Federal Register / Vol. 87, No. 113 / Monday, June 13, 2022 / Notices 35795 

1Administrative Law Judge Exhibit (ALJX) 1 

(OSC). 

2See Recommended Rulings, Findings of Fact, 

Conclusions of Law, and Decision of the 

Administrative Law Judge (‘‘Recommended 

Decision’’ or ‘‘RD’’). Respondent filed Exceptions, 

but later asked to withdraw them. Resp Notice to 

Dismiss, at 2–3. The Agency is granting 

Respondent’s request to withdraw his Exceptions, 

but declining Respondent’s request to adopt the 

Recommended Decision and instead issuing a Final 

Order based on consideration of the record in its 

entirety. 

3Stip. 14. Respondent’s partner’s name has been 

replaced with his initial. 

4 Govt Posthearing, at 3. In its Posthearing Brief, 

the Government also alleged that Respondent 

issued a prescription for phentermine, a controlled 

substance, in violation of N.J. Admin. Code § 13.35– 

7.5A(b) and 21 CFR 1306.04. This allegation is not 

sustained because its legal grounds were not 

properly noticed. 

5The Government has also alleged that 

Respondent’s conduct violated 21 U.S.C. 843(a)(2). 

Govt Posthearing, at 27. This provision was not 

fully briefed until after the RD. See Resp 

Exceptions, at 13–15; Govt Response to Resp 

Exceptions, at 11–15. The Agency declines to make 

a finding on this criminal violation because the 

factual record in this case has not been developed 

sufficiently to determine how section 843(a)(2) 

applies. 

to file additional written notifications 

disclosing all changes in membership. 

On April 21, 1997, TOG filed its 

original notification pursuant to Section 

6(a) of the Act. The Department of 

Justice published a notice in the Federal 

Register pursuant to Section 6(b) of the 

Act on June 13, 1997 (62 FR 32371). 

The last notification was filed with 

the Department on March 2, 2022. A 

notice was published in the Federal 

Register pursuant to Section 6(b) of the 

Act on March 15, 2022 (87 FR 14574). 

Suzanne Morris, 

Chief, Premerger and Division Statistics, 

Antitrust Division. 

[FR Doc. 2022–12606 Filed 6–10–22; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 19–24] 

Gary A. Matusow, D.O.; Decision and 

Order 

An official of the Drug Enforcement 

Administration (‘‘Government’’) issued 

an Order to Show Cause (OSC) seeking 

to deny the pending application for a 

Drug Enforcement Administration 

(DEA) Certificate of Registration of Gary 

Matusow, D.O. (‘‘Respondent’’).1 After a 

hearing, the Administrative Law Judge 

(ALJ) recommended that Respondent’s 

application be denied.2 The Agency 

agrees with the ALJ’s conclusion, and, 

for the reasons explained below, denies 

Respondent’s application as 

inconsistent with the public interest 

under 21 U.S.C. 823(f). 

I. Findings of Fact 

On November 14, 2018, Respondent 

submitted an application for a DEA 

Certificate of Registration. GX 1. 

Respondent was previously registered 

with DEA to handle controlled 

substances but voluntarily surrendered 

this registration for cause. GX 9. 

The Government and Respondent 

have agreed to fifty-eight stipulations, 

which are hereby incorporated into the 

record. See RD, at 41–47. 

Respondent was previously employed 

as an osteopathic physician partner at a 

practice in New Jersey that he shared 

with a partner, Dr. M.3 Between August 

9, 2015, and January 8, 2017, 

Respondent filled (or refilled) 

prescriptions for controlled substances 

that were issued with Dr. M’s DEA 

registration. Stip. 17–18. Respondent 

issued each of the prescriptions to 

himself by calling them into a pharmacy 

with Dr. M’s name. Stip. 19. Respondent 

picked up each of the prescriptions from 

the pharmacy. Stip. 20. Respondent is 

not a patient of Dr. M and was not a 

patient of his when the prescriptions 

were issued. Stip. 21. 

A. Allegations 

The Government argues that 

Respondent’s application for a new DEA 

registration should be denied because 

he displayed dishonesty in a number of 

ways and violated the law.4 The 

Government has shown that Respondent 

obtained controlled substances for his 

personal use in violation of state law, 

but the Government’s other allegations 

are not sustained. 

