Notice2022-07726
Adam T. Rodman, P.A.; Decision and Order
Primary source
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Published
April 11, 2022
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 87 Issue 69 (Monday, April 11, 2022)</title>
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[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Notices]
[Pages 21215-21217]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07726]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 22-7]
Adam T. Rodman, P.A.; Decision and Order
On November 8, 2021, a former Acting Assistant Administrator,
Diversion Control Division, Drug Enforcement Administration
(hereinafter, DEA or Government), issued an Order to Show Cause
(hereinafter, OSC) to Adam T. Rodman, P.A. (hereinafter, Respondent) of
Dedham, Massachusetts. OSC, at 1 and 3. The OSC proposed the revocation
of Respondent's Certificate of Registration No. MR0956586. Id. at 1. It
alleged that Respondent ``[does] not have authority to dispense or
prescribe controlled substances in the Commonwealth of Massachusetts,
the state in which [he is] registered with the DEA.'' Id. (citing 21
U.S.C. 824(a)(3)).
Specifically, the OSC alleged that on or about June 30, 2021, the
Massachusetts Drug Control Program accepted Respondent's voluntary
surrender of his state controlled substances registration for schedules
II through V. Id. at 2. According to the OSC, Respondent retained
authority in schedule VI, which does not include federally-scheduled
drugs. Id. (citing Mass. Gen. Laws ch. 94C, Sec. 2).
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 2-3 (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)).
By letter dated December 1, 2021, Respondent timely requested a
hearing.\1\ Request for Hearing, at 1. In his Request for Hearing,
Respondent objected to the revocation of his DEA registration and
stated: ``The basis for my objection is, in part, that my Massachusetts
Controlled Substance Registration has not been suspended, revoked, or
denied, and therefore 21 U.S.C. 824(a)(3) is not applicable.'' Id.
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\1\ The Request for Hearing was filed on December 1, 2021. Order
Directing the Government to File Evidence Regarding Its Lack of
State Authority Allegation and Briefing Schedule dated December 2,
2021, at 1. I find that the Government's service of the OSC was
adequate and that the Request for Hearing was timely filed on
December 1, 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 December 2, 2021, the ALJ issued an Order
Directing the Government to File Evidence Regarding Its Lack of State
Authority Allegation and Briefing Schedule (hereinafter, Briefing
Schedule). On December 15, 2021, the Government timely filed its Notice
of Filing of Evidence and Motion for Summary Disposition (hereinafter,
Government's Motion). Order Granting the Government's Motion for
Summary Disposition, and Recommended Rulings, Findings of Fact,
Conclusions
[[Page 21216]]
of Law, and Decision of the Administrative Law Judge dated January 27,
2022 (hereinafter, Recommended Decision or RD), at 2. In its Motion,
the Government argued that because Respondent lacks authority to handle
controlled substances in Massachusetts, the state in which he is
registered with the DEA, his DEA registration should be revoked.
Government's Motion, at 2-3. On January 18, 2022, Respondent timely \2\
filed his Opposition to Government's Motion for Summary Disposition
(hereinafter, Respondent's Opposition). RD, at 2. In his Opposition,
Respondent argued that the plain language of 21 U.S.C. 824(a)(3) does
not apply to him and that his DEA registration should not be revoked
because his Massachusetts Controlled Substance Registration was not
suspended, revoked, or denied, but instead voluntarily surrendered.
Respondent's Opposition, at 2-4.
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\2\ Respondent was granted an extension of time to file a reply
to the Government's Motion. See Order Amending Briefing Schedule
dated December 23, 2021.
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On January 27, 2022, the ALJ granted the Government's Motion,
finding that ``[t]here is no genuine issue of material fact in this
case.'' RD, at 6. Further, the ALJ found that Respondent's argument
regarding the plain language of 21 U.S.C. 824(a)(3) was ``at odds with
clear Agency precedent on the issue and must therefore fail,'' because
``regardless of how or why [Respondent] lost his authority to handle
controlled substances under state law, he has lost it.'' Id. at 7.
Accordingly, the ALJ recommended that Respondent's DEA registration be
revoked and that any application to renew or modify his registration,
or any applications for any other DEA registrations in Massachusetts,
be denied based on Respondent's lack of state authority to handle
controlled substances. Id. at 8. By letter dated February 22, 2022, the
ALJ certified and transmitted the record to me for final Agency action
and advised that neither party filed exceptions.
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
Respondent is the holder of DEA Certificate of Registration No.
MR0956586 at the registered address of 983 Providence Highway, Dedham,
Massachusetts 02026. Government's Motion, Declaration of [Diversion
Investigator (DI)], at 1. Pursuant to this DEA registration, Respondent
is authorized to dispense controlled substances in schedules II through
V as a mid-level practitioner. Id. Respondent's registration expires on
April 30, 2024. Id.
The Status of Respondent's State License
On June 30, 2021, the Massachusetts Drug Control Program accepted
Respondent's voluntary surrender of his Massachusetts controlled
substances registration for Massachusetts drug schedules II through V
and stated that Respondent was ``no longer authorized to prescribe,
distribute, possess, dispense or administer controlled substances from
schedules II through V in the Commonwealth of Massachusetts.''
Government's Motion, Declaration of DI, Exhibit (hereinafter GX) A. The
Massachusetts Drug Control Program also clarified that Respondent's
Massachusetts controlled substances registration would retain
authorization for schedule VI medications only. Id.
