2017-13527. John Warren Cox, M.D.; Decision and Order

On February 23, 2017, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (DEA), issued an Order to Show Cause to John Warren Cox, M.D. (Registrant), of West Point, Mississippi. GX 2. The Show Cause Order proposed the revocation of Registrant's DEA Certificate of Registration No. BC6115047, on the ground that he does not have authority to handle controlled substances in Mississippi, the State in which he is registered with the Agency. Id. at 1 (citing 21 U.S.C. 824(a)(3)).

With respect to the Agency's jurisdiction, the Show Cause Order alleged that Registrant is registered with the DEA as a practitioner authorized to handle controlled substances in schedules II through V under DEA registration BC6115047, at the registered address of 187 Medical Center Drive, West Point, Mississippi. Id. The Order alleged that Registrant's registration expires by its terms on August 31, 2019. Id.

As to the substantive ground for the proceeding, the Show Cause Order specifically alleged that on October 18, 2016, Registrant “voluntarily surrendered [his] Mississippi medical license and agreed to never again seek to be licensed in the State of Mississippi.” Id. The Show Cause Order further alleged that because Registrant is currently without authority to practice medicine or handle controlled substances in the State of Mississippi, “the DEA must revoke [his] DEA COR.” Id. at 2 (citing 21 U.S.C. 823(f) and 824(a)(3) (other citations omitted)).

The Show Cause Order notified Registrant of his right to request a hearing on the allegations, or to submit a written statement in lieu of a hearing, the procedure for electing either option, and the consequence for failing to elect either option. Id. at 2 (citing 21 CFR 1301.43). It also notified him of his right to submit a corrective action plan in accordance with 21 U.S.C. 824(c)(2)(C). Id. at 2-3.

On February 24, 2017, a Diversion Investigator from the Jackson, Mississippi District Office personally served the Show Cause Order on Registrant at his residence in West Point, Mississippi. GX 4 (Declaration of Diversion Investigator).

On May 5, 2017, the Government forwarded its Request for Final Agency Action (RFAA) and an evidentiary record to my Office. Therein, the Government represents that Registrant “has not filed a request for a hearing or a written statement, and more than 30 days ha[ve] now passed since he was served.” RFAA, at 1-2.

Based on the Government's representation that more than 30 days have now passed since the date of service of the Show Cause Order and that Registrant has not submitted a request for a hearing or a written statement, I find that Registrant has waived his right to a hearing or to submit a written statement in lieu of a hearing. 21 CFR 1301.43(d). I therefore issue this Decision and Final Order based on relevant evidence contained in the record submitted by the Government. Id. § 1301.43(d) & (e). I make the following findings of fact.

Findings

Registrant is the holder of DEA Registration No. BC6115047, pursuant to which he is authorized to dispense controlled substances in Schedules II through V as a practitioner, at the registered address of 187 Medical Center Drive, West Point, Mississippi. GX 1 (Certification of Registration History). His registration does not expire until August 31, 2019. Id.

On October 18, 2016, Registrant voluntarily surrendered his license to practice medicine in the State of Mississippi, and “agree[d] to never seek application for a future license to practice medicine in the State of Mississippi.” GX 3, at 2 (Surrender of Medical License). The agreement to voluntarily surrender his license followed an investigation by the Investigative Division of the Mississippi State Board of Medical Licensure, which “ha[d] in its possession evidence which, if produced during the course of an evidentiary hearing, would show [that Registrant's] continued practice constitutes a threat to the public health and safety due to his impairment.” Id. at 2. Registrant's surrender became effective immediately upon execution of the surrender form on October 18, 2016. Id.

A printout from the Mississippi Board's Physician Profile System, dated May 5, 2017, shows that Registrant's license to practice medicine “expired” on 10/31/2016, and that he “voluntarily surrender[ed] his Mississippi medical license and agrees never to seek application for a future license to practice medicine in the State of MS.” GX 4, Attachment A, at 1-2 (https://ksitspe01.its.state.ms.us/​msbml/​MLB.nsf/​ByLicenseNo/​08934); see also GX 4 (Declaration of Diversion Investigator). I therefore find that Registrant does not have authority to dispense controlled substances under the laws of Mississippi, the State in which he is registered with the Agency.

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 Title 21, “upon a finding that the registrant . . . has had his State license . . . suspended [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” Moreover, with respect to a practitioner, DEA has 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 registration. See, e.g., James L. Hooper, 76 FR 71371 (2011) (collecting cases), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); see also Frederick Marsh Blanton, 43 FR 27616, 27617 (1978) (“State authorization to dispense or otherwise handle controlled substances is a prerequisite to the issuance and maintenance of a Federal controlled substances registration.”).

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(f). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the Act, 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 medicine. See, e.g., Calvin Ramsey, 76 FR 20034, 20036 (2011); Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988); see also Blanton, 43 FR at 27617.

Because Registrant is no longer currently authorized to dispense controlled substances in Mississippi, the State in which he is registered with the Agency, I will therefore order that his registration be revoked.

Order

Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration No. BC6115047, issued to John Warren Cox, M.D., be, and it hereby is, revoked. Pursuant to the authority vested in me by 21 U.S.C. 823(f), I further order that any pending application of John Warren Cox, M.D., to renew or modify this registration, be, and it hereby is, denied. This Order is effective July 28, 2017.

Dated: June 21, 2017.

Chuck Rosenberg,

Acting Administrator.