[Federal Register Volume 90, Number 134 (Wednesday, July 16, 2025)]
[Notices]
[Pages 32016-32017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-13315]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Benson Sergiles, P.A.; Decision and Order
On December 2, 2024, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Benson Sergiles,
P.A., of Peoria, Arizona (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. MB7529261, alleging that
Registrant is ``currently without authority to . . . handle controlled
substances in the State of Arizona, the state in which [he is]
registered with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
The OSC notified Registrant of his right to file 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.
(citing 21 CFR 1301.43). Here, Registrant did not request a hearing.
RFAA, at 3.\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 May
6, 2025, the Agency finds that service of the OSC on Registrant was
adequate. The included declaration from a DEA Diversion Investigator
(DI) indicates that on January 15, 2025, the DI emailed a copy of
the OSC to Registrant at his registered email address but received
an ``Undeliverable'' email in response stating that Registrant's
registered email address was ``disabled.'' RFAAX 3, at 5. On the
same date, the DI sent a copy of the OSC to Registrant's registered
mailing address via USPS First Class Mail, but it was returned on
January 23, 2025. Id. at 3. The DI also mailed a copy of the OSC to
Registrant's ``mail to address'' and two additional business
addresses associated with Registrant. Id. at 4. On February 18,
2025, one of the copies was returned to the DI. Id. at 5. Here, the
Agency finds that the DI's efforts to serve Registrant at his
registered email address, registered mailing address, and multiple
other mailing addresses 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)). Therefore, due process notice requirements have been
satisfied.
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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. 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), and 1301.46. RFAA, at 4-5; see also
21 CFR 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,
Registrant's Arizona physician assistant license expired on January 2,
2023. RFAAX 2, at 1. Further, according to the OSC, his Arizona
physician assistant license specified that he was ``[n]ot certified to
prescribe controlled drugs,'' and the prescriptive authority under his
license before it expired was only for ``NON-CONTROLLED SUBSTANCES.''
Id. at 2. According to Arizona online records, of which the Agency
takes official notice,\2\ Registrant's Arizona physician assistant
license remains expired. Arizona Regulatory Board of Physician
Assistants Search, https://www.azpa.gov/PASearch/PASearch (last visited
date of signature of this Order). Accordingly, the Agency finds that
Registrant is not licensed to practice as a physician assistant in
Arizona, the state in which he 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 as a physician assistant in Arizona. 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 the 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 . . .
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[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).\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(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 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, M.D., 43 FR at
27,617.
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According to Arizona statute, ``[e]very person who manufactures,
distributes, dispenses, prescribes or uses for scientific purposes any
controlled substance within th[e] state or who proposes to engage in
the manufacture, distribution, prescribing or dispensing of or using
for scientific purposes any controlled substance within th[e] state
must first: (1) [o]btain and possess a current license or permit as a
medical practitioner as defined in Sec. 32-1901 . . . .'' Ariz. Rev.
Stat. Ann. Sec. 36-2522(A)(1) (2025). Section 32-1901 defines a
``[m]edical practitioner'' as ``any medical doctor . . . or other
person who is licensed and authorized by law to use and prescribe drugs
and devices to treat sick and injured human beings or animals or to
diagnose or prevent sickness in human beings or animals in [Arizona] or
any state, territory or district of the United States.'' Id. Sec. 32-
1901(56).
Here, the undisputed evidence in the record is that Registrant
lacks authority to practice as a physician assistant in Arizona. As
discussed above, only a licensed medical practitioner can dispense
controlled substances in Arizona. Thus, because Registrant lacks
authority to practice as a physician assistant in Arizona, and
therefore is not a licensed medical practitioner, Registrant is not
eligible to maintain a DEA registration in Arizona. Accordingly, the
Agency will order that Registrant's DEA registration in Arizona 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.
MB7529261 issued to Benson Sergiles, 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 Benson Sergiles, P.A., to renew
or modify this registration, as well as any other pending application
of Benson Sergiles, P.A., for additional registration in Arizona. This
Order is effective August 15, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on
July 10, 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.
Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2025-13315 Filed 7-15-25; 8:45 am]
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