52196 Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Notices 

63Tr. 424. 64Tr. 391–94. 

1The Request for Hearing is stamped received on 

July 30, 2019. 

emotional consternation,63 but that is 

not the same as accepting responsibility, 

which is something he clearly is 

unwilling to do. On this point there is 

little room for logical, dispassionate 

dissent. Thus, in the face of a prima 

facie case, without the Respondent 

meeting the evidence with a convincing, 

unequivocal acceptance of 

responsibility and proposing thoughtful, 

concrete remedial measures geared 

toward avoiding future transgressions, 

the record supports the imposition of a 

sanction. That a sanction is supported 

does not end the inquiry, however. 

In determining whether and to what 

extent imposing a sanction is 

appropriate, consideration must also be 

given to the Agency’s interest in both 

specific and general deterrence and the 

egregiousness of the offenses established 

by the Government’s evidence. Ruben, 

78 FR at 38,364, 38,385. Considerations 

of specific and general deterrence in this 

case militate in favor of revocation. As 

discussed, supra, the Respondent has 

made it clear that he feels that he was 

not so much wrong as misunderstood 

and, in a way, nitpicked. As discussed, 

supra, he feels his prescriptions were 

legitimate, if lenient. Tr. 424–425. 

Although he uttered words in support of 

regret, where a person does not accept 

as true the errors shown to him by hard 

evidence, the hopes of true future 

deterrence are diminished, and mortally 

so. The interests of specific deterrence, 

therefore, compel the imposition of a 

sanction. 

Likewise, as the regulator in this field, 

the Agency bears the responsibility to 

deter similar misconduct on the part of 

others for the protection of the public at 

large. Ruben, 78 FR at 38,385. To 

continue the Respondent’s registration 

privileges on the present record would 

send a message to the regulated 

community that it is acceptable to spend 

less than ten minutes, and sometimes 

less than two minutes with a patient, 

conduct no exams, document exams not 

conducted, procure neither prior 

records nor objective testing, prescribe 

dangerous controlled substances, 

increase the dosages without basis or 

regret, and continue to do so even in the 

face of information that the purported 

patient is not even filling the 

prescriptions. The interests of general 

deterrence militate powerfully in favor 

of a sanction on this record. 

Regarding the egregiousness of the 

Respondent’s conduct, as discussed, 

supra, the Respondent did virtually 

nothing to satisfy (or even further) his 

responsibilities as a DEA registrant on 

four occasions. He had no basis for a 

valid diagnosis, he had no prior medical 

records, called no prior treating 

physician, had no imaging, conducted 

no examination to speak of, doctored up 

phony examination results, ignored 

evidence that the prescriptions were not 

being filled by his purported patient, 

disregarded the gaps where the patient 

would have been without the medicine 

he was prescribing (even if it had been 

dispensed and taken as directed), and 

actually increased the dosage for no 

articulated reason beyond the fuzzy 

concept that he had an increased level 

of ‘‘comfort[ ]’’ 64 (based apparently on 

little more than the TFO’s decision to 

keep coming back for more drugs). Even 

disregarding the very real likelihood 

that these four UC Visits presented a 

vivid snapshot of the Respondent’s 

practice in general, the blithe manner in 

which he doled out controlled medicine 

to this undercover officer was nothing 

short of astonishing. The egregiousness 

of the established transgressions in this 

case, and the reckless abandon with 

which the Respondent ignored his 

obligations provides a unique window 

into the systemic gravity of the current 

opioid crisis. 

A balancing of the statutory public 

interest factors, coupled with 

consideration of the Respondent’s 

failure to meaningfully accept 

responsibility, the absence of record 

evidence of thoughtful and continuing 

remedial measures to guard against 

recurrence, and the Agency’s interest in 

deterrence, supports the conclusion that 

this Respondent should not continue to 

be entrusted with a registration. 

Accordingly, it is respectfully 

recommended that the Respondent’s 

DEA COR should be REVOKED, and any 

pending applications for renewal should 

be DENIED. 

Dated: August 20, 2020. 

John J. Mulrooney, II, 

U.S. Chief Administrative Law Judge. 

[FR Doc. 2021–20247 Filed 9–17–21; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 19–31] 

Lisa M. Jones, N.P.; Dismissal of 

Proceedings 

I. Introduction 

On June 28, 2019, a former Assistant 

Administrator, Diversion Control 

Division, Drug Enforcement 

Administration (hereinafter, DEA or 

Government), issued an Order to Show 

Cause to Lisa Mae Jones, N.P. 

(hereinafter, Applicant), of Mount Airy, 

North Carolina. Administrative Law 

Judge Exhibit (hereinafter, ALJX) 1 

(Order to Show Cause (hereinafter, 

OSC)), at 1. The OSC proposed the 

denial of Applicant’s application 

(Application No. W19018692M) for a 

DEA certificate of registration 

(hereinafter, North Carolina-based 

registration application) and ‘‘any other 

applications for any other DEA 

registrations’’ on the ground that she 

‘‘materially falsified’’ her application 

‘‘in violation of 21 U.S.C. 824(a)(1) and 

823(f).’’ Id. 

The substantive ground for the 

proceeding, as more specifically alleged 

in the OSC, is that Applicant’s ‘‘failure 

to disclose the disciplinary actions 

taken against . . . [her] nursing licenses 

(viz., the denial of . . . [her] application 

in Illinois and the fact that . . . [her] 

Tennessee and Iowa nursing licenses 

were placed on probation) constitutes 

material falsification of . . . [her] 

application for a DEA Certificate of 

Registration.’’ Id. at 4. 

The OSC notified Applicant of her 

right to request a hearing on the 

allegations or to submit a written 

statement while waiving her right to a 

hearing, the procedures for electing each 

option, and the consequences for failing 

to elect either option. Id. at 4 (citing 21 

CFR 1301.43). The OSC also notified 

Applicant of the opportunity to file a 

corrective action plan. OSC, at 5 (citing 

21 U.S.C. 824(c)(2)(C)). Applicant 

requested a hearing. ALJX 2 (Request for 

Hearing dated July 22, 2019), ALJX 4 

(Order for Prehearing Statements dated 

July 23, 2019), at 1 (stating that counsel 

for Applicant filed a hearing request on 

July 22, 2019).1

The matter was placed on the docket 

of the Office of Administrative Law 

Judges and assigned to the Chief 

Administrative Law Judge (hereinafter, 

ALJ), John J. Mulrooney, II. The Chief 

ALJ noted thirteen stipulations agreed 

upon by the parties and ‘‘conclusively 

accepted as fact in these proceedings.’’ 

Recommended Rulings, Findings of 

Fact, Conclusions of Law, and Decision 

of the Administrative Law Judge dated 

November 21, 2019 (hereinafter, RD), at 

4–5. The second and third stipulations 

state that Applicant ‘‘is currently 

licensed in the State of North Carolina 

as a Nurse Practitioner under Approval 

No. 5011528’’ and that her ‘‘North 

Carolina Approval (license) expires by 

its own terms on May 31, 2020.’’ Id. at 

4. 

Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Notices 52197 

2Applicant’s attorney during the Hearing, on 

whom the Interim Order was served, orally 

confirmed that she received the Interim Order and 

forwarded it to Applicant. 

3The Interim Order attached a copy of the 

website of the North Carolina Board of Nursing 

showing the status of Applicant’s nurse practitioner 

license as ‘‘inactive.’’ 

