Notice2024-22190
Wagner Gervais, P.A.; Decision and Order
Primary source
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Published
September 27, 2024
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 89 Issue 188 (Friday, September 27, 2024)</title>
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[Federal Register Volume 89, Number 188 (Friday, September 27, 2024)]
[Notices]
[Pages 79309-79310]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-22190]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 24-46]
Wagner Gervais, P.A.; Decision and Order
On May 7, 2024, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Wagner Gervais,
P.A., of Tucson, Arizona (Respondent). OSC, at 1, 4. The OSC proposed
the revocation of Respondent's DEA Certificate of Registration No.
MG7845778, alleging that Respondent's DEA registration should be
revoked because Respondent is ``without authority to prescribe,
administer, dispense, or otherwise 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)).
On May 21, 2024, Respondent requested a hearing and filed an
Answer. On June 4, 2024, the Government filed a Motion for Summary
Disposition, to which Respondent did not respond.\1\ On June 24, 2024,
Administrative Law Judge Teresa A. Wallbaum (the ALJ) granted the
Government's Motion for Summary Disposition and recommended the
revocation of Respondent's registration, finding that because
Respondent lacks state authority to handle controlled substances in
Arizona, the state in which he is registered with DEA, ``[t]here is no
genuine issue of material fact in this case.'' Order Granting the
Government's Motion for Summary Disposition, and Recommended
[[Page 79310]]
Rulings, Findings of Fact, Conclusions of Law, and Decision of the
Administrative Law Judge (RD), at 4-5. Respondent did not file
exceptions to the RD.
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\1\ On June 14, 2024, Respondent sought to continue the DEA
proceedings while appealing the loss of his state authority;
consistent with past precedent, the Administrative Law Judge denied
the continuance.
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Having reviewed the entire record, the Agency adopts and hereby
incorporates by reference the entirety of the ALJ's rulings, findings
of fact, conclusions of law, and recommended sanction as found in the
RD and summarizes and expands upon portions thereof herein.
Findings of Fact
On November 29, 2023, the Arizona Regulatory Board of Physician
Assistants revoked Respondent's Arizona physician assistant license.
RD, at 3.\2\ According to Arizona online records, of which the Agency
takes official notice, Respondent's Arizona physician assistant license
remains revoked.\3\ Arizona Regulatory Board of Physician Assistants,
Find Your PA, <a href="https://www.azpa.gov/PASearch/PASearch">https://www.azpa.gov/PASearch/PASearch</a> (last visited date
of signature of this Order). Accordingly, the Agency finds that
Respondent is not currently licensed to practice as a physician
assistant in Arizona, the state in which he is registered with DEA.
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\2\ See also Government's Notice of Filing of Evidence of Lack
of State Authority; Service of Order to Show Cause; and Motion for
Summary Disposition, Declaration of [Diversion Investigator],
Exhibit A, at 8-9.
\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, 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 Office of the Administrator, Drug
Enforcement Administration at <a href="/cdn-cgi/l/email-protection#b8dcddd996d9dcdcd796d9ccccd7cad6ddc1cbf8dcddd996dfd7ce"><span class="__cf_email__" data-cfemail="b5d1d0d49bd4d1d1da9bd4c1c1dac7dbd0ccc6f5d1d0d49bd2dac3">[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, 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, 71372 (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(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, 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. Moreover,
because ``the controlling question'' in a proceeding brought under
21 U.S.C. 824(a)(3) is whether the holder of a practitioner's
registration ``is currently authorized to handle controlled
substances in the [S]tate,'' Hooper, 76 FR 71371 (quoting Anne Lazar
Thorn, 62 FR 12847, 12848 (1997)), the Agency has also long held
that revocation is warranted even where a practitioner is still
challenging the underlying action. Bourne Pharmacy, 72 FR 18273,
18274 (2007); Wingfield Drugs, 52 FR 27070, 27071 (1987). Thus, it
is of no consequence that Respondent is still challenging the
underlying action here, see Respondent's Answer, at 1; Respondent's
Motion to Continue Show Cause Hearing. Rather, the Agency's finding
that Respondent is not currently authorized to dispense controlled
substances in Arizona, the state in which he is registered with DEA,
is controlling. Adley Dasilva, P.A., 87 FR 69341, 69341 n.2 (2022);
see also Order Denying Respondent's Motion to Continue.
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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. section 36-2522(A)(1) (2024). 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. section
32-1901.
Here, the undisputed evidence in the record is that Respondent
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 Respondent lacks
authority to practice as a physician assistant in Arizona, and
therefore is not a licensed medical practitioner, Respondent 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.
MG7845778 issued to Wagner Gervais, 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 Wagner Gervais, P.A., to renew
or modify this registration, as well as any other pending application
of Wagner Gervais, P.A., for additional registration in Arizona. This
Order is effective October 28, 2024.
Signing Authority
This document of the Drug Enforcement Administration was signed on
September 16, 2024, 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. 2024-22190 Filed 9-26-24; 8:45 am]
BILLING CODE 4410-09-P
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