William J. Mack, M.D.; Decision and Order, 82637-82638 [2024-23515]

Download as PDF Federal Register / Vol. 89, No. 198 / Friday, October 11, 2024 / Notices Health & Safety Code sec. 11153(a); and California Business & Professions Code secs. 2234, 2242(a). Accordingly, the Agency finds that Factors B and D weigh in favor of revocation of Registrant’s registration and thus finds Registrant’s continued registration to be inconsistent with the public interest in balancing the factors of 21 U.S.C. 823(g)(1). The Agency further finds that Registrant failed to provide any evidence to rebut the Government’s prima facie case. ddrumheller on DSK120RN23PROD with NOTICES1 III. Sanction Where, as here, the Government has established grounds for revocation, the burden shifts to the registrant to show why he can be entrusted with the responsibility carried by a registration. Garret Howard Smith, M.D., 83 FR 18882, 18910 (2018). To establish that he can be entrusted with registration, a registrant must both accept responsibility and demonstrate that he has undertaken corrective measures. Holiday CVS, L.L.C., dba CVS Pharmacy Nos 219 and 5195, 77 FR 62316, 62339 (2012) (internal quotations omitted). Trust is necessarily a fact-dependent determination based on individual circumstances; therefore, the Agency looks at factors such as the acceptance of responsibility, the credibility of that acceptance as it relates to the probability of repeat violations or behavior, the nature of the misconduct that forms the basis for sanction, and the Agency’s interest in deterring similar acts. See, e.g., Robert Wayne Locklear, M.D., 86 FR 33738, 33746 (2021). Here, Registrant failed to answer the allegations contained in the OSC and did not otherwise avail himself of the opportunity to refute the Government’s case. As such, Registrant has made no representations as to his future compliance with the CSA nor made any demonstration that he can be entrusted with registration. Moreover, the evidence presented by the Government shows that Registrant violated the CSA, further indicating that Registrant cannot be entrusted. Accordingly, the Agency will order the revocation of Registrant’s registration. 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. BB3337905 issued to Michael Berman, D.O. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I hereby deny any pending applications of Michael Berman, D.O., to renew or modify this registration, as well as any VerDate Sep<11>2014 17:15 Oct 10, 2024 Jkt 265001 other pending application of Michael Berman, D.O., for additional registration in California. This Order is effective November 12, 2024. Signing Authority This document of the Drug Enforcement Administration was signed on October 2, 2024, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register. Heather Achbach, Federal Register Liaison Officer, Drug Enforcement Administration. [FR Doc. 2024–23513 Filed 10–10–24; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration William J. Mack, M.D.; Decision and Order On March 21, 2024, the Drug Enforcement Administration (DEA or Government) issued an Order to Show Cause (OSC) to William J. Mack, M.D., of Leawood, Kansas (Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX) 2, at 1, 3. The OSC proposed the revocation of Registrant’s Certificate of Registration No. BM8877473, alleging that Registrant’s registration should be revoked because Registrant is ‘‘currently without authority to prescribe, administer, dispense, or otherwise handle controlled substances in the State of Kansas, the state in which [he is] registered with DEA.’’ Id. at 2 (citing 21 U.S.C. 824(a)(3)). The OSC notified Registrant of his right to file with DEA a written request for hearing, and that if he failed to file such a request, he would be deemed to have waived his right to a hearing and be in default. Id. (citing 21 CFR 1301.43). Here, Registrant did not request a hearing. RFAA, at 2.1 ‘‘A 1 Based on the Government’s submissions in its RFAA dated May 3, 2024, the Agency finds that service of the OSC on Registrant was adequate. Specifically, the Government’s Notice of Service of Order to Show Cause indicates that Registrant was PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 82637 default, unless excused, shall be deemed to constitute a waiver of the [registrant’s] right to a hearing and an admission of the factual allegations of the [OSC].’’ 21 CFR 1301.43(e). Further, ‘‘[i]n the event that a registrant . . . is deemed to be in default . . . DEA may then file a request for final agency action with the Administrator, along with a record to support its request. In such circumstances, the Administrator may enter a default final order pursuant to [21 CFR] § 1316.67.’’ Id. § 1301.43(f)(1). Here, the Government has requested final agency action based on Registrant’s default pursuant to 21 CFR 1301.43(c), (f), 1301.46. RFAA, at 1; see also 21 CFR 1316.67. Findings of Fact The Agency finds that, in light of Registrant’s default, the factual allegations in the OSC are admitted. According to the OSC, Registrant’s Kansas medical license was suspended on January 30, 2024. RFAAX 2, at 2. According to Kansas online records, of which the Agency takes official notice, Registrant’s Kansas medical license is under a ‘‘Previous’’ status with the ‘‘License Type’’ listed as ‘‘Cancelled— Suspended.’’ 2 Kansas Board of Healing Arts Licensee & Registrant Profile Search, https://www.kansas.gov/ssrvksbhada/search.html (last visited date of signature of this Order). Accordingly, the Agency finds that Registrant is not licensed to practice medicine in Kansas, the state in which he is registered with DEA. Discussion Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under 21 U.S.C. 823 ‘‘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 personally served with the OSC on March 26, 2024. RFAAX 1, at 1, 3. 2 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 the Agency’s finding by filing a properly supported motion for reconsideration of findings of fact within fifteen calendar days of the date of this Order. Any such motion and response shall be filed and served by email to the other party and to Office of the Administrator, Drug Enforcement Administration, at dea.addo.attorneys@dea.gov. E:\FR\FM\11OCN1.SGM 11OCN1 82638 Federal Register / Vol. 89, No. 198 / Friday, October 11, 2024 / Notices State law to engage in the . . . dispensing of controlled substances.’’ With respect to a practitioner, 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, D.O., 76 FR 71371, 71372 (2011), pet. for rev. denied, 481 F. App’x 826 (4th Cir. 2012); Frederick Marsh Blanton, D.O., 43 FR 27616, 27617 (1978).3 According to Kansas statute, ‘‘dispense’’ means ‘‘to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the packaging, labeling or compounding necessary to prepare the substance for that delivery . . . .’’ Kan. Stat. Ann. sec. 65–4101(l) (2024). Further, a ‘‘practitioner’’ includes, among others, ‘‘a person licensed to practice medicine and surgery . . . .’’ Id. sec. 65–4101(ll). Here, the undisputed evidence in the record is that Registrant lacks authority to practice medicine in Kansas. As discussed above, an individual must be a licensed practitioner to dispense a controlled substance in Kansas. Thus, because Registrant lacks authority to practice medicine in Kansas and, therefore, is not authorized to handle controlled substances in Kansas, Registrant is not eligible to maintain a DEA registration. Accordingly, the Agency will order that Registrant’s DEA registration be revoked. ddrumheller on DSK120RN23PROD with NOTICES1 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 3 This rule derives from the text of two provisions of the Controlled Substances Act (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(g)(1). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the CSA, 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., James L. Hooper, 76 FR at 71371–72; Sheran Arden Yeates, D.O., 71 FR 39130, 39131 (2006); Dominick A. Ricci, D.O., 58 FR 51104, 51105 (1993); Bobby Watts, D.O., 53 FR 11919, 11920 (1988); Frederick Marsh Blanton, 43 FR 27617. VerDate Sep<11>2014 17:15 Oct 10, 2024 Jkt 265001 of Registration No. BM8877473 issued to William J. Mack, M.D. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I hereby deny any pending applications of William J. Mack, M.D., to renew or modify this registration, as well as any other pending application of William J. Mack, M.D., for additional registration in Kansas. This Order is effective November 12, 2024. Signing Authority This document of the Drug Enforcement Administration was signed on October 2, 2024, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register. Heather Achbach, Federal Register Liaison Officer, Drug Enforcement Administration. [FR Doc. 2024–23515 Filed 10–10–24; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration Robert P. Hansen, M.D.; Decision and Order On November 29, 2023, the Drug Enforcement Administration (DEA or Government) issued an Order to Show Cause (OSC) to Robert P. Hansen, M.D., of Fresno, California (Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX) 2, at 1, 4. The OSC proposed the revocation of Registrant’s Certificate of Registration No. BH4921727, alleging that Registrant’s registration should be revoked because Registrant is ‘‘currently without authority to prescribe, administer, dispense, or otherwise handle controlled substances in the State of California, the state in which [he is] registered with DEA.’’ Id. at 2 (citing 21 U.S.C. 824(a)(3)). The OSC notified Registrant of his right to file with DEA a written request for hearing, and that if he failed to file such a request, he would be deemed to have waived his right to a hearing and be in default. Id. at 2–3 (citing 21 CFR 1301.43). Here, Registrant did not PO 00000 Frm 00074 Fmt 4703 Sfmt 4703 request a hearing. RFAA, at 3.1 ‘‘A default, unless excused, shall be deemed to constitute a waiver of the registrant’s/applicant’s right to a hearing and an admission of the factual allegations of the [OSC].’’ 21 CFR 1301.43(e). Further, ‘‘[i]n the event that a registrant . . . is deemed to be in default . . . DEA may then file a request for final agency action with the Administrator, along with a record to support its request. In such circumstances, the Administrator may enter a default final order pursuant to [21 CFR] § 1316.67.’’ Id. § 1301.43(f)(1). Here, the Government has requested final agency action based on Registrant’s default pursuant to 21 CFR 1301.43(c), (f), 1301.46. RFAA, at 1; see also 21 CFR 1316.67. Findings of Fact The Agency finds that, in light of Registrant’s default, the factual allegations in the OSC are admitted. According to the OSC, effective August 18, 2023, Registrant surrendered his California physician and surgeon license. RFAAX 2, at 2. According to California online records, of which the Agency takes official notice, Registrant’s California physician and surgeon license remains surrendered.2 California DCA License Search, https:// search.dca.ca.gov (last visited date of signature of this Order). Accordingly, the Agency finds that Registrant is not licensed to practice as a physician in 1 Based on the Government’s submissions in its RFAA dated February 26, 2024, the Agency finds that service of the OSC on Registrant was adequate. Specifically, the included Declaration from a DEA Diversion Investigator (DI) indicates that on January 10, 2024, Registrant was successfully served a copy of the OSC via email to his registered email address, as the email was not returned as undeliverable. RFAAX 1, at 1, 3; Mohammed S. Aljanaby, M.D., 82 FR 34552, 34552 (2017) (finding that service by email satisfies due process where the email is not returned as undeliverable and other methods have been unsuccessful). The DI notes in the Declaration that Registrant was mailed a copy of the OSC on or about December 8, 2023, but on January 10, 2024, the mailing was returned as undeliverable. RFAAX 1, at 1. 2 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 the Agency’s finding by filing a properly supported motion for reconsideration of findings of fact within fifteen calendar days of the date of this Order. Any such motion and response shall be filed and served by email to the other party and to Office of the Administrator, Drug Enforcement Administration at dea.addo.attorneys@dea.gov. E:\FR\FM\11OCN1.SGM 11OCN1

