[Federal Register: April 15, 2009 (Volume 74, Number 71)]
[Notices]
[Page 17525-17528]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ap09-117]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 08-49]
Joseph Baumstarck, M.D.; Revocation of Registration
On May 19, 2008, I, the Deputy Administrator of the Drug
Enforcement Administration, issued an Order to Show Cause and Immediate
Suspension of Registration to Joseph Baumstarck, M.D. (Respondent), of
Lovell, Wyoming. The Order proposed the revocation of Respondent's DEA
Certificate of Registration, BB2806480, which authorizes him to
dispense controlled substances in schedules II through V, and proposed
the denial of any pending applications to renew or modify his
registration, on the ground that Respondent had committed acts which
render his continued registration inconsistent with the public
interest.
[[Page 17526]]
Show Cause Order at 1 (citing 21 U.S.C. 824(a)(4)).
The Show Cause Order alleged that Respondent had repeatedly issued
controlled-substance prescriptions without establishing a legitimate
doctor-patient relationship in violation of Federal and state laws in
that he failed to obtain adequate patient histories or failed to
perform adequate physical examinations of his patients. Id. (citing 21
U.S.C. 841(a)(1), 21 CFR 1306.04, & Wyo. Stat. Sec. 33-26-402(a)). The
Order further alleged that Respondent issued controlled-substance
prescriptions to persons he knew to be drug addicts and that these
persons were not using the drugs for a legitimate medical purpose. Id.
Relatedly, the Order alleged that Respondent did ``nothing to confirm
that these patients are not diverting the controlled substances'' that
he prescribed. Id. at 1-2.
The Show Cause Order further alleged that ``on at least four
occasions in January and February 2008, Respondent had prescribed
schedule II controlled substances for the purpose of detoxification
and/or maintenance treatment,'' notwithstanding that he was not
registered to conduct a narcotic-treatment program, and that the drugs
he prescribed were ``not approved by the Food and Drug Administration
(FDA) for detoxification and/or maintenance treatment in an office-
based setting.'' Id. at 2 (citing 21 U.S.C. 823(g)(1) & 21 CFR
1306.07(a)). Relatedly, the Order alleged that in April 2008,
Respondent had discussed with a police officer who claimed to be
addicted to prescription pain killers, how he prescribed drugs
containing oxycodone, a schedule II controlled substance, to treat
addicts for addiction.\1\ Id. The Order also alleged that Respondent's
illegal practices were ongoing. Id. I thus concluded that Respondent's
``continued registration during the pendency of these proceeds would
constitute an imminent danger to the public health and safety.'' Id.
(citing 21 U.S.C. 824(d)).
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\1\ The Order also alleged that on at least eight occasions,
Respondent had violated Federal law by failing to include his
registration number and the patient's address on controlled-
substance prescriptions. Show Cause Order at 2 (citing 21 U.S.C.
842(a); 21 CFR 1306.05(a)).
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On May 22, 2008, the Order was served on Respondent. On June 16,
2008, Respondent requested a hearing on the allegations. Letter of
Joseph Baumstarck, Jr., to Hearing Clerk (June 16, 2008). Respondent
denied the allegations, but further stated that because he had been
charged criminally, he was exercising his Fifth Amendment right against
self-incrimination. Id.
On June 25, 2008, the Government moved for summary disposition (and
to stay the filing of pre-hearing statements) on the ground that on
June 9, 2008, the Wyoming Board of Medicine had summarily suspended
Respondent's state medical license and that the suspension was to
remain in effect pending the resolution of the Board's proceeding. Gov.
Mot. for Summ. Disp. at 2. The Government further noted that while a
practitioner in Wyoming must hold both a medical license and a state
issued controlled-substance registration (which is issued by the Board
of Pharmacy), and Respondent still held a state controlled-substance
registration, he was currently without authority to practice medicine
and thus could not prescribe any drug (whether controlled or non-
controlled). Id. at 3.
