Steven Bernhard, D.O.; Decision and Order, 23298-23300 [2017-10363]
Download as PDF
23298
Federal Register / Vol. 82, No. 97 / Monday, May 22, 2017 / Notices
DEPARTMENT OF JUSTICE
DEPARTMENT OF JUSTICE
Antitrust Division
Antitrust Division
Notice Pursuant to the National
Cooperative Research and Production
Act of 1993—Pistoia Alliance, Inc.
Notice Pursuant to the National
Cooperative Research and Production
Act of 1993—International Electronics
Manufacturing Initiative, Inc.
Notice is hereby given that, on April
24, 2017, pursuant to Section 6(a) of the
National Cooperative Research and
Production Act of 1993, 15 U.S.C. 4301
et seq. (‘‘the Act’’), Pistoia Alliance, Inc.
has filed written notifications
simultaneously with the Attorney
General and the Federal Trade
Commission disclosing changes in its
membership. The notifications were
filed for the purpose of extending the
Act’s provisions limiting the recovery of
antitrust plaintiffs to actual damages
under specified circumstances.
Specifically, Shire Pharmaceuticals
LLC, Lexington, MA; Lhasa Limited,
Leeds, UNITED KINGDOM;
Intomics A/S, Lyngby, DENMARK; and
PRYV SA, Lausanne, SWITZERLAND,
have been added as parties to this
venture.
Also, Chris Barber (individual
member), Leeds, UNITED KINGDOM,
has withdrawn as a party to this
venture.
No other changes have been made in
either the membership or planned
activity of the group research project.
Membership in this group research
project remains open, and Pistoia
Alliance, Inc. intends to file additional
written notifications disclosing all
changes in membership.
On May 28, 2009, Pistoia Alliance,
Inc. filed its original notification
pursuant to Section 6(a) of the Act. The
Department of Justice published a notice
in the Federal Register pursuant to
Section 6(b) of the Act on July 15, 2009
(74 FR 34364).
The last notification was filed with
the Department on February 3, 2017. A
notice was published in the Federal
Register pursuant to Section 6(b) of the
Act on March 7, 2017 (82 FR 12847).
Notice is hereby given that, on April
26, 2017, pursuant to Section 6(a) of the
National Cooperative Research and
Production Act of 1993, 15 U.S.C. 4301
et seq. (‘‘the Act’’), International
Electronics Manufacturing Initiative,
Inc. (‘‘iNEMI’’) has filed written
notifications simultaneously with the
Attorney General and the Federal Trade
Commission disclosing changes in its
membership. The notifications were
filed for the purpose of extending the
Act’s provisions limiting the recovery of
antitrust plaintiffs to actual damages
under specified circumstances.
Specifically, 5N Plus Micro Powders
´
Inc., Montreal, Quebec, CANADA; U.S.
Department of Defense, Fort Meade,
MD; Elmatica AS, Oslo, NORWAY;
Integrated Micro-Electronics, Inc.,
Binan, PHILIPPINES; General Electric,
San Jose, CA; Oak Ridge National
Laboratory, Oak Ridge, TN; Tin
Products Manufacturing Co., LTD,
Kunming, PEOPLE’S REPUBLIC OF
CHINA; Vitrox Technologies SDN BHD,
Bayan Lepas, MALAYSIA; METech
Recycling, Creedmoor, NC; Peagatroin,
Taipei, TAIWAN; Shenmao Technology,
Inc., Taoyuan, TAIWAN; SAKI
Corporation, Tokyo, JAPAN; SENKO
Advanced Components, Basingstoke,
UNITED KINGDOM; and Abbott
Corporation, Abbott Park, IL, have been
added as parties to this venture.
` ´
Also, Commissariat a l’energie
´
atomique et aux energies alternatives,
Grenoble, FRANCE; EPEAT, Inc.,
Portland, OR; Underwriters
Laboratories, Northbrook, IL; IMEC vzw,
Leuven, BELGIUM; Micro Systems
Technology Mgmt. AG, Baar,
SWITZERLAND; TE Connectivity,
Schaffhausen, SWITZERLAND; and St.
