[Federal Register Volume 87, Number 103 (Friday, May 27, 2022)]
[Notices]
[Pages 32186-32188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11507]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 22-14]


Omar Garcia, M.D.; Decision and Order

    On November 4, 2021, the former Acting Assistant Administrator, 
Diversion Control Division, Drug Enforcement Administration 
(hereinafter, DEA or Government), issued an Order to Show Cause 
(hereinafter, OSC) to Omar Garcia, M.D. (hereinafter, Respondent) of 
Ocala, Florida. OSC, at 1 and 3. The OSC proposed the revocation of 
Respondent's Certificate of Registration No. FG2055158. Id. at 1. It 
alleged that Respondent is ``without authority to handle controlled 
substances in Florida, 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 on September 3, 2021, the 
Florida Board of Medicine entered an Order that, effective immediately, 
revoked Respondent's state medical license after a finding that he had 
been convicted of six counts of Health Care Fraud and excluded for 
cause from participating in the Florida Medicaid program. 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 email dated January 25, 2022,\1\ Respondent's wife submitted a 
Request for Hearing on Respondent's behalf, stating that Respondent was 
in federal prison. Request for Hearing dated January 25, 2022. 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 January 26, 2022, the ALJ issued an Order 
Regarding Request for Hearing Attachments and Filing Procedures \2\ as 
well as an Order Directing the Government to File Evidence Regarding 
Service of the Order to Show Cause. On January 28, 2022, the 
Respondent's wife filed a copy of her Power of Attorney as well as an 
updated Request for Hearing dated January 26, 2022. In the updated 
Request for Hearing, Respondent's wife represented that although 
Respondent's Florida medical license was revoked, his DEA registration 
had been issued in Illinois, not Florida. Request for Hearing dated 
January 26, 2022, at 1. Respondent's wife also noted that Respondent 
holds three other state licenses and that his DEA registration record 
was ``impeccable.'' Id. On February 9, 2022, the Government filed its 
Notice of Filing of Evidence Regarding Proof of Service.\3\
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    \1\ Because the Request for Hearing was emailed after 5:00 p.m. 
on January 25, 2022, it was deemed filed on January 26, 2022. Order 
Regarding Request for Hearing Attachments and Filing Procedures, at 
1.
    \2\ In the Request for Hearing email, Respondent's wife 
represented that she had included her Power of Attorney in the form 
of fourteen file attachments, but the ALJ was unable to access the 
attachments. Order Regarding Request for Hearing Attachments and 
Filing Procedures, at 1; see also Request for Hearing.
    \3\ The Government's Notice of Filing of Evidence Regarding 
Proof of Service showed that Respondent was not served with the OSC 
until January 4, 2022, thus, Respondent's Request for Hearing was 
timely filed. 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 (hereinafter, 
Recommended Decision or RD); see also Government's Notice of Filing 
of Evidence Regarding Proof of Service.

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[[Page 32187]]

    On February 9, 2022, the ALJ issued an Order Directing the 
Government to File Evidence Regarding its Lack of State Authority 
Allegation and Briefing Schedule. The Government timely filed its 
Notice of Filing of Evidence and Motion for Summary Disposition 
(hereinafter, Motion for Summary Disposition) on February 25, 2022. RD, 
at 2. In its Motion, the Government represented that Respondent lacks 
authority to handle controlled substances in Florida, the state in 
which he is registered with the DEA, and argued that, therefore, 
Respondent's DEA registration must be revoked. Motion for Summary 
Disposition, at 1-6. Respondent failed to timely file a response to the 
Government's Motion and on March 25, 2022, the ALJ issued an Order 
Directing Compliance to Respondent. RD, at 2. By email dated March 21, 
2022,\4\ Respondent's wife requested additional time to file a response 
and on the same day, the ALJ issued an Order Regarding Respondent's 
Extension Request extending the deadline. Id. On March 24, 2022, 
Respondent filed a Response to the Motion for Summary Disposition 
(hereinafter, Response). In his Response dated March 22, 2022, 
Respondent indicated that he missed the original deadline because he is 
incarcerated and it had been an oversight by his wife. Response, at 1. 
Respondent also stated that as of March 14, 2022, an updated DEA 
registration was sent to his home address, and that prior to the 
update, the registration was listed as being issued in Illinois. Id. at 
2. Finally, Respondent reiterated that he had medical licenses in other 
states and noted that his underlying conviction was being appealed. Id.
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    \4\ Because the request was emailed after 5:00 p.m. on March 21, 
2022, it was deemed filed on March 22, 2022. Id. at 3.
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    On March 29, 2022, the ALJ granted the Government's Motion for 
Summary Disposition, finding that ``[t]here is no genuine issue of 
material fact in this case.'' RD, at 8. The ALJ recommended that 
Respondent's registration be revoked and that any application to renew 
or modify his registration, and any applications for any other DEA 
registrations in Florida, be denied because Respondent lacks state 
authority to handle control substances. Id. at 9. By letter dated April 
25, 2022, the ALJ certified and transmitted the record to me for final 
Agency action and noted 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. 
FG2055158 at the registered address of 7258 SE 2nd Ave., Ocala, FL 
34480. Motion for Summary Disposition, Attachment (hereinafter, Gov. 
Att.) 2, Exhibit (hereinafter, Ex.) 1 (Certificate of Registration). 
Pursuant to this registration, Respondent is authorized to dispense 
controlled substances in schedules II through V as a practitioner. Id. 
Respondent's registration expires on September 30, 2022. Id. On April 
30, 2021, DEA granted Respondent's request to change his registered 
address from Illinois to Florida. Gov. Att. 2.

