[Federal Register Volume 90, Number 121 (Thursday, June 26, 2025)]
[Notices]
[Pages 27338-27341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-11731]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Scott Hansen, A.R.N.P.; Default Decision and Order
I. Introduction
On July 18, 2024, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause and Immediate Suspension of
Registration (OSC/ISO) to Scott Hansen, A.P.R.N., of Seattle, WA
(Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX)
2, at 1. The OSC/ISO informed Registrant of the immediate suspension of
his DEA Certificate of Registration, No. MH7100124, pursuant to 21
U.S.C. 824(d), alleging that Registrant's continued registration
constitutes `` `an imminent danger to the public health or
[[Page 27339]]
safety.' '' Id. (quoting 21 U.S.C. 824(d)). The OSC/ISO also proposed
the revocation of Registrant's registration, alleging that Registrant's
continued registration is inconsistent with the public interest and
Registrant is without state authority to handle controlled substances.
Id. at 1, 3 (citing 21 U.S.C. 823(g)(1), 824(a)(3), (4)).
More specifically, the OSC/ISO alleged that Registrant issued at
least five controlled substance prescriptions after the Washington
State Board of Nursing indefinitely suspended his Washington advanced
registered nurse practitioner (ARNP) license. Id. at 2. The OSC/ISO
also alleged that, due to the suspension of Registrant's Washington
ARNP license, Registrant does not have authority to handle controlled
substances in Washington, the state in which he is registered with DEA.
Id. at 3. The OSC/ISO alleged that Registrant's prescribing was in
violation of the Controlled Substances Act's (CSA's) implementing
regulations and Washington state law. Id. at 2.\1\
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\1\ The Agency need not adjudicate the criminal violations
alleged in the instant OSC/ISO. Ruan v. United States, 597 U.S. 450
(2022) (decided in the context of criminal proceedings).
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The OSC/ISO notified Registrant of his right to file with DEA a
written request for a hearing and an answer, 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. RFAAX 2, at 4-5 (citing 21 CFR 1301.43).
Here, Registrant did not request a hearing. RFAA, at 2.\2\ ``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/ISO].'' 21 CFR 1301.43(e); see also
RFAAX 2, at 4-5 (providing notice to Registrant).
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\2\ Based on the Government's submissions in its RFAA dated
January 14, 2025, the Agency finds that service of the OSC/ISO on
Registrant was adequate. According to the included Declaration from
a DEA Diversion Investigator (DI), on July 22, 2024, the DI went in
person to both Registrant's registered and mailing addresses, but
Registrant was not present at either address and appeared to no
longer live at the mailing address. RFAAX 1, at 1. On the same date,
the DI contacted the county assessor's office and confirmed that
Registrant had sold his residence. Id. at 2. The DI then contacted
the realtor of the sale, who confirmed the sale and advised the DI
that Registrant may have moved to Thailand, but noted that he/she
had not heard from Registrant since the sale. Id. No forwarding
address was provided. Id. On the same date, the DI tried contacting
Registrant via the telephone numbers associated with his
registration, but Registrant's office number was disconnected and he
did not answer his cell phone number. Id. The DI left a voicemail
and sent Registrant a text message on his cell phone. Id. On the
same date, the DI also emailed the OSC/ISO to Registrant's
registered email address. Here, the Agency finds that Registrant was
successfully served the OSC/ISO by email and that the DI's efforts
to serve Registrant by other means were `` `reasonably calculated,
under all the circumstances, to apprise [Registrant] of the pendency
of the action.' '' Jones v. Flowers, 547 U.S. 220, 226 (2006)
(quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314 (1950)); see also Mohammed S. Aljanaby, M.D., 82 FR 34,552,
34,552 (2017) (finding that service by email satisfies due process
where the email is not returned as undeliverable and other methods
have been unsuccessful).
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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] 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), 1301.46. RFAA, at 1; see
also 21 CFR 1316.67.
II. Lack of State Authority
A. Findings of Fact
The Agency finds that, in light of Registrant's default, the
factual allegations in the OSC/ISO are deemed admitted. Accordingly,
Registrant admits that on March 5, 2024, the Washington State Board of
Nursing indefinitely suspended Registrant's Washington ARNP license.
RFAAX 2, at 3. According to Washington online records, of which the
Agency takes official notice,\3\ Registrant's Washington ARNP license
remains suspended. Washington State Department of Health Provider
Credential Search, https://fortress.wa.gov/doh/providercredential (last
visited date of signature of this Order). Accordingly, the Agency finds
that Registrant is not licensed to practice as an ARNP in Washington,
the state in which he is registered with DEA.\4\
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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).
