Dale J. Bingham, P.A.; Revocation of Registration, 53964-53965 [2011-22091]
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Federal Register / Vol. 76, No. 168 / Tuesday, August 30, 2011 / Notices
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Volkman v. DEA, 567 F.3d 215, 222 (6th
Cir. 2009).
Having considered the evidence, I
conclude that the record establishes that
Respondent materially falsified his
2002, 2005, and 2008 applications for
DEA registrations. While there is
evidence suggesting that Respondent is
still abusing controlled substances, in
light of my conclusion with respect to
the material falsification allegations, I
deem it unnecessary to rule on the
Government’s alternative ground for
seeking the revocation of Respondent’s
registration.2
The Material Falsification Allegations
As found above, on both April 22,
2002 and February 28, 2005,
Respondent submitted an application to
renew his DEA registration on which he
answered ‘‘no’’ to the question: ‘‘Has the
applicant ever surrendered or had a
state professional license or controlled
substance registration revoked,
suspended, denied, restricted, or placed
on probation?’’ In both instances,
Respondent’s answer was false because
he failed to disclose (1) The Georgia
Board’s 1985 consent order which
placed him on probation for four years,
and (2) the Georgia Board’s 1990
Consent Order which suspended his
license. Moreover, Respondent’s
statement on his 2005 application was
false for the further reason that in 2003,
the Florida Board had imposed
restrictions on his license which
included that he remain in compliance
with the PRN contract and was
prohibited from writing controlled
substance prescriptions ‘‘for any family
member.’’
As for his January 31, 2008
application, it is true that Respondent
gave a ‘‘yes’’ answer to the question
regarding his state license and included
a copy of the Florida Board’s June 2007
reinstatement order. However, the
statement was still false because
Respondent failed to disclose the
Georgia Board’s 1985 and 1990 consent
orders, as well as the 2003 Florida
consent agreement.
It is likewise clear that Respondent’s
failure to disclose the various state
proceedings on each of the three
applications was a materially false
statement under the CSA. A false
statement is material if it ‘‘has a natural
tendency to influence, or was capable of
influencing, the decision of the
2 As found above, while the DOH 2006 complaint
makes the allegations that Respondent had admitted
to t relapse on crack cocaine and had been
diagnosed as being dependent on cocaine and
opioids, neither the Board’s Final Order nor the
Order on Reinstatement contain factual findings
establishing the validity of these allegations.
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decisionmaking body to which it was
addressed.’’ Kungys v. United States,
485 U.S. 759, 770 (1988) (int. quotation
and other citations omitted). While the
evidence must be ‘‘clear, unequivocal,
and convincing,’’ the ‘‘ultimate finding
of materiality turns on a substantive
interpretation of the law.’’ Id. at 772
(int. quotations and citations omitted).
See also Craig H. Bammer, 73 FR 34327,
34328 (2008).
Respondent’s false statements were
material because, under the public
interest standard, the Agency is required
to consider, inter alia, the applicant’s
experience in dispensing controlled
substances, his compliance with
applicable state and federal laws related
to controlled substances, and whether
his conduct threatens public health and
safety. See 21 U.S.C. 823(f). Disclosure
of each of the state orders would have
provided significant information to the
Agency showing that Respondent has a
significant problem with drug abuse;
DEA has long held that a practitioner’s
self-abuse of a controlled substance is a
relevant consideration under factor five
of the public interest standard and is
grounds for the revocation of an existing
registration or the denial of an
application for registration even where
there is no evidence that a practitioner
has abused his prescription-writing
authority.3 See Kenneth Wayne Green,
Jr., M.D., 59 FR 51453, 51454 (1994)
(registrant’s ‘‘continued drug usage and
relapses lead[ ] to the conclusion that
he cannot be entrusted with the
responsibilities of a DEA registrant and
that his continued possession of a
registration would be contrary to the
public interest’’); David E. Trawick, 53
FR 5326, 5327 (1988) (‘‘offenses or
wrongful acts committed by a registrant
outside of his professional practice, but
which relate to controlled substances
may constitute sufficient grounds for the
revocation of a’’ registration).