Jude Medical, Saint Paul, MN, have
withdrawn as parties to this venture.
No other changes have been made in
either the membership or planned
activity of the group research project.
Membership in this group research
project remains open, and iNEMI
intends to file additional written
notifications disclosing all changes in
membership.
On June 6, 1996, iNEMI filed its
original notification pursuant to Section
6(a) of the Act. The Department of
Justice published a notice in the Federal
Register pursuant to Section 6(b) of the
Act on June 28, 1996 (61 FR 33774).
Patricia A. Brink,
Director of Civil Enforcement, Antitrust
Division.
mstockstill on DSK30JT082PROD with NOTICES
[FR Doc. 2017–10358 Filed 5–19–17; 8:45 am]
BILLING CODE P
VerDate Sep<11>2014
23:17 May 19, 2017
Jkt 241001
PO 00000
Frm 00129
Fmt 4703
Sfmt 4703
The last notification was filed with
the Department on May 4, 2016. A
notice was published in the Federal
Register pursuant to Section 6(b) of the
Act on June 9, 2016 (81 FR 37213).
Patricia A. Brink,
Director of Civil Enforcement, Antitrust
Division.
[FR Doc. 2017–10342 Filed 5–19–17; 8:45 am]
BILLING CODE P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Steven Bernhard, D.O.; Decision and
Order
On October 3, 2016, the Assistant
Administrator, Division of Diversion
Control, Drug Enforcement
Administration, issued an Order to
Show Cause to Steven Bernhard, D.O.
(hereinafter, Registrant), of Bayside,
New York. The Show Cause Order
proposed the revocation of Registrant’s
Certificate of Registration on the
grounds that: (1) He materially falsified
his renewal application, and (2) he lacks
authority to handle controlled
substances in New York, the State in
which he is registered. GX D, at 1 (citing
21 U.S.C. 823(f), 824(a)(1), and
824(a)(3)).
As to the Agency’s jurisdiction, the
Show Cause Order alleged that
Registrant is the holder of DEA
Certificate of Registration AB7719860,
pursuant to which he is registered as a
practitioner in schedules II through V at
the registered address of 39–21 Bell
Blvd., Bayside, New York. Id. The Order
alleged that this registration does not
expire until July 31, 2018. Id.
As to the substantive grounds for the
proceeding, the Show Cause Order
alleged that effective on ‘‘February 4,
2013, the New York Department of
Health State Board for Professional
Misconduct revoked [his] license to
practice medicine due to negligence,
incompetence, gross negligence, gross
incompetence, the failure to maintain
records, fraudulent practice, and false
reports,’’ and that ‘‘[t]his order remains
in effect.’’ Id. The Show Cause Order
thus alleged that Registrant is ‘‘without
authority to handle controlled
substances in the State of New York, the
[S]tate in which [he is] registered,’’ and
that his registration is therefore subject
to revocation. Id. at 1–2 (citing 21 U.S.C.
823(f) & 824(a)(3)).
The Show Cause Order also alleged
that on June 11, 2015, Registrant
submitted a renewal application for his
registration on which he made two
materially false statements. Id. at 2.
E:\FR\FM\22MYN1.SGM
22MYN1
mstockstill on DSK30JT082PROD with NOTICES
Federal Register / Vol. 82, No. 97 / Monday, May 22, 2017 / Notices
First, the Order alleged that Registrant
falsely represented that he ‘‘possessed a
valid New York Medical License No.
131832 which expired on March 31,
2017,’’ when, in fact, his ‘‘medical
license had been revoked in 2013.’’ Id.
Second, the Order alleged that
Registrant falsely answered ‘‘No’’ to the
application’s question which asked if he
‘‘had ever ‘had a state professional
license or controlled substance
registration revoked, suspended, denied,
restricted, or placed on probation, or is
any such action pending?’ ’’ Id. The
Order alleged that each of these
statements was capable of influencing
the Agency’s decision to grant the
application and was thus material. Id.
