Notice2025-19058
Henry Emery, M.D.; Decision and Order
Primary source
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Published
September 30, 2025
Issuing agencies
Justice DepartmentDrug Enforcement Administration
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<title>Federal Register, Volume 90 Issue 187 (Tuesday, September 30, 2025)</title>
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[Federal Register Volume 90, Number 187 (Tuesday, September 30, 2025)]
[Notices]
[Pages 46927-46930]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-19058]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Henry Emery, M.D.; Decision and Order
On August 29, 2024, the Drug Enforcement Administration (DEA or
Government) issued two Orders to Show Cause (OSCs) to Henry Emery, M.D.
(Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX)
A, at 1, 3; RFAAX B, at 1, 8. The first OSC proposed the revocation of
Registrant's DEA registration, No. FE7195452, in the state of South
Carolina, alleging that Registrant is ``currently without authority to
handle controlled substances in South Carolina, the state in which [he
is] registered with DEA.'' RFAAX A, at 2 (citing 21 U.S.C. 824(a)(3)).
The second OSC proposed the revocation of Registrant's DEA
registration, No. BE7654127, in the state of North Carolina, alleging
two grounds: (1) that Registrant is ``currently without authority to
handle controlled substances in the State of North Carolina,'' RFAAX B,
at 3 (citing 21 U.S.C. 824(a)(3)); and (2) that Registrant's
registration is inconsistent with the public interest. RFAAX B, at 3
(citing 21 U.S.C. 823(g)(1)(B), (D), 824(a)(4)). More specifically, the
second OSC alleged that Registrant issued controlled substance
prescriptions to five patients ``outside the usual course of
professional practice and not for a legitimate medical purpose,'' in
violation of federal law. Id.
On October 28, 2024, the Government submitted an RFAA requesting
that the Agency issue a default final order revoking Registrant's
registrations. RFAA, at 3.\1\ After carefully reviewing the entire
record and conducting the analysis as set forth in more detail below,
the Agency grants the Government's request for final agency action and
revokes Registrant's registrations in South Carolina and North
Carolina.
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\1\ The RFAA states that ``the Administrator is authorized to
render the Agency's final order, without . . . making a finding of
fact.'' RFAA, at 2-3 (citing 21 CFR 1301.43(c), (f), and 1301.46).
However, 21 CFR 1316.67 requires that the Administrator's final
order ``set forth the final rule and the findings of fact and
conclusions of law upon which the rule is based.'' See JYA LLC d/b/a
Webb's Square Pharmacy, 90 FR 31244, 31246 n.7 (2025).
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I. Default Determination
Under 21 CFR 1301.43, a registrant entitled to a hearing who fails
to file a timely hearing request ``within 30 days after the date of
receipt of the [OSC] . . . shall be deemed to have waived their right
to a hearing and to be in default'' unless ``good cause'' is
established for the failure. 21 CFR 1301.43(a) and (c)(1). A registrant
who has requested a hearing but who fails to timely file an answer also
is ``deemed to have waived their right to a hearing and to be in
default.'' 21 CFR 1301.43(c)(2). Unless excused, a default is deemed to
constitute ``an admission of the factual allegations of the [OSC].'' 21
CFR 1301.43(e).
Here, the OSCs notified Registrant of his right to file a written
request for a 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.\2\ RFAAX A, at 2 (citing 21 CFR 1301.43); RFAAX B, at 7
(same). Registrant timely requested a hearing and filed a purported
answer to both OSCs on October 11, 2024. RFAAX D, at 1 and n.1. The
same day, DEA
[[Page 46928]]
Administrative Law Judge Paul Soeffing (ALJ) issued an order finding
that Registrant's answer did not comply with DEA's regulations and
requesting a revised answer from Registrant. Id. at 1-2 (citing 21 CFR
1301.37(d)(3)). However, Registrant did not respond. The ALJ made a
second futile attempt to bring Registrant into compliance. RFAAX E, at
1-2. Ultimately, on October 24, 2024, the ALJ terminated the
proceedings, finding that Registrant had ``waived his right to a
hearing and is in default.'' RFAAX F, at 2 (citing 21 CFR
1301.43(c)(2)).