In support of its motion, the Government attached the State Board's
order which summarily suspended Respondent's medical license. Id. at
Ex. B. As grounds for its action, the Board's order noted that on May
19, 2008, Respondent had been indicted by a federal grand jury on four
counts of unlawful distribution of hydrocodone and two counts of
unlawful distribution of oxycodone. Id. at 1-2 (citing 21 U.S.C.
841(a)(1)(B) & (1)(D) and id. Sec. 841(a)(1)(B) & (1)(C)). The order
also noted that the Board had received an Adverse Action Report from
the National Practitioner Data Bank indicating that on May 29, 2008,
North Big Horn Hospital of Lovell, Wyoming, had summarily suspended
Respondent's clinical privileges pending the resolution of the criminal
case. Id. at 3. The order further noted that on June 5, 2008, the Board
had received a report from the state Pharmacy Board that Respondent had
prescribed Suboxone on multiple occasions ``without the required DEA
endorsement.'' \2\ Id. Finally, the Order noted that as a condition of
his release from custody, the Federal District Court had imposed a
restriction that Respondent could ``continue the practice of medicine
only after the Board * * * creates a plan regarding the prescribing of
any controlled substances'' and that he ``shall not see patients
without another licensed physician present in the room with him,'' and
that Respondent had told the Medical Board's Executive Secretary that
he intended to seek a removal of the condition that another physician
directly supervise his practice. Id. at 2-3. Based on all of these
findings, the State Board concluded that ``the public health, safety or
welfare imperatively requires emergency action and that a summary
suspension of [Respondent's] license is necessary to protect the
citizens of Wyoming.'' Id. at 4.
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\2\ The State Board's Order also noted the allegations contained
in my Order to Show Cause and Immediate Suspension of Registration.
Ex B at 2.
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Upon reviewing the Government's motion, the ALJ issued a memorandum
which provided Respondent with the opportunity to respond to the
motion. Memorandum to Parties (June 25, 2008). The following day,
Respondent submitted a letter to the Hearing Clerk in which he stated
that he opposed the Government's motion, but that because of the
pending criminal case and his invocation of his Fifth Amendment
privilege, he was ``unable * * * to adequately address'' the issues,
and that the Agency was therefore denying him his right to Due Process.
Ltr. of Joseph Baumstarck, Jr., to Hearing Clerk (June 26, 2008).
Respondent further contended that ``[t]he actions which the
government's statement alleges as having occurred in regard to my
ability to practice in Wyoming are the result of the DEA's action which
is the issue being contested here.'' Id. Respondent then requested that
the proceeding be postponed until his criminal case was resolved. Id.
Thereafter, the Government moved to deny Respondent's request for a
postponement and also requested that the ALJ grant its motion for
summary disposition. See Gov. Response to Resp.'s Req. for Postponement
and Resp.'s Opp. In its motion, the Government maintained that under
the Controlled Substances Act (CSA), the Agency does not have authority
to maintain the registration of a practitioner who lacks state
authority to handle controlled substances and ``that the reason for
[Respondent's] state suspension is irrelevant.'' Id. at 2 & n 1. The
Government further argued that Respondent had also been ``investigated
by state and local law enforcement [and] thus, his assertion that DEA
is the cause of his [s]tate medical license suspension is without
merit.'' Id. The Government also maintained that granting its motion
for summary disposition would not violate Respondent's right to Due
Process because the granting of such motions (when no material facts
are in dispute) is a common feature of adjudicatory proceedings. Id. at
2. Finally, the Government urged the ALJ to reject Respondent's request
for a postponement because the issue in the case--whether he is without
state authority to handle controlled substances--could be litigated
without Respondent having to testify (by submitting documentary
evidence to the
[[Page 17527]]
contrary), and because ``there [was] no guarantee that'' his criminal
case would be resolved by date he claimed it would be. Id. at 3.