1. Respondent Obtained Controlled 

Substances Without a Valid Prescription 

in Violation of State Law 

The Government has alleged that 

Respondent violated N.J. Stat. Ann. 

§ 2C:35–10 when he filled the controlled 

substance prescriptions issued under 

Dr. M’s name and DEA registration 

number. Under N.J. Stat. Ann. § 2C:35– 

10, it is ‘‘unlawful for any person, 

knowingly or purposely, to obtain . . . 

a controlled dangerous substance . . . 

unless the substance was obtained 

directly, or pursuant to a valid 

prescription or order form from a 

practitioner, while acting in the course 

of his professional practice . . . .’’ 

Respondent admits that he obtained 

controlled substances pursuant to 

prescriptions authorized by Dr. M and 

under Dr. M’s DEA registration despite 

not being a patient of Dr. M. See Stip. 

21. Respondent testified that when he 

asked Dr. M for authorization to call in 

the prescriptions under Dr. M’s name, 

Respondent knew he should have been 

a patient of the practice and that the 

discussion between Respondent and Dr. 

M about his health issues should have 

been documented in a patient chart. Tr. 

358–59; see N.J. Admin. Code § 13:35– 

7.1A (‘‘[A] practitioner shall not 

dispense drugs or issue a prescriptions 

to an individual . . . without first 

having conducted an examination, 

which shall be properly documented in 

the patient record.’’). Respondent also 

admitted that he knew the prescriptions 

did not comply with state and federal 

regulations. See Tr. 456–59. When asked 

if he believed Dr. M had taken ‘‘those 

steps that you have to take before you 

prescribe controlled substances,’’ 

Respondent responded that he did not 

and that he thought that he and Dr. M 

were both negligent. Id. at 456. He also 

testified that he knew the Dr. M 

prescriptions were ‘‘off the books’’ and 

that they exposed Dr. M to professional 

and potential criminal liability. Id. at 

456–57. 

Based on Respondent’s admissions 

during the administrative hearing, the 

Agency finds that he knew the subject 

prescriptions were not valid 

prescriptions issued in the usual course 

of Dr. M’s professional practice. 

Accordingly, the Agency finds that 

Respondent violated N.J. Stat. Ann. 

§ 2C:35–10. 

2. Allegation That Respondent Used Dr. 

M’s DEA Registration To Fraudulently 

Obtain Controlled Substances 

The Government has alleged that 

Respondent fraudulently obtained 

controlled substances by using Dr. M’s 

DEA registration number without Dr. 

M’s authorization in violation of federal 

law (21 U.S.C. 843(a)(3)) and state law 

(N.J. Stat. Ann. § 2C:35–10). Dr. M and 

Respondent gave conflicting testimony 

as to whether Dr. M authorized 

Respondent’s use of Dr. M’s registration 

to obtain these controlled substances. 

The ALJ was in the best position to 

observe the demeanor of the witnesses, 

and having considered his credibility 

determinations in light of the 

‘‘consistency and inherent probability of 

the testimony,’’ the Agency adopts the 

ALJ’s findings regarding Dr. M’s and 

Respondent’s testimony on this issue. 

See Universal Camera Corp. v. NLRB, 

340 U.S. 474, 496 (1951); see also Tr. 

242–43; RD, at 77–78, 85–88. 

Accordingly, the Agency finds no 

violation of these laws.5


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35796 Federal Register / Vol. 87, No. 113 / Monday, June 13, 2022 / Notices 

6The Government also alleged that Respondent’s 

answers on his registration application displayed a 

failure to accept responsibility for fraudulent use of 

Dr. M’s registration, but, as explained, the record 

does not support a finding that Respondent 

fraudulently used Dr. M’s registration to obtain 

controlled substances. 

7Additionally, an investigator for the Board was 

present during the interview the DI had with 

Respondent and his attorney regarding the DEA’s 

investigation in May 2017. Tr. 97. 

8There is no evidence on the record that 

Respondent has a criminal conviction related to 

controlled substances. Accordingly, Factor 3 does 

not weigh for or against a finding that his 

application for registration is in the public interest. 

See, e.g., Dewey C. MacKay, M.D., 75 FR 49,956, 

49,973 (2010). 

