82 FR 23298 - Steven Bernhard, D.O.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 82, Issue 97 (May 22, 2017)

[Federal Register Volume 82, Number 97 (Monday, May 22, 2017)]
[Notices]
[Pages 23298-23300]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-10363]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Steven Bernhard, D.O.; Decision and Order

    On October 3, 2016, the Assistant Administrator, Division of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Steven Bernhard, D.O. (hereinafter, Registrant), of 
Bayside, New York. The Show Cause Order proposed the revocation of 
Registrant's Certificate of Registration on the grounds that: (1) He 
materially falsified his renewal application, and (2) he lacks 
authority to handle controlled substances in New York, the State in 
which he is registered. GX D, at 1 (citing 21 U.S.C. 823(f), 824(a)(1), 
and 824(a)(3)).
    As to the Agency's jurisdiction, the Show Cause Order alleged that 
Registrant is the holder of DEA Certificate of Registration AB7719860, 
pursuant to which he is registered as a practitioner in schedules II 
through V at the registered address of 39-21 Bell Blvd., Bayside, New 
York. Id. The Order alleged that this registration does not expire 
until July 31, 2018. Id.
    As to the substantive grounds for the proceeding, the Show Cause 
Order alleged that effective on ``February 4, 2013, the New York 
Department of Health State Board for Professional Misconduct revoked 
[his] license to practice medicine due to negligence, incompetence, 
gross negligence, gross incompetence, the failure to maintain records, 
fraudulent practice, and false reports,'' and that ``[t]his order 
remains in effect.'' Id. The Show Cause Order thus alleged that 
Registrant is ``without authority to handle controlled substances in 
the State of New York, the [S]tate in which [he is] registered,'' and 
that his registration is therefore subject to revocation. Id. at 1-2 
(citing 21 U.S.C. 823(f) & 824(a)(3)).
    The Show Cause Order also alleged that on June 11, 2015, Registrant 
submitted a renewal application for his registration on which he made 
two materially false statements. Id. at 2.

[[Page 23299]]

First, the Order alleged that Registrant falsely represented that he 
``possessed a valid New York Medical License No. 131832 which expired 
on March 31, 2017,'' when, in fact, his ``medical license had been 
revoked in 2013.'' Id. Second, the Order alleged that Registrant 
falsely answered ``No'' to the application's question which asked if he 
``had ever `had a state professional license or controlled substance 
registration revoked, suspended, denied, restricted, or placed on 
probation, or is any such action pending?' '' Id. The Order alleged 
that each of these statements was capable of influencing the Agency's 
decision to grant the application and was thus material. Id. (citing 21 
U.S.C. 823(f) & 824(a)(1); other citations omitted).
    The Show Cause Order notified Registrant of his right to request a 
hearing on the allegations or to submit a written statement of his 
position on the matters of fact and law asserted while waiving his 
right to a hearing, the procedure for electing either option, and the 
consequence of failing to elect either option. Id. at 2-3 (citing 21 
CFR 1301.43). The Order also notified Registrant of his right to submit 
a Corrective Action Plan pursuant to 21 U.S.C. 824(c)(2)(C). Id. at 3.
    On November 4, 2016, a DEA Diversion Investigator (DI) went to 
Registrant's registered address as well as his home address to attempt 
personal service of the Show Cause Order, but Registrant ``was not 
present'' at either location. GX 3, at 1-2. Subsequently, the DI mailed 
the Show Cause Order to Registrant by Certified Mail, Return Receipt 
Requested, addressed to him at both his registered location and home 
address. Id. at 2. As evidenced by the copies of the signed return-
receipt cards, these mailings were delivered on November 16 and 15, 
2016, respectively. Id. Finally, on November 29, 2016, the DI also 
emailed a copy of the Show Cause Order to Registrant using the email 
address he had previously provided the Agency. Id. The DI further 
represented that the she did not receive a message that the ``email was 
not successfully sent'' or ``was undeliverable.'' Id.
    The Government's Counsel further represents that Registrant ``has 
not filed a request for a hearing or a written statement.'' Request for 
Final Agency Action, at 2. Because I find that more than 30 days have 
now passed since the Show Cause Order was served on Registrant, and 
that Registrant has neither requested a hearing nor submitted a written 
statement while waiving his right to a hearing, I find that Registrant 
has waived his right to a hearing or to submit a written statement. 
Based on the evidence submitted by the Government, I make the following 
factual findings.

