[Federal Register Volume 88, Number 4 (Friday, January 6, 2023)]
[Notices]
[Pages 1098-1099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00009]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Valerie L. Augustus, M.D.; Decision and Order

    On August 5, 2022, the Drug Enforcement Administration 
(hereinafter, DEA or Government) issued an Order to Show Cause 
(hereinafter, OSC) to Valerie L. Augustus, M.D. (hereinafter, 
Registrant). Request for Final Agency Action (hereinafter, RFAA), 
Exhibit (hereinafter, RFAAX) 1 (OSC), at 1, 3. The OSC proposed the 
revocation of Registrant's Certificate of Registration No. FA8056043 at 
the registered address of 2205 West Street, Germantown, TN 38138. Id. 
at 1. The OSC alleged that Registrant's registration should be revoked 
because Registrant is ``without authority to handle controlled 
substances in the State of Tennessee, the state in which [she is] 
registered with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
    The Agency makes the following findings of fact based on the 
uncontroverted evidence submitted by

[[Page 1099]]

the Government in its RFAA,\1\ which was received on December 5, 
2022.\2\
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    \1\ The Government's RFAA is dated November 15, 2022. RFAA, at 
5.
    \2\ Based on a Declaration from a DEA Diversion Investigator, 
the Agency finds that the Government's service of the OSC on 
Registrant was adequate. RFAAX 2, 2. Further, based on the 
Government's assertions in its RFAA, the Agency finds that more than 
thirty days have passed since Registrant was served with the OSC and 
Registrant has neither requested a hearing nor submitted a written 
statement or corrective action plan and therefore has waived any 
such rights. RFAA, at 2; see also 21 CFR 1301.43 and 21 U.S.C. 
824(c)(2).
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Findings of Fact

    On July 21, 2021, the Tennessee Board of Medical Examiners issued a 
Final Order suspending Registrant's Tennessee medical license. RFAAX 2, 
at 5, 8, 11.
    According to Tennessee's online records, of which the Agency takes 
official notice, Registrant's license is still suspended.\3\ Tennessee 
Department of Health License Verification, https://apps.health.tn.gov/Licensure/default.aspx (last visited date of signature of this Order). 
Accordingly, the Agency finds that Registrant is not licensed to engage 
in the practice of medicine in Tennessee, the state in which she is 
registered with the DEA.
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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 the Agency's 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 and response shall be filed and served by 
email to the other party and to Office of the Administrator, Drug 
Enforcement Administration at [email protected].
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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 
Controlled Substances Act (hereinafter, 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 71371 (2011), pet. for rev. denied, 481 F. App'x 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 
(1978).\4\
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    \4\ 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.
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    According to Tennessee statute, ``dispense'' means ``to deliver a 
controlled substance to an ultimate user or research subject by or 
pursuant to the lawful order of a practitioner, including the 
prescribing, administering, packaging, labeling, or compounding 
necessary to prepare the substance for that delivery.'' Tenn. Code Ann. 
Sec.  39-17-402(7) (2022). Further, a ``practitioner'' means ``a 
physician . . . 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.'' Id. at Sec.  39-17-402(23)(A).
    Here, the undisputed evidence in the record is that Registrant 
lacks authority to practice medicine in Tennessee. As discussed above, 
a physician must be a licensed practitioner to dispense a controlled 
substance in Tennessee. Thus, because Registrant lacks authority to 
practice medicine in Tennessee and, therefore, is not authorized to 
handle controlled substances in Tennessee, Registrant is not eligible 
to maintain a DEA registration. Accordingly, the Agency 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. 
FA8056043 issued to Valerie L. Augustus, M.D. 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 applications of Valerie L. Augustus, M.D., to 
renew or modify this registration, as well as any other pending 
application of Valerie L. Augustus, M.D., for additional registration 
in Tennessee. This Order is effective February 6, 2023.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
December 27, 2022, by Administrator Anne Milgram. That document with 
the original signature and date is maintained by DEA. For 
administrative purposes only, and in compliance with requirements of 
the Office of the Federal Register, the undersigned DEA Federal 
Register Liaison Officer has been authorized to sign and submit the 
document in electronic format for publication, as an official document 
of DEA. This administrative process in no way alters the legal effect 
of this document upon publication in the Federal Register.

Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2023-00009 Filed 1-5-23; 8:45 am]
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