Notice2023-23955
Stephen E. Van Noy, P.A.; Decision and Order
Primary source
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Published
October 31, 2023
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 88 Issue 209 (Tuesday, October 31, 2023)</title>
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[Federal Register Volume 88, Number 209 (Tuesday, October 31, 2023)]
[Notices]
[Pages 74525-74526]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23955]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Stephen E. Van Noy, P.A.; Decision and Order
On March 24, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Stephen E. Van Noy,
P.A. (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. MV2612681 at the registered address of
2101 Box Butte Avenue, Alliance, Nebraska 69301. Id. at 1. The OSC
alleged that Registrant's registration should be revoked because
Registrant is ``currently without authority to prescribe, administer,
dispense, or otherwise handle controlled substances in the state of
Nebraska, the state in which [he is] registered with DEA.'' Id. at 1-2
(citing 21 U.S.C. 824(a)(3)).
The OSC notified Registrant of his right to file with DEA 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. at 2 (citing 21 CFR 1301.43). Here, Registrant did not
request a hearing. RFAA, at 1, 2.\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
August 2, 2023, the Agency finds that service of the OSC on
Registrant was adequate. Specifically, the included Declaration of a
DEA Diversion Investigator asserts that on March 30, 2023,
Registrant was served with the OSC at his registered address via
certified mail. RFAAX 2, at 1.
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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] Sec. 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). See also id. Sec. 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, on
October 1, 2022, the Nebraska Department of Health and Human Services
revoked Registrant's Nebraska physician assistant license. RFAAX 1, at
1.
According to Nebraska's online records, of which the Agency takes
official notice, Registrant's Nebraska physician assistant license
remains revoked.\2\ Nebraska Department of Health and Human Services
License Information System Search, <a href="https://www.nebraska.gov/LISSearch/search.cgi">https://www.nebraska.gov/LISSearch/search.cgi</a> (last visited date of signature of this Order). Accordingly,
the Agency finds that Registrant is not licensed to practice as a
physician assistant in Nebraska, the state in which he is registered
with 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, 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 <a href="/cdn-cgi/l/email-protection#c0a4a5a1eea1a4a4afeea1b4b4afb2aea5b9b380a4a5a1eea7afb6"><span class="__cf_email__" data-cfemail="751110145b1411111a5b1401011a071b100c06351110145b121a03">[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 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.
See, e.g., James L. Hooper, D.O., 76 FR 71371 (2011), pet. for rev.
denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh Blanton,
D.O., 43 FR 27616, 27617 (1978).\3\
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\3\ 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) (this section, formerly section 823(f), was
redesignated as part of the Medical Marijuana and Cannabidiol
Research Expansion Act, Public Law 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,
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, D.O., 71 FR 39130, 39131 (2006);
Dominick A. Ricci, D.O., 58 FR 51104, 51105 (1993); Bobby Watts,
D.O., 53 FR 11919, 11920 (1988); Frederick Marsh Blanton, 43 FR at
27617.
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According to Nebraska statute, ``[d]ispense means to deliver a
controlled substance to an ultimate user or a research subject pursuant
to a medical order issued by a practitioner authorized to prescribe,
including the packaging, labeling, or compounding necessary to prepare
the controlled substance for such delivery.'' Neb. Rev. Stat. section
28-401(8) (2023). Further, a ``[p]ractitioner means a physician, a
physician assistant . . . or any other person licensed, registered, or
otherwise
[[Page 74526]]
permitted to distribute, dispense, prescribe, conduct research with
respect to, or administer a controlled substance in the course of
practice or research in this state.'' Id. Section 28-401(21).
Here, the undisputed evidence in the record is that Registrant
lacks authority to practice as a physician assistant in Nebraska. As
discussed above, a physician assistant must be a licensed practitioner
to dispense a controlled substance in Nebraska. Thus, because
Registrant lacks authority to practice as a physician assistant in
Nebraska and, therefore, is not authorized to handle controlled
substances in Nebraska, 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.
MV2612681 issued to Stephen E. Van Noy, 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 Stephen E. Van Noy, P.A., to
renew or modify this registration, as well as any other pending
application of Stephen E. Van Noy, P.A., for additional registration in
Nebraska. This Order is effective November 30, 2023.
Signing Authority
This document of the Drug Enforcement Administration was signed on
October 20, 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 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. 2023-23955 Filed 10-30-23; 8:45 am]
BILLING CODE 4410-09-P
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