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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 [www.gpo.gov]
[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

[[Page 106586]]

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, https://nsbme.us.thentiacloud.net/webs/nsbme/register/# (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 [email protected].
    \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, https://online.nvbop.org/#/verifylicense (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

[[Page 106587]]

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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