Monica Ferguson, F.N.P., R.N.; Decision and Order, 73778-73780 [2020-25529]
Download as PDF
<![CDATA[
73778
Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Notices
II. Findings of Fact
A. Registrant’s DEA Registration
Registrant is the holder of DEA
Certificate of Registration No.
FE7288497 at the registered address of
3702 S. State Street, Suite 117, Salt Lake
City 84115. RFAAX 2 (Certification of
Registration History). Pursuant to this
registration, Registrant is authorized to
dispense controlled substances in
schedules II–V as a retail pharmacy. Id.
B. The Status of Registrant’s State
License
Registrant was previously the holder
of a Utah Pharmacy—Class B license.
RFAAX 3 (Verification of Utah
Licensure). Registrant’s Utah pharmacy
license expired on September 30, 2019.
Id. A certified Verification of Utah
Licensure dated November 13, 2019,
from the State of Utah, Department of
Commerce, Division of Occupational
and Professional Licensing, shows the
status of Registrant’s Utah pharmacy
license as ‘‘Denied.’’ Id.
According to Utah’s online records, of
which I take official notice, Registrant’s
pharmacy license status is still listed as
‘‘Denied.’’ 1 https://secure.utah.gov/llv/
search/ (last visited October
27, 2020). Utah’s online records further
show that Registrant’s Controlled
Substance License also expired on
September 30, 2019, and the license
status is also listed as ‘‘Denied.’’ Id.
Accordingly, I find that Registrant
does not have a valid pharmacy license
or controlled substance license in Utah,
the state in which Registrant is
registered with DEA.
III. Discussion
Pursuant to 21 U.S.C. 824(a)(3), the
Attorney General is authorized to
suspend or revoke a registration issued
under section 823 of the Controlled
Substances Act (hereinafter, CSA),
‘‘upon a finding that the registrant . . .
has had his State license or registration
1 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 my finding by filing a
properly supported motion for reconsideration
within fifteen calendar days of the date of this
Order. Any such motion shall be filed with the
Office of the Administrator and a copy shall be
served on the Government. In the event Registrant
files a motion, the Government shall have fifteen
calendar days to file a response. Any such motion
and response may be filed and served by email
(dea.addo.attorneys@dea.usdoj.gov).
VerDate Sep<11>2014
19:40 Nov 18, 2020
Jkt 253001
suspended . . . [or] revoked . . . by
competent State authority and is no
longer authorized by State law to engage
in the . . . dispensing of controlled
substances.’’ A pharmacy is a
‘‘practitioner’’ under the CSA. 21 U.S.C.
802(21). With respect to a practitioner,
the 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. See, e.g., Palafox
Pharmacy, 84 FR 18,320 (2019); James
L. Hooper, M.D., 76 FR 71,371 (2011),
pet. for rev. denied, 481 Fed. Appx. 826
(4th Cir. 2012); Roots Pharmaceuticals,
Inc., 76 FR 51,430 (2011); Bourne
Pharmacy, Inc., 72 FR 18,273 (2007);
Frederick Marsh Blanton, M.D., 43 FR
27,616 (1978).
This rule derives from the text of two
provisions of the CSA. First, Congress
defined the term ‘‘practitioner’’ to mean
‘‘a physician, . . . pharmacy, . . . 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(f). Because Congress has
clearly mandated that a practitioner
possess State authority in order to be
deemed a practitioner under the CSA,
the 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., Palafox Pharmacy, 84 FR at 18,321;
James L. Hooper, 76 FR at 71,371–72;
Roots Pharmaceuticals, Inc., 76 FR at
51,430; Bourne Pharmacy, Inc., 72 FR at
18,274; Frederick Marsh Blanton, 43 FR
at 27,617.
As found above, Registrant’s state
pharmacy and controlled substance
licenses have expired, and thus, it no
longer holds authority in Utah, the state
in which it is registered with DEA, to
dispense controlled substances. See
Utah Code Ann. §§ 58–17b–302(1)
(requiring a license to act as a
pharmacy); 58–37–6(2)(a)(i) (requiring a
license to dispense controlled
substances) (West 2020). As such,
Registrant is not qualified to dispense
PO 00000
Frm 00109
Fmt 4703
Sfmt 4703
controlled substances as a
‘‘practitioner.’’ I will, therefore, order
that Registrant’s DEA registration be
revoked.
