Brent E. Silvers, M.D.; Decision and Order, 42014-42016 [2019-17622]

Download as PDF khammond on DSKBBV9HB2PROD with NOTICES 42014 Federal Register / Vol. 84, No. 159 / Friday, August 16, 2019 / Notices in the . . . dispensing of controlled substances.’’ With respect to a practitioner, the DEA has also 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., James L. Hooper, M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 (1978). This rule derives from the text of two provisions of the CSA. First, Congress defined the term ‘‘practitioner’’ to mean ‘‘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.’’ 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner’s registration, Congress directed 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.’’ 21 U.S.C. 823(f). Because Congress has clearly mandated that a practitioner possess State authority in order to be deemed a practitioner under the CSA, the DEA has held repeatedly that revocation of a practitioner’s registration is the appropriate sanction whenever he is no longer authorized to dispense controlled substances under the laws of the State in which he practices. See, e.g., Hooper, supra, 76 FR at 71,371–72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 (2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby Watts, M.D., 53 FR 11,919, 11,920 (1988); Blanton, supra, 43 FR at 27,617. The Georgia Controlled Substances Act requires that ‘‘every person who manufactures, distributes, or dispenses any controlled substances within this state or who proposes to engage in the manufacture, distribution, or dispensing of any controlled substance within this state must obtain annually a registration issued by the State Board of Pharmacy in accordance with its rules.’’ Ga. Code Ann. § 16–13–35(a) (West 1982). The Act exempts from separate controlled substance registration requirements, ‘‘persons licensed as a physician, dentist, or veterinarian under the laws of the state to use, mix, prepare, dispense, prescribe, and administer drugs in connection with medical treatment to the extent provided by the laws of this state.’’ Id. at 16–13–35(g)(2). VerDate Sep<11>2014 16:10 Aug 15, 2019 Jkt 247001 According to the Medical Practice Act of the State of Georgia, the definition of a ‘‘physician’’ is a ‘‘person licensed to practice medicine under this article,’’ and the definition of ‘‘to practice medicine’’ is ‘‘to hold oneself out to the public as being engaged in the diagnosis or treatment of disease, defects, or injuries of human beings; or the suggestion, recommendation, or prescribing of any form of treatment for the intended palliation, relief, or cure of any physical, mental, or functional ailment or defect of any person.’’ Ga. Code Ann. §§ 43–34–21(2), (3) (West 1981). Here, the undisputed evidence in the record is that Registrant currently lacks authority to practice medicine in Georgia. As already discussed, a person must be registered to dispense a controlled substance in Georgia, unless he is licensed as a physician. Thus, because Registrant is no longer a licensed physician in Georgia and, therefore, is no longer registered to or authorized to dispense controlled substances in Georgia, I will order that Registrant’s DEA registration be revoked. Order Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. FU2662523 issued to Peter John Ulbrich, M.D. This Order is effective September 16, 2019. Dated: August 2, 2019. Uttam Dhillon, Acting Administrator. [FR Doc. 2019–17621 Filed 8–15–19; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration Brent E. Silvers, M.D.; Decision and Order On May 9, 2019, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause to Brent E. Silvers, M.D. (hereinafter, Registrant) of Irvine, California. Order to Show Cause (hereinafter, OSC), at 1. The OSC proposed the revocation of Registrant’s Certificate of Registration No. BS2811392 on the ground that Registrant ‘‘is without authority to handle controlled substances in the State of California, the state in which [Registrant is] registered with the DEA.’’ Id. at 1–2 (citing 21 U.S.C. 824(a)(3)). PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 Specifically, the OSC alleged that on January 11, 2019, the Medical Board of California (hereinafter, Board) issued a Decision revoking Registrant’s California medical license, effective February 8, 2019. Id. The OSC notified Registrant of the right to request a hearing on the allegations or to submit a written statement while waiving the right to a hearing, the procedures for electing each option, and the consequences for failing to elect either option. Id., at 2 (citing 21 CFR 1301.43). The OSC also notified Registrant of the opportunity to submit a corrective action plan. Id. at 2–3 (citing 21 U.S.C. 824(c)(2)(C)). Adequacy of Service In a Declaration dated June 19, 2019, a Diversion Investigator (hereinafter, DI) assigned to the Riverside District office, Los Angeles Field Division, stated that he and another DI traveled to Registrant’s registered address located at 2 Hughes, Suite 150, Irvine, California 92618 on May 10, 2019. Request for Final Agency Action dated July 10, 2019 (hereinafter, RFAA), Government Exhibit (hereinafter, GX) GX 4 (DI’s Declaration). The DI stated that upon arrival at the registered address, ‘‘Registrant identified himself . . . as Dr. Silvers’’ to the DIs. Id. The DI then ‘‘personally served the [OSC] on Registrant by handing it to him.’’. Registrant signed a DEA Form 12, Receipt for Cash or Other Items, to acknowledge his receipt of the Show Cause Order. Id.; see also GX 4B. In its RFAA, the Government represents that ‘‘at least [thirty] days have passed since the time the [OSC] was served on Registrant’’ and he ‘‘has not requested a hearing and has not otherwise corresponded or communicated with DEA.’’ RFAA, at 1. The Government requests that ‘‘Registrant’s DEA Registration [ ] be revoked based on 21 U.S.C. 824(a)(3) because Registrant has no valid medical license in California . . . [and] is without state authority to handle controlled substances in California.’’ Id. at 2–3. Based on the DI’s Declaration, the Government’s written representations, and my review of the record, I find that the Government accomplished service of the OSC on Registrant on May 10, 2019. I also find that more than thirty days have now passed since the Government accomplished service of the OSC. Further, based on the Government’s written representations, I find that neither Registrant, nor anyone purporting to represent the Registrant, requested a hearing, submitted a written statement while waiving Registrant’s E:\FR\FM\16AUN1.SGM 16AUN1 Federal Register / Vol. 84, No. 159 / Friday, August 16, 2019 / Notices right to a hearing, or submitted a corrective action plan. Accordingly, I find that Registrant has waived the right to a hearing and the right to submit a written statement and corrective action plan. 21 CFR 1301.43(d) and 21 U.S.C. 824(c)(2)(C). I, therefore, issue this Decision and Order based on the record submitted by the Government, which constitutes the entire record before me. 21 CFR 1301.43(e). Findings of Fact Registrant’s DEA Registration Registrant is the holder of DEA Certificate of Registration No. BS2811392 at the registered address of 2 Hughes, Suite 150, Irvine, California 92618. GX 1 (Certification of Registration Status). Pursuant to this registration, Registrant is authorized to dispense controlled substances in schedules II through V as a practitioner. Id. Registrant’s registration expires on February 28, 2021, and is ‘‘in an active pending status.’’ Id. khammond on DSKBBV9HB2PROD with NOTICES The Status of Registrant’s State License On January 11, 2019, the Medical Board of California (hereinafter, Board) issued a Decision and Order (hereinafter, Order) revoking Registrant’s medical license, effective February 8, 2019. GX 3 (Order). The Board’s Order adopted the Proposed Decision of a state Administrative Law Judge (ALJ) following a lengthy hearing resulting from Accusations brought by the Board against Registrant. GX 3 (ALJ Proposed Decision), at 1. According to the ALJ’s Proposed Decision, the Board initiated an investigation into Registrant’s medical practice after receiving anonymous complaints in February and March 2016 and a consumer complaint in July 2017, which was accompanied by a copy of a Complaint for Medical Negligence filed in the Superior Court of California. Id. at 2. On September 26, 2017, the Board issued an ‘‘Interim Suspension Order No Practice’’ against Registrant, which was upheld on October 27, 2017. Id. On April 26, 2018, the Board filed its First Amended Accusation against Registrant and it filed its Second Amended Accusation on November 16, 2018. Id. The ALJ affirmed the Board’s Second Amended Accusation on December 28, 2018, and issued the Proposed Decision revoking Registrant’s California Physician’s and Surgeon’s Certificate. Id. at 17. The ALJ found that Registrant ‘‘has complied with the terms of the Interim Suspension Order and he has tested negative for alcohol in random testing.’’ Id. at 2. However, the ALJ ultimately VerDate Sep<11>2014 16:10 Aug 15, 2019 Jkt 247001 found that ‘‘clear and convincing evidence established that [Registrant] has a mild cognitive disorder and severe alcohol use disorder,’’ which ‘‘is adversely affecting [his] memory and judgment’’ and that his ‘‘ability to practice medicine safely is impaired because a mental or physical illness [is] affecting his competency.’’ Id. at 13. He further found that ‘‘clear and convincing evidence’’ established that Registrant engaged in ‘‘unprofessional conduct based on gross negligence or repeated acts of negligence’’ and ‘‘unprofessional conduct by engaging in acts of sexual misconduct.’’ Id. at 14, 15. He concluded that ‘‘[p]ublic protection is best served by revocation of [Registrant’s] license.’’ Id. at 17. The Board adopted the ALJ’s Proposed Decision and ordered that revocation become effective on February 8, 2019. GX 3 (Order). According to the website of the California Department of Consumer Affairs, of which I take official notice, Registrant’s license is still revoked.1 https://search.dca.ca.gov/ details/8002/A/49201/cdbaeea6d15 fdfd3a0d8a46e76dde3f9 (last visited July 19, 2019). Accordingly, I find that Registrant currently is not licensed to engage in the practice of medicine in California, the State in which he is registered with the DEA. 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 Substances Act (hereinafter, CSA), ‘‘upon a finding that the registrant . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.’’ With respect to a practitioner, the DEA has also long held that the possession of authority to 1 Under the Administrative Procedure Act, an agency ‘‘may take official notice of facts at any stage in a proceeding—even in the final decision.’’ United States Department of Justice, Attorney General’s Manual on the Administrative Procedure Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), ‘‘[w]hen an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.’’ Accordingly, Registrant may dispute my finding by filing a properly supported motion for reconsideration within 15 calendar days of the date of this Order. Any such motion shall be filed with the Office of the Administrator and a copy shall be served on the Government. In the event Registrant files a motion, the Government shall have 15 calendar days to file a response. PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 42015 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., James L. Hooper, M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 (1978). This rule derives from the text of two provisions of the CSA. First, Congress defined the term ‘‘practitioner’’ to mean ‘‘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.’’ 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner’s registration, Congress directed 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.’’ 21 U.S.C. 823(f). Because Congress has clearly mandated that a practitioner possess State authority in order to be deemed a practitioner under the CSA, the DEA has held repeatedly that revocation of a practitioner’s registration is the appropriate sanction whenever he is no longer authorized to dispense controlled substances under the laws of the State in which he practices. See, e.g., Hooper, supra, 76 FR at 71,371–72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 (2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby Watts, M.D., 53 FR 11,919, 11,920 (1988); Blanton, supra, 43 FR at 27,617. According to the California Uniform Controlled Substances Act, ‘‘No person other than a physician . . . shall write or issue a prescription.’’ Cal. Health & Safety Code § 11150 (West, Westlaw current with urgency legislation through Ch. 5 of 2019 Reg. Sess.). Further, ‘‘physician,’’ as defined by California statute, is a person who is ‘‘licensed to practice’’ in California. Cal. Health & Safety Code § 11024 (West, Westlaw current with urgency legislation through Ch. 5 of 2019 Reg. Sess.). Here, the undisputed evidence in the record is that Registrant currently lacks authority to practice medicine in California. As already discussed, a physician must be a licensed practitioner to dispense a controlled substance in California. Thus, because Registrant lacks authority to practice medicine in California and, therefore, is not authorized to handle controlled substances in California, I will order E:\FR\FM\16AUN1.SGM 16AUN1 42016 Federal Register / Vol. 84, No. 159 / Friday, August 16, 2019 / Notices that Registrant’s DEA registration be revoked. Order Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. BS2811392 issued to Brent E. Silvers, M.D. Further, I hereby deny any pending application of Brent E. Silvers, M.D. to renew or modify this registration, as well as any pending application of Brent E. Silvers, M.D. for registration in California. This Order is effective September 16, 