[Federal Register Volume 86, Number 179 (Monday, September 20, 2021)]
[Notices]
[Pages 52205-52207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20245]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Steven P. French, M.D.; Decision and Order

    On February 11, 2021, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, 
Government), issued an Order to Show Cause (hereinafter, OSC) to Steven 
P. French, M.D. (hereinafter, Registrant) of Jackson, Wyoming. OSC, at 
1. The OSC proposed the revocation of Registrant's Certificate of 
Registration No. FF5659505. Id. It alleged that Registrant is ``without 
authority to handle controlled substances in Wyoming, the state in 
which [he is] registered with DEA.'' Id. at 2 (citing 21 U.S.C. 
824(a)(3)).
    Specifically, the OSC alleged that the Wyoming Board of Medicine 
(hereinafter, the Board) issued a Findings of Fact, Conclusions of Law, 
and Order on April 17, 2020. Id. at 1. According to the OSC, the Board 
accepted Registrant's voluntary relinquishment of his Wyoming medical 
license following its finding, inter alia, that Registrant was 
convicted of driving under the influence. Id. at 1-2. The Board further 
found that during Registrant's arrest for driving under the influence, 
Wyoming authorities ``discovered in [Registrant's] possession a 
prescription bottle of lorazepam 0.5 mg pills belonging to one of [his] 
patients, but with one pill missing.'' Id. at 2.
    The OSC notified Registrant of the right to request a hearing on 
the allegations or to submit a written statement, while waiving the 
right to a hearing, the procedures for electing each option, and the 
consequences for failing to elect either option. Id. (citing 21 CFR 
1301.43). The OSC also notified Registrant of the opportunity to submit 
a corrective action plan. Id. at 3 (citing 21 U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In a Declaration, dated July 21, 2021, a Diversion Investigator 
(hereinafter, the DI) assigned to the Cheyenne Resident Office of the 
Denver Field Division, stated that on September 21, 2020, prior to the 
issuance of the OSC, he had communicated via email with Registrant 
regarding Registrant's DEA registration. Request for Final Agency 
Action (hereinafter, RFAA), Exhibit (hereinafter, RFAAX) 3 (DI's 
Declaration), at 1. The DI stated that the following day, 
``[Registrant] responded to the email [the DI] had sent him and 
indicated that he had moved to Alaska and that for any future 
communications [the DI] should contact him via email.'' Id.; see also 
RFAAX 3, Appendix (hereinafter, App.) A (email exchange with 
Registrant). On February 12, 2021, the DI sent a copy of the OSC to 
Registrant via email. Id. at 1. The DI stated that later that day, 
Registrant ``responded to [the] email and indicated that he received a 
copy of the [OSC].'' Id. at 1-2; see also RFAAX 3, App. B (email from 
Registrant). The DI stated that, as of July 21, 2021, ``DEA has not 
received any correspondence from [Registrant] or any attorney acting on 
his behalf concerning the [OSC].'' RFAAX 3, at 2.
    The Government forwarded its RFAA, along with the evidentiary 
record, to me on August 10, 2021. In its RFAA, the Government 
represents that ``[Registrant] has not submitted a timely request for a 
hearing in this matter.'' RFAA, at 1. The Government seeks to revoke 
Registrant's DEA registration because ``[Registrant] lacks authority to 
handle controlled substances in the State of Wyoming, the state where 
he is registered with DEA.'' Id.
    Based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government accomplished service of the OSC on Registrant on February 
12, 2021. I also find that more than thirty days have now passed since 
the Government accomplished service of the OSC. Further, based on the 
DI's Declaration and the Government's written representations, I find 
that neither Registrant, nor anyone purporting to represent the 
Registrant, requested a hearing, submitted a written statement while 
waiving Registrant's right to a hearing, or submitted a corrective 
action plan. Accordingly, I find that Registrant has waived the right 
to a hearing and the right to submit a written statement and corrective 
action plan. 21 CFR 1301.43(d) and 21 U.S.C. 824(c)(2)(C). I, 
therefore, issue this Decision and Order based on the record submitted 
by the Government, which constitutes the entire record before me. 21 
CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
FF5659505 at the registered address of 6605 N Snake River Woods Dr., 
Jackson, WY 83001. RFAAX 1 (Certificate of Registration). Pursuant to 
this registration, Registrant is authorized to dispense controlled 
substances in schedules II through V as a practitioner. Id. 
Registrant's registration expires on September 30, 2021. Id.

