[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
[Notices]
[Pages 67669-67671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27546]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 12-54]
Wayne D. Longmore, M.D.; Decision and Order
On September 6, 2012, Administrative Law Judge Gail A. Randall
issued the attached Recommended Decision. Neither party filed
exceptions to the Recommended Decision.
Having reviewed the entire record, I have decided to adopt the
ALJ's findings of fact, conclusions of law, and recommended order.
Accordingly, I will order that Respondent's DEA Certificate of
Registration be revoked and that any pending application to renew or
modify his registration be denied.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) &
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of
Registration Number BL9651250, issued to Wayne D. Longmore, M.D., be,
and it hereby is, revoked. I further order that any pending application
of Wayne D. Longmore, M.D., to renew or modify his registration, be,
and it hereby is, denied. This Order is effective December 13, 2012.
Dated: October 26, 2012.
Michele M. Leonhart,
Administrator.
Brian Bayly, Esq., for the Government.
Debra J. Young, Esq., for the Respondent.
Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision
of the Administrative Law Judge
I. Facts
Administrative Law Judge Gail A. Randall. The Deputy Assistant
Administrator, Drug Enforcement Administration (``DEA'' or
``Government''), issued an Order to Show Cause (``Order'') dated May
31, 2012, proposing to revoke the DEA Certificate of Registration, No.
BL9651250, of Wayne D. Longmore, M.D. (``Respondent''), as a
practitioner, pursuant to 21 U.S.C. 824(a)(4) (2006), and deny any
pending applications for renewal or modification of such registration
pursuant to 21 U.S.C. 823(f) (2006), because the continued registration
of the Respondent would be inconsistent with the public interest, as
that term is used in 21 U.S.C. 823(f), and because the Respondent lacks
the authority to practice medicine or handle controlled substances in
the state of New York pursuant to 21 U.S.C. 823(f)
[[Page 67670]]
and 824(a)(3) (2006). The Respondent's registration will expire by its
own terms on March 31, 2015.
Specifically, the Order alleged that the New York State Department
of Health, State Board for Professional Medical Conduct, (``New York
Board'') issued an Interim Order, effective April 3, 2012, in which
Respondent agreed to the suspension of his medical license while the
New York Board and DEA conducted investigations of his prescribing
practices. [Order at 1]. The Order further alleged that the Respondent
is without authority to handle controlled substances in the state of
New York, the state in where the Respondent is registered with the DEA,
and thus the DEA must revoke Respondent's DEA registration based on his
lack of authority to handle controlled substances in the state of New
York. [Id.]. Lastly, the Order alleged that between October 20, 2011,
and January 27, 2012, three undercover operatives, posing as patients,
made a total of ten visits to Respondent's office and at each visit
Respondent prescribed hydrocodone to them with no or insufficient
medical history, with no relevant physical examinations, without
diagnosing any medical conditions warranting such medications, and
without monitoring the patients to determine if the patients were
diverting the prescribed controlled substances. [Order at 2].
On July 17, 2012, the Respondent, through counsel, filed a request
for a hearing in the above-captioned matter. That same day, the Court
issued an Order for Prehearing Statements.
On July 20, 2012, the Government filed its Government's Motions for
Summary Judgment and to Stay the Proceedings (``Government's Motion'').
Therein, the Government requested that the Court summarily revoke
Respondent's DEA registration because the Respondent's New York state
medical license is under a temporary suspension order. [Government's
Motion at 1]. Alternatively, the Government requested that the Court
terminate Respondent's DEA registration because Respondent abandoned
his DEA registered location and thus, is not in compliance with 21
U.S.C. 822(e) (2006). [Id.].
The Government stated that Respondent was no longer authorized to
handle controlled substances in New York, the state where the
Respondent is registered with the DEA. [Id. at 2]. The Government
attached to its motion, a Stipulation and Application for an Interim
Order of Conditions pursuant to N.Y. Public Health Law Sec. 230
(``Interim Order''), dated March 27, 2012, in which the Respondent
agreed to the New York State Board's issuance of an Interim Order of
Conditions which precluded the Respondent from practicing medicine in
New York. [Government's Motion at Attachment 2]. Additionally, the
Government attached the Interim Order from the New York Board,
precluding Respondent from practicing medicine in New York, which
became effective on April 2, 2012. [Id. at Attachment 3]. The
Government argues, therefore, that in accordance with Agency precedent,
the DEA is barred by statute from continuing the Respondent's
registration because his state medical license was suspended. [Id. at
2]. In addition, the Government argues that the Respondent's
registration terminates as a matter of law under 21 U.S.C. 822(e)
because the Respondent is no longer practicing at his DEA registered
location. [Government's Motion at 3-4].