Findings of Fact

    Registrant is the holder of DEA Certificate of Registration No. 
AB7719860, pursuant to which he is authorized to dispense controlled 
substances as a practitioner in schedules II through V, at the 
registered address of 39-21 Bell Blvd., Bayside, NY. GX 1. This 
registration does not expire until July 31, 2018. Id.
    Registrant was previously licensed to practice medicine by the New 
York State Department of Health. GX 3, Ex. E, at 7. (Determination and 
Order, at 3, In the Matter of Steven Bernhard, D.O., (N.Y. Dept. of 
Health State Bd. for Prof. Med. Conduct, Jan. 24, 2013)). However, on 
January 24, 2013, a Hearing Committee of the Board issued a 
Determination and Order revoking Registrant's license to practice 
medicine; the Board's Order became effective on February 4, 2013 and 
was in effect as of June 19, 2015, as well as of the date this matter 
was forwarded to my Office. Id. at 1; see also GX 3, Ex. F, at 1. 
Moreover, I take official notice of the Board's Web site, which 
continues to list Registrant's medical license as having been revoked. 
See 5 U.S.C. 556(e); 21 CFR 1316.59(e).
    On June 11, 2015, Registrant submitted an application to renew his 
DEA registration. GX 3, Ex. A, at 1. Section 4 of the Application 
asked: ``Are you currently authorized to prescribe, distribute, 
dispense, conduct research, or otherwise handle controlled substances 
in the schedules for which you are applying under the laws of the state 
or jurisdiction in which you are operating or propose to operate?'' Id. 
Registrant represented that he held ``State License No. 131839,'' that 
the license was issued by ``NY,'' and its expiration date was ``03-31-
2017.'' Id. On the Application, Registrant was also required to answer 
the question: ``Has the applicant ever surrendered (for cause) or had a 
state professional license or controlled substance registration 
revoked, suspended, denied, restricted, or placed on probation, or is 
any such action pending?'' Id. Registrant answered ``N'' for no. Id.

Discussion

    Pursuant to section 304(a)(1) of the Controlled Substances Act 
(CSA), the Attorney General is authorized to suspend or revoke a 
registration ``upon a finding that the registrant . . . has materially 
falsified any application filed pursuant to or required by this 
subchapter.'' 21 U.S.C. 824(a)(1). And pursuant to section 304(a)(3), 
the Attorney General is authorized to suspend or revoke a registration 
``upon a finding that the registrant . . . has had his State license or 
registration suspended, revoked, or denied by competent State authority 
and is no longer authorized by State law to engage in the . . . 
distribution or dispensing of controlled substances.'' Id. Sec.  
824(a)(3). These provisions provide separate and independent grounds to 
revoke Registrant's registration.

