Notice2024-22205
Michael Fletcher, M.D.; Decision and Order
Primary source
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Published
September 27, 2024
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 89 Issue 188 (Friday, September 27, 2024)</title>
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[Federal Register Volume 89, Number 188 (Friday, September 27, 2024)]
[Notices]
[Pages 79313-79314]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-22205]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Michael Fletcher, M.D.; Decision and Order
On June 29, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Michael Fletcher,
M.D., of Cincinnati, OH (Registrant). Request for Final Agency Action
(RFAA), Exhibit (RFAAX) 1, at 1, 4. The OSC proposed the revocation of
Registrant's Certificate of Registration No. FF0291005, alleging that
Registrant's registration should be revoked because Registrant is
``currently without authority to handle controlled substances in the
State of Ohio, the state in which [he is] registered with DEA.'' RFAAX
1, 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. at 2-3 (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/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
November 16, 2023, the Agency finds that service of the OSC on
Registrant was adequate. Specifically, the RFAA's included exhibits
indicate that Registrant was served a copy of the OSC via email on
July 7, 2023, and Registrant acknowledged receipt on July 9, 2023.
RFAAX 3-4.
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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), 1301.46. RFAA, at 1; 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,
effective May 11, 2023, the State Medical Board of Ohio issued an order
prohibiting Registrant from prescribing, dispensing, or otherwise
professionally utilizing controlled substances. RFAAX 1, at 2.
According to Ohio online records, of which the Agency takes official
notice,\2\ Registrant's Ohio medical license is active but ``limited
and restricted by a prohibition against prescribing, dispensing, [and/
or] utilizing controlled substances in the course of practice.''
eLicense Ohio Professional Licensure License Look-Up, <a href="https://elicense.ohio.gov/oh_verifylicense">https://elicense.ohio.gov/oh_verifylicense</a> (last visited date of signature of
this Order). Accordingly, the Agency finds that Registrant is not
licensed to handle controlled substances in Ohio, 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 Office of the Administrator, Drug
Enforcement Administration at <a href="/cdn-cgi/l/email-protection#82e6e7e3ace3e6e6edace3f6f6edf0ece7fbf1c2e6e7e3ace5edf4"><span class="__cf_email__" data-cfemail="afcbcace81cecbcbc081cedbdbc0ddc1cad6dcefcbcace81c8c0d9">[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
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,
11120 (1988); Frederick Marsh Blanton, 43 FR 27617.
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According to Ohio statute, ``[n]o person shall knowingly obtain,
possess, or use a controlled substance or a controlled substance
analog,'' except pursuant to a ``prescription issued by a licensed
health professional authorized to prescribe drugs if the prescription
was issued for a legitimate medical purpose.'' Ohio Rev. Code Ann.
sections 2925.11(A), (B)(1)(d) (West 2024). Further, a ``[l]icensed
health professional authorized to prescribe drugs'' or ``prescriber''
means ``an individual who is authorized by law to prescribe drugs or
dangerous drugs or drug therapy related devices in the course of the
individual's professional practice.'' Id. section 4729.01(I). The
definition further provides a limited list of authorized prescribers,
the relevant provision of which is ``[a] physician authorized under
Chapter 4731[ ] of the Revised Code to practice medicine and surgery,
osteopathic medicine and surgery, or podiatric medicine and surgery.''
Id. section 4729.01(I)(5). Additionally, Ohio law permits ``[a]
[[Page 79314]]
licensed health professional authorized to prescribe drugs, if acting
in the course of professional practice, in accordance with the laws
regulating the professional's practice'' to prescribe or administer
schedule II, III, IV, and V controlled substances to patients. Id.
section 3719.06(A)(1)(a)-(b).
Here, the undisputed evidence in the record is that although
Registrant is currently authorized to practice medicine in Ohio,
Registrant is not authorized to handle controlled substances in
accordance with his practice of medicine. Thus, because Registrant
lacks authority to handle controlled substances in Ohio, 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.
FF0291005 issued to Michael Fletcher, 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 Michael Fletcher, M.D., to
renew or modify this registration, as well as any other pending
application of Michael Fletcher, M.D., for additional registration in
Ohio. This Order is effective October 28, 2024.
Signing Authority
This document of the Drug Enforcement Administration was signed on
September 20, 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. 2024-22205 Filed 9-26-24; 8:45 am]
BILLING CODE 4410-09-P
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</html>Indexed from Federal Register on September 27, 2024.
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