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\2\ Based on the Government's submissions in its RFAA dated
October 28, 2024, the Agency finds that service of the OSCs on
Registrant was adequate. The included attachments show that on
September 17, 2024, a Diversion Investigator personally served the
OSCs on Registrant and Registrant signed a receipt of service. RFAAX
C. Accordingly, the Agency finds that the Government's service of
the OSCs on Registrant was adequate.
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The Agency agrees with the ALJ and finds that Registrant's
purported answer did not comply with DEA's regulations, see 21 CFR
1301.37(d)(3), and that Registrant's failure to file an amended answer
after being provided two opportunities to do so constitutes a waiver of
his right to a hearing. ``Under Agency precedent, the failure to comply
with an ALJ's orders may constitute a waiver of a hearing request and
cause for termination of the proceeding.'' Robert M. Brodkin, D.P.M.,
77 FR 73678, 73679 (2012); see also Robert L. Carter, D.D.S., 90 FR
9631, 9632 (2025) (upholding ALJ's sanction terminating a hearing
request as a result of noncompliance to ALJ orders); David H. Betat,
M.D., 87 FR 21175, 21180 (2022) (upholding ALJ's finding of hearing
waiver for failure to file a response to an ALJ order); Kamir Garces-
Mejias, M.D., 72 FR 54931, 54931-32 (2007) (same); Andrew Desonia,
M.D., 72 FR 54293, 54294 (2007) (same); Brenton D. Glisson, M.D., 72 FR
54296, 54296 (2007) (same); Alan R. Schankman, M.D., 63 FR 45260, 45260
(1998) (same). Accordingly, the Agency finds that Registrant is in
default and therefore has admitted to the factual allegations in the
OSCs. 21 CFR 1301.43(e).
II. Loss of State Authority
A. Findings of Fact
Registrant is deemed to admit that his South Carolina medical
license was temporarily suspended by the South Carolina Board of
Medical Examiners on March 14, 2024. RFAAX A, at 2. According to South
Carolina online records, of which the Agency takes official notice,\3\
Registrant's South Carolina medical license has a status of
``Suspended.'' South Carolina LLR Search, <a href="https://verify.llronline.com/LicLookup/Med/Med.aspx?div=16&AspxAutoDetectCookieSupport=1">https://verify.llronline.com/LicLookup/Med/Med.aspx?div=16&AspxAutoDetectCookieSupport=1</a> (last
visited date of signature on this Order). Accordingly, the Agency finds
that Registrant is not licensed to practice medicine in South Carolina,
a state in which he is registered with DEA.\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).
\4\ 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.'' The material fact here is
that Registrant, as of the date of this Order, is not licensed to
practice medicine in South Carolina. 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 Office of
the Administrator, Drug Enforcement Administration, at
<a href="/cdn-cgi/l/email-protection#a3c7c6c28dc2c7c7cc8dc2d7d7ccd1cdc6dad0e3c7c6c28dc4ccd5"><span class="__cf_email__" data-cfemail="335756521d5257575c1d5247475c415d564a40735756521d545c45">[email protected]</span></a>.
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Registrant is also deemed to admit that he entered into an Interim
Non-Practice Agreement with the North Carolina Medical Board on
December 27, 2023, agreeing to ``not practice medicine until such a
time as [Registrant] is given permission to do so by the Board
President.'' RFAAX B, at 3. There is no evidence that Registrant has
been given permission to resume the practice of medicine in North
Carolina or that the Non-Practice Agreement has been superseded.\5\ See
infra Section II.B.2. Accordingly, the Agency finds that Registrant is
not authorized to practice medicine in North Carolina, a state in which
he is registered with DEA.
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\5\ According to North Carolina online records, Registrant's
North Carolina medical license has a status of ``Active.'' North
Carolina Medical Board Licensee Search, <a href="https://portal.ncmedboard.org/Verification/viewer.aspx?ID=109299">https://portal.ncmedboard.org/Verification/viewer.aspx?ID=109299</a> (last
visited date of signature of this Order). The same North Carolina
website indicates that Registrant has had public action taken
against him and cites to the Interim Non-Practice Agreement. The
Non-Practice Agreement was extended by an Order to Continue on
January 2, 2024. According to the language of the Agreement and
Order, and the status on the website, the terms of the Agreement
have not been superseded and are still in effect. As such, the
Agency takes official notice that pursuant to the Non-Practice
Agreement, Registrant, as of the date of this Order, continues to be
unable to practice medicine in North Carolina. This is a material
fact that Registrant may dispute pursuant to the instructions in
supra n.4.
