Notice2021-23262
Maura Tuso, D.M.D.' Decision and Order
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Published
October 26, 2021
Issuing agencies
Justice DepartmentDrug Enforcement Administration
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<title>Federal Register, Volume 86 Issue 204 (Tuesday, October 26, 2021)</title>
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[Federal Register Volume 86, Number 204 (Tuesday, October 26, 2021)]
[Notices]
[Pages 59196-59198]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-23262]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Maura Tuso, D.M.D.' Decision and Order
I. Procedural Background
On August 20, 2018, the Assistant Administrator, Diversion Control
Division, Drug Enforcement Administration (hereinafter, DEA or
Government), issued an Order to Show Cause (hereinafter, OSC) to Maura
Tuso, D.M.D. (hereinafter, Applicant) of San Diego, California. OSC, at
1. The OSC proposed the denial of Applicant's application for DEA
Certificate of Registration, Application Control No. W18011889C,
because Applicant has ``been convicted of a felony relating to
controlled substances and because [she has] committed acts which render
[her] registration inconsistent with the public interest.'' Id. (citing
21 U.S.C. 824(a)(2) & (a)(4)).
Specifically, the OSC alleged that on August 25, 2015, Applicant
entered a guilty plea to ``four felony counts related to unlawfully
issuing controlled substance prescriptions in violation of California
Health and Safety Code Section 11153(a), and related counts of
conspiracy, prescription fraud, and insurance fraud. This guilty plea
was accepted in the Superior Court of California, County of San Diego,
as part of the Court's Finding and Order.'' Id. at 2.
The OSC also alleged that, ``[p]ursuant to a July 6, 2016
Stipulated Settlement and Disciplinary Order between [Applicant] and
the Dental Board of California (the ``Board''), which was effective on
September 16, 2016, [Applicant was] ordered to surrender a DEA
Registration which [she] previously held and ordered not to reapply for
a new DEA Registration without approval from the Board.'' Id.
Further, the OSC stated that, ``[o]n April 12, 2018 and April 13,
2018, the [DEA San Diego Field Division (hereinafter, SDFD)] attempted
to provide'' Applicant with a proposed Memorandum of Agreement with
conditions in order to grant her application. Id. During Applicant's
visits to the SDFD, the OSC alleged that she used ``vulgar language and
obscenities in an uncivilized display.'' Id.
The OSC continued to allege that since this encounter, Applicant
has ``engaged in a pattern of sending many dozens of emails to various
DEA personnel, including emails of a harassing nature.'' Id. It alleged
that Applicant's actions constitute ``conduct
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which may threaten the public health and safety within the meaning of
21 U.S.C. 823(f)(5) and [ ] acts that render [her] registration
inconsistent with the public interest within the meaning of 21 U.S.C.
824(a)(4).'' Id.
The OSC notified Applicant 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. at 4 (citing 21
CFR 1301.43). The OSC also notified Applicant of the opportunity to
submit a corrective action plan. OSC, at 4-5 (citing 21 U.S.C.
824(c)(2)(C)).
On October 2, 2018, Applicant, represented by counsel, filed a
timely request for hearing, in which she disputed the allegations.
Request for Final Agency Action (hereinafter, RFAA) Exhibit
(hereinafter, RFAAX) 3. However, on October 25, 2018, Applicant
withdrew her request for hearing. RFAAX 5. The Administrative Law Judge
thereby entered an Order Terminating Proceedings on October 25, 2018.
RFAAX 6.
The Government forwarded its RFAA, along with the evidentiary
record, to this office on April 1, 2020. The Government requests denial
of Applicant's application for a DEA Certificate of Registration,
``because of her previous state felony conviction related to controlled
substances.'' \1\ \2\ Id. at 5.
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\1\ It is noted that the Government no longer requests denial of
Applicant's DEA application based on the allegation in the OSC that
her registration would be inconsistent with the public interest;
therefore, I will not assess the allegations in the OSC related to
the public interest grounds.
\2\ In the RFAA, the Government also argued for revocation based
on a ground that does not appear in the OSC--that the Applicant
currently lacks a dental license in California, the state in which
she is applying for a DEA registration, and that her application is
thus also subject to denial pursuant to 21 U.S.C. 824(a)(3).
Although state authority is a prerequisite to holding (or having) a
DEA registration, see 21 U.S.C. 823, I see no evidence in the record
that Applicant was notified of this additional charge and I am
declining to consider it at this time. See Shelton Barnes, M.D., 85
FR 5983 n.3 (2020).
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I find that Applicant 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).
II. Findings of Fact
A. Applicant's DEA Application
On February 8, 2018, Applicant submitted an application
(Application Control No. W18011889C) for a DEA Certificate of
Registration, at the proposed registered location of 4177 West Point
Loma Blvd., San Diego, CA 92110, for the business activity of
practitioner in drug schedule V. RFAAX 1 (Certification of
Nonregistration), at 1. The application is in ``a new pending status.''
Id.