The Status of Registrant's State License

    On January 16, 2020, Registrant submitted a letter to the Board 
informing it that he was voluntarily relinquishing his Wyoming medical 
license. RFAAX 3, App. C, at 19. On March 19, 2020, a member of the 
Board petitioned the Board to accept Registrant's voluntary 
relinquishment of his Wyoming Physician License. Id. at 13. On April 
17, 2020, the Board issued its Findings of Fact, Conclusions of Law, 
and Order Accepting Voluntary Relinquishment of the Wyoming Physician 
License of Steven P. French, M.D., Wyoming Physician License No. 3068A 
(hereinafter, Board Order). Id. at 1.
    According to the Board Order, in September 2018, Registrant's 
clinical privileges were permanently revoked by Crook County Medical 
Services District in Sundance, Wyoming based upon an incident in August 
2018 where Registrant was allegedly intoxicated and exhibited 
``disruptive, abusive, and threatening behavior'' at the hospital while 
he was off-duty. Id. at 3. When the Wyoming Medicine Board opened a 
complaint on the matter, Registrant denied any inappropriate behavior 
and ``asserted that he had unilaterally resigned his clinical 
privileges as opposed to them being revoked.'' Id. On July 2, 2019, 
while the first complaint was still pending, Registrant applied to 
renew his Wyoming medical license and indicated on his application that 
he ``was convicted of driving under the influence on November 26, 2018, 
related to an arrest incident that occurred on July 12, 2018.'' Id.
    The Board opened an additional complaint concerning the arrest 
incident. Id. The Board Order states that Registrant was arrested for a 
DUI at a gas station, and ``[d]uring the arrest, sheriff deputies also 
located a prescription bottle of [l]orazepam 0.5 mg for 30 pills, of 
which one pill was missing.'' Id. at 4. Further, ``[t]he label 
indicated the prescription was written by [Registrant] for one of his 
patients'' and ``[i]t was determined that the prescription was

[[Page 52206]]