9Respondent has demonstrated substantial 

experience as a gastroenterologist since 1988. The 

Agency assumes that Respondent has prescribed 

legally because the Agency has not sustained 

allegations related to Respondent’s dispensing of 

controlled substances. Accordingly, the Agency 

finds that Factor 2 does not weigh against 

Respondent’s application. 

3. Allegation That Respondent 

Prescribed Controlled Substances After 

Agreeing To Cease Medical Practice 

Respondent entered into a Consent 

Order with the New Jersey State Board 

of Medical Examiners (BME). See Stip. 

32; GX 5. The Government alleges that 

Respondent prescribed in violation of 

this Consent Order, illustrating a lack of 

candor. Govt Posthearing, at 34; OSC, at 

4–5. The Agency is not sustaining this 

allegation: the Government has not 

proven that Respondent had reached an 

agreement to cease the practice of 

medicine when he issued the 

prescriptions or that Respondent was 

less than candid with the BME 

regarding the prescriptions. GX 5, at 2; 

see also RD, at 95–96, 99–100. 

4. Allegation That Respondent’s 

Answers to Questions in his 

Application for Registration Displayed a 

Lack of Candor 

The Government alleges that, on his 

application to DEA for a new 

registration, Respondent failed to fully 

explain the circumstances behind his 

voluntary surrender for cause of his 

previous registration, demonstrating an 

alleged lack of candor. OSC, at 4. After 

a review of Respondent’s written 

statements in his application, the 

Agency agrees with the ALJ that the 

information Respondent disclosed was 

truthful. See RD, at 112–114. The lack 

of the omitted information does not 

make his response deceptively 

incomplete, and the Government’s 

allegation thus is not sustained.6

II. Discussion 

‘‘The 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). An application for a 

practitioner’s registration may be denied 

if ‘‘the issuance of such registration . . . 

would be inconsistent with the public 

interest.’’ Id. In making this 

determination, the following factors are 

considered: 

(1) The recommendation of the appropriate 

State licensing board or professional 

disciplinary authority. 

(2) The applicant’s experience in 

dispensing, or conducting research with 

respect to 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 

separately. Robert A. Leslie, M.D., 68 FR 

15,227, 15,230 (2003). Each factor is 

weighed on a case-by-case basis. Morall 

v. Drug Enf’t Admin., 412 F.3d 165, 

173–74 (D.C. Cir. 2005). Any one factor, 

or combination of factors, may be 

decisive. David H. Gillis, M.D., 58 FR 

37,507, 37,508 (1993). 

A. Factor 1 

Respondent entered into a Consent 

Order with the BME. Supra I.A.3; GX 5. 

While this is not a direct 

recommendation for purposes of Factor 

1, it indicates a recommendation by the 

appropriate state entity on many of the 

allegations and evidence at issue here. 

John O. Dimowo, 85 FR 15,800, 15,810 

(2020). It makes clear that the Board 

knew Respondent had called in 

prescriptions for controlled substance 

for himself using Dr. M’s name.7 It is not 

clear, however, what details regarding 

Respondent’s self-prescribing were 

before the Board or the basis for the 

Board’s disciplinary action in the 

Consent Order—although the multi-year 

requirement that Respondent be 

monitored by third parties does not 

indicate substantial trust in Respondent. 

For these reasons, the Consent Order is 

not dispositive of the public interest 

inquiry in this case, and although the 

Agency has considered the Order 

slightly in favor of Respondent, it is also 

minimized by the circumstances 

described above. See John O. Dimowo, 

85 FR at 15,810–11.8

B. Factors 2 and 4 

Evidence is considered under Public 

Interest Factors 2 and 4 when it reflects 

an applicant’s compliance (or noncompliance) with laws related to 

controlled substances and experience 

dispensing them. Established violations 

of the Controlled Substances Act (CSA), 

DEA regulations, or other laws 

regulating controlled substances at the 

state or local level are cognizable when 

considering if a registration is consistent 

with the public interest. Here, 

Respondent violated N.J. Stat. Ann. 

§ 2C:35–10. Supra I.A.1. This violation 

is most appropriately considered under 

Factor 4 and weighs against a finding 

that Respondent’s application for a DEA 

registration is in the public interest, 

because the Government has proven that 

Respondent failed to comply with a 

state law related to controlled 

substances.9

C. Factor 5 

Respondent has admitted to conduct 

that may threaten the public health and 

safety and is properly considered under 

Factor 5. Respondent believed it to be 

illegal to prescribe controlled 

substances to himself, Tr. 355, so 

instead he obtained casual, non-specific 

permission from his partner to prescribe 

himself controlled substances under his 

partner’s registration. He did this with 

the knowledge that he and his partner 

had not established a legitimate doctorpatient relationship under state law. 

