Notice2024-24570
Dale Fitzpatrick, M.D.; Decision and Order
Primary source
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Published
October 23, 2024
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 89 Issue 205 (Wednesday, October 23, 2024)</title>
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[Federal Register Volume 89, Number 205 (Wednesday, October 23, 2024)]
[Notices]
[Pages 84623-84624]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-24570]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Dale Fitzpatrick, M.D.; Decision and Order
On July 19, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Dale Fitzpatrick,
M.D., of Modesto, CA (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. BF0553455, alleging 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 California, the
state in which [he is] registered with DEA.'' Id. at 2 (citing 21
U.S.C. 824(a)(3)).\1\
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\1\ According to Agency records, Registrant's registration
expired on September 30, 2024. The fact that a registrant allows his
registration to expire during the pendency of an OSC does not impact
the Agency's jurisdiction or prerogative under the Controlled
Substances Act (CSA) to adjudicate the OSC to finality. Jeffrey D.
Olsen, M.D., 84 FR 68,474, 68,476-79 (2019).
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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.\2\ ``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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\2\ Based on the Government's submissions in its RFAA dated
April 18, 2024, the Agency finds that service of the OSC on
Registrant was adequate. The included declaration from a DEA
Diversion Investigator (DI) indicates that on August 10, 2023, the
OSC was successfully delivered to Registrant's registered address,
though an individual who was not the Registrant signed to confirm
the receipt of the OSC. RFAAX 3, at 2, Attachment A. Further, the
DI's Declaration indicates that on August 29, 2023, the OSC was
successfully delivered to Registrant's home address, however, it was
never signed for. Id. at 2, Attachment B. Finally, the DI's
Declaration indicates that on December 8, 2023, the OSC was emailed
to Registrant's registered email address. Id. at 2, Attachment C.
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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] 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,
effective January 6, 2023, Registrant surrendered his California
physician and surgeon license. RFAAX 2, at 1. According to California
online records, of which the Agency takes official notice, Registrant's
California physician and surgeon license remains surrendered.\3\
California DCA License Search, <a href="https://search.dca.ca.gov">https://search.dca.ca.gov</a> (last visited
date of signature of this Order). Accordingly, the Agency finds that
Registrant is not licensed to practice as a physician in California,
the state in which he is registered with DEA.
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\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, 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#c3a7a6a2eda2a7a7aceda2b7b7acb1ada6bab083a7a6a2eda4acb5"><span class="__cf_email__" data-cfemail="b2d6d7d39cd3d6d6dd9cd3c6c6ddc0dcd7cbc1f2d6d7d39cd5ddc4">[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, M.D., 76 FR 71,371, 71,372 (2011), pet. for
rev. denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh Blanton,
M.D., 43 FR 27,616, 27,617 (1978).\4\
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\4\ 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 at 71,371-72; Sheran
Arden Yeates, D.O., 71 FR 39,130, 39,131 (2006); Dominick A. Ricci,
D.O., 58 FR 51,104, 51,105 (1993); Bobby Watts, D.O., 53 FR 11,919,
11,920 (1988); Frederick Marsh Blanton, 43 FR at 27,617.
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According to California statute, ``dispense'' means ``to deliver a
controlled substance to an ultimate user or research subject by or
pursuant to the lawful order of a practitioner, including the
prescribing, furnishing, packaging, labeling, or compounding necessary
to prepare the substance for that delivery.'' Cal. Health & Safety Code
Sec. 11010 (West 2024). Further, a ``practitioner'' means a person
``licensed, registered, or otherwise permitted, to distribute,
dispense, conduct research with respect to, or administer, a controlled
substance in the course of professional practice or research in [the]
state.'' Id. Sec. 11026(c).
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice as a physician in California. As
discussed above, an individual must be a licensed practitioner to
dispense a controlled substance in California. Thus, because Registrant
currently lacks authority to practice as a physician in California and,
therefore, is not currently authorized to handle controlled substances
in California, 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.
BF0553455 issued to Dale Fitzpatrick, 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 Dale Fitzpatrick, M.D., to
renew or modify this registration, as well as any other pending
application of Dale Fitzpatrick, M.D., for additional registration in
California. This Order is effective November 22, 2024.
Signing Authority
This document of the Drug Enforcement Administration was signed on
October 15, 2024, by Administrator
[[Page 84624]]
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. 2024-24570 Filed 10-22-24; 8:45 am]
BILLING CODE 4410-09-P
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