Wagner Gervais, P.A.; Decision and Order, 79309-79310 [2024-22190]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 89, Number 188 (Friday, September 27, 2024)]
[Notices]
[Pages 79309-79310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22190]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 24-46]


Wagner Gervais, P.A.; Decision and Order

    On May 7, 2024, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Wagner Gervais, 
P.A., of Tucson, Arizona (Respondent). OSC, at 1, 4. The OSC proposed 
the revocation of Respondent's DEA Certificate of Registration No. 
MG7845778, alleging that Respondent's DEA registration should be 
revoked because Respondent is ``without authority to prescribe, 
administer, dispense, or otherwise handle controlled substances in the 
State of Arizona, the state in which [he is] registered with DEA.'' Id. 
at 2 (citing 21 U.S.C. 824(a)(3)).
    On May 21, 2024, Respondent requested a hearing and filed an 
Answer. On June 4, 2024, the Government filed a Motion for Summary 
Disposition, to which Respondent did not respond.\1\ On June 24, 2024, 
Administrative Law Judge Teresa A. Wallbaum (the ALJ) granted the 
Government's Motion for Summary Disposition and recommended the 
revocation of Respondent's registration, finding that because 
Respondent lacks state authority to handle controlled substances in 
Arizona, the state in which he is registered with DEA, ``[t]here is no 
genuine issue of material fact in this case.'' Order Granting the 
Government's Motion for Summary Disposition, and Recommended

[[Page 79310]]

Rulings, Findings of Fact, Conclusions of Law, and Decision of the 
Administrative Law Judge (RD), at 4-5. Respondent did not file 
exceptions to the RD.
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    \1\ On June 14, 2024, Respondent sought to continue the DEA 
proceedings while appealing the loss of his state authority; 
consistent with past precedent, the Administrative Law Judge denied 
the continuance.
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    Having reviewed the entire record, the Agency adopts and hereby 
incorporates by reference the entirety of the ALJ's rulings, findings 
of fact, conclusions of law, and recommended sanction as found in the 
RD and summarizes and expands upon portions thereof herein.

Findings of Fact

    On November 29, 2023, the Arizona Regulatory Board of Physician 
Assistants revoked Respondent's Arizona physician assistant license. 
RD, at 3.\2\ According to Arizona online records, of which the Agency 
takes official notice, Respondent's Arizona physician assistant license 
remains revoked.\3\ Arizona Regulatory Board of Physician Assistants, 
Find Your PA, https://www.azpa.gov/PASearch/PASearch (last visited date 
of signature of this Order). Accordingly, the Agency finds that 
Respondent is not currently licensed to practice as a physician 
assistant in Arizona, the state in which he is registered with DEA.
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    \2\ See also Government's Notice of Filing of Evidence of Lack 
of State Authority; Service of Order to Show Cause; and Motion for 
Summary Disposition, Declaration of [Diversion Investigator], 
Exhibit A, at 8-9.
    \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). 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 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 Office of the Administrator, Drug 
Enforcement Administration at [email protected].
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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 section 823 of the 
Controlled Substances Act (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 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. See, e.g., James L. Hooper, 
M.D., 76 FR 71371, 71372 (2011), pet. for rev. denied, 481 F. App'x 826 
(4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 
(1978).\4\
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    \4\ 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., James L. Hooper, 76 FR 71371-72; Sheran 
Arden Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick A. Ricci, 
M.D., 58 FR 51104, 51105 (1993); Bobby Watts, M.D., 53 FR 11919, 
11920 (1988); Frederick Marsh Blanton, 43 FR 27617. 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 [S]tate,'' Hooper, 76 FR 71371 (quoting Anne Lazar 
Thorn, 62 FR 12847, 12848 (1997)), the Agency has also long held 
that revocation is warranted even where a practitioner is still 
challenging the underlying action. Bourne Pharmacy, 72 FR 18273, 
18274 (2007); Wingfield Drugs, 52 FR 27070, 27071 (1987). Thus, it 
is of no consequence that Respondent is still challenging the 
underlying action here, see Respondent's Answer, at 1; Respondent's 
Motion to Continue Show Cause Hearing. Rather, the Agency's finding 
that Respondent is not currently authorized to dispense controlled 
substances in Arizona, the state in which he is registered with DEA, 
is controlling. Adley Dasilva, P.A., 87 FR 69341, 69341 n.2 (2022); 
see also Order Denying Respondent's Motion to Continue.
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    According to Arizona statute, ``[e]very person who manufactures, 
distributes, dispenses, prescribes or uses for scientific purposes any 
controlled substance within th[e] state or who proposes to engage in 
the manufacture, distribution, prescribing or dispensing of or using 
for scientific purposes any controlled substance within th[e] state 
must first: (1) [o]btain and possess a current license or permit as a 
medical practitioner as defined in Sec.  32-1901 . . . .'' Ariz. Rev. 
Stat. Ann. section 36-2522(A)(1) (2024). Section 32-1901 defines a 
``[m]edical practitioner'' as ``any medical doctor . . . or other 
person who is licensed and authorized by law to use and prescribe drugs 
and devices to treat sick and injured human beings or animals or to 
diagnose or prevent sickness in human beings or animals in [Arizona] or 
any state, territory or district of the United States.'' Id. section 
32-1901.
    Here, the undisputed evidence in the record is that Respondent 
lacks authority to practice as a physician assistant in Arizona. As 
discussed above, only a licensed medical practitioner can dispense 
controlled substances in Arizona. Thus, because Respondent lacks 
authority to practice as a physician assistant in Arizona, and 
therefore is not a licensed medical practitioner, Respondent is not 
eligible to maintain a DEA registration. Accordingly, the Agency 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. 
MG7845778 issued to Wagner Gervais, P.A. 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 Wagner Gervais, P.A., to renew 
or modify this registration, as well as any other pending application 
of Wagner Gervais, P.A., for additional registration in Arizona. This 
Order is effective October 28, 2024.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
September 16, 2024, by Administrator Anne Milgram. 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. 2024-22190 Filed 9-26-24; 8:45 am]
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