Joseph Baumstarck, M.D.; Revocation of Registration, 17525-17528 [E9-8612]
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‘‘suspended, revoked or denied by
competent State authority’’ and the
registrant ‘‘is no longer authorized by
State law to engage in the * * *
dispensing of controlled substances.’’
Id. at 2.
On November 7, 2008, the ALJ
granted the Government’s motion,
noting that ‘‘it is undisputed that the
Respondent currently lacks authority to
handle controlled substances in
Missouri.’’ ALJ at 3. Because
Respondent’s argument as to the scope
of the Agency’s authority under 21
U.S.C. 823(a)(3) had previously been
rejected with respect to a practitioner
who allowed his registration to expire,
the ALJ found ‘‘no meaningful basis on
which to distinguish expiration of a
State authorization from automatic
termination by operation of law.’’ Id. at
5. The ALJ thus applied the Agency’s
longstanding interpretation that it lacks
authority under the Controlled
Substances Act to maintain a
registration if a registrant lacks authority
under State law to dispense controlled
substances. Id. at 4–5. The ALJ thus
recommended that Respondent’s
registration be revoked and that any
pending application to renew or modify
his registration be denied.
After the period for filing exceptions
lapsed,2 the record was forwarded to me
for final agency action. Having
considered the entire record in this
matter, I adopt the ALJ’s decision in its
entirety.
I find that Respondent currently holds
DEA Certificate of Registration,
BF2847715, which authorizes him to
dispense controlled substances in
schedules II through V as a practitioner,
at the registered location of 2232 S.
Garrison Ave., Carthage, Missouri. I also
find that Respondent’s Missouri
Controlled Substances Registration has
terminated. I therefore further find that
Respondent is currently without
authority to dispense controlled
substances in Missouri, the State in
which he practices medicine and holds
his DEA Registration. Moreover,
according to the Web site of the
Missouri Department of Health and
Senior Services, Respondent does not
possess a State controlled substances
registration.
Under the Controlled Substances Act
(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
2 Respondent
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did not file exceptions.
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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.’’). As these provisions make
plain, possessing authority under state
law to handle controlled substances is
an essential condition for holding a DEA
registration.
Accordingly, DEA has held repeatedly
that the CSA requires the revocation of
a registration issued to a practitioner
who lacks authority under state law to
dispense controlled substances.
Moreover, DEA has applied this rule not
only where a registrant’s state authority
has been suspended or revoked, but also
where a practitioner with an existing
DEA registration has lost his state
authority for reasons other than through
formal disciplinary action of a State
board.
For example, in William D. Levitt, 64
FR 49882, 49823 (1999), DEA held that
because ‘‘state authorization was clearly
intended to be a prerequisite to DEA
registration, Congress could not have
intended for DEA to maintain a
registration if a registrant is no longer
authorized by the state in which he
practices to handle controlled
substances due to the expiration of his
state license.’’ See also Mark L. Beck, 64
FR 40899, 40900 (1999); Charles H.
Ryan, 58 FR 14430 (1993). Moreover, in
Marlou D. Davis, 69 FR 1307, 1310
(2004), I addressed and rejected the
same argument raised by Respondent in
a case which involved the same factual
scenario as is presented here—the
termination under Missouri law of a
practitioner’s authority which arose
because of an address change. In Davis,
I specifically relied on the reasoning of
Levitt and rejected the argument that the
respondent’s registration should be
deemed terminated under 21 CFR
1301.52 rather than revoked under 21
U.S.C. 824(a)(3).3 Id. at 1310. Indeed, as
the ALJ observed in her recommended
decision in this matter, because
possessing authority under State law is
an essential requirement for holding a
CSA registration, there is ‘‘no
3 While there is a procedure available for
terminating a registration, under the Agency’s
regulation, a registrant who discontinues
professional practice must ‘‘notify the [Agency]
promptly of such fact.’’ 21 CFR 1301.52(a).
Moreover, the registrant must return his certificate
of registration to the Agency for cancellation, as
well as any unexecuted order forms. Id. 1301.52(c).
Notably, in Davis, the respondent did not comply
with the regulation and indeed had continued
professional practice.
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meaningful basis’’ for distinguishing
between those registrants who allow
their State authority to expire and those
whose State authority expires by
operation of law. ALJ at 5.
Here, as in Davis, Respondent has not
notified the Agency that he has
permanently ceased the practice of
medicine (or the dispensing of
controlled substances in the course of
medical practice). 21 CFR 1301.52(a).
Nor is there any evidence that he has
returned his certificate of registration for
cancellation. Id. 1301.52(c).
Accordingly, Respondent’s registration
cannot be deemed terminated. Because
Respondent does not have authority
under Missouri law to dispense
controlled substances, he does not meet
the statutory requirement for holding a
registration under Federal law. See 21
U.S.C. 823(f). His registration must
therefore be revoked.
