Notice2024-31323
Kevin Petersen, M.D.; Decision and Order
Primary source
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Published
December 30, 2024
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 89 Issue 249 (Monday, December 30, 2024)</title>
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[Federal Register Volume 89, Number 249 (Monday, December 30, 2024)]
[Notices]
[Pages 106585-106587]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-31323]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Kevin Petersen, M.D.; Decision and Order
On November 22, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Kevin Petersen,
M.D., of Las Vegas, Nevada (Registrant). Request for Final Agency
Action (RFAA), Exhibit (RFAAX) 2, at 1, 3. The OSC proposed the
revocation of Registrant's Certificate of Registration No. BP0967818,
alleging that Registrant's registration should be revoked because
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Registrant is ``currently without authority to prescribe, administer,
dispense, or otherwise handle controlled substances in the State of
Nevada, the state in which [he is] registered with DEA.'' Id. at 2
(citing 21 U.S.C. 824(a)(3)).\1\
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\1\ According to Agency records, Registrant's registration
expired on March 31, 2024. The fact that a registrant allows his
registration to expire during the pendency of an OSC does not impact
the Agency's jurisdiction or prerogative under the Controlled
Substances Act (CSA) to adjudicate the OSC to finality. Jeffrey D.
Olsen, M.D., 84 FR 68474, 68476-79 (2019).
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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.\2\ ``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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\2\ Based on the Government's submissions in its RFAA dated
March 15, 2024, the Agency finds that service of the OSC on
Registrant was adequate. The included declaration from the DEA
Diversion Investigator (DI) indicates that on November 27, 2023,
under the belief that Registrant no longer lived in Nevada, the DI
sent a copy of the OSC to DEA's California Riverside Office for DEA
investigators from that office to attempt to personally serve
Registrant with a copy of the OSC at two California addresses
associated with Registrant. RFAAX 1, at 1. Registrant was not
present at either California address. Id. On November 30, 2023, the
DI sent copies of the OSC, via certified mail, to three different
addresses associated with Registrant, including two in California
and one in Nevada. Id. at 2. On or about December 13, 2023, the DI
received all three certified mailings back as undeliverable. Id.
Finally, on or about January 30, 2024, the DI sent a copy of the OSC
via email to two email addresses Registrant previously provided to
DEA. Id. The Agency finds that Registrant was successfully served
the OSC by email and that the DI's efforts to serve Registrant by
other means 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)); see also Mohammed S. Aljanaby, M.D., 82 FR 34552, 34552
(2017) (finding that service by email satisfies due process where
the email is not returned as undeliverable and other methods have
been unsuccessful). 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] 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), 1301.46. RFAA, at 1; 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 Nevada medical license expired on June 30, 2023. RFAAX 1,
at 2. Further, according to the OSC, Registrant's Nevada controlled
substance license was suspended and set to expire on October 31, 2024.
Id. According to Nevada online records, of which the Agency takes
official notice,\3\ Registrant's Nevada medical license is revoked.
Nevada State Board of Medical Examiners Licensee Search, <a href="https://nsbme.us.thentiacloud.net/webs/nsbme/register/#">https://nsbme.us.thentiacloud.net/webs/nsbme/register/#</a> (last visited date of
signature of this Order).\4\
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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 the DEA Office of the Administrator,
Drug Enforcement Administration at <a href="/cdn-cgi/l/email-protection#2d49484c034c494942034c5959425f4348545e6d49484c034a425b"><span class="__cf_email__" data-cfemail="2b4f4e4a054a4f4f44054a5f5f4459454e52586b4f4e4a054c445d">[email protected]</span></a>.
\4\ According to Nevada online records, Registrant's Nevada
controlled substance license referenced in the OSC is revoked;
however, there is an additional Nevada controlled substance license,
not referenced in the OSC, that is active and is recorded under the
same name as Registrant. Nevada State Board of Pharmacy License
Verification, <a href="https://online.nvbop.org/#/verifylicense">https://online.nvbop.org/#/verifylicense</a> (last visited
date of signature of this Order). Nonetheless, because Registrant's
Nevada medical license is undoubtedly revoked, even if this active
Nevada controlled substance license belongs to Registrant,
Registrant would still lack authority to handle controlled
substances in Nevada. See infra (Discussion).
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Accordingly, the Agency finds that Registrant is not licensed to
practice medicine in Nevada, the state in which he is registered with
DEA.
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.
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 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).\5\
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\5\ 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 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, M.D., 43 FR at 27617.
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According to Nevada statute, ``dispense'' means ``to deliver a
controlled substance to an ultimate user, patient 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.'' Nev. Rev. Stat.
Sec. 453.056(1) (2023). Further, a ``practitioner'' includes a
``physician . . . who holds a license to practice his or her profession
in [Nevada] and is registered pursuant to [the Nevada Uniform
Controlled Substances Act].'' Id. at Sec. 453.126(1).
Here, the undisputed evidence in the record is that Registrant
lacks authority to practice medicine in Nevada. As discussed above, an
individual must be a licensed practitioner to dispense a
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controlled substance in Nevada. Thus, because Registrant lacks
authority to practice medicine in Nevada, and, therefore, is not
authorized to handle controlled substances in Nevada, 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.
BP0967818 issued to Kevin Petersen, 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 Kevin Petersen, M.D., to renew
or modify this registration, as well as any other pending application
of Kevin Petersen, M.D., for additional registration in Nevada. This
Order is effective January 29, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on
December 20, 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. 2024-31323 Filed 12-27-24; 8:45 am]
BILLING CODE 4410-09-P
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</html>Indexed from Federal Register on December 30, 2024.
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