Notice2024-17715
Stephen Matthews, M.D.; Decision and Order
Primary source
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Published
August 9, 2024
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 89 Issue 154 (Friday, August 9, 2024)</title>
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[Federal Register Volume 89, Number 154 (Friday, August 9, 2024)]
[Notices]
[Pages 65398-65399]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-17715]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Stephen Matthews, M.D.; Decision and Order
On July 27, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Stephen Matthews,
M.D. (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. FM0055841 at the registered address of
11700 West 2nd Place, Suite 350, Medical Plaza 2, Lakewood, CO 80228.
Id. at 1. The OSC alleged that Registrant's registration should be
revoked because Registrant is ``currently without authority to
prescribe, administer, dispense, or otherwise handle controlled
substances in the State of Colorado, 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. Id. (citing 21 CFR 1301.43). Here, Registrant did not request
a hearing. RFAA, at 2.\1\ ``A default, unless excused, shall be deemed
to constitute a waiver of the [registrant'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
September 21, 2023, the Agency finds that service of the OSC on
Registrant was adequate. Specifically, the Government's included
Notice of Service of Order to Show Cause asserts that Registrant was
personally served with the OSC on July 31, 2023; the Government
notes that ``[d]ue to law enforcement safety concerns upon service,
[Registrant] did not sign a Form DEA-12 acknowledging receipt of the
[OSC].'' RFAAX 1, 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
[[Page 65399]]
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), 1301.46. RFAA, at 3; see
also 21 CFR 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
May 22, 2023, the Colorado Medical Board issued a Non-Disciplinary
Interim Cessation of Practice Agreement, in which Registrant agreed to
not practice medicine in the State of Colorado. RFAAX 2, at 2; see
RFAAX 3. According to Colorado online records, of which the Agency
takes official notice, Registrant's medical license is under an
``Active--Restricted'' status with a stipulation that Registrant
``Cannot Practice.'' \2\ Colorado Division of Professions and
Occupations License Search, <a href="https://apps2.colorado.gov/dora/licensing/lookup/licenselookup.aspx">https://apps2.colorado.gov/dora/licensing/lookup/licenselookup.aspx</a> (last visited date of signature of this
Order). Accordingly, the Agency finds that Registrant is not licensed
to practice medicine in Colorado, 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#cbafaeaae5aaafafa4e5aabfbfa4b9a5aeb2b88bafaeaae5aca4bd"><span class="__cf_email__" data-cfemail="056160642b6461616a2b6471716a776b607c76456160642b626a73">[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, 71372 (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). 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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According to Colorado statute, ``dispense'' means ``to deliver a
controlled substance to an ultimate user, patient, or research subject
by or pursuant to the lawful order of a practitioner, including the
prescribing, administering, packaging, labeling, or compounding
necessary to prepare the substance for that delivery.'' Colo. Rev.
Stat. section 18-18-102(9) (2024). Further, a ``practitioner'' means a
``physician . . . or other person licensed, registered, or otherwise
permitted, by this state, to distribute, dispense, conduct research
with respect to, administer, or to use in teaching or chemical
analysis, a controlled substance in the course of professional practice
or research.'' Id. section 18-18-102(29).
Here, the undisputed evidence in the record is that Registrant
lacks authority to practice medicine in Colorado. As discussed above a
physician must be a licensed practitioner permitted to dispense a
controlled substance in Colorado. Thus, because Registrant lacks
authority to practice medicine in Colorado and, therefore, is not
authorized to handle controlled substances in Colorado, 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.
FM0055841 issued to Stephen Matthews, 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 Stephen Matthews, M.D., to
renew or modify this registration, as well as any other pending
application of Stephen Matthews, M.D., for additional registration in
Colorado. This Order is effective September 9, 2024.
Signing Authority
This document of the Drug Enforcement Administration was signed on
August 2, 2024, 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. 2024-17715 Filed 8-8-24; 8:45 am]
BILLING CODE 4410-09-P
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