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)

Page Range		23298-23300
FR Document		2017-10363
Federal Register, Volume 82 Issue 97 (Monday, 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
23298 Federal Register / Vol. 82, No. 97 / Monday, May 22, 2017 / Notices

DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE The last notification was filed with
the Department on May 4, 2016. A
Antitrust Division Antitrust Division notice was published in the Federal
Register pursuant to Section 6(b) of the
Notice Pursuant to the National Notice Pursuant to the National Act on June 9, 2016 (81 FR 37213).
Cooperative Research and Production Cooperative Research and Production
Act of 1993—International Electronics Patricia A. Brink,
Act of 1993—Pistoia Alliance, Inc.
Manufacturing Initiative, Inc. Director of Civil Enforcement, Antitrust
Division.
Notice is hereby given that, on April Notice is hereby given that, on April [FR Doc. 2017–10342 Filed 5–19–17; 8:45 am]
24, 2017, pursuant to Section 6(a) of the 26, 2017, pursuant to Section 6(a) of the BILLING CODE P
National Cooperative Research and National Cooperative Research and
Production Act of 1993, 15 U.S.C. 4301 Production Act of 1993, 15 U.S.C. 4301
et seq. (‘‘the Act’’), Pistoia Alliance, Inc. et seq. (‘‘the Act’’), International DEPARTMENT OF JUSTICE
has filed written notifications Electronics Manufacturing Initiative,
simultaneously with the Attorney Inc. (‘‘iNEMI’’) has filed written Drug Enforcement Administration
General and the Federal Trade notifications simultaneously with the
Commission disclosing changes in its Attorney General and the Federal Trade Steven Bernhard, D.O.; Decision and
membership. The notifications were Commission disclosing changes in its Order
filed for the purpose of extending the membership. The notifications were On October 3, 2016, the Assistant
Act’s provisions limiting the recovery of filed for the purpose of extending the Administrator, Division of Diversion
antitrust plaintiffs to actual damages Act’s provisions limiting the recovery of Control, Drug Enforcement
under specified circumstances. antitrust plaintiffs to actual damages Administration, issued an Order to
Specifically, Shire Pharmaceuticals under specified circumstances. Show Cause to Steven Bernhard, D.O.
LLC, Lexington, MA; Lhasa Limited, Specifically, 5N Plus Micro Powders (hereinafter, Registrant), of Bayside,
Leeds, UNITED KINGDOM; Inc., Montréal, Quebec, CANADA; U.S. New York. The Show Cause Order
Intomics A/S, Lyngby, DENMARK; and Department of Defense, Fort Meade, proposed the revocation of Registrant’s
PRYV SA, Lausanne, SWITZERLAND, MD; Elmatica AS, Oslo, NORWAY; Certificate of Registration on the
have been added as parties to this Integrated Micro-Electronics, Inc., grounds that: (1) He materially falsified
venture. Binan, PHILIPPINES; General Electric, his renewal application, and (2) he lacks
San Jose, CA; Oak Ridge National authority to handle controlled
Also, Chris Barber (individual Laboratory, Oak Ridge, TN; Tin substances in New York, the State in
member), Leeds, UNITED KINGDOM, Products Manufacturing Co., LTD, which he is registered. GX D, at 1 (citing
has withdrawn as a party to this Kunming, PEOPLE’S REPUBLIC OF 21 U.S.C. 823(f), 824(a)(1), and
venture. CHINA; Vitrox Technologies SDN BHD, 824(a)(3)).
No other changes have been made in Bayan Lepas, MALAYSIA; METech As to the Agency’s jurisdiction, the
either the membership or planned Recycling, Creedmoor, NC; Peagatroin, Show Cause Order alleged that
activity of the group research project. Taipei, TAIWAN; Shenmao Technology, Registrant is the holder of DEA
Membership in this group research Inc., Taoyuan, TAIWAN; SAKI Certificate of Registration AB7719860,
project remains open, and Pistoia Corporation, Tokyo, JAPAN; SENKO pursuant to which he is registered as a
Alliance, Inc. intends to file additional Advanced Components, Basingstoke, practitioner in schedules II through V at
written notifications disclosing all UNITED KINGDOM; and Abbott the registered address of 39–21 Bell
changes in membership. Corporation, Abbott Park, IL, have been Blvd., Bayside, New York. Id. The Order
added as parties to this venture. alleged that this registration does not
On May 28, 2009, Pistoia Alliance, Also, Commissariat à l’énergie expire until July 31, 2018. Id.
Inc. filed its original notification atomique et aux énergies alternatives, As to the substantive grounds for the
pursuant to Section 6(a) of the Act. The Grenoble, FRANCE; EPEAT, Inc., proceeding, the Show Cause Order
Department of Justice published a notice Portland, OR; Underwriters alleged that effective on ‘‘February 4,
in the Federal Register pursuant to Laboratories, Northbrook, IL; IMEC vzw, 2013, the New York Department of
Section 6(b) of the Act on July 15, 2009 Leuven, BELGIUM; Micro Systems Health State Board for Professional
(74 FR 34364). Technology Mgmt. AG, Baar, Misconduct revoked [his] license to
The last notification was filed with SWITZERLAND; TE Connectivity, practice medicine due to negligence,
the Department on February 3, 2017. A Schaffhausen, SWITZERLAND; and St. incompetence, gross negligence, gross
notice was published in the Federal Jude Medical, Saint Paul, MN, have incompetence, the failure to maintain
withdrawn as parties to this venture. records, fraudulent practice, and false
Register pursuant to Section 6(b) of the
No other changes have been made in reports,’’ and that ‘‘[t]his order remains
Act on March 7, 2017 (82 FR 12847).
either the membership or planned in effect.’’ Id. The Show Cause Order
Patricia A. Brink, activity of the group research project. thus alleged that Registrant is ‘‘without
Director of Civil Enforcement, Antitrust Membership in this group research authority to handle controlled
Division. project remains open, and iNEMI substances in the State of New York, the
[FR Doc. 2017–10358 Filed 5–19–17; 8:45 am] intends to file additional written [S]tate in which [he is] registered,’’ and
notifications disclosing all changes in that his registration is therefore subject
mstockstill on DSK30JT082PROD with NOTICES