On August 30, 2021, the Massachusetts Board of Registration of
Physician Assistants (hereinafter, the Board) entered into a Consent
Agreement for Probation (hereinafter, Consent Agreement) with
Respondent regarding Respondent's Massachusetts Physician Assistant
license. Respondent's Opposition, Exhibit (hereinafter, RX) A, at 1-2.
By signing the Consent Agreement, Respondent admitted that on various
dates between October 4, 2018, and September 30, 2019, he had diverted
controlled substances. Id. at 2. Specifically, Respondent admitted that
for multiple patients, he had examined them, written them prescriptions
for controlled substances, and asked them to bring him the filled
prescriptions. Id. The Consent Agreement placed Respondent's
Massachusetts Physician Assistant license on probation for two years
subject to various requirements and conditions. Id. at 2-8.
According to online records for Massachusetts, of which I take
official notice, Respondent's Massachusetts controlled substances
registration is current, but authorized only for drug schedule VI.\3\
Massachusetts Health Professions License Verification Site, <a href="https://madph.mylicense.com/verification">https://madph.mylicense.com/verification</a> (last visited date of signature of
this Order). Further, online records for Massachusetts list
Respondent's Massachusetts Physician Assistant license as on probation.
Id.
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\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, 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#0b6f6e6a256a6f6f64256a7f7f6479656e72784b6f6e6a257e786f6461256c647d"><span class="__cf_email__" data-cfemail="1a7e7f7b347b7e7e75347b6e6e7568747f63695a7e7f7b346f697e7570347d756c">[email protected]</span></a>.
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Accordingly, I find that Respondent is not currently licensed to
dispense controlled substances in schedules II through V in
Massachusetts, the state in which he 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,
revoked, or denied by competent State authority and is no longer
authorized by State law to engage in the . . . dispensing of controlled
substances.'' \4\ 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 71371 (2011), pet. for rev. denied, 481 F. App'x 826 (4th
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (1978).
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\4\ Respondent argues that 21 U.S.C. 824(a)(3) only refers to
revocation, suspension, or denial; however, the Agency has
consistently stated that the central issue is whether or not the
registrant is ``currently authorized to handle controlled substances
in the state,'' James Hooper, 76 FR 71371 (2011) (quoting Anne Lazar
Thorn, 62 FR 12847, 12848 (1997)); thus, it is of no consequence
whether the registrant's state license was revoked or suspended, has
expired, or was voluntarily surrendered. See, e.g., Alex E. Torres,
M.D., 87 FR 3352 (2022) (voluntary surrender of medical license);
Tel-Pharmacy, 87 FR 2904 (2022) (state pharmacy license expired);
Humberto A. Florian, M.D., 86 FR 52203 (2021) (state medical license
revoked); Javaid A. Perwaiz, M.D., 86 FR 20732 (2021) (state medical
license expired); Michael Thomas Watkins, M.D., 85 FR 27246 (2020)
(voluntary agreement to cease practicing medicine in Massachusetts).
What is of consequence is the fact that Respondent is no longer
authorized to handle controlled substances in the Commonwealth of
Massachusetts, where he is registered with the DEA. Furthermore, the
letter of acceptance of the consent agreement from the Massachusetts
Drug Control Program implies that Respondent may only re-apply for
such a registration in September 2023. See GX A, at 1.
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This rule derives from the text of two provisions of the CSA.
First, Congress
[[Page 21217]]
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 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 at 27617.
According to the Massachusetts Controlled Substances Act, ``every
person who . . . dispenses . . . any controlled substance within the
commonwealth shall . . . register with the commissioner of public
health, in accordance with his regulations.'' Mass. Gen. Laws ch. 94C,
Sec. 7(a) (Westlaw, current through Chapter 14 of the 2022 2nd Annual
Session). Further, ``[a] prescription for a controlled substance may be
issued only by a practitioner who is (1) authorized to prescribe
controlled substances; and (2) registered pursuant to the provisions of
[the Massachusetts Controlled Substances Act].'' Id. at Sec. 18(a).
Here, the undisputed evidence in the record is that Respondent is
not authorized to dispense controlled substances in schedules II
through V in Massachusetts.\5\ Further, I agree with the ALJ that it is
of no consequence that Respondent's Massachusetts controlled substances
registration for drug schedules II through V was voluntarily
surrendered rather than revoked or suspended. Thus, because Respondent
is not authorized to prescribe controlled substances in schedules II
through V in Massachusetts, Respondent is not eligible to maintain a
DEA registration. Accordingly, I will order that Respondent's DEA
registration be revoked.
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\5\ As previously discussed, Respondent is only authorized to
dispense controlled substances in schedule VI in Massachusetts. See
supra. According to the Massachusetts Controlled Substances Act,
schedules I through V incorporate the five schedules of controlled
substances under the CSA, with schedule VI consisting of ``all
prescription drugs not included in the first five schedules.'' Mass.
Gen. Laws ch. 94C, Sec. 2(a) (Westlaw, current through Chapter 14
of the 2022 2nd Annual Session). As such, Respondent does not have
state authority to dispense CSA controlled substances in
Massachusetts.
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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.
MR0956586 issued to Adam T. Rodman, P.A. 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 Adam T. Rodman, P.A. to renew or modify
this registration, as well as any other pending application of Adam T.
Rodman, P.A. for additional registration in Massachusetts. This Order
is effective May 11, 2022.
Anne Milgram,
Administrator.
[FR Doc. 2022-07726 Filed 4-8-22; 8:45 am]
BILLING CODE 4410-09-P
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