[Federal Register Volume 64, Number 199 (Friday, October 15, 1999)]
[Notices]
[Pages 55965-55968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27003]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 98-14]


Bernard C. Musselman, M.D.; Revocation of Registration

    On February 10, 1998, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Bernard C. Musselman, M.D. of Ogdensburg, New 
York, notifying him of an opportunity to show cause as to why DEA 
should not revoke his DEA Certificate of Registration BM5006540, 
pursuant to 21 U.S.C. 824(a)(1), and deny any pending applications for 
renewal of such registration as a practitioner under 21 U.S.C. 823(f), 
on the grounds that his continued registration would be inconsistent 
with the public interest.
    Respondent, through counsel, requested a hearing on the issues 
raised by the Order to Show Cause, and the matter was docketed before 
Administrative Law Judge Mary Ellen Bittner. During prehearing 
procedures, the cited statutory authority for the proposed action was 
changed from 21 U.S.C. 824(a)(1) to 21 U.S.C. 824(a)(4). Following 
prehearing procedures, a hearing was held in Arlington, Virginia on 
December 9, 1998. At the hearing, both parties called witnesses to 
testify and introduced documentary evidence. After the hearing, both 
parties submitted proposed findings of fact, conclusions of law and 
argument.
    On June 16, 1999, Judge Bittner issued her Opinion and Recommended 
Ruling, Findings of Fact, Conclusions of Law and Decision, recommending 
that Respondent's DEA Certificate of Registration be revoked, and any 
pending applications for registration be denied. Neither party filed 
exceptions to Judge Bittner's opinion and recommended decision, and on 
July 19, 1999, Judge Bittner transmitted the record of these 
proceedings 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, except as specifically noted below, the 
Opinion and Recommended Ruling, findings of Fact, Conclusions of Law 
and Decision of the Administrative Law Judge. 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.
    The Deputy Administrator finds that Respondent entered the United 
States Navy in 1958 during his senior year in medical school, graduated 
from medical school in 1959, and then completed a one-year internship. 
After leaving the Navy in 1963, he practiced general medicine in 
Ogdensburg, New York for three years, and then completed a two-year 
residency in pediatrics at the Mayo Clinic. Thereafter, Respondent 
returned to Ogdensburg and practiced pediatric medicine until he 
retired in 1990. While in practice in Ogdensburg, Respondent maintained 
admitting privileges at a local hospital.
    Respondent was issued a provisional registration to handle 
controlled substances, AM3456680, effective May 1, 1971 through January 
31, 1972. It is undisputed that Respondent prescribed controlled 
substances throughout his medical career, but he was not registered 
with DEA or its predecessor agencies to handle controlled substances 
from February 1, 1972 until April 11, 1990. According to Respondent, it 
was his understanding that a physician only needed a Federal narcotics 
registration if he was dispensing controlled substances. Respondent 
testified that he never obtained a DEA registration because he only 
prescribed controlled substances in his pediatric practice, and did not 
dispense them. Respondent further testified that he never received a 
notice that he needed to renew his controlled substance registration. 
According to Respondent, he even consulted with an attorney who was 
also his Congressman who told Respondent that he only needed a Federal 
controlled substance registration if he was dispensing controlled 
substances. Yet it is also undisputed that during at least most of this 
period Respondent's prescription pads were preprinted with DEA 
registration number AM3456680.
    In 1987, the local hospital was conducting a review of the medical 
staff's credentials and discovered that it did not have a copy of 
Respondent's DEA Certificate of Registration on file. In October 1987, 
the hospital administrator wrote to Respondent requesting a copy of his 
DEA registration. Respondent replied that he did not need a DEA 
registration because he only prescribed controlled substances. The 
hospital staff verified with DEA that Respondent did not have a DEA 
registration, but through an oversight, no action was taken by the 
hospital at that time.
    In March 1990, the issue of Respondent's DEA registration was 
raised again at the hospital. Once again, the hospital staff verified 
with DEA that Respondent did not have a DEA Certificate of Registration 
and also that AM3456680 was a non-existent DEA number.
    At some point, the hospital administrator obtained a copy of a form 
memorandum that was sent to Respondent by the hospital's director of 
pharmacy in January 1989 or 1990 asking for Respondent's signature and 
DEA registration number. Respondent signed the memorandum and listed 
his DEA registration as AM3456680. Respondent testified that signing 
the form was ``an error because I didn't know what I was doing. That's 
my old BND (sic) number that had been on file there for years. I 
thought that was the number they wanted.''
    On March 26, 1990, the hospital administrator sent a memorandum to 
the hospital's director of pharmacy, with copies to various other 
hospital personnel including Respondent, advising that effective 
immediately, Respondent was not able to write any controlled substance 
prescriptions because he did not have a DEA registration. After 
learning of the memorandum, Respondent had a discussion with the 
hospital administrator. Respondent was told that he was not allowed to 
write orders for controlled substances, and that if he needed to order 
controlled substances

