[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Notices]
[Pages 41428-41429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20159]


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DEPARTMENT OF JUSTICE
[Docket No. 96-11]


Gerald E. Vangsgard, M.D.; Revocation of Registration

    On November 27, 1995, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Gerald Vangsgard, M.D., (Respondent), of Carmel, 
California, notifying him of an opportunity to show cause as to why DEA 
should not revoke his DEA Certificate of Registration, AY0018970, and 
deny any pending applications for registration as a practitioner under 
21 U.S.C. 823(f), for the reason that on December 28, 1993, the 
California Medical Board (Board) issued a Decision which prohibited him 
from practicing medicine until such time as he passed required 
examinations, which he had not done.
    The Respondent filed a timely request for a hearing, and the matter 
was docketed before Administrator Law Judge Mary Ellen Bittner. 
However, prior to the hearing, the Government filed a Motion for 
Summary Disposition on January 17, 1996, noting that the Respondent was 
unauthorized to practice medicine in California until requirements 
levied by an order of the Board had been met. Attached to the motion 
was a copy of the Board's accusations, a copy of a Stipulation and 
Waiver signed by the Respondent on July 2, 1993, and a copy of the 
Board's order dated December 28, 1993, which adopted the Stipulation 
and Waiver as its decision. The Respondent was afforded an opportunity 
to respond to the Government's motion on or before February 2, 1996. 
The Respondent did not file a response specifically addressing the 
Government's motion, but the Respondent's physician submitted a letter 
stating that the Respondent planned to meet the Board's requirements in 
the spring of 1996. However, the Respondent has not denied that he is 
not authorized to handle controlled substances in the State of 
California.
    On February 15, 1996, Judge Bittner issued her Opinion and 
Recommended Decision, (1) Finding that the Respondent had not taken and 
passed the required examinations and therefore, lacked authorization to 
practice medicine in California; (2) finding that it was reasonable to 
infer, and that the Respondent had not denied, that he thus lacked 
state authorization to handle controlled substances; (3) granting the 
Government's Motion for Summary Disposition; and (3) recommending that 
the Respondent's DEA Certificate of Registration be revoked. Neither 
party filed exceptions to her decision, and on March 15, 1996, Judge 
Bittner transmitted the record of these proceedings and her opinion to 
the Deputy Administrator.
    The Deputy Administrator has considered the record in its entirety, 
and pursuant to 21 CFR 1316.67, hereby issues his final order based 
upon findings of fact and conclusions of law as hereinafter set forth. 
The Deputy Administrator adopts, in full, the decision of the 
Administrative Law Judge, and his adoption is in no manner diminished 
by any recitation of facts, issues and conclusions herein, or of any 
failure to mention a matter of fact or law.
    Specifically, the Deputy Administrator finds that the Respondent 
signed a Stipulation and Waiver on July 2, 1993, in response to the 
Board's accusation filed against the Respondent on September 16, 1992. 
In relevant part, the Stipulation and Waiver ordered the Respondent to 
pass an oral and a written examination, and prohibited him from 
practicing medicine until he met this requirement and received written 
notification from the Board. Further, the Respondent was ordered to 
undergo a medical and a psychiatric evaluation, and he was not to 
engage in the practice of medicine until he was notified in writing by 
the Division of its determination that the Respondent is medically and 
mentally fit to practice medicine. On December 28, 1993, the Board 
adopted the Stipulation and Waiver.
    In the Motion for Summary Disposition, the Government asserted that 
it did not have any indication that the Respondent had taken and passed 
the required examinations, or that the Board's restrictions had been 
removed. The Deputy Administrator finds that the Respondent has not 
submitted any information or evidence to the contrary, and concludes 
that the Respondent consequently is not authorized to practice medicine 
or to handle controlled substances in the State of California.
    The Drug Enforcement Administration cannot register or maintain the 
registration of a practitioner who is not duly authorized to handle 
controlled substances in the state in which he conducts his business. 
See 21 U.S.C. 823(f) (authorizing the Attorney General to register a 
practitioner to dispense controlled substances only if the applicant is 
authorized to dispense controlled substances under the laws of the 
state he or she practices); 802(21) (defining ``practitioner'' as one 
authorized by the United States or the state in which he or she 
practices to handle controlled substances in the course of professional 
practice or research). This prerequisite has been consistently upheld. 
See Dominick A. Ricci, M.D., 58 FR 51,104 (1993); James H. Nickens, 
M.D., 57 FR 59,847 (1992); Roy E. Hardman, M.D., 57 FR 49,195 (1992); 
Myong S. Yi, M.D., 54 FR 30,618 (1989); Bobby Watts, M.D., 53 FR 11,919 
(1988).
    Here, it is clear that the Respondent is not currently authorized 
to practice medicine in California. The Deputy Administrator agrees 
with Judge Bittner's finding that ``[i]t is therefore reasonable to 
infer, and Respondent does not deny, that because he is not authorized 
to practice medicine, he is also not authorized to handle controlled 
substances.'' Likewise, since the Respondent lacks state authority to 
handle controlled substances, DEA lacks authority to continue the 
Respondent's registration.
    Judge Bittner also properly granted the Government's motion for 
summary disposition. Here, the parties did not dispute that the 
Respondent was unauthorized to handle controlled substances in 
California, the state in which he proposed to conduct his practice. 
Therefore, it is well-settled that when no question of fact is 
involved, a plenary, adversary administrative proceeding involving 
evidence and cross-examination of witnesses is not obligatory, Dominick 
A. Ricci, M.D., 58 FR at 51,104; see also Phillip E. Kirk, M.D., 48 FR 
32,887 (1983), aff'd sub nom Kirk V. Mullen, 749 F2d 297 (6th Cir. 
1984); Alfred Tennyson Smurthwaite, M.D., 43 FR 11,873 (1978); NLRB v. 
International Association of Bridge, Structural and Ornamental 
Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1977).
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 824, and 28 CFR 0.100(b) and 0.104, hereby orders that DEA 
Certificate of Registration AY0018970, previously issued to Gerald 
Vangsgard, M.D., be, and it hereby is, revoked, and any pending 
application for renewal of such registration is hereby denied. This 
order is effective September 9, 1996.


[[Page 41429]]


    Dated: July 31, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-20159 Filed 8-7-96; 8:45 am]
BILLING CODE 4410-09-M