(citing 21 U.S.C. 823(f) & 824(a)(1); other
citations omitted).
The Show Cause Order notified
Registrant of his right to request a
hearing on the allegations or to submit
a written statement of his position on
the matters of fact and law asserted
while waiving his right to a hearing, the
procedure for electing either option, and
the consequence of failing to elect either
option. Id. at 2–3 (citing 21 CFR
1301.43). The Order also notified
Registrant of his right to submit a
Corrective Action Plan pursuant to 21
U.S.C. 824(c)(2)(C). Id. at 3.
On November 4, 2016, a DEA
Diversion Investigator (DI) went to
Registrant’s registered address as well as
his home address to attempt personal
service of the Show Cause Order, but
Registrant ‘‘was not present’’ at either
location. GX 3, at 1–2. Subsequently, the
DI mailed the Show Cause Order to
Registrant by Certified Mail, Return
Receipt Requested, addressed to him at
both his registered location and home
address. Id. at 2. As evidenced by the
copies of the signed return-receipt
cards, these mailings were delivered on
November 16 and 15, 2016, respectively.
Id. Finally, on November 29, 2016, the
DI also emailed a copy of the Show
Cause Order to Registrant using the
email address he had previously
provided the Agency. Id. The DI further
represented that the she did not receive
a message that the ‘‘email was not
successfully sent’’ or ‘‘was
undeliverable.’’ Id.
The Government’s Counsel further
represents that Registrant ‘‘has not filed
a request for a hearing or a written
statement.’’ Request for Final Agency
Action, at 2. Because I find that more
than 30 days have now passed since the
Show Cause Order was served on
Registrant, and that Registrant has
neither requested a hearing nor
submitted a written statement while
waiving his right to a hearing, I find that
Registrant has waived his right to a
VerDate Sep<11>2014
23:17 May 19, 2017
Jkt 241001
hearing or to submit a written statement.
Based on the evidence submitted by the
Government, I make the following
factual findings.
Findings of Fact
Registrant is the holder of DEA
Certificate of Registration No.
AB7719860, pursuant to which he is
authorized to dispense controlled
substances as a practitioner in schedules
II through V, at the registered address of
39–21 Bell Blvd., Bayside, NY. GX 1.
This registration does not expire until
July 31, 2018. Id.
Registrant was previously licensed to
practice medicine by the New York
State Department of Health. GX 3, Ex. E,
at 7. (Determination and Order, at 3, In
the Matter of Steven Bernhard, D.O.,
(N.Y. Dept. of Health State Bd. for Prof.
Med. Conduct, Jan. 24, 2013)). However,
on January 24, 2013, a Hearing
Committee of the Board issued a
Determination and Order revoking
Registrant’s license to practice
medicine; the Board’s Order became
effective on February 4, 2013 and was
in effect as of June 19, 2015, as well as
of the date this matter was forwarded to
my Office. Id. at 1; see also GX 3, Ex.
F, at 1. Moreover, I take official notice
of the Board’s Web site, which
continues to list Registrant’s medical
license as having been revoked. See 5
U.S.C. 556(e); 21 CFR 1316.59(e).
On June 11, 2015, Registrant
submitted an application to renew his
DEA registration. GX 3, Ex. A, at 1.
Section 4 of the Application asked: ‘‘Are
you currently authorized to prescribe,
distribute, dispense, conduct research,
or otherwise handle controlled
substances in the schedules for which
you are applying under the laws of the
state or jurisdiction in which you are
operating or propose to operate?’’ Id.
Registrant represented that he held
‘‘State License No. 131839,’’ that the
license was issued by ‘‘NY,’’ and its
expiration date was ‘‘03–31–2017.’’ Id.
