Notice2023-17386
David H. Marcowitz, D.O.; 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 55069-55070]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17386]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
David H. Marcowitz, D.O.; Decision and Order
On January 11, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to David H. Marcowitz,
D.O. (Registrant). Request for Final Agency Action (RFAA), Exhibit
(RFAAX) 2, at 1, 3. The OSC proposed the revocation of Registrant's
Certificate of Registration No. FM6860818 at the registered address of
17019 County Farm Road, Rushville, Illinois 62681. Id. at 1. The OSC
alleged that Registrant's registration should be revoked because
Registrant is ``currently without authority to handle controlled
substances in Illinois, the state in which [he is] registered with
DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
The OSC notified Registrant of his right to file with DEA a written
request for hearing, and that if he failed to file such a request, he
would be deemed to have waived his right to a hearing and be in
default. OSC, at 2 (citing 21 CFR 1301.43). Here, Registrant did not
request a hearing. RFAA, at 1.\1\ ``A default, unless excused, shall be
deemed to constitute a waiver of the registrant's/applicant's right to
a hearing and an admission of the factual allegations of the [OSC].''
21 CFR 1301.43(e).
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\1\ Based on the Government's submissions in its RFAA dated May
2, 2023, the Agency finds that service of the OSC on Registrant was
adequate. Specifically, the included Declaration of a DEA Diversion
Investigator asserts that on January 11, 2023, Registrant was
personally served with the OSC at his private residence. RFAAX 3, at
1.
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Further, ``[i]n the event that a registrant . . . is deemed to be
in default . . . DEA may then file a request for final agency action
with the Administrator, along with a record to support its request. In
such circumstances, the Administrator may enter a default final order
pursuant to [21 CFR] Sec. 1316.67.'' Id. Sec. 1301.43(f)(1). Here,
the Government has requested final agency action based on Registrant's
default pursuant to 21 CFR 1301.43(c), (f). See also id. Sec. 1316.67.
Findings of Fact
The Agency finds that, in light of Registrant's default, the
factual allegations in the OSC are admitted. According to the OSC, on
September 9, 2021, both Registrant's Illinois medical license and
Registrant's Illinois controlled substance license were suspended.
RFAAX 2, at 1.
According to Illinois' online records, of which the Agency takes
official notice, both Registrant's Illinois medical license and
Registrant's Illinois controlled substance license remain suspended.\2\
Illinois Department of Financial and Professional Regulation, License
Lookup, <a href="https://online-dfpr.micropact.com/lookup/licenselookup.aspx">https://online-dfpr.micropact.com/lookup/licenselookup.aspx</a>
(last visited date of signature of this Order). Therefore, the Agency
finds that Registrant is not authorized to practice medicine nor to
handle controlled substances in Illinois, the state in which he is
registered with 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#0e6a6b6f206f6a6a61206f7a7a617c606b777d4e6a6b6f20696178"><span class="__cf_email__" data-cfemail="5c38393d723d383833723d2828332e3239252f1c38393d723b332a">[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 21 U.S.C. 823 ``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, 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, D.O., 76 FR 71371 (2011), pet. for rev.
denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh Blanton,
D.O., 43 FR 27616, 27617 (1978).\3\
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\3\ This rule derives from the text of two provisions of the
Controlled Substances Act (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 section 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,
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, D.O., 71 FR 39130, 39131 (2006);
Dominick A. Ricci, D.O., 58 FR 51104, 51105 (1993); Bobby Watts,
D.O., 53 FR 11919, 11920 (1988); Frederick Marsh Blanton, 43 FR
27617.
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Pursuant to the Illinois Controlled Substances Act, a
``practitioner'' means ``a physician licensed to practice medicine in
all its branches . . . or other person licensed, registered, or
otherwise lawfully permitted by the United States or this State to
distribute [or] dispense . . . a controlled substance in the course of
professional practice or research.'' 720 Ill. Comp. Stat. Ann. 570/
102(kk) (2023). Further, the Illinois Controlled Substances Act
requires that ``[e]very person who manufactures, distributes, or
dispenses any controlled substances . . . must obtain a registration
issued by the Department of Financial and Professional Regulation in
accordance with its rules.'' Id. 570/302(a).\4\
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\4\ The Illinois Controlled Substances Act also authorizes the
Department of Financial and Professional Regulation to discipline a
practitioner holding a controlled substance license, stating that
``[a] registration under Section 303 to manufacture, distribute, or
dispense a controlled substance . . . may be denied, refused
renewal, suspended, or revoked by the Department of Financial and
Professional Regulation.'' Id. 570/304(a).
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Here, the evidence in the record is that Registrant currently lacks
authority to handle controlled substances in Illinois because both his
Illinois medical license and his Illinois controlled substance license
are suspended. As already discussed, a practitioner must hold a valid
controlled substance license to dispense a controlled substance in
Illinois. Thus, because Registrant lacks authority to handle controlled
substances in Illinois, 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.
FM6860818 issued to David H. Marcowitz, D.O. 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 David H. Marcowitz, D.O., to
renew or modify this registration, as well as any other pending
application of David H. Marcowitz, D.O., for additional registration in
Illinois. 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. 2023-17386 Filed 8-11-23; 8:45 am]
BILLING CODE 4410-09-P
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