[Federal Register Volume 70, Number 49 (Tuesday, March 15, 2005)]
[Notices]
[Pages 12734-12736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-5072]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


James S. Bischoff, M.D.; Revocation of Registration

    On June 28, 2004, the Deputy Administrator, Drug Enforcement 
Administration (DEA), issued an Order to Show Cause/Immediate 
Suspension of Registration to James S. Bischoff, M.D. (Dr. Bischoff) 
who was notified of an opportunity to show cause as to why DEA should 
not revoke his DEA Certificate of Registration BB0377247 under 21 
U.S.C. 824(a)(4) and deny any pending applications for renewal or 
modification of that registration under 21 U.S.C. 823(f). Dr. Bischoff 
was further notified that his registration was being immediately 
suspended under 21 U.S.C. 824(d) as an imminent danger to the public 
health and safety.
    The Order to Show Cause alleged in relevant part, that Dr. Bischoff 
diverted controlled substances through larceny and fraudulent 
prescriptions, failed to maintain required records, could not account 
for 32,000 dosage units of controlled substances and dispensed 
controlled substances to individuals without a bona fide doctor-patient 
relationship or legitimate medical purpose. The Order to Show Cause 
also notified Dr. Bischoff that should no request for a hearing be 
filed within 30 days, his hearing right would be deemed waived.
    On July 14, 2004, a DEA investigator personally served the Order to 
Show Cause/Immediate Suspension of Registration on Dr. Bischoff at the 
offices of the Ennis, Montana Police Department. Since that date, DEA 
has not received a request for a hearing or any other reply from Dr. 
Bischoff or anyone purporting to represent him in this matter.
    Therefore, the Deputy Administrator of DEA, finding that (1) thirty 
days having passed since personal delivery of the Order to Show Cause/
Immediate Suspension of Registration to the registrant and (2) no 
request for hearing having been received, concludes that Dr. Bischoff 
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.
    The Deputy Administrator finds that Dr. Bischoff is registered with 
DEA as a practitioner under Certificate of Registration BB0377247. Dr. 
Bischoff's registered location is also his residence, which is located 
in Ennis, Montana.
    In April 2003, Dr. Bischoff took ``Patient B,'' a 16-year-old high 
school student, to an out of town physician specialist for emergency 
treatment after the boy's had was cut in an accident. Dr. Bischoff was 
a friend of the boy's father and step-mother and would come to their 
home for social visits/dinners. They were both out of town at the time 
of the accident and Dr. Bischoff volunteered to take the boy to the 
specialist. While the specialist did not recommend any treatment with 
controlled substances, Dr. Bischoff wrote the boy a prescription for 
100 tablets of Oxycontin, a Schedule II narcotic controlled substance, 
which he personally picked up a local pharmacy. However, he delivered 
only 20 tablets to the boy, unlawfully diverting the

[[Page 12735]]

