Kevin Petersen, M.D.; Decision and Order, 106585-106587 [2024-31323]
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Federal Register / Vol. 89, No. 249 / Monday, December 30, 2024 / Notices
final agency action based on Registrant’s
default pursuant to 21 CFR 1301.43(c),
(f), 1301.46. RFAA, at 1; see also 21 CFR
1316.67.
Findings of Fact
The Agency finds that, in light of
Registrant’s default, the factual
allegations in the OSC are admitted.
According to the OSC, Registrant’s
Nevada medical license is inactive.
RFAAX 1, at 1. Further, on January 17,
2024, Registrant’s Nevada controlled
substance registration was revoked. Id.
at 2. According to Nevada online
records, of which the Agency takes
official notice, Registrant’s Nevada
medical license and Nevada controlled
substance registration are currently
listed as ‘‘Inactive-Probation’’ and
‘‘Inactive’’ respectively.2 Nevada State
Board of Medical Examiners Licensee
Search, https://
nsbme.us.thentiacloud.net/webs/nsbme/
register (last visited date of signature of
this Order); Nevada State Board of
Pharmacy License Verification, https://
online.nvbop.org/#/verifylicense (last
visited date of signature of this Order).
Accordingly, the Agency finds that
Registrant is not licensed to practice
medicine nor to handle controlled
substances in Nevada, the state in which
he is registered with DEA.
ddrumheller on DSK120RN23PROD with NOTICES1
Discussion
Pursuant to 21 U.S.C. 824(a)(3), the
Attorney General is authorized to
suspend or revoke a registration issued
under 21 U.S.C. 823 ‘‘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
2 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 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 the DEA Office of
the Administrator, Drug Enforcement
Administration at dea.addo.attorneys@dea.gov.
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23:58 Dec 27, 2024
Jkt 265001
a practitioner’s registration. Gonzales v.
Oregon, 546 U.S. 243, 270 (2006) (‘‘The
Attorney General can register a
physician to dispense controlled
substances ‘if the applicant is
authorized to dispense . . . controlled
substances under the laws of the State
in which he practices.’ . . . The very
definition of a ‘practitioner’ eligible to
prescribe includes physicians ‘licensed,
registered, or otherwise permitted, by
the United States or the jurisdiction in
which he practices’ to dispense
controlled substances. § 802(21).’’). The
Agency has applied these principles
consistently. 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).3
According to Nevada statute, ‘‘[e]very
practitioner or other person who
dispenses any controlled substance
within th[e] State or who proposes to
engage in the dispensing of any
controlled substance within th[e] State
shall obtain biennially a registration
issued by the [Nevada State Board of
Pharmacy] in accordance with its
regulations.’’ Nev. Rev. Stat.
§ 453.226(1) (2023). Further, according
to Nevada statute, ‘‘dispense’’ means ‘‘to
deliver a controlled substance to an
ultimate user, patient or research subject
by or pursuant to the lawful order of a
practitioner, including the prescribing,
administering, packaging, labeling or
compounding necessary to prepare the
substance for that delivery.’’ Id. at
§ 453.056(1).
Here, the undisputed evidence in the
record is that Registrant lacks authority
to dispense controlled substances in
Nevada because his Nevada controlled
substance registration is inactive. As
discussed above, an individual must
3 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, M.D., 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, M.D., 43 FR at
27,617.
PO 00000
Frm 00180
Fmt 4703
Sfmt 4703
106585
hold a Nevada controlled substance
registration to dispense a controlled
substance in Nevada. Thus, because
Registrant lacks authority to handle
controlled substances in Nevada,
Registrant is not eligible to maintain a
DEA registration. Accordingly, the
Agency will order that Registrant’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. FO4173845, issued
to Matthew Okeke, M.D. 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 Matthew Okeke, M.D., to
renew or modify this registration, as
well as any other pending application of
Matthew Okeke, M.D., for additional
registration in Nevada. This Order is
effective January 29, 2025.
Signing Authority
This document of the Drug
Enforcement Administration was signed
on December 20, 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. 2024–31325 Filed 12–27–24; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Kevin Petersen, M.D.; Decision and
Order
On November 22, 2023, the Drug
Enforcement Administration (DEA or
Government) issued an Order to Show
Cause (OSC) to Kevin Petersen, M.D., of
Las Vegas, Nevada (Registrant). Request
for Final Agency Action (RFAA),
Exhibit (RFAAX) 2, at 1, 3. The OSC
proposed the revocation of Registrant’s
Certificate of Registration No.
