Daily Rules, Proposed Rules, and Notices of the Federal Government
On September 6, 2012, Administrative Law Judge Gail A. Randall issued the attached Recommended Decision. Neither party filed exceptions to the Recommended Decision.
Having reviewed the entire record, I have decided to adopt the ALJ's findings of fact, conclusions of law, and recommended order. Accordingly, I will order that Respondent's DEA Certificate of Registration be revoked and that any pending application to renew or modify his registration be denied.
Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration Number BL9651250, issued to Wayne D. Longmore, M.D., be, and it hereby is, revoked. I further order that any pending application of Wayne D. Longmore, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effective December 13, 2012.
Administrative Law Judge Gail A. Randall. The Deputy Assistant Administrator, Drug Enforcement Administration ("DEA" or "Government"), issued an Order to Show Cause ("Order") dated May 31, 2012, proposing to revoke the DEA Certificate of Registration, No. BL9651250, of Wayne D. Longmore, M.D. ("Respondent"), as a practitioner, pursuant to 21 U.S.C. 824(a)(4) (2006), and deny any pending applications for renewal or modification of such registration pursuant to 21 U.S.C. 823(f) (2006), because the continued registration of the Respondent would be inconsistent with the public interest, as that term is used in 21 U.S.C. 823(f), and because the Respondent lacks the authority to practice medicine or handle controlled substances in the state of New York pursuant to 21 U.S.C. 823(f)
Specifically, the Order alleged that the New York State Department of Health, State Board for Professional Medical Conduct, ("New York Board") issued an Interim Order, effective April 3, 2012, in which Respondent agreed to the suspension of his medical license while the New York Board and DEA conducted investigations of his prescribing practices. [Order at 1]. The Order further alleged that the Respondent is without authority to handle controlled substances in the state of New York, the state in where the Respondent is registered with the DEA, and thus the DEA must revoke Respondent's DEA registration based on his lack of authority to handle controlled substances in the state of New York. [
On July 17, 2012, the Respondent, through counsel, filed a request for a hearing in the above-captioned matter. That same day, the Court issued an Order for Prehearing Statements.
On July 20, 2012, the Government filed its Government's Motions for Summary Judgment and to Stay the Proceedings ("Government's Motion"). Therein, the Government requested that the Court summarily revoke Respondent's DEA registration because the Respondent's New York state medical license is under a temporary suspension order. [Government's Motion at 1]. Alternatively, the Government requested that the Court terminate Respondent's DEA registration because Respondent abandoned his DEA registered location and thus, is not in compliance with 21 U.S.C. 822(e) (2006). [
The Government stated that Respondent was no longer authorized to handle controlled substances in New York, the state where the Respondent is registered with the DEA. [
On July 24, 2012, the Court issued an Order for Respondent's Response to the Government's Motion for Summary Judgment.
On July 24, 2012, Respondent filed a letter addressed to the Court ("Respondent's Request"). Therein, Respondent requested that "this matter be stayed entirely pending resolution of the criminal charges." [Respondent's Request at 1].
On July 25, 2012, the Court issued an Order Denying Respondent's Request to Stay Proceedings and further ordered Respondent to file a response, if he so chooses, to the Government's Motion for Summary Judgment.
On July 30, 2012, the Respondent filed Respondent's Response to the Government's Motion for Summary Judgment ("Response"). Therein, the Respondent argues that the revocation or termination of Dr. Longmore's DEA registration is "premature" because the outcome of the pending criminal matter against Dr. Longmore has not yet been resolved. [Response at 1]. Additionally, Respondent argues that Dr. Longmore has not committed any acts that would render his continued DEA registration to be inconsistent with the public interest. [Response at 2]. Lastly, the Respondent argues that the closing of Dr. Longmore's medical practice, as a result of his consent order with the New York Board, should not form the basis for termination of his DEA registration. [
For the reasons set forth below, I will grant the Government's Motion and recommend that the Administrator revoke the Respondent's DEA Certificate of Registration. But, I note that, pursuant to 21 C.F.R. SS 1301.13(a) (2012), the Respondent may apply for a new DEA Certificate of Registration at any time.
The DEA will not maintain a controlled substances registration if the registrant is without state authority to handle controlled substances in the state in which the registrant practices. The Controlled Substances Act ("CSA") provides that obtaining a DEA registration is conditional on holding a state license to handle controlled substances.
In this case, the Respondent does not dispute that he currently lacks state authority to handle controlled substances. However, the Respondent argues that his temporary discontinuance of practicing medicine in New York, under the Interim Order, is not sufficient to require the revocation of his DEA registration. Respondent argues that his DEA registration should not be revoked because he voluntarily relinquished his right to practice medicine in New York while a criminal investigation is pending against him. [Response at 1-2]. However, the Interim Order effectively suspends the Respondent's license to practice medicine in New York until 30 days after the final disposition of the open criminal investigation against the Respondent. Regardless of the merit of Respondent's pending criminal case, he currently lacks the necessary state authority to practice medicine and to
Next, Respondent argues that his continued DEA registration would not be inconsistent with the public interest and therefore, his DEA registration should not be revoked. [Response at 2-3]. Respondent argues that the factors to be considered in determining whether an application for registration should be denied or revoked under 21 U.S.C. 824(a)(4) weigh in favor of maintaining the Respondent's DEA registration because he has not issued any prescriptions that are inconsistent with the public interest. [
While the Respondent may have raised genuine disputes of fact, concerning the allegations in the Government's Order to Show Cause, those disputes are immaterial in light of the Respondent's current lack of state registration. Indeed, the CSA and Agency precedent make clear that as a prerequisite to registration the Respondent must have state authority to handle controlled substances, and that without such authority all other issues before this forum are moot.
A registrant's DEA registration terminates as a matter of law when the registrant ceases to practice at his registered location.
The Respondent does not dispute that he no longer is working at his DEA registered location. However, the Respondent argues that the closure of his medical practice at 104 Mill Road Woodstock, N.Y. is the result of the consensual Interim Order issued by the New York Board and cannot form the basis for a termination of his DEA registration. [Response at 3].
In this case, there is insufficient evidence to support a finding that the Respondent has permanently ceased the practice of medicine and therefore, the Court declines to address the issue of whether or not the Respondent's DEA registration terminates by operation of law.
Any person who is required to register with the DEA may apply for registration at any time. 21 CFR 1301.13(a) (2012) ("Any person who is required and who is not registered may apply for registration at any time. No person required to be registered shall engage in any activity for which registration is required until the application for registration is granted and a Certificate of Registration is issued by the Administrator to such person").
Respondent requests that he be able to reapply for a Certificate of Registration with the DEA, when, and if, his medical license becomes active. [Response at 3].
The Respondent is permitted to reapply for a Certificate of Registration with the DEA at any time in the future. 21 CFR 1301.13(a). However, the Respondent will not be permitted to engage in activity for which a registration is required until his application is granted by the DEA.
Consequently, there is no genuine dispute of material fact regarding the Respondent's lack of state authority to handle controlled substances. Thus, summary judgment for the Government is appropriate. It is well settled that when there is no question of material fact involved, there is no need for a plenary, administrative hearing.
Accordingly, I hereby grant the Government's Motion for Summary Judgment.
I also forward this case to the Deputy Administrator for final disposition. I recommend that the Respondent's DEA Certificate of Registration, Number BL9651250, be revoked.