IV. 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. FE7288497 issued to
Eco Apothecary, LLC. Further, pursuant
to 28 CFR 0.100(b) and the authority
vested in me by 21 U.S.C. 823(f), I
hereby deny any pending application of
Eco Apothecary, LLC to renew or
modify this registration, as well as any
pending application of Eco Apothecary,
LLC for registration in Utah. This Order
is applicable December 21, 2020.
Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020–25533 Filed 11–18–20; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 20–11]
Monica Ferguson, F.N.P., R.N.;
Decision and Order
On February 20, 2020, the Assistant
Administrator, Diversion Control
Division, Drug Enforcement
Administration (hereinafter, DEA or
Government), issued an Order to Show
Cause (hereinafter, OSC) to Monica
Ferguson, F.N.P., R.N., (hereinafter,
Respondent) of Lake Oswego, Oregon.
OSC, at 1. The OSC proposed the
revocation of Respondent’s Certificate of
Registration No. MF1358298. Id. It
alleged that Respondent is without
‘‘authority to handle controlled
substances in Oregon, the state in which
[Respondent is] registered with DEA.’’
Id. See also 21 U.S.C. 823(f) and
824(a)(3).
Specifically, the OSC alleged that the
Oregon State Board of Nursing
(hereinafter, Board) revoked
Respondent’s RN license number
099000287RN and her NP–PP Family
license number 200650008NP effective
on December 31, 2019. Id. This
revocation, according to the OSC,
demonstrated that Respondent lacks
authority to handle controlled
substances in Oregon. Id. (citing 21
U.S.C. 802(21), 823(f), and 824(a)(3)).
The OSC notified Respondent of the
right to request a hearing on the
allegations or to submit a written
statement, while waiving the right to a
hearing, the procedures for electing each
option, and the consequences for failing
E:\FR\FM\19NON1.SGM
19NON1
Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Notices
to elect either option. Id. at 2 (citing 21
CFR 1301.43). The OSC also notified
Respondent of the opportunity to
submit a corrective action plan. Id. at 3
(citing 21 U.S.C. 824(c)(2)(C)).
By letter dated March 11, 2020,
Respondent, pro se, timely requested a
hearing.1 Hearing Request, at 1. In the
Hearing Request, Respondent requested
that DEA defer proceedings on the
proposed revocation of her DEA
registration until there is a decision
from the Oregon Appellate Court on her
March 3, 2020, request for an immediate
remand or reversal of the Board’s
revocation of her state licenses. Id. at 2.
Respondent also requested an extension
of time to prepare for the DEA
revocation proceedings in light of a
number of delineated personal
circumstances which Respondent
described as ‘‘extreme hardship[s].’’ Id.
at 1.
The Office of Administrative Law
Judges put the matter on the docket and
assigned it to Administrative Law Judge
Mark M. Dowd (hereinafter, ALJ). The
ALJ issued a Briefing Schedule for Lack
of State Authority Allegations, dated
March 16, 2020. The Government timely
complied with the Briefing Schedule by
filing a Motion for Summary Disposition
on March 20, 2020, (hereinafter,
Government Motion or Govt Motion).
Order Granting the Government’s
Motion for Summary Disposition, and
Recommended Rulings, Findings of
Fact, Conclusions of Law, and
Recommended Decision of the
Administrative Law Judge, dated May 5,
2020, (hereinafter, Summary Disposition
or SD), at 3. In its Motion, the
Government submitted evidence that
Respondent’s Oregon nurse practitioner
licenses had been revoked and that she
therefore lacked authority to handle
controlled substances in Oregon, the
state in which she is registered with
DEA. Govt Motion, at 1; SD, at 3. In light
of these facts, the Government argued
that DEA must revoke her registration.
Govt Motion, at 3.
On March 22, 2020, Respondent,
asked that the Government Motion be
denied, requested that the parties have
a hearing, and referenced her Hearing
Request, wherein she requested a
deferral of proceedings or additional
time to prepare evidence. See Email
from Respondent, dated March 22, 2020;
March 23, 2020 Order Granting
Respondent Extension to File Response
to Government’s Motion for Summary
Disposition (hereinafter, March 23, 2020
1 The
Hearing Request was deemed filed on
March 16, 2020. Briefing Schedule for Lack of State
Authority Allegations dated March 16, 2020, at 1.
