Notice2023-17383
Debora Ryder, N.P.; 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 55074-55076]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17383]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Debora Ryder, N.P.; Decision and Order
On August 24, 2022, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause and Immediate Suspension of
Registration (OSC/ISO) to Debora Ryder, N.P. (Registrant) of Tarpon
Springs, Florida. Request for Final Agency Action (RFAA), Exhibit
(RFAAX) 2, at 1. The OSC/ISO informed Registrant of the immediate
suspension of her DEA Certificate of Registration, Control No.
MR4236584, pursuant to 21 U.S.C. 824(d), alleging that Registrant's
continued registration constitutes ```an imminent danger to the public
health or safety.' '' Id. The OSC/ISO also proposed the revocation of
Registrant's registration, alleging that Registrant's continued
registration is inconsistent with the public interest and that
Registrant is without authority to handle controlled substances in
Florida, the state in which she is registered with DEA.\1\ Id. at 1
(citing 21 U.S.C. 824(a)(4), 823(g)(1),\2\ 824(a)(3)).\3\
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\1\ The registered address of Registrant's DEA Certificate of
Registration, Control No. MR4236584, is 900 Beckett Way, Tarpon
Springs, Florida 34689. Id. at 3.
\2\ Effective December 2, 2022, the Medical Marijuana and
Cannabidiol Research Expansion Act, Public Law 117-215, 136 Stat.
2257 (2022) (Marijuana Research Amendments or 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/ISO,
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.
\3\ According to Agency records, Registrant's Certificate of
Registration No. MR4236584 expired on April 30, 2023. The fact that
a registrant allows her registration to expire during the pendency
of an OSC does not impact the Agency's jurisdiction or prerogative
under the CSA to adjudicate the OSC to finality. Jeffrey D. Olsen,
M.D., 84 FR 68474, 68476-79 (2019).
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The Agency makes the following findings of fact based on the
uncontroverted evidence submitted by the Government in its RFAA dated
February 28, 2023.\4\
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\4\ Based on a Declaration from a DEA Diversion Investigator,
the Agency finds that the Government's service of the OSC/ISO on
Registrant was adequate. RFAAX 3, 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/ISO
and Registrant has neither requested a hearing nor submitted a
corrective action plan and therefore has waived any such rights.
RFAA, at 2; see also 21 CFR 1301.43 and 21 U.S.C. 824(c)(2).
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I. Findings of Fact
On July 31, 2022, Registrant's Florida advanced practice registered
nurse (APRN) license number APRN2943222 expired by its own terms. RFAAX
3, Attachment B. According to Florida online records, of which the
Agency takes official notice, Registrant's Florida APRN license number
APRN2943222 is listed as ``Delinquent,'' indicating that ``[t]he
licensed practitioner is not authorized to practice in the state of
Florida.'' \5\ Florida Department of Health License Verification,
<a href="https://mqa-internet.doh.state.fl.us/MQASearchServices/">https://mqa-internet.doh.state.fl.us/MQASearchServices/</a> (last visited
date of signature of this Order). Accordingly, the Agency finds that
Registrant is not currently licensed to practice as an APRN in Florida,
the state in which she is registered with the DEA.\6\
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\5\ 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#5d39383c733c393932733c2929322f3338242e1d39383c733a322b"><span class="__cf_email__" data-cfemail="ef8b8a8ec18e8b8b80c18e9b9b809d818a969caf8b8a8ec1888099">[email protected]</span></a>.
\6\ According to Florida online records, of which the Agency
takes official notice, Registrant's Florida registered nurse license
number RN2943222 is listed as ``clear/active.'' Florida Department
of Health License Verification, <a href="https://mqa-internet.doh.state.fl.us/MQASearchServices/">https://mqa-internet.doh.state.fl.us/MQASearchServices/</a> (last visited date of
signature of this Order). Although both the Government's RFAA and an
attached Declaration from a DEA Diversion Investigator correctly
note that Registrant is a current holder of a Florida registered
nurse license number RN2943222, the cited Attachment A of the
Diversion Investigator's Declaration appears to be an erroneous
printout from the Florida Department of Health License Verification
database pertaining to a different practitioner who shares
Registrant's first and last name and whose registered nurse license
number RN3151242 is listed as null and void. See RFAA, at 3; RFAAX
3, at 1; RFAAX 3, Attachment A.