2019. Dated: August 2, 2019. Uttam Dhillon, Acting Administrator. [FR Doc. 2019–17622 Filed 8–15–19; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Federal Bureau of Investigation [OMB Number 1110-New] Agency Information Collection Activities; Proposed eCollection eComments Requested; New Collection; Background Investigation Medical Release Forms Federal Bureau of Investigation, Department of Justice. ACTION: 30-Day notice. AGENCY: The Department of Justice, Federal Bureau of Investigation, is submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. DATES: The Department of Justice encourages public comment and will accept input until September 16, 2019. FOR FURTHER INFORMATION CONTACT: If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Gabrielle Fournet, Unit Chief, Federal Bureau of Investigation, 935 Pennsylvania Avenue NW, Washington, DC, HQ-Div11-OGA1@FBI.gov, 202– 651–2906. Written comments and/or suggestions can also be sent to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or sent to OIRA_submissions@omb.eop.gov. khammond on DSKBBV9HB2PROD with NOTICES SUMMARY: VerDate Sep<11>2014 16:10 Aug 15, 2019 Jkt 247001 Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points: ➢ Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Federal Bureau of Investigation, including whether the information will have practical utility; ➢ Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; ➢ Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; and ➢ Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. SUPPLEMENTARY INFORMATION: Overview of This Information Collection 1. Type of Information Collection: New Collection. 2. The Title of the Form/Collection: Background Investigation Medical Release Forms. 3. The agency form number, if any, and the applicable component of the Department sponsoring the collection: FD–1152 and FD–1153. The applicable component within the Department of Justice is the Federal Bureau of Investigation. 4. Affected public who will be asked or required to respond, as well as a brief abstract: This form is needed for obtaining medical information for non FBI personnel, for which the FBI has been requested to obtain medical release information. For instance, when the FBI has been requested to conduct background investigations on non-FBI employees applying for positions with other government agencies, sometimes medical information must be obtained. When it occurs, the non-FBI employee applying for the position is asked to complete the medical release form so the FBI has the authority to seek the medical information. 5. An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: It is estimated that not more than 50 people would need to complete this form in a year. It should only take PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 each person about 15 minutes to complete the form. 6. An estimate of the total public burden (in hours) associated with the collection: There is an estimated 12.5 total annual burden hours associated with this collection. If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 3E.405A, Washington, DC 20530. Dated: August 13, 2019. Melody Braswell, Department Clearance Officer for PRA, U.S. Department of Justice. [FR Doc. 2019–17613 Filed 8–15–19; 8:45 am] BILLING CODE 4410–02–P DEPARTMENT OF JUSTICE [CPCLO Order No. 004–2019] Privacy Act of 1974; Systems of Records Executive Office for Immigration Review, United States Department of Justice. ACTION: Notice of a new system of records. AGENCY: Pursuant to the Privacy Act of 1974, and Office of Management and Budget (OMB) Circular No. A–108, notice is hereby given that the Executive Office for Immigration Review (EOIR), a component within the United States Department of Justice (DOJ or Department), proposes to develop a new system of records titled Office of the Chief Administrative Hearing Officer (OCAHO) Case Management System (CMS), JUSTICE/EOIR–002. The EOIR proposes to establish this system of records to track and manage case information and documents for OCAHO cases. The system provides an electronic platform to track cases and electronically maintain records previously maintained in paper form for the purpose of more efficiently managing these records and providing better access to the records for parties to the proceedings. DATES: In accordance with 5 U.S.C. 552a(e)(4) and (11), this system of records will begin operation on the publication date, subject to a 30-day period in which to comment on the routine uses, described below. Please submit any comments by September 16, 2019. ADDRESSES: The public, OMB, and Congress are invited to submit any SUMMARY: E:\FR\FM\16AUN1.SGM 16AUN1