I, thus, find that the Government’s service of the
OSC was adequate.
VerDate Sep<11>2014
19:40 Nov 18, 2020
Jkt 253001
Order), at 1. In the March 23, 2020
Order, the ALJ denied Respondent’s
request to defer or stay proceedings.
March 23, 2020 Order, at 3. The ALJ
then granted Respondent an extension
of time to respond to the Government
Motion. Id. at 5. The March 23, 2020
Order also clearly explained to
Respondent that the proceeding was
focused on ‘‘whether Respondent has
lost her state authority to handle
controlled substances,’’ and that ‘‘[t]he
underlying merits of the Respondent’s
loss of state licensure are irrelevant.’’ Id.
at 2.
On April 12, 2020, Respondent again
asked for an extension of time to
respond to the Government Motion. See
Email from Respondent dated April 12,
2020. On April 13, 2020, the ALJ
granted Respondent another extension
of time to respond and referred back to
the March 23, 2020 Order outlining the
relevant issues in dispute. Order
Granting Respondent’s Second
Extension to File Response to
Government’s Motion for Summary
Disposition, at 1. On May 4, 2020,
Respondent timely filed her ‘‘Response
to Motion for Summary Disposition’’
(hereinafter, Respondent’s Response or
Resp Response). In her Response,
Respondent challenged the method of
investigation and the merits of the
underlying state action, and requested a
stay of DEA’s proceedings while she
appealed the state action. See generally
Resp Response; SD, at 4. Regarding the
relevant issue—whether or not
Respondent had state authority to
handle controlled substances—
Respondent explicitly admitted that she
did not. Resp Response, at 8.
Respondent ‘‘agree[d] that she lacks the
authority to handle controlled
substance[s]’’ and further
‘‘acknowledge[d] that [her] license has
been revoked.’’ 2 Id. at 8, 9.
In the Summary Disposition, the ALJ
again denied the Respondent’s request
to stay DEA’s proceedings.3 SD, at 5–6.
The ALJ noted that, even though the
Respondent was actively engaged in
negotiating or appealing a State Board
decision, ‘‘[i]t is not DEA’s policy to
stay [administrative] proceedings . . .
while registrants litigate in other
forums.’’ SD, at 5 (citing Newcare Home
Health Servs., 72 FR 42,126, 42,127 n.2
(2007)). The ALJ then went on to grant
the Government Motion. Id. The ALJ
found that ‘‘no dispute exists over the
2 Respondent challenges the date her license was
revoked (indicating that it was actually revoked in
February 2020) and argues that the matter is still
pending because it is being appealed. Resp
Response, at 8–9.
3 I find no error in the ALJ’s decision to continue
DEA’s proceedings.
PO 00000
Frm 00110
Fmt 4703
Sfmt 4703
73779
fact that the Respondent currently lacks
state authority to handle controlled
substances in the State of Oregon, . . .
so there is no contested factual matter
that could be introduced at a hearing
that would, in the Agency’s view,
provide authority to allow the
Respondent to continue to hold her DEA
[registration].’’ SD, at 8–9. By letter
dated June 15, 2020, the ALJ certified
and transmitted the record to me for
final Agency action. In that letter, the
ALJ advised that neither party filed
exceptions. I find that the time period
to file exceptions has expired. See 21
CFR 1316.66.
I issue this Decision and Order based
on the entire record before me. 21 CFR
1301.43(e). I make the following
findings of fact.
Findings of Fact
Respondent’s DEA Registration
Respondent is the holder of DEA
Certificate of Registration No.
MF1358298 at the registered address of
18238 Tamaway Drive, Lake Oswego,
Oregon, 97034. Govt Motion Exhibit
(hereinafter, GX) 1, at 1. Pursuant to this
registration, Respondent is authorized to
dispense controlled substances in
schedules II through V as a ‘‘MLP–
NURSE PRACTITIONER–DW/30.’’ Id.
Respondent’s registration expired on
September 30, 2020.4 Id.
