Lawrence E. Stewart; Decision and Order

Published date22 March 2021
Citation86 FR 15257
Record Number2021-05845
SectionNotices
CourtDrug Enforcement Administration,Justice Department
Federal Register, Volume 86 Issue 53 (Monday, March 22, 2021)
[Federal Register Volume 86, Number 53 (Monday, March 22, 2021)]
                [Notices]
                [Pages 15257-15258]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-05845]
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                 DEPARTMENT OF JUSTICE
                Drug Enforcement Administration
                Lawrence E. Stewart; Decision and Order
                 On June 12, 2017, the Assistant Administrator, Diversion Control
                Division, Drug Enforcement Administration (hereinafter, DEA or
                Government), issued an Order to Show Cause to Lawrence E. Stewart, M.D.
                (hereinafter, Respondent), of Summit, Mississippi. Order to Show Cause
                (hereinafter, OSC), at 1. The OSC proposed the denial of Respondent's
                application for a DEA Certificate of Registration because Respondent
                had committed acts that rendered his registration with DEA inconsistent
                with the public interest. Id. (citing 21 U.S.C. 823(f) and 824(a)(2),
                (4)).
                 On July 27, 2017, Respondent submitted a timely written statement
                in response to the OSC waiving his right to a hearing. Request for
                Final Agency Action Exhibit (hereinafter, RFAAX) 3. In lieu of a
                hearing, Respondent submitted a Statement of Position on the Facts and
                Law (hereinafter, Statement) regarding the matters alleged in the OSC.
                Id.
                 The Government filed a Request for Final Agency Action
                (hereinafter, RFAA) on March 25, 2019. In its RFAA, the Government
                stated that Respondent is no longer licensed to practice medicine in
                Mississippi and provided documentation from the Mississippi State Board
                of Medical Licensure to support this claim. RFAA at 2; see RFAAX 7,
                Appendices A-C. The Government then requested that I deny Respondent's
                application for a DEA registration on the grounds that Respondent lacks
                authority to handle controlled substances in the State of Mississippi,
                the state where he seeks a DEA registration. RFAA at 5-6. The
                Government had not alleged that Respondent lacked state authority in
                the OSC. OSC at 2.
                 The Government is not required to issue an amended OSC to notice an
                allegation of a registrant's lack of state authority that arises during
                the pendency of a proceeding regarding a DEA registration. Hatem M.
                Ataya, M.D., 81 FR 8221, 8244 (2016). Previous Agency decisions have
                stated that because the possession of state authority is a prerequisite
                for obtaining and maintaining a registration, the issue of state
                authority can be raised at any stage of a proceeding, even sua sponte
                by the Administrator. See Ataya, 81 FR at 8244; Joe M. Morgan, D.O., 78
                FR 61,961, 61,973-74 (2013). I issued an Order on February 3, 2021,
                providing Respondent with notice of the Government's allegation that he
                currently lacks state authority to handle controlled substances in the
                State of Mississippi, and providing him with the opportunity to show
                the contrary. Respondent submitted a response to the Order on February
                4, 2021, stating ``I am not currently licensed to practice medicine.''
                 I make the following findings of fact based on the record before
                me.
                Findings of Fact
                Respondent's Application for a DEA Registration
                 On January 25, 2017, Respondent filed an application (Application
                Control No. H17068500C) for a DEA Certificate of Registration as a
                practitioner in schedules II-V, with a proposed registered location at
                1050 Daisy Lane, Summit, Mississippi 39666. RFAAX 1.
                The Status of Respondent's State License
                 At the time Respondent applied for a DEA registration, he held a
                Mississippi medical license. RFAAX 7, Appendix A (Mississippi State
                Board of Medical Licensure Determination and Order). On May 18, 2017,
                the Mississippi State Board of Medical Licensure (hereinafter, the
                Board) issued a Decision and Order suspending Respondent's medical
                license. Id. The Board suspended Respondent's license after finding him
                guilty of (1) having been convicted of violating a federal law
                regulating the distribution of a narcotic drug; (2) prescribing a drug
                having addiction forming or addiction sustaining liability otherwise
                than in the course of legitimate professional practice; and (3)
                unprofessional conduct. Id. The Decision and Order stayed Respondent's
                suspension contingent on his completion of certain requirements,
                including compliance with the Mississippi Professional Health Program
                (hereinafter, MPHP). Id. at 3-4.
