Notice2022-01834
Austin J. Kosier, M.D.; Decision and Order
Primary source
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Published
January 31, 2022
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 87 Issue 20 (Monday, January 31, 2022)</title>
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[Federal Register Volume 87, Number 20 (Monday, January 31, 2022)]
[Notices]
[Pages 4941-4943]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-01834]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 22-4]
Austin J. Kosier, M.D.; Decision and Order
On September 30, 2021, the Acting Assistant Administrator,
Diversion Control Division, Drug Enforcement Administration
(hereinafter, DEA or Government), issued an Order to Show Cause
(hereinafter, OSC) to Austin J. Kosier, M.D. (hereinafter, Respondent)
of Zanesville, Ohio. OSC, at 1 and 3. The OSC proposed the revocation
of Respondent's Certificate of Registration No. FK6714504. It alleged
that Respondent ``[does] not have authority to dispense or prescribe
controlled substances in the [s]tate of Ohio, the state in which
[Respondent is] registered with DEA.'' Id. at 1 (citing 21 U.S.C.
824(a)(3)).
Specifically, the OSC alleged that on or about May 12, 2021, the
State Medical Board of Ohio issued an Order suspending Respondent's
state license to practice medicine and surgery. Id. at 2. The Order was
effective immediately and ordered that Respondent ``immediately cease
the practice of medicine and surgery in Ohio.'' Id.
The OSC notified Respondent 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 2 (citing 21
CFR 1301.43). The OSC also notified Respondent of the opportunity to
submit a corrective action plan. Id. at 3 (citing 21 U.S.C.
824(c)(2)(C)).
[[Page 4942]]
On October 25, 2021, Respondent timely requested a hearing by
email.\1\ Administrative Law Judge Exhibit (hereinafter, ALJX) 4
(Request for Hearing). Respondent's Request for Hearing also indicated
that Respondent was ``considering the submission of a corrective action
plan.'' Id.
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\1\ Though the Request for Hearing itself is undated, the record
indicates that the Request for Hearing was filed on October 25,
2021. See Order Directing the Government to File Evidence Regarding
its Lack of State Authority Allegation and Briefing Schedule
(hereinafter, Briefing Schedule), at 1. I find that the Government's
service of the OSC was adequate and that the Request for Hearing was
timely filed on October 25, 2021.
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The Office of Administrative Law Judges put the matter on the
docket and assigned it to Administrative Law Judge Teresa A. Wallbaum
(hereinafter, the ALJ). On October 25, 2021, the ALJ issued a Briefing
Schedule. See ALJX 5. The Government timely complied with the Briefing
Schedule by filing a Notice of Filing of Evidence and Motion for
Summary Disposition (hereinafter, Motion for Summary Disposition) on
November 10, 2021. Order Granting the Government's Motion for Summary
Disposition, and Recommended Rulings, Findings of Fact, Conclusions of
Law, and Decision of the Administrative Law Judge (hereinafter,
Recommended Decision or RD), at 2; see also ALJX 6. In its Motion for
Summary Disposition, the Government requested summary disposition and
recommended that Respondent's DEA registration be revoked based on
Respondent's lack of authority to handle controlled substances in Ohio,
the state in which he is registered with the DEA. Motion for Summary
Disposition, at 5. On November 30, 2021, Respondent untimely filed a
Memorandum in Opposition of Respondent [sic] to Government's Motion for
Summary Disposition (hereinafter, Respondent's Opposition). RD, at 2;
see also ALJX 7.\2\ Respondent's Opposition argued that there ``does
not exist and [sic] mandate under the [Controlled Substances Act]
whereas [the] tribunal shall or must revoke or suspend the [DEA
registration] of a physician under a state summary suspension.''
Respondent's Opposition, at 1. Respondent's Opposition also noted that
Respondent's state medical license, though suspended, was still intact;
\3\ that ``[t]he issue that led to his current case [was] unrelated to
the practice of medicine and was in no way arose [sic] in the course
and scope of practice''; \4\ and that ``[Respondent] has had no
previous issues in any way with his medical license in the past.'' Id.
