2020-17448. Mark D. Beale, M.D.; Decision and Order

On May 14, 2019, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to Mark D. Beale, M.D. (hereinafter, Registrant) of Las Cruces, New Mexico. OSC, at 1. The OSC proposed the revocation of Registrant's Certificate of Registration No. FB0178194. Id. It alleged that Registrant has “no state authority to handle controlled substances.” Id. (citing 21 U.S.C. 824(a)(3)).

Specifically, the OSC alleged that, “[o]n April 17, 2019, the New Mexico Medical Board (hereinafter, NMMB) summarily suspended . . . [Registrant's] medical license.” OSC, at 2. The OSC concluded that “DEA must revoke . . . [Registrant's] registration based on . . . [his] lack of authority to handle controlled substances in the State of New Mexico.” Id.

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. (citing 21 CFR 1301.43). The OSC also notified Registrant of the opportunity to submit a corrective action plan. OSC, at 3 (citing 21 U.S.C. 824(c)(2)(C)).

Adequacy of Service

In a sworn Declaration dated January 17, 2020, a DEA Diversion Investigator assigned to the El Paso Division (hereinafter, EPDI) stated that she attempted personal service of the OSC on Registrant at his medical practice and at his residence on multiple occasions. Request for Final Agency Action, dated January 17, 2020 (hereinafter, RFAA), Exhibit (hereinafter, EX) 5 (Declaration of Attempted Service of Order to Show Cause, dated January 17, 2020), at 1-3. For the last attempt, EPDI was accompanied by two DEA Special Agents. Id. at 3. None of the attempts was successful. Id.

EPDI's Declaration also describes her attempts to reach Registrant by telephone. Id. at 2. Due to these attempts, EPDI succeeded in speaking with Registrant's wife. Id. Registrant's wife told EPDI that their attorney was handling the matter. Id. EPDI contacted the attorney whose name Registrant's wife gave her. Id. This attorney, however, stated that “he is only handling Registrant's criminal matter.” Id.

EPDI's Declaration details multiple instances of her transmitting the OSC to Registrant by mail. Id. at 2-3. Two of the mailings, one to Registrant's registered address and one to his residential address, were transmitted through the United States Postal Service (hereinafter, USPS) by prepaid postage and return receipt requested. Id. at 2. The mailing to Registrant's registered address was returned “with a label stating `RETURN TO SENDER UNCLAIMED UNABLE TO FORWARD.' ” Id. Neither the mailing to Registrant's residence, nor the return receipt request attached to it, was returned. Id.

EPDI's Declaration states that she attempted to serve the OSC on Registrant by Federal Express mail delivery directed to his registered address. Id. at 3. The “stickers on the returned package,” according to EPDI's Declaration, “indicate that FedEx unsuccessfully attempted delivery of the package” on four dates. Id.

According to EPDI's Declaration, she mailed the OSC to Registrant at his residence by USPS first-class mail, postage prepaid. Id. EPDI stated that this letter was not returned. Id.

Finally, EPDI stated that she emailed the OSC to Registrant at the email address Registrant provided for his registration. Id. The email “did not bounce back as `undeliverable' and no response was received,” EPDI stated. Id.

Based on EPDI's Declaration, the Government's written representations, and my review of the record, I find that the Government's service of the OSC on Registrant was legally sufficient.^[1] According to the Supreme Court, “due process does not require actual notice.” ^[2] Jones v. Flowers, 547 U.S. 220, 225 (2006) (citing Dusenbery v. United States, 534 U.S. 161, 170 (2002)). Instead, the Court has repeatedly stated that, “due process requires the government to provide `notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' ” Jones v. Flowers, 547 U.S. at 226 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Moreover, “the Due Process Clause does not require . . . heroic efforts by the Government” to find Registrant. Dusenbery, 534 U.S. at 170.

Here, the Government made three attempts to accomplish personal service of the OSC on Registrant. RFAA, EX 5, at 1-3. In addition, the Government mailed the OSC to Registrant numerous times utilizing USPS and Federal Express, and directed to his registered address, his “mail to” address, and his residence. RFAA, EX 5, at 2-3; RFAA, EX 6, at 1. The Government also emailed the OSC to the email address Registrant had provided DEA. RFAA, EX 5, at 3. I find, therefore, that the Government's service efforts were reasonably calculated under all of the circumstances to apprise Registrant of the OSC and to afford him an opportunity to present his objections.

I also find that more than thirty days have now passed since the Government's legally sufficient service of the OSC. Further, based on 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. RFAA, at 2. Accordingly, I find that Registrant has waived his right to a hearing, to submit a written statement, and to submit a corrective action plan. 21 CFR 1301.43; 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). I make the following findings.

