[Federal Register Volume 75, Number 157 (Monday, August 16, 2010)]
[Notices]
[Pages 49994-49995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20192]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 09-64]
James Stephen Ferguson, D.M.D.; Revocation of Registration
On July 24, 2009, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to James Stephen Ferguson, D.M.D. (Respondent), of
Pittsburgh, Pennsylvania. The Show Cause Order proposed the revocation
of Respondent's DEA Certificate of Registration, as a practitioner,
BF6211762, on the ground that Respondent's ``license to practice
dentistry in the state of Pennsylvania expired on March 31, 2009'' and
that he is ``currently without authority to handle controlled
substances in Pennsylvania, the state in which [he is] registered with
DEA.'' Show Cause Order at 1. The Show Cause Order also proposed the
denial of ``any pending applications for renewal or modification of''
Respondent's registration. Id.
The Show Cause Order alleged that Respondent's DEA registration
does not expire until September 30, 2010, but that Respondent's
Pennsylvania dental license had expired on March 31, 2009. Id. Next,
the Show Cause Order alleged that commencing no later than June 2006,
Respondent had issued dozens of prescriptions for schedule III
controlled substances containing hydrocodone to his girlfriend L.J.
``for no legitimate medical purpose and not in the course of
professional practice, in violation of 21 U.S.C. 841(a) and 21 CFR
1306.04(a).'' Id. at 2. The Order alleged that while Respondent used
his girlfriend's real name on some prescriptions, on others he used
false names to ``disguise the true recipient of the controlled
substances.'' Id.
The Show Cause Order further alleged that when DEA Investigators
searched his office, Respondent ``could not explain the fact that [he]
did not have a patient file'' on his girlfriend, and that he admitted
to investigators that he knew L.J. ``was addicted to hydrocodone.'' Id.
Finally, the Order alleged that Respondent ``continued to issue
controlled substance prescriptions during the month of April 2009''
despite the fact that his Pennsylvania dental license expired on March
31, 2009. Id.
On September 1, 2009, a Diversion Investigator (DI) went to
Respondent's residence and left a copy of the Order to Show Cause with
L.J. and his nephew, who agreed to give it to Respondent. See Gov't
Submission of Evidence of Service of Process, Ex. A (declaration of
DI). On September 15, 2009, Respondent requested a hearing and the
matter was placed on the docket of the Agency's Administrative Law
Judges (ALJs).
On October 13, 2009, the Government moved for summary disposition.
The basis of the motion was that Respondent ``is not duly authorized to
possess, dispense or otherwise handle controlled substances in the
State of Pennsylvania, the jurisdiction in which [he] engages in the
practice of dentistry,'' and therefore, he is not entitled to hold a
DEA registration. Gov't Mot. Summ. Disp., at 1-2. As support for the
motion, the Government submitted a Certificate and Attestation signed
by Lisa M. Burns, Board Administrator, Pennsylvania State Board of
Dentistry, Bureau of Professional and Occupational Affairs. Therein,
Ms. Burns stated that Respondent's license to practice dentistry in
Pennsylvania was issued on February 2, 1999, and had expired on March
31, 2009. Id., Ex. A. Respondent did not file a response to the
Government's motion. Order Granting Gov't Mot. for Summ. Disp. at 2.
On October 22, 2009, the ALJ granted the Government's motion. Id.
at 4. The ALJ found that there was no dispute over the material fact
that Respondent no longer holds a state dental license and that he
therefore lacks authority under Pennsylvania law to handle controlled
substances in the State. Id. at 3. In accordance with the CSA and
agency precedent, the ALJ held that because Respondent lacks this
[[Page 49995]]
authority, he ``is not entitled to maintain his DEA registration.'' Id.
at 3-4. The ALJ thus recommended that I revoke Respondent's
registration and deny any pending renewal application. ALJ at 4.
Neither party filed exceptions to the ALJ's recommended decision.
The ALJ then forwarded the record to me for final agency action. Having
considered the entire record in this matter, I adopt the ALJ's
recommended decision in its entirety and will revoke Respondent's
registration and deny any pending applications. I make the following
findings:
Findings
Respondent obtained his license to practice dentistry in the State
of Pennsylvania on February 2, 1999. Gov't Mot., Ex. A. Respondent's
authority to practice dentistry in Pennsylvania expired on March 31,
2009. Id.
Respondent also holds DEA Certificate of Registration, BF6211762,
which authorizes him to dispense controlled substances in schedules II
through V as a practitioner at the registered address of 2A Old
Clairton Road, Pittsburgh, Pa. Respondent's registration was last
renewed on February 4, 2008, and does not expire until September 30,
2010.
Discussion
Under the Controlled Substances Act (CSA), a practitioner must be
currently authorized to handle controlled substances in ``the
jurisdiction in which he practices'' in order to maintain a DEA
registration. See 21 U.S.C. 802(21) (``[t]he term `practitioner' means
a physician * * * 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''). See also id. section 823(f) (``The Attorney
General shall register practitioners * * * if the applicant is
authorized to dispense * * * controlled substances under the laws of
the State in which he practices.''). As these provisions make plain,
possessing authority under state law to handle controlled substances is
an essential condition for holding a DEA registration.
Accordingly, DEA has held repeatedly that the CSA requires the
revocation of a registration issued to a practitioner whose state
license has been suspended or revoked. David W. Wang, 72 FR 54297,
54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick
A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920
(1988). See also 21 U.S.C. 824(a)(3) (authorizing the revocation of a
registration ``upon a finding that the registrant * * * has had his
State license or registration suspended [or] revoked * * * and is no
longer authorized by State law to engage in the * * * distribution [or]
dispensing of controlled substances'').
Moreover, the Agency has interpreted the CSA to require the
revocation of a registration upon a practitioner's loss of state
authority ``not only where a registrant's authority has been suspended
or revoked, but also where a practitioner * * * has lost his state
authority for reasons other than through formal disciplinary action of
a State board.'' John B. Freitas, 74 FR 17524, 17525 (2009). Thus, even
when a registrant ceases to possess authority to handle controlled
substance in the State in which he practices through the expiration of
a dental license or separate state controlled substances registration
(when required), the Agency has revoked the practitioner's
registration. Mark L. Beck, 64 FR 40899, 408900 (1999); Charles H.
Ryan, 58 FR 14430 (1993).
Here, there is no dispute over the material fact that Respondent
has allowed his Pennsylvania Dental License to expire and that he
therefore lacks authority under Pennsylvania law to dispense control
substances. Respondent is therefore not entitled to maintain his DEA
registration, which will be revoked.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) &
824(a), as well as 28 CFR 0.100(b) & 0.104, I order that DEA
Certificate of Registration, BF6211762, issued to James S. Ferguson,
D.M.D., be, and it hereby is, revoked. I further order that any pending
application of James S. Ferguson, D.M.D., to renew or modify his
registration, be, and it hereby is denied. This Order is effective
September 15, 2010.
Dated: July 30, 2010.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 2010-20192 Filed 8-13-10; 8:45 am]
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