[Federal Register Volume 88, Number 209 (Tuesday, October 31, 2023)]
[Notices]
[Pages 74525-74526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23955]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Stephen E. Van Noy, P.A.; Decision and Order

    On March 24, 2023, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Stephen E. Van Noy, 
P.A. (Registrant). Request for Final Agency Action (RFAA), Exhibit 
(RFAAX) 1, at 1, 3. The OSC proposed the revocation of Registrant's 
Certificate of Registration No. MV2612681 at the registered address of 
2101 Box Butte Avenue, Alliance, Nebraska 69301. Id. at 1. The OSC 
alleged that Registrant's registration should be revoked because 
Registrant is ``currently without authority to prescribe, administer, 
dispense, or otherwise handle controlled substances in the state of 
Nebraska, the state in which [he is] registered with DEA.'' Id. at 1-2 
(citing 21 U.S.C. 824(a)(3)).
    The OSC notified Registrant of his right to file with DEA a written 
request for hearing, and that if he failed to file such a request, he 
would be deemed to have waived his right to a hearing and be in 
default. Id. at 2 (citing 21 CFR 1301.43). Here, Registrant did not 
request a hearing. RFAA, at 1, 2.\1\ ``A default, unless excused, shall 
be deemed to constitute a waiver of the registrant's/applicant's right 
to a hearing and an admission of the factual allegations of the 
[OSC].'' 21 CFR 1301.43(e).
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    \1\ Based on the Government's submissions in its RFAA dated 
August 2, 2023, the Agency finds that service of the OSC on 
Registrant was adequate. Specifically, the included Declaration of a 
DEA Diversion Investigator asserts that on March 30, 2023, 
Registrant was served with the OSC at his registered address via 
certified mail. RFAAX 2, at 1.
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    Further, ``[i]n the event that a registrant . . . is deemed to be 
in default . . . DEA may then file a request for final agency action 
with the Administrator, along with a record to support its request. In 
such circumstances, the Administrator may enter a default final order 
pursuant to [21 CFR] Sec.  1316.67.'' Id. Sec.  1301.43(f)(1). Here, 
the Government has requested final agency action based on Registrant's 
default pursuant to 21 CFR 1301.43(c), (f). See also id. Sec.  1316.67.

Findings of Fact

    The Agency finds that, in light of Registrant's default, the 
factual allegations in the OSC are admitted. According to the OSC, on 
October 1, 2022, the Nebraska Department of Health and Human Services 
revoked Registrant's Nebraska physician assistant license. RFAAX 1, at 
1.
    According to Nebraska's online records, of which the Agency takes 
official notice, Registrant's Nebraska physician assistant license 
remains revoked.\2\ Nebraska Department of Health and Human Services 
License Information System Search, https://www.nebraska.gov/LISSearch/search.cgi (last visited date of signature of this Order). Accordingly, 
the Agency finds that Registrant is not licensed to practice as a 
physician assistant in Nebraska, the state in which he is registered 
with DEA.
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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 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 DEA 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 21 U.S.C. 823 ``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, 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, D.O., 76 FR 71371 (2011), pet. for rev. 
denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh Blanton, 
D.O., 43 FR 27616, 27617 (1978).\3\
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    \3\ This rule derives from the text of two provisions of the 
Controlled Substances Act (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(g)(1) (this section, formerly section 823(f), was 
redesignated as part of the Medical Marijuana and Cannabidiol 
Research Expansion Act, Public Law 117-215, 136 Stat. 2257 (2022)). 
Because Congress has clearly mandated that a practitioner possess 
state authority in order to be deemed a practitioner under the CSA, 
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, D.O., 71 FR 39130, 39131 (2006); 
Dominick A. Ricci, D.O., 58 FR 51104, 51105 (1993); Bobby Watts, 
D.O., 53 FR 11919, 11920 (1988); Frederick Marsh Blanton, 43 FR at 
27617.
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    According to Nebraska statute, ``[d]ispense means to deliver a 
controlled substance to an ultimate user or a research subject pursuant 
to a medical order issued by a practitioner authorized to prescribe, 
including the packaging, labeling, or compounding necessary to prepare 
the controlled substance for such delivery.'' Neb. Rev. Stat. section 
28-401(8) (2023). Further, a ``[p]ractitioner means a physician, a 
physician assistant . . . or any other person licensed, registered, or 
otherwise

[[Page 74526]]

permitted to distribute, dispense, prescribe, conduct research with 
respect to, or administer a controlled substance in the course of 
practice or research in this state.'' Id. Section 28-401(21).
    Here, the undisputed evidence in the record is that Registrant 
lacks authority to practice as a physician assistant in Nebraska. As 
discussed above, a physician assistant must be a licensed practitioner 
to dispense a controlled substance in Nebraska. Thus, because 
Registrant lacks authority to practice as a physician assistant in 
Nebraska and, therefore, is not authorized to handle controlled 
substances in Nebraska, 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. 
MV2612681 issued to Stephen E. Van Noy, P.A. Further, pursuant to 28 
CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I 
hereby deny any pending applications of Stephen E. Van Noy, P.A., to 
renew or modify this registration, as well as any other pending 
application of Stephen E. Van Noy, P.A., for additional registration in 
Nebraska. This Order is effective November 30, 2023.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
October 20, 2023, 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. 2023-23955 Filed 10-30-23; 8:45 am]
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