Findings of Fact

Registrant's DEA Registration

Registrant is the holder of DEA Certificate of Registration No. FB0178194 at the registered address of 133 Wyatt Street, Suite 9, Las Cruces, New Mexico 88005 and the mail-to address of P.O. Box 13462, Las Cruces, New Mexico 88013. RFAA, EX 1 (Certification of Registration History for DEA No. FB0178194, dated May 16, 2019), at 1. Pursuant to this registration, Registrant is authorized to dispense controlled substances in schedules II through V as a practitioner. Id. Registrant's registration expires on July 31, 2021. Id.

The Status of Registrant's State License and Registration

The RFAA includes evidence in the form of a NMMB document concerning Registrant and his Medical License No. 93-208, entitled “Decision and Order Revoking Respondent's License.” RFAA, EX 4 (NMMB Certified Decision and Order Revoking Respondent's License, dated July 2, 2019 (hereinafter, Revocation Order)), at 1. According to the Revocation Order, Registrant “failed to request a hearing on the Notice of Contemplated Action [NCA] . . . issued by the . . . [NMMB] on April 28, 2019, within the twenty days allowed by Section 61-1-4(D)(3) of the Uniform Licensing Act.” Id. It explained that the failure to request a hearing allows the NMMB “to revoke . . . [Registrant's] license based on the unrebutted and unexplained allegations contained in the NCA.” Id. Accordingly, the Revocation Order revoked Registrant's New Mexico medical license, adding that “this Order is not subject to judicial review.” Id.

According to New Mexico's online records, of which I take official notice, Registrant's Medical License No. 93-208 is revoked.^[3] New Mexico Medical Board Physician Profile, docfinder.docboard.org/nm/ (last visited July 21, 2020). As such, I find that Registrant's New Mexico medical license remains revoked.

Further, according to other online records of New Mexico, of which I take official notice, Registrant's Controlled Substance License No. CS00016359 is expired.^[4] New Mexico Regulation and Licensing Web Lookup/Verification, http://verification.rld.state.nm.us (last visited July 21, 2020). Accordingly, I find that Registrant currently has neither an active medical license nor an active controlled substance license in New Mexico.

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, 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, 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, M.D., 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, M.D., 43 FR at 27,617.

According to New Mexico statute, “A person who . . . dispenses a controlled substance or who proposes to engage in the . . . dispensing of a controlled substance shall obtain a registration issued by the board in accordance with its regulations.” N.M. Stat. Ann. § 30-31-12(A) (West, current with 2020 Regular Session laws in effect through May 20, 2020). In turn, “dispense” means “to deliver a controlled substance to an ultimate user . . . pursuant to the lawful order of a practitioner.” N.M. Stat. Ann. § 30-31-2(H) (West, current with 2020 Regular Session laws in effect through May 20, 2020). Further, “practitioner” means a “physician . . . licensed or certified to prescribe and administer drugs that are subject to the Controlled Substances Act.” N.M. Stat. Ann. § 30-31-2(S) (West, current with 2020 Regular Session laws in effect through May 20, 2020).

Here, the undisputed evidence in the record is that Registrant's license to practice medicine is revoked. As such, he is not a “practitioner,” a physician licensed or certified to prescribe a controlled substance according to New Mexico law. Further, under New Mexico law, a person who dispenses a controlled substance in New Mexico must be registered. The undisputed record evidence is that Registrant's New Mexico controlled substance license is expired.

For all of these reasons, Registrant lacks authority to practice medicine and prescribe controlled substances in New Mexico. 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. FB0178194 issued to Mark D. Beale, M.D. This Order is effective September 10, 2020.

Timothy J. Shea,

Acting Administrator.

Footnotes

1.  The RFAA also includes evidence that personnel working at the DEA Office of Chief Counsel mailed a copy of the OSC by first-class USPS mail to Registrant at his registered address and his mail-to address. RFAA, at 2; RFAA, EX 6 (Declaration of Service of Order to Show Cause, dated December 10, 2019), at 1.

2.  Nevertheless, I note that only three of the Government's multiple attempts to provide notice by mail were clearly ineffective; the others may very well have been effective.

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, Applicant 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 shall be filed with the Office of the Administrator and a copy shall be served on the Government. In the event Applicant files a motion, the Government shall have fifteen calendar days to file a response. Any such motion and response shall be filed and served by email on the other party at the email address the party submitted for receipt of communications related to this administrative proceeding, and on the Office of the Administrator, Drug Enforcement Administration at [e-mail].

4.  See footnote 3. If Registrant disputes this finding, he may do so according to the terms stated in footnote 3.