Notice2023-17382
Olga Wildfeuer, M.D.; Decision and Order
Primary source
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Published
August 14, 2023
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 88 Issue 155 (Monday, August 14, 2023)</title>
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[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Notices]
[Pages 55071-55072]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17382]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 23-16]
Olga Wildfeuer, M.D.; Decision and Order
On November 21, 2022, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Olga Wildfeuer, M.D.
(Respondent). OSC, at 1-3. The OSC proposed the revocation of
Respondent's registration \1\ because Respondent is ``without authority
to handle controlled substances in the State of New York, the state in
which [she is] registered with DEA.'' Id. at 2.
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\1\ Certificate of Registration No. BW2841446 at the registered
address of 1400 5th Ave., Apt. 7R, New York, New York 10026. Id. at
1.
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Respondent timely requested a hearing; thereafter, the
Administrative Law Judge (ALJ) granted a Motion for Summary Disposition
recommending the revocation of Respondent's registration. 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 (RD), at 7. Respondent did not file
exceptions to the RD. Having reviewed the entire record, the Agency
adopts and hereby incorporates by reference the entirety of the ALJ's
rulings, findings of fact, conclusions of law, and recommended sanction
and summarizes and expands upon portions thereof herein.
[[Page 55072]]
Findings of Fact
On July 22, 2021, Respondent signed a voluntary agreement with the
New York State Board for Professional Medical Conduct (the Board),\2\
which permanently precluded her from ``ordering, prescribing,
administering, distributing and/or dispensing controlled substances.''
RD, at 4; see also Govt Motion for Summary Disposition, Exhibit A, at
4. According to New York online records, of which the Agency takes
official notice,\3\ Respondent is registered to practice medicine. New
York State Office of the Professions Verification Search, <a href="https://www.op.nysed.gov/verification-search">https://www.op.nysed.gov/verification-search</a> (last visited date of signature of
this Order). But, the Board ``permanently limited'' her medical license
``to preclude [her] ordering, prescribing, administering, distributing
and/or dispensing of controlled substances.'' New York Department of
Health Professional Misconduct and Physician Discipline, <a href="https://apps.health.ny.gov/pubdoh/professionals/doctors/conduct/factions/HomeAction.action">https://apps.health.ny.gov/pubdoh/professionals/doctors/conduct/factions/HomeAction.action</a> (last visited date of signature of this Order).
Moreover, Respondent must refer any patient for whom controlled
substances may be needed to another physician. Id. Accordingly, the
Agency finds that Respondent is not currently authorized to engage in
the ordering, prescribing, administering, distributing and/or
dispensing of controlled substances in the state of New York, the state
in which she is registered with the DEA.
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\2\ The agreement was effective August 18, 2021. Govt Motion for
Summary Disposition, Exhibit C, at 1.
\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, Respondent 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#ddb9b8bcf3bcb9b9b2f3bca9a9b2afb3b8a4ae9db9b8bcf3bab2ab"><span class="__cf_email__" data-cfemail="127677733c7376767d3c7366667d607c776b61527677733c757d64">[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 (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 \4\ 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).\5\
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\4\ As such, the Agency finds Respondent's arguments regarding
the permissive nature of 21 U.S.C. 824(a)(3), see Resp Opposition to
Summary Disposition, at 7, to be unavailing. RD at 4-5; see also
Bhanoo Sharma, M.D., 87 FR 41355, 41356 n.4 (2022).
\5\ 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, Pub. L.
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 the New York Controlled Substances Act, ``[i]t shall
be unlawful for any person to manufacture, sell, prescribe, distribute,
dispense, administer, possess, have under his control, abandon, or
transport a controlled substance except as expressly allowed by this
article.'' N.Y. Pub. Health Law 3304 (2023). Further, New York defines
a ``practitioner'' as ``[a] physician . . . or other person licensed,
or otherwise permitted to dispense, administer or conduct research with
respect to a controlled substance in the course of a licensed
professional practice . . . .'' Id. at Sec. 3302(27). Finally, New
York regulations state that ``[a] prescription for a controlled
substance may be issued only by a practitioner who is . . . authorized
to prescribe controlled substances pursuant to his licensed
professional practice . . . .'' N.Y. Comp. Codes R. & Regs. tit. 10,
80.64 (2023).
Here, the undisputed evidence in the record is that Respondent
currently lacks authority to prescribe controlled substances in New
York. RD, at 5. Thus, because Respondent lacks authority to prescribe
controlled substances in New York, Respondent is not eligible to
maintain a DEA registration. Id., at 6. Accordingly, the Agency orders
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.
BW2841446, issued to Olga Wildfeuer, 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 Olga Wildfeuer, M.D., to renew
or modify this registration, as well as any other pending application
of Olga Wildfeuer, M.D., for additional registration in New York. This
Order is effective September 13, 2023.
Signing Authority
This document of the Drug Enforcement Administration was signed on
August 7, 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. 2023-17382 Filed 8-11-23; 8:45 am]
BILLING CODE 4410-09-P
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