B. Applicant's Conviction
On August 25, 2015, Applicant \3\ entered a guilty plea to one
felony count related to unlawfully issuing controlled substance
prescriptions in violation of California Health and Safety Code Section
11153(a), and one related count for obtaining a prescription by fraud
under California Health and Safety Code Section 11173(a), and two other
felony counts for conspiracy and insurance fraud related to the
prescriptions. RFAAX 8, at 12-14.
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\3\ There is substantial record evidence to support a finding
that Maura Cathleen O'Neill is the same person as Maura Tuso. The
Government's Certification of Non Registration for Maura Tuso lists
previous registrations ``assigned to Maura Tuso under the name of
Maura C O'Neill DMD.'' RFAAX 1, at 2; see also, RFAAX 7a & b (Dental
Board of California records naming Maura Tuso as an alias for Maura
O'Neill). Therefore, I find that the substantial record evidence
demonstrates that the conviction in RFAAX 8 for Maura O'Neill
applies to Applicant.
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On August 25, 2015, the Superior Court of California, County of San
Diego (the ``state court'') accepted Applicant's guilty plea. Id. at
12-14. In her guilty plea, Applicant admitted that she ``knowingly and
unlawfully obtained prescriptions for controlled substances . . . for
reasons other than a medical purpose.'' Id. at 14.
In its Finding and Order, the state court held, it ``accepts the
defendant's plea and admissions, and the defendant is convicted
thereby.'' Id. On September 23, 2015, the state court ordered Applicant
to receive five years of probation. Id. at 17-19. On October 2, 2017,
the state court reduced the four felony counts to misdemeanors and
ordered summary probation. Id. at 20-21.
III. Discussion
A. Analysis of Applicant's Application for Registration
In this matter, the Government calls for my adjudication of the
application for registration based on the charge that Applicant was
convicted of a felony related to controlled substances, which is a
basis for revocation or suspension under 21 U.S.C. 824(a)(2). OSC, at
1-2. The Government dropped the allegation that Applicant's application
should be denied because her registration would be inconsistent with
the public interest pursuant to section 823 in the OSC and did not
advance any arguments or present any evidence under the public interest
factors in its RFAA. See supra n.1. Accordingly, the remaining
actionable substantive basis for proposing the denial of applicant's
registration application is her felony conviction under 21 U.S.C.
824(a)(2).
Prior Agency decisions have addressed whether it is appropriate to
consider a provision of 21 U.S.C. 824(a) when determining whether or
not to grant a practitioner registration application. For over forty-
five years, Agency decisions have concluded that it is. Robert Wayne
Locklear, M.D., 86 FR 33744-45 (collecting cases). In the recent
decision Robert Wayne Locklear, M.D., the former Acting Administrator
stated his agreement with the results of these past decisions and
reaffirmed that a provision of section 824 may be the basis for the
denial of a practitioner registration application. 86 FR 33745. He also
clarified that allegations related to section 823 remain relevant to
the adjudication of a practitioner registration application when a
provision of section 824 is involved. Id.
Accordingly, when considering an application for a registration, I
will consider any actionable allegations related to the grounds for
denial of an application under 823 and will also consider any
allegations that the applicant meets one of the five grounds for
revocation or suspension of a registration under section 824. Id.; see
also Dinorah Drug Store, Inc., 61 FR 15972, 15973-74 (1996).
1. 21 U.S.C. 823(f): The Five Public Interest Factors
Under Section 304 of the Controlled Substances Act, ``[a]
registration . . . to . . . dispense a controlled substance . . . may
be suspended or revoked by the Attorney General upon a finding that the
registrant . . . has committed such acts as would render his
registration under section 823 of this title inconsistent with the
public interest as determined by such section.'' 21 U.S.C. 824(a)(4).
Because the Government has not alleged that Applicant's registration is
inconsistent with the public interest under section 823, I will not
deny Applicant's application based on section 823, and although I have
considered 823, I will not analyze Applicant's application under the
public interest factors. Therefore, in accordance with prior agency
decisions, I will move to assess whether the Government has proven by
substantial evidence that a ground for revocation exists under 21
U.S.C. 824(a). Supra II.C.
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2. Applicant's Felony Conviction
Pursuant to section 304(a)(2) of the CSA, the Attorney General is
authorized to suspend or revoke a registration ``upon a finding that
the registrant . . . has been convicted of a felony under this
subchapter or subchapter II of this chapter or any other law of the
United States, or of any State, relating to any substance defined in
this subchapter as a controlled substance or a list I chemical.'' 21
U.S.C. 824(a)(2); see also Edward A. Ridgill, M.D., 83 FR 58599, 58600
(2018) (denying application based on conviction under 21 U.S.C. 841 for
unlawful prescribing of controlled substances). Each subsection of
Section 824(a) provides an independent ground to impose a sanction.
Arnold E. Feldman, M.D., 82 FR 39614, 39617 (2017).