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B. Discussion
Pursuant to 21 U.S.C. 824(a)(3), the Agency may 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, the Agency 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 [Agency] 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. [21 U.S.C.] 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).\6\
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\6\ 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, M.D., 43 FR at 27617.
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1. South Carolina Analysis
According to South Carolina statute, ``[e]very person who
manufactures, distributes, or dispenses any controlled substance or who
proposes to engage in the manufacture, distribution, or dispensing of
any controlled substance, shall obtain a registration issued by the
Department [of Health and Environmental Control] in accordance with its
rules and regulations.'' S.C. Code Sec. 44-53-290(a) (2025). To
``dispense'' means ``to deliver a controlled substance to an ultimate
user 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 the
delivery.'' Id. at Sec. 44-53-110(15). Further, a ``practitioner'' is
``a physician
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. . . or other person licensed, registered, or otherwise permitted to
distribute, dispense, conduct research with respect to, or to
administer a controlled substance in the course of professional
practice or research in this State.'' Id. at Sec. 44-53-110(36)(a).
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to dispense controlled substances in South
Carolina because his South Carolina medical license has been suspended.
As discussed above, a physician must be a licensed practitioner to
dispense a controlled substance in South Carolina. Thus, because
Registrant lacks authority to handle controlled substances in South
Carolina, Registrant is not eligible to maintain a DEA registration in
South Carolina. Accordingly, the Agency will order that Registrant's
DEA registration in South Carolina be revoked. See Richard H. NG, D.O.,
77 FR 29694, 29695 (2012) (temporary suspension of a state license
still warrants revocation of DEA registration, even where there is a
possibility of reinstatement); Kamal Tiwari, M.D., 76 FR 71604, 71606
(2011) (same).
2. North Carolina Analysis
According to North Carolina statute, ``dispense'' means ``to
deliver a controlled substance to an ultimate user 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.'' N.C. Gen. Stat.
Sec. 90-87(8) (2025). Further, a ``practitioner'' means a ``physician
. . . or other person licensed, registered or otherwise permitted to
distribute, dispense, conduct research with respect to or to administer
a controlled substance so long as such activity is within the normal
course of professional practice or research in this State.'' Id. at
Sec. 90-87(22)(a).
In Registrant's Interim Non-Practice Agreement with the North
Carolina Medical Board, he has agreed to not ``practice medicine.''
North Carolina statute defines the ``practice of medicine'' as
``[o]ffering or undertaking to prescribe, order, give, or administer
any drug or medicine for the use of any other individual'' and
``[u]sing the designation . . . `physician' . . . .'' Id. at Sec. 90-
1.1(5)(b) and (e). Therefore, pursuant to Registrant's agreement to not
practice medicine, he cannot currently dispense controlled substances
and cannot currently qualify as a ``physician'' in North Carolina.
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice medicine in North Carolina. Thus,
because Registrant lacks authority to practice medicine in North
Carolina and, therefore, is not authorized to handle controlled
substances in North Carolina, Registrant is not eligible to maintain a
DEA registration in North Carolina. See Jonathan Rosenfield, M.D., 85
FR 73806, 73807-08 (2020) (revoking registration for loss of state
authority where respondent had entered into a non-practice agreement);
Linda M. Shuck, D.O., 82 FR 55639, 55640-41 (2017) (same). Accordingly,
the Agency will order that Registrant's DEA registration in North
Carolina also be revoked.
III. Public Interest
The second OSC alleges, in addition to loss of state authority,
that for approximately eight years, Registrant ``issu[ed] prescriptions
to five patients for Schedule II through V controlled substances
outside the usual course of professional practice and not for a
legitimate medical purpose'' in violation of federal law. RFAAX B, at 3
(citing 21 CFR 1306.04(a)).
According to CSA regulations, a prescription for a controlled
substance is proper only if ``issued for a legitimate medical purpose
by an individual practitioner acting in the usual course of his
professional practice.'' 21 CFR 1306.04(a). The Agency must evaluate
whether a Registrant's actions are within the ``usual course of
professional practice'' according to North Carolina law, including the
applicable North Carolina standard of care. See, e.g., Gonzales v.