Agencies

[Federal Register Volume 84, Number 159 (Friday, August 16, 2019)]
[Notices]
[Pages 42014-42016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17622]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Brent E. Silvers, M.D.; Decision and Order

    On May 9, 2019, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause to Brent E. Silvers, M.D. 
(hereinafter, Registrant) of Irvine, California. Order to Show Cause 
(hereinafter, OSC), at 1. The OSC proposed the revocation of 
Registrant's Certificate of Registration No. BS2811392 on the ground 
that Registrant ``is without authority to handle controlled substances 
in the State of California, the state in which [Registrant is] 
registered with the DEA.'' Id. at 1-2 (citing 21 U.S.C. 824(a)(3)).
    Specifically, the OSC alleged that on January 11, 2019, the Medical 
Board of California (hereinafter, Board) issued a Decision revoking 
Registrant's California medical license, effective February 8, 2019. 
Id.
    The OSC notified Registrant of the right to request a hearing on 
the allegations or to submit a written statement while waiving the 
right to a hearing, the procedures for electing each option, and the 
consequences for failing to elect either option. Id., at 2 (citing 21 
CFR 1301.43). The OSC also notified Registrant of the opportunity to 
submit a corrective action plan. Id. at 2-3 (citing 21 U.S.C. 
824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated June 19, 2019, a Diversion Investigator 
(hereinafter, DI) assigned to the Riverside District office, Los 
Angeles Field Division, stated that he and another DI traveled to 
Registrant's registered address located at 2 Hughes, Suite 150, Irvine, 
California 92618 on May 10, 2019. Request for Final Agency Action dated 
July 10, 2019 (hereinafter, RFAA), Government Exhibit (hereinafter, GX) 
GX 4 (DI's Declaration). The DI stated that upon arrival at the 
registered address, ``Registrant identified himself . . . as Dr. 
Silvers'' to the DIs. Id. The DI then ``personally served the [OSC] on 
Registrant by handing it to him.''. Registrant signed a DEA Form 12, 
Receipt for Cash or Other Items, to acknowledge his receipt of the Show 
Cause Order. Id.; see also GX 4B.
    In its RFAA, the Government represents that ``at least [thirty] 
days have passed since the time the [OSC] was served on Registrant'' 
and he ``has not requested a hearing and has not otherwise corresponded 
or communicated with DEA.'' RFAA, at 1. The Government requests that 
``Registrant's DEA Registration [ ] be revoked based on 21 U.S.C. 
824(a)(3) because Registrant has no valid medical license in California 
. . . [and] is without state authority to handle controlled substances 
in California.'' Id. at 2-3.
    Based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government accomplished service of the OSC on Registrant on May 10, 
2019. I also find that more than thirty days have now passed since the 
Government accomplished service of the OSC. Further, based on the 
Government's written representations, I find that neither Registrant, 
nor anyone purporting to represent the Registrant, requested a hearing, 
submitted a written statement while waiving Registrant's

[[Page 42015]]

right to a hearing, or submitted a corrective action plan. Accordingly, 
I find that Registrant has waived the right to a hearing and the right 
to submit a written statement and corrective action plan. 21 CFR 
1301.43(d) and 21 U.S.C. 824(c)(2)(C). I, therefore, issue this 
Decision and Order based on the record submitted by the Government, 
which constitutes the entire record before me. 21 CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
BS2811392 at the registered address of 2 Hughes, Suite 150, Irvine, 
California 92618. GX 1 (Certification of Registration Status). Pursuant 
to this registration, Registrant is authorized to dispense controlled 
substances in schedules II through V as a practitioner. Id. 
Registrant's registration expires on February 28, 2021, and is ``in an 
active pending status.'' Id.

