[Federal Register Volume 69, Number 189 (Thursday, September 30, 2004)]
[Notices]
[Pages 58537-58539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21959]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Rodolfo D. Bernal, M.D.; Revocation of Registration

    On December 8, 2003, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Rodolfo D. Bernal, M.D. (Dr. Bernal), proposing 
to revoke

[[Page 58538]]

his DEA Certificate of Registration, AB5067916, as a practitioner 
pursuant to 21 U.S.C. 824(a)(3) based on lack of state authorization to 
handle controlled substances in Illinois. The Order to Show Cause also 
alleged that Dr. Bernal's continued registration would be inconsistent 
with the public interest under 21 U.S.C. 824(a)(4), and sought to deny 
any pending applications for renewal or modification of registration 
under 21 U.S.C. 823(f). The Order to Show Cause alleged in relevant 
part, the following:
    1. Effective April 17, 2003, the Illinois Department of 
Professional Regulation (IDPR) signed an order and placed Dr. Bernal's 
license as a physician and surgeon, as well as his controlled substance 
license, in a summary suspension Status. On October 21, 2003, the 
summary suspension became a suspension.
    2. The suspension was based upon the following set of 
circumstanced:
    (i) Dr. Bernal ordered large quantities of controlled substances 
and failed to keep a proper log and inventory of the controlled 
substances;
    (ii) Dr. Bernal purchased controlled substances for his personal 
use; and,
    (iii) Dr. Bernal ingested the controlled substances during office 
hours while practicing medicine at his office.
    The above actions were also grounds for suspension of Dr. Bernal's 
Certificate of Registration pursuant to 225 Illinois Compiled Statutes 
(2000) 60/22(a)(7), (17) and (33).
    3. During the years of 2000 through March of 2003, Dr. Bernal 
ordered Lortab, a schedule III controlled substance, Xanax, a schedule 
IV controlled substance, as well as Ambien, also a schedule IV 
controlled substance. Dr. Bernal failed to keep a proper log and 
inventory of these controlled substances in violation of 21 U.S.C. 
827(a)(3) and 21 CFR 304.04. He also admitted to purchasing the above 
controlled substances at his residence, a non-registered location. The 
maintenance of controlled substances for his personal use and self-
administered these controlled substances for other than medically 
accepted therapeutic purposes.
    4. On April 10, 2003, DEA diversion investigators interviewed Dr. 
Bernal at his registered location in Chicago, Illinois. Dr. bernal was 
found to have been unusually slow in responding to questions asked of 
him and he appeared impaired. Dr. Bernal admitted to taking two Lortab 
tablets that same morning, during office hours while practicing 
medicine at his office. He also admitted to keeping controlled 
substances at his residence, a non-registered location. The maintenance 
of controlled substances in this fashion is a violation of 21 CFR 
1301.12.
    5. During the above interview, Dr. Bernal agreed to the immediate 
destruction of all controlled substances at his registered location, 
which was later carried out by the DEA investigators. The investigators 
provided Dr. Bernal with documentation of the destruction. Dr. Bernal 
also agreed to immediately make arrangements to enter a drug treatment 
program, however he failed to do so.
    6. As a result of the action taken by IDPR, Dr. Bernal is currently 
without authority to handle controlled substances in Illinois, the 
state in which he is registered with DEA.
    According to the investigative file, the Order to Show Cause was 
sent by certified mail to Dr. Bernal's registered location on December 
12, 2003, but the notice was later returned to DEA unclaimed. No other 
address was located for Dr. Bernal, however, there was an office 
telephone number located for him. On February 24, 2004, DEA personnel 
placed a call to Dr. Bernal's office number and obtained a facsimile 
number for him. On that same date, the Order to Show Cause was faxed to 
his office. Included in the investigative file is a facsimile 
confirmation document which shows that the Order to Show Cause was 
received at the number provided by Dr. Bernal's office. Despite 
attempts to reach him, DEA has not received a request for hearing or 
any other reply from Dr. Bernal or anyone purporting to represent him 
in his matter.
    Therefore, the Deputy Administrator of DEA, finding that (1) thirty 
days having passed since delivery of the Order to Show Cause to Dr. 
Bernal's address of record and his receipt of the same, and (2) no 
request for hearing having been received, concludes that Dr. Bernal is 
deemed to have waived his hearing right. See David W. Linder, 67 FR 
12579 (2002). After considering material from the investigative file in 
this matter, the Deputy Administrator now enters her final order 
without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
    Dr. Bernal is registered with DEA under certificate of Registration 
number AB5067916. That registration remains valid until July 31, 2004. 
According to the investigative file, on October 21, 2003, the Medical 
Disciplinary Board of IDPR issued an Order which suspended indefinitely 
Dr. Bernal's state certificate to practice as a physician and surgeon, 
as well as his certificate to issue controlled substances. The IDPR 
Order was based on findings that during the years 2000 through March of 
2003, Dr. Bernal ordered 12,100 dosage units of Lortab, a Schedule III 
controlled substance, as well as 2,700 dosage units of Xanax and 2,400 
dosage units of Ambien, both Schedule IV controlled substances. IDPR 
found that Dr. Bernal failed to keep a proper log and inventory of 
these controlled substances. IDPR also found that Dr. Bernal ingested 
controlled substances during office hours while practicing medicine in 
his office; self administered controlled substances for other than 
medically accepted therapeutic purposes; and, that his habitual and 
excessive use or abuse of controlled substances resulted in his 
inability to practice medicine with reasonable judgment, skill or 
safety.
    The investigative file contains no evidence that the suspensions of 
Dr. Bernal's Illinois medical and controlled substance licenses have 
been lifted. Therefore, the Deputy Administrator finds that Dr. Bernal 
is currently not authorized to handle controlled substances in that 
state.
    DEA does not have statutory authority under the controlled 
substances Act to issue or maintain a registration if the applicant or 
registrant is without state authority to handle controlled substances 
in the state in which he conducts business. See 21 U.S.C. 802(21), 
823(f) and 824(a)(3). This prerequisite has been consistently upheld. 
See Rory Patrick Doyle, M.D., 69 FR 11655 (2004); Dominick A. Ricci, 
M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 11919 (1988).
    Here, it is clear that Dr. Bernal's controlled substance authority 
in the state of Illinois has been suspended. As a result, he is 
currently not licensed under Illinois law to handle controlled 
substances and therefore, he is not entitled to a DEA registration in 
that state. As a result of a finding that Dr. Bernal lacks state 
authorization to handle controlled substances, the Deputy Administrator 
concludes that it is unnecessary to address further whether his DEA 
registration should be revoked based upon the public interest grounds 
asserted in the Order to Show Cause. See Fereida Walker-Graham, M.D., 
68 FR 24761 (2003); Nathaniel-Aikens-Afful, M.D., 62 FR 16871 (1997); 
Sam F. Moore, D.V.M., 58 FR 14428 (1993).
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in her by 21 U.S.C. 
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA 
Certificate of Registration, AB5067916, issued to Rodolfo D. Bernal, 
M.D., be, and it

[[Page 58539]]

hereby is, revoked. The Deputy Administrator further orders that any 
pending applications for renewal or modification of such registration 
be, and they hereby are, denied. This order is effective November 1, 
2004.

    Dated: September 8, 2004.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 04-21959 Filed 9-29-04; 8:45 am]
BILLING CODE 4410-09-M