[Federal Register Volume 74, Number 71 (Wednesday, April 15, 2009)]
[Notices]
[Pages 17524-17525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8620]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 08-58]


John B. Freitas, D.O.; Revocation of Registration

    On August 29, 2008, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to John B. Freitas, D.O. (Respondent), of Carthage, 
Missouri. The Show Cause Order proposed the revocation of Respondent's 
DEA Certificate of Registration, BF2847715, which authorizes him to 
dispense controlled substances in schedules II through V as a 
practitioner, as well as the denial of any pending application to renew 
or modify the registration, on the ground that Respondent lacks 
authority to dispense controlled substances in Missouri, the State in 
which he is registered with DEA. Show Cause Order at 1.
    Respondent timely requested a hearing on the allegation; the matter 
was placed on the docket of the Agency's Administrative Law Judges 
(ALJ). Thereafter, the Government moved for summary disposition. Motion 
for Summary Disp. at 1. The basis of the motion was that Respondent's 
Missouri Controlled Substances Registration automatically terminated 
when Respondent ceased practicing at the location where he held his 
State registration and ``did not notify the [State] of [his] change of 
address or a new Missouri practice location.'' Id. at Attachment 1 
(Letter of Michael R. Boeger, Asst. Administrator, Missouri Bureau of 
Narcotics & Dangerous Drugs, to Dr. John Freitas (May 13, 2008)).\1\
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    \1\ According to the letter, the State ``ha[d] received 
information that [Respondent's] last day of practicing at that 
location was the[e] date of [his] overdose on March 25, 2008,'' and 
``had received written documentation that [Respondent's] privileges 
were terminated at that location on March 26, 2008.'' Gov. Motion at 
Attachment 1.
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    Thereafter, Respondent filed his response to the Government's 
motion. Therein, Respondent acknowledged the State BNDD's letter and 
further stated that he ``does not deny that he no longer has the 
authority to handle controlled substances in the State of Missouri.'' 
Respondent's Response to Gov.'s Mot. for Summ. Disp. at 1. Respondent 
argued, however, that his state registration had not been ``suspended, 
revoked, or denied under Missouri law by the BNDD,'' and that under 21 
U.S.C. 824(a)(3), DEA's authority to revoke is limited to those 
situations in which a registrant's State authority has been

[[Page 17525]]

``suspended, revoked or denied by competent State authority'' and the 
registrant ``is no longer authorized by State law to engage in the * * 
* dispensing of controlled substances.'' Id. at 2.
    On November 7, 2008, the ALJ granted the Government's motion, 
noting that ``it is undisputed that the Respondent currently lacks 
authority to handle controlled substances in Missouri.'' ALJ at 3. 
Because Respondent's argument as to the scope of the Agency's authority 
under 21 U.S.C. 823(a)(3) had previously been rejected with respect to 
a practitioner who allowed his registration to expire, the ALJ found 
``no meaningful basis on which to distinguish expiration of a State 
authorization from automatic termination by operation of law.'' Id. at 
5. The ALJ thus applied the Agency's longstanding interpretation that 
it lacks authority under the Controlled Substances Act to maintain a 
registration if a registrant lacks authority under State law to 
dispense controlled substances. Id. at 4-5. The ALJ thus recommended 
that Respondent's registration be revoked and that any pending 
application to renew or modify his registration be denied.
    After the period for filing exceptions lapsed,\2\ the record was 
forwarded to me for final agency action. Having considered the entire 
record in this matter, I adopt the ALJ's decision in its entirety.
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    \2\ Respondent did not file exceptions.
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    I find that Respondent currently holds DEA Certificate of 
Registration, BF2847715, which authorizes him to dispense controlled 
substances in schedules II through V as a practitioner, at the 
registered location of 2232 S. Garrison Ave., Carthage, Missouri. I 
also find that Respondent's Missouri Controlled Substances Registration 
has terminated. I therefore further find that Respondent is currently 
without authority to dispense controlled substances in Missouri, the 
State in which he practices medicine and holds his DEA Registration. 
Moreover, according to the Web site of the Missouri Department of 
Health and Senior Services, Respondent does not possess a State 
controlled substances registration.
    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. Sec.  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 who lacks 
authority under state law to dispense controlled substances. Moreover, 
DEA has applied this rule not only where a registrant's state authority 
has been suspended or revoked, but also where a practitioner with an 
existing DEA registration has lost his state authority for reasons 
other than through formal disciplinary action of a State board.
    For example, in William D. Levitt, 64 FR 49882, 49823 (1999), DEA 
held that because ``state authorization was clearly intended to be a 
prerequisite to DEA registration, Congress could not have intended for 
DEA to maintain a registration if a registrant is no longer authorized 
by the state in which he practices to handle controlled substances due 
to the expiration of his state license.'' See also Mark L. Beck, 64 FR 
40899, 40900 (1999); Charles H. Ryan, 58 FR 14430 (1993). Moreover, in 
Marlou D. Davis, 69 FR 1307, 1310 (2004), I addressed and rejected the 
same argument raised by Respondent in a case which involved the same 
factual scenario as is presented here--the termination under Missouri 
law of a practitioner's authority which arose because of an address 
change. In Davis, I specifically relied on the reasoning of Levitt and 
rejected the argument that the respondent's registration should be 
deemed terminated under 21 CFR 1301.52 rather than revoked under 21 
U.S.C. 824(a)(3).\3\ Id. at 1310. Indeed, as the ALJ observed in her 
recommended decision in this matter, because possessing authority under 
State law is an essential requirement for holding a CSA registration, 
there is ``no meaningful basis'' for distinguishing between those 
registrants who allow their State authority to expire and those whose 
State authority expires by operation of law. ALJ at 5.
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    \3\ While there is a procedure available for terminating a 
registration, under the Agency's regulation, a registrant who 
discontinues professional practice must ``notify the [Agency] 
promptly of such fact.'' 21 CFR 1301.52(a). Moreover, the registrant 
must return his certificate of registration to the Agency for 
cancellation, as well as any unexecuted order forms. Id. 1301.52(c). 
Notably, in Davis, the respondent did not comply with the regulation 
and indeed had continued professional practice.
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    Here, as in Davis, Respondent has not notified the Agency that he 
has permanently ceased the practice of medicine (or the dispensing of 
controlled substances in the course of medical practice). 21 CFR 
1301.52(a). Nor is there any evidence that he has returned his 
certificate of registration for cancellation. Id. 1301.52(c). 
Accordingly, Respondent's registration cannot be deemed terminated. 
Because Respondent does not have authority under Missouri law to 
dispense controlled substances, he does not meet the statutory 
requirement for holding a registration under Federal law. See 21 U.S.C. 
823(f). His registration must therefore 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, BF2847715, issued to John B. Freitas, 
D.O., be, and it hereby is, revoked. I further order that any pending 
application of John B. Freitas, D.O., to renew or modify his 
registration, be, and it hereby is; denied. This Order is effective May 
15, 2009.

    Dated: April 10, 2009.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E9-8620 Filed 4-14-09; 8:45 am]
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