On the Application, Registrant was also
required to answer the question: ‘‘Has
the applicant ever surrendered (for
cause) or had a state professional license
or controlled substance registration
revoked, suspended, denied, restricted,
or placed on probation, or is any such
action pending?’’ Id. Registrant
answered ‘‘N’’ for no. Id.
Discussion
Pursuant to section 304(a)(1) of the
Controlled Substances Act (CSA), the
Attorney General is authorized to
suspend or revoke a registration ‘‘upon
a finding that the registrant . . . has
materially falsified any application filed
pursuant to or required by this
PO 00000
Frm 00130
Fmt 4703
Sfmt 4703
23299
subchapter.’’ 21 U.S.C. 824(a)(1). And
pursuant to section 304(a)(3), the
Attorney General is authorized to
suspend or revoke a registration ‘‘upon
a finding that the registrant . . . has had
his State license or registration
suspended, revoked, or denied by
competent State authority and is no
longer authorized by State law to engage
in the . . . distribution or dispensing of
controlled substances.’’ Id. § 824(a)(3).
These provisions provide separate and
independent grounds to revoke
Registrant’s registration.
The Loss of State Authority Allegation
Under the CSA, a practitioner must be
currently authorized to handle
controlled substances in ‘‘the
jurisdiction in which he practices’’ in
order to obtain and maintain a DEA
registration. This rule derives from two
provisions of the CSA. 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. § 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.’’).
Thus, DEA has 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. See, e.g., Frederick Marsh
Blanton, 43 FR 27616, 27617 (1978)
(‘‘State authorization to dispense or
otherwise handle controlled substances
is a prerequisite to the issuance and
maintenance of a Federal controlled
substances registration.’’); see also
James L. Hooper, 76 FR 71371 (2011),
pet. for rev. denied, 481 Fed. Appx. 826
(4th Cir. 2012); 21 U.S.C. 824(a)(3).
Here, the Government has provided a
copy of the New York Board’s
Determination and Order which revoked
Registrant’s New York medical license
effective on February 4, 2013. The
Government further submitted evidence
showing that, as of the date it submitted
its Request for Final Agency Action,
Registrant’s state medical license
remained revoked, and the Board’s Web
site continues to state that his license
has been revoked.
I therefore conclude that Registrant’s
medical license has been revoked and
that he is no longer authorized to
dispense controlled substances in New
York, the State in which he holds his
E:\FR\FM\22MYN1.SGM
22MYN1
23300
Federal Register / Vol. 82, No. 97 / Monday, May 22, 2017 / Notices
mstockstill on DSK30JT082PROD with NOTICES
registration. Because Registrant does not
meet the CSA’s essential requirement
for maintaining a practitioner’s
registration, I will order that his
registration be revoked. See 21 U.S.C.
824(a)(3), 802(21); see also id. § 823(f).
The Material Falsification Allegation
As found above, effective on February
4, 2013, the State of New York revoked
Registrant’s Medical License and this
Order was still in effect as of June 11,
2015, when Registrant submitted his
application. Thus, Respondent
materially falsified his application in
two ways. First, he falsely represented
that he was ‘‘currently authorized to
prescribe [or] dispense’’ controlled
substances in New York State when he
listed his purported license number,
indicated that it was issued by New
York, and listed the license’s expiration
date as March 31, 2017. Second, he
falsely answered ‘‘N’’ for no to the
question which asked if his state
medical license had ever been revoked.
Each of these false statements was
clearly material because it was capable
of affecting or influencing the Agency’s
decision as to whether to grant his
application. Kungys v. United States,
485 U.S. 759, 770 (1988) (other citation
omitted); United States v. Wells, 519
U.S. 482, 489 (1997) (quoting Kungys,
485 U.S. at 770). As explained above,
the CSA defines the ‘‘[t]he term
‘practitioner’ [to] mean[ ] 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,’’ 21 U.S.C.