BP0967818, alleging that Registrant’s
registration should be revoked because
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30DEN1
106586
Federal Register / Vol. 89, No. 249 / Monday, December 30, 2024 / Notices
ddrumheller on DSK120RN23PROD with NOTICES1
Registrant is ‘‘currently without
authority to prescribe, administer,
dispense, or otherwise handle
controlled substances in the State of
Nevada, the state in which [he is]
registered with DEA.’’ Id. at 2 (citing 21
U.S.C. 824(a)(3)).1
The OSC notified Registrant of his
right to file a written request for hearing,
and that if he failed to file such a
request, he would be deemed to have
waived his right to a hearing and be in
default. Id. (citing 21 CFR 1301.43).
Here, Registrant did not request a
hearing. RFAA, at 3.2 ‘‘A default, unless
excused, shall be deemed to constitute
a waiver of the registrant’s/applicant’s
right to a hearing and an admission of
the factual allegations of the [OSC].’’ 21
CFR 1301.43(e).
Further, ‘‘[i]n the event that a
registrant . . . is deemed to be in
default . . . DEA may then file a request
for final agency action with the
Administrator, along with a record to
support its request. In such
circumstances, the Administrator may
enter a default final order pursuant to
[21 CFR] § 1316.67.’’ Id. § 1301.43(f)(1).
Here, the Government has requested
final agency action based on Registrant’s
default pursuant to 21 CFR 1301.43(c),
1 According to Agency records, Registrant’s
registration expired on March 31, 2024. The fact
that a registrant allows his registration to expire
during the pendency of an OSC does not impact the
Agency’s jurisdiction or prerogative under the
Controlled Substances Act (CSA) to adjudicate the
OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 68474,
68476–79 (2019).
2 Based on the Government’s submissions in its
RFAA dated March 15, 2024, the Agency finds that
service of the OSC on Registrant was adequate. The
included declaration from the DEA Diversion
Investigator (DI) indicates that on November 27,
2023, under the belief that Registrant no longer
lived in Nevada, the DI sent a copy of the OSC to
DEA’s California Riverside Office for DEA
investigators from that office to attempt to
personally serve Registrant with a copy of the OSC
at two California addresses associated with
Registrant. RFAAX 1, at 1. Registrant was not
present at either California address. Id. On
November 30, 2023, the DI sent copies of the OSC,
via certified mail, to three different addresses
associated with Registrant, including two in
California and one in Nevada. Id. at 2. On or about
December 13, 2023, the DI received all three
certified mailings back as undeliverable. Id. Finally,
on or about January 30, 2024, the DI sent a copy
of the OSC via email to two email addresses
Registrant previously provided to DEA. Id. The
Agency finds that Registrant was successfully
served the OSC by email and that the DI’s efforts
to serve Registrant by other means were
‘‘ ‘reasonably calculated, under all the
circumstances, to apprise [Registrant] of the
pendency of the action.’ ’’ Jones v. Flowers, 547 U.S.
220, 226 (2006) (quoting Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950)); see also Mohammed S. Aljanaby, M.D., 82
FR 34552, 34552 (2017) (finding that service by
email satisfies due process where the email is not
returned as undeliverable and other methods have
been unsuccessful). Therefore, due process notice
requirements have been satisfied.
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23:58 Dec 27, 2024
Jkt 265001
(f), 1301.46. RFAA, at 1; see also 21 CFR
1316.67.
Findings of Fact
The Agency finds that, in light of
Registrant’s default, the factual
allegations in the OSC are admitted.
According to the OSC, Registrant’s
Nevada medical license expired on June
30, 2023. RFAAX 1, at 2. Further,
according to the OSC, Registrant’s
Nevada controlled substance license
was suspended and set to expire on
October 31, 2024. Id. According to
Nevada online records, of which the
Agency takes official notice,3
Registrant’s Nevada medical license is
revoked. Nevada State Board of Medical
Examiners Licensee Search, https://
nsbme.us.thentiacloud.net/webs/nsbme/
register/# (last visited date of signature
of this Order).4
Accordingly, the Agency finds that
Registrant is not licensed to practice
medicine in Nevada, the state in which
he 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 21 U.S.C. 823 ‘‘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
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,
Registrant 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 the DEA Office of
the Administrator, Drug Enforcement
Administration at dea.addo.attorneys@dea.gov.
