Notice2022-14839
Donald J. Murphy, M.D.; Decision and Order
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 12, 2022
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 87 Issue 132 (Tuesday, July 12, 2022)</title>
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[Federal Register Volume 87, Number 132 (Tuesday, July 12, 2022)]
[Notices]
[Pages 41353-41354]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-14839]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Donald J. Murphy, M.D.; Decision and Order
On April 15, 2022, the Drug Enforcement Administration
(hereinafter, DEA or Government), issued an Order to Show Cause
(hereinafter, OSC) to Donald J. Murphy, M.D. (hereinafter, Registrant).
OSC, at 1 and 3. The OSC proposed the revocation of Registrant's
Certificate of Registration No. AM2605561 at the registered address of
5920 McIntyre St., Golden, Colorado, 80403. Id. at 1. The OSC alleged
that Registrant's registration should be revoked because Registrant is
``without authority to handle controlled substances in the State of
Colorado, the state in which [he is] registered with DEA.'' Id. at 2
(citing 21 U.S.C. 824(a)(3)).
The Agency makes the following findings of fact based on the
uncontroverted evidence submitted by the Government in its Request for
Final Agency Action (RFAA) submitted June 23, 2022.\1\
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\1\ Based on the Declaration from a DEA Diversion Investigator
that the Government submitted with its RFAA, the Agency finds that
the Government's service of the OSC on Registrant was adequate.
RFAA, Exhibit (hereinafter, RFAAX) B, at 1-2. Further, based on the
Government's assertions in its RFAA, the Agency finds that more than
thirty days have passed since Registrant was served with the OSC and
Registrant has neither requested a hearing nor submitted a written
statement or corrective action plan and therefore has waived any
such rights. RFAA, at 1-2; see also 21 CFR 1301.43(d) and 21 U.S.C.
824(c)(2)(C).
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Findings of Fact
On September 23, 2021, the Colorado Medical Board issued an Order
suspending Registrant's license to practice medicine in the State of
Colorado. RFAAX C (Order of Summary Suspension), at 3. According to
Colorado's online records, of which the Agency takes official notice,
Registrant's license is still suspended. \2\ Colorado Professional or
Business License Lookup, <a href="https://apps.colorado.gov/dora/licensing/Lookup/LicenseLookup.aspx">https://apps.colorado.gov/dora/licensing/Lookup/LicenseLookup.aspx</a> (last visited date of signature of this
Order). Accordingly, the Agency finds that Registrant is not currently
licensed to engage in the practice of medicine in Colorado, the state
in which he is registered with the DEA.
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\2\ 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 the Agency's 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#88ecede9a6e9ecece7a6e9fcfce7fae6edf1fbc8ecede9a6fdfbece7e2a6efe7fe"><span class="__cf_email__" data-cfemail="1e7a7b7f307f7a7a71307f6a6a716c707b676d5e7a7b7f306b6d7a717430797168">[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 27,616, 27,617 (1978).
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\3\ 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.
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According to Colorado statute, ``[e]very person who manufactures,
distributes, or dispenses any controlled substance within this state .
. . shall obtain . . . a registration, issued by the respective
licensing board . . . . For purposes of this section and this article [
], `registration' or `registered' means . . . the licensing of
physicians by the Colorado medical board . . . .'' Colo. Rev. Stat.
Sec. 18-18-302(1) (2022). Here, the undisputed evidence in the record
is that Registrant's Colorado medical license was suspended by the
Colorado Medical Board. As such, Registrant is not authorized to
dispense controlled substances in Colorado and thus is not eligible to
maintain a DEA registration. Accordingly, the Agency 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.
AM2605561 issued to Donald J. Murphy, 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 applications of Donald J. Murphy, M.D. to renew or
modify this registration, as well as any other pending application of
Donald J. Murphy, M.D. for additional registration in Colorado. This
Order is effective August 11, 2022.
Signing Authority
This document of the Drug Enforcement Administration was signed on
July 6, 2022, by Administrator Anne Milgram. That document with the
original signature and date is maintained by DEA. For administrative
purposes only, and in compliance with requirements of the Office of the
Federal Register, the undersigned DEA Federal Register Liaison Officer
has been authorized to sign and submit the document in electronic
format for publication, as an official document of DEA. This
administrative process in no way alters the legal effect of this
document upon publication in the Federal Register.
Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2022-14839 Filed 7-11-22; 8:45 am]
BILLING CODE 4410-09-P
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