Oregon, 546 U.S. at 269-71; see also David Bockoff, M.D., 90 FR 9243,
9243 (2025) (for a doctor practicing in California, ``the Agency . . .
evaluates [the doctor's] actions according to California law, including
the applicable California standard of care''); Neumann's Pharmacy, LLC,
90 FR 8039, 8039 (2025) (finding that a pharmacy operating in Louisiana
was held to Louisiana's standard of care); Michael Gore, P.A., 89 FR
54047, 54047 (2024) (finding that a doctor practicing in New York was
held to New York's standard of care). It is the burden of the
Government to provide Registrant with notice of the state law he is
alleged to have violated and/or to provide expert testimony explaining
the standard of care in North Carolina. See, e.g., David Bockoff, M.D.,
90 FR at 9243 (``Authorities in the `Legal Requirements' and `Standard
of Care' sections of the OSC give Respondent notice of the bases for
the OSC's allegations and, accordingly, are the authorities that the
Agency is using to adjudicate those allegations.''); Margaret Dennis,
D.M.D., 90 FR 19310, 19310-11 (2025) (basing Florida's standard of care
off of statutes cited in the OSC).
Here, the Government has not provided Registrant with notice of any
state law or expert testimony purporting to espouse what the ``usual
course of professional practice'' is in North Carolina or any standard
of care applicable to North Carolina.\7\ As no law is identified, the
deemed admitted factual allegations cannot be said to violate any state
law or standard of care for which Registrant was provided notice.
Accordingly, even with the deemed admissions, the Government is unable
to establish a prima facie case that the alleged facts violate the
standard of care.
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\7\ The Government first cited North Carolina Gen. Stat. Sec.
90-14; however, this statute only empowers the North Carolina
Medical Board to discipline its members in certain situations. RFAAX
B, at 2; see Guess v. Bd. of Med. Exam'rs of N.C., 967 F.2d 998,
1000 (4th Cir. 1992) (the North Carolina Medical Board ``derives its
authority'' from N.C. Gen Stat. Sec. 90-14). The statute itself
cannot be violated by a person, nor does it elucidate what the
standard of care is in North Carolina. Though N.C. Gen Stat. Sec.
90-14(a)(6) and (11), cited specifically by the Government, uses the
phrases ``standards of acceptable and prevailing medical practice''
and ``acceptable standards of care,'' the statute does not further
explain what these phrases entail or require from physicians. Simply
informing the Agency that North Carolina has a standard of care
falls short of informing the Agency what that standard of care
actually is. The Government then cited a policy statement from the
North Carolina Medical Board. RFAAX B, at 2. However, as the
Government itself astutely notes, this policy statement is ``not a
regulation or the exact standard of care in North Carolina.'' Id.
Nor do the Guidelines enumerated by the Centers for Disease Control
(CDC), which the Government also cited, provide the applicable
standard of care in North Carolina. Id.; see Isaac Sved, M.D., 88 FR
75323, 75323 n.3 (2023) (explaining that the Agency will only
consider CDC Guidelines where they agree with established state
statutes and/or record expert testimony on the state's standard of
care); John X. Qiang, M.D., 87 FR 8039, 8043, 8045-46 (2021) (record
expert testimony explained how CDC Guidelines influenced the
standard of care in California); Brenton D. Wynn, M.D., 87 FR 24228,
24233-34 (2022) (same). Finally, the Government provided a summary
of an expert's review regarding Registrant's prescribing practices,
but this summary also does not espouse an applicable standard of
care for North Carolina, and the full expert review is not part of
the record. RFAAX B, at 6-7.
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Accordingly, the Agency cannot sustain the Government's public
interest allegation in the second OSC. The Agency will revoke based
solely on the Registrant's lack of state authority in both South
Carolina and North Carolina.
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 Nos.
FE7195452 and BE7654127 issued to Henry Emery, M.D. Further, pursuant
to 28 CFR 0.100(b) and the authority vested in me by 21
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U.S.C. 823(g)(1), I hereby deny any pending applications of Henry
Emery, M.D., to renew or modify these registrations, as well as any
other pending application of Henry Emery, M.D., for additional
registration in South Carolina or North Carolina. This Order is
effective October 30, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on
September 25, 2025, by Administrator Terrance Cole. 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. 2025-19058 Filed 9-29-25; 8:45 am]
BILLING CODE 4410-09-P
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