The Status of Respondent’s State
License
On December 31, 2019, the Oregon
State Board of Nursing issued a Final
Order revoking Respondent’s Nurse
Practitioner’s Certificate and Registered
Nurse License. GX 2, at 33. According
to the Final Order, Respondent
‘‘engaged in fraud or deceit in the
practice of nursing,’’ ‘‘fraud or deceit in
the admission to [the practice of
nursing],’’ ‘‘gross incompetence . . . [or]
gross negligence with regard to patient
care,’’ and ‘‘no less than six separate
instances of conduct derogatory to the
standards of nursing.’’ Id. Examples of
the misconduct that gave rise to these
findings include, but are not limited to,
Respondent operating a vehicle while
impaired by prescription narcotics and
possessing controlled substances that
were stored in unlabeled bottles and
that were not prescribed to her. Id. at 3–
4, 10–12, 17.
According to Oregon’s online records,
of which I take official notice,
4 The fact that Respondent allowed her
registration to expire during the pendency of an
OSC does not impact my jurisdiction or prerogative
under the Controlled Substances Act (hereinafter,
CSA) to adjudicate the OSC to finality. Jeffrey D.
Olsen, M.D., 84 FR 68,474 (2019).
E:\FR\FM\19NON1.SGM
19NON1
73780
Federal Register / Vol. 85, No. 224 / Thursday, November 19, 2020 / Notices
Respondent’s registered nurse and
family nurse practitioner licenses are
still revoked.5 Oregon State Board of
Nursing License Verification Search,
https://osbn.oregon.gov/
OSBNVerification/default.aspx (last
visited October 27, 2020). The Oregon
records show that the end date for each
of the license revocations is ‘‘Ongoing.’’
Id.
Respondent ‘‘agrees that she lacks the
authority to handle controlled
substance[s]’’ and further
‘‘acknowledges that [her] license has
been revoked.’’ 6 Resp Response, at 8, 9.
Based on the entire record before me, I
find that Respondent currently is not
licensed to engage in the practice of
nursing in Oregon, the State in which
Respondent is registered with DEA.
Discussion
Pursuant to 21 U.S.C. 824(a)(3), the
Attorney General is authorized to
suspend or revoke a registration issued
under section 823 of the CSA ‘‘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[7] of controlled
substances.’’ With respect to a
practitioner, the 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
5 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,
Respondent may dispute my 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 shall be filed
with the Office of the Administrator and a copy
shall be served on the Government. In the event
Respondent files a motion, the Government shall
have fifteen calendar days to file a response. Any
motion and response shall be filed and served by
email to the other party and to the Office of the
Administrator at dea.addo.attorneys@dea.usdoj.gov.
6 Respondent challenges the date her license was
revoked (indicating that it was actually revoked in
February 2020) and argues that the matter is still
pending because it is being appealed. Resp
Response, at 8–9. I find these arguments to be
irrelevant as Respondent is not currently authorized
to dispense controlled substances in Oregon.
7 ‘‘[D]ispense[ ] means to deliver a controlled
substance to an ultimate user . . . by, or pursuant
to the lawful order of, a practitioner, including the
prescribing and administering of a controlled
substance. . . .’’ 21 CFR 802(10).
VerDate Sep<11>2014
19:40 Nov 18, 2020
Jkt 253001
practitioner’s registration. See, e.g.,
James L. Hooper, M.D., 76 FR 71,371
(2011), pet. for rev. denied, 481 F. App’x
826 (4th Cir. 2012); Frederick Marsh
Blanton, M.D., 43 FR 27,616, 27,617
(1978).
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(f). Because Congress has
clearly mandated that a practitioner
possess state authority in order to be
deemed a practitioner under the CSA,
the 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, 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, 43 FR
at 27,617.
Moreover, because ‘‘the controlling
question’’ in a proceeding brought
under 21 U.S.C. 824(a)(3) is whether the
holder of a practitioner’s registration ‘‘is
currently authorized to handle
controlled substances in the state,’’
Hooper, 76 FR at 71,371 (quoting Anne
Lazar Thorn, 62 FR 12,847, 12,848
(1997)), the Agency has also long held
that revocation is warranted even where
a practitioner is still challenging the
underlying action. Bourne Pharmacy, 72
F 18,273, 18,274 (2007); Wingfield
Drugs, 52 FR 27,070, 27,071 (1987).
