[Federal Register Volume 81, Number 144 (Wednesday, July 27, 2016)]
[Notices]
[Pages 49266-49268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17722]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Geoffrey D. Peterson, N.P.; Decision and Order
On April 14, 2015, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Geoffrey D. Peterson, N.P. (hereinafter, Registrant), of
Hixson, Tennessee. The Show Cause Order proposed the revocation of
Registrant's DEA Certificate of Registration MP3330545,\1\ pursuant to
which he is authorized to dispense controlled substances in schedules
II through V, as a mid-level practitioner, and the denial of any
applications on two grounds. GX 1, at 1.
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\1\ While Government also alleges that Registrant holds an
additional registration (MP1971731) and seeks its revocation as
well, in its Request for Final Agency Action, the Government
acknowledges that this registration had expired shortly before the
issuance of the Show Cause Order. To ensure that Registrant did not
file a renewal application for this registration, I have taken
official notice of Registrant's registration record with the Agency.
See 5 U.S.C. 556(e). That record shows that Registrant allowed this
registration to expire and did not file an application to renew it
whether timely or not. Accordingly, I find that this proceeding is
moot insofar as it seeks the revocation of this registration.
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First, the Show Cause Order alleged that effective January 27,
2015, the Tennessee Nursing Board had summarily suspended Registrant's
nurse practitioner license. Id. at 2. The Order thus alleged that
Registrant is currently without authority to dispense controlled
substances in the State in which he is registered with the Agency and
therefore, his registration is subject to revocation. Id. (citing 21
U.S.C. 802(21), 823(f), 824(a)(3)).
Second, the Show Cause Order alleged that Registrant materially
falsified his October 7, 2014 application for the above registration.
Id. (citing 21 U.S.C. 824(a)(1)). More specifically, the Show Cause
Order alleged that on February 17, 2014, Registrant was arrested by
local authorities and charged with the ``unlawful possession of
marijuana.'' Id. The Order then alleged that the charge was still
pending at the time Registrant submitted his renewal application, and
that ``[o]n this application, [he] did not answer `yes' to the . . .
liability question: `Has the applicant ever been convicted of a crime
in connection with controlled substance(s) under state or federal law,
or is any action pending?' '' Id. The Government thus alleged that
Registrant violated 21 U.S.C. 824(a)(1).\2\
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\2\ While the Government contends that Registrant violated
section 824(a)(1), this provision is simply a grant of authority to
the Attorney General to revoke or suspend a registration and does
not itself impose a substantive rule of conduct. Rather, the rule of
conduct is imposed by 21 U.S.C. 843(a)(4)(A) (``It shall be unlawful
for any person knowingly or intentionally . . . to furnish false or
fraudulent material information in, or omit any material information
from, any application . . . filed under this subchapter[.]'').
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The Show Cause Order also notified Registrant of his right to
request a hearing on the allegations or to submit a written statement
while waiving his right to a hearing, the procedure for electing either
option, and the consequence of failing to elect either option. Id. at
2-3 (citing 21 CFR 1301.43, 1301.46). On April 23, 2015, the Show Cause
Order was personally served on Registrant by a DEA Diversion
Investigator. GX 3.
On April 7, 2016, the Government forwarded a Request for Final
Agency Action. Therein, the Government represented that neither
Registrant ``nor anyone representing him has requested a hearing or
sent any other correspondence to DEA.'' Req. for Final Agency Action,
at 7. Based on the Government's representation, I find that 30 days
have now passed since the Show Cause Order was served on Registrant and
that he has neither requested a hearing nor submitted a written
statement in lieu of hearing. 21 CFR 1301.43(b) & (c). Accordingly, I
find that Registrant has waived his right to a hearing or to submit a
written statement and issue this Decision and Order based on the
evidence submitted by the Government. Id. Sec. 1301.43(d) & (e). I
make the following findings.
Findings
Registrant is the holder of DEA Certificate of Registration
MP3330545, pursuant to which he is authorized to dispense controlled
substances in schedules II through V, as a mid-level practitioner, at
the registered address of Hormone Replacement Specialists, 5550 Highway
153, Suite 103, Hixson, Tennessee. GX 7, at 1. Registrant renewed this
registration on October 7, 2014, at which time he was required to
answer the following question: ``Has the applicant ever been convicted
of a crime in connection with controlled substance(s) under state or
federal law, or been excluded or directed to be excluded from
participation in a medicare or state health care program, or any [sic]
such action pending?'' GX 6. Registrant entered ``N'' for no. Id.
On February 17, 2014, Registrant was arrested by a member of the
Sequatchie County Sheriff's Department and charged with felony
possession of marijuana, an offense under Tenn. Code Ann. Sec. 39-17-
415. GX 5, at 1, 3, 6. According to a March 31, 2015 letter from the
Clerk of the General Sessions Court of Sequatchie County, criminal
charges were pending against Registrant ``as of October 31, 2014.'' GX
8. The Clerk's letter further states that the ``[c]harges were expunged
on 11/21/2014.'' Id.