BILLING CODE P
membership. to revocation. Id. at 1–2 (citing 21 U.S.C.
On June 6, 1996, iNEMI filed its 823(f) & 824(a)(3)).
original notification pursuant to Section The Show Cause Order also alleged
6(a) of the Act. The Department of that on June 11, 2015, Registrant
Justice published a notice in the Federal submitted a renewal application for his
Register pursuant to Section 6(b) of the registration on which he made two
Act on June 28, 1996 (61 FR 33774). materially false statements. Id. at 2.

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Federal Register / Vol. 82, No. 97 / Monday, May 22, 2017 / Notices 23299

First, the Order alleged that Registrant hearing or to submit a written statement. subchapter.’’ 21 U.S.C. 824(a)(1). And
falsely represented that he ‘‘possessed a Based on the evidence submitted by the pursuant to section 304(a)(3), the
valid New York Medical License No. Government, I make the following Attorney General is authorized to
131832 which expired on March 31, factual findings. suspend or revoke a registration ‘‘upon
2017,’’ when, in fact, his ‘‘medical a finding that the registrant . . . has had
Findings of Fact
license had been revoked in 2013.’’ Id. his State license or registration
Second, the Order alleged that Registrant is the holder of DEA suspended, revoked, or denied by
Registrant falsely answered ‘‘No’’ to the Certificate of Registration No. competent State authority and is no
application’s question which asked if he AB7719860, pursuant to which he is longer authorized by State law to engage
‘‘had ever ‘had a state professional authorized to dispense controlled in the . . . distribution or dispensing of
license or controlled substance substances as a practitioner in schedules controlled substances.’’ Id. § 824(a)(3).
registration revoked, suspended, denied, II through V, at the registered address of These provisions provide separate and
restricted, or placed on probation, or is 39–21 Bell Blvd., Bayside, NY. GX 1. independent grounds to revoke
any such action pending?’ ’’ Id. The This registration does not expire until Registrant’s registration.
Order alleged that each of these July 31, 2018. Id.
Registrant was previously licensed to The Loss of State Authority Allegation
statements was capable of influencing
the Agency’s decision to grant the practice medicine by the New York Under the CSA, a practitioner must be
application and was thus material. Id. State Department of Health. GX 3, Ex. E, currently authorized to handle
(citing 21 U.S.C. 823(f) & 824(a)(1); other at 7. (Determination and Order, at 3, In controlled substances in ‘‘the
citations omitted). the Matter of Steven Bernhard, D.O., jurisdiction in which he practices’’ in
The Show Cause Order notified (N.Y. Dept. of Health State Bd. for Prof. order to obtain and maintain a DEA
Registrant of his right to request a Med. Conduct, Jan. 24, 2013)). However, registration. This rule derives from two
hearing on the allegations or to submit on January 24, 2013, a Hearing provisions of the CSA. See 21 U.S.C.
a written statement of his position on Committee of the Board issued a 802(21) (‘‘[t]he term ‘practitioner’ means
the matters of fact and law asserted Determination and Order revoking a physician . . . licensed, registered, or
while waiving his right to a hearing, the Registrant’s license to practice otherwise permitted, by . . . the
procedure for electing either option, and medicine; the Board’s Order became jurisdiction in which he practices . . .
the consequence of failing to elect either effective on February 4, 2013 and was to distribute, dispense, [or] administer
option. Id. at 2–3 (citing 21 CFR in effect as of June 19, 2015, as well as . . . a controlled substance in the
