[Federal Register Volume 85, Number 224 (Thursday, November 19, 2020)]
[Notices]
[Pages 73778-73780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25529]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 20-11]


Monica Ferguson, F.N.P., R.N.; Decision and Order

    On February 20, 2020, the Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to Monica 
Ferguson, F.N.P., R.N., (hereinafter, Respondent) of Lake Oswego, 
Oregon. OSC, at 1. The OSC proposed the revocation of Respondent's 
Certificate of Registration No. MF1358298. Id. It alleged that 
Respondent is without ``authority to handle controlled substances in 
Oregon, the state in which [Respondent is] registered with DEA.'' Id. 
See also 21 U.S.C. 823(f) and 824(a)(3).
    Specifically, the OSC alleged that the Oregon State Board of 
Nursing (hereinafter, Board) revoked Respondent's RN license number 
099000287RN and her NP-PP Family license number 200650008NP effective 
on December 31, 2019. Id. This revocation, according to the OSC, 
demonstrated that Respondent lacks authority to handle controlled 
substances in Oregon. Id. (citing 21 U.S.C. 802(21), 823(f), and 
824(a)(3)).
    The OSC notified Respondent 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

[[Page 73779]]

to elect either option. Id. at 2 (citing 21 CFR 1301.43). The OSC also 
notified Respondent of the opportunity to submit a corrective action 
plan. Id. at 3 (citing 21 U.S.C. 824(c)(2)(C)).
    By letter dated March 11, 2020, Respondent, pro se, timely 
requested a hearing.\1\ Hearing Request, at 1. In the Hearing Request, 
Respondent requested that DEA defer proceedings on the proposed 
revocation of her DEA registration until there is a decision from the 
Oregon Appellate Court on her March 3, 2020, request for an immediate 
remand or reversal of the Board's revocation of her state licenses. Id. 
at 2. Respondent also requested an extension of time to prepare for the 
DEA revocation proceedings in light of a number of delineated personal 
circumstances which Respondent described as ``extreme hardship[s].'' 
Id. at 1.
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    \1\ The Hearing Request was deemed filed on March 16, 2020. 
Briefing Schedule for Lack of State Authority Allegations dated 
March 16, 2020, at 1. I, thus, find that the Government's service of 
the OSC was adequate.
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    The Office of Administrative Law Judges put the matter on the 
docket and assigned it to Administrative Law Judge Mark M. Dowd 
(hereinafter, ALJ). The ALJ issued a Briefing Schedule for Lack of 
State Authority Allegations, dated March 16, 2020. The Government 
timely complied with the Briefing Schedule by filing a Motion for 
Summary Disposition on March 20, 2020, (hereinafter, Government Motion 
or Govt Motion). Order Granting the Government's Motion for Summary 
Disposition, and Recommended Rulings, Findings of Fact, Conclusions of 
Law, and Recommended Decision of the Administrative Law Judge, dated 
May 5, 2020, (hereinafter, Summary Disposition or SD), at 3. In its 
Motion, the Government submitted evidence that Respondent's Oregon 
nurse practitioner licenses had been revoked and that she therefore 
lacked authority to handle controlled substances in Oregon, the state 
in which she is registered with DEA. Govt Motion, at 1; SD, at 3. In 
light of these facts, the Government argued that DEA must revoke her 
registration. Govt Motion, at 3.
    On March 22, 2020, Respondent, asked that the Government Motion be 
denied, requested that the parties have a hearing, and referenced her 
Hearing Request, wherein she requested a deferral of proceedings or 
additional time to prepare evidence. See Email from Respondent, dated 
March 22, 2020; March 23, 2020 Order Granting Respondent Extension to 
File Response to Government's Motion for Summary Disposition 
(hereinafter, March 23, 2020 Order), at 1. In the March 23, 2020 Order, 
the ALJ denied Respondent's request to defer or stay proceedings. March 
23, 2020 Order, at 3. The ALJ then granted Respondent an extension of 
time to respond to the Government Motion. Id. at 5. The March 23, 2020 
Order also clearly explained to Respondent that the proceeding was 
focused on ``whether Respondent has lost her state authority to handle 
controlled substances,'' and that ``[t]he underlying merits of the 
Respondent's loss of state licensure are irrelevant.'' Id. at 2.
    On April 12, 2020, Respondent again asked for an extension of time 
to respond to the Government Motion. See Email from Respondent dated 
April 12, 2020. On April 13, 2020, the ALJ granted Respondent another 
extension of time to respond and referred back to the March 23, 2020 
Order outlining the relevant issues in dispute. Order Granting 
Respondent's Second Extension to File Response to Government's Motion 
for Summary Disposition, at 1. On May 4, 2020, Respondent timely filed 
her ``Response to Motion for Summary Disposition'' (hereinafter, 
Respondent's Response or Resp Response). In her Response, Respondent 
challenged the method of investigation and the merits of the underlying 
state action, and requested a stay of DEA's proceedings while she 
appealed the state action. See generally Resp Response; SD, at 4. 
Regarding the relevant issue--whether or not Respondent had state 
authority to handle controlled substances--Respondent explicitly 
admitted that she did not. Resp Response, at 8. Respondent ``agree[d] 
that she lacks the authority to handle controlled substance[s]'' and 
further ``acknowledge[d] that [her] license has been revoked.'' \2\ Id. 
at 8, 9.
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    \2\ Respondent challenges the date her license was revoked 
(indicating that it was actually revoked in February 2020) and 
argues that the matter is still pending because it is being 
appealed. Resp Response, at 8-9.
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    In the Summary Disposition, the ALJ again denied the Respondent's 
request to stay DEA's proceedings.\3\ SD, at 5-6. The ALJ noted that, 
even though the Respondent was actively engaged in negotiating or 
appealing a State Board decision, ``[i]t is not DEA's policy to stay 
[administrative] proceedings . . . while registrants litigate in other 
forums.'' SD, at 5 (citing Newcare Home Health Servs., 72 FR 42,126, 
42,127 n.2 (2007)). The ALJ then went on to grant the Government 
Motion. Id. The ALJ found that ``no dispute exists over the fact that 
the Respondent currently lacks state authority to handle controlled 
substances in the State of Oregon, . . . so there is no contested 
factual matter that could be introduced at a hearing that would, in the 
Agency's view, provide authority to allow the Respondent to continue to 
hold her DEA [registration].'' SD, at 8-9. By letter dated June 15, 
2020, the ALJ certified and transmitted the record to me for final 
Agency action. In that letter, the ALJ advised that neither party filed 
exceptions. I find that the time period to file exceptions has expired. 
See 21 CFR 1316.66.
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    \3\ I find no error in the ALJ's decision to continue DEA's 
proceedings.
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    I issue this Decision and Order based on the entire record before 
me. 21 CFR 1301.43(e). I make the following findings of fact.