[[Page 55966]]

he would have to have a consulting physician write the order for him.
    Respondent contacted the local DEA office in early April 1990 to 
obtain an application for registration. he was issued DEA Certificate 
of Registration BM2219673 on April 11, 1990.
    On April 1 or 2, 1990, the hospital's medical director admitted a 
patient to the hospital who had had a seizure and gave her 
phenobarbital, a controlled substance. The medical director asked 
Respondent to take over the patient's care. According to Respondent he 
expressed concern over treating the patient since he could not write 
controlled substance orders. On the morning of April 2, 1990, 
Respondent met with the medical director, the floor nurse and the 
patient's mother to discus the patient's care. According to Respondent, 
the medical director agreed to countersign orders for phenobarbital for 
the patient. Respondent believed that this meant that the medical 
director would be taking responsibility for the order. Respondent 
introduced into evidence at the hearing an affidavit from the patient's 
mother who indicated that the medical director did agree to countersign 
orders for phenobarbital for her daughter. However, the hospital 
administrator testified that Respondent wrote the order for 
phenobarbital that morning and that it was the hospital administrator 
who asked the medical director to countersign the order.
    As a result of this order for phenobarbital, the hospital's 
executive committee summarily suspended Respondent's hospital 
privileges because he did not comply with the hospital's directive to 
not write orders for controlled substances. Respondent appealed the 
suspension to a fair hearing committee which met on May 12, 1990. At 
this hearing, the hospital administrator testified that on April 2, 
1990, he received a telephone call from the medical director advising 
that the pharmacist on duty had told the medical director that 
Respondent had written an order for phenobarbital for a patient. 
According to the hospital administrator, the medical director did not 
indicate that he had agreed with Respondent to countersign such an 
order.
    Respondent testified before the fair hearing committee regarding 
the meeting he had with the medical director and the patient's mother 
on April 2, 1990 and regarding the medical director's agreement to 
countersign any order for phenobarbital for the patient. Respondent 
further testified before the fair hearing committee that he was 
oblivious to the DEA number on his prescription pads and that ``the 
reason we hire a CEO of a hospital is to keep abreast of the changes of 
the rules and regulations of the health department. And when he 
discovered the rules have changed, he ought to tell me. And when he 
told me, I acted. * * *''
    The fair hearing committee was troubled that no DEA representative 
nor the hospital's medical director testified. The committee 
recommended that Respondent's privileges be reinstated once he submits 
a valid DEA Certificate of Registration to the hospital, he revises his 
prescription pads to include a valid DEA registration number, and he 
obtains continuing medical education credits on hospital credentialing 
and the prescribing of controlled substances.
    Notwithstanding the fair hearing committee's recommendation, the 
hospital's Board of Directors said that Respondent's privileges would 
not be reinstated at that time but that he could reapply the following 
spring. Respondent felt that he could not practice medicine without 
hospital privileges so he decided to retire.
    After being advised by a state investigator that Respondent had 
been issuing controlled substance prescriptions without a valid DEA 
registration, DEA investigators went to three local pharmacies on April 
26, 1990 and retrieved a total of 38 controlled substanced 
prescriptions that Respondent had issued between 1986 and March 1990 
with DEA number AM 3456680 on the prescriptions. No action was taken by 
DEA at that time.
    In March 1991, DEA learned that Respondent had retired from the 
practice of medicine. In August 1991, two DEA investigators went to see 
if Respondent would surrender his DEA registration since he was no 
longer practicing medicine. Respondent signed the voluntary surrender 
form, and checked the box on the form which stated that ``[i[n view of 
my desire to terminate handling of controlled substances listed in 
schedule(s) ____ (schedules 2, 2N, 3, 3N, 4, and 5 were handwritten); I 
hereby voluntary surrender my Drug Enforcement Administration 
Certificate of Registration. * * *'' According to both Respondent and 
the investigator who testified at the hearing, this was a cordial 
meeting.
    In March 1992, the New York Bureau of Professional Medical Conduct 
issued a statement of charges alleging 11 specifications of 
professional misconduct. Respondent. filed an application to surrender 
his license to practice medicine on grounds that he did not contest the 
specifications, but also stating that nothing in his application was to 
be construed as an admission of any act of misconduct. Respondent 
agreed not to apply for restoration of his medical license for at least 
one year. Respondent's application was granted effective March 25, 
1992. On June 14, 1996, Respondent's medical license was restored.
    On August 6, 1996, Respondent submitted a new application for DEA 
registration. On this application, Respondent answered ``No'' to 
question 4(c): ``Has the applicant ever surrendered or had a Federal 
controlled substance registration revoked, suspended, restricted, or 
denied?'' Respondent also answered ``No'' to question 4(d): ``Has the 
applicant ever had a State professional license or controlled substance 
registration revoked, suspended, denied, restricted or placed on 
probation?'' These questions are hereinafter referred to as the 
liability questions. On August 22, 1996, Respondent was issued DEA 
Certificate of registration BM5006540.