On July 1, 2008, Respondent sent an additional letter to the
Hearing Clerk in which he reiterated his previous objections to the
Government's position, including his contention that his inability ``to
practice medicine in Wyoming [is] the result of the DEA's action which
is the issue being contested here.'' Letter of Respondent to Hearing
Clerk (June 30, 2008). Respondent disputed the Government's argument
that he could reapply for a new registration as ``beg[ging] the
question of due process.'' Id. He also contended that the Government's
argument that the criminal case could be rescheduled several times was
irrelevant to the issue of whether this proceeding should be stayed
because he had ``no control over the scheduling of court cases.'' Id.
On the same day, the ALJ stayed the proceeding pending her review
of the Government's motion. ALJ at 6. On July 16, 2008, the ALJ granted
the Government's motion. Id. at 7. Noting that it was ``undisputed that
Respondent is without state authority to hand controlled substances in
Wyoming,'' id., the ALJ applied the Agency's long-settled ruled that a
practitioner may not maintain his registration if he lacks authority to
handle controlled substances under the laws of the State in which he
practices. Id. at 6-7. The ALJ thus recommended that Respondent's
registration be revoked and that any pending applications be denied.
On July 23, 2008, Respondent submitted his ``formal objection'' to
the ALJ's decision. Letter of Respondent to Hearing Clerk (July 23,
2008). Respondent ``reiterate[d] [his] previous position that it is
ludicrous that a government entity is able to cause by its original
action a secondary action by another government entity and then use the
second action to justify the original action.'' Id. Respondent also
restated his position that he was ``unable to give a detailed
statement'' regarding the allegations because he had been criminally
charged and was exercising his Fifth Amendment rights.
Thereafter, the record was forwarded to me for final agency action.
Having considered the entire record in this matter (including the
issues raised by Respondent in his July 23, 2008 letter), I adopt the
ALJ's decision in its entirety.
I find that Respondent currently holds DEA Certificate of
Registration, BB2806480, which authorizes him to dispense controlled
substances in schedule II through V as a practitioner at registered
premises of 342 E. Main St., Lovell, Wyoming. Respondent's registration
does not expire until July 31, 2009.
On June 6, 2008, the Wyoming Board of Medicine summarily suspended
Respondent's physician's license and further ordered that ``such
suspension shall continue pending proceedings for revocation or other
action against'' his license. GX B. The State's order cited five
different grounds as support for its order including: (1) That on May
19, 2008, Respondent had been indicted in federal court on six counts
of unlawful distribution of controlled substances; (2) the allegations
of the Order to Show Cause; (3) the Adverse Action Report that
Respondent's privileges had been suspended by a local hospital; (4) the
state Pharmacy Board's report that Respondent had prescribed Suboxone
on numerous occasions without holding the requisite endorsement to his
DEA registration; and (5) that Respondent had told the Board's
Executive Secretary of his intent to seek the removal of certain
conditions of his release which were imposed by the Federal District
Court. According to the Wyoming Board of Medicine Web site,
Respondent's state license remains suspended.
Under the CSA, a practitioner must be currently authorized to
handle controlled substances in ``the jurisdiction in which he
practices'' in order to maintain a DEA registration. See 21 U.S.C.
802(21) (``[t]he term `practitioner' means a physician * * * 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''). See
also id. Sec. 823(f) (``The Attorney General shall register
practitioners * * * if the applicant is authorized to dispense * * *
controlled substances under the laws of the State in which he
practices.''). As these provisions make plain, possessing authority
under state law to handle controlled substances is an essential
condition for holding a DEA registration.
Accordingly, the Agency has held repeatedly that the CSA requires
the revocation of a registration issued to a practitioner whose state
license has been suspended or revoked. David Wang, 72 FR 54297, 54298
(2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick A.
Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920
(1988). See also 21 U.S.C. 824(a)(3) (authorizing the revocation of a
registration ``upon a finding that the registrant * * * has had his
State license or registration suspended [or] revoked * * * and is no
longer authorized by State law to engage in the * * * distribution [or]
dispensing of controlled substances''). Moreover, because the statutory
text makes plain that a practitioner must have current authority to
handle controlled substances under state law in order to maintain his
CSA registration, the Agency has also held that revocation is warranted
even when a practitioner's state authority has only been suspended and
there remains a possibility that the authority will be restored
following a state proceeding. See Bourne Pharmacy, Inc., 72 FR 18273,
18274 (2007).