802(21), and the registration provision
applicable to practitioners directs 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.’’ Id. § 823(f). As
the Agency has long held, ‘‘[s]tate
authorization to dispense or otherwise
handle controlled substances is a
prerequisite to the issuance and
maintenance of a Federal controlled
substances registration.’’ Blanton, 43 FR
at 27617.
Because the possession of state
authority is a prerequisite to obtaining
and maintaining a practitioner’s
registration, Respondent’s false
representations that he currently
possessed a state license and that his
state license had never been revoked
were capable of influencing the
Agency’s decision to grant his June 11,
2015 renewal application. I therefore
also conclude that Respondent
materially falsified his June 11, 2015
VerDate Sep<11>2014
23:17 May 19, 2017
Jkt 241001
application. For this reason as well, I
will order that his registration be
revoked. 21 U.S.C. 824(a)(1).
Order
Pursuant to the authority vested in me
by 21 U.S.C. 824(a) as well as 28 CFR
0.100(b), I order that DEA Certificate of
Registration AB7719860 issued to
Steven Bernhard, D.O., be, and it hereby
is, revoked. I further order that any
application of Steven Bernhard, D.O., to
renew or modify this registration, be
denied. This Order is effective
immediately.1
Dated: May 15, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017–10363 Filed 5–19–17; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Shakeel A. Kahn, M.D.; Decision and
Order
On December 20, 2016, the Assistant
Administrator, Division of Diversion
Control, Drug Enforcement
Administration, issued an Order to
Show Cause to Shakeel A. Kahn, M.D.
(hereinafter, Registrant), of Casper,
Wyoming. GX 1. The Show Cause Order
proposed the revocation of Registrant’s
Certificate of Registration, on the ground
that he ‘‘do[es] not have authority to
handle controlled substances in the
State of Wyoming, the [S]tate in which
[he is] registered with the DEA.’’ Id.
(citing 21 U.S.C. 823(f) and 824(a)(3)).
As for the jurisdictional basis of the
proceeding, the Show Cause Order
alleged that Registrant is registered ‘‘as
a practitioner in [s]chedules II–V
pursuant to’’ Certificate of Registration
No. FK5578464, at the address of ‘‘301
South Fenway St., Suite 202, Casper,
Wyoming.’’ Id. The Order alleged that
this registration expires ‘‘on December
31, 2018.’’ Id.
As for the substantive ground for the
proceeding, the Show Cause Order
alleged that on November 29, 2016,
Registrant’s ‘‘authority to prescribe and
administer controlled substances in the
State of Wyoming was suspended,’’ and
that he is ‘‘without authority to handle
controlled substances.’’ Id. The Show
Cause Order thus asserted that his
registration is subject to revocation. Id.
1 Based
on my finding that Respondent obtained
his registration by materially falsifying his
application, I conclude that the public interest
necessitates that this Order be effective
immediately. 21 CFR 1316.67.
PO 00000
Frm 00131
Fmt 4703
Sfmt 4703
(citing 21 U.S.C. 802(21), 823(f), and
824(a)(3)) (other citations omitted).
The Show Cause Order also notified
Registrant of his right to request a
hearing on the allegations or to submit
a written statement on the matters of
fact and law at issue while waiving his
right to a hearing, the procedures for
electing either option, and the
consequence of failing to elect either
option. Id. at 2. Also, the Show Cause
Order notified Registrant of his right to
submit a corrective action plan. Id. at 2–
3 (citing 21 U.S.C. 824(c)(2)(C)).
According to the declaration of a DEA
Special Agent, on December 20, 2016,
he personally served the Show Cause
Order on Registrant at his residence. GX
5. The Government represents that the
Agency ‘‘has not received a request for
hearing or any other reply from’’
Registrant. Gov. Request for Final
Agency Action, at 2. Based on the
representation of the Government, I find
that more than 30 days have now passed
since the Show Cause Order was served
on Registrant, and that Registrant has
neither requested a hearing nor
submitted a written statement while
waiving his right to a hearing. I
therefore find that Registrant has waived
his right to a hearing or to submit a
written statement. Based on the
evidence submitted by the Government,
I make the following factual findings.