    When local DEA investigators learned of Respondent's registration, 
they requested that Respondent surrender the registration on the basis 
that he materially falsified his application by his answers to the 
liability questions. Respondent refused to surrender his registration 
because he did not believe that he materially falsified his 1996 
application since in his opinion, he did not surrender his previous 
registration in August 1991.
    When asked at the hearing whether he considered his actions in 
August 1991 a surrender of his previous DEA registration, Respondent 
stated that,

    No, I did not * * * You see, there's a matter of interpretation 
here. Some people might interest surrender as a gift, you know. The 
way I interpret surrender means that you're being forced to do it 
and there is a confrontation when you surrender a license or 
surrender anything. But if you just give somebody something without 
a confrontation, that's a gift. I interpreted surrender in the sense 
of, you know, this is a gift. They want to get it off the street. 
I'm doing them a favor, and that was my interpretation.

Further according to Respondent he did not consider signing the 
voluntary surrender form in 1991 a surrender because.

    [W]hen you surrender a license, usually you do it because stress 
is being put upon you. You're being threatened. Either you surrender 
your license or we're going to bring criminal charges against you, 
you see, and I asked these people, the DEA, ``Am I in any trouble 
with you,'' and they said, ``No, you're in no trouble.''

    Respondent also testified that he did not believe that he falsified 
his 1996 application for registration by answering ``No'' to question 
4(d) because he did not think that the question applied to him. He did 
not feel that his state license had been restricted. According

[[Page 55967]]

to Respondent, ``I had an agreement that I would voluntarily surrender 
my license for one year.''
    On October 1, 1997, the New York Bureau of Professional Misconduct 
issued a statement of charges alleging that Respondent practiced the 
profession of medicine fraudulently and filed a false report by his 
response to question 4(c) on his 1996 DEA application, and by answering 
``No'' to the following question on his state application executed in 
October 1990:

    Since you last registered has any hospital or licensed facility 
restricted or terminated your professional training, employment, 
privileges or have you ever voluntarily or involuntarily resigned or 
withdrawn from such association to avoid imposition of such action 
due to professional misconduct, unprofessional conduct, incompetence 
or negligence?

    On March 2, 1998, a Hearing Committee of the Medical Board issued a 
Determination and Order finding that the specifications in the state of 
charges were not sustained, dismissing the charges in the statement of 
charges, and directing that no action be taken against Respondent's 
license to practice medicine in New York. The Committee found that the 
factual allegations as to how Respondent answered the questions at 
issue and that he had been suspended from the local hospital were 
proven, but that it was not proven that he surrendered his DEA 
registration in August 1991. The Committee also found that it was 
reasonable for Respondent to answer the questions as he did because, 
with respect to his hospital privileges, he reasonably interpreted that 
his suspension was not based on any of the reasons stated in the 
question, and he likewise did not consider that he surrendered his DEA 
registration in 1991.
    As of the date of the hearing, Respondent was ``pretty much 
retired'' but every winter he goes to the Dominican Republic for a 
month to work in a charity clinic. According to Respondent he wants his 
DEA registration because he wants all of his credentials to be in order 
when he works in the Dominican Republic. However, no evidence was 
presented that a DEA registration is necessary for Respondent's charity 
work.
    When asked at the hearing whether it is incumbent upon an 
individual who handles controlled substances to keep informed of 
applicable laws and regulations, Respondent replied.

    No. That's why you hire hospital administrators. I think it's 
incumbent upon DEA to let doctors know when the law changes and it's 
incumbent upon hospital administrators to bring doctors up to date.

    When asked if he had taken any courses on the proper handling of 
controlled substances, Respondent testified,

    Doctors don't do that. There are no courses, you know. It's so 
little to learn. All you need to know is you need a DEA number and 
the law changes, and that's up to DEA and that's up to a hospital 
administrator to let you know. You don't have to go take a course 
for that.

