Notice2023-02120
Dylan E. O'Connor, M.D.; Decision and Order
Primary source
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Published
February 2, 2023
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 88 Issue 22 (Thursday, February 2, 2023)</title>
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[Federal Register Volume 88, Number 22 (Thursday, February 2, 2023)]
[Notices]
[Pages 7104-7105]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-02120]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Dylan E. O'Connor, M.D.; Decision and Order
On September 15, 2022, the Drug Enforcement Administration
(hereinafter, DEA or Government) issued an Order to Show Cause
(hereinafter, OSC) to Dylan E. O'Connor, M.D. (hereinafter,
Registrant). Request for Final Agency Action (hereinafter, RFAA),
Exhibit (hereinafter, RFAAX) 1
[[Page 7105]]
(OSC), at 1, 3. The OSC proposed the revocation of Registrant's
Certificate of Registration No. FO7776644 at the registered address of
300 Pasteur Dr., Stanford, CA 94305-2295. 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
California, 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 RFAA,\1\
which was received on January 5, 2023.\2\
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\1\ The Government's RFAA is dated November 29, 2022. RFAA, at
5.
\2\ Based on a Declaration from a DEA Diversion Investigator,
the Agency finds that the Government's service of the OSC on
Registrant was adequate. RFAAX 2, at 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 and 21 U.S.C.
824(c)(2).
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Findings of Fact
On May 26, 2022, the Medical Board of California issued a Notice of
Automatic Revocation of License that revoked Registrant's California
medical license. RFAAX 2, Attachment C, at 1-3. According to
California's online records, of which the Agency takes official notice,
Registrant's California medical license is revoked.\3\ Medical Board of
California License Verification, <a href="https://www.mbc.ca.gov/License-Verification">https://www.mbc.ca.gov/License-Verification</a> (last visited date of signature of this Order).
Accordingly, the Agency finds that Registrant is not licensed to engage
in the practice of medicine in California, the state in which he is
registered with the DEA.
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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, 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#385c5d5916595c5c5716594c4c574a565d414b785c5d59165f574e"><span class="__cf_email__" data-cfemail="056160642b6461616a2b6471716a776b607c76456160642b626a73">[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 71371 (2011), pet. for rev. denied, 481 F. App'x 826 (4th
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617
(1978).\4\
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\4\ 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(g)(1) (this
section, formerly Sec. 823(f), was redesignated as part of the
Medical Marijuana and Cannabidiol Research Expansion Act, Public Law
117-215, 136 Stat. 2257 (2022)). 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.
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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 [the]
state.'' Id. at Sec. 11026(c).
Here, the undisputed evidence in the record is that Registrant
lacks authority to practice medicine in California. As discussed above,
a physician must be a licensed practitioner to dispense a controlled
substance in California. Thus, because Registrant lacks authority to
practice medicine in California and, therefore, is not authorized to
handle controlled substances in California, Registrant 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.
FO7776644 issued to Dylan E. O'Connor, M.D. Further, pursuant to 28 CFR
0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I
hereby deny any pending applications of Dylan E. O'Connor, M.D., to
renew or modify this registration, as well as any other pending
application of Dylan E. O'Connor, M.D., for additional registration in
California. This Order is effective March 6, 2023.
Signing Authority
This document of the Drug Enforcement Administration was signed on
January 25, 2023, 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. 2023-02120 Filed 2-1-23; 8:45 am]
BILLING CODE 4410-09-P
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