Registrant was also previously licensed by the Tennessee Board of
Nursing (Board) as an advanced practice nurse (APN) and held a
Certificate of Fitness to prescribe. GX 4, at 2. However, on January
27, 2015, the Board ordered the summary suspension of Registrant's
advance practice nurse license and Certificate of Fitness to Prescribe.
Id. at 7. The Board based its order on findings which included that on
December 19, 2014, a search warrant was executed at Registrant's
residence during which the search team found ``prefilled syringes of
morphine, vials of morphine, shopping bags full of used needles, a
bottle of prednisone, and a bottle of animal morphine,'' and that
``[t]he syringes of morphine are of unknown origin with no identifying
prescription information.'' Id. at 3. The search team also found a pipe
containing marijuana residue. Id.
[[Page 49267]]
The Board also based its order on findings that from April 1, 2013
through March 31, 2014, Registrant was ``a top 50 prescriber in
Tennessee based on morphine equivalents,'' and that in a letter to the
Board, he had stated that ``he had no intention of curbing his
prescribing practices.'' Id. at 4. The Board further found that on
January 12, 2015, Registrant had ``obstructed a Department of Health
investigation'' into his activities at a pain clinic, by ``refus[ing]
to allow access to [the] clinic or to cooperate in any fashion, leaving
the Department unable to verify the conditions of the clinic or obtain
patient charts to determine whether [he] has a supervising physician or
a medical director at the pain clinic.'' Id.
Based on these and other findings, the Board found that Registrant
``[i]s unfit or incompetent by reason of negligence, habits or other
cause''; ``[i]s guilty of unprofessional conduct''; and ``[h]as
violated or attempted to violate, directly or indirectly, or assisted
in or abetted the violation of or conspired to violate any provision of
this chapter or any lawful order of the board.'' Id. at 6. (citing
Tenn. Code Ann. Sec. 63-7-115(a)(1)). The Board then explained that
Registrant's ``impaired judgment combined with the high amount of
controlled substances he prescribes . . . create[s] an extreme and
untenable danger to his patients and the public of Tennessee'' and his
``actions constitute a serious and immediate danger to the public's
health, safety and welfare and require emergency action by this
Board.'' Id.
Subsequently, on May 6, 2015, Registrant entered into an Agreed
Order with the Board, which the latter approved on August 6, 2015 and
which suspended his APN license and his Certificate of Fitness to
prescribe.\3\ GX 10, at 8. The Order also imposed numerous conditions,
including that he voluntarily surrender his DEA registrations within 10
days of the Board's ratification of the Order. Id. at 10.
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\3\ I take official notice of the Agreed Order and have made it
a part of the record. See 5 U.S.C. 556(e).
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Therein, the parties agreed to a variety of factual findings
pertinent to his prescribing of controlled substances. These included
that during 2011, he had worked at a Chattanooga-based clinic (Superior
One Medical Clinic) and ``wrote prescriptions for schedule II
controlled substances with no medical necessity or supporting
documentation as to the condition which would warrant such
prescribing.'' Id. at 3. As for his prescribing at Holistic Health and
Primary Care (a pain clinic in Hixson, TN which was owned by his
father), the Board reviewed 10 patients charts maintained by him ``from
March 2012 to December 2013'' and found that it reflected treatment
``with controlled substances in amounts and/or durations not medically
necessary, advisable, or justified.'' Id. The Board also found that
``he typically prescribed opioids in amounts not medically necessary,''
that he ``does not utilize alternative treatments . . . for his pain
management patients and neglected to establish a treatment plan . . .
other than the continuation of controlled substances,'' and that while
he had patients provide urine drug tests, he ``often failed to address
inconsistent results.'' Id. at 3-4.
Registrant also stipulated to the findings of the Summary
Suspension Order regarding the various controlled substances and
paraphernalia found during the execution of a search warrant at his
residence, the findings that he was a Top 50 prescriber of morphine
equivalents and had told the Board that he did not intend to curb his
prescribing, and the findings related to his obstruction of the
Department of Health's investigation of his father's pain clinic.\4\
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\4\ Registrant also stipulated to findings that he had abused
animals and his 88-years old father, who was listed as his
supervising physician, as well as that he had ``obstructed attempts
by three independent agencies to determine the welfare of'' his
father. Agreed Order, at 4-7.
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Discussion
Registrant's Lack of State Authority
Pursuant to 21 U.S.C. 824(a)(3), ``[a] registration . . . to . . .
dispense a controlled substance . . . may be suspended or revoked by
the Attorney General upon a finding that the registrant . . . has had
his State license or registration suspended, revoked, or denied by
competent State authority and is no longer authorized by State law to
engage in the . . . dispensing of controlled substances.'' This Agency
has further held that notwithstanding that this provision grants the
Agency authority to suspend or revoke a registration, other provisions
of the Controlled Substances Act ``make plain that a practitioner can
neither obtain nor maintain a DEA registration unless the practitioner
currently has authority under state law to handle controlled
substances.'' James L. Hooper, 76 FR 71371, 71372 (2011), pet. for rev.
denied, Hooper v. Holder, 481 F. App'x 826 (4th Cir. 2012). See also
Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (1978) (``State
authorization to dispense or otherwise handle controlled substances is
a prerequisite to the issuance and maintenance of a Federal controlled
substances registration.'').