Here, there is no dispute in the record that Applicant was
convicted of felony counts related to unlawfully issuing controlled
substance prescriptions in violation of California Health and Safety
Code Section 11153(a), prescription fraud under California Health and
Safety Code Section 11173(a), and related felony counts of conspiracy
and insurance fraud. See RFAAX 8. Two of these state statutes
specifically address controlled substance prescriptions and the
underlying facts of the fraud and conspiracy counts were related to
Applicant's unlawful prescribing and obtaining of controlled
substances. See Cal. Health & Safety Code Sec. 11153(a) (``A
prescription for a controlled substance shall only be issued for a
legitimate medical purpose by an individual practitioner acting in the
usual course of his or her professional practice.''); Cal. Health &
Safety Code Sec. 11173(a) (``No person shall obtain or attempt to
obtain controlled substances, or procure or attempt to procure the
administration of or prescription for controlled substances . . . by
fraud, deceit, misrepresentation, or subterfuge''). Therefore, I find
that these provisions constitute state laws ``relating to'' controlled
substances, as those terms are defined in 21 U.S.C. 824(a)(2). See
Uvienome Linda Sakor, N.P., 86 FR 50173, 50178 (2021).
Although the Government has noted in its RFAA that two years after
Applicant's conviction, the state court reduced the four felony counts
to misdemeanors and ordered summary probation, see RFAAX 8, at 20 and
RFAA, at 6, the Agency established over thirty years ago, and has
recently reiterated, that a deferred adjudication is ``still a
`conviction' within the meaning of the . . . [CSA] even if the
proceedings are later dismissed.'' Kimberly Maloney, N.P., 76 FR 60922,
60922 (2011). In reaching this conclusion, the Agency explained that,
``[a]ny other interpretation would mean that the conviction could only
be considered between its date and the date of its subsequent
dismissal.'' Id. (citing Edson W. Redard, M.D., 65 FR 30616, 30618
(2000)); see also Erica N. Grant, M.D., 40,641, 40,650 (2021). Thus, in
accordance with prior agency decisions, I find that the subsequent
reduction of Applicant's charges, much like a subsequent deferral or
dismissal, does not affect my finding that she was convicted of a
felony related to controlled substances for purposes of 21 U.S.C.
824(a)(2).
Although the language of 21 U.S.C. 824(a)(2) discusses suspension
and revocation of a registration, for the reasons discussed above in
supra III.A, it may also serve as the basis for the denial of a DEA
registration application. Applicant's felony conviction, therefore,
serves as an independent basis for denying her application for a DEA
registration. 21 U.S.C. 824(a)(2).
IV. Sanction
Where, as here, the Government has met its prima facie burden of
showing that a ground for revocation exists, the burden shifts to the
Applicant to show why she can be entrusted with a registration. See
Jeffrey Stein, M.D., 84 FR 46968, 46972 (2019). Applicant, as already
discussed, waived her right to a hearing and failed to submit a written
statement. See RFAA, at 6. Therefore, among other things, Applicant has
not accepted responsibility for her criminality, shown any remorse for
it, or provided any assurance that she would not repeat it. See Jeffrey
Stein, M.D., 84 FR 46972-74. Such silence weighs against granting the
Applicant's registration. Zvi H. Perper, M.D., 77 FR 64131, 64142
(2012) (citing Medicine Shoppe-Jonesborough, 73 FR 264, 387 (2008);
Samuel S. Jackson, 72 FR 23848, 23853 (2007)); see also Jones Total
Health Care Pharmacy, LLC v. Drug Enf't Admin., 881 F3d. 823, 831 (11th
Cir. 2018) (```An agency rationally may conclude that past performance
is the best predictor of future performance.''' (quoting Alra
Laboratories, Inc. v. Drug Enf't Admin., 54 F.3d 450, 452 (7th Cir.
1995))).
Further, the CSA authorizes the Attorney General to ``promulgate
and enforce any rules, regulations, and procedures which he may deem
necessary and appropriate for the efficient execution of his functions
under this subchapter.'' 21 U.S.C. 871(b). This authority specifically
relates ``to `registration' and `control,' and `for the efficient
execution of his functions' under the statute.'' Gonzales v. Oregon,
546 U.S. 243, 259 (2006). A clear purpose of this authority is to
``bar[] doctors from using their prescription-writing powers as a means
to engage in illicit drug dealing and trafficking . . . .'' Id. at 270.
In this case, Applicant pled guilty to counts directly related to
issuing controlled substance prescriptions without a legitimate medical
purpose. Applicant's unlawful activity is exactly the type of activity
that the CSA was intended to prevent and she has given me no indication
that she will not repeat her illicit behavior.
Based on the record before me, I conclude that Applicant's founded
criminality makes her ineligible for a DEA registration. Accordingly, I
shall order the sanction the Government requested, as contained in the
Order below.
Order
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21
U.S.C. 823, I hereby order that the pending application for a
Certificate of Registration, Control Number W18011889C, submitted by
Maura Tuso, D.M.D., is denied. This Order is effective November 26,
2021.
Anne Milgram,
Administrator.
[FR Doc. 2021-23262 Filed 10-25-21; 8:45 am]
BILLING CODE 4410-09-P
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</html>Indexed from Federal Register on October 26, 2021.
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