The hearing in this matter took place 

at the DEA Hearing Facility on 

September 17, 2019. The RD is dated 

November 21, 2019. The Government 

filed exceptions to the RD. The 

Government’s Exceptions to the Chief 

Administrative Law Judge’s 

Recommended Decision, dated 

December 11, 2019 (hereinafter, Govt 

Exceptions). 

Having considered the record in its 

entirety, I find that the Government has 

failed to establish by clear, unequivocal, 

and convincing evidence that Applicant 

violated 21 U.S.C. 824(a)(1) as to the 

North Carolina-based registration 

application. Due to the current 

‘‘inactive’’ status of Applicant’s North 

Carolina nurse practitioner license, 

however, I am precluded by statute from 

ordering that the North Carolina-based 

registration application be granted. 21 

U.S.C. 823(f) (‘‘The Attorney General 

shall register practitioners . . . if the 

applicant is authorized to dispense . . . 

controlled substances under the laws of 

the State in which [s]he practices.’’). 

Infra section II.B. 

I make the following findings. 

II. Findings of Fact 

A. The Material Falsification 

Allegations 

According to the OSC’s allegations, 

Applicant submitted an application for 

a DEA Certificate of Registration as a 

mid-level practitioner in Schedules II 

through V with a registered address in 

North Carolina on or about March 1, 

2019. OSC, at 2. The North Carolinabased registration application, the OSC 

further alleges, was assigned control 

number W19018692M. Id. Applicant 

allegedly answered ‘‘yes’’ to Liability 

Question 2. Id. (‘‘Has the applicant ever 

surrendered (for cause) or had a federal 

controlled substance registration 

revoked, suspended, restricted or 

denied, or is any such action 

pending?’’). Also according to the OSC, 

for ‘‘nature of incident,’’ Applicant 

submitted the following material: 

‘‘Failed to read directions/instructions 

correctly, I misread the part of state 

licensure being restricted.’’ Id. 

Regarding ‘‘incident result,’’ Applicant 

allegedly wrote: ‘‘Surrendered to DEA 

Agent on/about date stated above,’’ 

meaning January 31, 2019. Id. 

According to the OSC, Applicant also 

answered ‘‘yes’’ to Liability Question 3. 

Id. (‘‘Has the applicant ever surrendered 

(for cause) or had a state professional 

license or controlled substance 

registration revoked, suspended, denied, 

restricted or placed on probation or is 

any such action pending?’’). Regarding 

the ‘‘nature of the incident,’’ Applicant 

allegedly stated: ‘‘I misread the 

application, I failed to read the part 

about state licensure being placed on 

probation.’’ Id. For ‘‘incident result,’’ 

according to the OSC, Applicant again 

submitted: ‘‘Surrendered to DEA Agent 

on/about date stated above,’’ meaning 

January 31, 2019. Id. 

There is factual agreement among the 

witnesses on a number of matters. When 

there is factual disagreement, I apply my 

credibility determinations and the 

credibility recommendations of the 

Chief ALJ. Infra sections II.D. and II.E. 

B. Applicant’s Current Licensure 

In the course of adjudicating this 

matter, it came to my predecessor’s 

attention that the North Carolina Board 

of Nursing (hereinafter, NCBON) 

website listed the status of Applicant’s 

North Carolina nurse practitioner 

license as ‘‘inactive.’’ https://

www.ncbon.com/licensure-listing-verifya-license. Further, Applicant was not 

listed on the North Carolina Board of 

Pharmacy website as being registered to 

dispense controlled substances in North 

Carolina. https://portal.ncbop.org/ 

verification/search.aspx. 

My predecessor issued Applicant an 

(unpublished) Interim Order on May 21, 

2021 (hereinafter, Interim Order).2 In 

the Interim Order, the then-Acting 

Administrator explained that the 

‘‘inactive’’ status of Applicant’s nurse 

practitioner license impacts the status of 

Applicant’s North Carolina authority to 

dispense controlled substances.3 Interim 

Order, at 1. He explicitly stated that the 

status of Applicant’s North Carolina 

nurse practitioner license ‘‘is essential 

to . . . [his] decision about the OSC 

because Applicant must have North 

Carolina authority to dispense 

controlled substances to be eligible for 

a DEA registration in North Carolina.’’ 

Id. My predecessor ordered Applicant to 

address the status of her North Carolina 

authority to dispense controlled 

substances. Id. at 2. Applicant’s 

response was due over a month ago, yet 

the Agency has not received any 

response, let alone the information 

ordered, from Applicant to date. As of 

the date of this Decision/Order, I find 

that the NCBON website continues to 

show Applicant’s nurse practitioner 

license as ‘‘inactive.’’ https://

www.ncbon.com/licensure-listing-verifya-license. Accordingly, as my 

predecessor advised Applicant in the 

Interim Order, I am crediting and using 

the current ‘‘inactive’’ information on 

the NCBON website and denying the 

North Carolina-based registration 

application. 21 U.S.C. 823(f); 21 U.S.C. 

802(21). I shall also adjudicate the 

OSC’s allegations in the event Applicant 

submits a registration application in the 

future. 

C. The Investigation of Applicant 

I find that Applicant submitted an 

online application for a DEA registration 

with a registered address in North 

Carolina on or about March 1, 2019. GX 

1 (Certification of Non-Registration), at 

1. I find that her application was 

assigned DEA control number 

W19018692M. Id. I find that Applicant 

answered ‘‘yes’’ to two of the 

‘‘Background Information,’’ or Liability, 

questions. Id. at 1–2; infra II.F. I find 

that, when an application contains a 

‘‘yes’’ response to a Liability question, it 

is referred for investigation. Transcript 

(hereinafter, Tr.) 38. 

D. The Government’s Case 

The Government called one witness, 

the DEA Diversion Investigator assigned 

to investigate Applicant’s North 

Carolina-based registration application 

(hereinafter, DI), and offered eight 

exhibits. The eight Government exhibits 

are either DEA documents showing 

Applicant’s DEA registration status and 

history, or documents from states 

showing Applicant’s license status and 

history. At the beginning of the hearing, 

Applicant’s attorney stipulated to the 

admission of all of the Government’s 

eight noticed exhibits. Id. at 25–26. 

DI testified about her DEA 

employment, training, and duties as a DI 

at DEA’s office in Greensboro, North 

Carolina. Id. at 24, 26–28. She testified 

that her first meeting with Applicant 

stemmed from a telephone call she 

received from the DEA Roanoke office 

in January 2019. Id. at 28–35. From that 

telephone call, she stated, she learned 

that a Special Agent (hereinafter, SA) 

and a Task Force Officer (hereinafter, 

TFO) from the Roanoke office were 

traveling to North Carolina to interview 

Applicant and that DI’s presence was 

requested at the meeting. Id. at 28, 31. 

DI explained that the Roanoke office 

found that Applicant had answered 

Liability questions inaccurately on the 

application she had submitted for the 

controlled substance registration under 

which Applicant was practicing in 

Virginia at the time. Id. at 28. DI 

described ‘‘liability questions’’ as 

questions about matters that ‘‘we 

consider liabilities for that registrant’’ or 

‘‘things that we would consider as to 

52198 Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Notices 

4When asked for details about completing the 

DEA registration application form, DI responded 

that she is ‘‘not an expert when it comes to the 

actual application process’’ and that she has ‘‘not 

actually completed one as a registrant.’’ Tr. 80, 83. 

