Federal Register / Vol. 87, No. 69 / Monday, April 11, 2022 / Notices 21215 

2 I do not consider remedial measures when an 

applicant does not unequivocally accept 

responsibility. In this matter, Applicant did not 

accept responsibility or propose remedial measures. 

1The Request for Hearing was filed on December 

1, 2021. Order Directing the Government to File 

Evidence Regarding Its Lack of State Authority 

Allegation and Briefing Schedule dated December 

2, 2021, at 1. I find that the Government’s service 

of the OSC was adequate and that the Request for 

Hearing was timely filed on December 1, 2021. 

IV. Sanction 

Where, as here, the Government 

presented a prima facie case that it 

would be ‘‘inconsistent with the public 

interest’’ to grant the registration 

application, and Applicant did not rebut 

the Government’s prima facie case, the 

‘‘burden of proof shifts’’ to Applicant 

‘‘to show why it can be trusted with a 

registration.’’ Jones Total Health Care 

Pharmacy, LLC v. Drug Enf’t Admin., 

881 F.3d at 830; see also Samuel 

Mintlow, M.D., 80 FR 3630, 3652 (2015) 

(‘‘[S]ufficient mitigating evidence’’ must 

be presented ‘‘to assure the 

Administrator that [he] can be entrusted 

with the responsibility carried by such 

a registration.’’); Cleveland J. Enmon Jr., 

M.D., 77 FR 57116, 57126 (2012) (same); 

Robert M. Golden, M.D., 61 FR 24808, 

24812 (1996) (same). Further, past 

performance is the best predictor of 

future performance and, when an 

applicant has ‘‘failed to comply with its 

responsibilities in the past, it makes 

sense for the agency to consider whether 

the pharmacy will change its behavior 

in the future.’’ Pharmacy Doctors 

Enterprises, Inc. v. Drug Enf’t Admin., 

789 F. App’x at 733 (citing Jones Total 

Health Care Pharmacy, LLC v. Drug 

Enf’t Admin., 881 F.3d at 831 (citing 

MacKay v. Drug Enf’t Admin., 664 F.3d 

at 820 (‘‘[T]hat consideration is vital to 

whether continued registration is in the 

public interest.’’) and Alra Labs., Inc. v. 

Drug Enf’t Admin., 54 F.3d 450, 452 (7th 

Cir. 1995) (‘‘An agency rationally may 

conclude that past performance is the 

best predictor of future 

performance.’’))). 

Additionally, in evaluating whether a 

practitioner should be entrusted with a 

registration, the Agency considers 

whether the practitioner has accepted 

responsibility for any misconduct; 

circuit courts have approved the 

Agency’s acceptance of responsibility 

requirement. Pharmacy Doctors 

Enterprises, Inc. v. Drug Enf’t Admin., 

789 F. App’x at 732; Jones Total Health 

Care Pharmacy, LLC v. Drug Enf’t 

Admin., 881 F.3d at 830 (citing MacKay 

v. Drug Enf’t Admin., 664 F.3d at 820 

(‘‘The DEA may properly consider 

whether a physician admits fault in 

determining if the physician’s 

registration should be revoked.’’)); see 

also Jeffrey Stein, M.D., 84 FR 46968, 

46972–73 (2019) (unequivocal 

acceptance of responsibility); Jayam 

Krishna-Iyer, M.D., 74 FR 459, 463 

(2009) (collecting cases). 

The Agency also has decided that the 

egregiousness and extent of the 

misconduct are significant factors in 

determining the appropriate sanction. 

Garrett Howard Smith, M.D., 83 FR 

18882, 18910 (2018) (collecting cases); 

Samuel Mintlow, M.D., 80 FR at 3652 

(‘‘Obviously, the egregiousness and 

extent of a registrant’s misconduct are 

significant factors in determining the 

appropriate sanction.’’). The Agency has 

also considered the need to deter similar 

acts by Applicant and by the 

community of registrants and potential 

registrants. Id. 

