2020-28677. Brian M. Manjarres, M.D.; Decision and Order

On September 28, 2020, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, Government), issued an Order to Show Cause (hereinafter, OSC) to Brian M. Manjarres, M.D. (hereinafter, Registrant). OSC, at 1. The OSC proposed the revocation of Registrant's Certificate of Registration No. FM0288363. Id. It alleged that Registrant is without “authority to handle controlled substances in the State of California, the state in which [Registrant is] registered with the DEA.” Id. at 2 (citing 21 U.S.C. 824(a)(3)).

Specifically, the OSC alleged that on January 1, 2020, Registrant surrendered his medical license “after the Medical Board of California filed an Accusation against [him] alleging gross negligence, repeated negligent acts, incompetence, and failure to maintain adequate and accurate records in [his] care and treatment of numerous patients, and additionally alleging that [he] self-prescribed controlled substances and engaged in general unprofessional conduct.” Id. at 1-2. The OSC further alleged that because Registrant surrendered his medical license, Registrant lacks the authority to handle controlled substances in the State of California. Id. at 2.

The OSC notified Registrant of the right to either request a hearing on the allegations or submit a written statement in lieu of exercising 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 2-3 (citing 21 U.S.C. 824(c)(2)(C)).

A DEA Diversion Investigator personally served Registrant with the OSC on October 21, 2020, and Registrant signed a DEA Form 12, Receipt for Cash or Other Items, to acknowledge his receipt of the OSC. Request for Final Agency Action (hereinafter, RFAA) Exhibit (hereinafter, RFAAX) 4, at 1-2 (Declaration of Diversion Investigator), 8 (DEA Form 12 signed by Registrant). I find that more than thirty days have now passed since the Government accomplished service of the OSC. Further, based on the Government's written representations, 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 otherwise corresponded or communicated with DEA regarding the Order served on him.” RFAA, at 1. 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 1301.46.

I. Findings of Fact

a. Registrant's DEA Registration

Registrant is the holder of DEA Certificate of Registration No. FM0288363 at the registered address of Namaste Medical Group Inc., 1357 7th Avenue, Suite A, San Diego, California, 92101-4381. RFAAX 1 (Certification of Registration Status). Pursuant to this registration, Registrant is authorized to dispense controlled substances in schedules II through V as a practitioner-DW/30. Id. Registrant's registration expires on January 31, 2022, and “is in an active pending status until the resolution of administrative proceedings.” Id.

b. The Status of Registrant's State License

Registrant and the Medical Board of California entered into a Stipulated Surrender of License and Order, whereby Registrant surrendered his California medical license. RFAAX 3. The accusations surrounding the surrender included gross negligence involving the prescribing of controlled substances and self-prescribing controlled substances. Id. at 14-60. On December 12, 2019, the Medical Board of California entered an Order adopting the Stipulated Surrender with an effective date of January 1, 2020. Id. at 1. The Medical Board of California's online records, of which I take official notice, document that Registrant's license is still surrendered.^[1] Medical Board of California License Verification, https://www.mbc.ca.gov/​Breeze/​License_​Verification.aspx (last visited date of signature of this Order).

Accordingly, I find that Registrant currently is not licensed to engage in the practice of medicine in California, the state in which Registrant is registered with the DEA.

II. 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 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 Fed. Appx. 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 California statute, “[n]o person other than a physician . . . shall write or issue a prescription.” Cal. Health & Safety Code § 11150 (West 2020). Further, “physician,” as defined by California statute, is a person who is “licensed to practice” in California. Id. at § 11024.

Here, the undisputed evidence in the record is that Registrant currently lacks authority to practice medicine in California. As already discussed, a physician must be a licensed practitioner to dispense a controlled substance in California. Thus, because Registrant lacks authority to practice medicine in California and, therefore, is not authorized to handle controlled substances in California, 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. FM0288363 issued to Brian M. Manjarres, 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 Brian M. Manjarres, M.D. to renew or modify this registration or for any other registrations in the State of California. This Order is effective January 28, 2021.

Timothy J. Shea,

Acting Administrator.

Footnotes

1.  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 within fifteen calendar days of the date of this Order. Any such motion shall be filed with the Office of the Administrator and a copy shall be served on the Government. In the event Registrant files a motion, the Government shall have fifteen calendar days to file a response. Any such motion and response may be filed and served by email ([e-mail]).