On August 29, 2008, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to John B. Freitas, D.O. (Respondent), of Carthage, Missouri. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration, BF2847715, which authorizes him to dispense controlled substances in schedules II through V as a practitioner, as well as the denial of any pending application to renew or modify the registration, on the ground that Respondent lacks authority to dispense controlled substances in Missouri, the State in which he is registered with DEA. Show Cause Order at 1.
Respondent timely requested a hearing on the allegation; the matter was placed on the docket of the Agency's Administrative Law Judges (ALJ). Thereafter, the Government moved for summary disposition. Motion for Summary Disp. at 1. The basis of the motion was that Respondent's Missouri Controlled Substances Registration automatically terminated when Respondent ceased practicing at the location where he held his State registration and “did not notify the [State] of [his] change of address or a new Missouri practice location.” Id. at Attachment 1 (Letter of Michael R. Boeger, Asst. Administrator, Missouri Bureau of Narcotics & Dangerous Drugs, to Dr. John Freitas (May 13, 2008)).
According to the letter, the State “ha[d] received information that [Respondent's] last day of practicing at that location was the[e] date of [his] overdose on March 25, 2008,” and “had received written documentation that [Respondent's] privileges were terminated at that location on March 26, 2008.” Gov. Motion at Attachment 1.
Thereafter, Respondent filed his response to the Government's motion. Therein, Respondent acknowledged the State BNDD's letter and further stated that he “does not deny that he no longer has the authority to handle controlled substances in the State of Missouri.” Respondent's Response to Gov.'s Mot. for Summ. Disp. at 1. Respondent argued, however, that his state registration had not been “suspended, revoked, or denied under Missouri law by the BNDD,” and that under 21 U.S.C. 824(a)(3), DEA's authority to revoke is limited to those situations in which a registrant's State authority has been “suspended, revoked or denied by competent State authority” and the registrant “is no longer authorized by State law to engage in the * * * dispensing of controlled substances.” Id. at 2.
On November 7, 2008, the ALJ granted the Government's motion, noting that “it is undisputed that the Respondent currently lacks authority to handle controlled substances in Missouri.” ALJ at 3. Because Respondent's argument as to the scope of the Agency's authority under 21 U.S.C. 823(a)(3) had previously been rejected with respect to a practitioner who allowed his registration to expire, the ALJ found “no meaningful basis on which to distinguish expiration of a State authorization from automatic termination by operation of law.” Id. at 5. The ALJ thus applied the Agency's longstanding interpretation that it lacks authority under the Controlled Substances Act to maintain a registration if a registrant lacks authority under State law to dispense controlled substances. Id. at 4-5. The ALJ thus recommended that Respondent's registration be revoked and that any pending application to renew or modify his registration be denied.
After the period for filing exceptions lapsed, the record was forwarded to me for final agency action. Having considered the entire record in this matter, I adopt the ALJ's decision in its entirety.
Respondent did not file exceptions.
I find that Respondent currently holds DEA Certificate of Registration, BF2847715, which authorizes him to dispense controlled substances in schedules II through V as a practitioner, at the registered location of 2232 S. Garrison Ave., Carthage, Missouri. I also find that Respondent's Missouri Controlled Substances Registration has terminated. I therefore further find that Respondent is currently without authority to dispense controlled substances in Missouri, the State in which he practices medicine and holds his DEA Registration. Moreover, according to the Web site of the Missouri Department of Health and Senior Services, Respondent does not possess a State controlled substances registration.
Under the Controlled Substances Act (CSA), a practitioner must be currently authorized to handle controlled substances in “the jurisdiction in which he practices” in order to maintain a DEA registration. See 21 U.S.C. 802(21) (“[t]he term `practitioner' means a physician * * * 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”). See also id. § 823(f) (“The Attorney General shall register practitioners * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.”). As these provisions make plain, possessing authority under state law to handle controlled substances is an essential condition for holding a DEA registration.
Accordingly, DEA has held repeatedly that the CSA requires the revocation of a registration issued to a practitioner who lacks authority under state law to dispense controlled substances. Moreover, DEA has applied this rule not only where a registrant's state authority has been suspended or revoked, but also where a practitioner with an existing DEA registration has lost his state authority for reasons other than through formal disciplinary action of a State board.
For example, in William D. Levitt, 64 FR 49882, 49823 (1999), DEA held that because “state authorization was clearly intended to be a prerequisite to DEA registration, Congress could not have intended for DEA to maintain a registration if a registrant is no longer authorized by the state in which he practices to handle controlled substances due to the expiration of his state license.” See also Mark L. Beck, 64 FR 40899, 40900 (1999); Charles H. Ryan, 58 FR 14430 (1993). Moreover, in Marlou D. Davis, 69 FR 1307, 1310 (2004), I addressed and rejected the same argument raised by Respondent in a case which involved the same factual scenario as is presented here—the termination under Missouri law of a practitioner's authority which arose because of an address change. In Davis, I specifically relied on the reasoning of Levitt and rejected the argument that the respondent's registration should be deemed terminated under 21 CFR 1301.52 rather than revoked under 21 U.S.C. 824(a)(3). Id. at 1310. Indeed, as the ALJ observed in her recommended decision in this matter, because possessing authority under State law is an essential requirement for holding a CSA registration, there is “no meaningful basis” for distinguishing between those registrants who allow their State authority to expire and those whose State authority expires by operation of law. ALJ at 5.
While there is a procedure available for terminating a registration, under the Agency's regulation, a registrant who discontinues professional practice must “notify the [Agency] promptly of such fact.” 21 CFR 1301.52(a). Moreover, the registrant must return his certificate of registration to the Agency for cancellation, as well as any unexecuted order forms. Id. 1301.52(c). Notably, in Davis, the respondent did not comply with the regulation and indeed had continued professional practice.
Here, as in Davis, Respondent has not notified the Agency that he has permanently ceased the practice of medicine (or the dispensing of controlled substances in the course of medical practice). 21 CFR 1301.52(a). Nor is there any evidence that he has returned his certificate of registration for cancellation. Id. 1301.52(c). Accordingly, Respondent's registration cannot be deemed terminated. Because Respondent does not have authority under Missouri law to dispense controlled substances, he does not meet the statutory requirement for holding a registration under Federal law. See 21 U.S.C. 823(f). His registration must therefore be revoked.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 824(a), as well as 28 CFR 0.100(b) & 0.104, I order that DEA Certificate of Registration, BF2847715, issued to John B. Freitas, D.O., be, and it hereby is, revoked. I further order that any pending application of John B. Freitas, D.O., to renew or modify his registration, be, and it hereby is; denied. This Order is effective May 15, 2009.
Dated: April 10, 2009.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E9-8620 Filed 4-14-09; 8:45 am]
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