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 order that
DEA Certificate of Registration,
BF2847715, issued to John B. Freitas,
D.O., be, and it hereby is, revoked. I
further order that any pending
application of John B. Freitas, D.O., to
renew or modify his registration, be, and
it hereby is; denied. This Order is
effective May 15, 2009.
Dated: April 10, 2009.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E9–8620 Filed 4–14–09; 8:45 am]
BILLING CODE 4410–09–P
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.
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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 doctorpatient 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. § 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 narcotictreatment 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 officebased 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)).
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.
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 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.
§ 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
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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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.
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
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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 longsettled 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
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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.
§ 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
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17527
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
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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
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
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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.
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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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
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 08–10]
Scott Sandarg, D.M.D.; Revocation of
Registration
On July 25, 2007, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration, issued an Order to
Show Cause to Scott Sandarg, D.M.D.
(Respondent), of Irvine, California. The
Show Cause Order proposed the
revocation of Respondent’s DEA
Certificate of Registration, BS6026525,
which authorizes him to dispense
controlled substances in schedules II
through V as a practitioner, and the
denial of any pending applications to
renew or modify the registration, on the
ground that Respondent had committed
numerous acts which were inconsistent
with the public interest. Show Cause
Order at 1.
The Show Cause Order specifically
alleged that Respondent had unlawfully
obtained controlled substances for his
own use which included illicit
methamphetamine, anabolic steroids,
drugs containing hydrocodone, and
several benzodiazepines including
alprazolam, through various means
including by engaging in prescription
fraud and by obtaining the controlled
substances over the internet from
practitioners with whom he did not
establish a valid doctor-patient
relationship. Id. at 1–3. The Order also
alleged that on two separate occasions,
Respondent had been arrested; that the
police found various controlled
substances in his possession during
lawful searches of his property; and that
Respondent had subsequently pled
guilty to various offenses under
California law including one felony
count of unlawful possession of a
controlled substance in violation of Cal.
Health & Safety Code § 11377(a), one
misdemeanor count of unlawfully being
under the influence of a controlled
substance in violation of Cal. Health &
Safety Code section 11550(a), and two
misdemeanor counts related to firearms
violations under Cal. Penal Code section
17(b). Show Cause Order at 2–3.
On September 11, 2007, a DEA
Diversion Investigator attempted to
serve the Order to Show Cause on
Respondent by faxing it to him. On
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November 9, 2007, Respondent
requested a hearing on the allegations of
the Show Cause Order, and the matter
was assigned to an Administrative Law
Judge (ALJ). Thereafter, the Government
moved to terminate the proceeding on
the ground that Respondent’s request
was out of time. Respondent opposed
the motion, submitting the declarations
of himself and his office manager, both
of which asserted that the fax had
included the cover sheet but not the
Show Cause Order. Thereafter, the
Government submitted a DI’s
declaration which maintained that
Respondent’s office manager had
informed him that she had received the
entire fax.
The ALJ denied the Government’s
motion reasoning that there was a
factual dispute as to when Respondent
had received the Show Cause Order.
The ALJ then allowed the Government
to file an interlocutory appeal. On May
12, 2008, I denied the appeal because
there was a clear factual dispute as to
whether Respondent had actually
received the Show Cause Order on
September 11, 2007, and the dispute
could not be resolved without assessing
the credibility of each party’s
witnesses.1
Thereafter, the Government moved to
terminate the proceeding on the ground
that on December 19, 2007, the
California Board of Dental Examiners
had adopted the proposed decision of a
State Administrative Law Judge and
revoked Respondent’s State Dental
Certificate with an effective date of
January 21, 2008. Gov. Mot. for
Summary Judgment 2–3. The
Government argued that because
Respondent is not authorized to handle
controlled substances in the State in
which he is registered with this Agency,
he is not entitled to maintain his
registration. Id.
Respondent’s counsel opposed the
motion arguing that he had filed for a
writ of administrative mandamus in
State court challenging the Board’s
order. Respondent’s Resp. to ALJ’s May
21, 2008 Memorandum to Counsel at 1.
According to Respondent’s counsel, the
writ raised multiple claims of error on
the part of the State ALJ, and were the
court to find any of the claims
meritorious, Respondent’s license could
be restored. Id. Respondent’s counsel
further argued that DEA’s decision be
stayed until the State proceeding was
resolved. Id. The Government opposed
Respondent’s motion on the ground that
it was speculative whether the State
court would grant any relief, and that
1 Respondent did not, however, dispute that he
had subsequently been properly served.
E:\FR\FM\15APN1.SGM
15APN1
]]>Agencies
[Federal Register Volume 74, Number 71 (Wednesday, April 15, 2009)]
[Notices]
[Pages 17525-17528]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-8612]
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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)).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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
