Notice2021-20246
Humberto A. Florian, M.D.; Decision and Order
Primary source
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Published
September 20, 2021
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 86 Issue 179 (Monday, September 20, 2021)</title>
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[Federal Register Volume 86, Number 179 (Monday, September 20, 2021)]
[Notices]
[Pages 52203-52205]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-20246]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Humberto A. Florian, M.D.; Decision and Order
On March 24, 2021, the Assistant Administrator, Diversion Control
Division, Drug Enforcement Administration (hereinafter, Government),
issued an Order to Show Cause (hereinafter, OSC) to Humberto A.
Florian, M.D. (hereinafter, Registrant) of Anaheim, California. OSC, at
1. The OSC proposed the revocation of Registrant's Certificate of
Registration No. FF0235451. Id. It alleged that Registrant is ``without
authority to handle controlled substances in California, 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 the Medical Board of California,
Department of Consumer Affairs (hereinafter, the Board) issued a
Decision on November 21, 2018, to revoke Registrant's medical license.
Id. at 2. On December 21, 2018, the Board issued an Order denying
Registrant's Petition for Reconsideration of the Decision and
Registrant's medical license was revoked. Id. The California Medical
Board revoked Registrant's medical license following its findings,
inter alia, that Registrant was grossly negligent, committed repeated
negligent acts, failed to maintain accurate and adequate medical
records, and violated the California Medical Practice Act. 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. Id. at 3 (citing 21 U.S.C. 824(c)(2)(C)).
Adequacy of Service
In a Declaration, dated August 11, 2021, a Diversion Investigator
(hereinafter, the DI) assigned to the Riverside District Office, Los
Angeles Field Division, attempted to contact Registrant, including at
his registered address in Anaheim, California, ``to determine if he
would voluntarily surrender his [DEA registration] in light of his lack
of state authority to prescribe controlled substances.'' Request for
Final Agency Action (hereinafter, RFAA), Exhibit (hereinafter, RFAAX) 3
(DI's Declaration), at 1-2. The DI stated that a receptionist at the
registered address said that ``[Registrant] had retired, but [the]
office still forwarded mail to him.'' Id. at 2. Following the issuance
of the OSC, the DI traveled with another DI on April 2, 2021, to ``the
last known residence'' of Registrant to attempt to serve Registrant
with the OSC, but service was unsuccessful as ``no one appeared to be
at the residence at that time.'' Id. On April 12, 2021, the Riverside
District Office, Los Angeles Field Division mailed a copy of the OSC to
Registrant's last know residence via first-class mail and the mailing
was not returned as undeliverable. Id. On May 14, 2021, the Los Angeles
Field Division mailed a copy of the OSC to Registrant's registered
address via first-class mail with return receipt requested, to which
the DEA received ``an unsigned return receipt on May 24, 2021,
indicating that the [OSC] had been delivered.'' Id.; see also RFAAX 3,
Appendix (hereinafter, App.) B. Finally, on May 20, 2021, the DI sent a
copy of the [OSC] to Registrant via his registered email address and
did not receive any error message that indicated that the email was not
delivered. RFAAX 3, at 2.; see also RFAAX 3, App. C (copy of email).
The DI also stated that a review of the email system showed that the
email had been delivered. RFAAX 3, at 2. The DI concluded that, ``[t]o
date, neither [Registrant] nor any attorney representing [Registrant]
has requested a hearing. Neither has [Registrant] nor any attorney for
[Registrant] submitted a written statement.'' Id. at 3.
The Government forwarded its RFAA, along with the evidentiary
record, to this office on August 12, 2021. In its RFAA, the Government
represents that ``[Registrant] has not submitted a timely request for a
hearing in this matter.'' RFAA, at 1. The Government ``seeks to revoke
the [DEA registration] of [Registrant] because he lacks authority to
handle controlled substances in the State of California, the state
where he is registered with DEA.'' Id.
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 before
May 20, 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 and the Government's written representations, I
find that neither Registrant, nor anyone purporting to represent the
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.
FF0235451 at the registered address of 2090 S Euclid St. Ste. 104,
Anaheim, CA 92802. RFAAX 1 (DEA Certificate of Registration). Pursuant
to this registration, Registrant is authorized to dispense controlled
substances in schedules III through V as a practitioner.
