2024-07237. Traesa A. Brown, M.D.; Decision and Order

On August 31, 2023, the Drug Enforcement Administration (DEA or Government) issued an Order to Show Cause and Immediate Suspension of Registration (OSC/ISO) to Traesa A. Brown, M.D. (Respondent) of Florence, South Carolina. OSC, at 1, 5. The OSC/ISO informed Respondent of the immediate suspension of her DEA Certificate of Registration (registration or COR), Control No. BB9937624, pursuant to 21 U.S.C. 824(d), alleging that Respondent's continued registration constitutes “ `an imminent danger to the public health or safety.' ” Id. at 1 (quoting 21 U.S.C. 824(d)). The OSC/ISO also proposed the revocation of Respondent's registration, alleging that Respondent's continued registration is inconsistent with the public interest and alleging that Respondent has no state authority to handle controlled substances. Id. (citing 21 U.S.C. 823(g)(1), 824(a)(3), 824(a)(4)).

On September 20, 2023, Respondent requested a hearing. On October 13, 2023, the Government filed a Motion for Summary Disposition only pertaining to the allegation that Respondent lacks state authority to handle controlled substances. ^[1] See Government's Notice of Filing of Evidence and Motion for Summary Disposition (Motion for Summary Disposition), dated October 13, 2023.^[2] Respondent did not respond to the Government's Motion for Summary Disposition. On October 23, 2023, Administrative Law Judge Paul E. Soeffing (the ALJ) granted the Government's Motion for Summary Disposition and recommended the revocation of Respondent's registration, finding that because Respondent lacks state authority to handle controlled substances in South Carolina, the state in which she is registered with DEA, “there is no other fact of consequence for this tribunal to decide in order to determine whether or not she is entitled to hold a COR.” Order Granting the Government's Motion for Summary Disposition, and Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision of the Administrative Law Judge (RD), at 6. Respondent did not file exceptions to the RD.

Having reviewed the entire record, the Agency adopts and hereby incorporates by reference the entirety of the ALJ's rulings, findings of fact, conclusions of law, and recommended sanction as found in the RD and summarizes and expands upon portions thereof herein.

Findings of Fact

The Government asserts that on October 1, 2022, Respondent's South Carolina controlled substance registration expired. RD, at 3-4.^[3] Further, the Government asserts that on June 30, 2023, Respondent's South Carolina medical license expired. RD, at 4.^[4]

According to South Carolina online records, of which the Agency takes official notice, Respondent's South Carolina controlled substance registration is expired.^[5] SC DHEC Bureau of Drug Control, Controlled Substances Registration Verification, https://.dhec.sc.gov/​/Licensing/​Home/​Verify (last visited date of signature of this Order). Further, Respondent's South Carolina medical license is listed as “lapsed.” South Carolina Board of Medical Examiners, Licensee Lookup, https://verify.llronline.com/​LicLookup/​Med/​Med.aspx (last visited date of signature of this Order).

Accordingly, the Agency finds that Respondent is not currently licensed to engage in the practice of medicine nor to handle controlled substances in South Carolina, the state in which she is registered with the DEA.

Discussion

Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the Controlled Substances Act (CSA) “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 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. 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]

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 section 44-53-290(a) (2024). Further, “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. section 44-53-110(15).

Here, the undisputed evidence in the record is that Respondent currently lacks authority to dispense controlled substances in South Carolina because her South Carolina controlled substance registration is expired. As discussed above, an individual must hold a controlled substance registration to dispense a controlled substance in South Carolina. Thus, because Respondent lacks authority to handle controlled substances in South Carolina, Respondent is not eligible to maintain a DEA registration. RD, at 6. Accordingly, the Agency will order that Respondent'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. BB9937624 issued to Traesa A. Brown, 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 Traesa A. Brown, M.D., to renew or modify this registration, as well as any other pending application of Traesa A. Brown, M.D., for additional registration in South Carolina. This Order is effective May 6, 2024.

Signing Authority

This document of the Drug Enforcement Administration was signed on April 1, 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.

Footnotes

1.  This suggests that the Government has dropped the public interest allegation included in the OSC/ISO; as such, the Agency will only consider the lack of state authority allegation from the OSC/ISO.

2.  The Government originally filed a Motion for Summary Disposition on October 12, 2023, and therein asserted that Respondent had failed to timely file an Answer to the allegations in the OSC/ISO. RD, at 2 n.4; Motion for Summary Disposition, dated October 12, 2023, at 3-4. Later on October 12, 2023, the Government was informed that Respondent had filed an Answer on October 10, 2023, and was provided with a copy of Respondent's Answer. RD, at 2 n.4. On October 13, 2023, the Government filed its amended Motion for Summary Disposition, referenced in this Decision, with revisions based on its receipt of the copy of Respondent's Answer. Id.; see also Motion for Summary Disposition, dated October 13, 2023.

3.   See also Motion for Summary Disposition, dated October 13, 2023, Exhibit (GX) 1; Motion for Summary Disposition, dated October 13, 2023, at 4-5.

4.   See also Motion for Summary Disposition, dated October 13, 2023, at 4. As noted by the ALJ, the Government did not submit documentary evidence regarding the status of Respondent's South Carolina medical license as they had for Respondent's South Carolina controlled substance registration, see supra n.3. RD, at 4 n.8.

5.  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, Respondent 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 Office of the Administrator, Drug Enforcement Administration at [e-mail].

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) (this section, formerly § 823(f), was redesignated as part of the Medical Marijuana and Cannabidiol Research Expansion Act, Pub. L. 117-215, 136 Stat. 2257 (2022)). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the CSA, the 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, 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, 43 FR at 27,617.