Respondent’s conduct clearly 

circumvented the closed regulatory 

system established by the CSA and 

‘‘makes questionable [the Respondent’s] 

commitment to the DEA statutory and 

regulatory requirements designed to 

protect the public from diversion . . . .’’ 

Net Wholesale, 70 FR 24,626, 24,627 

(2005). Respondent’s admitted conduct 

is inconsistent with the public interest 

under Factor Five. 21 U.S.C. 823(f)(5). 

D. Balancing of the Public Interest 

Factors 

Respondent violated a state law 

related to controlled substances and 

committed other conduct that may 

threaten the public health and safety, 

weighing against finding that his 

registration would be in the public 

interest under Factors 4 and 5. The 

other public interest factors are 

inapplicable or do not weigh 

significantly for or against finding that 

Respondent’s registration would be in 

the public interest. Thus, the 

Government established a prima facie 

case that Respondent’s registration 

‘‘would be inconsistent with the public 

interest.’’ 21 U.S.C. 823(f). 

III. Sanction 

Where, as here, the Government has 

established grounds to deny an 


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Federal Register / Vol. 87, No. 113 / Monday, June 13, 2022 / Notices 35797 

10Here, although Respondent’s Continuing 

Medical Education efforts were in excess of what 

New Jersey required, RD, at 38 (citing Tr. 414–15; 

RX 1), Respondent has not sufficiently convinced 

the Agency that he has accepted responsibility and 

can be entrusted with a registration. 

11Respondent is credited for declining to pass 

blame to his former partner, given the animosity 

between the two. 

12Respondent’s actions were not ‘‘negligent,’’ nor 

were they mere ‘‘carelessness’’—they constitute 

criminal misconduct under New Jersey law. 

13Respondent submitted letters and character 

testimony. RX 5–18. The letters are of limited 

weight because the Agency has limited ability to 

assess their actual credibility. See Michael S. 

Moore, M.D., 76 FR 45,867, 45,873 (2011). They also 

do not appear to be written to recommend that 

Respondent be granted a registration and offer little 

value in assessing his suitability to discharge those 

duties. The character testimony is more relevant to 

the former partners’ relationship and is viewed with 

caution given the ALJ’s credibility findings. See RD, 

at 68–70. These references very minimally support 

Respondent’s potential for rehabilitation. 

application for a registration, the burden 

shifts to the respondent to show why he 

can be entrusted with the responsibility 

carried by a registration. Garret Howard 

Smith, M.D., 83 FR 18,882, 18,910 

(2018). When a registrant has committed 

acts inconsistent with the public 

interest, they must both accept 

responsibility and demonstrate they 

have undertaken corrective measures. 

Holiday CVS LLC dba CVS Pharmacy 

Nos 219 and 5195, 77 FR 62,316, 62,339 

(2012) (internal quotations omitted). 

Trust is necessarily a fact-dependent 

determination based on individual 

circumstances; therefore, the Agency 

looks at factors, such as the acceptance 

of responsibility and the credibility of 

that acceptance as it relates to the 

probability of repeat violations or 

behavior and the nature of the 

misconduct that forms the basis for 

sanction, while also considering the 

Agency’s interest in deterring similar 

acts. See, e.g., Robert Wayne Locklear, 

M.D., 86 FR 33,738, 33,746 (2021). 

When a registrant fails to make the 

threshold showing of acceptance of 

responsibility, the Agency need not 

address the registrant’s remedial 

measures.10 Daniel A. Glick, D.D.S., 80 

FR 74,800, 74,810 (2015). 