Regarding instructions for completing the form and 

resources to help someone who is unsure about 

how to answer a question on the form, DI testified 

that she is ‘‘not aware that there’s any [instruction] 

form, it’s just a ask a question, answer the question, 

ask a question, answer the question’’ and that 

‘‘[t]here is a telephone number . . . to basically the 

Registration Program Specialist within the DEA 

. . .—there’s kind of a help 800 number that they 

can contact.’’ Id. at 81–82; see also id. at 83. 

5Neither the Government nor Applicant offered 

for admission documentary evidence supporting or 

refuting the findings of the investigation DI 

referenced concerning Applicant’s Virginia 

registration under which she was practicing in 

January 2019 and that she voluntarily surrendered 

at the January 31, 2019 meeting. This is consistent 

with the sole charge in the OSC—denial of 

Applicant’s North Carolina-based registration 

application due to material falsification. 

6 DI also testified that ‘‘[i]n my reading of that, I’m 

not sure exactly what she’s telling me there.’’ Tr. 

88. 

whether or not there’s a public interest 

reason why that individual should be 

perhaps their registration [sic] rejected 

for some reason.’’ 4 Id. at 29. Specifically, 

regarding Applicant, DI testified that 

Applicant ‘‘had answered negative to all 

of those questions, but later 

investigation found that she did in fact 

have some past issues with her state 

licensing.’’ 5 Id. at 30. 

DI testified that, at the meeting on 

January 31, 2019, Applicant 

acknowledged that she completed and 

digitally signed an application for a 

DEA registration in September 2018, the 

registration under which she practiced 

in Virginia. Id. at 32–33. DI stated that 

SA ‘‘then presented her with a copy of 

it and pointed to the liability questions 

and asked her to read those.’’ Id. at 33. 

DI explained that, after Applicant read 

them once, responded affirmatively to 

SA’s question about whether ‘‘she had 

had any past state issues regarding her 

license,’’ and re-read them, Applicant 

‘‘acknowledged that she had incorrectly 

answered those questions’’ in 

September 2018. Id. According to DI, 

Applicant stated that she 

‘‘misunderstood’’ the question. Id. at 67. 

DI also testified that, ‘‘[t]o be honest, I 

recall . . . [Applicant] reviewing the 

paperwork, there actually kind of 

seemed to be a sense of, like, she was 

realizing what had happened as she 

read it. And then, she did admit at that 

point.’’ Id. Indeed, according to DI, the 

probationary actions on Applicant’s 

licenses by Tennessee and Iowa came 

up during the meeting. Id. at 79. 

According to DI, after Applicant 

acknowledged her incorrect responses, 

SA ‘‘basically presented her with the 

option to sign a voluntary surrender 

form’’ or go to a hearing. Id. at 35, 65. 

DI testified that Applicant ‘‘read over it, 

. . . [SA] explained it to her, and she 

signed that voluntary surrender’’ of her 

Virginia registration with TFO and DI as 

witnesses. Id. at 35, 68. DI identified GX 

7 as a copy of the voluntary surrender 

that Applicant executed on January 31, 

2019. Id. at 36. 

DI described the conversation that 

ensued after Applicant surrendered her 

Virginia registration. According to DI, 

Applicant ‘‘acknowledged that she did 

not plan to work in Virginia any longer 

and would be working in North 

Carolina.’’ Id. at 68–69, 72. DI testified 

that someone from the DEA 

investigative team explained that, 

‘‘under the circumstances of her 

surrendering that prior registration,’’ 

Applicant ‘‘would need to reapply for a 

registration in the state of North 

Carolina.’’ Id. at 73. DI recalled that SA 

told Applicant that ‘‘she would need to 

answer in the affirmative to the liability 

questions.’’ Id. at 74; see also id. at 97– 

98 (DI testifying that ‘‘I don’t necessarily 

recall exactly if . . . [SA] said for 2 and 

3, you need to be in the affirmative. I 

believe that his instruction was, 

assuming you provide the DEA with a 

complete and correct application, there 

won’t be any issues regarding getting a 

new registration. I do recall him 

essentially explaining that, for Question 

2, because he was taking a voluntary 

surrender, there would need to be an 

affirmative to that particular question 

regarding the details of that date. I don’t 

necessarily remember there being any 

more on Question 3 . . .—other than a 

general, you will need to explain the 

situation.’’). DI also testified that SA 

told Applicant that the voluntary 

surrender ‘‘would not affect her state 

licensing.’’ Id. at 74–75. 

DI testified that DEA received 

Applicant’s North Carolina-based 

registration application. Id. at 37; see 

also RX 12 (showing the North Carolinabased registration application’s 

submission date as February 28, 2019). 

Initially, the North Carolina-based 

registration application was assigned to 

‘‘one of the brand new investigators in 

the office who was still in our training 

program,’’ DI stated. Tr. 37. DI 

explained that the new investigator’s 

field training officer saw Applicant’s 

name, the name ‘‘sounded familiar to 

him,’’ so ‘‘he kind of yelled over the 

cubicle’’ to DI asking if she was familiar 

with the name. Id. DI testified that she 

responded in the affirmative, stating 

that Applicant ‘‘was the one . . . [she] 

recently had a meeting with [in] 

Roanoke.’’ Id. at 37–38. DI explained 

how the matter was then assigned to 

her. Id. at 38. 

DI testified about Applicant’s specific 

answers to two of the Liability questions 

on the North Carolina-based registration 

application. Id. at 83–89. First, 

regarding the second Liability question, 

DI confirmed that Applicant responded 

‘‘yes’’ to that question: ‘‘Has the 

applicant ever surrendered (for cause) or 

had a federal controlled substance 

registration revoked, suspended, 

restricted or denied, or is any such 

action pending?’’ Id. at 83; see also GX 

1, at 1. DI stated her ‘‘understanding’’ 

that Applicant’s ‘‘yes’’ answer would 

have caused the electronic application 

to drop down a blank box. Tr. 83. 

Concerning Applicant’s submission for 

‘‘incident nature’’ regarding the second 

Liability question, ‘‘failed to read 

directions/instructions correctly, I 

misread the part of state licensure being 

restricted,’’ DI testified about what that 

response meant to her. GX 1, at 1. DI 

stated that ‘‘[i]n this situation, it tells me 

that she has surrendered for-cause a 

federal controlled substance registration 

and that the explanation that she has 

given is that essentially, she 

misunderstood the instructions on how 

she was supposed to respond to that 

. . . particular question.’’ Tr. 84; see 

also id. at 86. DI further testified that 

Applicant’s submission told her that 

‘‘there is a state licensure being 

restricted’’ and ‘‘that is why she 

surrendered her DEA registration.’’ Id. at 

84. DI confirmed that Applicant’s 

submission put DI on notice and gave DI 

‘‘some information regarding the 

potential’’ that Applicant has a state 

licensure restriction. Id. at 85–86; see 

also id. at 103. 

Second, regarding the third Liability 

question, DI confirmed that Applicant 

responded ‘‘yes’’ to that question: ‘‘Has 

the applicant ever surrendered (for 

cause) or had a state professional license 

or controlled substance registration 

revoked, suspended, denied, restricted, 

or placed on probation, or is any such 

action pending?’’ Id. at 87; see also GX 

1, at 2. DI consistently testified that she 

is ‘‘not aware that there’s any 

instruction’’ about how to fill out the 

drop-down box that would appear when 

there is a ‘‘yes’’ answer to the third 

Liability question. Tr. 87, see also id. at 

93–94. Concerning Applicant’s 

submission for ‘‘incident nature’’ 

regarding the third Liability question, ‘‘I 

misread application. I failed to read the 

part about state licensure being placed 

on probation,’’ DI testified about what 

that response meant to her.6 GX 1, at 2. 