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The Agency further finds that the Government's evidence shows that
from June 11, 2021, through July 28, 2022, Registrant issued at least
83 prescriptions for controlled substances in the names of two deceased
individuals, Deceased Patient B.K.\7\ and Deceased Patient J.R.\8\
RFAAX 3, at 2-3. After Deceased Patient B.K.'s death, from at least
July 19, 2021 through July 28, 2022, Registrant issued at least 47
prescriptions for controlled substances in Deceased Patient B.K.'s
name, including prescriptions for hydromorphone, oxycodone, alprazolam,
and promethazine-codeine syrup. Id.; see also RFAAX 3, Attachment F.
After Deceased Patient J.R.'s death, from at least June 11, 2021
through July 28, 2022, Registrant issued at least 36 prescriptions for
controlled substances in Deceased Patient J.R.'s name, including
prescriptions for hydromorphone, oxycodone, phendimetrazine, and
promethazine-codeine syrup. RFAAX 3, at 2-3; see also RFAAX 3,
Attachment H.
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\7\ Deceased Patient B.K. died on or about June 21, 2019. RFAAX
3, at 3; see also RFAAX 3, Attachment D-E.
\8\ Deceased Patient J.R. was found deceased by Registrant on or
about October 19, 2018. RFAAX 3, at 3; see also RFAAX 3, Attachment
G.
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Additionally, the Agency finds that the Government's evidence shows
that on March 1, 2022, during a probable cause search of Registrant's
vehicle during a traffic stop on an individual who was driving
Registrant's vehicle at the time, law enforcement discovered 14 pre-
signed prescriptions for controlled substances dated from March 1,
2022, through March 4, 2022, and issued to multiple individuals,
including the driver of the vehicle. RFAAX 4, at 1-2; see also RFAAX 4,
Attachment I. The prescriptions were signed by Registrant and issued
for oxycodone, hydrocodone, and Xanax, a brand name drug containing
alprazolam. Id.\9\
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\9\ As Registrant was not present at the time of the traffic
stop, law enforcement called Registrant ``multiple times'' and
confirmed her identity as well as that she had written out the 14
pre-signed prescriptions. RFAAX 4, at 1-2. During one of the phone
calls, Registrant ``advised she fills out prescriptions for her
patients `ahead of time' '' and that ``she had given her nephew, the
driver of the vehicle, permission to bring the prescriptions to her
office.'' Id. at 2.
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Further, the Agency finds that the Government's evidence shows that
on June 27, 2022, pursuant to a search warrant of a business, law
enforcement discovered four prescriptions for promethazine-codeine
syrup pre-signed by Registrant.\10\ Id. at 1; see also RFAAX 5,
Attachment J. Notably, although the controlled substance portions were
filled out on all four prescriptions, ``the patient information
portion[s], including the patient name[s] and date[s] of birth[,] were
blank.'' Id.
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\10\ During the execution of the search warrant, law enforcement
discovered 12 prescriptions in total pre-signed by Registrant. RFAAX
5, at 1.
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II. Discussion
A. 21 U.S.C. 824(a)(3): Loss of State Authority
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 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).\11\
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\11\ 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). 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 Florida statute, ``[a] practitioner, in good faith and
in the course of his or her professional practice only, may prescribe,
administer, dispense, mix, or otherwise prepare a controlled
substance.'' Fla. Stat. 893.05(1)(a) (2022). Further, a
``practitioner'' as defined by Florida statute includes ``an [APRN]
licensed under chapter 464.'' \12\ Id. Sec. 893.02(23).\13\
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\12\ Chapter 464 regulates nursing and applies to Registrant; it
defines an APRN as ``any person licensed in [the] state to practice
professional nursing and who is licensed in an advanced nursing
practice, including . . . certified nurse practitioners.'' Id. Sec.
