Timothy Balisky, N.P.; Decision and Order

<NOTICE> DEPARTMENT OF JUSTICE <SUBAGY>Drug Enforcement Administration</SUBAGY> <SUBJECT>Timothy Balisky, N.P.; Decision and Order</SUBJECT> On July 28, 2025, the Drug Enforcement Administration (DEA or Government) issued an Order to Show Cause (OSC) to Timothy Balisky, N.P., of Huntersville, North Carolina (Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX) 1 at 1, 4. The OSC proposed the revocation of Registrant's Certificate of Registration, No. MB7242352, alleging that Registrant's registration should be revoked because Registrant is “currently without authority to prescribe, administer, dispense, or otherwise handle controlled substances in the State of North Carolina, the state in which [he is] registered with DEA.” <E T="03">Id.</E> at 2 (citing 21 U.S.C. 824(a)(3)). <SU>1</SU> <FTREF/> <FTNT> <SU>1</SU>  According to the OSC and Agency records, Registrant's registration expired on July 31, 2025. RFAAX 1, at 2. The fact that a registrant allows his registration to expire during the pendency of an administrative enforcement proceeding does not impact the Agency's jurisdiction or prerogative under the Controlled Substances Act (CSA) to adjudicate the OSC to finality. <E T="03">Jeffrey D. Olsen, M.D.,</E> 84 FR 68474, 68476-79 (2019). </FTNT> The OSC notified Registrant of his right to file a written request for 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. <E T="03">Id.</E> at 2-3 (citing 21 CFR 1301.43). Here, Registrant did not request a hearing, and the Agency finds him to be in default. RFAA, at 2-3. <SU>2</SU> <FTREF/> “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). <FTNT> <SU>2</SU>  Based on the Government's submissions in its RFAA dated September 9, 2025, the Agency finds that service of the OSC on Registrant was adequate. Specifically, the Government's Declaration from a DEA Diversion Investigator (DI) indicates that on July 29, 2025, Registrant was personally served with a copy of the OSC. RFAAX 2, at 1; <E T="03">see also id.</E> at 3 (Form-DEA 12 signed by Registrant, acknowledging receipt of the OSC). </FTNT> 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.” <E T="03">Id.</E> 1301.43(f)(1). Here, the Government has requested final agency action based on Registrant's default pursuant to 21 CFR 1301.43(c), (f), 1301.46. RFAA, at 1; <E T="03">see also</E> 21 CFR 1316.67. <HD SOURCE="HD1">Findings of Fact</HD> The Agency finds that, in light of Registrant's default, the factual allegations in the OSC are deemed admitted. According to the OSC, effective May 13, 2025, the North Carolina State Board of Nursing issued an Order of Summary Suspension, suspending Registrant from the practice of nursing in North Carolina. RFAAX 1, at 2. According to North Carolina online records, of which the Agency takes official notice, <SU>3</SU> <FTREF/> the current status of Registrant's North Carolina nurse practitioner license is “No License due to Discipline.” North Carolina Board of Nursing License Verification, <E T="03">https://portal.ncbon.com/licenseverification/search.aspx</E> (last visited date of signature of this Order). Accordingly, the Agency finds that Registrant is not licensed as a nurse practitioner in North Carolina, the state in which he is registered with DEA. <SU>4</SU> <FTREF/> <FTNT> <SU>3</SU>  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). </FTNT> <FTNT> <SU>4</SU>  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 decision, is not licensed as a nurse practitioner in North 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 DEA Office of the Administrator, Drug Enforcement Administration at <E T="03">dea.addo.attorneys@dea.gov.</E> </FTNT> <HD SOURCE="HD1">Discussion</HD> Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to 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. <E T="03">Gonzales</E> v. <E T="03">Oregon,</E> 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. <E T="03">See, e.g., James L. Hooper, M.D.,</E> 76 FR 71371, 71372 (2011), <E T="03">pet. for rev. denied,</E> 481 F. App'x 826 (4th Cir. 2012); <E T="03">Frederick Marsh Blanton, M.D.,</E> 43 FR 27616, 27617 (1978). <SU>5</SU> <FTREF/> <FTNT> <SU>5</SU>  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. <E T="03">See, e.g., James L. Hooper, M.D.,</E> 76 FR at 71371-72; <E T="03">Sheran Arden Yeates, M.D.,</E> 71 FR 39130, 39131 (2006); <E T="03">Dominick A. Ricci, M.D.,</E> 58 FR 51104, 51105 (1993); <E T="03">Bobby Watts, M.D.,</E> 53 FR 11919, 11920 (1988); <E T="03">Frederick Marsh Blanton, M.D.,</E> 43 FR at 27617. </FTNT> 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) (2024). 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 [the] State.” <E T="03">Id.</E> at 90-87(22)(a). <SU>6</SU> <FTREF/> <FTNT> <SU>6</SU>  North Carolina law permits licensed nurse practitioners to handle controlled substances provided certain requirements are met. <E T="03">See</E> 21 N.C. Admin. Code 36.0809 (2024); N.C. Gen. Stat. 90-87(22)(a). </FTNT> Here, the undisputed evidence in the record is that Registrant lacks authority to practice as a nurse practitioner in North Carolina. As discussed above, an individual must be a licensed practitioner to dispense a controlled substance in North Carolina. Thus, because Registrant lacks authority to practice as a nurse practitioner in North Carolina and, therefore, is not authorized to handle controlled substances in North Carolina, Registrant is not eligible to maintain a DEA registration. Accordingly, the Agency will order that Registrant's DEA registration be revoked. <HD SOURCE="HD1">Order</HD> 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. MB7242352 issued to Timothy Balisky, 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 Timothy Balisky, N.P., to renew or modify this registration, as well as any other pending application of Timothy Balisky, N.P., for additional registration in North Car ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 11k characters. 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