4 According to Nevada online records,
Registrant’s Nevada controlled substance license
referenced in the OSC is revoked; however, there
is an additional Nevada controlled substance
license, not referenced in the OSC, that is active
and is recorded under the same name as Registrant.
Nevada State Board of Pharmacy License
Verification, https://online.nvbop.org/#/
verifylicense (last visited date of signature of this
Order). Nonetheless, because Registrant’s Nevada
medical license is undoubtedly revoked, even if this
active Nevada controlled substance license belongs
to Registrant, Registrant would still lack authority
to handle controlled substances in Nevada. See
infra (Discussion).
PO 00000
Frm 00181
Fmt 4703
Sfmt 4703
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. Gonzales v.
Oregon, 546 U.S. 243, 270 (2006) (‘‘The
Attorney General can register a
physician to dispense controlled
substances ‘if the applicant is
authorized to dispense . . . controlled
substances under the laws of the State
in which he practices.’ . . . The very
definition of a ‘practitioner’ eligible to
prescribe includes physicians ‘licensed,
registered, or otherwise permitted, by
the United States or the jurisdiction in
which he practices’ to dispense
controlled substances. § 802(21).’’). The
Agency has applied these principles
consistently. 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).5
According to Nevada statute,
‘‘dispense’’ means ‘‘to deliver a
controlled substance to an ultimate user,
patient or research subject by or
pursuant to the lawful order of a
practitioner, including the prescribing,
administering, packaging, labeling or
compounding necessary to prepare the
substance for that delivery.’’ Nev. Rev.
Stat. § 453.056(1) (2023). Further, a
‘‘practitioner’’ includes a ‘‘physician
. . . who holds a license to practice his
or her profession in [Nevada] and is
registered pursuant to [the Nevada
Uniform Controlled Substances Act].’’
Id. at § 453.126(1).
Here, the undisputed evidence in the
record is that Registrant lacks authority
to practice medicine in Nevada. As
discussed above, an individual must be
a licensed practitioner to dispense a
5 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, M.D., 76 FR at 71,371–72; 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, M.D., 43 FR at
27617.
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Federal Register / Vol. 89, No. 249 / Monday, December 30, 2024 / Notices
controlled substance in Nevada. Thus,
because Registrant lacks authority to
practice medicine in Nevada, and,
therefore, is not authorized to handle
controlled substances in Nevada,
Registrant is not eligible to maintain a
DEA registration. Accordingly, the
Agency will order that Registrant’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. BP0967818 issued to
Kevin Petersen, M.D. 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 Kevin Petersen, M.D., to renew or
modify this registration, as well as any
other pending application of Kevin
Petersen, M.D., for additional
registration in Nevada. This Order is
effective January 29, 2025.
Signing Authority
This document of the Drug
Enforcement Administration was signed
on December 20, 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. 2024–31323 Filed 12–27–24; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 24–67]
ddrumheller on DSK120RN23PROD with NOTICES1
Jason Lee Ray, PA–C; Decision and
Order
On August 22, 2024, the Drug
Enforcement Administration (DEA or
Government) issued an Order to Show
Cause (OSC) to Jason Lee Ray, PA–C, of
Marbleton, Wyoming (Respondent).
OSC, at 1, 4. The OSC proposed the
revocation of Respondent’s DEA
Certificate of Registration No.
MR4038293, alleging that Respondent’s
DEA registration should be revoked
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23:58 Dec 27, 2024
Jkt 265001
because Respondent is ‘‘without
authority to prescribe, administer,
dispense, or otherwise handle
controlled substances in the State of
Wyoming, the state in which [he is]
registered with DEA.’’ Id. at 2 (citing 21
U.S.C. 824(a)(3)).
On September 4, 2024, Respondent
requested a hearing and filed an
Answer. On September 11, 2024, the
Government filed a Motion for
Summary Disposition, to which
Respondent did not respond. On
September 20, 2024, Administrative
Law Judge Paul E. Soeffing (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 Wyoming, the state in
which he is registered with DEA, ‘‘there
is no other fact of consequence for th[e]
tribunal to decide.’’ Order Granting the
Government’s Motion for Summary
Disposition, and Recommended
Rulings, Findings of Fact, Conclusions
of Law, and Decision of the
Administrative Law Judge (RD), at 5–6.
Respondent did not file exceptions to
the RD.
