[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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