filled in Sundance, Wyoming, on the same day [Registrant] was 
arrested.'' Id. The Board Order states that according to the sheriff's 
report, Registrant refused intoximeter breath testing for alcohol, the 
sheriff deputies obtained a search warrant, and Registrant's blood was 
drawn that evening indicating that Registrant had an ethyl alcohol 
concentration of 0.190. Id. Further investigation by the Board found 
that Registrant had three additional DUI convictions from 2008, 2012, 
and 2018. Id.
    The Board ordered a Clinical Professional Fitness to Practice 
Evaluation of Registrant on September 26, 2019, and Registrant was 
evaluated the week of November 4-7, 2019. Id. at 5. The evaluation 
recommended that Registrant enter into a residential treatment program 
for addiction, engage in a monitoring contract with the Wyoming 
Professionals Assistance Program for the remainder of his career, 
abstain from controlled substances, follow up with local outpatient 
care following his treatment program, attend addiction recovery support 
meetings, and explore the option of using medication with a treating 
psychiatrist. Id. at 6.
    According to the Board Order, on December 30, 2019, Registrant 
agreed to voluntarily refrain from the practice of medicine until the 
disciplinary matter was resolved. Id. However, Registrant ``refused 
and/or failed to comply'' with any of the recommendations from the 
evaluation. Id. Following the letter that Registrant submitted on 
January 16, 2020, Registrant also emailed the Board on February 14, 
2020, and wrote that he was, ``no longer a member of [the] organization 
thus [the] rules and regulations no longer [applied] to [him].'' Id. at 
6-7. In lieu of further disciplinary proceedings, the Wyoming Medicine 
Board sought to accept Registrant's offer to voluntarily relinquish his 
Wyoming medical license. Id. at 7. The Board Order accepted 
Registrant's voluntary relinquishment of his Wyoming medical license 
and thus ordered his authority and ability to practice medicine in 
Wyoming to be relinquished. Id. at 11.
    According to Wyoming's online records, of which I take official 
notice, Registrant's medical license remains relinquished and 
Registrant is not authorized in Wyoming to practice medicine.\1\ 
Wyoming Board of Medicine Physician License Search, 
wyomedboard.wyo.gov/physicians/physician-license-look-up (last visited 
date of signature of this Order). Id. Further, Wyoming's online 
records, of which I take official notice, show that Registrant's 
Wyoming individual controlled substance registration is not currently 
active.\2\ Wyoming State Board of Pharmacy Licensing, https://pharmacyboard.wyo.gov/licensing/controlled-substance-reg (last visited 
date of signature of this Order).
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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 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#690d0c0847080d0d0647081d1d061b070c101a290d0c08471c1a0d0603470e061f"><span class="__cf_email__" data-cfemail="3e5a5b5f105f5a5a51105f4a4a514c505b474d7e5a5b5f104b4d5a515410595148">[email protected]</span></a>.
    \2\ See supra n.1 regarding official notice.
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    Accordingly, I find that Registrant is not currently licensed to 
engage in the practice of medicine nor to handle controlled substances 
in Wyoming, 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 71371 (2011), pet. for rev. denied, 481 F. App'x 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (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 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 71371-72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); 
Dominick A. Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby Watts, M.D., 
53 FR 11919, 11920 (1988); Frederick Marsh Blanton, 43 FR at 27617.
    Under Wyoming law, ``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, 
administering, packaging, labeling, or compounding necessary to prepare 
the substance for that delivery.'' Wyo. Stat. Ann. Sec.  35-7-
1002(a)(vii) (West, current through Chs. 1 to 169 of the 2021 Regular 
Session of the Wyoming Legislature). Further, ``practitioner'' means . 
. . [a] physician . . . or other 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 this state.'' Id. at Sec.  35-7-
1002(a)(xx)(A). Because Registrant is not currently licensed as a 
physician, or otherwise licensed, in Wyoming, he is not authorized to 
dispense controlled substances in Wyoming.\3\
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    \3\ Furthermore, Wyoming law requires ``[e]very person who . . . 
dispenses any controlled substance within this state . . . [to] 
obtain every two (2) years, on or before July 1, a registration 
issued by the board in accordance with its rules.'' Wyo. Stat. Ann. 
Sec.  35-7-1024(a) (West, current through Chs. 1 to 169 of the 2021 
Regular Session of the Wyoming Legislature). As found above, 
Registrant's Wyoming controlled substances registration is not 
active.
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    Here, the undisputed evidence in the record is that Registrant 
currently does not have authority to practice medicine nor to handle 
controlled substances in Wyoming. As already discussed, only a licensed 
practitioner is authorized to dispense controlled substances in 
Wyoming. Additionally, Registrant is not actively registered to 
dispense controlled substances in Wyoming. Thus, because Registrant is 
not

[[Page 52207]]

currently licensed to practice medicine nor to handle controlled 
substances in Wyoming, Registrant is not eligible to maintain a DEA 
registration. Accordingly, I 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. 
FF5659505 issued to Steven P. French, M.D. Further, pursuant to 28 CFR 
0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby 
deny any pending application of Steven P. French to renew or modify 
this registration, as well as any other pending application of Steven 
P. French, for additional registration in Wyoming. This Order is 
effective October 20, 2021.

Anne Milgram,
Administrator.
[FR Doc. 2021-20245 Filed 9-17-21; 8:45 am]
BILLING CODE 4410-09-P


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