The Status of Registrant's State License

    On January 11, 2019, the Medical Board of California (hereinafter, 
Board) issued a Decision and Order (hereinafter, Order) revoking 
Registrant's medical license, effective February 8, 2019. GX 3 (Order). 
The Board's Order adopted the Proposed Decision of a state 
Administrative Law Judge (ALJ) following a lengthy hearing resulting 
from Accusations brought by the Board against Registrant. GX 3 (ALJ 
Proposed Decision), at 1. According to the ALJ's Proposed Decision, the 
Board initiated an investigation into Registrant's medical practice 
after receiving anonymous complaints in February and March 2016 and a 
consumer complaint in July 2017, which was accompanied by a copy of a 
Complaint for Medical Negligence filed in the Superior Court of 
California. Id. at 2. On September 26, 2017, the Board issued an 
``Interim Suspension Order No Practice'' against Registrant, which was 
upheld on October 27, 2017. Id. On April 26, 2018, the Board filed its 
First Amended Accusation against Registrant and it filed its Second 
Amended Accusation on November 16, 2018. Id. The ALJ affirmed the 
Board's Second Amended Accusation on December 28, 2018, and issued the 
Proposed Decision revoking Registrant's California Physician's and 
Surgeon's Certificate. Id. at 17.
    The ALJ found that Registrant ``has complied with the terms of the 
Interim Suspension Order and he has tested negative for alcohol in 
random testing.'' Id. at 2. However, the ALJ ultimately found that 
``clear and convincing evidence established that [Registrant] has a 
mild cognitive disorder and severe alcohol use disorder,'' which ``is 
adversely affecting [his] memory and judgment'' and that his ``ability 
to practice medicine safely is impaired because a mental or physical 
illness [is] affecting his competency.'' Id. at 13. He further found 
that ``clear and convincing evidence'' established that Registrant 
engaged in ``unprofessional conduct based on gross negligence or 
repeated acts of negligence'' and ``unprofessional conduct by engaging 
in acts of sexual misconduct.'' Id. at 14, 15. He concluded that 
``[p]ublic protection is best served by revocation of [Registrant's] 
license.'' Id. at 17. The Board adopted the ALJ's Proposed Decision and 
ordered that revocation become effective on February 8, 2019. GX 3 
(Order).
    According to the website of the California Department of Consumer 
Affairs, of which I take official notice, Registrant's license is still 
revoked.\1\ https://search.dca.ca.gov/details/8002/A/49201/cdbaeea6d15fdfd3a0d8a46e76dde3f9 (last visited July 19, 2019).
---------------------------------------------------------------------------

    \1\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Registrant may dispute my finding by filing 
a properly supported motion for reconsideration within 15 calendar 
days of the date of this Order. Any such motion shall be filed with 
the Office of the Administrator and a copy shall be served on the 
Government. In the event Registrant files a motion, the Government 
shall have 15 calendar days to file a response.
---------------------------------------------------------------------------

    Accordingly, I find that Registrant currently is not licensed to 
engage in the practice of medicine in California, the State in which he 
is registered with the DEA.

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 Substances Act (hereinafter, CSA), ``upon a finding that the 
registrant . . . has had his State license or registration suspended . 
. . [or] revoked . . . by competent State authority and is no longer 
authorized by State law to engage in the . . . dispensing of controlled 
substances.'' With respect to a practitioner, the DEA has also 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., James L. Hooper, 
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 
(4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 
(1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined the term ``practitioner'' to mean ``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.'' 21 U.S.C. 802(21). Second, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed 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.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess State authority in order to be deemed a 
practitioner under the CSA, the DEA has held repeatedly that revocation 
of a practitioner's registration is the appropriate sanction whenever 
he is no longer authorized to dispense controlled substances under the 
laws of the State in which he practices. See, e.g., Hooper, supra, 76 
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby 
Watts, M.D., 53 FR 11,919, 11,920 (1988); Blanton, supra, 43 FR at 
27,617.
    According to the California Uniform Controlled Substances Act, ``No 
person other than a physician . . . shall write or issue a 
prescription.'' Cal. Health & Safety Code Sec.  11150 (West, Westlaw 
current with urgency legislation through Ch. 5 of 2019 Reg. Sess.). 
Further, ``physician,'' as defined by California statute, is a person 
who is ``licensed to practice'' in California. Cal. Health & Safety 
Code Sec.  11024 (West, Westlaw current with urgency legislation 
through Ch. 5 of 2019 Reg. Sess.).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in California. As 
already discussed, a physician must be a licensed practitioner to 
dispense a controlled substance in California. Thus, because Registrant 
lacks authority to practice medicine in California and, therefore, is 
not authorized to handle controlled substances in California, I will 
order

[[Page 42016]]

that Registrant's DEA registration be revoked.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. 
BS2811392 issued to Brent E. Silvers, M.D. Further, I hereby deny any 
pending application of Brent E. Silvers, M.D. to renew or modify this 
registration, as well as any pending application of Brent E. Silvers, 
M.D. for registration in California. This Order is effective September 
16, 2019.

    Dated: August 2, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-17622 Filed 8-15-19; 8:45 am]
BILLING CODE 4410-09-P
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