[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]
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