Notice2023-00009
Valerie L. Augustus, M.D.; Decision and Order
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 6, 2023
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 88 Issue 4 (Friday, January 6, 2023)</title>
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[Federal Register Volume 88, Number 4 (Friday, January 6, 2023)]
[Notices]
[Pages 1098-1099]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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, <a href="https://apps.health.tn.gov/Licensure/default.aspx">https://apps.health.tn.gov/Licensure/default.aspx</a> (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 <a href="/cdn-cgi/l/email-protection#6d09080c430c090902430c1919021f0308141e2d09080c430a021b"><span class="__cf_email__" data-cfemail="dfbbbabef1bebbbbb0f1beababb0adb1baa6ac9fbbbabef1b8b0a9">[email protected]</span></a>.
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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]
BILLING CODE 4410-09-P
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