Agencies

[Federal Register Volume 89, Number 198 (Friday, October 11, 2024)]
[Notices]
[Pages 82637-82638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23515]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


William J. Mack, M.D.; Decision and Order

    On March 21, 2024, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to William J. Mack, 
M.D., of Leawood, Kansas (Registrant). Request for Final Agency Action 
(RFAA), Exhibit (RFAAX) 2, at 1, 3. The OSC proposed the revocation of 
Registrant's Certificate of Registration No. BM8877473, alleging that 
Registrant's registration should be revoked because Registrant is 
``currently without authority to prescribe, administer, dispense, or 
otherwise handle controlled substances in the State of Kansas, the 
state in which [he is] registered with DEA.'' Id. at 2 (citing 21 
U.S.C. 824(a)(3)).
    The OSC notified Registrant of his right to file with DEA a written 
request for hearing, and that if he failed to file such a request, he 
would be deemed to have waived his right to a hearing and be in 
default. Id. (citing 21 CFR 1301.43). Here, Registrant did not request 
a hearing. RFAA, at 2.\1\ ``A default, unless excused, shall be deemed 
to constitute a waiver of the [registrant's] right to a hearing and an 
admission of the factual allegations of the [OSC].'' 21 CFR 1301.43(e).
---------------------------------------------------------------------------

    \1\ Based on the Government's submissions in its RFAA dated May 
3, 2024, the Agency finds that service of the OSC on Registrant was 
adequate. Specifically, the Government's Notice of Service of Order 
to Show Cause indicates that Registrant was personally served with 
the OSC on March 26, 2024. RFAAX 1, at 1, 3.
---------------------------------------------------------------------------

    Further, ``[i]n the event that a registrant . . . is deemed to be 
in default . . . DEA may then file a request for final agency action 
with the Administrator, along with a record to support its request. In 
such circumstances, the Administrator may enter a default final order 
pursuant to [21 CFR] Sec.  1316.67.'' Id. Sec.  1301.43(f)(1). Here, 
the Government has requested final agency action based on Registrant's 
default pursuant to 21 CFR 1301.43(c), (f), 1301.46. RFAA, at 1; see 
also 21 CFR 1316.67.