On July 24, 2012, the Court issued an Order for Respondent's
Response to the Government's Motion for Summary Judgment.
On July 24, 2012, Respondent filed a letter addressed to the Court
(``Respondent's Request''). Therein, Respondent requested that ``this
matter be stayed entirely pending resolution of the criminal charges.''
[Respondent's Request at 1].
On July 25, 2012, the Court issued an Order Denying Respondent's
Request to Stay Proceedings and further ordered Respondent to file a
response, if he so chooses, to the Government's Motion for Summary
Judgment.
On July 30, 2012, the Respondent filed Respondent's Response to the
Government's Motion for Summary Judgment (``Response''). Therein, the
Respondent argues that the revocation or termination of Dr. Longmore's
DEA registration is ``premature'' because the outcome of the pending
criminal matter against Dr. Longmore has not yet been resolved.
[Response at 1]. Additionally, Respondent argues that Dr. Longmore has
not committed any acts that would render his continued DEA registration
to be inconsistent with the public interest. [Response at 2]. Lastly,
the Respondent argues that the closing of Dr. Longmore's medical
practice, as a result of his consent order with the New York Board,
should not form the basis for termination of his DEA registration. [Id.
at 3].
For the reasons set forth below, I will grant the Government's
Motion and recommend that the Administrator revoke the Respondent's DEA
Certificate of Registration. But, I note that, pursuant to 21 C.F.R.
Sec. 1301.13(a) (2012), the Respondent may apply for a new DEA
Certificate of Registration at any time.
II. Discussion
A. Respondent Currently Lacks Authority To Handle Controlled Substances
in New York
The DEA will not maintain a controlled substances registration if
the registrant is without state authority to handle controlled
substances in the state in which the registrant practices. The
Controlled Substances Act (``CSA'') provides that obtaining a DEA
registration is conditional on holding a state license to handle
controlled substances. See 21 U.S.C. 802(21) (2006) (defining
``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. 823(f)
(2006) (``the Attorney General shall register practitioners * * * if
the applicant is authorized to dispense * * * controlled substances
under the laws of the State in which he practices''). The DEA,
therefore, has consistently held that the CSA requires the DEA to
revoke the registration of a practitioner who no longer possesses a
state license to handle controlled substances. See 21 U.S.C. 824(a)(3)
(2006) (stating ``a registration may be suspended or revoked by the
Attorney General upon a finding that the registrant has had his State
license or registration suspended, revoked or denied by competent State
authority''); Beverley P. Edwards, M.D., 75 FR 49,991 (DEA 2010);
Joseph Baumstarck, M.D., 74 FR 17,525 (DEA 2009).
In this case, the Respondent does not dispute that he currently
lacks state authority to handle controlled substances. However, the
Respondent argues that his temporary discontinuance of practicing
medicine in New York, under the Interim Order, is not sufficient to
require the revocation of his DEA registration. Respondent argues that
his DEA registration should not be revoked because he voluntarily
relinquished his right to practice medicine in New York while a
criminal investigation is pending against him. [Response at 1-2].
However, the Interim Order effectively suspends the Respondent's
license to practice medicine in New York until 30 days after the final
disposition of the open criminal investigation against the Respondent.
Regardless of the merit of Respondent's pending criminal case, he
currently lacks the necessary state authority to practice medicine and
to
[[Page 67671]]
handle controlled substances in New York. Consequently, his DEA
registration must be revoked.
Next, Respondent argues that his continued DEA registration would
not be inconsistent with the public interest and therefore, his DEA
registration should not be revoked. [Response at 2-3]. Respondent
argues that the factors to be considered in determining whether an
application for registration should be denied or revoked under 21
U.S.C. 824(a)(4) weigh in favor of maintaining the Respondent's DEA
registration because he has not issued any prescriptions that are
inconsistent with the public interest. [Id.].
While the Respondent may have raised genuine disputes of fact,
concerning the allegations in the Government's Order to Show Cause,
those disputes are immaterial in light of the Respondent's current lack
of state registration. Indeed, the CSA and Agency precedent make clear
that as a prerequisite to registration the Respondent must have state
authority to handle controlled substances, and that without such
authority all other issues before this forum are moot. See 21 U.S.C.
