[Federal Register Volume 75, Number 157 (Monday, August 16, 2010)]
[Notices]
[Pages 49950-49951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20237]
[[Page 49950]]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Robert Wayne Mosier, D.O.; Denial of Application
On September 30, 2009, the Deputy Assistant Administrator, Office
of Diversion Control, Drug Enforcement Administration, issued an Order
to Show Cause to Robert Wayne Mosier, D.O. (Respondent), of Talihina,
Oklahoma. The Show Cause Order proposed the denial of Respondent's
application for a DEA Certificate of Registration, as a practitioner,
on the ground that he is ``currently without authority to handle
controlled substances or practice medicine in the State of Oklahoma,
the state in which [he is] registered with DEA.'' Show Cause Order at
1.
More specifically, the Show Cause Order alleged that Respondent had
possessed a DEA Certificate of Registration, BM5225289, which expired
by its terms on January 31, 2009, and that because he did not file an
application for renewal of his DEA registration until April 23, 2009,
his renewal application ``is treated as a new application for DEA
registration.'' Id. The Order further alleged that ``[a]s a result of
actions by the Oklahoma State Board of Osteopathic Examiners and the
Oklahoma Bureau of Narcotics and Dangerous Drugs,'' Respondent lacked
the authority to handle controlled substances or to practice medicine
in Oklahoma Id. The Order further explained that Respondent had the
right to request a hearing on the allegations or to submit a statement
in lieu of a hearing, the procedures for doing so, and the consequences
if he failed to do so. Id.
On October 6, 2009, the Order to Show Cause was served on
Respondent by certified mail as evidenced by the signed return receipt
card. Since that time, neither Respondent, nor any one purporting to
represent him, has requested a hearing. Because more than thirty days
have passed since Respondent was served with the Show Cause Order, and
Respondent has not requested a hearing (or submitted a written
statement), I conclude that Respondent has waived his rights to do
either. 21 CFR 1301.43(d). I therefore enter this Decision and Final
Order based on relevant material contained in the record and make the
following findings.
Findings
Respondent was previously registered with DEA to dispense
controlled substances in schedules II through V as a practitioner, and
was assigned Certificate of Registration, BM5225289, which expired by
its terms on January 31, 2009. Ex. H. Although the DEA mailed
Respondent a renewal notice on December 10, 2008 and a delinquency
notice on April 7, 2009, the Agency did not receive a renewal
application from Respondent until April 23, 2009. Id.
Respondent holds a license to practice osteopathic medicine in the
State of Oklahoma. However, on June 18, 2009, the Oklahoma State Board
of Osteopathic Examiners found Respondent to be in violation of various
provisions of the Oklahoma Osteopathic Medicine Act and that ``in the
interest of public safety,'' Respondent's license ``shall be suspended
immediately'' and ``remain suspended until further order of the
Board.'' Order of Suspension with Conditions 2-3, State Board of
Osteopathic Examiners v. R. Wayne Mosier, D.O., No. 0712-0001 (June 18,
2009).
Respondent also held an Oklahoma Controlled Substance Registration.
However, on February 10, 2009, the Oklahoma State Bureau of Narcotics
and Dangerous Drugs (BNDD) issued an Order to Show Cause to Respondent
as to why it should not revoke Respondent's state controlled substance
registration. Order to Show Cause at 1 & 9, Oklahoma ex rel. Oklahoma
State Bureau of Narcotics and Dangerous Drugs Control v. Robert Wayne
Mosier, D.O., (No. SCH-2009-02). The Order alleged that, between 2007
and 2008, four of Respondent's patients had died from lethal overdoses
of controlled substances and that ``each of these patients had, not
long before their death, received prescriptions for various controlled
dangerous substances from Respondent.'' Id. at 4.
The BNDD also alleged that Respondent had ``failed to guard against
the diversion of controlled dangerous substances,'' that he ``dispensed
controlled dangerous substances to patients without a legitimate
medical need,'' that he treated individuals addicted to controlled
substances for addiction without being licensed to provide a narcotic
treatment program, that he self-prescribed controlled substances, that
he failed to maintain accurate dispensing records, and that his office
lacked the proper security controls to store controlled substances. Id.
at 4-8.
On April 7, 2009, following a proceeding before a state
Administrative Law Judge, BNDD immediately revoked Respondent's state
controlled substance registration. Final Order at 2, Oklahoma ex rel.
Oklahoma State Bureau of Narcotics and Dangerous Drugs Control v.
Robert Wayne Mosier, D.O. The BNDD Order provided that Respondent was
further ``prohibited from making application for a[] [state]
registration for a period of at least one (1) year.'' Id. A printout
from the BNDD Web site dated January 13, 2010, indicates that
Respondent had undergone disciplinary action and that the status of his
registration is ``inactive.'' Ex. E.
Discussion
DEA does not have statutory authority to grant or maintain a DEA
registration if the applicant or registrant lacks authority to handle
controlled substances under the laws of the State in which he is
engaged in professional practice. See 21 U.S.C. 802(21) (defining the
term ``practitioner'' as a person ``licensed, registered, or otherwise
permitted, by the United States or the jurisdiction in which he
practices * * * to distribute, dispense * * * [or] administer * * * a
controlled substance''); id. Sec. 823(f) (``The Attorney General shall
register practitioners * * * to dispense * * * controlled substances *
* * if the applicant is authorized to dispense * * * controlled
substances under the laws of the State in which he practices.''); id.
Sec. 824(a)(3) (authorizing revocation ``upon a finding that the
registrant has had his State license or registration suspended,
revoked, or denied by competent State authority and is no longer
authorized by State law to engage in the distribution[] or dispensing
of controlled substances''). DEA has consistently held that holding
authority under state law is a prerequisite for obtaining a
registration under the CSA. See Worth S. Wilkinson, 71 FR 30173 (2006);
Stephen J. Graham, 69 FR 11661 (2004); Dominick A. Ricci, 58 FR 51104
(1993); Bobby Watts, 53 FR 11919 (1988).
Moreover, the Agency has held that revocation is warranted (and
denied applications) even in those instances where a practitioner's
state license has only been suspended, and there is the possibility of
reinstatement. See Bourne Pharmacy, 72 FR 18273, 18274 (2007); Alton E.
Ingram, Jr., 69 FR 22562 (2004); Anne Lazar Thorn, 62 FR 12847 (1997)
(``the controlling question is not whether a practitioner's license to
practice medicine in the state is suspended or revoked; rather, it is
whether the Respondent is currently authorized to handle controlled
substances''). As Respondent clearly lacks authority to handle
controlled substances under Oklahoma law, the State in which he has
applied for registration, his application will be denied.
[[Page 49951]]
Order
Pursuant to the authority invested in me by 21 U.S.C. 823(f), as
well as by 28 CFR 0.100(b) and 0.104, I hereby order that the
application of Robert Wayne Mosier, M.D., for a DEA Certificate of
Registration as a practitioner be, and it hereby is, denied. This order
is effective immediately.
Dated: July 30, 2010.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 2010-20237 Filed 8-13-10; 8:45 am]
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