Notice2024-31325
Matthew Okeke, M.D.; Decision and Order
Primary source
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Published
December 30, 2024
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 89 Issue 249 (Monday, December 30, 2024)</title>
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[Federal Register Volume 89, Number 249 (Monday, December 30, 2024)]
[Notices]
[Pages 106584-106585]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-31325]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Matthew Okeke, M.D.; Decision and Order
On February 14, 2024, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Matthew Okeke, M.D.,
of Las Vegas, Nevada (Registrant). Request for Final Agency Action
(RFAA), Exhibit (RFAAX) 1, at 1, 3. The OSC proposed the revocation of
Registrant's Certificate of Registration No. FO4173845, alleging that
Registrant's registration should be revoked because Registrant is
``currently without authority to handle controlled substances in
Nevada, 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 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 CFR1301.43). 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
April 16, 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 February 26, 2024, the
DI left a copy of the OSC at Registrant's registered address. RFAAX
2, at 2. On the same date, the DI emailed a copy of the OSC to
Registrant's registered email address and to Registrant's attorney.
Id. at 2; see also id., Attachment C. On February 27, 2024, the OSC
was mailed to Registrant's residential address, with delivery
confirmed on March 2, 2024. Id. at 2; see also id., Attachments D-E.
Finally, on February 28, 2024, the DI left another copy of the OSC
at Registrant's residential address. Id. at 2-3. The Agency finds
that Registrant was successfully served the OSC by email on February
26, 2024, as the emails to Registrant's registered email address and
to Registrant's attorney were not returned as undeliverable.
Mohammed S. Aljanaby, M.D., 82 FR 34,552, 34,552 (2017) (finding
that service by email satisfies due process where the email is not
returned as undeliverable and other methods have been unsuccessful).
The Agency finds that the DI's efforts to serve Registrant by other
means were ```reasonably calculated, under all the circumstances, to
apprise [Registrant] of the pendency of the action.''' Jones v.
Flowers, 547 U.S. 220, 226 (2006) (quoting Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Therefore, due
process notice requirements have been satisfied.
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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
[[Page 106585]]
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,
Registrant's Nevada medical license is inactive. RFAAX 1, at 1.
Further, on January 17, 2024, Registrant's Nevada controlled substance
registration was revoked. Id. at 2. According to Nevada online records,
of which the Agency takes official notice, Registrant's Nevada medical
license and Nevada controlled substance registration are currently
listed as ``Inactive-Probation'' and ``Inactive'' respectively.\2\
Nevada State Board of Medical Examiners Licensee Search, <a href="https://nsbme.us.thentiacloud.net/webs/nsbme/register">https://nsbme.us.thentiacloud.net/webs/nsbme/register</a> (last visited date of
signature of this Order); Nevada State Board of Pharmacy License
Verification, <a href="https://online.nvbop.org/#/verify">https://online.nvbop.org/#/verify</a>license (last visited
date of signature of this Order). Accordingly, the Agency finds that
Registrant is not licensed to practice medicine nor to handle
controlled substances in Nevada, 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#741011155a1510101b5a1500001b061a110d07341011155a131b02"><span class="__cf_email__" data-cfemail="046061652a6560606b2a6570706b766a617d77446061652a636b72">[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. Gonzales v. Oregon, 546 U.S. 243, 270
(2006) (``The Attorney General can register a physician to dispense
controlled substances `if the applicant is authorized to dispense . . .
controlled substances under the laws of the State in which he
practices.' . . . The very definition of a `practitioner' eligible to
prescribe includes physicians `licensed, registered, or otherwise
permitted, by the United States or the jurisdiction in which he
practices' to dispense controlled substances. Sec. 802(21).''). The
Agency has applied these principles consistently. See, e.g., James L.
Hooper, M.D., 76 FR 71371, 71372 (2011), pet. for rev. denied, 481 F.
App'x 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 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, M.D., 76 FR at 71,371-72;
Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 (2006); Dominick A.
Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby Watts, M.D., 53 FR
11,919, 11,920 (1988); Frederick Marsh Blanton, M.D., 43 FR at
27,617.
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According to Nevada statute, ``[e]very practitioner or other person
who dispenses any controlled substance within th[e] State or who
proposes to engage in the dispensing of any controlled substance within
th[e] State shall obtain biennially a registration issued by the
[Nevada State Board of Pharmacy] in accordance with its regulations.''
Nev. Rev. Stat. Sec. 453.226(1) (2023). Further, according to Nevada
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.'' Id. at Sec. 453.056(1).
Here, the undisputed evidence in the record is that Registrant
lacks authority to dispense controlled substances in Nevada because his
Nevada controlled substance registration is inactive. As discussed
above, an individual must hold a Nevada controlled substance
registration to dispense a controlled substance in Nevada. Thus,
because Registrant lacks authority to handle controlled substances in
Nevada, 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.
FO4173845, issued to Matthew Okeke, 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 Matthew Okeke, M.D., to renew
or modify this registration, as well as any other pending application
of Matthew Okeke, M.D., for additional registration in Nevada. This
Order is effective January 29, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on
December 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. 2024-31325 Filed 12-27-24; 8:45 am]
BILLING CODE 4410-09-P
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