\4\ 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 as an ARNP in Washington. 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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B. 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.
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 71,371, 71,372
(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).\5\
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\5\ 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(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 at 71,371-72;
Sheran Arden Yeats, 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, M.D., 43 FR at
27,617.
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According to Washington statute, ``[a] practitioner may dispense or
deliver a controlled substance to or for an individual or animal only
for medical treatment or authorized research in the ordinary course of
that practitioner's profession.'' Wash. Rev. Code Sec. 69.50.308(j)
(2024). Further, a
[[Page 27340]]
``prescription'' means ``an order for controlled substances issued by a
practitioner duly authorized by law or rule in the state of Washington
to prescribe controlled substances within the scope of his or her
professional practice for a legitimate medical purpose.'' Id. Sec.
69.50.101(oo). Finally, a ``practitioner'' as defined by Washington
statute includes ``[an] advanced registered nurse practitioner . . .
under chapter 18.79 RCW.'' Id. Sec. 69.50.101(nn)(1).\6\
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\6\ Chapter 18.79 regulates nursing care.
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Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice as an ARNP in Washington, supra
II.A. As discussed above, an individual must be a licensed practitioner
to dispense or prescribe a controlled substance in Washington. Thus,
because Registrant currently lacks authority to practice as an ARNP in
Washington and, therefore, is not currently authorized to handle
controlled substances in Washington, Registrant is not eligible to
maintain a DEA registration. Accordingly, the Agency will order that
Registrant's DEA registration be revoked.
III. Public Interest
A. Applicable Law
As the Supreme Court stated in Gonzales v. Raich, ``the main
objectives of the CSA were to conquer drug abuse and to control the
legitimate and illegitimate traffic in controlled substances. . . . To
effectuate these goals, Congress devised a closed regulatory system
making it unlawful to . . . dispense[] or possess any controlled
substance except in a manner authorized by the CSA.'' 545 U.S. 1, at
12-13 (2005). In maintaining this closed regulatory system, ``[t]he CSA
and its implementing regulations set forth strict requirements
regarding registration, . . . drug security, and recordkeeping.'' Id.
at 14.
Here, the OSC/ISO's allegations concern the CSA's ``strict
requirements regarding registration'' and, therefore, go to the heart
of the CSA's ``closed regulatory system'' specifically designed ``to
conquer drug abuse and to control the legitimate and illegitimate
traffic in controlled substances.'' Id.
Improper Prescribing (21 CFR 1306.04(a); Wash. Admin. Code Sec. 246-
840-410(1)(a); Wash. Rev. Code Sec. Sec. 18.79.030(2), 18.130.190(7))
The OSC/ISO alleges that Registrant issued at least five controlled
substance prescriptions after the Washington State Board of Nursing
indefinitely suspended his Washington ARNP license. RFAAX 2, at 2.
According to CSA regulations, a prescription for a controlled substance
is proper only if ``issued for a legitimate medical purpose by an
individual practitioner acting in the usual course of his professional
practice.'' 21 CFR 1306.04(a).
Moreover, under Washington law, it is ``unlawful for a person to
practice or to offer to practice as an [ARNP] or as a nurse
practitioner in th[e] state unless that person has been licensed.''
Wash. Rev. Code Sec. 18.79.030(2). Washington law further requires
that an ARNP hold an active Washington ARNP license to have
prescriptive authority. Wash. Admin. Code Sec. 246-840-410(1)(a).\7\
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\7\ Washington law states that ``unlicensed practice of a
profession . . . for which a license is required . . . constitutes a
gross misdemeanor for a single violation,'' and each subsequent
violation is a class C felony. Wash. Rev. Code Sec. 18.130.190(7)
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B. Findings of Fact
Registrant is deemed to have admitted that following the suspension
of his Washington ARNP license on March 5, 2024, he issued at least
five prescriptions for controlled substances including amphetamine/
dextroamphetamine (a Schedule II stimulant), lisdexamfetamine (a
Schedule II stimulant), oxycodone/acetaminophen (a Schedule II opioid),
and buprenorphine (a Schedule II opioid). RFAAX 2, at 3. Registrant
admits that these prescriptions were issued from March 19, 2024,
through at least April 19, 2024, while he lacked a Washington ARNP
license. Id. Accordingly, Registrant admits and the Agency finds
substantial record evidence that these prescriptions were issued
outside the usual course of professional practice and not for a
legitimate medical purpose. Id.