The Agency adopts the ALJ’s finding, 

that while Respondent testified that 

what he did was inappropriate and that 

he ‘‘wouldn’t do it again,’’ Tr. 458, he 

has not accepted full responsibility for 

his misconduct. RD, at 116. When asked 

about Dr. M’s responsibility, 

Respondent answered, ‘‘I think we were 

both negligent’’ and ‘‘it was carelessness 

on my part to even ask him.’’ Tr. 456, 

459.11 The Respondent’s 

characterizations of his misconduct 

minimized the seriousness of his 

actions. See Jeffrey Stein, M.D., 84 FR 

46,968, 46,972.12

Respondent was not ignorant to his 

misdeeds. He knew self-prescribing 

using his own DEA registration would 

raise suspicion at the pharmacy, Tr. 355, 

so he decided, based on his knowledge 

as a DEA registrant, to self-prescribe 

using Dr. M’s registration, presumably 

to evade detection. Respondent’s actions 

also do not reflect a momentary lapse in 

judgment. He used Dr. M’s registration 

to self-prescribe for over a year and a 

half. See Noah David, P.A., 87 FR 

21,165, 21,174 (2022); see also Garrett 

Howard Smith, M.D., 83 FR 18,882, 

18,910 (2018) (collecting cases) (‘‘The 

egregiousness and extent of the 

misconduct are significant factors in 

determining the appropriate sanction.’’) 

Therefore, as the ALJ stated, 

‘‘Respondent has lost a significant 

amount of trust and has failed to 

overcome that loss and demonstrate to 

the Agency that he can now be 

entrusted to maintain his [registration] 

in a lawful fashion.’’ RD, at 118.13

Furthermore, specific and general 

deterrence weigh in favor of denial of 

Respondent’s application. Daniel A. 

Glick, D.D.S., 80 FR at 74,810. Given the 

egregious nature of Respondent’s 

violations, a sanction less than denial 

would send a message to the current 

and prospective registrant community 

that compliance with core controlledsubstance legal principles is not a 

condition precedent to receiving and 

maintaining a DEA registration. 

As discussed above, to receive a 

registration when grounds for denial 

exist, a respondent must convince the 

Agency that his acceptance of 

responsibility and remorse are 

sufficiently credible to demonstrate that 

the misconduct will not reoccur and 

that he can be entrusted with a 

registration. Having reviewed the record 

in its entirety, the Agency finds that 

Respondent has not met this burden and 

orders the denial of the application for 

the certificate of registration at issue in 

this case, as contained in the Order 

below. 

However, in light of the passage of 

time since the surrender of his previous 

registration, if Respondent can 

demonstrate that he will reliably treat 

his controlled substances registration 

with the respect that such a 

responsibility deserves and requires 

under the law, the Agency is instructing 

the Government to consider such facts 

in assessing any new application. 

Order 

Pursuant to 28 CFR 0.100(b) and the 

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

823(f), I hereby deny DEA registration 

application No. W18122357C submitted 

by Gary Matusow, D.O. This Order is 

effective July 13, 2022. 

Signing Authority 

This document of the Drug 

Enforcement Administration was signed 

on June 6, 2022, by Administrator Anne 

Milgram. That document with the 

original signature and date is 

maintained by DEA. For administrative 

purposes only, and in compliance with 

requirements of the Office of the Federal 

Register, the undersigned DEA Federal 

Register Liaison Officer has been 

authorized to sign and submit the 

document in electronic format for 

publication, as an official document of 

DEA. This administrative process in no 

way alters the legal effect of this 

document upon publication in the 

Federal Register. 

Scott Brinks, 

Federal Register Liaison Officer, Drug 

Enforcement Administration. 

[FR Doc. 2022–12612 Filed 6–10–22; 8:45 am] 

BILLING CODE 4410–09–P 

NUCLEAR REGULATORY 

COMMISSION 

[NRC–2022–0001] 

Sunshine Act Meetings 

TIME AND DATE: Weeks of June 13, 20, 27, 

July 4, 11, 18, 2022. The schedule for 

Commission meetings is subject to 

change on short notice. The NRC 

Commission Meeting Schedule can be 

found on the internet at: https://

www.nrc.gov/public-involve/publicmeetings/schedule.html. 

PLACE: The NRC provides reasonable 

accommodation to individuals with 

disabilities where appropriate. If you 

need a reasonable accommodation to 

participate in these public meetings or 

need this meeting notice or the 

transcript or other information from the 

public meetings in another format (e.g., 

braille, large print), please notify Anne 

Silk, NRC Disability Program Specialist, 

at 301–287–0745, by videophone at 

240–428–3217, or by email at 

Anne.Silk@nrc.gov. Determinations on 

requests for reasonable accommodation 

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