    The Deputy Administrator may revoke a DEA Certificate of 
Registration and deny and pending application pursuant to 21 U.S.C. 
823(f) and 824(a)(4), if he determines that the continuance or issuance 
of such registration would be inconsistent with the public interest. In 
determining the public interest, the Deputy Administrator is to 
consider the following factors set forth in 21 U.S.C. 823(f).
    (1) The recommendation of the appropriate State licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing, or conducting 
research with respect to controlled substances.
    (3) The applicant's conviction record under Federal or State law 
relating to the manufacture, distribution or dispensing of controlled 
substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.

These factors are to be considered in the disjunctive; the Deputy 
Administrator may rely on any one or a combination of factors and may 
give each factor the weight he deems appropriate in determining whether 
a registration should be revoked or an application for registration 
denied. See Henry J. Schwarz, Jr., M.D. 54 FR 16,422 (1989).
    Regarding factor one, it is undisputed that Respondent is 
authorized by the State of New York to practice medicine and handle 
controlled substances. But, as Judge Bittner noted, ``inasmuch as State 
licensure is a necessary but not sufficient condition for a DEA 
registration, * * * this factor is not determinative.''
    As to factor two, there is no allegation or evidence that 
Respondent handled controlled substances for other than legitimate 
medical purposes. However, it is undisputed that Respondent handled 
controlled substances without being registered with DEA to do so. But 
like Judge Bittner, the Deputy Administrator finds that this conduct is 
more appropriately considered under factor four.
    Regarding factor three, it is undisputed that Respondent has not 
been convicted of violating any laws relating to the manufacture, 
distribution, or dispensing of controlled substances.
    As to factor four, Respondent prescribed controlled substances and 
ordered them for hospital inpatients without being registered with DEA 
to handle controlled substances from February 1, 1972 until April 11, 
1990, which is prohibited by 21 U.S.C. 841(a)(1) and 843(a)(2). 
Respondent knew or should have known that a DEA registration is 
necessary to handle controlled substances and that he did not possess a 
valid DEA registration. Particularly troubling to the Deputy 
Administrator is that Respondent supplied a DEA registration number to 
the hospital pharmacy when asked for one. It is inconceivable to the 
Deputy Administrator that Respondent could fill out the form to the 
hospital's director of pharmacy asking for Respondent's DEA 
registration and not wonder why the hospital needed this number, if as 
Respondent through a DEA registration is only needed if a physician 
dispenses controlled substances. This conduct at the very last 
demonstrates a careless disregard for the law relating to controlled 
substances.
    However unlike Judge Bittner, the Deputy Administrator does not 
find that Respondent inappropriately ordered that phenobarbital be 
given to a patient on April 2, 1990. There is some dispute as to what 
was agreed to in advance by the medical director and Respondent 
regarding the providing of phenobarbital for the patient. Given that 
the medical director did not testify before Judge Bittner or at the 
hospital's fair hearing committee, the Deputy Administrator is unable 
to determine whether Respondent did anything improper.
    As to factor five, the Government contends that Respondent 
falsified his 1996 DEA application for registration and that this 
conduct should be considered under this factor. In August 1991, 
Respondent signed a form that was clearly entitled ``Voluntary 
Surrender of Controlled Substances Privileges.'' He checked a box on 
the form that clearly stated that he was voluntarily surrendering his 
DEA Certificate of Registration in view of his desire to terminate his 
handling of controlled substances. Respondent's failure to consider 
this a surrender of his previous DEA registration and to note it as 
such on his 1996 application for registration is at the very least 
careless.
    Judge Bittner concluded that Respondent's continued registration 
would be inconsistent with the public interest and recommended that his

[[Page 55968]]

registration be revoked. The Deputy Administrator agrees. Respondent 
handled controlled substances for over 18 years without a DEA 
registration. He listed a non-existent DEA number on his prescription 
pads and provided the number to the hospital pharmacy, but at the same 
time contended that he did not have a DEA number and did not need one 
because he did not dispense controlled substances. Further, he was at 
the very least careless in answering the liability questions on his 
application for registration. But even more troubling is Respondent's 
failure to take responsibility for his actions. He blames others for 
failing to keep him up-to-date on the requirements for handling 
controlled substances. As Judge Bittner stated, ``[i]n these 
circumstances, the inference is warranted * * * that Respondent is 
unwilling or unable to accept the responsibilities inherent in a DEA 
registration.''
    According, 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 BM5006540, issued to Bernard C. Musselman, 
M.D., be, and it hereby is, revoked. The Deputy Administrator further 
orders that any pending applications for registration, be, and they 
hereby are, denied. This order is effective November 15, 1999.

    Dated: October 7, 1999.
Donnie R. Marshall,
Deputy Administrator,
[FR Doc. 99-27003 Filed 10-14-99; 8:45 am]
BILLING CODE 4410-09-M