802(21); 21 U.S.C. 823(f); Joseph Baumstarck, M.D., 74 FR at 17,527
(DEA 2009). Thus, because there is no dispute that the Respondent lacks
state authority to handle controlled substances, the Respondent's
registration must be revoked.
B. There Is Insufficient Evidence That Respondent Has Permanently
Ceased the Practice of Medicine
A registrant's DEA registration terminates as a matter of law when
the registrant ceases to practice at his registered location. See 21
U.S.C. 822(e) (2006) (``A separate registration shall be required at
each principal place of business or professional practice where the
applicant manufactures, distributes, or dispenses controlled substances
of list I chemicals''); 21 CFR 1301.52(a) (2012) (``[T]he registration
of any person, and any modifications of that registration, shall
terminate, without any further action by the Administration, if and
when such person dies, ceases legal existence, discontinues business or
professional practice, or surrenders a registration''). In addition, a
registrant must either request that his DEA registered address be
changed or the registrant must notify the DEA that he is no longer
practicing at the place of business where he is registered. See 21 CFR
1301.51 (2010) (``Any registrant may apply to modify his/her
registration to authorize the handling of additional controlled
substances or to change his/her name or address, by submitting a letter
of request to the Registration Unit, Drug Enforcement
Administration''); 21 CFR 1301.52(c) (2011) (``Any registrant desiring
to discontinue business activities altogether or with respect to
controlled substances (without transferring such business activities to
another person) shall return for cancellation his/her certificate of
registration, and any unexecuted order forms in his/her possession, to
the Registration Unit, Drug Enforcement Administration'').
The Respondent does not dispute that he no longer is working at his
DEA registered location. However, the Respondent argues that the
closure of his medical practice at 104 Mill Road Woodstock, N.Y. is the
result of the consensual Interim Order issued by the New York Board and
cannot form the basis for a termination of his DEA registration.
[Response at 3].
In this case, there is insufficient evidence to support a finding
that the Respondent has permanently ceased the practice of medicine and
therefore, the Court declines to address the issue of whether or not
the Respondent's DEA registration terminates by operation of law. See
John B. Freitas, D.O., 74 FR 17,524, 17,525 (DEA 2009) (finding that a
registrant's registration had not terminated because the registrant had
not permanently ceased the practice of medicine or returned his
registration for cancellation); William R. Lockridge, M.D., 71 FR
77,791, 77,797 (DEA 2006) (interpreting 21 CFR 1301.52(a) to require a
registrant to permanently cease the practice of medicine). Therefore,
because there is insufficient evidence to determine whether the
Respondent intends to permanently cease the practice of medicine, the
Court declines to address whether the Respondent's DEA registration has
terminated as a matter of law.
C. Respondent Is Entitled To Reapply for Registration With the DEA
Any person who is required to register with the DEA may apply for
registration at any time. 21 CFR 1301.13(a) (2012) (``Any person who is
required and who is not registered may apply for registration at any
time. No person required to be registered shall engage in any activity
for which registration is required until the application for
registration is granted and a Certificate of Registration is issued by
the Administrator to such person'').
Respondent requests that he be able to reapply for a Certificate of
Registration with the DEA, when, and if, his medical license becomes
active. [Response at 3].
The Respondent is permitted to reapply for a Certificate of
Registration with the DEA at any time in the future. 21 CFR 1301.13(a).
However, the Respondent will not be permitted to engage in activity for
which a registration is required until his application is granted by
the DEA. Id.
III. Conclusion, Order, and Recommendation
Consequently, there is no genuine dispute of material fact
regarding the Respondent's lack of state authority to handle controlled
substances. Thus, summary judgment for the Government is appropriate.
It is well settled that when there is no question of material fact
involved, there is no need for a plenary, administrative hearing. See
Michael G. Dolin, M.D., 65 Fed. Reg. 5,661 (DEA 2000). Here, there is
no genuine dispute that the Respondent currently lacks state authority
to practice medicine and to handle controlled substances in New York.
Accordingly, I hereby grant the Government's Motion for Summary
Judgment.
I also forward this case to the Deputy Administrator for final
disposition. I recommend that the Respondent's DEA Certificate of
Registration, Number BL9651250, be revoked.\1\
---------------------------------------------------------------------------
\1\ The sole basis of my recommendation is the loss of
Respondent's state licensure. I make no findings or conclusions
concerning the other allegations asserted in the Order to Show
Cause.
---------------------------------------------------------------------------
September 6, 2012.
Gail A. Randall,
Administrative Law Judge.
[FR Doc. 2012-27546 Filed 11-9-12; 8:45 am]
BILLING CODE 4410-09-P