1301.43). The Order also notified of the date this matter was forwarded to course of professional practice’’). See
Registrant of his right to submit a my Office. Id. at 1; see also GX 3, Ex. also id. § 823(f) (‘‘The Attorney General
Corrective Action Plan pursuant to 21 F, at 1. Moreover, I take official notice shall register practitioners . . . if the
U.S.C. 824(c)(2)(C). Id. at 3. of the Board’s Web site, which applicant is authorized to dispense . . .
On November 4, 2016, a DEA continues to list Registrant’s medical controlled substances under the laws of
Diversion Investigator (DI) went to license as having been revoked. See 5 the State in which he practices.’’).
Registrant’s registered address as well as U.S.C. 556(e); 21 CFR 1316.59(e). Thus, DEA has long held that the
his home address to attempt personal On June 11, 2015, Registrant possession of authority to dispense
service of the Show Cause Order, but submitted an application to renew his controlled substances under the laws of
Registrant ‘‘was not present’’ at either DEA registration. GX 3, Ex. A, at 1. the State in which a practitioner engages
location. GX 3, at 1–2. Subsequently, the Section 4 of the Application asked: ‘‘Are in professional practice is a
DI mailed the Show Cause Order to you currently authorized to prescribe, fundamental condition for obtaining
Registrant by Certified Mail, Return distribute, dispense, conduct research, and maintaining a practitioner’s
Receipt Requested, addressed to him at or otherwise handle controlled registration. See, e.g., Frederick Marsh
both his registered location and home substances in the schedules for which Blanton, 43 FR 27616, 27617 (1978)
address. Id. at 2. As evidenced by the you are applying under the laws of the (‘‘State authorization to dispense or
copies of the signed return-receipt state or jurisdiction in which you are otherwise handle controlled substances
cards, these mailings were delivered on operating or propose to operate?’’ Id. is a prerequisite to the issuance and
November 16 and 15, 2016, respectively. Registrant represented that he held maintenance of a Federal controlled
Id. Finally, on November 29, 2016, the ‘‘State License No. 131839,’’ that the substances registration.’’); see also
DI also emailed a copy of the Show license was issued by ‘‘NY,’’ and its James L. Hooper, 76 FR 71371 (2011),
Cause Order to Registrant using the expiration date was ‘‘03–31–2017.’’ Id. pet. for rev. denied, 481 Fed. Appx. 826
email address he had previously On the Application, Registrant was also (4th Cir. 2012); 21 U.S.C. 824(a)(3).
provided the Agency. Id. The DI further required to answer the question: ‘‘Has Here, the Government has provided a
represented that the she did not receive the applicant ever surrendered (for copy of the New York Board’s
a message that the ‘‘email was not cause) or had a state professional license Determination and Order which revoked
successfully sent’’ or ‘‘was or controlled substance registration Registrant’s New York medical license
undeliverable.’’ Id. revoked, suspended, denied, restricted, effective on February 4, 2013. The
The Government’s Counsel further or placed on probation, or is any such Government further submitted evidence
represents that Registrant ‘‘has not filed action pending?’’ Id. Registrant showing that, as of the date it submitted
a request for a hearing or a written answered ‘‘N’’ for no. Id. its Request for Final Agency Action,
statement.’’ Request for Final Agency Registrant’s state medical license
Action, at 2. Because I find that more Discussion remained revoked, and the Board’s Web
mstockstill on DSK30JT082PROD with NOTICES

