[Federal Register Volume 90, Number 58 (Thursday, March 27, 2025)]
[Notices]
[Pages 13882-13884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-05164]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 25-9]
Joely Keen, A.P.R.N.; Decision and Order
On September 24, 2024, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Joely Keen,
A.P.R.N., of The Woodlands, Texas (Respondent). OSC, at 1, 4. The OSC
proposed the revocation of Respondent's DEA Certificate of Registration
No. MK4402210, alleging that Respondent's DEA registration should be
revoked because Respondent is ``without authority to prescribe,
administer, dispense, or otherwise handle controlled substances in the
State of Texas, the state in which [she is] registered with DEA.'' Id.
at 2 (citing 21 U.S.C. 824(a)(3)).
On October 22, 2024, Respondent requested a hearing,\1\ and on
October 23, 2024, Respondent filed an Answer to the allegations in the
OSC. See Order For Respondent To File Answer. On November 1, 2024, the
Government filed a Motion for Summary Disposition, to which Respondent
did not respond. On November 19, 2024, Administrative Law Judge Paul E.
Soeffing (the ALJ) granted the Government's Motion for Summary
Disposition and recommended the revocation of Respondent's
registration, finding that because Respondent lacks state authority to
handle controlled substances in Texas, the state in which
[[Page 13883]]
she is registered with DEA, ``there is no other fact of consequence for
th[e] tribunal to decide.'' Order Granting the Government's Motion for
Summary Disposition, and Recommended Rulings, Findings of Fact,
Conclusions of Law, and Decision of the Administrative Law Judge (RD),
at 5-6. Respondent did not file exceptions to the RD.
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\1\ Respondent initially responded to the OSC via email on
October 18, 2024, but her email did not include a hearing request.
See Respondent's Request for Hearing (October 18, 2024). On October
21, 2024, the Administrative Law Judge (ALJ) directed Respondent to
file a request for a hearing if she desired one, along with an
answer to the allegations in the OSC. Order for Respondent to File
Request for Hearing and Answer and for Government to File Evidence
of Lack of State Authority.
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Having reviewed the entire record, the Agency adopts and hereby
incorporates by reference the entirety of the ALJ's rulings, findings
of fact, conclusions of law, and recommended sanction as found in the
RD and summarizes and expands upon portions thereof herein.
Findings of Fact
According to Texas online records, of which the Agency takes
official notice, Respondent's Texas APRN license and Texas registered
nurse license are revoked.\2\ Texas Board of Nursing License
Verification Portal, https://txbn.boardsofnursing.org/licenselookup
(last visited date of signature of this Order). Accordingly, the Agency
finds that Respondent is not currently licensed to practice as an APRN
or registered nurse in Texas, the state in which she is registered with
DEA.\3\
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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).
\3\ 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.'' The material fact here is
that Registrant, as of the date of this decision, is not licensed to
practice medicine in Texas. Respondent may dispute this fact 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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Additionally, as of March 27, 2024, Respondent has not had an
active prescriptive authority agreement with a supervisory physician,
which is required for an advanced practice registered nurse (APRN) in
Texas to handle controlled substances. RD, at 4; 22 Tex. Admin. Code
sections 193.7(a), 222.4(a)(l)(A), 222.5(a).\4\
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\4\ See also Government's Notice of Filing of Evidence and
Motion for Summary Disposition, Exhibit 1.
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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 (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, 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. Gonzales v. Oregon, 546 U.S.
243, 270 (2006) (``The Attorney General can register a physician to
dispense controlled substances `if the applicant is authorized to
dispense . . . controlled substances under the laws of the State in
which he practices.' . . . The very definition of a `practitioner'
eligible to prescribe includes physicians `licensed, registered, or
otherwise permitted, by the United States or the jurisdiction in which
he practices' to dispense controlled substances. Sec. 802(21).''). The
Agency has applied these principles consistently. See, e.g., James L.
Hooper, M.D., 76 FR 71371, 71372 (2011), pet. for rev. denied, 481 F.
App'x 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616,
27617 (1978).\5\
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\5\ 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). 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, M.D., 76 FR 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, M.D., 43 FR 27617.
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According to Texas statute, ``dispense'' means ``the delivery of a
controlled substance in the course of professional practice or
research, by a practitioner or person acting under the lawful order of
a practitioner, to an ultimate user or research subject. The term
includes the prescribing, administering, packaging, labeling, or
compounding necessary to prepare the substance for delivery.'' Tex.
Health & Safety Code Ann. section 481.002(12) (2024). Further, a
``practitioner'' includes ``an advanced practice registered nurse or
physician assistant to whom a physician has delegated the authority to
prescribe or order a drug or device . . . .'' Id. section
481.002(39)(D). Texas statute provides that ``[a] physician may
delegate to an advanced practice registered nurse or physician
assistant, acting under adequate physician supervision, the act of
prescribing or ordering a drug or device as authorized through a
prescriptive authority agreement between the physician and the advanced
practice registered nurse or physician assistant, as applicable.'' Tex.
Occ. Code Ann. section 157.0512(a) (2024).
Here, the undisputed evidence in the record is that Respondent
lacks authority to handle controlled substances in Texas because her
Texas APRN license and Texas registered nurse license have both been
revoked. Respondent also lacks authority to handle controlled
substances in Texas because she has not had an active prescriptive
authority agreement with a supervisory physician since March 27, 2024.
As discussed above, an individual must be a licensed practitioner to
dispense a controlled substance in Texas, and for an advanced practice
registered nurse to meet the definition of a practitioner, he or she
must be delegated the authority to handle controlled substances via a
prescriptive authority agreement with a supervisory physician.
Thus, because Respondent lacks authority to practice as an advanced
practice registered nurse in Texas, Respondent is not authorized to
handle controlled substances in Texas and is therefore not eligible to
maintain a DEA registration. RD, at 5-6.
Accordingly, the Agency 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.
MK4402210 issued to Joely Keen, A.P.R.N. 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 Joely Keen, A.P.R.N., to renew
or modify this registration, as well as any other pending application
of Joely Keen, A.P.R.N., for additional registration in Texas. This
Order is effective April 28, 2025.
[[Page 13884]]
Signing Authority
This document of the Drug Enforcement Administration was signed on
March 18, 2025, by Acting Administrator Derek Maltz. 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. 2025-05164 Filed 3-26-25; 8:45 am]
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