[Federal Register Volume 85, Number 22 (Monday, February 3, 2020)]
[Notices]
[Pages 5986-5987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01970]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Theresa L. Wendt, N.P.; Decision and Order

    On January 24, 2019, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, Government), 
issued an Order to Show Cause to Theresa L. Wendt, N.P., (hereinafter, 
Registrant), of Milwaukee, Wisconsin. Order to Show Cause (hereinafter, 
OSC), at 1. The OSC proposed the revocation of Registrant's Certificate 
of Registration No. MW2120006. It alleged that Registrant is ``without 
authority to handle controlled substances in the State of Wisconsin, 
the state in which . . . [she is] registered with the DEA.'' Id. at 2 
(citing 21 U.S.C. 824(a)(3)).
    Specifically, the OSC alleged that the Wisconsin Board of Nursing 
(hereinafter, BON) issued an Order on January 19, 2018, suspending 
Registrant's professional nursing (hereinafter, RN) license and her 
advanced practice nurse prescriber (hereinafter, APNP) certificate. 
OSC, at 1. The OSC further alleged that Registrant's RN license expired 
on February 28, 2018, and her APNP certificate expired on September 30, 
2018. Id. at 1-2.
    The Show Cause Order notified Registrant of the right to request a 
hearing on its allegations or to submit a written statement, while 
waiving the right to a hearing, the procedures for electing each 
option, and the consequences for failing to elect either option. Id. at 
2 (citing 21 CFR 1301.43). The OSC also notified Registrant of the 
opportunity to submit a corrective action plan. OSC, at 1, 2-3 (citing 
21 U.S.C. 824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated April 2, 2019, a Diversion Investigator 
(hereinafter, DI) assigned to the Milwaukee District Office, Chicago 
Field Division, stated that she and a Special Agent (hereinafter, SA) 
travelled to Registrant's home address on February 6, 2019, to 
personally serve Registrant with the OSC. RFAA, Exhibit (EX) 4 (DI 
Declaration), at 1. The DI stated she ``knew this was Registrant's home 
address because it was the address listed on her Wisconsin d[r]iver's 
license'' and, upon arriving at the residence, the DI ``recognized 
Registrant because [she] had previously met with her.'' Id. The DI 
further stated that she ``personally served the [OSC] on Registrant by 
handing it to her'' and ``Registrant signed a DEA-12, Receipt for Cash 
or Other Items, acknowledging her receipt'' of the OSC. Id., see also 
RFAA, EX 4B (executed DEA-12).
    The Government forwarded its RFAA, along with the evidentiary 
record, for adjudication on April 3, 2019. The Government represents 
that ``at least thirty days have passed since the time the [OSC] was 
served on Registrant'' and she ``has not requested a hearing and has 
not otherwise corresponded or communicated with DEA.'' RFAA, at 2. The 
Government requests that ``Registrant's DEA registration be revoked 
based on 21 U.S.C. 824(a)(3) because Registrant has no valid nursing 
license in Wisconsin.'' Id. at 3.
    Based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government accomplished service of the OSC on Registrant on February 6, 
2019. I also find that more than thirty days have now passed since the 
Government accomplished service of the OSC. Further, based on the 
Government's written representations, I find that neither Registrant, 
nor anyone purporting to represent Registrant, requested a hearing, 
submitted a written statement while waiving Registrant's right to a 
hearing, or submitted a corrective action plan. Accordingly, I find 
that Registrant has waived the right to a hearing and the right to 
submit a written statement and corrective action plan. 21 CFR 
1301.43(d) and 21 U.S.C. 824(c)(2)(C). I, therefore, issue this 
Decision and Order based on the record submitted by the Government, 
which constitutes the entire record before me. 21 CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    On February 17, 2010, DEA Certificate of Registration No. MW2120006 
was assigned to Registrant at the registered address of 6001 W North 
Ave., Milwaukee, Wisconsin. RFAA, EX 5 (Certification of Registration 
History), at 1. This registration authorized Registrant to dispense 
controlled substances in schedules II through V as a practitioner. Id. 
Registrant's registration expired on May 31, 2019. Id. According to 
Agency records, Registrant did not submit a renewal application and her 
registration was retired on July 1, 2019.\1\
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    \1\ The fact that a Registrant allows her registration to expire 
during the pendency of an OSC does not impact my jurisdiction or 
prerogative under the Controlled Substances Act (hereinafter, CSA) 
to adjudicate the OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 
68474 (2019).
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The Status of Registrant's State Licensure

    On May 11, 2017, the Wisconsin BON issued a Final Decision and 
Order (hereinafter, collectively, Final Decision) restricting 
Registrant's RN license and APNP certificate.\2\ RFAA, EX 3, at 3-5. On 
January 19, 2018, the BON determined that Registrant failed to comply 
with the Final Decision's restrictions and issued an Order, effective 
immediately, suspending both Registrant's RN license and her APNP 
certificate. RFAA, EX 3, at 9 (Order Suspending License).
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    \2\ In its Final Decision, the BON found that Registrant issued 
a controlled substance prescription to an individual who was not a 
patient at the pain clinic where Registrant was employed, 
substituted her cell number for the clinic's phone number, and did 
not maintain a treatment record at the clinic for that individual.