These provisions include section 102(21), which defines the term
``practitioner'' to ``mean[ ] 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,'' 21 U.S.C. 802(21),
as well as section 303(f), which directs that ``[t]he Attorney General
shall register practitioners . . . to dispense . . . controlled
substances . . . if the applicant is authorized to dispense . . .
controlled substances under the laws of the State in which he
practices.'' Id. Sec. 823(f). As the Supreme Court has explained,
``[i]n the case of a physician, this scheme contemplates that he is
authorized by the State to practice medicine and to dispense drugs in
connection with his professional practice.'' United States v. Moore,
423 U.S. 122, 140-41 (1975).
Here, it undisputed that the Tennessee Board of Nursing has
suspended Registrant's advance practice nursing license and his
Certificate of Fitness to prescribe. I therefore find that Registrant
is without authority to dispense controlled substances in Tennessee,
the State in which he is registered. Because Registrant no longer meets
the CSA's prerequisite for maintaining a practitioner's registration, I
will order that his existing registration be revoked.
Material Falsification
Pursuant to section 304(a)(1), the Attorney General is also
authorized to suspend or revoke a registration ``upon a finding that
the registrant . . . has materially falsified any application filed
pursuant to or required by this subchapter.'' 21 U.S.C. 824(a)(1).
Based on Registrant's failure to disclose his arrest for marijuana
possession on his October 7, 2014 application, the Government contends
that he materially falsified the application when he answered ``N'' or
no to the question: ``Has the applicant ever been convicted of a crime
in connection with controlled substance(s) under state or federal law,
or been excluded or directed to be excluded from participation in a
medicare or state health care program, or any [sic] such action
pending?'' GX 6.
Notably, the Government does not argue that Registrant has been
convicted of the unlawful possession of marijuana, let alone that he
had been convicted of the offense prior to submitting his
[[Page 49268]]
application on October 7, 2014. Indeed, the only evidence it offers
relevant to whether Registrant has been convicted of a controlled
substance offense is the state court clerk's letter stating that
Registrant ``did have criminal charges pending against him . . . as of
October 31, 2014'' and that the ``[c]harges were expunged'' several
weeks later.
The clerk's letter does not, however, even identify what charges
were pending against Registrant at the time. Moreover, the Government
does not rely on the line of cases holding that a deferred adjudication
of an offense falling under 21 U.S.C. 824(a)(2) which ultimately
results in dismissal of the charge is still a conviction for purposes
of the Controlled Substances Act and that the failure to disclose such
conviction on a subsequent application is a material falsification. See
Hoxie v. DEA, 419 F.3d 477, 481(6th Cir. 2005) (upholding Agency's
finding that practitioner committed material falsification when he
failed to disclose a controlled substance conviction which was
expunged). See also Pamela Monterosso, 73 FR 11146, 11148 (2008)
(citing David A. Hoxie, 69 FR 51477, 51478 (1994); Eric A. Baum, 53 FR
47272, 42274 (1988)); see also Kimberly Maloney, 76 FR 60922, 60922
(2011); Mark De La Lama, 76 FR 20011, 20013-14, 20019-20 (2011).
Instead, the Government argues that Registrant materially falsified
his application because ``the new application required that
[Registrant] disclose this arrest because the application asked: `Has
the applicant ever been convicted of a crime in connection with
controlled substance(s) or is any action pending?' '' Request for Final
Agency Action, at 5-6. The question does not, however, require the
disclosure of an arrest. Rather, it requires the disclosure of ``any
action pending,'' and while this is reasonably read to include a
criminal prosecution for a controlled substance offense which is
ongoing at the time an application is submitted, the Government's
evidence establishes only that charges were pending 24 days after
Registrant submitted his application and not on the date he submitted
his application. While it may be that the marijuana possession charge
was pending on October 7, 2014 and was expunged pursuant to a deferred
adjudication, which under Agency precedent constitutes a conviction
even where the conviction is later expunged, the Government did not
produce any evidence establishing that this was the basis for the
expungement of the charge.
Accordingly, I find that the Government has failed to provide
substantial evidence to support its contention that Registrant
materially falsified his application. Nonetheless, because Registrant
no longer holds authority under Tennessee law to dispense controlled
substances, he is not entitled to maintain his registration.
Accordingly, I will order that his registration be revoked.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of
Registration MP3330545 issued to Geoffrey D. Peterson, N.P., be, and it
hereby is, revoked. I further order that any application of Geoffrey D.
Peterson to renew or modify the above registration be, and it hereby
is, denied. This Order is effective immediately.\5\
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\5\ Based on the findings of the Tennessee Board, I find that
the public interest necessitates that this Order be effective
immediately. 21 CFR 1316.67. I further note that as of this date,
Registrant has failed to surrender his DEA registration as required
by the Board.
Dated: July 19, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016-17722 Filed 7-26-16; 8:45 am]
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