Notice2023-02122
Fernando Mendez, P.A.; 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
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 7105-7106]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-02122]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Fernando Mendez, P.A.; Decision and Order
On August 9, 2022, the Drug Enforcement Administration
(hereinafter, DEA or Government) issued an Order to Show Cause
(hereinafter, OSC) to Fernando Mendez, P.A. (hereinafter, Registrant).
Request for Final Agency Action (hereinafter, RFAA), Exhibit
(hereinafter, RFAAX) 1 (OSC), at 1, 3. The OSC proposed the revocation
of Registrant's Certificate of Registration No. MM3333109 at the
registered address of 1001 East Tyler
[[Page 7106]]
Avenue, Harlingen, Texas 78550. Id. at 1. The OSC alleged that
Registrant's registration should be revoked because Registrant is
``currently without authority to handle controlled substances in the
State of Texas, 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 dated
January 3, 2023.\1\
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\1\ Based on the Declarations from a DEA Diversion Investigator
and a DEA Special Agent, the Agency finds that the Government's
service of the OSC on Registrant was adequate. RFAAX 2, at 1-2;
RFAAX 3, at 2-3. 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 3;
RFAAX 3, at 3; see also 21 CFR 1301.43 and 21 U.S.C. 824(c)(2).
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Findings of Fact
On July 20, 2021, the Texas Physician Assistant Board issued an
Order of Temporary Suspension that suspended Registrant's Texas
physician assistant license. RFAAX 3, Attachment B, at 1, 5-6.
According to Texas online records, of which the Agency takes official
notice, Registrant's license is still suspended.\2\ Texas Medical Board
License Verification, <a href="https://profile.tmb.state.tx.us">https://profile.tmb.state.tx.us</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 Texas, 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 the DEA Office of the Administrator,
Drug Enforcement Administration at <a href="/cdn-cgi/l/email-protection#a1c5c4c08fc0c5c5ce8fc0d5d5ced3cfc4d8d2e1c5c4c08fc6ced7"><span class="__cf_email__" data-cfemail="7e1a1b1f501f1a1a11501f0a0a110c101b070d3e1a1b1f50191108">[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).\3\
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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
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 Texas statute, ``[d]ispense'' means ``the delivery of
a controlled substance in the course of professional practice or
research, by a practitioner or person acting under the lawful order of
a practitioner, to an ultimate user or research subject. The term
includes the prescribing, administering, packaging, labeling, or
compounding necessary to prepare the substance for delivery.'' Tex.
Health & Safety Code Ann. section 481.002(12) (2022). Further, a
``practitioner'' means a ``a physician . . . or other person licensed,
registered, or otherwise permitted to distribute, dispense, analyze,
conduct research with respect to, or administer a controlled substance
in the course of professional practice or research in this state.'' Id.
at section 481.002(39)(A).
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice medicine in Texas. As discussed
above, a person must be a licensed practitioner to dispense a
controlled substance in Texas. Thus, because Registrant lacks authority
to practice medicine in Texas and, therefore, is not authorized to
handle controlled substances in Texas, 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.
MM3333109 issued to Fernando Mendez, 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 applications of Fernando Mendez, P.A., to renew or
modify this registration, as well as any other pending application of
Fernando Mendez, P.A., for additional registration in Texas. 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. 2023-02122 Filed 2-1-23; 8:45 am]
BILLING CODE 4410-09-P
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