Notice2022-24303
Gerald M. Baltz, N.P.; Decision and Order
Primary source
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Published
November 8, 2022
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 87 Issue 215 (Tuesday, November 8, 2022)</title>
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[Federal Register Volume 87, Number 215 (Tuesday, November 8, 2022)]
[Notices]
[Pages 67499-67500]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-24303]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 22-34]
Gerald M. Baltz, N.P.; Decision and Order
On June 3, 2022, the Drug Enforcement Administration (hereinafter,
DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to
Gerald M. Baltz, N.P. (hereinafter, Respondent). OSC, at 1, 3. The OSC
proposed the revocation of Respondent's Certificate of Registration No.
MB2171128 at the registered address of 8060 Melrose Ave., Ste. 200, Los
Angeles, CA 90046. Id. at 1. The OSC alleged that Respondent's
registration should be revoked because Respondent is ``without
authority to handle controlled substances in the State of California,
the state in which [he is] registered with DEA.'' Id. at 1-2 (citing 21
U.S.C. 824(a)(3)).\1\
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\1\ According to Agency records, Respondent's Certificate of
Registration No. MB2171128 expired on July 31, 2022. The fact that a
registrant allows his registration to expire during the pendency of
an OSC does not impact the Agency's jurisdiction or prerogative
under the Controlled Substances Act (hereinafter, CSA) to adjudicate
the OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 68,474 (2019).
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By letter dated July 11, 2022,\2\ Respondent requested a hearing.
On July 12, 2022, Administrative Law Judge Paul E. Soeffing
(hereinafter, the ALJ) issued an Order for Evidence of Lack of State
Authority and Directing the Government to File Evidence Regarding the
Service of the Order to Show Cause (hereinafter, Briefing Order). On
July 26, 2022, the Government filed its Submission of Evidence and
Motion for Summary Disposition (hereinafter, Motion for Summary
Disposition). On August 10, 2022,\3\ Respondent filed his Opposition to
Government's Motion for Summary Disposition (hereinafter,
Opposition).\4\
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\2\ The record demonstrates that service of the OSC on
Respondent was accomplished on or before June 28, 2022, see
Government Exhibit (hereinafter, GX) E, at 1-2, and the Government
does not contest the timeliness of the request for a hearing.
\3\ The record demonstrates that Respondent's filing was
untimely. See Briefing Order, at 2; 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), at 2 n.2. Nonetheless,
the Agency will fully consider the Respondent's arguments made
therein.
\4\ In his Opposition, Respondent argued that his DEA
registration should not be revoked because he maintains active
nursing licenses in Colorado and because he is still challenging the
underlying action against his California nursing licenses.
Opposition, at 3-6.
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On August 25, 2022, the ALJ granted the Government's Motion for
Summary Disposition and recommended the revocation of Respondent's DEA
registration, finding that because Respondent lacks authority to handle
controlled substances in California, there is no genuine issue of
material fact. Recommended Decision, at 6.\5\
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\5\ By letter dated September 21, 2022, the ALJ certified and
transmitted the record to the Agency for final agency action and
advised that neither party filed exceptions.
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The Agency issues this Decision and Order based on the entire
record before it, 21 CFR 1301.43(e), and makes the following findings
of fact.
Findings of Fact
On November 19, 2021, an Administrative Law Judge from the State of
California, Office of Administrative Hearings, issued a Proposed
Decision revoking Respondent's California nursing licenses. Government
Exhibit (hereinafter, GX) C, at 45. On January 21, 2022, the State of
California, Department of Consumer Affairs, Board of Registered Nursing
(hereinafter, the Board), issued a Decision and Order adopting the
Administrative Law Judge's Proposed Decision, effective February 18,
2022. Id. at 1. On February 24, 2022, the Board issued an Order Denying
Reconsideration in which Respondent's request for reconsideration of
the Proposed Decision was denied and the Board's January 21, 2022
Decision and Order was made effective February 28, 2022. GX B.
According to California's online records, of which the Agency takes
official notice, Respondent's nursing licenses are revoked. \6\
California DCA
[[Page 67500]]
License Search, <a href="https://search.dca.ca.gov">https://search.dca.ca.gov</a> (last visited date of
signature of this Order). Accordingly, the Agency finds that Respondent
is not licensed to engage in the practice of nursing in California, the
state in which he is registered with the DEA. \7\
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\6\ 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 the Agency's 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#523637337c3336363d7c3326263d203c372b21123637337c2721363d387c353d24"><span class="__cf_email__" data-cfemail="630706024d0207070c4d0217170c110d061a10230706024d1610070c094d040c15">[email protected]</span></a>.
\7\ Regarding Respondent's argument that his DEA registration
should not be revoked because he maintains active nursing licenses
in Colorado, Respondent's DEA registration is based on his
California nursing licenses, which have undeniably been revoked.
Omar Garcia, M.D., 87 FR 32,186, 32,187 n.6 (2022).
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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 ``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). \8\
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\8\ 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. 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 at 71,371
(quoting Anne Lazar Thorn, 62 FR 12,847, 12,848 (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 18,273, 18,274 (2007); Wingfield Drugs, 52 FR
27,070, 27,071 (1987). Thus, it is of no consequence that Respondent
is still challenging the underlying action. What is consequential is
the Agency's finding that Respondent is not currently authorized to
dispense controlled substances in California, the state in which he
is registered with the DEA.
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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 2022). 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).
Here, the undisputed evidence in the record is that Respondent
lacks authority to practice nursing in California. As discussed above,
an individual must be a licensed practitioner to dispense a controlled
substance in California. Thus, because Respondent lacks authority to
practice nursing in California and, therefore, is not authorized to
handle controlled substances in California, Respondent is not eligible
to maintain a DEA registration. Accordingly, the Agency 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.
MB2171128 issued to Gerald M. Baltz, N.P. 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 Gerald M. Baltz, N.P., to renew or
modify this registration, as well as any other pending application of
Gerald M. Baltz, N.P., for additional registration in California. This
Order is effective December 8, 2022.
Signing Authority
This document of the Drug Enforcement Administration was signed on
November 1, 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. 2022-24303 Filed 11-7-22; 8:45 am]
BILLING CODE 4410-09-P
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