82_FR_23395 82 FR 23298 - Steven Bernhard, D.O.; Decision and Order

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 Range23298-23300
FR Document2017-10363

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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                                                  23300                           Federal Register / Vol. 82, No. 97 / Monday, May 22, 2017 / Notices

                                                  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
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation82 FR 23298 

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