464.003(3).
\13\ A ``practitioner'' as defined by Florida statute does not
include a registered nurse. Id. Further, Florida statute states that
a registered nurse is only authorized to administer ``medications
and treatments as prescribed or authorized by a duly licensed
practitioner.'' Id. Sec. 464.003(19)(b). As such, the ``clear/
active'' status of Registrant's Florida registered nurse license,
see supra at n.5, does not authorize Registrant to handle controlled
substances in the state of Florida.
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Here, the undisputed evidence in the record is that Registrant
lacks authority to practice as an APRN in Florida. As discussed, a
person must be a licensed practitioner to dispense a controlled
substance in Florida. Accordingly, the Agency finds that because
Registrant lacks authority to practice as an APRN in Florida,
Registrant is, therefore, unauthorized to handle controlled substances
in Florida, the state in which she is registered with DEA.
B. 21 U.S.C. 823(g)(1): The Five Public Interest Factors
Under the Controlled Substances Act (CSA), ``[a] registration . . .
to . . . dispense a controlled substance . . . may be suspended or
revoked by the Attorney General upon a finding that the registrant . .
. has committed such acts as would render his registration under
section 823 of this title inconsistent with the public interest as
determined under such section.'' 21 U.S.C. 824(a). In making the public
interest determination, the CSA requires consideration of the following
factors:
(A) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(B) The applicant's experience in dispensing, or conducting
research with respect to controlled substances.
(C) The applicant's conviction record under Federal or State laws
relating to the manufacture, distribution, or dispensing of controlled
substances.
(D) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(E) Such other conduct which may threaten the public health and
safety.
21 U.S.C. 823(g)(1).
The DEA considers these public interest factors in the disjunctive.
Robert A. Leslie, M.D., 68 FR 15227, 15230 (2003). Each factor is
weighed on a case-by-case basis. Morall v. Drug Enf't Admin., 412 F.3d
165, 173-74 (D.C. Cir. 2005). Any one factor, or combination of
factors, may be decisive. David H. Gillis, M.D., 58 FR 37507, 37508
(1993).
While the Agency has considered all of the public interest factors
in 21 U.S.C. 823(g)(1),\14\ the Government's evidence in support of its
prima facie case for revocation of Registrant's registration is
confined to Factors B and D. See RFAA, at 8-11. The Government has the
burden of proof in this proceeding. 21 CFR 1301.44. Here, the Agency
finds that the Government's evidence satisfies its prima facie burden
of showing that Registrant's continued registration would be
``inconsistent with the public interest.'' 21 U.S.C. 824(a). The Agency
further finds that Registrant failed to provide sufficient evidence to
rebut the Government's prima facie case.
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\14\ As to Factor A, there is no record evidence of disciplinary
action against Registrant's state APRN license. 21 U.S.C.
823(g)(1)(A). Here, Registrant's Florida APRN license expired by its
own terms. See supra at I. DEA precedent establishes that where the
record contains no evidence of a recommendation by a state licensing
board, such absence does not weigh for or against revocation. Ester
Mark, M.D., 86 FR 16760, 16771 (2021) (citing Roni Dreszer, M.D., 76
FR 19434, 19444 (2011)). As to Factor C, there is no evidence in the
record that Registrant has been convicted of an offense under either
federal or state law ``relating to the manufacture, distribution, or
dispensing of controlled substances.'' 21 U.S.C. 823(g)(1)(C).
However, as Agency cases have noted, there are a number of reasons
why a person who has engaged in criminal misconduct may never have
been convicted of an offense under this factor. Dewey C. MacKay,
M.D., 75 FR 49956, 49973 (2010). Agency cases have therefore found
that ``the absence of such a conviction is of considerably less
consequence in the public interest inquiry'' and is therefore not
dispositive. Id. As to Factor E, the Government's evidence fits
squarely within the parameters of Factors B and D and does not raise
``other conduct which may threaten the public health and safety.''
21 U.S.C. 823(g)(1)(E). Accordingly, Factor E does not weigh for or
against revocation.
