[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Notices]
[Pages 21137-21139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07700]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Jennifer Smith, M.D.; Decision and Order

    On July 8, 2021, a former Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, 
Government), issued an Order to Show Cause (hereinafter, OSC) to 
Jennifer Smith, M.D. (hereinafter, Registrant) of New Hartford, New 
York. OSC, at 1 and 3. The OSC proposed the revocation of Registrant's 
Certificate of Registration No. FS0290875. Id. at 1. It alleged that 
Registrant is ``without authority to handle controlled substances in 
New York, the state in which [she is] registered with DEA'' and alleged 
that her DEA registration must be revoked based on her lack of state 
authority. Id. at 2 (citing 21 U.S.C. 824(a)(3)).
    Specifically, the OSC alleged that on January 28, 2021, the New 
York State Board for Professional Medical Conduct (hereinafter, the 
Board) issued a Determination and Order revoking Registrant's New York 
medical license, effective February 5, 2021. Id. at 1-2. The Board 
revoked Registrant's New York medical license following its findings, 
inter alia, that Registrant ``failed to comply with the terms of an 
earlier Consent Order that [she] entered into with the Board on 
February 15, 2013'' and ``failed to cooperate with an investigation by 
the New York State Office of Professional Medical Conduct.'' 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. at 2 (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 December 21, 2021, a Diversion Investigator 
(hereinafter, the DI) assigned to the Syracuse Resident Office of DEA's 
New York Field Division stated that on or about July 28, 2021, DEA sent 
a copy of the OSC to Registrant via certified mail, return receipt 
requested, and on or about July 31, 2021, Registrant herself signed the 
return receipt for the OSC. Request for Final Agency Action 
(hereinafter, RFAA) Exhibit (hereinafter, RFAAX) 3 (DI's Declaration), 
at 1; see also RFAAX 3, Appendix (hereinafter, App.) A (Return Receipt 
Signed by Registrant) and B.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on January 26, 2022. In its RFAA, the Government 
represents that neither Registrant nor any attorney representing 
Registrant has requested a hearing or submitted a written statement. 
RFAA, at 2; RFAAX 3, at 2. The Government requests that Registrant's 
DEA registration be revoked and that any applications for any other DEA 
registrations by Registrant be denied based on Registrant's lack of 
authority to handle controlled substances in New York, the state in 
which she is registered with the DEA. RFAA, at 5.
    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 about 
July 31, 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, the Government's written representations, and my 
review of the record, I find that neither Registrant, nor anyone 
purporting to represent 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. 
FS0290875 at the registered address of 3985 Oneida Street, Suite 204, 
New Hartford, New York 13413. RFAAX 1 (Certificate of Registration). 
Pursuant to this registration, Registrant is authorized to dispense 
controlled substances in schedules IIN, IIIN,\1\ IV and V as a 
practitioner. Id.
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    \1\ Registrant only is authorized to dispense non-narcotic 
controlled substances in Schedules II and III.
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The Status of Registrant's State License

    On October 16, 2020, the New York State Board for Professional 
Medical Conduct (hereinafter, the Board) issued a Statement of Charges 
against

[[Page 21138]]