Disclosure of the 2003 Florida
proceeding (on the 2005 and 2008
applications) would have also provided
information that Respondent had been
accused of writing unlawful
prescriptions for hydrocodone, a
schedule III controlled substance. 21
CFR 1308.13(e). This information is
material to the Agency’s investigation
and assessment of Respondent’s
experience in dispensing controlled
substances and his compliance with
applicable laws related to the
dispensing of controlled
3 It is also relevant in assessing Respondent’s
compliance with applicable laws related to
controlled substances. See 21 U.S.C. 823(f)(4).
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Sfmt 4703
substances.4 See 21 U.S.C. 823(f)(2) &
(4).
I thus conclude that Respondent
materially falsified his 2002, 2005 and
2008 applications to renew his DEA
registration.5 Only one of these material
falsifications is necessary to support the
revocation of Respondent’s registration;
that there are three such instances
manifests a shocking level of dishonesty
on his part. 21 U.S.C. 824(a)(1).
Accordingly, Respondent’s registration
will be revoked and his pending
application will be denied.
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), I order that DEA
Certificate of Registration, BS4681979,
issued to Harold Edward Smith, M.D.,
be, and it hereby is, revoked. I further
order that the pending application of
Harold Edward Smith, M.D., to renew
his registration, be, and it hereby is,
denied. This Order is effective
September 29, 2011.
Dated: August 17, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2011–22090 Filed 8–29–11; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Dale J. Bingham, P.A.; Revocation of
Registration
On February 4, 2011, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration, issued an Order to
Show Cause to Dale J. Bingham, P.A.
(Registrant), of Ash Fork, Arizona. The
Show Cause Order proposed the
revocation of Registrant’s DEA
Certificate of Registration MB1048746,
which authorizes him to dispense
controlled substances in schedules II
through V, as a mid-level practitioner,
on the ground that Registrant had
entered into a consent agreement with
the Arizona Regulatory Board of
Physician Assistants, pursuant to which
he no longer has ‘‘authority to handle
4 That the State did not require Respondent to
admit to the allegations in the consent agreement
does not make his failure to disclose the proceeding
any less material.
5 While the Agency did not grant Respondent’s
2008 application, ‘‘[i]t makes no difference that a
specific falsification did not exert influence so long
as it had the capacity to do so.’’ United States v.
Alemany Rivera, 781 F.2d 229, 234 (1st Cir. 1985).
Moreover, Respondent’s false statements on his
2002 and 2005 applications obviously did influence
the Agency’s decision to grant them.
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Federal Register / Vol. 76, No. 168 / Tuesday, August 30, 2011 / Notices
performance of health care tasks.’’ 2 Id.
Accordingly, the Board ordered that
Registrant’s practice be ‘‘limited in that
he shall not perform health care tasks in
the State of Arizona and is prohibited
from prescribing any form of treatment
including prescription medication until
[he] applies to the Board and receives
permission to do so.’’ Id. at 2. I therefore
find that Registrant is without authority
to dispense controlled substances under
the laws of the State of Arizona, the
State in which he holds his DEA
registration.
be revoked and any pending application
be denied.
Dated: August 17, 2011.
Michele M. Leonhart,
Administrator.
Registrant is the holder of DEA
Certificate of Registration MB1048746,
which authorizes him to dispense
controlled substances in schedules II
through V as a mid-level practitioner, at
the registered address of 112 Ash Park
Drive, Ash Fork, AZ. GX 1. Registrant’s
registration does not expire until July
31, 2012. Id.
Registrant is also the holder of a
license issued by the Arizona
Regulatory Board of Physician
Assistants which formerly authorized
him to perform health care tasks in
Arizona. GX 6, at 1. However, according
to a Consent Agreement which
Registrant entered into with the Board
on March 26, 2010, Registrant ‘‘has a
medical condition that may limit his
ability to safely engage in the
Discussion
The Controlled Substances Act (CSA)
grants the Attorney General authority to
revoke 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.’’ 21 U.S.C.
824(a)(3). Moreover, consistent with the
CSA’s definition of the term
‘‘practitioner,’’ DEA has long held that
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 * * * or other person
licensed, registered, or otherwise
permitted, by * * * the jurisdiction in
which he practices * * * to distribute,
dispense, [or] administer * * * a
controlled substance in the course of
professional practice’’). 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
dispense controlled substances is an
essential condition for holding a DEA
registration. See David W. 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). Here, while Registrant
retains an Arizona P.A. license, the
evidence establishes that he is no longer
authorized under his license to dispense
controlled substances. Because
Registrant no longer satisfies this
requirement, he is not entitled to
maintain his registration. Accordingly, I
will order that Registrant’s registration
1 In its request for final agency action, the
Government also stated that it mailed the Show
Cause Order to Registrant at his last known address.