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1. Factors B and D
Evidence is considered under Public Interest Factors B and D when
it reflects compliance (or non-compliance) with laws related to
controlled substances and experience dispensing controlled substances.
See Kareem Hubbard, M.D., 87 FR 21156, 21162 (2022). The Government has
alleged that Registrant violated both federal and Florida state law
regulating controlled substances. RFAAX 2, at 2-5. According to the
CSA's implementing regulations, a lawful controlled substance order or
prescription is one that is ``issued for a legitimate medical purpose
by an individual practitioner acting in the usual course of his
professional practice.'' 21 CFR 1306.04(a). The CSA also requires that
all prescriptions for controlled substances ``shall be dated as of, and
signed on, the day when issued.'' 21 CFR 1306.05(a). Further, Florida
state law lists numerous requirements for the prescribing of controlled
substances, including, but not limited to, requirements that the
prescriber: conduct a complete medical history and physical
examination; document any medical indications for the use of a
controlled substance; create a written treatment plan; discuss with the
patient the risks and benefits of the use of controlled substances;
conduct periodic reviews of the effectiveness of any treatment with
controlled
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substances; assess and monitor the patient's risk for aberrant drug-
related behavior; and maintain accurate, current, complete, and
accessible records. Fla. Stat. 456.44; Fla. Admin. Code Ann. r. 64B8-
9.013. Additionally, Florida state law requires that prescriptions
``must be signed by the prescribing practitioner on the day when
issued.'' Fla. Stat. 456.42(1).
Here, the record demonstrates that Registrant issued at least 83
prescriptions for controlled substances in the names of two deceased
individuals, as well as pre-signed at least 18 prescriptions for
controlled substances. As discussed above, such conduct is in clear
violation of Florida state law and thus renders Registrant's
prescribing outside the usual course of professional practice. As such,
the Agency sustains the Government's allegations that Registrant
violated 21 CFR 1306.04(a), 1306.05(a); Florida Statutes 456.44 and
456.2(1); and Florida Administrative Code Rule 64B8-9.013.
In sum, the Agency finds that Factors B and D weigh in favor of
revocation of Registrant's registration and thus finds, after
considering the factors set forth in 21 U.S.C. 823(g)(1), Registrant's
continued registration to be inconsistent with the public interest.
III. Sanction
Where, as here, the Government has established grounds to revoke
Registrant's registration, the burden shifts to the registrant to show
why he can be entrusted with the responsibility carried by a
registration. Garret Howard Smith, M.D., 83 FR 18882, 18910 (2018).
When a registrant has committed acts inconsistent with the public
interest, he must both accept responsibility and demonstrate that he
has undertaken corrective measures. Holiday CVS, L.L.C., dba CVS
Pharmacy Nos 219 and 5195, 77 FR 62316, 62339 (2012). Trust is
necessarily a fact-dependent determination based on individual
circumstances; therefore, the Agency looks at factors such as the
acceptance of responsibility, the credibility of that acceptance as it
relates to the probability of repeat violations or behavior, the nature
of the misconduct that forms the basis for sanction, and the Agency's
interest in deterring similar acts. See, e.g., Robert Wayne Locklear,
M.D., 86 FR 33738, 33746 (2021).
Here, Registrant did not request a hearing, submit a corrective
action plan, respond to the OSC/ISO, or otherwise avail herself of the
opportunity to refute the Government's case. As such, Registrant has
made no representations as to her future compliance with the CSA nor
demonstrated that she can be entrusted with registration. Moreover, the
Agency has found that Registrant is ineligible to maintain a DEA
registration and that the evidence presented by the Government clearly
shows that Registrant violated the CSA. See supra at II. Accordingly,
the Agency orders the revocation of Registrant's registration.
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.
MR4236584 issued to Debora Ryder, N.P. 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 Debora Ryder, N.P., to renew or
modify this registration, as well as any other pending application of
Debora Ryder, N.P., for additional registration in Florida. 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. 2023-17383 Filed 8-11-23; 8:45 am]
BILLING CODE 4410-09-P
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