Findings
Registrant is the holder of DEA
Certificate of Registration No.
FK5578464, pursuant to which he is
authorized to dispense controlled
substances in schedules II through V as
a practitioner, at the address of 301 S.
Fenway St., Suite 202, Casper,
Wyoming. GX 2. His registration does
not expire until December 31, 2018. Id.
Registrant is also the holder of
Wyoming Physician License No. 7633A.
GX 3, at 1. However, on November 29,
2016, the Wyoming Board of Medicine
ordered the summary suspension of
Registrant’s Physician License effective
the same day, thereby suspending ‘‘his
authority and ability to practice
medicine in the state of Wyoming’’
pending ‘‘the completion of a contested
case hearing.’’ Id. at 18. According to
the online records of the Wyoming
Board of Medicine of which I take
official notice, Registrant’s medical
license remains suspended as of the
date of this Decision and Order. See 5
U.S.C. 556(e), 21 CFR 1316.59(e).
Discussion
Pursuant to 21 U.S.C. 824(a)(3), the
Attorney General is authorized to
suspend or revoke a registration issued
under section 823 of the Controlled
E:\FR\FM\22MYN1.SGM
22MYN1
Agencies
[Federal Register Volume 82, Number 97 (Monday, May 22, 2017)]
[Notices]
[Pages 23298-23300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-10363]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Steven Bernhard, D.O.; Decision and Order
On October 3, 2016, the Assistant Administrator, Division of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Steven Bernhard, D.O. (hereinafter, Registrant), of
Bayside, New York. The Show Cause Order proposed the revocation of
Registrant's Certificate of Registration on the grounds that: (1) He
materially falsified his renewal application, and (2) he lacks
authority to handle controlled substances in New York, the State in
which he is registered. GX D, at 1 (citing 21 U.S.C. 823(f), 824(a)(1),
and 824(a)(3)).
As to the Agency's jurisdiction, the Show Cause Order alleged that
Registrant is the holder of DEA Certificate of Registration AB7719860,
pursuant to which he is registered as a practitioner in schedules II
through V at the registered address of 39-21 Bell Blvd., Bayside, New
York. Id. The Order alleged that this registration does not expire
until July 31, 2018. Id.
As to the substantive grounds for the proceeding, the Show Cause
Order alleged that effective on ``February 4, 2013, the New York
Department of Health State Board for Professional Misconduct revoked
[his] license to practice medicine due to negligence, incompetence,
gross negligence, gross incompetence, the failure to maintain records,
fraudulent practice, and false reports,'' and that ``[t]his order
remains in effect.'' Id. The Show Cause Order thus alleged that
Registrant is ``without authority to handle controlled substances in
the State of New York, the [S]tate in which [he is] registered,'' and
that his registration is therefore subject to revocation. Id. at 1-2
(citing 21 U.S.C. 823(f) & 824(a)(3)).
The Show Cause Order also alleged that on June 11, 2015, Registrant
submitted a renewal application for his registration on which he made
two materially false statements. Id. at 2.
[[Page 23299]]
First, the Order alleged that Registrant falsely represented that he
``possessed a valid New York Medical License No. 131832 which expired
on March 31, 2017,'' when, in fact, his ``medical license had been
revoked in 2013.'' Id. Second, the Order alleged that Registrant
falsely answered ``No'' to the application's question which asked if he
``had ever `had a state professional license or controlled substance
registration revoked, suspended, denied, restricted, or placed on
probation, or is any such action pending?' '' Id. The Order alleged
that each of these statements was capable of influencing the Agency's
decision to grant the application and was thus material. Id. (citing 21
U.S.C. 823(f) & 824(a)(1); other citations omitted).