DI agreed that Applicant’s response 

indicated that Applicant’s state 

licensure was placed on probation and 

that she previously surrendered her 

Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Notices 52199 

7 DI also indicated that SA provided her the 

documentation regarding Applicant’s January 2019 

surrender ‘‘because there were some concerns 

regarding if . . . [Applicant’s] answer was 

complete.’’ Tr. 86. 

8 DI authenticated the six non-DEA Government 

exhibits, all of which she obtained through her 

investigative work: GX 2 (United States Department 

of the Air Force Professional Staffing Record), GX 

3 (Tennessee Board of Nursing Consent Order), GX 

4 (Illinois Department of Financial and Professional 

Regulation, License Lookup Information), GX 5 

(Iowa Board of Nursing Notice of Hearing and 

Statement of Charges), GX 6 (Iowa Board of Nursing 

Settlement Agreement and Final Order), and GX 8 

(State of Illinois Department of Financial and 

Professional Regulation Consent Order dated June 

8, 2015). Tr. 41–63. 

9See also Tr. 98–99 (DI testifying that ‘‘My 

understanding of what she has written, her answer 

to Question 3 does not answer the question. The 

facts may be true that are listed there, but it’s not 

answering the question that has been asked. 

Question 3 is specifically asking about state 

licensure and she is telling me about a surrender 

of her DEA registration, which would be a federal 

registration. And as I said, so she’s listing the date 

she surrendered her federal registration, she lists 

the incident result as the surrender of her DEA 

registration, and the location is when she did that. 

When it comes to—she does mention her 

misreading the—basically, she gives an explanation 

of why she surrendered her DEA registration. The 

information that she has provided there . . . I have 

some background knowledge on this only because 

I was at that meeting. The initial Diversion 

Investigator who received this information would 

not have had that information at his fingertips and 

reading that, I don’t believe he would have been 

able to come to the information quite as easily or 

have already had some background knowledge of 

what had happened regarding her state 

registration.’’). 

10Applicant testified consistently that only a 

blank box appeared when she responded ‘‘yes’’ to 

Liability questions two and three. Tr. 239; see also 

id. at 239–42, 249 (Applicant testifying that she 

consulted Google for instructions and, when 

responding to questions about RX 12, at 67 showing 

three categories of information (location, nature, 

and disposition) under the heading of ‘‘Answers to 

Liability Questions,’’ testified that, as she recalls, 

she ‘‘independently determined that the relevant 

categories of information were location, nature, and 

disposition’’); cf. id. at 241–42 (Applicant testifying 

that ‘‘it’s possible’’ there were prompts asking for 

date, nature of incident, location, and disposition). 

DEA registration because she failed to 

report the probation. Tr. 88–89. 

DI testified that, after she received 

Applicant’s North Carolina-based 

registration application, she ‘‘started 

searching under licensing’’ for 

Applicant and contacted SA and TFO. 

Id. at 85–86. Due to those contacts, DI 

testified that SA provided her ‘‘with 

some documentation regarding the 

original surrender’’ on January 31, 

2019.7 Id. at 86. 

DI testified about the extent of her 

knowledge of Applicant’s state licensing 

history at the time Applicant’s North 

Carolina-based registration application 

was assigned to her. Id. at 89–92. From 

her attendance at the meeting on 

January 31, 2019, DI stated she was 

aware that Applicant’s licenses in 

Tennessee and Iowa were put on 

probation. Id. at 90–92. She also 

testified about her investigative work 

after being assigned Applicant’s North 

Carolina-based registration application. 

DI stated that she ‘‘went online and . . . 

actually just started searching the 

nursing boards for the states for which 

. . . [she] knew . . . [Applicant] had 

licensing.’’ Id. at 39. From this online 

research, DI testified that she learned 

about Applicant’s Illinois license status 

‘‘based on information given in consent 

orders that were public information on 

their websites.’’ Id. at 39–40; see also id. 

at 41 (DI testimony that the Iowa 

documentation mentioned that ‘‘there 

was a refusal to renew in Illinois . . . 

[a]nd so that led me to check Illinois as 

well.’’). 

DI testified that her investigative work 

moved beyond conducting online 

research and included contacting 

Tennessee to ‘‘find out the underlying 

facts, because all of them kind of 

pointed to Tennessee as sister state 

disciplinary action.’’ Id. at 40. DI 

described three individuals and the 

assistance they gave her investigation. 

The first was an attorney involved in the 

Tennessee action against Applicant, the 

second was an individual in the Air 

Force Surgeon General’s office whose 

name DI obtained from the Tennessee 

attorney, and the third was an 

individual from the Illinois Department 

of Professional Regulation who 

explained the meaning of ‘‘refuse to 

renew’’ status in Illinois. Id. at 47–63. 

From Tennessee, Iowa, and Illinois, DI 

obtained consent decrees, settlement 

agreements, and other records. Id. at 

104. From the Air Force, DI obtained a 

‘‘59-page report’’ and ‘‘a packet that 

included the review of . . . 

[Applicant’s] patient encounters.’’ 8 Id. 

DI testified that she found nothing in 

the states’ and Air Force’s records that 

‘‘went after her licensing.’’ Id. at 106. 

Instead, she testified, ‘‘it was actually 

kind of a chain reaction.’’ Id. DI 

explained that ‘‘after the Air Force took 

action and Tennessee took action, 

because of the action in Tennessee, then 

Illinois and Iowa took action.’’ Id. DI 

specifically addressed the Air Force 

report, GX 2, and the Air Force’s action 

concerning Applicant, testifying that 

there is ‘‘not anything [in GX 2] that 

specifically says [that Applicant 

committed] a controlled substance 

violation.’’ Id. at 105; compare id. at 

111–128, RD, at 24–32, and Govt 

Exceptions, at 4–18. 

When asked what made her decide 

that Applicant made false statements in 

the North Carolina-based registration 

application, DI initially responded that 

her reading of Applicant’s answer to the 

third Liability question ‘‘did not 

actually answer the question being 

asked’’ in her opinion. Tr. 94. ‘‘The 

information that . . . [Applicant] 

provided seems to be an answer to 

Question 2 and not the answer to 

Question 3,’’ she elaborated. Id. at 95. 

When asked whether her testimony was 

that ‘‘the words state licensure being 

placed on probation’’ are false, DI 

responded that ‘‘I’m not saying that that 

is false, I’m saying that the information 

provided does not answer the question 

being asked.’’ Id.; see also id. at 104 

(‘‘No, I wouldn’t say that it was false.’’). 