                 On March 19, 2018, the Board found that Respondent had failed to
                comply with an MPHP requirement to abstain from alcohol. RFAAX 7,
                Appendix B (Board Order of Prohibition). The Board, therefore, issued
                an Order of Prohibition prohibiting Respondent from practicing medicine
                in Mississippi ``until such time as the Board and MPHP determines that
                [Respondent] is able to return to the practice of medicine.'' Id.
                 According to Mississippi's online records, of which I take official
                notice, Respondent's license is expired.\1\ Mississippi State Board of
                Medical Licensure, Licensee Lookup, https://gateway.msbml.ms.gov/verification/search.aspx (last visited date of signature of this
                Order). Respondent also confirmed in response to my Order that, as of
                February 4, 2021, he was not licensed to practice medicine.
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                 \1\ 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 my finding by filing
                a properly supported motion for reconsideration of finding of fact
                within fifteen calendar days of the date of this Order. Any such
                motion shall be filed with the Office of the Administrator and a
                copy shall be served on the Government. In the event Registrant
                files a motion, the Government shall have fifteen calendar days to
                file a response. Any such motion and response may be filed and
                served by email ([email protected]).
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                 Accordingly, I find that Registrant currently is not licensed to
                engage in the practice of medicine in Mississippi, the State in which
                Registrant is registered with the DEA.
                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 (hereinafter, CSA) ``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, the 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,
                M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 F. App'x 826 (4th
                Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 (1978).
                 This rule derives from the text of two provisions of the CSA.
                First, Congress defined the term ``practitioner'' to mean ``a physician
                . . . or other person licensed, registered, or otherwise
                [[Page 15258]]
                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(f). Because Congress has clearly mandated
                that a practitioner possess state authority in order to be deemed a
                practitioner under the CSA, the 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 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131
                (2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby
                Watts, M.D., 53 FR 11,919, 11,920 (1988); Frederick Marsh Blanton, 43
                FR at 27,617.
                 According to Mississippi statute, ``except when dispensed directly
                by a practitioner, other than a pharmacy, to an ultimate user, no
                controlled substance in Schedule II . . . may be dispensed without the
                written valid prescription of a practitioner,'' and ``except when
                dispensed directly by a practitioner, other than a pharmacy, to an
                ultimate user, a controlled substance included in Schedule III or IV .
                . . shall not be dispensed without a written or oral valid prescription
                of a practitioner.'' Miss. Code Ann. Sec. 41-29-137(a)(1) and (b)
                (West 2020). Further, ``a practitioner'' is defined as ``a physician,
                dentist, veterinarian, scientific investigator, optometrist . . . or
                other person licensed, registered or otherwise permitted to distribute,
                dispense, conduct research with respect to or to administer a
                controlled substance in the course of professional practice or research
                in this state.'' Miss. Code Ann. Sec. 41-29-105(y)(1) (West 2020).
                Mississippi regulations define a ``physician'' to be ``any person
                licensed to practice medicine, osteopathic medicine or podiatric
                medicine in the state of Mississippi.'' 30-2640 Miss. Code R. Sec.
                1.2(C). The regulations further state that ```prescriptive authority'
                means the legal authority of a professional licensed to practice in the
                state of Mississippi who prescribes controlled substances and is
                registered with the U.S. Drug Enforcement Administration in compliance
                with Title 21 CFR, Part 1301 Food and Drugs.'' 30-2640 Miss. Code R.
                Sec. 1.2(F).
                 Here, the undisputed evidence in the record is that Respondent
                currently lacks authority to practice medicine in Mississippi. As
                already discussed, a physician must be licensed to practice medicine in
                order to have prescriptive authority for a controlled substance in
                Mississippi. Thus, because Respondent lacks authority to practice
                medicine in Mississippi and, therefore, is not authorized to prescribe
                controlled substances in Mississippi, Respondent is not eligible to
                receive a DEA registration. Accordingly, I will order that Respondent's
                application for a DEA registration be denied.
                Order
                 Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21
                U.S.C. 823(f), I hereby order that the pending application for a
                Certificate of Registration, Control Number H17068500C, submitted by
                Lawrence E. Stewart, M.D., is denied, as well as any other pending
                application of Lawrence E. Stewart for additional registration in
                Mississippi. This Order is effective April 21, 2021.
                D. Christopher Evans,
                Acting Administrator.
                [FR Doc. 2021-05845 Filed 3-19-21; 8:45 am]
                BILLING CODE 4410-09-P
                

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