[Federal Register: June 7, 2005 (Volume 70, Number 108)]
[Notices]
[Page 33193-33194]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jn05-81]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 05-2]
Stuart A. Bergman, M.D., Revocation of Registration
On September 16, 2004, the Deputy Assistant Administrator, Office
of Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Stuart A. Bergman, M.D., (Respondent) of San
Antonio, Texas, notifiying him of an opportunity to show cause as to
why DEA should not revoke his DEA Certificate of Registration BB0187953
as a practitioner pursuant to 21 U.S.C. 824(a)(3) and (4), and deny any
pending applications for renewal or modification of that registration
pursuant to 21 U.S.C. 823(f).
As a basis for revocation, the Order to Show Cause alleged, in sum,
that Respondent's Texas medical license had been temporarily suspended
and he did not have authority to handle controlled substances in that
state; that he issued prescriptions to a physician's assistant for non-
therapeutic resaons and failed to keep medical records on that
individual; that he failed to respond to inquiries from pharmacies and
the Texas State Board of Medical Examiners (Texas Board) about those
prescriptions; that he left threatening voicemails for a staff attorney
from the Texas Board; and that he purchased excessive quantities of
controlled substances and told investigators he distributed them to
family members without keeping medical charts on those individuals.
Respondent, through counsel, timely requested a hearing in this
matter and Presiding Administrative Law Judge Mary Ellen Bittner (Judge
Bittner) issued an Order for Prehearing Statements. On November 17,
2004, in lieu of filing a prehearing statement, the Government filed
its Motion for Summary Disposition and Motion to Stay the Filing of
Prehearing Statements (Motion). In its Motion the Government asserted
the Texas Board had temporarily suspended Respondent's license to
practice medicine, effective July 27, 2004, and that he was no longer
authorized to handle controlled substances in Texas, where he is
registered with DEA. As a result, the Government argued that further
proceedings in this matter were not required. Attched to the
Government's Motion was a copy of the Texas Board's Order Granting
Temporary Suspension, temporarily suspending Respondent's medical
license, effective July 27, 2004, until such time as that action was
superseded by a subsequent order of the Board.
On November 18, 2004, Judge Bittner issued a Memorandum to Counsel
providing Respondent until December 6, 2004, to respond to the
Government's Motion. Respondent filed an opposition and an amended
opposition to the Government's Motion and on December 17, 2004, his
counsel requested that Judge Bittner delay her ruling on the
Government's Motion until after February 2, 2005, when a hearing was
scheduled before the Texas Board, which could impact the suspension
status of his license. Over the Government's objections, Judge Bittner
granted Respondent a delay until March 1, 2005, in order to file
documentation showing he was then-authorized to handle controlled
substances in Texas.
On March 1, 2005, Respondent filed an Advisory Memorandum with the
Administrative Law Judge. In that document he did not claim his Texas
medical license had been reinstated. However he asserted that during
the February 2nd hearing, the Texas Board had offered to return his
license, subject to certain conditions. However, Respondent claimed
that when he received the draft Agreed Order, he would not sign it, as
he felt it contained findings and conditions to which he had not
agreed. Because he did not sign the Agreed Order, the matter would be
proceeding to a formal disciplinary hearing and Respondent asked Judge
Bittner to ``temporarily suspend'' his DEA registration until the Texas
Board had rendered its final decision.
On March 8, 2005, Judge Bittner issued her Opinion and Recommended
Decision of the Administrative Law Judge (Opinion and Recommended
Decision). As part of her recommended ruling, Judge Bittner denied
Respondent's request to temporarily suspend his registration and
granted the Government's Motion for Summary Disposition, finding
Respondent lacked authorization to handle controlled substances in
Texas, the state in which he is registered with DEA and recommending
that Respondent's DEA Certificate of Registration be revoked and any
pending applications denied.
No exceptions were filed by either party to Judge Bittner's Opinion
and Recommended Decision and on April 14, 2005, the record of these
proceedings was transmitted to the Office of the DEA Deputy
Administrator.
The Deputy Administrator has considered the record in its entirety
and pursuant to 21 CFR 1316.67, hereby issues her final order based
upon findings of fact and conclusions of law as hereinafter set forth.
The Deputy Administrator adopts, in full, the Opinion and Recommended
Decision of the Administrative Law Judge.
The Deputy Administrator finds that Respondent holds DEA
Certificate of Registration BB0187953 as a practitioner. The Deputy
Administrator further finds that effective July 27, 2004, Respondent's
license to practice medicine in Texas was temporarily suspended after
the Texas Board concluded ``Respondent's continuation in the practice
of medicine would constitute a continuing threat to the public
welfare.'' That action was based primarily upon facts similar to those
alleged in DEA's Order to Show Cause and there is no evidence that the
temporary suspension has been set aside, stayed or modified.
The Deputy Administrator therefore finds Respondent is currently
not licensed to practice medicine in Texas and lacks authorization to
handle controlled substances in that state.
DEA does not have statutory authority under the Controlled
Substances Act to issue or maintain a registration if the applicant or
registrant is without state authority to handle controlled substances
in the state in which he conducts business. See 21 U.S.C. 802(21),
823(f) and 824(a)(3). This prerequisite has been consistently upheld.
See Stephen J. Graham, M.D., 69 FR 11,661 (2004), Dominick A. Ricci,
M.D., 58 FR 51,104 (1993); Bobby Watts, M.D., 53 FR 11,919 (1988).
Denial or revocation is also appropriate when a state license has been
suspended, but with the possibiity of future reinstatement. See
Paramabaloth Edwin, M.D., 69 FR 58,540 (2004); Alton E. Ingram, Jr.,
M.D., 69 FR 22,562 (2004); Anne Lazar Thorn, M.D., 62 FR 847 (1997).
Here, it is clear Respondent is not currently licensed to handle
controlled substances in Texas, the jurisdiction in which he is
registered with DEA. Therefore, he is not entitled to registration in
that state.
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in her by 21 U.S.C.
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA
Certificate of Registration BB0187953, issued to Stuart A. Bergman,
M.D., be, and it hereby is, revoked. The Deputy
[[Page 33194]]
Administrator further orders that any pending applications for renewal
or modification of such registration be, and they hereby are, denied.
This order is effective July 7, 2005.
Dated: May 25, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05-11244 Filed 6-6-05; 8:45 am]
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