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 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.