90 FR 134 pgs. 32022-32023 - Diana Clouthier, N.P.; Decision and Order
Type: NOTICEVolume: 90Number: 134Pages: 32022 - 32023
Pages: 32022, 32023FR document: [FR Doc. 2025-13354 Filed 7-15-25; 8:45 am]
Agency: Justice Department
Sub Agency: Drug Enforcement Administration
Official PDF Version: PDF Version
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Diana Clouthier, N.P.; Decision and Order
On February 13, 2025, the Drug Enforcement Administration (DEA or Government) issued an Order to Show Cause (OSC) to Diana Clouthier, N.P., of Canon City, Colorado (Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX) 1, at 1, 4. The OSC proposed the revocation of Registrant's DEA Certificate of Registration (COR) No. MC5780639, alleging that Registrant is "currently without authority to . . . handle controlled substances in the State of Colorado, the state in which [she is] registered with DEA." Id. at 2 (citing 21 U.S.C. 824(a)(3)).
The OSC notified Registrant of her right to file a written request for hearing, and that if she failed to file such a request, she would be deemed to have waived her right to a hearing and be in default. Id. at 2-3 (citing 21 CFR 1301.43). Here, Registrant did not request a hearing. RFAA, at 2. 1 "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).
Footnotes:
1 ?Based on the Government's submissions in its RFAA dated April 7, 2025, the Agency finds that service of the OSC on Registrant was adequate. The included declaration from a DEA Diversion Investigator (DI) indicates that on February 20, 2025, DI attempted to serve Registrant the OSC at her personal residence and by phone, but both attempts were unsuccessful. RFAAX 2, at 1. Registrant returned the phone call and informed DI that she was not in Colorado and "would not confirm when she would be returning" to Colorado. Id. On February 24, 2025, DI emailed the OSC to Registrant and Registrant replied acknowledging receipt, but did not request a hearing in her response. Id. at 2-4. Accordingly, the Agency finds that the Government's service of the OSC on Registrant was adequate. See Mohammed S. Aljanaby, M.D., 82 FR 34,552, 34,552 (2017) (finding that service by email satisfies due process where the email is not returned as undeliverable and other methods have been unsuccessful); Emilio Luna, M.D., 77 FR 4,829, 4,830 (2012) (same).
[top] 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]?1316.67." Id. at 1301.43(f)(1). Here, the Government has requested final agency action based on Registrant's default pursuant to 21 CFR 1301.43(c) and (f). RFAA, at 1, 4; 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 deemed admitted. According to the OSC, Registrant's Colorado registered nursing license, advanced practice nurse license, and nurse practitioner prescriptive authority license were suspended by the Colorado State Board of Nursing on October 21, 2024. RFAAX 1, at 1-2; see also RFAAX 4. According to Colorado online records, of which the Agency takes official notice, 2 Registrant's Colorado licenses have a status of "Suspended." Colorado DORA License Search, https://apps2.colorado.gov/dora/licensing/lookup/licenselookup.aspx (last visited date of signature of this Order). Accordingly, the Agency finds that Registrant is not licensed as a practitioner in Colorado, the state in which she is registered with DEA. 3
Footnotes:
2 ?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).
3 ?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." The material fact here is that Registrant, as of the date of this Order, is not licensed as a nurse in Colorado. 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 dea.addo.attorneys@dea.gov.
Discussion
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General may 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. §?802(21)."). The Agency has applied these principles consistently. See, e.g., James L. Hooper, M.D., 76 FR 71,371, 71,372 (2011), pet. for rev. denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 (1978). 4
Footnotes:
4 ?This rule derives from the text of two provisions of the Controlled Substances Act (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 or she is no longer authorized to dispense controlled substances under the laws of the state in which he or she practices. See, e.g., James L. Hooper, M.D., 76 FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 (2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby Watts, M.D., 53 FR 11,919, 11,920 (1988); Frederick Marsh Blanton, M.D., 43 FR at 27,617.
According to Colorado 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." Colo. Rev. Stat. §?18-18-102(9) (West 2025). Further, a "practitioner" means a "physician . . . or other person licensed, registered, or otherwise permitted, by this state, to distribute, dispense, conduct research with respect to, administer, or to use in teaching or chemical analysis, a controlled substance in the course of professional practice or research." Id. §?18-18-102(29).
Here, the undisputed evidence in the record is that Registrant is not a currently licensed practitioner in Colorado. As discussed above, a nurse must be a licensed practitioner to dispense a controlled substance in Colorado. Thus, because Registrant's nursing licenses are suspended in Colorado and, therefore, she is not currently authorized to handle controlled substances in Colorado, Registrant is not eligible to maintain a DEA registration in Colorado. 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. MC5780639 issued to Diana Clouthier, N.P. 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 Diana Clouthier, N.P., to renew or modify this registration, as well as any other pending application of Diana Clouthier, N.P., for additional registration in Colorado. This Order is effective August 15, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on July 10, 2025, by Acting Administrator Robert J. Murphy. 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. 2025-13354 Filed 7-15-25; 8:45 am]
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