2 The Board noted, however, that ‘‘[t]here has
been no finding of unprofessional conduct against’’
Registrant. GX 6, at 2.
controlled substances in * * * Arizona,
the [S]tate in which [he is] registered
with DEA.’’ Show Cause Order at 1
(citing 21 U.S.C. 824(a)(3)). The Show
Cause Order also notified Registrant of
his right to either request a hearing on
the allegations or to submit a written
statement in lieu of a hearing, the
procedures for doing either, and the
consequences if he failed to do either.
Id. at 2 (citing 21 CFR 1301.43(a), (c)–
(e)).
The Government initially attempted
to serve Registrant with the Order to
Show Cause by certified mail addressed
to him at his registered location.
However, this mailing was returned
unclaimed with the notations: ‘‘No City
Delivery’’ and ‘‘Requires PO Box
Number.’’ GX 3. On March 8, 2011, the
Government served the Show Cause
Order on Registrant by certified mail
addressed to him at an address he had
previously provided to the Agency for
receiving mail.1 GX 4. The Investigative
Record includes a signed return receipt
card establishing service. Id.
Since the date of service of the Show
Cause Order, neither Registrant, nor
anyone purporting to represent him, has
either requested a hearing or submitted
a written statement in lieu thereof.
Because more than thirty days have now
passed since service of the Show Cause
Order, I find that Registrant has waived
his right to either request a hearing or
to submit a written statement. I
therefore issue this Decision and Final
Order based on relevant evidence
contained in the Investigative Record
submitted by the Government.
Findings
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Order
Pursuant to the authority vested in me
by 21 U.S.C. 823(f) and 824(a)(3), as
well as 28 CFR 0.100(b), I order that
DEA Certificate of Registration
MB1048746, issued to Dale J. Bingham,
P.A., be, and it hereby is, revoked. I
further order that any application of
Dale H. Bingham, P.A., to renew or
modify his registration, be denied. This
Order is effective September 29, 2011.
[FR Doc. 2011–22091 Filed 8–29–11; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Office of Justice Programs
[OJP (OJJDP) Docket No. 1556]
Meeting of the Federal Advisory
Committee on Juvenile Justice
Office of Juvenile Justice and
Delinquency Prevention, Office of
Justice Programs, U. S. Department of
Justice.
ACTION: Notice of meeting.
AGENCY:
The Office of Juvenile Justice
and Delinquency Prevention (OJJDP)
announces a meeting of the Federal
Advisory Committee on Juvenile Justice
(FACJJ).
Dates and Locations: The meeting
will take place at the Gaylord National
Hotel and Convention Center, 201
Waterfront Street, National Harbor, MD
20745, on Tuesday, October 11, 2011
from 8:30 a.m. to 5 p.m.
FOR FURTHER INFORMATION CONTACT:
Robin Delany-Shabazz, Designated
Federal Official, OJJDP, Robin.DelanyShabazz@usdoj.gov, or 202–307–9963.
[Note: This is not a toll-free number.]
SUPPLEMENTARY INFORMATION: The
Federal Advisory Committee on
Juvenile Justice (FACJJ), established
pursuant to Section 3(2)A of the Federal
Advisory Committee Act (5 U.S.C.
App.2), will meet to carry out its
advisory functions under Section
223(f)(2)(C–E) of the Juvenile Justice and
Delinquency Prevention Act of 2002.
The FACJJ is composed of
representatives from the states and
territories. FACJJ member duties
include: reviewing Federal policies
regarding juvenile justice and
delinquency prevention; advising the
OJJDP Administrator with respect to
particular functions and aspects of
SUMMARY:
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]]>Agencies
[Federal Register Volume 76, Number 168 (Tuesday, August 30, 2011)]
[Notices]
[Pages 53964-53965]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22091]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Dale J. Bingham, P.A.; Revocation of Registration
On February 4, 2011, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Dale J. Bingham, P.A. (Registrant), of Ash Fork, Arizona.