Here, there is no dispute that Respondent does not have current
authority under state law to dispense controlled substances.
Respondent, however, maintains that the Agency's revocation of his
registration based on the State's suspension of his medical license
would violate his right to Due Process because the State's action was
based on my Order which immediately suspended his registration.
Respondent ignores, however, that the State's suspension order did
not rely solely on my Order. Rather, the State Board also relied on
Respondent's indictment by a federal grand jury, which represents the
judgment of an independent body of citizens that probable cause exists
to believe that Respondent had committed six felony counts of unlawful
distribution of controlled substances. See, e.g., FDIC v. Mallen, 486
U.S. 230, 241 (1988) (where ``[a] grand jury ha[s] determined that
there was probable cause that [bank officer] had committed a felony,''
the finding supported suspension followed by a hearing).
Moreover, the State Board also relied on the Board of Pharmacy's
Report that Respondent had violated the law in prescribing Suboxone,
the report from the National Practitioner Bank that a local hospital
had suspended his privileges, and Respondent's own statements to the
Board's Executive Secretary that he was seeking to remove the District
Court's requirement that another physician directly supervise his
practice. In short, in concluding that Respondent posed ``an immediate
threat to the public health, safety or welfare of the people of * * *
Wyoming,'' GX B at 3-4, the Board clearly conducted its own independent
evaluation of the evidence against him and did not simply piggyback on
my Order of Immediate Suspension. See Oakland Medical Pharmacy, 71 FR
50100, 50102 (2006) (rejecting the contention that it is circular for
DEA to rely on a state suspension order to revoke a registration
[[Page 17528]]
where the State did not rely solely on the DEA order in suspending a
practitioner's state license).
Respondent also apparently argues that revoking his registration
would violate his right to Due Process because he has invoked his Fifth
Amendment privilege and is ``unable'' to address the allegations. This
argument would be unpersuasive even if the Agency was still seeking to
revoke based on the allegations that he unlawfully distributed
controlled substances.\3\
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\3\ Due Process only requires that the Government provide a
meaningful opportunity to test the Government's proof and respond to
the allegations; a litigant's unwillingness to testify in a civil
matter, because he fears incriminating himself, does not render a
hearing opportunity unmeaningful in the constitutional sense. Ohio
Adult Parole Authority v. Woodward, 523 U.S. at 272, 286 (1998).
Indeed, the Supreme Court has even upheld the drawing of an adverse
inference based on a respondent's refusal to testify in an
administrative proceeding. See Woodward, 523 U.S. at (1998) (citing
Baxter v. Palmigiano, 425 U.S. 308, 316-18 (1976)); see also INS v.
Lopez-Mendoza, 468 U.S. 1032, 1043-44 (1984).
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Moreover, Respondent ignores that under the CSA, the loss of state
authority provides an independent ground to revoke and that the only
issue now in dispute is whether Respondent holds state authority.
Respondent was provided with a meaningful opportunity to refute the
Government's evidence by showing that his state license had not been
(or was no longer) suspended; such a showing would not require his
testimony. That there is no such evidence (because the State's
suspension order remains in effect) likewise does not deprive
Respondent of Due Process.
Because Respondent remains without authority to dispense controlled
substances under the laws of the State in which he practices medicine
and is registered with the Agency, his registration will be revoked.
Moreover, for the same reasons that I ordered the immediate suspension
of Respondent's registration, I further hold that this Order be
effective immediately.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) &
824(a), as well as 28 CFR 0.100(b) & 0.104, I hereby order that DEA
Certificate of Registration, BB2806480, issued to Joseph Baumstarck,
M.D., be, and it hereby is, revoked. I further order that any pending
application of Joseph Baumstarck, M.D., for renewal or modification of
his registration be, and it hereby is, denied. This order is effective
immediately.
Dated: April 3, 2009.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E9-8612 Filed 4-14-09; 8:45 am]
BILLING CODE 4410-09-P