In terms of egregiousness, the 

violations that the record evidence 

shows Applicant committed go to the 

heart of the CSA—not complying with 

required controlled substance 

recordkeeping and submitting a 

registration application that includes a 

material falsification. 

Applicant did not take responsibility 

for the founded violations. Accordingly, 

it is not reasonable to believe that 

Applicant’s future controlled substance 

dispensing will comply with legal 

requirements.2

For all of these reasons, I find that it 

would be inconsistent with the public 

interest for me to entrust Applicant with 

a registration. Accordingly, I shall order 

the denial of Applicant’s registration 

application, Control No. W20008908A. 

Order 

Pursuant to 28 CFR 0.100(b) and the 

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

823(f), I hereby deny the registration 

application submitted by Crosby 

Pharmacy and Wellness, Control No. 

W20008908A, seeking registration in 

Texas as a practitioner, and I hereby 

deny any other pending application 

submitted by Crosby Pharmacy and 

Wellness for a DEA registration in the 

State of Texas. This Order is effective 

May 11, 2022. 

Anne Milgram, 

Administrator. 

[FR Doc. 2022–07687 Filed 4–8–22; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 22–7] 

Adam T. Rodman, P.A.; Decision and 

Order 

On November 8, 2021, a former 

Acting Assistant Administrator, 

Diversion Control Division, Drug 

Enforcement Administration 

(hereinafter, DEA or Government), 

issued an Order to Show Cause 

(hereinafter, OSC) to Adam T. Rodman, 

P.A. (hereinafter, Respondent) of 

Dedham, Massachusetts. OSC, at 1 and 

3. The OSC proposed the revocation of 

Respondent’s Certificate of Registration 

No. MR0956586. Id. at 1. It alleged that 

Respondent ‘‘[does] not have authority 

to dispense or prescribe controlled 

substances in the Commonwealth of 

Massachusetts, the state in which [he is] 

registered with the DEA.’’ Id. (citing 21 

U.S.C. 824(a)(3)). 

Specifically, the OSC alleged that on 

or about June 30, 2021, the 

Massachusetts Drug Control Program 

accepted Respondent’s voluntary 

surrender of his state controlled 

substances registration for schedules II 

through V. Id. at 2. According to the 

OSC, Respondent retained authority in 

schedule VI, which does not include 

federally-scheduled drugs. Id. (citing 

Mass. Gen. Laws ch. 94C, § 2). 

The OSC notified Respondent 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. at 2–3 (citing 

21 CFR 1301.43). The OSC also notified 

Respondent of the opportunity to 

submit a corrective action plan. Id. at 3 

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

By letter dated December 1, 2021, 

Respondent timely requested a hearing.1

Request for Hearing, at 1. In his Request 

for Hearing, Respondent objected to the 

revocation of his DEA registration and 

stated: ‘‘The basis for my objection is, in 

part, that my Massachusetts Controlled 

Substance Registration has not been 

suspended, revoked, or denied, and 

therefore 21 U.S.C. 824(a)(3) is not 

applicable.’’ Id. 

The Office of Administrative Law 

Judges put the matter on the docket and 

assigned it to Administrative Law Judge 

Teresa A. Wallbaum (hereinafter, the 

ALJ). On December 2, 2021, the ALJ 

issued an Order Directing the 

Government to File Evidence Regarding 

Its Lack of State Authority Allegation 

and Briefing Schedule (hereinafter, 

Briefing Schedule). On December 15, 

2021, the Government timely filed its 

Notice of Filing of Evidence and Motion 

for Summary Disposition (hereinafter, 

Government’s Motion). Order Granting 

the Government’s Motion for Summary 

Disposition, and Recommended 

Rulings, Findings of Fact, Conclusions 


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21216 Federal Register / Vol. 87, No. 69 / Monday, April 11, 2022 / Notices 

2Respondent was granted an extension of time to 

file a reply to the Government’s Motion. See Order 

Amending Briefing Schedule dated December 23, 

2021. 

