[Federal Register Volume 85, Number 195 (Wednesday, October 7, 2020)]
[Notices]
[Pages 63294-63295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22213]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Jacqueline G. Curtis, M.D.; Decision and Order

    On December 18, 2019, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, 
Government), issued an Order to Show Cause (hereinafter, OSC) to 
Jacqueline G. Curtis, M.D. (hereinafter, Registrant) of Jackson, 
Mississippi. OSC, at 1. The OSC proposed the revocation of Registrant's 
Certificate of Registration No. FC8151475. It alleged that Registrant 
is without ``authority to handle controlled substances in the State of 
Mississippi, the state in which [Registrant is] registered with the 
DEA.'' Id. (citing 21 U.S.C. 823(f) and 824(a)(3)).
    Specifically, the OSC alleged that the Mississippi State Board of 
Medical Licensure (hereinafter, MSBML) issued an Order of Temporary 
Suspension on November 6, 2019. Id. at 2. This Order, according to the 
OSC, suspended Registrant's license to practice medicine. Id. at 2. The 
OSC further stated that Registrant's license to practice medicine had 
expired on November 8, 2019, and remained expired; therefore, the OSC 
concluded that Registrant ``currently lack[s] authority to handle 
controlled substances in Mississippi.'' Id.
    The OSC notified Registrant of the right to request a hearing on 
the 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. Id. at 3 (citing 21 U.S.C. 
824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated April 24, 2020, a Diversion Investigator 
(hereinafter, DI 1) stated that her investigation revealed that 
although Registrant was registered with DEA to handle controlled 
substances in Mississippi, Registrant was separately licensed to 
practice medicine in the State of Texas and also resides in that state. 
Request for Final Agency Action (hereinafter, RFAA) Exhibit 
(hereinafter, RFAAX) 11 (Declaration of DI 1), at 2-3. As a result, and 
shortly after the December 18th issuance of the OSC, DI 1 contacted 
another Diversion Investigator (hereinafter, DI 2) of the agency's 
Dallas Field Division to request that office's assistance with service 
of the OSC on Registrant. Id.
    In a Declaration dated April 24, 2020, DI 2 stated that he and DEA 
Special Agent travelled to 4834 Worth Street, Dallas, Texas 75246 to 
meet with Registrant and serve her with the OSC on December 30, 2019. 
RFAAX 12 (Declaration of DI 2), at 2. Once at the above location, DEA 
personnel displayed their credentials and introduced themselves. Id. 
Based on a previous interaction, DI 2 stated that he recognized the 
individual who answered the door as the Registrant. Id. Registrant 
signed a DEA Form 12, Receipt for Cash or Other Items, to acknowledge 
her receipt of the Show Cause Order. Id.; see also RFAAX 6 (DEA Form 
12).
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on May 14, 2020. In its RFAA, the Government 
represents that it ``has not received any written correspondence, 
telephonic communication, or any other communication from Registrant, 
or any representative on her behalf in response to the [OSC].'' RFAA, 
at 4 (citing RFAAX 7, 8, and 9). The Government requests that 
Registrant's Certificate of Registration be revoked pursuant to 21 
U.S.C. 823(f) and 824(a)(3). Id.
    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 December 
30, 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

    Registrant is the holder of DEA Certificate of Registration No. 
FC8151475 at the registered address of the Clarity Clinic, 2500 N State 
Street, Jackson, Mississippi 39216. RFAAX 2 (Certification of 
Registration History). Pursuant to this registration, Registrant is 
authorized to dispense controlled substances in schedules II, IIN, III, 
IIIN, IV and V as a practitioner. Id.

The Status of Registrant's State License

    On November 6, 2019, the MSBML issued a Determination of Need for 
Temporary Suspension (hereinafter, Suspension). RFAAX 3, at 3-4. 
According to the Suspension, Registrant's ``continued practice o[f] 
unrestricted of medicine . . . would constitute an immediate danger to 
the public,'' and the Suspension suspended Registrant's license to 
practice medicine effective immediately. Id.
    After receiving the Suspension, Registrant agreed in writing to 
``voluntarily surrender her medical license [ ] to practice medicine in 
the State of Mississippi . . . effective immediately upon execution.'' 
\1\ RFAAX 4 (Surrender of Medical License (hereinafter, Surrender)), at 
1.
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    \1\ The Surrender was signed by Registrant and dated December __ 
2019. DI 1 stated in her declaration that she ``learned that it was 
accepted by the MSBML with an effective date of January 16, 2020.'' 
RFAAX 11, at 2. Based on the assertions of the DI and the evidence 
on the MSBML website, I find that the facts support that the 
Surrender was executed and is currently in effect.
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    According to Mississippi's online records, of which I take official 
notice, Registrant's license remains ``inactive'' and provides links to 
the Suspension and Surrender.\2\ Mississippi State Board of Medical 
Licensure, https://

[[Page 63295]]

gateway.msbml.ms.gov/verification.results.aspx (last visited September 
24, 2020).
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    \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 my finding by filing 
a properly supported motion for reconsideration of finding of fact 
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 to [email protected].
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    Accordingly, I find that Registrant currently is not licensed to 
engage in the practice of medicine in Mississippi the State in which 
Registrant is registered with the 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 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 F. App'x 826 (4th Cir. 2012); Frederick Marsh 
Blanton, M.D., 43 FR 27,616, 27,617 (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 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, 43 
FR at 27,617.
    According to Mississippi statute, ``no controlled substance in 
Schedule II . . . may be dispensed without the written prescription of 
a practitioner,'' and ``except when dispensed directly by a 
practitioner, other than a pharmacy, to an ultimate user, a controlled 
substance included in Schedule III or IV . . . shall not be dispensed 
without a written or oral valid prescription of a practitioner.'' Miss. 
Code Ann. Sec.  41-29-137(a)(1) and (a)(2) (West 2020). Further, ``a 
practitioner'' is defined as ``a physician, dentist, veterinarian, 
scientific investigator, optometrist . . . or other person licensed, 
registered or otherwise permitted to distribute, dispense, conduct 
research with respect to or to administer a controlled substance in the 
course of professional practice or research in this state.'' Miss. Code 
Ann. Sec.  41-29-105(y)(1) (West 2020). Mississippi regulations define 
a ``physician'' to be ``any person licensed to practice medicine, 
osteopathic medicine or podiatric medicine in the state of 
Mississippi.'' 30-2640 Miss. Code R. Sec.  1.2(C). The regulations 
further state that `` `prescriptive authority' means the legal 
authority of a professional licensed to practice in the state of 
Mississippi who prescribes controlled substances and is registered with 
the U.S. Drug Enforcement Administration in compliance with Title 21 
CFR, Part 1301 Food and Drugs.'' 30-2640 Miss. Code R. Sec.  1.2(F).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in Mississippi. As 
already discussed, a physician must be a licensed to practice medicine 
to have prescriptive authority for a controlled substance in 
Mississippi. Thus, because Registrant lacks authority to practice 
medicine in Mississippi and, therefore, is not authorized to prescribe 
controlled substances in Mississippi, Registrant is not eligible to 
maintain a DEA registration. 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 No. 
FC8151475 issued to Jacqueline G. Curtis, M.D. This Order is effective 
November 6, 2020.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-22213 Filed 10-6-20; 8:45 am]
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