Thus, it is of no consequence that the
action is being appealed. What is
consequential is my finding that
Respondent is no longer currently
authorized to dispense controlled
substances in Oregon, the state in which
she is registered.
According to Oregon’s statute, ‘‘[a]
registered nurse licensed as a nurse
practitioner is authorized to prescribe
drugs for the use of and administration
to other persons if approval has been
given under [Oregon Revised Statutes]
678.390.’’ Or. Rev. Stat. Ann. § 678.375
PO 00000
Frm 00111
Fmt 4703
Sfmt 9990
(West 2020) (emphasis added). Oregon
Revised Statute § 678.390, provides that
‘‘[t]he Oregon State Board of Nursing
may authorize a licensed nurse
practitioner or licensed clinical nurse
specialist to write prescriptions,
including prescriptions for controlled
substances listed in schedules II, III, III
N, IV and V.’’ Or. Rev. Stat. Ann.
§ 678.390(1) (West 2020) (emphasis
added). The Oregon statute also states
that ‘‘[t]he authority to write
prescriptions or dispense prescription
drugs may be denied, suspended or
revoked by the Oregon State Board of
Nursing upon proof that the authority
has been abused.’’ 8 Id. Here, it is clear
that Respondent is no longer a licensed
nurse practitioner and it is thus clear
that she is no longer authorized to
prescribe, administer, or dispense
controlled substances in Oregon.
The undisputed evidence in the
record is that Respondent currently
lacks authority to practice nursing in
Oregon. As already discussed, a nurse
practitioner must be a licensed nurse
practitioner to prescribe or dispense a
controlled substance in Oregon. Thus,
because Respondent lacks authority to
practice nursing in Oregon and,
therefore, is not authorized to handle
controlled substances in Oregon,
Respondent is not eligible to maintain a
DEA registration. Accordingly, I will
order that Respondent’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. MF1358298 issued to
Monica Ferguson. Further, pursuant to
28 CFR 0.100(b) and the authority
vested in me by 21 U.S.C. 823(f), I
hereby deny any pending application of
Monica Ferguson to renew or modify
this registration, as well as any other
application of Monica Ferguson, for
additional registration in Oregon. This
Order is effective December 21, 2020.
Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020–25529 Filed 11–18–20; 8:45 am]
BILLING CODE 4410–09–P
8 Although it appears that the process for a nurse
practitioner to become authorized for prescribing
and dispensing controlled substances is distinct
from the process of becoming a licensed nurse
practitioner, the authorization does not appear to be
separately listed on the verification website.
However, it is clear from Oregon law that it is a
prerequisite of prescribing authority to be licensed
as a nurse practitioner.
E:\FR\FM\19NON1.SGM
19NON1
]]>Agencies
[Federal Register Volume 85, Number 224 (Thursday, November 19, 2020)]
[Notices]
[Pages 73778-73780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25529]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 20-11]
Monica Ferguson, F.N.P., R.N.; Decision and Order
On February 20, 2020, the Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration (hereinafter, DEA or
Government), issued an Order to Show Cause (hereinafter, OSC) to Monica
Ferguson, F.N.P., R.N., (hereinafter, Respondent) of Lake Oswego,
Oregon. OSC, at 1. The OSC proposed the revocation of Respondent's
Certificate of Registration No. MF1358298. Id. It alleged that
Respondent is without ``authority to handle controlled substances in
Oregon, the state in which [Respondent is] registered with DEA.'' Id.
See also 21 U.S.C. 823(f) and 824(a)(3).
Specifically, the OSC alleged that the Oregon State Board of
Nursing (hereinafter, Board) revoked Respondent's RN license number
099000287RN and her NP-PP Family license number 200650008NP effective
on December 31, 2019. Id. This revocation, according to the OSC,
demonstrated that Respondent lacks authority to handle controlled
substances in Oregon. Id. (citing 21 U.S.C. 802(21), 823(f), and
824(a)(3)).
