Notice2023-07834
Matthew S. Katz, M.D.; Decision and Order
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Published
April 13, 2023
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 88 Issue 71 (Thursday, April 13, 2023)</title>
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[Federal Register Volume 88, Number 71 (Thursday, April 13, 2023)]
[Notices]
[Pages 22480-22481]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-07834]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 22-53]
Matthew S. Katz, M.D.; Decision and Order
I. Introduction
On August 16, 2022, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Matthew S. Katz,
M.D. (Respondent), of Nashville, Tennessee, the state where Respondent
is registered with the DEA.\1\ OSC, at 1. The OSC proposes the
revocation of Respondent's DEA Certificate of Registration
(registration), FK7432278, and the denial of any applications for
renewal or modification of it, alleging that Respondent was convicted
of a Tennessee felony relating to controlled substances.\2\ Id., citing
21 U.S.C. 824(a)(2).\3\
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\1\ Effective December 2, 2022, the Medical Marijuana and
Cannabidiol Research Expansion Act, Public Law 117-215, 136 Stat.
2257 (2022) (MRA), amended the Controlled Substances Act (CSA) and
other statutes. Relevant to this matter, the MRA redesignated 21
U.S.C. 823(f), cited in the OSC, as 21 U.S.C. 823(g)(1).
Accordingly, this Decision cites to the current designation, 21
U.S.C. 823(g)(1), and to the MRA-amended CSA throughout.
\2\ The OSC also seeks denial of ``any applications for any
other DEA registrations.'' OSC, at 1.
\3\ The OSC alleges that Respondent ``pled guilty'' to the Class
D felony, Tenn. Code Ann. section 53-11-402. OSC, at 2. The
Government acknowledges that Respondent pled ``nolo contendere.''
See, e.g., Government's Prehearing Statement (September 30, 2022),
at 2. The parties agree that Respondent's plea is subject to an
Order of Deferral. See, e.g. id.; Request for Hearing (September 22,
2022), at 1. The parties also agree that the Agency considers
Respondent's nolo contendere plea to be a ``conviction'' for
purposes of 21 U.S.C. 824(a)(4). Respondent's Post-Hearing Brief
(January 20, 2023) (Resp Posthearing), at 13.
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The hearing Respondent requested was held on December 20, 2022. Tr.
1. Concluding that Respondent's acceptance of responsibility was short
of unequivocal, and that his misconduct was egregious, the Recommended
Rulings, Findings of Fact, Conclusions of Law, and Decision of the
Administrative Law Judge (RD) recommends that Respondent's registration
be revoked. RD, at 22-23. Given the egregiousness of the uncontested
facts and the facts based on substantial record evidence, the Agency
agrees with the RD that revocation is the appropriate sanction.
II. Findings
A. Background Findings
Having thoroughly analyzed the certified record, the Agency finds
substantial record evidence that: (1) Respondent prescribed Schedule II
controlled substances without a legitimate medical purpose, (2)
Respondent then instructed the patients to bring him the filled
prescriptions, and (3) Respondent took most of the controlled
substances for his own use after, he testified, making sure that the
patient did not need them to relieve pain. Stipulation No. 6; Resp
Posthearing, at 13. There is no record evidence that Respondent
complied with Tennessee's legal requirements for issuing controlled
substances. The Agency finds no record evidence that Respondent took
steps to make sure he did not over-prescribe opiates to individuals who
were already opioid-addicted, who were addicted to another substance,
or who were at a particular risk of becoming opioid-addicted.
B. Undisputed Matters of Fact and Law
The Agency finds, to Respondent's credit, that he advised the Chief
Administrative Law Judge and the Government that the Consent Order of
the Tennessee Board of Medical Examiners (TMB) restricts him from
prescribing Schedule II controlled substances in Tennessee for twelve
(12) months beginning on the date of the Consent Order's entry.\4\ TMB
Consent Order (entered September 27, 2022), RX 7, at 6, citing Tenn.
Comp. R. & Regs. 0880-02-.25 (2019). Indeed, the Agency finds that,
according to the Consent Order, Respondent's loss of authority in
Tennessee to prescribe Schedule II controlled substances predates the
Consent Order. RX 7, at 3 (``Due to the allegations in the indictment .