Findings of Fact

Respondent's DEA Registration

    Respondent is the holder of DEA Certificate of Registration No. 
MF1358298 at the registered address of 18238 Tamaway Drive, Lake 
Oswego, Oregon, 97034. Govt Motion Exhibit (hereinafter, GX) 1, at 1. 
Pursuant to this registration, Respondent is authorized to dispense 
controlled substances in schedules II through V as a ``MLP-NURSE 
PRACTITIONER-DW/30.'' Id. Respondent's registration expired on 
September 30, 2020.\4\ Id.
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    \4\ The fact that Respondent allowed 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 
68,474 (2019).
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The Status of Respondent's State License

    On December 31, 2019, the Oregon State Board of Nursing issued a 
Final Order revoking Respondent's Nurse Practitioner's Certificate and 
Registered Nurse License. GX 2, at 33. According to the Final Order, 
Respondent ``engaged in fraud or deceit in the practice of nursing,'' 
``fraud or deceit in the admission to [the practice of nursing],'' 
``gross incompetence . . . [or] gross negligence with regard to patient 
care,'' and ``no less than six separate instances of conduct derogatory 
to the standards of nursing.'' Id. Examples of the misconduct that gave 
rise to these findings include, but are not limited to, Respondent 
operating a vehicle while impaired by prescription narcotics and 
possessing controlled substances that were stored in unlabeled bottles 
and that were not prescribed to her. Id. at 3-4, 10-12, 17.
    According to Oregon's online records, of which I take official 
notice,

[[Page 73780]]