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[[Page 5987]]

    According to the website of the Wisconsin Department of Safety and 
Professional Services, of which I take official notice, Registrant's RN 
license and her APNP certificate remain suspended.\3\ Wisconsin 
Credential/License Search, https://licensesearch.wi.gov/ (last visited 
January 3, 2020). The website also states that Registrant's RN license 
expired on February 28, 2018 and that her APNP certificate expired on 
September 30, 2018. Thus, neither Registrant's Wisconsin RN license nor 
her APNP certificate was current on the date the Assistant 
Administrator issued the OSC, and neither is current today.
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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 my finding by filing 
a properly supported motion for reconsideration within fifteen 
calendar days of the date of this Order. Any such motion shall be 
filed with the Office of the Administrator and a copy shall be 
served on the Government. In the event Registrant files a motion, 
the Government shall have fifteen calendar days to file a response. 
Any such motion and response may be filed and served by email 
([email protected]) or by mail to Office of the 
Administrator, Attn: ADDO, Drug Enforcement Administration, 8701 
Morrissette Drive, Springfield, VA 22152.
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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 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, the 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 71,371 (2011), 
pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); Frederick 
Marsh Blanton, M.D., 43 FR 27616, 27617 (1978).
    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(f). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the CSA, the 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 at 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 at 27617.
    In Wisconsin, an ``advanced practice nurse'' is a registered nurse 
who ``has a current license to practice professional nursing'' in 
Wisconsin. Wis. Admin. Code N Sec.  8.02(1) (West, Westlaw current 
through Wisconsin Register 767B, published November 25, 2019). An 
``advanced practice nurse prescriber'' is ``an advanced practice nurse 
who has been granted a certificate to issue prescription orders'' under 
Wis. Stat Sec.  441.16(2). Wis. Admin. Code N Sec.  8.02(2) (West, 
Westlaw current through Wisconsin Register 767B, published November 25, 
2019).\4\
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    \4\ An advanced practice nurse (hereinafter, APN) who meets the 
requisite education, training and examination requirements, and who 
pays the required fee, ``shall [be] grant[ed] a certificate to issue 
prescription orders.'' Wis. Stat. Sec.  441.16(2) (West, Westlaw 
current through 2019 Act 21, published November 14, 2019).
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    Under the Wisconsin Uniform Controlled Substances Act (hereinafter, 
Act), a person must have a federal controlled substances registration 
in order to lawfully dispense controlled substances in Wisconsin.\5\ 
Wis. Stat. Sec.  961.32(1m)(a) (West, Westlaw current through 2019 Act 
21, published November 14, 2019). The Act further provides that a 
``practitioner'' includes an '' advanced practice nurse . . . licensed, 
registered, certified or otherwise permitted to . . . dispense . . . a 
controlled substance in the course of professional practice.'' Wis. 
Stat. Sec.  961.01(19)(a) (West, Westlaw current through 2019 Act 21, 
published November 14, 2019).
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    \5\ Under Wisconsin law, ``dispensing'' a controlled substance 
includes ``prescribing'' a controlled substance. Wis. Stat. Sec.  
961.01(7) (West, Westlaw current through 2019 Act 21, published 
November 14, 2019).
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    Here, the undisputed evidence in the record is that Registrant is 
not currently licensed as a RN or an APN, prerequisites for her to be 
licensed as an APNP. As such, she is not authorized to dispense 
controlled substances in Wisconsin, the state in which she is 
registered with the DEA. Since Registrant lacks authority to dispense 
controlled substances in Wisconsin, she is not eligible to hold a DEA 
registration. 21 U.S.C. 823(f). Accordingly, I 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 
MW2120006 issued to Theresa L. Wendt, N.P. I further hereby deny any 
pending application of Theresa L. Wendt, N.P. to renew or modify this 
registration, as well as any other applications of Theresa L. Wendt, 
N.P. for an additional registration in Wisconsin. This Order is 
effective March 4, 2020.

    Dated: January 3, 2020.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2020-01970 Filed 1-31-20; 8:45 am]
 BILLING CODE 4410-09-P