The Show Cause Order proposed the revocation of Registrant's DEA
Certificate of Registration MB1048746, which authorizes him to dispense
controlled substances in schedules II through V, as a mid-level
practitioner, on the ground that Registrant had entered into a consent
agreement with the Arizona Regulatory Board of Physician Assistants,
pursuant to which he no longer has ``authority to handle
[[Page 53965]]
controlled substances in * * * Arizona, the [S]tate in which [he is]
registered with DEA.'' Show Cause Order at 1 (citing 21 U.S.C.
824(a)(3)). The Show Cause Order also notified Registrant of his right
to either request a hearing on the allegations or to submit a written
statement in lieu of a hearing, the procedures for doing either, and
the consequences if he failed to do either. Id. at 2 (citing 21 CFR
1301.43(a), (c)-(e)).
The Government initially attempted to serve Registrant with the
Order to Show Cause by certified mail addressed to him at his
registered location. However, this mailing was returned unclaimed with
the notations: ``No City Delivery'' and ``Requires PO Box Number.'' GX
3. On March 8, 2011, the Government served the Show Cause Order on
Registrant by certified mail addressed to him at an address he had
previously provided to the Agency for receiving mail.\1\ GX 4. The
Investigative Record includes a signed return receipt card establishing
service. Id.
---------------------------------------------------------------------------
\1\ In its request for final agency action, the Government also
stated that it mailed the Show Cause Order to Registrant at his last
known address.
---------------------------------------------------------------------------
Since the date of service of the Show Cause Order, neither
Registrant, nor anyone purporting to represent him, has either
requested a hearing or submitted a written statement in lieu thereof.
Because more than thirty days have now passed since service of the Show
Cause Order, I find that Registrant has waived his right to either
request a hearing or to submit a written statement. I therefore issue
this Decision and Final Order based on relevant evidence contained in
the Investigative Record submitted by the Government.
Findings
Registrant is the holder of DEA Certificate of Registration
MB1048746, which authorizes him to dispense controlled substances in
schedules II through V as a mid-level practitioner, at the registered
address of 112 Ash Park Drive, Ash Fork, AZ. GX 1. Registrant's
registration does not expire until July 31, 2012. Id.
Registrant is also the holder of a license issued by the Arizona
Regulatory Board of Physician Assistants which formerly authorized him
to perform health care tasks in Arizona. GX 6, at 1. However, according
to a Consent Agreement which Registrant entered into with the Board on
March 26, 2010, Registrant ``has a medical condition that may limit his
ability to safely engage in the performance of health care tasks.'' \2\
Id. Accordingly, the Board ordered that Registrant's practice be
``limited in that he shall not perform health care tasks in the State
of Arizona and is prohibited from prescribing any form of treatment
including prescription medication until [he] applies to the Board and
receives permission to do so.'' Id. at 2. I therefore find that
Registrant is without authority to dispense controlled substances under
the laws of the State of Arizona, the State in which he holds his DEA
registration.
---------------------------------------------------------------------------
\2\ The Board noted, however, that ``[t]here has been no finding
of unprofessional conduct against'' Registrant. GX 6, at 2.
---------------------------------------------------------------------------
Discussion
The Controlled Substances Act (CSA) grants the Attorney General
authority to revoke 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.'' 21 U.S.C.
824(a)(3). Moreover, consistent with the CSA's definition of the term
``practitioner,'' DEA has long held that 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 * * * or other person licensed, registered, or otherwise
permitted, by * * * the jurisdiction in which he practices * * * to
distribute, dispense, [or] administer * * * a controlled substance in
the course of professional practice''). 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 dispense controlled substances is an essential condition for
holding a DEA registration. See David W. 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). Here, while Registrant retains an Arizona P.A. license, the
evidence establishes that he is no longer authorized under his license
to dispense controlled substances. Because Registrant no longer
satisfies this requirement, he is not entitled to maintain his
registration. Accordingly, I will order that Registrant's registration
be revoked and any pending application be denied.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a)(3), as well as 28 CFR 0.100(b), I order that DEA Certificate of
Registration MB1048746, issued to Dale J. Bingham, P.A., be, and it
hereby is, revoked. I further order that any application of Dale H.
Bingham, P.A., to renew or modify his registration, be denied. This
Order is effective September 29, 2011.
Dated: August 17, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2011-22091 Filed 8-29-11; 8:45 am]
BILLING CODE 4410-09-P