C. Discussion
The Controlled Substances Act's Public Interest Factors
Pursuant to the CSA, ``[a] registration . . . to . . . distribute[
] or dispense a controlled substance . . . may be suspended or revoked
by the Attorney General upon a finding that the registrant . . . has
committed such acts as would render his registration under . . . [21
U.S.C. 823] inconsistent with the public interest as determined by such
section.'' 21 U.S.C. 824(a)(4). In the case of a ``practitioner,''
Congress directed the Attorney General to consider five factors in
making the public interest determination. 21 U.S.C. 823(g)(1)(A-E).\8\
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\8\ The five factors of 21 U.S.C. 823(g)(1)(A-E) are:
(A) The recommendation of the appropriate State licensing board
or professional disciplinary authority.
(B) The [registrant's] experience in dispensing, or conducting
research with respect to controlled substances.
(C) The [registrant's] conviction record under Federal or State
laws relating to the manufacture, distribution, or dispensing of
controlled substances.
(D) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(E) Such other conduct which may threaten the public health and
safety.
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The five factors are considered in the disjunctive. Gonzales v.
Oregon, 546 U.S. 243, 292-93 (2006) (Scalia, J., dissenting) (``It is
well established that these factors are to be considered in the
disjunctive,'' citing In re Arora, 60 FR 4,447, 4,448 (1995)); Robert
A. Leslie, M.D., 68 FR 15,227, 15,230 (2003). Each factor is weighed on
a case-by-case basis. Morall v. Drug Enf't Admin., 412 F.3d 165, 173-74
(DC Cir. 2005). Any one factor, or combination of factors, may be
decisive. Penick Corp. v. Drug Enf't Admin., 491 F.3d 483, 490 (DC Cir.
2007); Morall, 412 F.3d. at 185 n.2; David H. Gillis, M.D., 58 FR
37,507, 37,508 (1993).
According to Agency decisions, the Agency ``may rely on any one or
a combination of factors and may give each factor the weight [it] deems
appropriate in determining whether'' to revoke a registration. Id.; see
also Jones Total Health Care Pharmacy, LLC v. Drug Enf't Admin., 881
F.3d 823, 830 (11th Cir. 2018) (citing Akhtar-Zaidi v. Drug Enf't
Admin., 841 F.3d 707, 711 (6th Cir. 2016)); MacKay v. Drug Enf't
Admin., 664 F.3d 808, 816 (10th Cir. 2011); Volkman v. U. S. Drug Enf't
Admin., 567 F.3d 215, 222 (6th Cir. 2009); Hoxie v. Drug Enf't Admin.,
419 F.3d 477, 482 (6th Cir. 2005).
Moreover, while the Agency is required to consider each of the
factors, it ``need not make explicit findings as to each one.'' MacKay,
664 F.3d at 816 (quoting Volkman, 567 F.3d at 222); see also Hoxie, 419
F.3d at 482. ``In short, . . . the Agency is not required to
mechanically count up the factors and determine how many favor the
Government and how many favor the registrant. Rather, it is an inquiry
which focuses on protecting the public interest; what matters is the
seriousness of the registrant's misconduct.'' Jayam Krishna-Iyer, M.D.,
74 FR 459, 462 (2009). Accordingly, as the Tenth Circuit has
recognized, findings under a single factor can support the revocation
of a registration. MacKay, 664 F.3d at 821.
In this matter, while all of the 21 U.S.C. 823(g)(1) factors have
been considered, the Agency finds that the Government's evidence in
support of its
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prima facie public interest revocation case regarding Registrant's
violations of the CSA's implementing regulations is confined to Factors
B and D. RFAAX 2, at 3. Moreover, the Government has the burden of
proof in this proceeding. 5 U.S.C.A. 556(d); 21 CFR 1301.44.
Factors B and/or D--Registrant's Registration is Inconsistent With the
Public Interest
Evidence is considered under Public Interest Factors B and D when
it reflects compliance or non-compliance with federal and local laws
related to controlled substances and experience dispensing controlled
substances. 21 U.S.C. 823(g)(1)(B) and (D); see also Kareem Hubbard,
M.D., 87 FR 21,156, 21,162 (2022). Here, as the Agency finds above,
Registrant is deemed to admit and the Agency finds that Registrant
issued at least five controlled substance prescriptions after the
Washington State Board of Nursing suspended his Washington ARNP
license. Supra Section III. The Agency further finds that these
prescriptions were issued outside the usual course of professional
practice and not for a legitimate medical purpose. Supra Section III;
see also RFAAX 2, at 3.