[[Page 52204]]
Id. Registrant's registration expires on September 30, 2021. Id.
The Status of Registrant's State License
On June 22, 2018, Administrative Law Judge Abraham M. Levy of the
Office of Administrative Hearings, State of California (hereinafter, CA
ALJ), issued a Proposed Decision (hereinafter, CA ALJ Decision). RFAAX
3, App. A, at 17 and 30. According to the CA ALJ Decision, Registrant
``committed gross negligence and repeated negligent acts, he failed to
maintain adequate and accurate records relating to his treatment of
Patient A, and he, in turn, violated the Medical Practice Act.'' Id. at
18. The CA ALJ Decision summarizes that Registrant ``saw Patient A five
times between March 2014 and July 2014, ordered a chest x-ray and a lab
work-up, and despite abnormal findings on the x-ray indicating further
follow-up was needed, [Registrant] failed to follow up on the x-ray
findings or clinically assess Patient A's lung condition.'' Id. at 17.
According to the CA ALJ Decision summary, ``[o]n August 14, 2014,
Patient A died from respiratory failure and interstitial lung disease
due to Chronic Obstructive Pulmonary Disease (COPD), pulmonary
hypertension, and small cell lung cancer.'' Id. Further, according to
the ALJ Decision, ``[Registrant] failed to present any evidence of
rehabilitation, or evidence showing he is amenable to probation, to
justify placing him on probation.'' Id. at 18. The CA ALJ Decision
concluded that ``public protection requires that [Registrant's] license
be revoked.'' Id.
On July 31, 2018, the Board issued an Order of Non-Adoption of
Proposed Decision, which ordered that the ALJ Decision was not adopted
and that a panel of the Board would decide the case upon the record.
Id. at 16. On November 21, 2018, the Board issued a Decision after Non-
Adoption (hereinafter, Board Decision). Id. at 2 and 15. The Board
Decision incorporated the factual findings of the CA ALJ. Id. at 2-4.
The Board Decision ordered that Registrant's medical license be revoked
effective December 21, 2018. Id. at 15. On December 21, 2018, the Board
issued an Order Denying Petition for Reconsideration that denied the
Petition filed by Registrant for the reconsideration of the Board
Decision. Id. at 1.
According to California's online records, of which I take official
notice, Registrant's license is still revoked.\1\ Medical Board of
California License Verification, <a href="https://www.mbc.ca.gov/License-Verification">https://www.mbc.ca.gov/License-Verification</a> (last visited date of signature of this Order).
California's online records show that Registrant's medical license
remains revoked and that Registrant is not authorized in California to
practice medicine. Id.
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\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 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#244041450a4540404b0a4550504b564a415d57644041450a5157404b4e0a434b52"><span class="__cf_email__" data-cfemail="f7939296d996939398d9968383988599928e84b7939296d9828493989dd9909881">[email protected]</span></a>.
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Accordingly, I find that Registrant is not licensed to engage in
the practice of medicine in California, the state in which Registrant
is registered with the DEA.
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 California statute, ``dispense'' means ``to deliver a
controlled substance to an ultimate user or research subject by or
pursuant to the lawful order of a practitioner, including the
prescribing, furnishing, packaging, labeling, or compounding necessary
to prepare the substance for that delivery.'' Cal. Health & Safety Code
Sec. 11010 (West, current with urgency legislation through Ch. 115 of
2021 Reg. Sess). Further, a ``practitioner'' means a person ``licensed,
registered, or otherwise permitted, to distribute, dispense, conduct
research with respect to, or administer, a controlled substance in the
course of professional practice or research in this state.'' Id. at
Sec. 11026(c). Because Registrant is not currently licensed as a
physician, or otherwise licensed in California, he is not authorized to
dispense controlled substances in California.
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.
FF0235451 issued to Humberto A. Florian, 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 Humberto A. Florian to renew or
modify this registration, as
[[Page 52205]]
well as any other pending application of Humberto A. Florian, for
additional registration in California. This Order is effective October
20, 2021.
Anne Milgram,
Administrator.
[FR Doc. 2021-20246 Filed 9-17-21; 8:45 am]
BILLING CODE 4410-09-P
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</html>Indexed from Federal Register on September 20, 2021.
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