The OSC notified Respondent of the right to request a hearing on
the allegations or to submit a written statement, while waiving the
right to a hearing, the procedures for electing each option, and the
consequences for failing
[[Page 73779]]
to elect either option. Id. at 2 (citing 21 CFR 1301.43). The OSC also
notified Respondent of the opportunity to submit a corrective action
plan. Id. at 3 (citing 21 U.S.C. 824(c)(2)(C)).
By letter dated March 11, 2020, Respondent, pro se, timely
requested a hearing.\1\ Hearing Request, at 1. In the Hearing Request,
Respondent requested that DEA defer proceedings on the proposed
revocation of her DEA registration until there is a decision from the
Oregon Appellate Court on her March 3, 2020, request for an immediate
remand or reversal of the Board's revocation of her state licenses. Id.
at 2. Respondent also requested an extension of time to prepare for the
DEA revocation proceedings in light of a number of delineated personal
circumstances which Respondent described as ``extreme hardship[s].''
Id. at 1.
---------------------------------------------------------------------------
\1\ The Hearing Request was deemed filed on March 16, 2020.
Briefing Schedule for Lack of State Authority Allegations dated
March 16, 2020, at 1. I, thus, find that the Government's service of
the OSC was adequate.
---------------------------------------------------------------------------
The Office of Administrative Law Judges put the matter on the
docket and assigned it to Administrative Law Judge Mark M. Dowd
(hereinafter, ALJ). The ALJ issued a Briefing Schedule for Lack of
State Authority Allegations, dated March 16, 2020. The Government
timely complied with the Briefing Schedule by filing a Motion for
Summary Disposition on March 20, 2020, (hereinafter, Government Motion
or Govt Motion). Order Granting the Government's Motion for Summary
Disposition, and Recommended Rulings, Findings of Fact, Conclusions of
Law, and Recommended Decision of the Administrative Law Judge, dated
May 5, 2020, (hereinafter, Summary Disposition or SD), at 3. In its
Motion, the Government submitted evidence that Respondent's Oregon
nurse practitioner licenses had been revoked and that she therefore
lacked authority to handle controlled substances in Oregon, the state
in which she is registered with DEA. Govt Motion, at 1; SD, at 3. In
light of these facts, the Government argued that DEA must revoke her
registration. Govt Motion, at 3.
On March 22, 2020, Respondent, asked that the Government Motion be
denied, requested that the parties have a hearing, and referenced her
Hearing Request, wherein she requested a deferral of proceedings or
additional time to prepare evidence. See Email from Respondent, dated
March 22, 2020; March 23, 2020 Order Granting Respondent Extension to
File Response to Government's Motion for Summary Disposition
(hereinafter, March 23, 2020 Order), at 1. In the March 23, 2020 Order,
the ALJ denied Respondent's request to defer or stay proceedings. March
23, 2020 Order, at 3. The ALJ then granted Respondent an extension of
time to respond to the Government Motion. Id. at 5. The March 23, 2020
Order also clearly explained to Respondent that the proceeding was
focused on ``whether Respondent has lost her state authority to handle
controlled substances,'' and that ``[t]he underlying merits of the
Respondent's loss of state licensure are irrelevant.'' Id. at 2.
On April 12, 2020, Respondent again asked for an extension of time
to respond to the Government Motion. See Email from Respondent dated
April 12, 2020. On April 13, 2020, the ALJ granted Respondent another
extension of time to respond and referred back to the March 23, 2020
Order outlining the relevant issues in dispute. Order Granting
Respondent's Second Extension to File Response to Government's Motion
for Summary Disposition, at 1. On May 4, 2020, Respondent timely filed
her ``Response to Motion for Summary Disposition'' (hereinafter,
Respondent's Response or Resp Response). In her Response, Respondent
challenged the method of investigation and the merits of the underlying
state action, and requested a stay of DEA's proceedings while she
appealed the state action. See generally Resp Response; SD, at 4.
Regarding the relevant issue--whether or not Respondent had state
authority to handle controlled substances--Respondent explicitly
admitted that she did not. Resp Response, at 8. Respondent ``agree[d]
that she lacks the authority to handle controlled substance[s]'' and
further ``acknowledge[d] that [her] license has been revoked.'' \2\ Id.
at 8, 9.
---------------------------------------------------------------------------
\2\ Respondent challenges the date her license was revoked
(indicating that it was actually revoked in February 2020) and
argues that the matter is still pending because it is being
appealed. Resp Response, at 8-9.