The Show Cause Order notified Registrant of his right to request a
hearing on the allegations or to submit a written statement of his
position on the matters of fact and law asserted while waiving his
right to a hearing, the procedure for electing either option, and the
consequence of failing to elect either option. Id. at 2-3 (citing 21
CFR 1301.43). The Order also notified Registrant of his right to submit
a Corrective Action Plan pursuant to 21 U.S.C. 824(c)(2)(C). Id. at 3.
On November 4, 2016, a DEA Diversion Investigator (DI) went to
Registrant's registered address as well as his home address to attempt
personal service of the Show Cause Order, but Registrant ``was not
present'' at either location. GX 3, at 1-2. Subsequently, the DI mailed
the Show Cause Order to Registrant by Certified Mail, Return Receipt
Requested, addressed to him at both his registered location and home
address. Id. at 2. As evidenced by the copies of the signed return-
receipt cards, these mailings were delivered on November 16 and 15,
2016, respectively. Id. Finally, on November 29, 2016, the DI also
emailed a copy of the Show Cause Order to Registrant using the email
address he had previously provided the Agency. Id. The DI further
represented that the she did not receive a message that the ``email was
not successfully sent'' or ``was undeliverable.'' Id.
The Government's Counsel further represents that Registrant ``has
not filed a request for a hearing or a written statement.'' Request for
Final Agency Action, at 2. Because I find that more than 30 days have
now passed since the Show Cause Order was served on Registrant, and
that Registrant has neither requested a hearing nor submitted a written
statement while waiving his right to a hearing, I find that Registrant
has waived his right to a hearing or to submit a written statement.
Based on the evidence submitted by the Government, I make the following
factual findings.
Findings of Fact
Registrant is the holder of DEA Certificate of Registration No.
AB7719860, pursuant to which he is authorized to dispense controlled
substances as a practitioner in schedules II through V, at the
registered address of 39-21 Bell Blvd., Bayside, NY. GX 1. This
registration does not expire until July 31, 2018. Id.
Registrant was previously licensed to practice medicine by the New
York State Department of Health. GX 3, Ex. E, at 7. (Determination and
Order, at 3, In the Matter of Steven Bernhard, D.O., (N.Y. Dept. of
Health State Bd. for Prof. Med. Conduct, Jan. 24, 2013)). However, on
January 24, 2013, a Hearing Committee of the Board issued a
Determination and Order revoking Registrant's license to practice
medicine; the Board's Order became effective on February 4, 2013 and
was in effect as of June 19, 2015, as well as of the date this matter
was forwarded to my Office. Id. at 1; see also GX 3, Ex. F, at 1.
Moreover, I take official notice of the Board's Web site, which
continues to list Registrant's medical license as having been revoked.
See 5 U.S.C. 556(e); 21 CFR 1316.59(e).
On June 11, 2015, Registrant submitted an application to renew his
DEA registration. GX 3, Ex. A, at 1. Section 4 of the Application
asked: ``Are you currently authorized to prescribe, distribute,
dispense, conduct research, or otherwise handle controlled substances
in the schedules for which you are applying under the laws of the state
or jurisdiction in which you are operating or propose to operate?'' Id.
Registrant represented that he held ``State License No. 131839,'' that
the license was issued by ``NY,'' and its expiration date was ``03-31-
2017.'' Id. On the Application, Registrant was also required to answer
the question: ``Has the applicant ever surrendered (for cause) or had a
state professional license or controlled substance registration
revoked, suspended, denied, restricted, or placed on probation, or is
any such action pending?'' Id. Registrant answered ``N'' for no. Id.
Discussion
Pursuant to section 304(a)(1) of the Controlled Substances Act
(CSA), the Attorney General is authorized to suspend or revoke a
registration ``upon a finding that the registrant . . . has materially
falsified any application filed pursuant to or required by this
subchapter.'' 21 U.S.C. 824(a)(1). And pursuant to section 304(a)(3),
the Attorney General is authorized to suspend or revoke a registration
``upon a finding that the registrant . . . has had his State license or
registration suspended, revoked, or denied by competent State authority
and is no longer authorized by State law to engage in the . . .
distribution or dispensing of controlled substances.'' Id. Sec.