As such, the Agency finds substantial record evidence that the
Registrant violated 21 CFR 1306.04(a), Wash. Admin. Code Sec. 246-840-
410(1)(a), and Wash. Rev. Code Sec. Sec. 18.79.030(2), 18.130.190(7).
After considering Factors B and D, the Agency further finds that
Registrant's registration is outside the public interest. 21 U.S.C.
823(g)(1). Accordingly, the Agency finds that the Government
established a prima facie case, that Registrant did not rebut that
prima facie case, and that there is substantial record evidence
supporting the revocation of Registrant's registration. 21 U.S.C.
823(g)(1).
D. Sanction
Here, the Government has met its prima facie burden of showing that
Registrant's continued registration is inconsistent with the public
interest due to his numerous violations pertaining to his controlled
substance prescribing. Accordingly, the burden shifts to Registrant to
show why he can be entrusted with a registration. Morall, 412 F.3d. at
174; Jones Total Health Care Pharmacy, LLC v. Drug Enf't Admin., 881
F.3d 823, 830 (11th Cir. 2018); Garrett Howard Smith, M.D., 83 FR
18,882, 18,904 (2018); supra section III.
The issue of trust is necessarily a fact-dependent determination
based on the circumstances presented by the individual registrant.
Jeffrey Stein, M.D., 84 FR 46,968, 46,972 (2019); see also Jones Total
Health Care Pharmacy, 881 F.3d at 833. Moreover, as past performance is
the best predictor of future performance, DEA Administrators have
required that a registrant who has committed acts inconsistent with the
public interest must accept responsibility for those acts and
demonstrate that he will not engage in future misconduct. Jones Total
Health Care Pharmacy, 881 F.3d at 833; ALRA Labs, Inc. v. Drug Enf't
Admin., 54 F.3d 450, 452 (7th Cir. 1995). A registrant's acceptance of
responsibility must be unequivocal. Jones Total Health Care Pharmacy,
881 F.3d at 830-31. In addition, a registrant's candor during the
investigation and hearing has been an important factor in determining
acceptance of responsibility and the appropriate sanction. Id. Further,
the Agency has found that the egregiousness and extent of the
misconduct are significant factors in determining the appropriate
sanction. Id. at 834 & n.4. The Agency has also considered the need to
deter similar acts by the registrant and by the community of
registrants. Jeffrey Stein, M.D., 84 FR at 46,972-73.
Here, Registrant did not request a hearing and did not otherwise
avail himself of the opportunity to refute the Government's case. As
such, there is no record evidence that Registrant takes responsibility,
let alone unequivocal responsibility, for the founded violations,
meaning, among other things, that it is not reasonable to believe that
Registrant's future controlled substance-related actions will comply
with legal requirements. Accordingly, Registrant did not convince the
Agency that he can be entrusted with a registration.
Further, the interests of specific and general deterrence weigh in
favor of revocation. Given the foundational nature of Registrant's
violations, a sanction less than revocation would send a message to the
existing and prospective registrant community that compliance with the
law is not a condition precedent to maintaining a registration.
In sum, Registrant has not offered any evidence on the record that
rebuts the Government's case for revocation of his registration, and
Registrant has not demonstrated that he can be entrusted with the
responsibility of registration. Accordingly, the Agency will order the
revocation of Respondent's registration.\9\
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\9\ In this matter there are two separate and distinct grounds
by which the Agency proposed revocation, Registrant lost state
authority and his registration is outside the public interest; each
ground, standing alone, supports the Agency's decision to revoke.
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Order
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21
U.S.C. 824(a) and 21 U.S.C. 823(g)(1), I hereby revoke DEA Certificate
of Registration No. MH7100124 issued to Scott Hansen, A.P.R.N. Further,
pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C.
824(a) and 21 U.S.C. 823(g)(1), I hereby deny any pending applications
of Scott Hansen, A.P.R.N., to renew or modify this registration, as
well as any other pending application of Scott Hansen, A.P.R.N., for
additional registration in Washington. This Order is effective July 28,
2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on
June 20, 2025, by Acting Administrator Robert J. Murphy. 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.
Gregory Aul,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2025-11731 Filed 6-25-25; 8:45 am]
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