Moreover, Respondent's Opposition highlighted ``the unbelievable work
[Respondent] has done and is continuing to do within the medical
community and specifically an online training and tutorial platform for
health care practitioners and medical students around the world.'' Id.
at 2-3. Finally, Respondent's Opposition highlighted that Respondent
``has also taken [the] opportunity to maintain and enhance his own
medical education'' with CME courses. Id. at 3. Respondent's Opposition
sought the denial of the Government's Motion for Summary Disposition
and for the Tribunal to either grant Respondent's request for a hearing
or to stay the matter pending the outcome of the Ohio Medical Board
hearing. Id.
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\2\ As a result of Respondent's untimely filing, on November 30,
2021, the ALJ issued an Order to Show Good Cause Regarding
Respondent's Late Filing (hereinafter, Order to Show Good Cause).
See ALJX 8. On November 30, 2021, Respondent timely filed a Response
to Order to Show Good Cause stating that the untimely filing was due
to a death in Respondent's counsel's family. RD, at 2; see also ALJX
9. The ALJ found that ``the delay was minimal and caused no
prejudice to the Government'' and thus accepted Respondent's
Opposition. RD, at 2.
\3\ According to Respondent's Opposition, the Ohio Medical Board
``issued a summary suspension pending the outcome of a Medical Board
Hearing in January of 2022.'' Id. at 2. Further, according to
Respondent's Opposition, the suspension ``was based on a provision
in the Ohio Administrative Code that allows the Ohio Medical Board
to summarily suspend a license of a physician based on [the]
physician's entry into an intervention program to address a mental
health matter'' and ``[t]he matter at hand with [Respondent] is his
ongoing struggle with his homosexuality.'' Id.
\4\ See supra n.3.
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On December 2, 2021, the ALJ granted the Government's Motion for
Summary Disposition, finding that ``[t]here is no genuine issue of
material fact in this case'' because ``[t]he Government has established
that Respondent currently lacks a medical license.'' RD, at 7-8. The
ALJ recommended that Respondent's DEA registration be revoked and that
any application to renew or modify his DEA registration be denied
``because Respondent lacks state authority to handle controlled
substances in Ohio.'' Id. at 8. By letter dated December 27, 2021, the
ALJ certified and transmitted the record to me for final Agency action.
Transmittal Letter, at 1. The ALJ also advised that neither party filed
exceptions. Id.
I issue this Decision and Order based on the entire record before
me. 21 CFR 1301.43(e). I make the following findings of fact.
Findings of Fact
Respondent's DEA Registration
According to Agency records, Respondent is the holder of DEA
Certificate of Registration No. FK6714504 at the registered address of
2916 Vangader Dr., Zanesville, OH 43701. Pursuant to this registration,
Respondent is authorized to dispense controlled substances in Schedules
II through V as a practitioner. Respondent's registration expires on
December 31, 2022.
The Status of Respondent's State License
On May 12, 2021, the State Medical Board of Ohio (hereinafter, the
Board) issued a Notice of Summary Suspension and Opportunity for
Hearing (hereinafter, Summary Suspension) and an Entry of Order.
Government Exhibit (hereinafter, GX) A, at 3 and 5. According to the
Summary Suspension, on or about December 16, 2019, ``the Franklin
County Court of Common Pleas filed an indictment alleging [Respondent]
had committed attempted unlawful sexual contact with a minor'' on or
about September 10, 2019. Id. Further, according to the Summary
Suspension, ``[o]n or about November 13, 2020, [Respondent] appeared
before the Court for a hearing on [his] application for intervention in
lieu of conviction for these offenses'' and ``[t]he Court granted
[Respondent's] application.'' Id. The Summary Suspension states that
``[Respondent] pleaded guilty to [the] felony offenses at a subsequent
hearing held on or about December 9, 2020'' and ``[t]he Court ordered
further proceedings be stayed while [Respondent was] under community
control.'' Id. In its Entry of Order on May 12, 2021, the Board found
that ``[Respondent's] continued practice presents a danger of immediate
and serious harm to the public'' and ordered, effective immediately,
that Respondent's license to practice medicine and surgery in the state
of Ohio be summarily suspended, that Respondent ``immediately cease the
practice of medicine and surgery in Ohio,'' and that Respondent
``immediately refer all active patients to other appropriate
physicians.'' Id. at 3.