than 30 days have now passed since the Pursuant to section 304(a)(1) of the site continues to state that his license
Show Cause Order was served on Controlled Substances Act (CSA), the has been revoked.
Registrant, and that Registrant has Attorney General is authorized to I therefore conclude that Registrant’s
neither requested a hearing nor suspend or revoke a registration ‘‘upon medical license has been revoked and
submitted a written statement while a finding that the registrant . . . has that he is no longer authorized to
waiving his right to a hearing, I find that materially falsified any application filed dispense controlled substances in New
Registrant has waived his right to a pursuant to or required by this York, the State in which he holds his

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registration. Because Registrant does not application. For this reason as well, I (citing 21 U.S.C. 802(21), 823(f), and
meet the CSA’s essential requirement will order that his registration be 824(a)(3)) (other citations omitted).
for maintaining a practitioner’s revoked. 21 U.S.C. 824(a)(1). The Show Cause Order also notified
registration, I will order that his Registrant of his right to request a
Order hearing on the allegations or to submit
registration be revoked. See 21 U.S.C.
824(a)(3), 802(21); see also id. § 823(f). Pursuant to the authority vested in me a written statement on the matters of
by 21 U.S.C. 824(a) as well as 28 CFR fact and law at issue while waiving his
The Material Falsification Allegation right to a hearing, the procedures for
0.100(b), I order that DEA Certificate of
As found above, effective on February Registration AB7719860 issued to electing either option, and the
4, 2013, the State of New York revoked Steven Bernhard, D.O., be, and it hereby consequence of failing to elect either
Registrant’s Medical License and this is, revoked. I further order that any option. Id. at 2. Also, the Show Cause
Order was still in effect as of June 11, application of Steven Bernhard, D.O., to Order notified Registrant of his right to
2015, when Registrant submitted his renew or modify this registration, be submit a corrective action plan. Id. at 2–
application. Thus, Respondent denied. This Order is effective 3 (citing 21 U.S.C. 824(c)(2)(C)).
materially falsified his application in immediately.1 According to the declaration of a DEA
two ways. First, he falsely represented Special Agent, on December 20, 2016,
that he was ‘‘currently authorized to Dated: May 15, 2017.
he personally served the Show Cause
prescribe [or] dispense’’ controlled Chuck Rosenberg, Order on Registrant at his residence. GX
substances in New York State when he Acting Administrator. 5. The Government represents that the
listed his purported license number, [FR Doc. 2017–10363 Filed 5–19–17; 8:45 am] Agency ‘‘has not received a request for
indicated that it was issued by New BILLING CODE 4410–09–P hearing or any other reply from’’
York, and listed the license’s expiration Registrant. Gov. Request for Final
date as March 31, 2017. Second, he Agency Action, at 2. Based on the
falsely answered ‘‘N’’ for no to the DEPARTMENT OF JUSTICE representation of the Government, I find
question which asked if his state that more than 30 days have now passed
medical license had ever been revoked. Drug Enforcement Administration since the Show Cause Order was served
Each of these false statements was on Registrant, and that Registrant has
clearly material because it was capable Shakeel A. Kahn, M.D.; Decision and
Order neither requested a hearing nor
of affecting or influencing the Agency’s submitted a written statement while
decision as to whether to grant his On December 20, 2016, the Assistant waiving his right to a hearing. I
application. Kungys v. United States, Administrator, Division of Diversion therefore find that Registrant has waived
485 U.S. 759, 770 (1988) (other citation Control, Drug Enforcement his right to a hearing or to submit a
omitted); United States v. Wells, 519 Administration, issued an Order to written statement. Based on the
U.S. 482, 489 (1997) (quoting Kungys, Show Cause to Shakeel A. Kahn, M.D. evidence submitted by the Government,
