# Henry Emery, M.D.; Decision and Order
On August 29, 2024, the Drug Enforcement Administration (DEA or Government) issued two Orders to Show Cause (OSCs) to Henry Emery, M.D. (Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX) A, at 1, 3; RFAAX B, at 1, 8. The first OSC proposed the revocation of Registrant's DEA registration, No. FE7195452, in the state of South Carolina, alleging that Registrant is “currently without authority to handle controlled substances in South Carolina, the state in which [he is] registered with DEA.” RFAAX A, at 2 (citing 21 U.S.C. 824(a)(3)).
The second OSC proposed the revocation of Registrant's DEA registration, No. BE7654127, in the state of North Carolina, alleging two grounds: (1) that Registrant is “currently without authority to handle controlled substances in the State of North Carolina,” RFAAX B, at 3 (citing 21 U.S.C. 824(a)(3)); and (2) that Registrant's registration is inconsistent with the public interest. RFAAX B, at 3 (citing 21 U.S.C. 823(g)(1)(B), (D), 824(a)(4)). More specifically, the second OSC alleged that Registrant issued controlled substance prescriptions to five patients “outside the usual course of professional practice and not for a legitimate medical purpose,” in violation of federal law. *Id.*
On October 28, 2024, the Government submitted an RFAA requesting that the Agency issue a default final order revoking Registrant's registrations. RFAA, at 3. [^1] After carefully reviewing the entire record and conducting the analysis as set forth in more detail below, the Agency grants the Government's request for final agency action and revokes Registrant's registrations in South Carolina and North Carolina.
[^1] The RFAA states that “the Administrator is authorized to render the Agency's final order, without . . . making a finding of fact.” RFAA, at 2-3 (citing 21 CFR 1301.43(c), (f), and 1301.46). However, 21 CFR 1316.67 requires that the Administrator's final order “set forth the final rule and the findings of fact and conclusions of law upon which the rule is based.” *See JYA LLC d/b/a Webb's Square Pharmacy,* 90 FR 31244, 31246 n.7 (2025).
**I. Default Determination**
Under 21 CFR 1301.43, a registrant entitled to a hearing who fails to file a timely hearing request “within 30 days after the date of receipt of the [OSC] . . . shall be deemed to have waived their right to a hearing and to be in default” unless “good cause” is established for the failure. 21 CFR 1301.43(a) and (c)(1). A registrant who has requested a hearing but who fails to timely file an answer also is “deemed to have waived their right to a hearing and to be in default.” 21 CFR 1301.43(c)(2). Unless excused, a default is deemed to constitute “an admission of the factual allegations of the [OSC].” 21 CFR 1301.43(e).
Here, the OSCs notified Registrant of his right to file a written request for a 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. [^2] RFAAX A, at 2 (citing 21 CFR 1301.43); RFAAX B, at 7 (same). Registrant timely requested a hearing and filed a purported answer to both OSCs on October 11, 2024. RFAAX D, at 1 and n.1. The same day, DEA Administrative Law Judge Paul Soeffing (ALJ) issued an order finding that Registrant's answer did not comply with DEA's regulations and requesting a revised answer from Registrant. *Id.* at 1-2 (citing 21 CFR 1301.37(d)(3)). However, Registrant did not respond. The ALJ made a second futile attempt to bring Registrant into compliance. RFAAX E, at 1-2. Ultimately, on October 24, 2024, the ALJ terminated the proceedings, finding that Registrant had “waived his right to a hearing and is in default.” RFAAX F, at 2 (citing 21 CFR 1301.43(c)(2)).
[^2] Based on the Government's submissions in its RFAA dated October 28, 2024, the Agency finds that service of the OSCs on Registrant was adequate. The included attachments show that on September 17, 2024, a Diversion Investigator personally served the OSCs on Registrant and Registrant signed a receipt of service. RFAAX C. Accordingly, the Agency finds that the Government's service of the OSCs on Registrant was adequate.
The Agency agrees with the ALJ and finds that Registrant's purported answer did not comply with DEA's regulations, *see* 21 CFR 1301.37(d)(3), and that Registrant's failure to file an amended answer after being provided two opportunities to do so constitutes a waiver of his right to a hearing. “Under Agency precedent, the failure to comply with an ALJ's orders may constitute a waiver of a hearing request and cause for termination of the proceeding.” *Robert M. Brodkin, D.P.M.,* 77 FR 73678, 73679 (2012); *see also Robert L. Carter, D.D.S.,* 90 FR 9631, 9632 (2025) (upholding ALJ's sanction terminating a hearing request as a result of noncompliance to ALJ orders); *David H. Betat, M.D.,* 87 FR 21175, 21180 (2022) (upholding ALJ's finding of hearing waiver for failure to file a response to an ALJ order); *Kamir Garces-Mejias, M.D.,* 72 FR 54931, 54931-32 (2007) (same); *Andrew Desonia, M.D.,* 72 FR 54293, 54294 (2007) (same); *Brenton D. Glisson, M.D.,* 72 FR 54296, 54296 (2007) (same); *Alan R. Schankman, M.D.,* 63 FR 45260, 45260 (1998) (same). Accordingly, the Agency finds that Registrant is in default and therefore has admitted to the factual allegations in the OSCs. 21 CFR 1301.43(e).
