[Federal Register Volume 89, Number 188 (Friday, September 27, 2024)]
[Notices]
[Pages 79313-79314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22205]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Michael Fletcher, M.D.; Decision and Order

    On June 29, 2023, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Michael Fletcher, 
M.D., of Cincinnati, OH (Registrant). Request for Final Agency Action 
(RFAA), Exhibit (RFAAX) 1, at 1, 4. The OSC proposed the revocation of 
Registrant's Certificate of Registration No. FF0291005, alleging that 
Registrant's registration should be revoked because Registrant is 
``currently without authority to handle controlled substances in the 
State of Ohio, the state in which [he is] registered with DEA.'' RFAAX 
1, 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. at 2-3 (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).
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    \1\ Based on the Government's submissions in its RFAA dated 
November 16, 2023, the Agency finds that service of the OSC on 
Registrant was adequate. Specifically, the RFAA's included exhibits 
indicate that Registrant was served a copy of the OSC via email on 
July 7, 2023, and Registrant acknowledged receipt on July 9, 2023. 
RFAAX 3-4.
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    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 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 May 11, 2023, the State Medical Board of Ohio issued an order 
prohibiting Registrant from prescribing, dispensing, or otherwise 
professionally utilizing controlled substances. RFAAX 1, at 2. 
According to Ohio online records, of which the Agency takes official 
notice,\2\ Registrant's Ohio medical license is active but ``limited 
and restricted by a prohibition against prescribing, dispensing, [and/
or] utilizing controlled substances in the course of practice.'' 
eLicense Ohio Professional Licensure License Look-Up, https://elicense.ohio.gov/oh_verifylicense (last visited date of signature of 
this Order). Accordingly, the Agency finds that Registrant is not 
licensed to handle controlled substances in Ohio, the state in which he 
is registered with DEA.
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    \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 Office of the Administrator, Drug 
Enforcement Administration at <a href="/cdn-cgi/l/email-protection#82e6e7e3ace3e6e6edace3f6f6edf0ece7fbf1c2e6e7e3ace5edf4"><span class="__cf_email__" data-cfemail="afcbcace81cecbcbc081cedbdbc0ddc1cad6dcefcbcace81c8c0d9">[email protected]</span></a>.
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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\
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    \3\ 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 
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, 51105 (1993); Bobby Watts, D.O., 53 FR 11919, 
11120 (1988); Frederick Marsh Blanton, 43 FR 27617.
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    According to Ohio statute, ``[n]o person shall knowingly obtain, 
possess, or use a controlled substance or a controlled substance 
analog,'' except pursuant to a ``prescription issued by a licensed 
health professional authorized to prescribe drugs if the prescription 
was issued for a legitimate medical purpose.'' Ohio Rev. Code Ann. 
sections 2925.11(A), (B)(1)(d) (West 2024). Further, a ``[l]icensed 
health professional authorized to prescribe drugs'' or ``prescriber'' 
means ``an individual who is authorized by law to prescribe drugs or 
dangerous drugs or drug therapy related devices in the course of the 
individual's professional practice.'' Id. section 4729.01(I). The 
definition further provides a limited list of authorized prescribers, 
the relevant provision of which is ``[a] physician authorized under 
Chapter 4731[ ] of the Revised Code to practice medicine and surgery, 
osteopathic medicine and surgery, or podiatric medicine and surgery.'' 
Id. section 4729.01(I)(5). Additionally, Ohio law permits ``[a]

[[Page 79314]]

licensed health professional authorized to prescribe drugs, if acting 
in the course of professional practice, in accordance with the laws 
regulating the professional's practice'' to prescribe or administer 
schedule II, III, IV, and V controlled substances to patients. Id. 
section 3719.06(A)(1)(a)-(b).
    Here, the undisputed evidence in the record is that although 
Registrant is currently authorized to practice medicine in Ohio, 
Registrant is not authorized to handle controlled substances in 
accordance with his practice of medicine. Thus, because Registrant 
lacks authority to handle controlled substances in Ohio, 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. 
FF0291005 issued to Michael Fletcher, 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 Michael Fletcher, M.D., to 
renew or modify this registration, as well as any other pending 
application of Michael Fletcher, M.D., for additional registration in 
Ohio. This Order is effective October 28, 2024.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
September 20, 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. 2024-22205 Filed 9-26-24; 8:45 am]
BILLING CODE 4410-09-P


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