Registrant. RFAAX 3, App. C, at 10 and 12. The Statement of Charges 
alleged that on or about February 12, 2013, Registrant voluntarily 
entered into a Consent Order with the Board, in which Registrant ``did 
not contest pending professional misconduct charges alleging negligence 
on more than one occasion in violation of N.Y. Educ. Law Sec.  6530(3) 
and [failure] to maintain records in violation of N.Y. Educ. Law Sec.  
6530(32).'' Id. at 10. Further, according to the Statement of Charges, 
the Consent Order stated that Registrant ``stipulated that her failure 
to comply with any conditions of the [Consent Order] [would] constitute 
misconduct as defined by N.Y. Educ. Law Sec.  6530(29).'' Id. The 
Statement of Charges stated that the Consent Order was approved on or 
about February 15, 2013, and became effective on or about February 26, 
2013. Id. According to the Statement of Charges, the Consent Order 
required that Registrant remain in continuous compliance with various 
state laws and regulations and that Registrant cooperate fully with any 
administration and enforcement, or investigation by the Office of 
Professional Medical Conduct (hereinafter, OPMC). Id. at 10-11. The 
Statement of Charges stated that the Consent Order also imposed various 
penalties, including censure, reprimand, license limitation, and 
probation. Id. at 10. According to the Statement of Charges, Registrant 
violated the terms of the Consent Order when she: Failed to renew her 
registration with the New York State Education Department after her 
registration expired at the end of March 2020; failed to update her New 
York State Physician Profile within the six months prior to the 
expiration of her registration; failed to fully cooperate with an 
investigation from OPMC; failed to respond to various correspondences 
from OPMC; failed to provide records requested from OPMC; and failed to 
schedule and attend an interview with OPMC.\2\ Id. at 11. On January 
28, 2021, the Board's Order sustained the charge that Registrant 
committed professional misconduct by violating conditions imposed on 
her medical license and revoked Registrant's medical license. Id. at 3 
and 7.
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    \2\ The Board detailed the grounds in which OPMC had begun to 
investigate Registrant in its Determination and Order (hereinafter, 
Order) issued January 28, 2021. Id. at 3 and 6-7. According to the 
Order, OPMC had begun to investigate Registrant because ``it had 
reasonable grounds to believe that [Registrant] was impaired to 
practice medicine by drugs or a physical and/or psychiatric 
condition.'' Id. at 6.
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    According to New York's online records, of which I take official 
notice, Registrant's New York medical license is still revoked.\3\ 
Office of the Professions Verification Searches, www.op.nysed.gov/opsearches.htm (last visited date of signature of this Order). 
Accordingly, I find that Registrant is not currently licensed to engage 
in the practice of medicine in New York, the state in which she is 
registered with the DEA.
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    \3\ 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#a6c2c3c788c7c2c2c988c7d2d2c9d4c8c3dfd5e6c2c3c788d3d5c2c9cc88c1c9d0"><span class="__cf_email__" data-cfemail="543031357a3530303b7a3520203b263a312d27143031357a2127303b3e7a333b22">[email protected]</span></a>.
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Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of the 
Controlled Substances Act (hereinafter, CSA) ``upon a finding that the 
registrant . . . has had his State license or registration suspended . 
. . [or] revoked . . . by competent State authority and is no longer 
authorized by State law to engage in the . . . dispensing of controlled 
substances.'' With respect to a practitioner, the DEA has also long 
held that the possession of authority to dispense controlled substances 
under the laws of the state in which a practitioner engages in 
professional practice is a fundamental condition for obtaining and 
maintaining a practitioner's registration. See, e.g., James L. Hooper, 
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 F. App'x 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 (1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined the term ``practitioner'' to mean ``a physician 
. . . or other person licensed, registered, or otherwise permitted, by 
. . . the jurisdiction in which he practices . . ., to distribute, 
dispense, . . . [or] administer . . . a controlled substance in the 
course of professional practice.'' 21 U.S.C. 802(21). Second, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed that ``[t]he Attorney General shall register 
practitioners . . . if the applicant is authorized to dispense . . . 
controlled substances under the laws of the State in which he 
practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the CSA, the DEA has held repeatedly that revocation 
of a practitioner's registration is the appropriate sanction whenever 
he is no longer authorized to dispense controlled substances under the 
laws of the state in which he practices. See, e.g., James L. Hooper, 76 
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby 
Watts, M.D., 53 FR 11,919, 11,920 (1988); Frederick Marsh Blanton, 43 
FR at 27,617.
    According to the New York Controlled Substances Act (hereinafter, 
the Act), ``[i]t shall be unlawful for any person to manufacture, sell, 
prescribe, distribute, dispense, administer, possess, have under his 
control, abandon, or transport a controlled substance except as 
expressly allowed by this article.'' N.Y. Pub. Health Law Sec.  3304 
(McKinney 2022). Further, the Act defines a ``practitioner'' as ``[a] 
physician . . . or other person licensed, or otherwise permitted to 
dispense, administer or conduct research with respect to a controlled 
substance in the course of a licensed professional practice . . . .'' 
Id. at Sec.  3302(27). Finally, New York regulations state that ``[a] 
prescription for a controlled substance may be issued only by a 
practitioner who is . . . authorized to prescribe controlled substances 
pursuant to his licensed professional practice . . .'' N.Y. Comp. Codes 
R. & Regs. tit. 10, 80.64 (2022).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in New York. As already 
discussed, a physician must be a licensed practitioner to dispense a 
controlled substance in New York. Thus, because Registrant lacks 
authority to practice medicine in New York and, therefore, is not 
authorized to handle controlled substances in New York, 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. 
FS0290875 issued to Jennifer Smith, 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

[[Page 21139]]

Jennifer Smith, M.D. to renew or modify this registration, as well as 
any other pending application of Jennifer Smith, M.D., for additional 
registration in New York. This Order is effective May 11, 2022.

Anne Milgram,
Administrator.
[FR Doc. 2022-07700 Filed 4-8-22; 8:45 am]
BILLING CODE 4410-09-P


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