DI’s testimony was that Applicant’s 

words were ‘‘inadequate.’’ Id. at 95. She 

also stated that ‘‘the details . . . seem in 

conflict with one another’’ because 

Applicant never had ‘‘any state 

licensure that’s been placed on 

probation in the state of North 

Carolina,’’ yet Applicant listed 

‘‘Winston-Salem, North Carolina’’ as the 

‘‘incident location.’’ Id. at 95–96; see 

also id. at 109–111 (DI testifying that, to 

her knowledge, no action was taken 

against Applicant’s state professional 

license on January 31, 2019, no action 

was taken against Applicant’s 

professional license in North Carolina, 

Applicant’s professional license in 

North Carolina was never disciplined 

for misreading or falsifying an 

application, and Applicant never 

surrendered a state professional license 

to any DEA agent).9 DI acknowledged 

that, if she had been in the place of the 

‘‘initial Diversion Investigator’’ to whom 

the matter was assigned, she would 

have looked for every state in which 

Applicant was licensed. Id. at 102. She 

characterized such an effort as ‘‘due 

diligence.’’ Id. at 104. 

I agree with the RD that DI presented 

as ‘‘an objective, dispassionate regulator 

whose testimony was sufficiently 

detailed, internally consistent, and 

plausible to be afforded full credibility.’’ 

RD, at 11. 

E. Applicant’s Case 

At the hearing, Applicant testified 

and succeeded in having seven of her 

exhibits admitted into evidence. Tr. 

131–261. 

Applicant testified about her 

experience using the online registration 

application submission process for her 

North Carolina-based registration 

application. Id. at 132–40, 141–45; RX 

12, at 1. She stated that, when she 

responded ‘‘yes’’ to a Liability question, 

‘‘a blank box pops up’’ and ‘‘[t]here is 

no instructions [sic] as to what 

information to put in there.’’ 10 Tr. 133. 

During her testimony, she surmised that 

‘‘it would have solved the problem if 

52200 Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Notices 

11Applicant testified that she was working as a 

nurse practitioner for this same provider at the 

North Carolina practice he opened after DEA 

investigated him in Virginia. Tr. 252–53. 

. . . [the online registration application 

submission process] would have said 

what State licensure, what State, what 

license, was it revoked, suspended, 

denied, restricted.’’ Id. at 144–45. 

Applicant’s testimony continued with 

her stating that she ‘‘think[s] that would 

have solved the problem because . . . 

[she] could have answered Tennessee, 

probation, Iowa, probation.’’ Id. at 145. 

In the context of her testimony about 

her suboptimal experience attempting to 

complete the online DEA registration 

application, Applicant testified that she 

‘‘took it upon . . . [herself] to answer 

the questions based on what . . . [she] 

was instructed to from the January 31st 

meeting as far as the yesses that needed 

to be in there.’’ Id. She similarly 

testified in response to questioning by 

the Chief ALJ about the ‘‘confusion . . . 

because it asks you if you had a State 

professional license action, essentially, 

against you, and the answer was yes and 

you start talking about Winston-Salem, 

North Carolina, and that really had 

nothing to do with the State. . . . 

That’s what a lot of this comes down 

to.’’ Id. at 136. Applicant responded that 

she ‘‘put that down there because when 

. . . [she] was in the meeting on January 

31st with the three DEA agents . . . 

[she] was informed that . . . [DI] would 

be the investigating officer and it was 

already disclosed that . . . [she] already 

had . . . [her] license placed on 

probation, the two States.’’ Id. at 137. 

After the Chief ALJ restated the question 

as ‘‘why would you answer a question 

dealing with State licenses with that 

date and that place,’’ Applicant 

responded that, ‘‘I guess that’s how I 

read it, sir.’’ Id. at 138–39. She 

elaborated that ‘‘the DEA agents already 

knew that . . . [her] license had been 

placed on probation in the State of 

Tennessee and Iowa for nurse 

practitioner, so they already knew the 

information from . . . [the] meeting.’’ 

Id. at 139; see also id. at 140 (Applicant 

responding ‘‘no’’ to whether she thought 

it was necessary to explain each state 

because DEA ‘‘already knew about . . . 

[her] two nurse practitioner licenses 

already being placed on probation’’); id. 

at 142 (Applicant testifying that she 

‘‘read over the State licensure . . . [and] 

immediately went to controlled 

substance registration revocation. . . . 

[she] just didn’t grab that State licensure 

wording in there.’’); id. at 142–43 

(Applicant responding to why she 

thought the second and third Liability 

questions asked about the same thing, 

stating she ‘‘blew past the State 

professional license words. . . . just 

blew through them.’’). 

Applicant also testified about the 

meeting with the DEA investigative 

team on January 31, 2019. Id. at 140–41, 

152–56. She stated that the meeting took 

place in the evening from about 6:00 to 

8:00. Id. at 152. Applicant testified that 

SA told her that her boss, a provider at 

the Woodlawn Pain Care Clinic where 

she was working at the time, ‘‘was 

under investigation and they wanted to 

speak to . . . [her] about . . . 

[him].’’ 11 Id. at 152–55. She stated that 

‘‘[i]t was a lot of questions.’’ Id. at 156. 

Applicant testified that, at the 

conclusion of the meeting, SA ‘‘showed 

. . . [her] the questionnaire [application 

that she had submitted for her Virginiabased DEA registration], . . . [she] read 

it once, and then he had . . . [her] reread it again and then . . . [she] realized 

. . . [she] had made a mistake, that . . . 

[she] had put a no when it should have 

been a yes that . . . [her] license was 

placed on probation.’’ Id. at 140; see 

also id. at 156–57. She testified that SA 

‘‘didn’t say anything about . . . [her] 

licensure being placed on probation.’’ 

Id. at 141. She added that SA ‘‘didn’t 

disclose that information to . . . [her, 

she] disclosed it to him.’’ Id. She 

testified that she ‘‘told him [SA], yes, 

that . . . [she] read it wrong, that . . . 

[her] license in Tennessee and Iowa had 

been placed on probation.’’ Id. 

Applicant added that she then ‘‘noticed 

under his [SA’s] left arm he had a copy 

of . . . [her] Tennessee licensure 

probation information because . . . 

[she] saw . . . [her] signature on there 

and . . . [she] had already known what 

the information was.’’ Id. 

According to Applicant’s testimony, 

SA told her that she ‘‘could either go in 

front of a judge, or . . . [she] could sign 

the surrender for cause certificate that 

they had already made up for . . . 

[her].’’ Id. at 157–58. She testified that 

she signed the surrender certificate 

‘‘[b]ecause . . . [she] realized . . . [she] 

had made an error.’’ Id. at 159. 

Applicant stated that she asked about 

reapplying for ‘‘another DEA number’’ 

and that SA said she could ‘‘but . . . 

[she] needed to make sure that . . . 

[she] answered yes to . . . the ones . . . 

[she] had previously answered wrong.’’ 

Id. at 157–58. She testified that SA said 

nothing more about how to answer the 

second and third Liability questions and 

that SA told her it would take two to 

three weeks for her to get a new 

registration. Id. at 158–59. She testified 

that SA told her DI ‘‘would be handling 

. . . [her] application when . . . [she] 

reapplied’’ and that, at the time, DI said 

nothing pertaining to reapplication. Id. 

at 157, 159. 

I agree with the Chief ALJ that, 

‘‘where . . . [Applicant’s] testimony 

conflicts with other objective evidence 

and testimony received during the 

proceedings, it must be scrutinized with 

great caution.’’ RD, at 17. 

F. Allegation That Applicant Submitted 

a Materially False Registration 

Application 

Having read and analyzed all of the 

record evidence, I find from clear, 

unequivocal, convincing, and 

unrebutted record evidence that 

Applicant answered ‘‘yes’’ to Liability 

questions two and three. GX 1, at 1–2. 