According to Ohio's online records, of which I take official
notice, Respondent's medical license is still suspended and
inactive.\5\ Ohio License
[[Page 4943]]
Look Up, <a href="https://elicense.ohio.gov/oh_verifylicense">https://elicense.ohio.gov/oh_verifylicense</a> (last visited date
of signature of this Order). Accordingly, I find that Respondent is not
currently licensed to practice medicine in Ohio, the state in which he
is registered with the DEA.
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\5\ 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, Respondent may dispute my finding by filing
a properly supported motion for reconsideration of findings 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#593d3c3877383d3d3677382d2d362b373c202a193d3c38772c2a3d3633773e362f"><span class="__cf_email__" data-cfemail="e3878682cd8287878ccd8297978c918d869a90a3878682cd9690878c89cd848c95">[email protected]</span></a>.
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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 27616, 27617 (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 71371-72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006);
Dominick A. Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby Watts, M.D.,
53 FR 11919, 11920 (1988); Frederick Marsh Blanton, 43 FR 27617.
Moreover, because ``the controlling question'' in a proceeding
brought under 21 U.S.C. 824(a)(3) is whether the holder of a
practitioner's registration ``is currently authorized to handle
controlled substances in the [S]tate,'' Hooper, 76 FR 71371 (quoting
Anne Lazar Thorn, 62 FR 12847, 12848 (1997)), the Agency has also long
held that revocation is warranted even where a practitioner is still
challenging the underlying action. Bourne Pharmacy, 72 FR 18273, 18274
(2007); Wingfield Drugs, 52 FR 27070, 27071 (1987). Thus, it is of no
consequence that the final outcome of the underlying action may still
be pending. What is consequential is my finding that Respondent is not
currently authorized to dispense controlled substances in Ohio, the
state in which he is registered with the DEA.
Under Ohio law, ``[n]o person shall knowingly obtain, possess, or
use a controlled substance or a controlled substance analog,'' except
\6\ pursuant to a ``prescription issued by a licensed health
professional authorized to prescribe drugs if the prescription was
issued for a legitimate medical purpose.'' Ohio Rev. Code Ann. Sec.
2925.11(A), (B)(1)(d) (West 2021). Ohio law further states that a
```[l]icensed health professional authorized to prescribe drugs' or
`prescriber' means an individual who is authorized by law to prescribe
drugs or dangerous drugs . . . in the course of the individual's
professional practice.'' Id. at Sec. 4729.01(I). The definition
further provides a limited list of authorized prescribers, the relevant
provision of which is ``[a] physician authorized under Chapter 4731 of
the Revised Code to practice medicine and surgery, osteopathic medicine
and surgery, or podiatric medicine and surgery.'' Id. at Sec.
4729.01(I)(5). In addition, the Ohio Uniform Controlled Substances Act
permits ``[a] licensed health professional authorized to prescribe
drugs, if acting in the course of professional practice, in accordance
with the laws regulating the professional's practice'' to prescribe or
administer schedule II, III, IV, and V controlled substances to
patients. Id. at Sec. 3719.06(A)(1)(a)-(b).
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\6\ Other irrelevant exceptions omitted.
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Here, the undisputed evidence in the record is that Respondent
currently lacks authority to practice medicine in Ohio. As already
discussed, a physician is authorized by law to prescribe or administer
drugs in Ohio only when authorized to practice medicine and surgery
under Ohio law. Thus, because Respondent lacks authority to practice
medicine in Ohio and, therefore, is not authorized to handle controlled
substances in Ohio, Respondent is not eligible to maintain a DEA
registration. Accordingly, I will order that Respondent'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.
FK6714504 issued to Austin J. Kosier, 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 Austin J. Kosier, M.D. to renew or
modify this registration, as well as any other pending application of
Austin J. Kosier, M.D., for additional registration in Ohio. This Order
is effective March 2, 2022.
Anne Milgram,
Administrator.
[FR Doc. 2022-01834 Filed 1-28-22; 8:45 am]
BILLING CODE 4410-09-P
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