---------------------------------------------------------------------------
In the Summary Disposition, the ALJ again denied the Respondent's
request to stay DEA's proceedings.\3\ SD, at 5-6. The ALJ noted that,
even though the Respondent was actively engaged in negotiating or
appealing a State Board decision, ``[i]t is not DEA's policy to stay
[administrative] proceedings . . . while registrants litigate in other
forums.'' SD, at 5 (citing Newcare Home Health Servs., 72 FR 42,126,
42,127 n.2 (2007)). The ALJ then went on to grant the Government
Motion. Id. The ALJ found that ``no dispute exists over the fact that
the Respondent currently lacks state authority to handle controlled
substances in the State of Oregon, . . . so there is no contested
factual matter that could be introduced at a hearing that would, in the
Agency's view, provide authority to allow the Respondent to continue to
hold her DEA [registration].'' SD, at 8-9. By letter dated June 15,
2020, the ALJ certified and transmitted the record to me for final
Agency action. In that letter, the ALJ advised that neither party filed
exceptions. I find that the time period to file exceptions has expired.
See 21 CFR 1316.66.
---------------------------------------------------------------------------
\3\ I find no error in the ALJ's decision to continue DEA's
proceedings.
---------------------------------------------------------------------------
I issue this Decision and Order based on the entire record before
me. 21 CFR 1301.43(e). I make the following findings of fact.
Findings of Fact
Respondent's DEA Registration
Respondent is the holder of DEA Certificate of Registration No.
MF1358298 at the registered address of 18238 Tamaway Drive, Lake
Oswego, Oregon, 97034. Govt Motion Exhibit (hereinafter, GX) 1, at 1.
Pursuant to this registration, Respondent is authorized to dispense
controlled substances in schedules II through V as a ``MLP-NURSE
PRACTITIONER-DW/30.'' Id. Respondent's registration expired on
September 30, 2020.\4\ Id.
---------------------------------------------------------------------------
\4\ The fact that Respondent allowed her registration to expire
during the pendency of an OSC does not impact my jurisdiction or
prerogative under the Controlled Substances Act (hereinafter, CSA)
to adjudicate the OSC to finality. Jeffrey D. Olsen, M.D., 84 FR
68,474 (2019).
---------------------------------------------------------------------------
The Status of Respondent's State License
On December 31, 2019, the Oregon State Board of Nursing issued a
Final Order revoking Respondent's Nurse Practitioner's Certificate and
Registered Nurse License. GX 2, at 33. According to the Final Order,
Respondent ``engaged in fraud or deceit in the practice of nursing,''
``fraud or deceit in the admission to [the practice of nursing],''
``gross incompetence . . . [or] gross negligence with regard to patient
care,'' and ``no less than six separate instances of conduct derogatory
to the standards of nursing.'' Id. Examples of the misconduct that gave
rise to these findings include, but are not limited to, Respondent
operating a vehicle while impaired by prescription narcotics and
possessing controlled substances that were stored in unlabeled bottles
and that were not prescribed to her. Id. at 3-4, 10-12, 17.
According to Oregon's online records, of which I take official
notice,
[[Page 73780]]
Respondent's registered nurse and family nurse practitioner licenses
are still revoked.\5\ Oregon State Board of Nursing License
Verification Search, https://osbn.oregon.gov/OSBNVerification/default.aspx (last visited October 27, 2020). The Oregon records show
that the end date for each of the license revocations is ``Ongoing.''
Id.
---------------------------------------------------------------------------
\5\ 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, Respondent may dispute my 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 shall be filed with the Office of the Administrator and a
copy shall be served on the Government. In the event Respondent
files a motion, the Government shall have fifteen calendar days to
file a response. Any motion and response shall be filed and served
by email to the other party and to the Office of the Administrator
at [email protected].
---------------------------------------------------------------------------
Respondent ``agrees that she lacks the authority to handle
controlled substance[s]'' and further ``acknowledges that [her] license
has been revoked.'' \6\ Resp Response, at 8, 9. Based on the entire
record before me, I find that Respondent currently is not licensed to
engage in the practice of nursing in Oregon, the State in which
Respondent is registered with DEA.