I further find from clear, unequivocal, 

convincing, and unrebutted record 

evidence that Applicant’s ‘‘yes’’ answers 

to Liability questions two and three are 

true. See, e.g., GX 3, GX 6, and GX 7. 

Concerning Applicant’s responses to 

the follow-up required due to her 

affirmative answer to the second 

Liability question, having read and 

analyzed all of the record evidence, I 

find from clear, unequivocal, 

convincing, and unrebutted record 

evidence that those responses told DI 

that Applicant ‘‘surrendered for-cause a 

federal controlled substance 

registration,’’ that Applicant’s 

explanation was, ‘‘essentially, she 

misunderstood the instructions on how 

she was supposed to respond to that 

. . . particular question,’’ and that 

‘‘there is a state licensure being 

restricted’’ and ‘‘that is why she 

surrendered her DEA registration.’’ Tr. 

84, 86. I further find from clear, 

unequivocal, convincing, and 

unrebutted record evidence that 

Applicant’s submission put DI on notice 

and gave DI ‘‘some information 

regarding the potential’’ that Applicant 

had a state licensure restriction. Id. at 

85–86, 103. Having read and analyzed 

all of the record evidence, I also find 

from clear, unequivocal, convincing, 

and unrebutted record evidence that DI 

was one of the witnesses to Applicant’s 

voluntary surrender of her Virginiabased registration on January 31, 2019. 

Id. at 35–36, 68. 

Concerning Applicant’s responses to 

the follow-up required due to her 

affirmative answer to the third Liability 

question, having read and analyzed all 

of the record evidence, I find from clear, 

unequivocal, convincing, and 

unrebutted record evidence that DI did 

not consider those responses false; DI 

considered that the information 

Applicant provided ‘‘does not answer 

the question being asked.’’ Id. at 94. I 

further find from clear, unequivocal, 

convincing, and unrebutted record 

Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Notices 52201 

12The Government neither cross-examined 

Applicant concerning her testimony about the input 

and instructions she stated the DEA investigative 

team gave her during the Winston-Salem meeting, 

nor put on a rebuttal case after Applicant’s 

testimony. 

evidence that DI ‘‘started searching 

under licensing’’ for Applicant after 

receiving Applicant’s North Carolinabased registration application. Id. at 85– 

86. Having read and analyzed all of the 

record evidence, I also find from clear, 

unequivocal, convincing, and 

unrebutted record evidence that DI 

learned about the Tennessee and Iowa 

probationary actions on Applicant’s 

licenses from her attendance at the 

meeting on January 31, 2019. Id. at 79, 

90–92. 

Having read and analyzed all of the 

record evidence, I find from clear, 

unequivocal, and convincing record 

evidence that Applicant met with a DEA 

investigative team on January 31, 2019. 

See, e.g., id. at 32–37 (DI’s corrected 

testimony), GX 7. I also find from clear, 

unequivocal, convincing, and 

unrebutted record evidence that the 

DEA investigative team’s meeting with 

Applicant took place in Winston-Salem, 

North Carolina in a hotel lobby in the 

evening from about 6:00 until 8:00. Tr. 

71 (DI’s testimony); id. at 151–52, 155 

(Applicant’s testimony). I further find 

from clear, unequivocal, convincing, 

and unrebutted record evidence that the 

outcomes of the Winston-Salem meeting 

included Applicant’s voluntary 

surrender of her Virginia-based 

registration and the DEA investigative 

team’s provision of input and 

instructions to Applicant about the next 

DEA registration application she might 

submit. See, e.g., id. at 35–36, 65–75 

(DI’s testimony); id. at 156–159 

(Applicant’s testimony); GX 7. I also 

find from unrebutted record evidence 

that the DEA investigative team advised 

Applicant at the Winston-Salem 

meeting that she may apply for a DEA 

registration at a registered location in 

North Carolina, cautioned Applicant, in 

the event she reapplies, to answer ‘‘yes’’ 

to the Liability questions she previously 

incorrectly answered in the negative, 

told Applicant that DI would handle 

any application she submitted for 

registration in North Carolina, and 

predicted that it would take two to three 

weeks for Applicant to get a new 

registration if she were to submit a 

complete and correct application. Tr. 

71–75 (DI’s testimony); id. at 157–59 

(Applicant’s testimony). 

I already found that Applicant 

submitted an online application for a 

DEA registration with a registered 

address in North Carolina on or about 

March 1, 2019. Supra section II.C. 

Having read and analyzed all of the 

record evidence, I find that the 

unrebutted record evidence is that 

Applicant’s North Carolina-based 

registration application was initially 

assigned to ‘‘one of the brand new 

investigators in the office who was still 

in . . . [the] training program,’’ that the 

new investigator’s field training officer 

recognized Applicant’s name and 

confirmed DI’s familiarity with 

Applicant, and that Applicant’s North 

Carolina-based registration application 

was reassigned to DI. Tr. 37–38 (DI’s 

testimony). I find that the unrebutted 

record evidence is that the investigation 

into Applicant’s North Carolina-based 

registration application remained DI’s 

responsibility and that Applicant’s 

North Carolina-based registration 

application was not assigned away from 

DI. See, e.g., id. at 28. I find that the 

Government did not submit clear, 

unequivocal, and convincing evidence 

about the online registration application 

process, including what information the 

online application elicits after an 

applicant responds ‘‘yes’’ to a Liability 

question. See, e.g., id. at 87, 93 (DI’s 

testimony). 

Having read and analyzed all of the 

record evidence, I do not find clear, 

unequivocal, and convincing record 

evidence that Applicant’s North 

Carolina-based registration application 

was false. Having read and analyzed all 

of the record evidence, I do not find any 

record evidence rebutting Applicant’s 

testimony that her responses to the 

second and third Liability questions’ 

follow-up reflected the input and 

instructions she received from the DEA 

investigative team on January 31, 

2019.12

III. Discussion 

A. The Controlled Substances Act and 

the Public Interest Factors 

Pursuant to the Controlled Substances 

Act (hereinafter, CSA), ‘‘[t]he Attorney 

General shall register practitioners . . . 

to dispense . . . controlled substances 

. . . 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). The CSA 

further provides that an application for 

a practitioner’s registration may be 

denied upon a determination that ‘‘the 

issuance of such registration . . . would 

be inconsistent with the public 

interest.’’ Id. In making the public 

interest determination, the CSA requires 

consideration of the following factors: 

(1) The recommendation of the appropriate 

State licensing board or professional 

disciplinary authority. 

(2) The applicant’s experience in 

dispensing . . . controlled substances. 

(3) The applicant’s conviction record under 

Federal or State laws relating to the 

manufacture, distribution, or dispensing of 

controlled substances. 

(4) Compliance with applicable State, 

Federal, or local laws relating to controlled 

substances. 

(5) Such other conduct which may threaten 

the public health and safety. 

Id. 

These factors are considered in the 

disjunctive. Robert A. Leslie, M.D., 68 

FR 15227, 15230 (2003). I ‘‘may rely on 

any one or a combination of factors and 

may give each factor the weight [I] 

deem[ ] appropriate in determining 

whether . . . an application for 

registration [should be] denied.’’ Id. 

Moreover, while I am required to 

consider each factor, I ‘‘ ‘need not make 

explicit findings as to each one,’ ’’ and 

I ‘‘ ‘can give each factor the weight . . . 