Respondent's registered nurse and family nurse practitioner licenses 
are still revoked.\5\ Oregon State Board of Nursing License 
Verification Search, http://osbn.oregon.gov/OSBNVerification/default.aspx (last visited October 27, 2020). The Oregon records show 
that the end date for each of the license revocations is ``Ongoing.'' 
Id.
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    \5\ 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, Respondent may dispute my finding by filing 
a properly supported motion for reconsideration of findings 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 Respondent 
files a motion, the Government shall have fifteen calendar days to 
file a response. Any motion and response shall be filed and served 
by email to the other party and to the Office of the Administrator 
at [email protected].
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    Respondent ``agrees that she lacks the authority to handle 
controlled substance[s]'' and further ``acknowledges that [her] license 
has been revoked.'' \6\ Resp Response, at 8, 9. Based on the entire 
record before me, I find that Respondent currently is not licensed to 
engage in the practice of nursing in Oregon, the State in which 
Respondent is registered with DEA.
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    \6\ Respondent challenges the date her license was revoked 
(indicating that it was actually revoked in February 2020) and 
argues that the matter is still pending because it is being 
appealed. Resp Response, at 8-9. I find these arguments to be 
irrelevant as Respondent is not currently authorized to dispense 
controlled substances in Oregon.
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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[\7\] 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).
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    \7\ ``[D]ispense[ ] means to deliver a controlled substance to 
an ultimate user . . . by, or pursuant to the lawful order of, a 
practitioner, including the prescribing and administering of a 
controlled substance. . . .'' 21 CFR 802(10).
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    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.
    Moreover, because ``the controlling question'' in a proceeding 
brought under 21 U.S.C. 824(a)(3) is whether the holder of a 
practitioner's registration ``is currently authorized to handle 
controlled substances in the state,'' Hooper, 76 FR at 71,371 (quoting 
Anne Lazar Thorn, 62 FR 12,847, 12,848 (1997)), the Agency has also 
long held that revocation is warranted even where a practitioner is 
still challenging the underlying action. Bourne Pharmacy, 72 F 18,273, 
18,274 (2007); Wingfield Drugs, 52 FR 27,070, 27,071 (1987). Thus, it 
is of no consequence that the action is being appealed. What is 
consequential is my finding that Respondent is no longer currently 
authorized to dispense controlled substances in Oregon, the state in 
which she is registered.
    According to Oregon's statute, ``[a] registered nurse licensed as a 
nurse practitioner is authorized to prescribe drugs for the use of and 
administration to other persons if approval has been given under 
[Oregon Revised Statutes] 678.390.'' Or. Rev. Stat. Ann. Sec.  678.375 
(West 2020) (emphasis added). Oregon Revised Statute Sec.  678.390, 
provides that ``[t]he Oregon State Board of Nursing may authorize a 
licensed nurse practitioner or licensed clinical nurse specialist to 
write prescriptions, including prescriptions for controlled substances 
listed in schedules II, III, III N, IV and V.'' Or. Rev. Stat. Ann. 
Sec.  678.390(1) (West 2020) (emphasis added). The Oregon statute also 
states that ``[t]he authority to write prescriptions or dispense 
prescription drugs may be denied, suspended or revoked by the Oregon 
State Board of Nursing upon proof that the authority has been abused.'' 
\8\ Id. Here, it is clear that Respondent is no longer a licensed nurse 
practitioner and it is thus clear that she is no longer authorized to 
prescribe, administer, or dispense controlled substances in Oregon.
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    \8\ Although it appears that the process for a nurse 
practitioner to become authorized for prescribing and dispensing 
controlled substances is distinct from the process of becoming a 
licensed nurse practitioner, the authorization does not appear to be 
separately listed on the verification website. However, it is clear 
from Oregon law that it is a prerequisite of prescribing authority 
to be licensed as a nurse practitioner.
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    The undisputed evidence in the record is that Respondent currently 
lacks authority to practice nursing in Oregon. As already discussed, a 
nurse practitioner must be a licensed nurse practitioner to prescribe 
or dispense a controlled substance in Oregon. Thus, because Respondent 
lacks authority to practice nursing in Oregon and, therefore, is not 
authorized to handle controlled substances in Oregon, Respondent is not 
eligible to maintain a DEA registration. Accordingly, I will order that 
Respondent'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. 
MF1358298 issued to Monica Ferguson. Further, pursuant to 28 CFR 
0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby 
deny any pending application of Monica Ferguson to renew or modify this 
registration, as well as any other application of Monica Ferguson, for 
additional registration in Oregon. This Order is effective December 21, 
2020.

Timothy J. Shea,
Acting Administrator.
[FR Doc. 2020-25529 Filed 11-18-20; 8:45 am]
BILLING CODE 4410-09-P