824(a)(3). These provisions provide separate and independent grounds to
revoke Registrant's registration.
The Loss of State Authority Allegation
Under the CSA, a practitioner must be currently authorized to
handle controlled substances in ``the jurisdiction in which he
practices'' in order to obtain and maintain a DEA registration. This
rule derives from two provisions of the CSA. 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.'').
Thus, DEA has 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.
See, e.g., Frederick Marsh Blanton, 43 FR 27616, 27617 (1978) (``State
authorization to dispense or otherwise handle controlled substances is
a prerequisite to the issuance and maintenance of a Federal controlled
substances registration.''); see also James L. Hooper, 76 FR 71371
(2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); 21
U.S.C. 824(a)(3).
Here, the Government has provided a copy of the New York Board's
Determination and Order which revoked Registrant's New York medical
license effective on February 4, 2013. The Government further submitted
evidence showing that, as of the date it submitted its Request for
Final Agency Action, Registrant's state medical license remained
revoked, and the Board's Web site continues to state that his license
has been revoked.
I therefore conclude that Registrant's medical license has been
revoked and that he is no longer authorized to dispense controlled
substances in New York, the State in which he holds his
[[Page 23300]]
registration. Because Registrant does not meet the CSA's essential
requirement for maintaining a practitioner's registration, I will order
that his registration be revoked. See 21 U.S.C. 824(a)(3), 802(21); see
also id. Sec. 823(f).
The Material Falsification Allegation
As found above, effective on February 4, 2013, the State of New
York revoked Registrant's Medical License and this Order was still in
effect as of June 11, 2015, when Registrant submitted his application.
Thus, Respondent materially falsified his application in two ways.
First, he falsely represented that he was ``currently authorized to
prescribe [or] dispense'' controlled substances in New York State when
he listed his purported license number, indicated that it was issued by
New York, and listed the license's expiration date as March 31, 2017.
Second, he falsely answered ``N'' for no to the question which asked if
his state medical license had ever been revoked.
Each of these false statements was clearly material because it was
capable of affecting or influencing the Agency's decision as to whether
to grant his application. Kungys v. United States, 485 U.S. 759, 770
(1988) (other citation omitted); United States v. Wells, 519 U.S. 482,
489 (1997) (quoting Kungys, 485 U.S. at 770). As explained above, the
CSA defines the ``[t]he term `practitioner' [to] mean[ ] 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,'' 21 U.S.C. 802(21), and the registration provision
applicable to practitioners directs 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.'' Id. Sec. 823(f). As the Agency has long held, ``[s]tate
authorization to dispense or otherwise handle controlled substances is
a prerequisite to the issuance and maintenance of a Federal controlled
substances registration.'' Blanton, 43 FR at 27617.
Because the possession of state authority is a prerequisite to
obtaining and maintaining a practitioner's registration, Respondent's
false representations that he currently possessed a state license and
that his state license had never been revoked were capable of
influencing the Agency's decision to grant his June 11, 2015 renewal
application. I therefore also conclude that Respondent materially
falsified his June 11, 2015 application. For this reason as well, I
will order that his registration be revoked. 21 U.S.C. 824(a)(1).
Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a) as well
as 28 CFR 0.100(b), I order that DEA Certificate of Registration
AB7719860 issued to Steven Bernhard, D.O., be, and it hereby is,
revoked. I further order that any application of Steven Bernhard, D.O.,
to renew or modify this registration, be denied. This Order is
effective immediately.\1\
---------------------------------------------------------------------------
\1\ Based on my finding that Respondent obtained his
registration by materially falsifying his application, I conclude
that the public interest necessitates that this Order be effective
immediately. 21 CFR 1316.67.
Dated: May 15, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-10363 Filed 5-19-17; 8:45 am]
BILLING CODE 4410-09-P