Barry Backiewicz, D.D.S.; Decision and Order

Issuing agencies

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<title>Federal Register, Volume 91 Issue 205 (Monday, October 26, 2026)</title>
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[Federal Register Volume 91, Number 205 (Monday, October 26, 2026)]
[Notices]
[Pages 67333-67334]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-21725]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Barry Backiewicz, D.D.S.; Decision and Order

    On April 7, 2026, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Barry Backiewicz, 
D.D.S., of Gahanna, Ohio (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. BB2606436, 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 Ohio, 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 July 31, 2026. 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 68474, 68476-79 (2019).
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    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 CFR 1301.43). Here, Registrant did not request a hearing, 
and the Agency finds him to be in default. RFAA, at 2.\2\ ``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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    \2\ Based on the Government's submissions in its RFAA dated July 
21, 2026, the Agency finds that service of the OSC on Registrant was 
adequate. The RFAA's included Declaration from a DEA Diversion 
Investigator (DI) indicates that on or about April 9, 2026, the DI 
along with a second DI traveled to Registrant's registered address 
to attempt personal service of the OSC, which was unsuccessful. 
RFAAX 3, at 2. On the same date, the DI mailed a copy of the OSC to 
Registrant's registered address and emailed a copy of the OSC to 
Registrant's registered email address, which received successful 
delivery confirmation. Id. at 2-3; see also id., Attachments B-D. 
Here, the Agency finds that Registrant was successfully served the 
OSC by email and 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. See Mohammed S. 
Aljanaby, M.D., 82 FR 34552, 34552 (2017) (finding that service by 
email satisfies due process where the email is not returned as 
undeliverable and other methods have been unsuccessful); Emilio 
Luna, M.D., 77 FR 4829, 4830 (2012) (same).
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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. at 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 deemed admitted. According to the 
OSC, on December 31, 2023, Registrant's Ohio dental license expired by 
its own terms. RFAAX 2, at 2. According to Ohio online records, of 
which the Agency takes official notice,\3\ Registrant's Ohio dental 
license is expired. eLicense Ohio Professional Licensure License 
Lookup, <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 practice dentistry in Ohio, the state in 
which he is registered with DEA.\4\
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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).
    \4\ 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.'' The material fact here is 
that Registrant, as of the date of this Order, is not licensed to 
practice dentistry in Ohio. 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 Office of the 
Administrator, Drug Enforcement Administration, at 
<a href="/cdn-cgi/l/email-protection#5d39383c733c393932733c2929322f3338242e1d39383c733a322b"><span class="__cf_email__" data-cfemail="2e4a4b4f004f4a4a41004f5a5a415c404b575d6e4a4b4f00494158">[email&#160;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. 802(21).''). The Agency has applied these principles 
consistently. See, e.g., Lawrence Rudolph, D.M.D., 89 FR 79310 (2024); 
Henry-Norbert O. Ndekwe, M.D., 90 FR 15990 (2025); Benson Sergiles, 
P.A., 90 FR 32016 (2025).\5\
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    \5\ 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., Elias Garcia Garcia, P.A., 90 FR 31242 
(2025); Jason Weakley, R.N., A.P.R.N., 90 FR 10085 (2025); Khursheed 
Haider, M.D., 90 FR 21950 (2025).
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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 Sec.  
2925.11(A), (B)(1)(d) (2025). Further, a `` `[l]icensed

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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. Sec.  4729.01(I). Ohio 
statute further defines an authorized prescriber as ``[a] dentist 
licensed under Chapter 4715. of the [Ohio] Revised Code.'' Id. Sec.  
4729.01(I)(1). Additionally, Ohio law permits ``[a] 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. Sec.  
3719.06(A)(1)(a)-(b).
    Here, the undisputed evidence in the record is that Registrant 
lacks authority to practice dentistry in Ohio. As discussed above, an 
individual must be a licensed health professional authorized to 
prescribe drugs in order to handle controlled substances in Ohio. Thus, 
because Registrant is not a licensed health professional authorized to 
prescribe drugs in Ohio, and, therefore, is not authorized 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. 
BB2606436 issued to Barry Backiewicz, D.D.S. 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 Barry Backiewicz, D.D.S., to 
renew or modify this registration, as well as any other pending 
application of Barry Backiewicz, D.D.S., for additional registration in 
Ohio. This Order is effective November 25, 2026.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
October 19, 2026, by DEA Administrator Terrance C. Cole. 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. 2026-21725 Filed 10-23-26; 8:45 am]
BILLING CODE 4410-09-P


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