**II. Loss of State Authority**
**A. Findings of Fact**
Registrant is deemed to admit that his South Carolina medical license was temporarily suspended by the South Carolina Board of Medical Examiners on March 14, 2024. RFAAX A, at 2. According to South Carolina online records, of which the Agency takes official notice, [^3] Registrant's South Carolina medical license has a status of “Suspended.” South Carolina LLR Search, *https://verify.llronline.com/LicLookup/Med/Med.aspx?div=16&AspxAutoDetectCookieSupport=1* (last visited date of signature on this Order). Accordingly, the Agency finds that Registrant is not licensed to practice medicine in South Carolina, a state in which he is registered with DEA. [^4]
[^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).
[^4] 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 to practice medicine in South Carolina. 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 Office of the Administrator, Drug Enforcement Administration, at *[email protected].*
Registrant is also deemed to admit that he entered into an Interim Non-Practice Agreement with the North Carolina Medical Board on December 27, 2023, agreeing to “not practice medicine until such a time as [Registrant] is given permission to do so by the Board President.” RFAAX B, at 3. There is no evidence that Registrant has been given permission to resume the practice of medicine in North Carolina or that the Non-Practice Agreement has been superseded. <sup>5</sup>*See infra* Section II.B.2. Accordingly, the Agency finds that Registrant is not authorized to practice medicine in North Carolina, a state in which he is registered with DEA.
[^5] According to North Carolina online records, Registrant's North Carolina medical license has a status of “Active.” North Carolina Medical Board Licensee Search, *https://portal.ncmedboard.org/Verification/viewer.aspx?ID=109299* (last visited date of signature of this Order). The same North Carolina website indicates that Registrant has had public action taken against him and cites to the Interim Non-Practice Agreement. The Non-Practice Agreement was extended by an Order to Continue on January 2, 2024. According to the language of the Agreement and Order, and the status on the website, the terms of the Agreement have not been superseded and are still in effect. As such, the Agency takes official notice that pursuant to the Non-Practice Agreement, Registrant, as of the date of this Order, continues to be unable to practice medicine in North Carolina. This is a material fact that Registrant may dispute pursuant to the instructions in *supra* n.4.
**B. Discussion**
Pursuant to 21 U.S.C. 824(a)(3), the Agency 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, the Agency 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 [Agency] 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. [21 U.S.C.] 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). [^6]
[^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). 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 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, M.D.,* 43 FR at 27617.
**1. South Carolina Analysis**
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 § 44-53-290(a) (2025). To “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.* at § 44-53-110(15). Further, a “practitioner” is “a physician . . . or other person licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this State.” *Id.* at § 44-53-110(36)(a).
Here, the undisputed evidence in the record is that Registrant currently lacks authority to dispense controlled substances in South Carolina because his South Carolina medical license has been suspended. As discussed above, a physician must be a licensed practitioner to dispense a controlled substance in South Carolina. Thus, because Registrant lacks authority to handle controlled substances in South Carolina, Registrant is not eligible to maintain a DEA registration in South Carolina. Accordingly, the Agency will order that Registrant's DEA registration in South Carolina be revoked. *See Richard H. NG, D.O.,* 77 FR 29694, 29695 (2012) (temporary suspension of a state license still warrants revocation of DEA registration, even where there is a possibility of reinstatement); *Kamal Tiwari, M.D.,* 76 FR 71604, 71606 (2011) (same).
**2. North Carolina Analysis**
According to North Carolina statute, “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 that delivery.” N.C. Gen. Stat. § 90-87(8) (2025). Further, a “practitioner” means a “physician . . . or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance so long as such activity is within the normal course of professional practice or research in this State.” *Id.* at § 90-87(22)(a).
In Registrant's Interim Non-Practice Agreement with the North Carolina Medical Board, he has agreed to not “practice medicine.” North Carolina statute defines the “practice of medicine” as “[o]ffering or undertaking to prescribe, order, give, or administer any drug or medicine for the use of any other individual” and “[u]sing the designation . . . `physician' . . . .” *Id.* at § 90-1.1(5)(b) and (e). Therefore, pursuant to Registrant's agreement to not practice medicine, he cannot currently dispense controlled substances and cannot currently qualify as a “physician” in North Carolina.
Here, the undisputed evidence in the record is that Registrant currently lacks authority to practice medicine in North Carolina. Thus, because Registrant lacks authority to practice medicine in North Carolina and, therefore, is not authorized to handle controlled substances in North Carolina, Registrant is not eligible to maintain a DEA registration in North Carolina. *See Jonathan Rosenfield, M.D.,* 85 FR 73806, 73807-08 (2020) (revoking registration for loss of state authority where respondent had entered into a non-practice agreement); *Linda M. Shuck, D.O.,* 82 FR 55639, 55640-41 (2017) (same). Accordingly, the Agency will order that Registrant's DEA registration in North Carolina also be revoked.