---------------------------------------------------------------------------
\6\ Respondent challenges the date her license was revoked
(indicating that it was actually revoked in February 2020) and
argues that the matter is still pending because it is being
appealed. Resp Response, at 8-9. I find these arguments to be
irrelevant as Respondent is not currently authorized to dispense
controlled substances in Oregon.
---------------------------------------------------------------------------
Discussion
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized
to suspend or revoke a registration issued under section 823 of the CSA
``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[\7\] of controlled substances.'' With respect to a
practitioner, the 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. See, e.g., James L. Hooper, M.D., 76 FR 71,371 (2011),
pet. for rev. denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh
Blanton, M.D., 43 FR 27,616, 27,617 (1978).
---------------------------------------------------------------------------
\7\ ``[D]ispense[ ] means to deliver a controlled substance to
an ultimate user . . . by, or pursuant to the lawful order of, a
practitioner, including the prescribing and administering of a
controlled substance. . . .'' 21 CFR 802(10).
---------------------------------------------------------------------------
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(f). Because Congress has clearly mandated
that a practitioner possess state authority in order to be deemed a
practitioner under the CSA, the 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, 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, 43
FR at 27,617.
Moreover, because ``the controlling question'' in a proceeding
brought under 21 U.S.C. 824(a)(3) is whether the holder of a
practitioner's registration ``is currently authorized to handle
controlled substances in the state,'' Hooper, 76 FR at 71,371 (quoting
Anne Lazar Thorn, 62 FR 12,847, 12,848 (1997)), the Agency has also
long held that revocation is warranted even where a practitioner is
still challenging the underlying action. Bourne Pharmacy, 72 F 18,273,
18,274 (2007); Wingfield Drugs, 52 FR 27,070, 27,071 (1987). Thus, it
is of no consequence that the action is being appealed. What is
consequential is my finding that Respondent is no longer currently
authorized to dispense controlled substances in Oregon, the state in
which she is registered.
According to Oregon's statute, ``[a] registered nurse licensed as a
nurse practitioner is authorized to prescribe drugs for the use of and
administration to other persons if approval has been given under
[Oregon Revised Statutes] 678.390.'' Or. Rev. Stat. Ann. Sec. 678.375
(West 2020) (emphasis added). Oregon Revised Statute Sec. 678.390,
provides that ``[t]he Oregon State Board of Nursing may authorize a
licensed nurse practitioner or licensed clinical nurse specialist to
write prescriptions, including prescriptions for controlled substances
listed in schedules II, III, III N, IV and V.'' Or. Rev. Stat. Ann.
Sec. 678.390(1) (West 2020) (emphasis added). The Oregon statute also
states that ``[t]he authority to write prescriptions or dispense
prescription drugs may be denied, suspended or revoked by the Oregon
State Board of Nursing upon proof that the authority has been abused.''
\8\ Id. Here, it is clear that Respondent is no longer a licensed nurse
practitioner and it is thus clear that she is no longer authorized to
prescribe, administer, or dispense controlled substances in Oregon.
---------------------------------------------------------------------------
\8\ Although it appears that the process for a nurse
practitioner to become authorized for prescribing and dispensing
controlled substances is distinct from the process of becoming a
licensed nurse practitioner, the authorization does not appear to be
separately listed on the verification website. However, it is clear
from Oregon law that it is a prerequisite of prescribing authority
to be licensed as a nurse practitioner.
---------------------------------------------------------------------------
The undisputed evidence in the record is that Respondent currently
lacks authority to practice nursing in Oregon. As already discussed, a
nurse practitioner must be a licensed nurse practitioner to prescribe
or dispense a controlled substance in Oregon. Thus, because Respondent
lacks authority to practice nursing in Oregon and, therefore, is not
authorized to handle controlled substances in Oregon, Respondent is not
eligible to maintain a DEA registration. Accordingly, I will order that
Respondent'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.
MF1358298 issued to Monica Ferguson. Further, pursuant to 28 CFR
0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby
deny any pending application of Monica Ferguson to renew or modify this
registration, as well as any other application of Monica Ferguson, for
additional registration in Oregon. This Order is effective December 21,
2020.
Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-25529 Filed 11-18-20; 8:45 am]
BILLING CODE 4410-09-P
