Notice2023-17385
Stephen K. Jones, M.D.; Decision and Order
Primary source
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Published
August 14, 2023
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 88 Issue 155 (Monday, August 14, 2023)</title>
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[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Notices]
[Pages 55072-55074]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17385]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Stephen K. Jones, M.D.; Decision and Order
On February 6, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Stephen K. Jones,
M.D. (Respondent). Request for Final Agency Action (RFAA), Exhibit
(RFAAX) 1, at 1, 3. The OSC proposed the revocation of Respondent's
Certificate of Registration No. FJ1057430 at the registered address
[[Page 55073]]
of 420 West 1500 South, Suite 100, Bountiful, Utah 84010. Id. at 1. The
OSC alleged that Respondent's registration should be revoked because
Respondent is ``currently without authority to handle controlled
substances in the State of Utah, the state in which [he is] registered
with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
The OSC notified Respondent that if Respondent ``request[ed] a
hearing and fail[ed] to timely file an answer, plead, or otherwise
defend, . . . [Respondent] shall be deemed to have waived the right to
a hearing and to be in default.'' Id. at 2. Here, Respondent made some
attempt to request a hearing,\1\ see RFAAX 3, but repeatedly failed to
file an answer, see RFAAX 4-6. Ultimately the Administrative Law Judge
determined that Respondent was in default and issued an Order
Terminating Proceedings. See RFAAX 7. ``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
order to show cause.'' 21 CFR 1301.43(e).
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\1\ Based on the Government's submissions, the Agency finds that
service of the OSC was adequate. The ``Government Notice of Service
of Order to Show Cause'' asserts that Respondent was personally
served with the OSC on February 14, 2023; moreover, Respondent
timely responded to the OSC via email on February 20, 2023. RFAAX 7,
at 1; RFAAX 3. Though Respondent's email did not follow the format
required to request a hearing, it did clearly state ``February 20,
2023: Hearing Requested.'' RFAAX 3, at 2; see also 21 CFR 1316.47.
The email ``provide[d] [Respondent's] perspective of events,'' but
did not admit, deny, or otherwise answer the factual allegations in
the OSC. Id., at 1; see also 21 CFR 1301.37(d)(3).
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Under 21 CFR 1301.43(f)(1), where ``the presiding officer has
issued an order terminating the proceeding . . . , 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 Sec. 1316.67 of this
chapter.'' Here, the Government has requested final agency action based
on Respondent's default pursuant to 21 CFR 1301.43(c), (f). See also
id. at Sec. 1316.67.
Findings of Fact
The Agency finds that, in light of Respondent's default, the
factual allegations in the OSC are admitted. According to the OSC, on
or about January 12, 2023, the Division of Professional Licensing of
the Department of Commerce of the State of Utah issued an Amended Order
of Adjudication suspending Respondent's license to practice as a
physician and to administer controlled substances. RFAAX 1, at 2.
According to Utah's online records, of which the Agency takes
official notice, both Respondent's Utah physician license and
Respondent's Utah controlled substance license are suspended.\2\ Utah
Division of Occupational and Professional Licensing, Licensee Lookup &
Verification System, <a href="https://secure.utah.gov/llv/search/index.html">https://secure.utah.gov/llv/search/index.html</a>
(last visited date of signature of this Order). Accordingly, the Agency
finds that Respondent is not authorized to practice medicine nor to
handle controlled substances in Utah, the state in which he is
registered with the 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, Respondent 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 <a href="/cdn-cgi/l/email-protection#5d39383c733c393932733c2929322f3338242e1d39383c733a322b"><span class="__cf_email__" data-cfemail="c8acada9e6a9acaca7e6a9bcbca7baa6adb1bb88acada9e6afa7be">[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 (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, 27,617
(1978).\3\
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\3\ 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) (this
section, formerly section 823(f), was redesignated as part of the
Medical Marijuana and Cannabidiol Research Expansion Act, Pub. L.
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, 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 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 27617.
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Under the Utah Controlled Substances Act, ``[e]very person who
manufactures, produces, distributes, prescribes, dispenses,
administers, conducts research with, or performs laboratory analysis
upon any controlled substance in Schedules I through V within [the]
state . . . shall obtain a license issued by the [Division of
Professional Licensing].'' Utah Code Ann. section 58-37-6(2)(a)(i)
(2022). Here, the admitted evidence in the record is that both
Respondent's Utah physician license and Respondent's Utah controlled
substance license are suspended. As such, Respondent is not authorized
to handle controlled substances in Utah and thus is not eligible to
maintain a DEA registration. 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.
FJ1057430 issued to Stephen K. Jones, M.D. 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 K. Jones, M.D., to
renew or modify this registration, as well as any other pending
application of Stephen K. Jones, M.D., for additional registration in
Utah. This Order is effective September 13, 2023
Signing Authority
This document of the Drug Enforcement Administration was signed on
August 7, 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
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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. 2023-17385 Filed 8-11-23; 8:45 am]
BILLING CODE 4410-09-P
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