 66142]]

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 (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). 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 71371-72; Sheran Arden Yeates, D.O., 71 
FR 39130, 39131 (2006); Dominick A. Ricci, D.O., 58 FR 51104, 51,105 
(1993); Bobby Watts, D.O., 53 FR 11919, 11920 (1988); Frederick 
Marsh Blanton, 43 FR 27617.
---------------------------------------------------------------------------

    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 
section 11010 (West 2024). 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. section 11026(c).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice optometry in California. As 
discussed above, an optometrist must be a licensed practitioner to 
dispense a controlled substance in California. Thus, because Registrant 
currently lacks authority to practice optometry in California and, 
therefore, is not currently 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. 
MF5263481 issued to Thomas Fausset, O.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 Thomas Fausset, O.D., to renew 
or modify this registration, as well as any other pending application 
of Thomas Fausset, O.D., for additional registration in California. 
This Order is effective September 13, 2024.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
August 8, 2024, 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. 2024-18096 Filed 8-13-24; 8:45 am]
BILLING CODE 4410-09-P
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