[I] determine[ ] is appropriate.’ ’’ Jones 

Total Health Care Pharmacy, LLC v. 

Drug Enf’t Admin., 881 F.3d 823, 830 

(11th Cir. 2018) (quoting Akhtar-Zaidi v. 

Drug Enf’t Admin., 841 F.3d 707, 711 

(6th Cir. 2016)); see also MacKay v. Drug 

Enf’t Admin., 664 F.3d 808, 816 (10th 

Cir. 2011) (quoting Volkman v. Drug 

Enf’t Admin., 567 F.3d 215, 222 (6th Cir. 

2009) (quoting Hoxie v. Drug Enf’t 

Admin., 419 F.3d 477, 482 (6th Cir. 

2005))). In other words, the public 

interest determination ‘‘is not a contest 

in which score is kept; the Agency is not 

required to mechanically count up the 

factors and determine how many favor 

the Government and how many favor 

the registrant. Rather, it is an inquiry 

which focuses on protecting the public 

interest; what matters is the seriousness 

of the registrant’s misconduct.’’ Peter A. 

Ahles, M.D., 71 FR 50097, 50098–99 

(2006). 

In this matter, as already discussed, 

the OSC calls for my adjudication of the 

North Carolina-based registration 

application based on the charge that 

Applicant submitted materially false 

responses to its second and third 

Liability questions. OSC, at 1–4; supra 

sections II.A and II.D. Material 

falsification, of course, is a basis for 

revocation or suspension. 21 U.S.C. 

824(a)(1). While the OSC references 21 

U.S.C. 823(f), it does not specifically 

allege that granting Applicant’s North 

Carolina-based registration application 

would be inconsistent with the public 

interest based on consideration of the 

factors in 21 U.S.C. 823(f)(1) through (5). 

Supra section III.A. In addition, while 

the Government presented some 

evidence and argument that the North 

Carolina-based registration application 

should be denied due to concerns about 

52202 Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Notices 

13Applicant submitted the North Carolina-based 

registration application on or about March 1, 2019, 

about a month after she met with the DEA 

investigative team. GX 1, at 1. 

14 Given the unique found facts in this matter, my 

findings and conclusions do not impact prior 

Agency decisions stating, for example, that 

misinterpretation of the application does not relieve 

an applicant of the responsibility to read the 

question carefully and answer all parts of it 

honestly, or that negligence and carelessness in 

completing an application could be a sufficient 

reason to revoke a registration. See, e.g., Martha 

Hernandez, M.D., 62 FR 61,145, 61,147 (1997) 

(finding that respondent submitted material 

falsifications that are grounds for revocation, but 

concluding that revocation is not an appropriate 

sanction in light of the facts and circumstances). 

Applicant’s controlled substance 

prescribing, Government counsel 

confirmed that material falsification is 

the exclusive basis for the application 

denial sought by the Government. Tr. 

214–16. Given the allegations noticed in 

this matter, no other conclusion is 

legally supportable. Accordingly, the 

sole, specific substantive basis for 

proposing the denial of Applicant’s 

North Carolina-based registration 

application is material falsification 

under 21 U.S.C. 824(a)(1). OSC, at 1–4; 

see also Tr. 211–218. 

Prior Agency decisions have 

addressed whether it is appropriate to 

consider a provision of 21 U.S.C. 824(a) 

when determining whether or not to 

grant a practitioner registration 

application. For over forty-five years, 

and as recently as a few months ago, 

Agency decisions have concluded that it 

is. See, e.g., Robert Wayne Locklear, 86 

FR 33738 (2021) (collecting Agency 

decisions). Those decisions have offered 

multiple bases and analyses for that 

conclusion. 86 FR at 33744–45. I agree 

with my predecessors’ conclusions that 

a provision of 21 U.S.C. 824 may be the 

basis for the denial of a practitioner 

registration application, and that the 21 

U.S.C. 823 factors remain relevant to the 

adjudication of a practitioner 

registration application when a 

provision of 21 U.S.C. 824 is involved. 

Id. 

B. The Material Falsification Allegations 

Regarding 21 U.S.C. 824(a)(1), the 

Agency recently addressed the elements 

of a material falsification concluding, 

among other things, that Kungys v. 

United States, 485 U.S. 759 (1988), and 

its recent progeny remain consistent 

with the CSA. Frank Joseph Stirlacci, 

M.D., 85 FR 45229, 45238 (2020). 

According to the Supreme Court, 

material means having ‘a natural 

tendency to influence, or was capable of 

influencing, the decision of the 

decisionmaking body to which it was 

addressed.’’ Id. (citing Kungys, 485 U.S. 

at 771). 

The Government argues that, although 

Applicant correctly responded ‘‘yes’’ to 

the third Liability question, ‘‘when 

called upon to provide a ‘complete’ 

explanation for her answer, she 

provided substantive information that 

was false . . . and concealed 

information that was true.’’ 

Government’s Proposed Findings of 

Fact, Conclusions of Law, and 

Argument, dated November 1, 2019, at 

1. According to the Government, the 

‘‘substantive information that was false’’ 

was that ‘‘her state license had been 

subject to action in North Carolina in 

2019,’’ and the ‘‘concealed information 

that was true’’ was that ‘‘her state 

licenses had been subject to various 

disciplinary actions in Tennessee, Iowa, 

and Illinois in 2015.’’ Id. In other words, 

the Government argues that Applicant’s 

responses to the follow up engendered 

due to her ‘‘yes’’ response were false, on 

the one hand, and did not disclose 

responsive information that was true, on 

the other hand. Id. Consequently, I now 

address whether the North Carolinabased registration application was 

materially false according to the Kungys 

definition of ‘‘material.’’ 

As already discussed, I find from 

clear, unequivocal, convincing, and 

unrebutted record evidence that 

Applicant answered ‘‘yes’’ to Liability 

questions two and three. Supra section 

II.F. In addition, as already discussed, I 

find from clear, unequivocal, 

convincing, and unrebutted record 

evidence that Applicant’s ‘‘yes’’ answers 

to Liability questions two and three are 

true. Id. According to the record 

evidence that the Government 

submitted regarding Applicant’s 

responses to the follow-up required due 

to her ‘‘yes’’ answers, I also find clear, 

unequivocal, convincing, and 

unrebutted record evidence that DI did 

not consider those responses false, but 

that DI considered that the information 

Applicant provided ‘‘does not answer 

the question being asked.’’ Id. I further 

find the Government did not submit 

clear, unequivocal, and convincing 

evidence about the online registration 

application process, including what 

information the online application 

elicits after an applicant responds ‘‘yes’’ 

to a Liability question. Id. 

As already discussed, I find from 

clear, unequivocal, convincing, and 

unrebutted record evidence that the 

DEA investigative team provided input 

and instructions to Applicant about the 

next DEA registration application she 

might submit during their meeting on 

January 31, 2019. Supra section II.F. In 

addition, as already discussed, I find 

from unrebutted record evidence that 

the DEA investigative team advised 

Applicant at that time that she may 

apply for a DEA registration at a 

registered location in North Carolina, 

cautioned Applicant, in the event she 

reapplies, to answer ‘‘yes’’ to the 

Liability questions she previously 

incorrectly answered in the negative, 

told Applicant that DI would handle 

any application she submitted for 

registration in North Carolina, and 

predicted that it would take two to three 

weeks for Applicant to get a new 

registration if she were to submit a 

complete and correct application.13 Id. 