Findings of Fact

    The Agency finds that, in light of Registrant's default, the 
factual allegations in the OSC are admitted. According to the OSC, 
Registrant's Kansas medical license was suspended on January 30, 2024. 
RFAAX 2, at 2. According to Kansas online records, of which the Agency 
takes official notice, Registrant's Kansas medical license is under a 
``Previous'' status with the ``License Type'' listed as ``Cancelled--
Suspended.'' \2\ Kansas Board of Healing Arts Licensee & Registrant 
Profile Search, https://www.kansas.gov/ssrv-ksbhada/search.html (last 
visited date of signature of this Order). Accordingly, the Agency finds 
that Registrant is not licensed to practice medicine in Kansas, the 
state in which he is registered with DEA.
---------------------------------------------------------------------------

    \2\ 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 the Agency's finding 
by filing a properly supported motion for reconsideration of 
findings of fact within fifteen calendar days of the date of this 
Order. Any such motion and response shall be filed and served by 
email to the other party and to Office of the Administrator, Drug 
Enforcement Administration, at [email protected].
---------------------------------------------------------------------------

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under 21 U.S.C. 823 ``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

[[Page 82638]]

State law to engage in the . . . dispensing of controlled substances.'' 
With respect to a practitioner, 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, D.O., 76 FR 
71371, 71372 (2011), pet. for rev. denied, 481 F. App'x 826 (4th Cir. 
2012); Frederick Marsh Blanton, D.O., 43 FR 27616, 27617 (1978).\3\
---------------------------------------------------------------------------

    \3\ This rule derives from the text of two provisions of the 
Controlled Substances Act (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(g)(1). Because Congress has clearly mandated that a 
practitioner possess state authority in order to be deemed a 
practitioner under the CSA, 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., James L. Hooper, 76 FR at 71371-72; Sheran Arden Yeates, D.O., 
71 FR 39130, 39131 (2006); Dominick A. Ricci, D.O., 58 FR 51104, 
51105 (1993); Bobby Watts, D.O., 53 FR 11919, 11920 (1988); 
Frederick Marsh Blanton, 43 FR 27617.
---------------------------------------------------------------------------

    According to Kansas statute, ``dispense'' means ``to deliver a 
controlled substance to an ultimate user or research subject by or 
pursuant to the lawful order of a practitioner, including the 
packaging, labeling or compounding necessary to prepare the substance 
for that delivery . . . .'' Kan. Stat. Ann. sec. 65-4101(l) (2024). 
Further, a ``practitioner'' includes, among others, ``a person licensed 
to practice medicine and surgery . . . .'' Id. sec. 65-4101(ll).
    Here, the undisputed evidence in the record is that Registrant 
lacks authority to practice medicine in Kansas. As discussed above, an 
individual must be a licensed practitioner to dispense a controlled 
substance in Kansas. Thus, because Registrant lacks authority to 
practice medicine in Kansas and, therefore, is not authorized to handle 
controlled substances in Kansas, Registrant is not eligible to maintain 
a DEA registration. Accordingly, the Agency 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. 
BM8877473 issued to William J. Mack, M.D. Further, pursuant to 28 CFR 
0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I 
hereby deny any pending applications of William J. Mack, M.D., to renew 
or modify this registration, as well as any other pending application 
of William J. Mack, M.D., for additional registration in Kansas. This 
Order is effective November 12, 2024.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
October 2, 2024, by Administrator Anne Milgram. That document with the 
original signature and date is maintained by DEA. For administrative 
purposes only, and in compliance with requirements of the Office of the 
Federal Register, the undersigned DEA Federal Register Liaison Officer 
has been authorized to sign and submit the document in electronic 
format for publication, as an official document of DEA. This 
administrative process in no way alters the legal effect of this 
document upon publication in the Federal Register.

Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2024-23515 Filed 10-10-24; 8:45 am]
BILLING CODE 4410-09-P

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