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 February 15, 2024, the Wyoming
Board of Medicine suspended
Respondent’s Wyoming physician
assistant license. RD, at 3.1 According to
Wyoming online records, of which the
Agency takes official notice,
Respondent’s Wyoming physician
assistant license remains suspended.2
1 See also Government’s Submission of Evidence
and Motion for Summary Disposition (Motion for
Summary Disposition), Exhibit 2, Attachment C, at
11. The Agency notes that there is some
inconsistency regarding the naming of the
attachments included with the Government’s
Exhibit 2 (the submitted Declaration from a DEA
Diversion Investigator) when comparing how the
attachments are named in the Declaration versus
the Motion for Summary Disposition itself;
however, this inconsistency does not appear to be
substantive.
2 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,
PO 00000
Frm 00182
Fmt 4703
Sfmt 4703
106587
Wyoming Board of Medicine, Physician
and PA License Lookup, https://
wyomedboard.wyo.gov/consumers/
license-lookup (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 Wyoming, the
state in which he 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 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. Gonzales v.
Oregon, 546 U.S. 243, 270 (2006) (‘‘The
Attorney General can register a
physician to dispense controlled
substances ‘if the applicant is
authorized to dispense . . . controlled
substances under the laws of the State
in which he practices.’ . . . The very
definition of a ‘practitioner’ eligible to
prescribe includes physicians ‘licensed,
registered, or otherwise permitted, by
the United States or the jurisdiction in
which he practices’ to dispense
controlled substances. § 802(21).’’). The
Agency has applied these principles
consistently. 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).3
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
dea.addo.attorneys@dea.gov.
3 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
E:\FR\FM\30DEN1.SGM
Continued
30DEN1
Agencies
[Federal Register Volume 89, Number 249 (Monday, December 30, 2024)]
[Notices]
[Pages 106585-106587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31323]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Kevin Petersen, M.D.; Decision and Order
On November 22, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Kevin Petersen,
M.D., of Las Vegas, Nevada (Registrant). Request for Final Agency
Action (RFAA), Exhibit (RFAAX) 2, at 1, 3. The OSC proposed the
revocation of Registrant's Certificate of Registration No. BP0967818,
alleging that Registrant's registration should be revoked because
[[Page 106586]]
Registrant is ``currently without authority to prescribe, administer,
dispense, or otherwise handle controlled substances in the State of
Nevada, the state in which [he is] registered with DEA.'' Id. at 2
(citing 21 U.S.C. 824(a)(3)).\1\
---------------------------------------------------------------------------
\1\ According to Agency records, Registrant's registration
expired on March 31, 2024. The fact that a registrant allows his
registration to expire during the pendency of an OSC does not impact
the Agency's jurisdiction or prerogative under the Controlled
Substances Act (CSA) to adjudicate the OSC to finality. Jeffrey D.
Olsen, M.D., 84 FR 68474, 68476-79 (2019).
---------------------------------------------------------------------------
The OSC notified Registrant of his right to file a written request
for hearing, and that if he failed to file such a request, he would be
deemed to have waived his right to a hearing and be in default. Id.
(citing 21 CFR 1301.43). Here, Registrant did not request a hearing.
RFAA, at 3.\2\ ``A default, unless excused, shall be deemed to
constitute a waiver of the registrant's/applicant's right to a hearing
and an admission of the factual allegations of the [OSC].'' 21 CFR
1301.43(e).
---------------------------------------------------------------------------
\2\ Based on the Government's submissions in its RFAA dated
March 15, 2024, the Agency finds that service of the OSC on
Registrant was adequate. The included declaration from the DEA
Diversion Investigator (DI) indicates that on November 27, 2023,
under the belief that Registrant no longer lived in Nevada, the DI
sent a copy of the OSC to DEA's California Riverside Office for DEA
investigators from that office to attempt to personally serve
Registrant with a copy of the OSC at two California addresses
associated with Registrant. RFAAX 1, at 1. Registrant was not
present at either California address. Id. On November 30, 2023, the
DI sent copies of the OSC, via certified mail, to three different
addresses associated with Registrant, including two in California
and one in Nevada. Id. at 2. On or about December 13, 2023, the DI
received all three certified mailings back as undeliverable. Id.