3Under 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, 

Respondent may dispute my 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 

dea.addo.attorneys@dea.usdoj.gov. 4Respondent argues that 21 U.S.C. 824(a)(3) only 

refers to revocation, suspension, or denial; however, 

the Agency has consistently stated that the central 

issue is whether or not the registrant is ‘‘currently 

authorized to handle controlled substances in the 

state,’’ James Hooper, 76 FR 71371 (2011) (quoting 

Anne Lazar Thorn, 62 FR 12847, 12848 (1997)); 

thus, it is of no consequence whether the 

registrant’s state license was revoked or suspended, 

has expired, or was voluntarily surrendered. See, 

e.g., Alex E. Torres, M.D., 87 FR 3352 (2022) 

(voluntary surrender of medical license); TelPharmacy, 87 FR 2904 (2022) (state pharmacy 

license expired); Humberto A. Florian, M.D., 86 FR 

52203 (2021) (state medical license revoked); Javaid 

A. Perwaiz, M.D., 86 FR 20732 (2021) (state medical 

license expired); Michael Thomas Watkins, M.D., 85 

FR 27246 (2020) (voluntary agreement to cease 

practicing medicine in Massachusetts). What is of 

consequence is the fact that Respondent is no 

longer authorized to handle controlled substances 

in the Commonwealth of Massachusetts, where he 

is registered with the DEA. Furthermore, the letter 

of acceptance of the consent agreement from the 

Massachusetts Drug Control Program implies that 

Respondent may only re-apply for such a 

registration in September 2023. See GX A, at 1. 

of Law, and Decision of the 

Administrative Law Judge dated January 

27, 2022 (hereinafter, Recommended 

Decision or RD), at 2. In its Motion, the 

Government argued that because 

Respondent lacks authority to handle 

controlled substances in Massachusetts, 

the state in which he is registered with 

the DEA, his DEA registration should be 

revoked. Government’s Motion, at 2–3. 

On January 18, 2022, Respondent 

timely 2 filed his Opposition to 

Government’s Motion for Summary 

Disposition (hereinafter, Respondent’s 

Opposition). RD, at 2. In his Opposition, 

Respondent argued that the plain 

language of 21 U.S.C. 824(a)(3) does not 

apply to him and that his DEA 

registration should not be revoked 

because his Massachusetts Controlled 

Substance Registration was not 

suspended, revoked, or denied, but 

instead voluntarily surrendered. 

Respondent’s Opposition, at 2–4. 

On January 27, 2022, the ALJ granted 

the Government’s Motion, finding that 

‘‘[t]here is no genuine issue of material 

fact in this case.’’ RD, at 6. Further, the 

ALJ found that Respondent’s argument 

regarding the plain language of 21 

U.S.C. 824(a)(3) was ‘‘at odds with clear 

Agency precedent on the issue and must 

therefore fail,’’ because ‘‘regardless of 

how or why [Respondent] lost his 

authority to handle controlled 

substances under state law, he has lost 

it.’’ Id. at 7. Accordingly, the ALJ 

recommended that Respondent’s DEA 

registration be revoked and that any 

application to renew or modify his 

registration, or any applications for any 

other DEA registrations in 

Massachusetts, be denied based on 

Respondent’s lack of state authority to 

handle controlled substances. Id. at 8. 

By letter dated February 22, 2022, the 

ALJ certified and transmitted the record 

to me for final Agency action and 

advised that neither party filed 

exceptions. 

I issue this Decision and Order based 

on the entire record before me. 21 CFR 

1301.43(e). I make the following 

findings of fact. 

Findings of Fact 

Respondent’s DEA Registration 

Respondent is the holder of DEA 

Certificate of Registration No. 

MR0956586 at the registered address of 

983 Providence Highway, Dedham, 

Massachusetts 02026. Government’s 

Motion, Declaration of [Diversion 

Investigator (DI)], at 1. Pursuant to this 

DEA registration, Respondent is 

authorized to dispense controlled 

substances in schedules II through V as 

a mid-level practitioner. Id. 

Respondent’s registration expires on 

April 30, 2024. Id. 