485 U.S. at 770). As explained above, (hereinafter, Registrant), of Casper, I make the following factual findings.
the CSA defines the ‘‘[t]he term Wyoming. GX 1. The Show Cause Order
‘practitioner’ [to] mean[ ] a physician Findings
proposed the revocation of Registrant’s
. . . licensed, registered, or otherwise Certificate of Registration, on the ground Registrant is the holder of DEA
permitted, by . . . the jurisdiction in that he ‘‘do[es] not have authority to Certificate of Registration No.
which he practices . . . to distribute, handle controlled substances in the FK5578464, pursuant to which he is
dispense, [or] administer . . . a State of Wyoming, the [S]tate in which authorized to dispense controlled
controlled substance in the course of [he is] registered with the DEA.’’ Id. substances in schedules II through V as
professional practice,’’ 21 U.S.C. (citing 21 U.S.C. 823(f) and 824(a)(3)). a practitioner, at the address of 301 S.
802(21), and the registration provision Fenway St., Suite 202, Casper,
As for the jurisdictional basis of the
applicable to practitioners directs that Wyoming. GX 2. His registration does
proceeding, the Show Cause Order
‘‘[t]he Attorney General shall register not expire until December 31, 2018. Id.
alleged that Registrant is registered ‘‘as
practitioners . . . if the applicant is Registrant is also the holder of
a practitioner in [s]chedules II–V
authorized to dispense . . . controlled Wyoming Physician License No. 7633A.
substances under the laws of the State pursuant to’’ Certificate of Registration
No. FK5578464, at the address of ‘‘301 GX 3, at 1. However, on November 29,
in which he practices.’’ Id. § 823(f). As 2016, the Wyoming Board of Medicine
the Agency has long held, ‘‘[s]tate South Fenway St., Suite 202, Casper,
Wyoming.’’ Id. The Order alleged that ordered the summary suspension of
authorization to dispense or otherwise Registrant’s Physician License effective
handle controlled substances is a this registration expires ‘‘on December
31, 2018.’’ Id. the same day, thereby suspending ‘‘his
prerequisite to the issuance and authority and ability to practice
maintenance of a Federal controlled As for the substantive ground for the
medicine in the state of Wyoming’’
substances registration.’’ Blanton, 43 FR proceeding, the Show Cause Order
pending ‘‘the completion of a contested
at 27617. alleged that on November 29, 2016,
case hearing.’’ Id. at 18. According to
Because the possession of state Registrant’s ‘‘authority to prescribe and
the online records of the Wyoming
authority is a prerequisite to obtaining administer controlled substances in the
Board of Medicine of which I take
and maintaining a practitioner’s State of Wyoming was suspended,’’ and
official notice, Registrant’s medical
registration, Respondent’s false that he is ‘‘without authority to handle
license remains suspended as of the
representations that he currently controlled substances.’’ Id. The Show
date of this Decision and Order. See 5
mstockstill on DSK30JT082PROD with NOTICES

possessed a state license and that his Cause Order thus asserted that his
U.S.C. 556(e), 21 CFR 1316.59(e).
state license had never been revoked registration is subject to revocation. Id.
were capable of influencing the Discussion
1 Based on my finding that Respondent obtained
Agency’s decision to grant his June 11, Pursuant to 21 U.S.C. 824(a)(3), the
his registration by materially falsifying his
2015 renewal application. I therefore application, I conclude that the public interest
Attorney General is authorized to
also conclude that Respondent necessitates that this Order be effective suspend or revoke a registration issued
materially falsified his June 11, 2015 immediately. 21 CFR 1316.67. under section 823 of the Controlled

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Document Created: 2018-11-08 08:49:48
Document Modified: 2018-11-08 08:49:48
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
FR Citation		82 FR 23298
82 FR 23298 - Steven Bernhard, D.O.; Decision and Order

DEPARTMENT OF JUSTICEDrug Enforcement Administration

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

DEPARTMENT OF JUSTICE
Drug Enforcement Administration