Finally, on or about January 30, 2024, the DI sent a copy of the OSC
via email to two email addresses Registrant previously provided to
DEA. Id. The Agency finds that Registrant was successfully served
the OSC by email and that the DI's efforts to serve Registrant by
other means were `` `reasonably calculated, under all the
circumstances, to apprise [Registrant] of the pendency of the
action.' '' Jones v. Flowers, 547 U.S. 220, 226 (2006) (quoting
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950)); see also Mohammed S. Aljanaby, M.D., 82 FR 34552, 34552
(2017) (finding that service by email satisfies due process where
the email is not returned as undeliverable and other methods have
been unsuccessful). Therefore, due process notice requirements have
been satisfied.
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Further, ``[i]n the event that a registrant . . . is deemed to be
in default . . . DEA may then file a request for final agency action
with the Administrator, along with a record to support its request. In
such circumstances, the Administrator may enter a default final order
pursuant to [21 CFR] Sec. 1316.67.'' Id. Sec. 1301.43(f)(1). Here,
the Government has requested final agency action based on Registrant's
default pursuant to 21 CFR 1301.43(c), (f), 1301.46. RFAA, at 1; see
also 21 CFR 1316.67.
Findings of Fact
The Agency finds that, in light of Registrant's default, the
factual allegations in the OSC are admitted. According to the OSC,
Registrant's Nevada medical license expired on June 30, 2023. RFAAX 1,
at 2. Further, according to the OSC, Registrant's Nevada controlled
substance license was suspended and set to expire on October 31, 2024.
Id. According to Nevada online records, of which the Agency takes
official notice,\3\ Registrant's Nevada medical license is revoked.
Nevada State Board of Medical Examiners Licensee Search, https://nsbme.us.thentiacloud.net/webs/nsbme/register/# (last visited date of
signature of this Order).\4\
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\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, Registrant 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 the DEA Office of the Administrator,
Drug Enforcement Administration at [email protected].
\4\ According to Nevada online records, Registrant's Nevada
controlled substance license referenced in the OSC is revoked;
however, there is an additional Nevada controlled substance license,
not referenced in the OSC, that is active and is recorded under the
same name as Registrant. Nevada State Board of Pharmacy License
Verification, https://online.nvbop.org/#/verifylicense (last visited
date of signature of this Order). Nonetheless, because Registrant's
Nevada medical license is undoubtedly revoked, even if this active
Nevada controlled substance license belongs to Registrant,
Registrant would still lack authority to handle controlled
substances in Nevada. See infra (Discussion).
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Accordingly, the Agency finds that Registrant is not licensed to
practice medicine in Nevada, the state in which he 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 21 U.S.C. 823 ``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.
Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (``The Attorney General
can register a physician to dispense controlled substances `if the
applicant is authorized to dispense . . . controlled substances under
the laws of the State in which he practices.' . . . The very definition
of a `practitioner' eligible to prescribe includes physicians
`licensed, registered, or otherwise permitted, by the United States or
the jurisdiction in which he practices' to dispense controlled
substances. Sec. 802(21).''). The Agency has applied these principles
consistently. 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).\5\
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\5\ 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, M.D., 76 FR at 71,371-72;
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, M.D., 43 FR at 27617.
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According to Nevada statute, ``dispense'' means ``to deliver a
controlled substance to an ultimate user, patient or research subject
by or pursuant to the lawful order of a practitioner, including the
prescribing, administering, packaging, labeling or compounding
necessary to prepare the substance for that delivery.'' Nev. Rev. Stat.
Sec. 453.056(1) (2023). Further, a ``practitioner'' includes a
``physician . . . who holds a license to practice his or her profession
in [Nevada] and is registered pursuant to [the Nevada Uniform
Controlled Substances Act].'' Id. at Sec. 453.126(1).
Here, the undisputed evidence in the record is that Registrant
lacks authority to practice medicine in Nevada. As discussed above, an
individual must be a licensed practitioner to dispense a
[[Page 106587]]
controlled substance in Nevada. Thus, because Registrant lacks
authority to practice medicine in Nevada, and, therefore, is not
authorized to handle controlled substances in Nevada, Registrant is not
eligible to maintain a DEA registration. Accordingly, the Agency will
order that Registrant'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.
BP0967818 issued to Kevin Petersen, M.D. 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 Kevin Petersen, M.D., to renew
or modify this registration, as well as any other pending application
of Kevin Petersen, M.D., for additional registration in Nevada. This
Order is effective January 29, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on
December 20, 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. 2024-31323 Filed 12-27-24; 8:45 am]
BILLING CODE 4410-09-P