[Federal Register Volume 82, Number 224 (Wednesday, November 22, 2017)]
[Notices]
[Pages 55642-55643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25288]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 17-35]
First Choice Surgery Center of Baton Rouge, L.L.C.; Decision and
Order
On May 24, 2017, the Assistant Administrator, Diversion Control
Division, issued an Order to Show Cause to First Choice Surgery Center
of Baton Rouge, L.L.C (Respondent), of Baton Rouge, Louisiana. The Show
Cause Order proposed the revocation of Respondent's DEA Certificate of
Registration No. FF4394209, on the ground that ``the clinic does not
have authority to dispense controlled substances in Louisiana, the
[S]tate in which the clinic is located.'' Show Cause Order, at 1
(citing 21 U.S.C. 823(f) and 824(a)(3)). The Show Cause Order also
proposed revocation on the ground that Respondent's owner, ``Dr. Arnold
Feldman, M.D., has been found guilty by the Louisiana State Board of
Medical Examiners of misconduct related to controlled substances.'' Id.
(citing 21 U.S.C. 823(f) and 824(a)(2); 21 CFR 1306.04).
As to the jurisdictional basis for the proceeding, the Show Cause
Order alleged that Respondent is ``registered . . . as a hospital/
clinic in [s]chedules II-V pursuant to [Registration No.] FF4394209 at
505 East Airport Drive, Baton Rouge, Louisiana.'' Id. at 2. The Order
alleged that this registration does not expire until ``September 30,
2019.'' Id.
As to the substantive grounds for the proceeding, the Show Cause
Order alleged that Respondent ``is without authority to dispense
controlled substances in Louisiana.'' Id. The Show Cause Order alleged
that while Respondent ``previously held'' a Louisiana controlled
substance license, ``[t]his license expired on September 23, 2016 and
has not been renewed.'' Id. The Order then asserted that ``based upon
[Respondent's] lack of [s]tate authority to dispense controlled
substances in . . . Louisiana,'' its registration must be revoked. Id.
As to the allegation based on its owner's misconduct, the Show
Cause Order alleged that ``[o]n August 15, 2016, the Louisiana State
Board of Medical Examiners found [Respondent's owner] guilty of
violating [state law] by giving his staff pre-signed controlled
substance prescriptions and/or allowing his staff to utilize a `Ghost
writer' to affix his signature to controlled substances
prescriptions.'' Id. The Order further alleged that its owner's conduct
violated 21 U.S.C. 841(a)(1) and 21 CFR 1306.04. Id.
The Show Cause Order notified Respondent of its right to request a
hearing on the allegations or to submit a written statement while
waiving its right to a hearing and the procedure for electing either
option. Id. (citing 21 CFR 1301.43). In addition, the Order notified
Respondent of its right to submit a corrective action plan pursuant to
21 U.S.C. 824(c)(2)(C). Id. at 3-4.
On June 15, 2017, Respondent, through its counsel, requested a
hearing on the allegations. Letter from Respondent to Hearing Clerk,
Office of Administrative Law Judges (June 15, 2017). The matter was
assigned to Administrative Law Judge Charles Wm. Dorman (hereinafter,
ALJ), who, on June 16, 2017, issued an order directing the Government
to file evidence supporting the allegations by June 29, 2017 at 2 p.m.,
as well any motion for summary disposition. Briefing Schedule For Lack
Of State Authority Allegations, at 1. The ALJ's order also provided
that if the Government moved for summary disposition, Respondent's
opposition was due by July 13, 2017 at 2 p.m. Id.
On June 20, 2017, the Government filed its Motion for Summary
Disposition. In its Motion, the Government argued that Respondent is a
``practitioner'' under the CSA and that because its ``state authority
has terminated, [it] no longer meets the statutory definition of a
practitioner'' and is not entitled to maintain its registration.
Motion, at 3. The Government thus sought a Recommendation that
Respondent's registration be revoked. Id.
As support for its motion, the Government provided: (1) A copy of
Respondent's registration; (2) a letter dated May 22, 2017 from the
Assistant Executive Director of the Louisiana Board of Pharmacy to a
DEA Diversion Investigator (DI) stating that Respondent's Louisiana
Controlled Dangerous Substance (CDS) license expired September 23,
2016; (3) a November 16, 2016 Order of the Louisiana Board of Pharmacy
indefinitely suspending the Controlled Dangerous Substance license of
Arnold E. Feldman based on the suspension of his Louisiana Medical
license; and (4) a declaration of the aforementioned DI that Respondent
``currently has no authority to handle controlled substances in
Louisiana.'' Mot. for Summ. Disp., Appendices A, B, and C. The
Government did not, however, seek summary disposition based on the
allegation that Respondent's owner had been found guilty by the
Louisiana Board of misconduct related to controlled substances. Compare
Mot. for Summ. Disp. with Show Cause Order, at 1-2.