The Status of Respondent’s State 

License 

On June 30, 2021, the Massachusetts 

Drug Control Program accepted 

Respondent’s voluntary surrender of his 

Massachusetts controlled substances 

registration for Massachusetts drug 

schedules II through V and stated that 

Respondent was ‘‘no longer authorized 

to prescribe, distribute, possess, 

dispense or administer controlled 

substances from schedules II through V 

in the Commonwealth of 

Massachusetts.’’ Government’s Motion, 

Declaration of DI, Exhibit (hereinafter 

GX) A. The Massachusetts Drug Control 

Program also clarified that Respondent’s 

Massachusetts controlled substances 

registration would retain authorization 

for schedule VI medications only. Id. 

On August 30, 2021, the 

Massachusetts Board of Registration of 

Physician Assistants (hereinafter, the 

Board) entered into a Consent 

Agreement for Probation (hereinafter, 

Consent Agreement) with Respondent 

regarding Respondent’s Massachusetts 

Physician Assistant license. 

Respondent’s Opposition, Exhibit 

(hereinafter, RX) A, at 1–2. By signing 

the Consent Agreement, Respondent 

admitted that on various dates between 

October 4, 2018, and September 30, 

2019, he had diverted controlled 

substances. Id. at 2. Specifically, 

Respondent admitted that for multiple 

patients, he had examined them, written 

them prescriptions for controlled 

substances, and asked them to bring him 

the filled prescriptions. Id. The Consent 

Agreement placed Respondent’s 

Massachusetts Physician Assistant 

license on probation for two years 

subject to various requirements and 

conditions. Id. at 2–8. 

According to online records for 

Massachusetts, of which I take official 

notice, Respondent’s Massachusetts 

controlled substances registration is 

current, but authorized only for drug 

schedule VI.3 Massachusetts Health 

Professions License Verification Site, 

https://madph.mylicense.com/ 

verification (last visited date of 

signature of this Order). Further, online 

records for Massachusetts list 

Respondent’s Massachusetts Physician 

Assistant license as on probation. Id. 

Accordingly, I find that Respondent is 

not currently licensed to dispense 

controlled substances in schedules II 

through V in Massachusetts, the state in 

which he 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, revoked, or denied by 

competent State authority and is no 

longer authorized by State law to engage 

in the . . . dispensing of controlled 

substances.’’ 4 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 


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5As previously discussed, Respondent is only 

authorized to dispense controlled substances in 

schedule VI in Massachusetts. See supra. According 

to the Massachusetts Controlled Substances Act, 

schedules I through V incorporate the five 

schedules of controlled substances under the CSA, 

with schedule VI consisting of ‘‘all prescription 

drugs not included in the first five schedules.’’ 

Mass. Gen. Laws ch. 94C, § 2(a) (Westlaw, current 

through Chapter 14 of the 2022 2nd Annual 

Session). As such, Respondent does not have state 

authority to dispense CSA controlled substances in 

Massachusetts. 

1The Request for Hearing was filed on January 6, 

2022. Order Directing the Filing of Government 

Evidence Regarding Its Lack of State Authority 

Allegation and Briefing Schedule dated January 10, 

2022, at 1. I find that the Government’s service of 

the OSC was adequate and that the Request for 

Hearing was timely filed on January 6, 2022. 

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. 

According to the Massachusetts 

Controlled Substances Act, ‘‘every 

person who . . . dispenses . . . any 

controlled substance within the 

commonwealth shall . . . register with 

the commissioner of public health, in 

accordance with his regulations.’’ Mass. 

Gen. Laws ch. 94C, § 7(a) (Westlaw, 

current through Chapter 14 of the 2022 

2nd Annual Session). Further, ‘‘[a] 

prescription for a controlled substance 

may be issued only by a practitioner 

who is (1) authorized to prescribe 

controlled substances; and (2) registered 

pursuant to the provisions of [the 

Massachusetts Controlled Substances 

Act].’’ Id. at § 18(a). 