Also, as already discussed, I do not find 

any record evidence rebutting 

Applicant’s testimony that her 

responses to the second and third 

Liability questions’ follow-up reflected 

the input and instructions she received 

from the DEA investigative team on 

January 31, 2019. Id. According to the 

arguments made by Applicant’s counsel 

during the hearing, Applicant admits 

that her responses to the follow-up were 

incomplete and inadequate. Tr. 199. 

Applicant’s counsel argued that 

Applicant did her best and what she 

thought she was supposed to do based 

on what she had been told in January. 

Id. 

As already mentioned, the found facts 

of this case are unique and not likely 

ever to recur. Based on those facts, 

Applicant’s responses to the follow-up 

that ensued from her ‘‘yes’’ responses to 

two Liability questions did not have a 

‘‘natural tendency to influence’’ and 

were not ‘‘capable of influencing’’ the 

Agency’s decision regarding Applicant’s 

North Carolina-based registration 

application because the responses 

stemmed from Applicant’s meeting with 

the DEA investigative team on January 

31, 2019. In addition, the Government 

did not submit evidence rebutting 

Applicant’s evidence about what 

transpired during her meeting with the 

DEA investigative team on January 31, 

2019. For these reasons, I credit 

Applicant’s evidence about what the 

DEA investigative team told her during 

that meeting and what impact that had 

on the content of the North Carolinabased registration application. It would, 

therefore, be inappropriate for me to 

find a material falsification violation 

when the Government submitted no 

evidence rebutting Applicant’s 

rendition of what the DEA investigative 

team told her that impacted the content 

of the North Carolina-based registration 

application.14 Supra section II.F. 

Accordingly, on the unique and 

unlikely ever to recur record evidence 

before me, I find that the follow-up 

Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Notices 52203 

responses Applicant provided in her 

North Carolina-based registration 

application were not ‘‘predictably 

capable of affecting, that is, had a 

natural tendency to affect, the official 

decision’’ of DEA given Applicant’s 

unrebutted record evidence of the input 

and instructions she said she received 

during her meeting with the DEA 

investigative team on January 31, 2019. 

The Government has the burden of 

proof in this proceeding. 21 CFR 

1301.44. For the above-stated reasons, I 

find that the Government has failed to 

meet its burden. The record evidence 

does not include clear, unequivocal, and 

convincing evidence that Applicant 

materially falsified her North Carolinabased registration application. 21 U.S.C. 

824(a)(1); Frank Joseph Stirlacci, M.D., 

85 FR 45,229 (2020). Accordingly, I am 

dismissing the OSC. 

However, as explained supra section 

II.B., Applicant is not currently 

‘‘authorized to dispense controlled 

substances under the laws of the State’’ 

of North Carolina, I have no statutory 

authority to grant Applicant’s North 

Carolina-based registration application. 

21 U.S.C. 823(f); 21 U.S.C. 802(21); 

supra section II.B. 

Order 

Pursuant to 28 CFR 0.100(b) and the 

authority vested in me by 21 U.S.C. 

823(f) and 824(a), I hereby dismiss the 

Order to Show Cause issued to Lisa Mae 

Jones, N.P. Further, pursuant to 28 CFR 

0.100(b) and the authority vested in me 

by 21 U.S.C. 823(f), in conjunction with 

21 U.S.C. 802(21), I deny Application 

No. W19018692M. This Order is 

effective October 20, 2021. 

Anne Milgram, 

Administrator. 

[FR Doc. 2021–20241 Filed 9–17–21; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Humberto A. Florian, M.D.; Decision 

and Order 

On March 24, 2021, the Assistant 

Administrator, Diversion Control 

Division, Drug Enforcement 

Administration (hereinafter, 

Government), issued an Order to Show 

Cause (hereinafter, OSC) to Humberto A. 

Florian, M.D. (hereinafter, Registrant) of 

Anaheim, California. OSC, at 1. The 

OSC proposed the revocation of 

Registrant’s Certificate of Registration 

No. FF0235451. Id. It alleged that 

Registrant is ‘‘without authority to 

handle controlled substances in 

California, 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 

Medical Board of California, Department 

of Consumer Affairs (hereinafter, the 

Board) issued a Decision on November 

21, 2018, to revoke Registrant’s medical 

license. Id. at 2. On December 21, 2018, 

the Board issued an Order denying 

Registrant’s Petition for Reconsideration 

of the Decision and Registrant’s medical 

license was revoked. Id. The California 

Medical Board revoked Registrant’s 

medical license following its findings, 

inter alia, that Registrant was grossly 

negligent, committed repeated negligent 

acts, failed to maintain accurate and 

adequate medical records, and violated 

the California Medical Practice Act. Id. 

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 August 11, 

2021, a Diversion Investigator 

(hereinafter, the DI) assigned to the 

Riverside District Office, Los Angeles 

Field Division, attempted to contact 

Registrant, including at his registered 

address in Anaheim, California, ‘‘to 

determine if he would voluntarily 

surrender his [DEA registration] in light 

of his lack of state authority to prescribe 

controlled substances.’’ Request for 

Final Agency Action (hereinafter, 

RFAA), Exhibit (hereinafter, RFAAX) 3 

(DI’s Declaration), at 1–2. The DI stated 

that a receptionist at the registered 

address said that ‘‘[Registrant] had 

retired, but [the] office still forwarded 

mail to him.’’ Id. at 2. Following the 

issuance of the OSC, the DI traveled 

with another DI on April 2, 2021, to 

‘‘the last known residence’’ of Registrant 

to attempt to serve Registrant with the 

OSC, but service was unsuccessful as 

‘‘no one appeared to be at the residence 

at that time.’’ Id. On April 12, 2021, the 

Riverside District Office, Los Angeles 

Field Division mailed a copy of the OSC 

to Registrant’s last know residence via 

first-class mail and the mailing was not 

returned as undeliverable. Id. On May 

14, 2021, the Los Angeles Field Division 

mailed a copy of the OSC to Registrant’s 

registered address via first-class mail 

with return receipt requested, to which 

the DEA received ‘‘an unsigned return 

receipt on May 24, 2021, indicating that 

the [OSC] had been delivered.’’ Id.; see 

also RFAAX 3, Appendix (hereinafter, 

App.) B. Finally, on May 20, 2021, the 

DI sent a copy of the [OSC] to Registrant 

via his registered email address and did 

not receive any error message that 

indicated that the email was not 

delivered. RFAAX 3, at 2.; see also 

RFAAX 3, App. C (copy of email). The 

DI also stated that a review of the email 

system showed that the email had been 

delivered. RFAAX 3, at 2. The DI 

concluded that, ‘‘[t]o date, neither 

[Registrant] nor any attorney 

representing [Registrant] has requested a 

hearing. Neither has [Registrant] nor any 

attorney for [Registrant] submitted a 

written statement.’’ Id. at 3. 

The Government forwarded its RFAA, 

along with the evidentiary record, to 

this office on August 12, 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 the [DEA registration] of 

[Registrant] because he lacks authority 

to handle controlled substances in the 

State of California, 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 or before 

May 20, 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. 

FF0235451 at the registered address of 

2090 S Euclid St. Ste. 104, Anaheim, CA 

92802. RFAAX 1 (DEA Certificate of 

Registration). Pursuant to this 

registration, Registrant is authorized to 

dispense controlled substances in 

schedules III through V as a practitioner.