. ., the Respondent lost his authorization to prescribe Schedule II
controlled substances in this state until the criminal cases against
him reach final disposition.''). Accordingly, the Agency finds
uncontroverted record evidence that Respondent presently lacks
authority in Tennessee to prescribe Schedule II controlled substances.
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\4\ The Consent Order also places Respondent's medical license
on probation for three years. RX 7, at 5.
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Additionally, the parties agree to the following factual and legal
matters.
1. Respondent pled nolo contendere to three counts of obtaining
possession of oxycodone by misrepresentation, fraud, forgery, deception
or subterfuge, a Class D Tennessee felony. Tenn. Code Ann. section 53-
11-402(a)(3) and (b)(1); see, e.g., OSC, at 2; Stipulation No. 6; Resp
Posthearing, at 2, 13.
2. Prior Agency decisions state that a nolo contendere plea is a
``conviction'' for purposes of 21 U.S.C. 824(a)(2). See, e.g., Erica N.
Grant, M.D., 86 FR 40641, 40646-48 (2021) (collecting cases); Resp
Posthearing, at 13; but cf. Transcript of Guilty Plea Proceedings,
State of Tennessee v. Matthew S. J. Katz, No. 2021-B-794 (Criminal
Court for Davidson County, Tennessee, Division III, June 30, 2022), GX
3b, at 4 (The Court: ``So do you understand that this is a special
probation, that is . . . you're not going to be convicted, and it will
be removed from your record if you follow the conditions.'').
3. Respondent is not eligible for a Schedule II registration
because he lacks authority in Tennessee to dispense Schedule II
controlled substances. Resp Posthearing, at 16-17; Government's Post-
Hearing Brief (dated January 20, 2023) (Govt Posthearing), at 10.
III. Discussion
According to the Controlled Substances Act (CSA), the Attorney
General ``shall register practitioners . . . to dispense . . .
controlled substances . . . 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). The CSA defines ``practitioner'' as a
``physician . . . 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). The Agency has long
interpreted these two CSA provisions to mean that state authority to
dispense controlled substances is a prerequisite to the Agency's
issuance of a registration. See, e.g., Valerie Augustus, M.D., 88 FR
1098, 1099 (2023).
Further, the Attorney General is authorized to suspend or revoke a
registration ``upon a finding that the registrant . . . has been
convicted of a felony . . . of any State . . . relating to any
substance defined in this subchapter as a controlled substance . . .
.'' 21 U.S.C. 824(a)(2).
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The Government has the burden of proof in this proceeding. 21 CFR
1301.44.
Based on undisputed factual and legal matters, the Agency finds
conclusive record evidence that: (1) Respondent lacks authority in
Tennessee to dispense Schedule II controlled substances, and (2) the
Government presented a prima facie case that Respondent is a felon
convicted of an offense relating to a controlled substance. Supra
section II.A. Accordingly, the Agency finds that: (1) Respondent is not
eligible for a registration to dispense Schedule II controlled
substances, and that (2) Respondent's registration, as to Schedules III
through V, is subject to revocation due to his felony conviction
relating to controlled substances. 21 U.S.C. 802(21), 823(g)(1); see,
e.g., Valerie Augustus, M.D., 88 FR 1099 (as to Schedule II
eligibility); 21 U.S.C. 824(a)(2); see, e.g., Johnny C. Benjamin, Jr.,
M.D., 86 FR 32280, 32282 (2021) (as to felony conviction).
IV. Sanction
Where, as here, the Government has met its prima facie burden of
showing that one or more grounds for revocation exists, the burden
shifts to the Respondent to show why he can be entrusted with a
registration.\5\ Garrett Howard Smith, M.D., 83 FR 18882 (2018).
Moreover, as past performance is the best predictor of future
performance, the Agency has required that a respondent must
unequivocally accept responsibility for the unlawful acts for which he
was convicted, and demonstrate that he will not engage in future
misconduct.\6\ Id. In addition, the Agency has found that the
egregiousness and extent of the misconduct are significant factors in
determining the appropriate sanction. Id. The Agency has also
considered the need to deter similar acts by applicants and by the
community of registrants. Id.
