Notice2024-31330
Maria Dewitt, N.P.; 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 106581-106582]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-31330]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 24-52]
Maria Dewitt, N.P.; Decision and Order
On June 21, 2024, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Maria Dewitt, N.P.
(Respondent). OSC, at 1, 3. The OSC proposed the revocation of
Respondent's DEA Certificate of Registration No. MD7143960, at the
registered address of 9038 High Branch, San Antonio, Texas. Id. at 1.
The OSC alleged that Respondent's DEA registration should be revoked
because Respondent is ``without authority to handle controlled
substances in the State of Texas, the state in which [she is]
registered with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).
On June 25, 2024, Respondent requested a hearing and filed an
Answer to the OSC.\1\ On June 28, 2024, the Government filed a Notice
of Filing of Evidence and Motion for Summary Disposition, which
Respondent opposed.\2\ On August 2, 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 Texas, the state in which she 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 Rulings, Findings of Fact, Conclusions of
Law, and Decision of the Administrative Law Judge (RD), at 8-9.
Respondent did not file exceptions to the RD.\3\
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\1\ Respondent's June 25, 2024, hearing request was an amended
version of an initial document filed on June 24, 2024. Respondent
also submitted an amended version of her Answer on the same day of
its initial filing, June 25, 2024.
\2\ See Respondent's Response to Government's Motion for Summary
Disposition and Request for Hearing (Opposition).
\3\ On August 5, 2024, Respondent filed a letter, dated August
2, 2024, seeking to appeal the ALJ's Recommended Decision; however,
in this letter, Respondent did not present any additional arguments
for the Agency to consider.
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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
The Government has alleged that Respondent lacks a prescriptive
authority delegation agreement with a physician, which is required for
a Texas advanced practice registered nurse to handle controlled
substances. RD, at 4, 7-8.\4\ According to Texas online records, of
which the Agency takes official notice, Respondent does not currently
have a prescriptive authority delegation agreement with a physician.\5\
[[Page 106582]]
Texas Medical Board, Healthcare Provider Search, <a href="https://profile.tmb.state.tx.us/Search.aspx">https://profile.tmb.state.tx.us/Search.aspx</a> (last visited date of signature of
this Order). Accordingly, the Agency finds that Respondent is not
currently authorized to handle controlled substances in Texas, the
state in which she is registered with the DEA.\6\
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\4\ See also Government's Notice of Filing of Evidence and
Motion for Summary Disposition, Exhibit (GX) 2.
\5\ 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#432726226d2227272c6d2237372c312d263a30032726226d242c35"><span class="__cf_email__" data-cfemail="7b1f1e1a551a1f1f14551a0f0f1409151e02083b1f1e1a551c140d">[email protected]</span></a>.
\6\ In her Opposition, Respondent argues that there are material
facts in dispute that require a hearing, specifically mentioning her
state and federal authority to handle controlled substances.
Respondent's Opposition, at 6. However, as the ALJ correctly notes
in the RD, Respondent does not actually dispute the material fact
that she lacks state and federal authority to handle controlled
substances, with Respondent admitting that she has no current
prescriptive authority delegation agreement with a physician. RD, at
9; Respondent's Opposition, at 2, 11. The Agency also agrees with
the ALJ's finding that the other facts in dispute, such as
Respondent's address, are immaterial and not dispositive to the
adjudication of the current matter. RD, at 9 n.7 (citing Michael
Jones, M.D., 86 FR 20728, 20729 (2021)).
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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. 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).\7\
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\7\ 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 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 Texas statute, ``dispense'' means ``the delivery of a
controlled substance in the course of professional practice or
research, by a practitioner or person acting under the lawful order of
a practitioner, to an ultimate user or research subject. The term
includes the prescribing, administering, packaging, labeling, or
compounding necessary to prepare the substance for delivery.'' Tex.
Health & Safety Code Ann. Sec. 481.002(12) (2024). Further, a
``practitioner'' includes ``an advanced practice registered nurse or
physician assistant to whom a physician has delegated the authority to
prescribe or order a drug or device . . . .'' Id. Sec. 481.002(39)(D).
Texas statute provides that ``[a] physician may delegate to an advanced
practice registered nurse or physician assistant, acting under adequate
physician supervision, the act of prescribing or ordering a drug or
device as authorized through a prescriptive authority agreement between
the physician and the advanced practice registered nurse or physician
assistant, as applicable.'' Tex. Occ. Code Ann. Sec. 157.0512(a)
(2024).
Here, the undisputed evidence in the record is that Respondent
lacks authority to handle controlled substances in Texas because she
does not have a prescriptive authority delegation agreement with a
physician. As discussed above, a Texas advanced practice registered
nurse must have a prescriptive authority delegation agreement with a
physician to dispense controlled substances in Texas. Thus, because
Respondent lacks authority to handle controlled substances in Texas,
Respondent is not eligible to maintain a DEA registration. RD, at 8.
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.
MD7143960 issued to Maria Dewitt, N.P. 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 Maria Dewitt, N.P., to renew or
modify this registration, as well as any other pending application of
Maria Dewitt, N.P., for additional registration in Texas. 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. 2024-31330 Filed 12-27-24; 8:45 am]
BILLING CODE 4410-09-P
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