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. § 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. § 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.

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.