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\5\ Respondent describes himself as a ``highly trained
vitreoretinal surgeon'' who ``credibly explained'' that ``he
developed an addiction to opioid pain killers'' after a back injury
that ``he attempted to manage himself.'' Resp Posthearing, at 3.
Although ``it felt appropriate to him'' at the time to manage
himself, ``he now acknowledges that behavior sounds `crazy' to
him.'' Id. Respondent's brief also states that he ``candidly
acknowledged he engaged in dishonest, inappropriate, and unlawful
behaviors in pursuit of substances to sustain the addiction.'' Id.;
infra. Respondent was not asked to address his listing of
``cocaine'' in the ``drug(s) of choice'' section of the Tennessee
Medical Foundation contract. RX 5, at 8.
\6\ Respondent argues that his ability to continue his medical
work requires his maintenance of a registration. See, e.g., Resp
Posthearing, at 11-12. After carefully reviewing his argument and
the bases he posits for it, including RX 4 and RX 6, the Agency
finds that the evidence Respondent, himself, offered belies this
argument. Indeed, the record includes evidence that Respondent's
skill, commitment to his sobriety, willingness to undergo extensive
monitoring, and the apparent good will he has engendered have been
sufficient for him to obtain and/or retain his current professional
employment. See, e.g., Resp Posthearing, at 7-12, 14-15.
The Agency notes that Respondent's argument, even if proven, is
irrelevant to whether Respondent may be entrusted with a
registration, the salient issue in this adjudication.
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The OSC that initiated this adjudication alleges that the
registration of Respondent, who has been convicted of a felony relating
to a controlled substance, should be revoked. Supra section I. As
already discussed, the Agency is without authority to allow Respondent
to maintain his registration to dispense Schedule II controlled
substances. Supra section III. Accordingly, at a minimum, Respondent's
authorization to dispense Schedule II controlled substances must now be
revoked.
It is the Administrator's CSA-mandated exercise of discretion,
however, that determines whether Respondent will continue to hold a
registration to dispense Schedules III through V. 21 U.S.C. 824(a). The
parties disagree about whether Respondent unequivocally accepted
responsibility. See, e.g., Resp Posthearing, at 13-14; Govt Posthearing
at 6-9. The certified record in this matter is not sufficiently
developed to determine whether Respondent unequivocally accepted
responsibility. However, based on the facts in the certified record
that are well-developed and undisputed, the Agency concludes that
whether Respondent unequivocally accepted responsibility would not
impact a finding as to the appropriate sanction given the egregiousness
of Respondent's conduct.
In this matter, the Agency found substantial record evidence that,
regardless of the resulting harm his patients could suffer, Respondent
prescribed controlled substances so that he could divert at least a
portion of them to himself. See, e.g., Resp Posthearing, at 4-6, 13-14.
These most egregious facts must result in the revocation of
Respondent's registration. To allow Respondent to maintain any
controlled substance prescribing authority in the face of the
egregiousness of the found facts, the danger of his disregard for the
CSA, and the safety of his patients would send a message to the current
and prospective registrant community that compliance with the CSA is
not a condition precedent to the issuance and retention of a
registration. Garrett Howard Smith, M.D., 83 FR 18910. Accordingly, the
Agency shall order the sanction the Government requested, without
restricting Respondent from applying for a registration in the future.
Order
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21
U.S.C. 823(g)(1) and 824(a)(2), I hereby revoke DEA Certificate of
Registration FK7432278 issued to Matthew S. Katz, 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 application of Matthew S. Katz,
M.D., to renew or modify this registration, as well as for any other
pending application(s) of Matthew S. Katz, M.D., for registration in
Tennessee. This Order is effective May 15, 2023.
Signing Authority
This document of the Drug Enforcement Administration was signed on
April 10, 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. 2023-07834 Filed 4-12-23; 8:45 am]
BILLING CODE 4410-09-P
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</html>Indexed from Federal Register on April 13, 2023.
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