The Status of Respondent's State License

    On December 11, 2020, the State of Florida Department of Health 
(hereinafter, the Department) issued an Administrative Complaint 
against Respondent alleging that on or about February 27, 2020, the 
Florida Agency for Health Care Administration terminated Respondent's 
participation in the state Medicaid program and therefore, Respondent 
was subject to Department discipline. Gov. Att. 1, Ex. 1, at 5-7. On 
September 3, 2021, the State of Florida Board of Medicine (hereinafter, 
the Board) issued a Final Order revoking Respondent's state medical 
license after finding that Respondent had been convicted of six counts 
of Health Care Fraud and that Respondent had been sanctioned and 
terminated with cause from participating in the Florida Medicaid 
program. Id. at 1-3.
    According to Florida's online records, of which I take official 
notice, Respondent's medical license is still revoked.\5\ Florida 
Department of Health License Verification, https://mqa-internet.doh.state.fl.us/MQASearchServices/HealthCareProviders (last 
visited date of signature of this Order). Accordingly, I find that 
Respondent is not currently licensed to practice medicine in Florida, 
the state in which he is registered with the DEA.\6\
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    \5\ 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, 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 <a href="/cdn-cgi/l/email-protection#452120246b2421212a6b2431312a372b203c36052120246b3036212a2f6b222a33"><span class="__cf_email__" data-cfemail="b7d3d2d699d6d3d3d899d6c3c3d8c5d9d2cec4f7d3d2d699c2c4d3d8dd99d0d8c1">[email protected]</span></a>.
    \6\ Respondent argues that his DEA registration was issued in 
Illinois, not Florida, however, the record evidence shows that his 
DEA registration currently has a registered address in Florida. See 
Gov. Att. 2, Ex. 1 (Certificate of Registration). Further, even if 
Respondent's registered address were in Illinois, according to 
Illinois online records, of which I take official notice, 
Respondent's Illinois medical license is indefinitely suspended and 
Respondent's Illinois controlled substances registration is expired. 
Illinois Department of Financial and Professional Regulation License 
Lookup, https://online-dfpr.micropact.com/lookup/licenselookup.aspx 
(last visited date of signature of this Order). Thus, Respondent is 
not currently licensed to engage in the practice of medicine nor 
registered to dispense controlled substances in Illinois. Respondent 
argues that he has other state medical licenses that could be used 
as a basis for DEA registration, however, as the ALJ stated, the 
argument fails ``because Respondent provides no evidence to support 
this assertion; indeed, he does not even identify those other 
states.'' RD, at 8. Moreover, ``even if [Respondent] does have other 
valid state medical licenses, his DEA registration is based on his 
Florida medical license, and that has undeniably been revoked.'' Id.
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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 71371 (2011), pet. for rev. denied, 481 F. App'x 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined the term ``practitioner'' to mean ``a physician 
. . . or other person licensed, registered, or otherwise permitted, by 
. . . the jurisdiction in which he practices . . . , to distribute, 
dispense, . . . [or] administer . . . a controlled substance in the 
course of professional practice.'' 21 U.S.C.

[[Page 32188]]

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. Moreover, because ``the 
controlling question'' in a proceeding brought under 21 U.S.C. 
824(a)(3) is whether the holder of a practitioner's registration ``is 
currently authorized to handle controlled substances in the [S]tate,'' 
Hooper, 76 FR at 71371 (quoting Anne Lazar Thorn, 62 FR 12847, 12848 
(1997)), the Agency has also long held that revocation is warranted 
even where a practitioner is still challenging the underlying action. 
Bourne Pharmacy, 72 FR 18273, 18274 (2007); Wingfield Drugs, 52 FR 
27070, 27071 (1987). Thus, it is of no consequence that in this case, 
Respondent's underlying conviction is being appealed. What is 
consequential is my finding that Respondent is no longer currently 
authorized to dispense controlled substances in Florida, the state in 
which he is registered with the DEA.
    According to Florida statute, ``A practitioner, in good faith and 
in the course of his or her professional practice only, may prescribe, 
administer, dispense, mix, or otherwise prepare a controlled 
substance.'' Fla. Stat. Ann. 893.05(1)(a) (West 2022). Further, a 
``practitioner'' as defined by Florida statute includes ``a physician 
licensed under chapter 458.\7\'' Id. at Sec.  893.02(23).
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    \7\ Chapter 458 regulates medical practice.
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    Here, the undisputed evidence in the record is that Respondent 
currently lacks authority to practice medicine in Florida. As already 
discussed, a physician must be a licensed practitioner to dispense a 
controlled substance in Florida. Thus, because Respondent lacks 
authority to practice medicine in Florida and, therefore, is not 
authorized to handle controlled substances in Florida, 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. 
FG2055158 issued to Omar Garcia, 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 Omar Garcia, M.D. to renew or modify 
this registration, as well as any other pending application of Omar 
Garcia, M.D. for additional registration in Florida. This Order is 
effective June 27, 2022.

Anne Milgram,
Administrator.
[FR Doc. 2022-11507 Filed 5-26-22; 8:45 am]
BILLING CODE 4410-09-P


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