**III. Public Interest**
The second OSC alleges, in addition to loss of state authority, that for approximately eight years, Registrant “issu[ed] prescriptions to five patients for Schedule II through V controlled substances outside the usual course of professional practice and not for a legitimate medical purpose” in violation of federal law. RFAAX B, at 3 (citing 21 CFR 1306.04(a)).
According to CSA regulations, a prescription for a controlled substance is proper only if “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR 1306.04(a). The Agency must evaluate whether a Registrant's actions are within the “usual course of professional practice” according to North Carolina law, including the applicable North Carolina standard of care. *See, e.g., Gonzales* v. *Oregon,* 546 U.S. at 269-71; *see also David Bockoff, M.D.,* 90 FR 9243, 9243 (2025) (for a doctor practicing in California, “the Agency . . . evaluates [the doctor's] actions according to California law, including the applicable California standard of care”); *Neumann's Pharmacy, LLC,* 90 FR 8039, 8039 (2025) (finding that a pharmacy operating in Louisiana was held to Louisiana's standard of care); *Michael Gore, P.A.,* 89 FR 54047, 54047 (2024) (finding that a doctor practicing in New York was held to New York's standard of care). It is the burden of the Government to provide Registrant with notice of the state law he is alleged to have violated and/or to provide expert testimony explaining the standard of care in North Carolina. *See, e.g., David Bockoff, M.D.,* 90 FR at 9243 (“Authorities in the `Legal Requirements' and `Standard of Care' sections of the OSC give Respondent notice of the bases for the OSC's allegations and, accordingly, are the authorities that the Agency is using to adjudicate those allegations.”); *Margaret Dennis, D.M.D.,* 90 FR 19310, 19310-11 (2025) (basing Florida's standard of care off of statutes cited in the OSC).
Here, the Government has not provided Registrant with notice of any state law or expert testimony purporting to espouse what the “usual course of professional practice” is in North Carolina or any standard of care applicable to North Carolina. [^7] As no law is identified, the deemed admitted factual allegations cannot be said to violate any state law or standard of care for which Registrant was provided notice. Accordingly, even with the deemed admissions, the Government is unable to establish a *prima facie* case that the alleged facts violate the standard of care.
[^7] The Government first cited North Carolina Gen. Stat. § 90-14; however, this statute only empowers the North Carolina Medical Board to discipline its members in certain situations. RFAAX B, at 2; *see Guess* v. *Bd. of Med. Exam'rs of N.C.,* 967 F.2d 998, 1000 (4th Cir. 1992) (the North Carolina Medical Board “derives its authority” from N.C. Gen Stat. § 90-14). The statute itself cannot be violated by a person, nor does it elucidate what the standard of care is in North Carolina. Though N.C. Gen Stat. § 90-14(a)(6) and (11), cited specifically by the Government, uses the phrases “standards of acceptable and prevailing medical practice” and “acceptable standards of care,” the statute does not further explain what these phrases entail or require from physicians. Simply informing the Agency that North Carolina has a standard of care falls short of informing the Agency what that standard of care actually is. The Government then cited a policy statement from the North Carolina Medical Board. RFAAX B, at 2. However, as the Government itself astutely notes, this policy statement is “not a regulation or the exact standard of care in North Carolina.” *Id.* Nor do the Guidelines enumerated by the Centers for Disease Control (CDC), which the Government also cited, provide the applicable standard of care in North Carolina. *Id.; see Isaac Sved, M.D.,* 88 FR 75323, 75323 n.3 (2023) (explaining that the Agency will only consider CDC Guidelines where they agree with established state statutes and/or record expert testimony on the state's standard of care); *John X. Qiang, M.D.,* 87 FR 8039, 8043, 8045-46 (2021) (record expert testimony explained how CDC Guidelines influenced the standard of care in California); *Brenton D. Wynn, M.D.,* 87 FR 24228, 24233-34 (2022) (same). Finally, the Government provided a summary of an expert's review regarding Registrant's prescribing practices, but this summary also does not espouse an applicable standard of care for North Carolina, and the full expert review is not part of the record. RFAAX B, at 6-7.
Accordingly, the Agency cannot sustain the Government's public interest allegation in the second OSC. The Agency will revoke based solely on the Registrant's lack of state authority in both South Carolina and North Carolina.
**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 Nos. FE7195452 and BE7654127 issued to Henry Emery, 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 Henry Emery, M.D., to renew or modify these registrations, as well as any other pending application of Henry Emery, M.D., for additional registration in South Carolina or North Carolina. This Order is effective October 30, 2025.
**Signing Authority**
This document of the Drug Enforcement Administration was signed on September 25, 2025, by Administrator Terrance Cole. 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.