The Loss of State Authority Allegation

    Under the CSA, a practitioner must be currently authorized to 
handle controlled substances in ``the jurisdiction in which he 
practices'' in order to obtain and maintain a DEA registration. This 
rule derives from two provisions of the CSA. See 21 U.S.C. 802(21) 
(``[t]he term `practitioner' means a physician . . . licensed, 
registered, or otherwise permitted, by . . . the jurisdiction in which 
he practices . . . to distribute, dispense, [or] administer . . . a 
controlled substance in the course of professional practice''). See 
also id. Sec.  823(f) (``The Attorney General shall register 
practitioners . . . if the applicant is authorized to dispense . . . 
controlled substances under the laws of the State in which he 
practices.'').
    Thus, DEA has long held that the possession of authority to 
dispense controlled substances under the laws of the State in which a 
practitioner engages in professional practice is a fundamental 
condition for obtaining and maintaining a practitioner's registration. 
See, e.g., Frederick Marsh Blanton, 43 FR 27616, 27617 (1978) (``State 
authorization to dispense or otherwise handle controlled substances is 
a prerequisite to the issuance and maintenance of a Federal controlled 
substances registration.''); see also James L. Hooper, 76 FR 71371 
(2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); 21 
U.S.C. 824(a)(3).
    Here, the Government has provided a copy of the New York Board's 
Determination and Order which revoked Registrant's New York medical 
license effective on February 4, 2013. The Government further submitted 
evidence showing that, as of the date it submitted its Request for 
Final Agency Action, Registrant's state medical license remained 
revoked, and the Board's Web site continues to state that his license 
has been revoked.
    I therefore conclude that Registrant's medical license has been 
revoked and that he is no longer authorized to dispense controlled 
substances in New York, the State in which he holds his

[[Page 23300]]

registration. Because Registrant does not meet the CSA's essential 
requirement for maintaining a practitioner's registration, I will order 
that his registration be revoked. See 21 U.S.C. 824(a)(3), 802(21); see 
also id. Sec.  823(f).

The Material Falsification Allegation

    As found above, effective on February 4, 2013, the State of New 
York revoked Registrant's Medical License and this Order was still in 
effect as of June 11, 2015, when Registrant submitted his application. 
Thus, Respondent materially falsified his application in two ways. 
First, he falsely represented that he was ``currently authorized to 
prescribe [or] dispense'' controlled substances in New York State when 
he listed his purported license number, indicated that it was issued by 
New York, and listed the license's expiration date as March 31, 2017. 
Second, he falsely answered ``N'' for no to the question which asked if 
his state medical license had ever been revoked.
    Each of these false statements was clearly material because it was 
capable of affecting or influencing the Agency's decision as to whether 
to grant his application. Kungys v. United States, 485 U.S. 759, 770 
(1988) (other citation omitted); United States v. Wells, 519 U.S. 482, 
489 (1997) (quoting Kungys, 485 U.S. at 770). As explained above, the 
CSA defines the ``[t]he term `practitioner' [to] mean[ ] a physician . 
. . licensed, registered, or otherwise permitted, by . . . the 
jurisdiction in which he practices . . . to distribute, dispense, [or] 
administer . . . a controlled substance in the course of professional 
practice,'' 21 U.S.C. 802(21), and the registration provision 
applicable to practitioners directs that ``[t]he Attorney General shall 
register practitioners . . . if the applicant is authorized to dispense 
. . . controlled substances under the laws of the State in which he 
practices.'' Id. Sec.  823(f). As the Agency has long held, ``[s]tate 
authorization to dispense or otherwise handle controlled substances is 
a prerequisite to the issuance and maintenance of a Federal controlled 
substances registration.'' Blanton, 43 FR at 27617.
    Because the possession of state authority is a prerequisite to 
obtaining and maintaining a practitioner's registration, Respondent's 
false representations that he currently possessed a state license and 
that his state license had never been revoked were capable of 
influencing the Agency's decision to grant his June 11, 2015 renewal 
application. I therefore also conclude that Respondent materially 
falsified his June 11, 2015 application. For this reason as well, I 
will order that his registration be revoked. 21 U.S.C. 824(a)(1).

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a) as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration 
AB7719860 issued to Steven Bernhard, D.O., be, and it hereby is, 
revoked. I further order that any application of Steven Bernhard, D.O., 
to renew or modify this registration, be denied. This Order is 
effective immediately.\1\
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    \1\ Based on my finding that Respondent obtained his 
registration by materially falsifying his application, I conclude 
that the public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Dated: May 15, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-10363 Filed 5-19-17; 8:45 am]
 BILLING CODE 4410-09-P