Respondent did not file a Reply to the Government's Motion, and on
July 25, 2017, the ALJ granted the Government's Motion. Order Granting
Summary Disposition (R.D.), at 3, 6. Noting that the Government had
``provided a certified letter from the Louisiana Board of Pharmacy
indicating that the Respondent held Louisiana Board of Pharmacy Number
CDS.043803-ASC, but that this license expired on September 23, 2016,''
id. at 2, the ALJ found it ``undisputed that the Respondent lacks state
authorization to dispense controlled substances in Louisiana, where
[it] is registered.'' Id. at 5. Applying the Agency's longstanding rule
``that a practitioner must be currently authorized to dispense
controlled substances by the State in which [it] practices in order to
obtain and maintain a registration,'' id. at 4 (citation omitted), the
ALJ concluded that ``Respondent cannot maintain a DEA registration for
any location in'' Louisiana and recommended that I revoke its
registration.\1\ Id. at 5-6.
---------------------------------------------------------------------------
\1\ With respect to the allegation that Respondent's owner had
been found guilty of misconduct by the Louisiana Board of Medical
Examiners, the ALJ noted that [t]he Government did not provide any
argument or evidence in its Motion.'' R.D. 6 n.1. However, as the
ALJ observed, ``Respondent's lack of state authority to dispense
controlled substances is a sufficient independent ground to
recommend the revocation of [its] registration.'' Id.
---------------------------------------------------------------------------
[[Page 55643]]
Having considered the record, I adopt the ALJ's finding of fact
that Respondent's Louisiana CDS license has expired and his of
conclusion of law that Respondent lacks state authorization to dispense
controlled substances in Louisiana. I will therefore adopt the ALJ's
recommendation that I revoke Respondent's registration. I make the
following findings.
Findings of Fact
Respondent is the holder of DEA Certificate of Registration No.
FF4394209, pursuant to which it is authorized to dispense controlled
substances in schedules II through V as a Hospital/Clinic, at the
registered address of: First Choice Surgery Center of Baton Rouge,
L.L.C., 505 East Airport Drive, Baton Rouge, Louisiana. Mot. for Summ.
Disp., Appendix A. This registration does not expire until September
30, 2019. Id. Respondent is owned by Arnold E. Feldman, M.D. Resp.'s
Hrng. Req, at 1.
Respondent also previously held Louisiana Controlled Dangerous
Substance License No.043803-ASC. Id., at Appendix B. However,
Respondent allowed this license to expire on September 23, 2016. Id.
Accordingly, I find that Respondent currently lacks authority to
dispense controlled substances under the laws of the State of
Louisiana.
Discussion
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized
to suspend or revoke a registration issued under section 823 of the
Controlled Substances Act (CSA), ``upon a finding that the registrant .
. . has had [its] State license . . . 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, which includes a hospital or clinic, see 21 U.S.C.
802(21), DEA has 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, 76 FR 71371 (2011), pet. for rev. denied,
481 Fed. Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, 43 FR
27616 (1978).
This rule derives from the text of two other provisions of the CSA,
section 802(21), which defines the term ``practitioner,'' and section
823(f), which sets forth the registration requirements for
practitioners. Notably, in section 802(21), Congress defined ``the term
`practitioner' [to] mean[ ] a . . . physician . . . hospital, 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) (emphasis added). The text of this
provision makes clear that a hospital is not a practitioner within the
meaning of the CSA if it is not ``licensed, registered or otherwise
permitted, by the jurisdiction in which [it] practices . . . to
dispense [or] administer . . . a controlled substance in the course of
professional practice.'' Id.
To the same effect, Congress, in setting the requirements for
obtaining a practitioner's registration, 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 [it] practices.'' 21 U.S.C. 823(f). Based on these
provisions, the Agency held nearly forty years ago that ``[s]tate
authorization to dispense or otherwise handle controlled substances is
a prerequisite to the issuance and maintenance of a Federal controlled
substances registration.'' Blanton, 43 FR at 27617 (revoking
physician's registration based on one-year suspension of his state
license) (emphasis added).
Having allowed its Louisiana CDS license to expire, Respondent is
no longer authorized to dispense controlled substances in the State.\2\
Because Congress has clearly mandated that a practitioner possess state
authority in order to be deemed a practitioner under the Act, and
Respondent is no longer authorized to dispense controlled substances
under the laws of Louisiana, the State in which it is registered, I
adopt the ALJ's recommended order and will order that its registration
be revoked. See, e.g., Hooper, 76 FR at 71371-72; Sheran Arden Yeates,
71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105
(1993); Bobby Watts, 53 FR 11919, 11920 (1988); Blanton, 43 FR at
27616.
---------------------------------------------------------------------------
\2\ Subsequent to the ALJ's issuance of his Recommended
Decision, Respondent has not filed a motion supported by any
evidence that its CDS license has been reinstated with either the
ALJ or my Office.
---------------------------------------------------------------------------
Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well
as 28 CFR 0.100(b), I order that DEA Certificate of Registration No.
FF4394209 issued to First Choice Surgery Center of Baton Rouge, L.L.C.,
be, and it hereby is, revoked. This order is effective immediately.\3\
---------------------------------------------------------------------------
\3\ As found above, Respondent is owned by Dr. Arnold E.
Feldman. For the same reasons which led the former Acting
Administrator to revoke Dr. Feldman's Louisiana registration with an
immediate effective date, see Arnold E. Feldman, 82 FR 39614, 39618
& n.8 (2017), I conclude that the public interest necessitates that
this Order be effective immediately. 21 CFR 1316.67.
Dated: November 13, 2017.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2017-25288 Filed 11-21-17; 8:45 am]
BILLING CODE 4410-09-P