Here, the undisputed evidence in the 

record is that Respondent is not 

authorized to dispense controlled 

substances in schedules II through V in 

Massachusetts.5 Further, I agree with 

the ALJ that it is of no consequence that 

Respondent’s Massachusetts controlled 

substances registration for drug 

schedules II through V was voluntarily 

surrendered rather than revoked or 

suspended. Thus, because Respondent 

is not authorized to prescribe controlled 

substances in schedules II through V in 

Massachusetts, Respondent is not 

eligible to maintain a DEA registration. 

Accordingly, I will order that 

Respondent’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. MR0956586 issued 

to Adam T. Rodman, P.A. 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 Adam T. Rodman, P.A. to 

renew or modify this registration, as 

well as any other pending application of 

Adam T. Rodman, P.A. for additional 

registration in Massachusetts. This 

Order is effective May 11, 2022. 

Anne Milgram, 

Administrator. 

[FR Doc. 2022–07726 Filed 4–8–22; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 22–12] 

Lezlie McKenzie, N.P.; Decision and 

Order 

On December 10, 2021, a former 

Acting Assistant Administrator, 

Diversion Control Division, Drug 

Enforcement Administration 

(hereinafter, DEA or Government), 

issued an Order to Show Cause 

(hereinafter, OSC) to Lezlie McKenzie, 

N.P. (hereinafter, Respondent) of 

Missoula, Montana. OSC, at 1. The OSC 

proposed the revocation of 

Respondent’s Certificate of Registration 

Number MM0938261 (hereinafter, 

registration or COR). Id. It alleged that 

Respondent ‘‘[is] currently without 

authority to handle controlled 

substances in Montana, the state in 

which [she is] registered with DEA.’’ Id. 

at 2 (citing 21 U.S.C. 824(a)(3)). 

Specifically, the OSC alleged that on 

July 26, 2021, the Montana Board of 

Nursing entered a Final Order that 

outlined ‘‘conditions [Respondent was] 

required to meet in order to maintain 

[her] Montana nursing license.’’ Id. The 

OSC further alleged that on October 26, 

2021, the Montana Board of Nursing 

‘‘indefinitely suspended [Respondent’s] 

Montana nursing licenses for failure to 

abide by the terms’’ of the July 26, 2021 

Order. Id. 

The OSC notified Respondent 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 

Respondent of the opportunity to 

submit a corrective action plan. Id. at 3 

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

By letter dated January 6, 2022, 

Respondent timely requested a hearing.1

Request for Hearing, at 1. In her Request 

for Hearing, Respondent stated that she 

‘‘wish[es] to not relinquish any rights in 

regards to this matter and intend[s] to 

comply fully with any regulations of the 

DEA.’’ Id. 

The Office of Administrative Law 

Judges put the matter on the docket and 

assigned it to Chief Administrative Law 

Judge John J. Mulrooney II (hereinafter, 

the Chief ALJ). On January 10, 2022, the 

Chief ALJ issued an Order Directing the 

Filing of Government Evidence 

Regarding Its Lack of State Authority 

Allegation and Briefing Schedule 

(hereinafter, Briefing Schedule). On 

January 24, 2022, the Government 

timely filed its Submission of Evidence 

and Motion for Summary Disposition 

(hereinafter, Government’s Motion). In 

its Motion, the Government argued that 

because Respondent lacks authority to 

handle controlled substances in 

Montana, the state in which she is 

registered with the DEA, her DEA 

registration should be revoked. 

Government’s Motion, at 2–5. 

Respondent did not file any answer to 

the Government’s Motion. Order 

Granting the Government’s Motion for 

Summary Disposition, and 

Recommended Rulings, Findings of 

Fact, Conclusions of Law, and Decision 

of the Administrative Law Judge dated 

February 8, 2022 (hereinafter, 

Recommended Decision or RD), at 2. 

On February 8, 2022, the Chief ALJ 

granted the Government’s Motion, 

finding that ‘‘[s]ince the Respondent 

does not have authority as a practitioner 

in Montana, and this fact is not 

challenged by the Respondent, there is 

no other fact of consequence for this 

tribunal to decide in order to determine 

whether or not she is entitled to hold a 

COR.’’ RD, at 5. Accordingly, the Chief 


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