remaining 80 tables to his own use or that of someone else.
    Around the same time Dr. Bischoff wrote a second prescription in 
the name of Patient B, for 120 tablets of the Schedule II controlled 
substance Adderall. He also picked that prescription up at a local 
pharmacy, supposedly on behalf of the boy, but never delivered it to 
the boy or his parents, diverting the controlled substance to his 
personal use or for that of another.
    In September 2003, Dr. Bischoff wrote the boy another prescription 
for 120 tablets of Adderall, which was picked up by the boy's sister. 
However, the father and step-mother were unaware Dr. Bischoff had 
prescribed the medication, which the boy began taking, thinking he was 
supposed to. When his step-mother discovered the bottle a couple of 
weeks later, she found out for the first time that Dr. Bischoff was 
prescribing Adderall to the boy. After checking with the regular family 
physician, she was advised the dosage instructions and strength of the 
medication were excessive. Fortunately, the boy only took 12 of the 
tablets and stopped using them because of their effect.
    She then checked with the pharmacy where the prescription was 
filled and discovered Dr. Bischoff had issued multiple fraudulent 
prescriptions for controlled substances in the names of family members, 
which he personally picked up, telling pharmacists he was a close 
friend and the purported patients were too busy to get to the pharmacy. 
She also discovered Dr. Bischoff had falsely told the pharmacy her 
stepson, then 16 years old, was 18, thus avoiding a requirement for a 
parent to sign when prescriptions were picked up.
    Investigators subsequently determined Dr. Bischoff had written and 
filled seven prescriptions for controlled substances in the name of 
Patient B, along with multiple prescriptions in the names of other 
family members who were not his patients, all without their knowledge.
    During the period January 2001 through January 2003, Dr. Bischoff 
ordered approximately 46,000 doses of Schedule III and IV controlled 
substances from a supplier, including various anti-depressants, anti-
anxiety, sleep medications, amphetamines and narcotics. After Dr. 
Bischoff was served with a Notice of Inspection at his registered 
premises, he declined to permit an inspection or provide investigators 
with any of the records he was required to keep.
    On March 10, 2004, Dr. Bischoff was served with an Administrative 
Inspection Warrant. Controlled substances were found in the basement of 
his home/registered location, but he had very few actual patient 
records and no records of receipt, inventory, dispensation or 
accountability for controlled substances, violating 21 U.S.C. 827(a) 
and 842(a)(5). Dr. Bischoff was unable to account for 32,000 dosage 
units of controlled substances and refused to provide any records or 
otherwise account for their distribution or whereabouts.
    Additional investigation determined Dr. Bischoff had written 
fraudulent prescriptions for controlled substances to several other 
area pharmacies during 2003. Interviews with professionals at some of 
his previous clinic and hospital affiliations also indicated he was 
known to be involved in inappropriate dispensation and prescribing of 
controlled substances.
    On February 29, 2004, Dr. Bischoff gave a Schedule II controlled 
substance to a woman he was having dinner with. She was on probation at 
the time for a controlled substance offense. This distribution was done 
without a legitimate medical purpose and was outside the usual course 
of professional practice.
    Under Federal and Montana law, for a doctor to be acting in the 
usual course of professional practice, there must be a bona fide 
doctor/patient relationship. Investigative review of Dr. Bischoff's 
computer records indicated he was not maintaining patient records, yet 
was prescribing controlled substances for individuals, both inside and 
outside Montana. He prescribed drugs directly to individuals without 
the benefit of examination or clinical determination of a valid medical 
purpose and in many cases, there was no evidence Dr. Bischoff had 
established any actual doctor-patient relationship with these 
individuals. These controlled substances were dispensed either directly 
or by prescription, in violation of 21 CFR 1306.04.
    Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy 
Administrator may revoke a DEA Certificate of Registration and deny any 
pending applications for renewal of such registration, if she 
determines that the continued registration would be inconsistent with 
the public interest. Section 823(f) requires that the following factors 
be considered in determining the public interest:
    (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 laws 
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 or 
safety.
    These factors are considered in the disjunctive; the Deputy 
Administrator may rely on any one or a combination of factors and may 
give each factor the weight she deems appropriate in determining 
whether a registration should be revoked or an application for 
registration denied. See Henry J. Schwartz, Jr., M.D., 54 FR 16,422 
(1989).
    As to factor one, the recommendation of the appropriate state 
licensing board or professional disciplinary authority, there is no 
evidence in the investigative file that the State of Montana has yet 
taken adverse action against Respondent's medical license. However, 
``inasmuch as State licensure is a necessary but not sufficient 
condition for a DEA registration * * * this factor is not 
dispositive.'' See Edson W. Redard, M.D., 65 FR 30,616, 30,619 (2000).
    With regard to factors two and four, Respondent's experience in 
handling controlled substances and his compliance with applicable 
controlled substance laws, the investigative file contains ample 
evidence Dr. Bischoff unlawfully distributed, prescribed and diverted 
controlled substances over an extensive period. He grossly failed to 
comply with accountability record keeping requirements or maintain 
minimally acceptable patient files documenting medical necessity for 
controlled substance prescriptions. He could not account for 32,000 
dosage units of controlled substances delivered to his residence/office 
and wrote fraudulent prescriptions for controlled substances for non-
patients, which he personally picked up and never delivered to their 
purported recipients. He also prescribed controlled substances to 
individuals without bona fide doctor-patient relationships and 
dispensed medically unnecessary or inappropriate drugs to a minor 
without his parents' knowledge.
    While the evidence does not reveal whether Dr. Bischoff diverted 
controlled substances for personal use or for others, it is clear he 
failed abysmally to meet the rudimentary responsibilities of a 
physician and registrant. Thus, factors two and four weigh in favor of 
a finding that continued registration would be inconsistent with the 
public interest.
    Factor three, the applicant's conviction record under Federal or 
State

[[Page 12736]]

laws relating to the manufacture, distribution, or dispensing of 
controlled substances, is not relevant for consideration, as there is 
no evidence Dr. Bischoff has yet been convicted of any crime related to 
controlled substances. However, it is noted the investigation has been 
provided to local authorities for possible initiation of criminal 
charges.
    With respect to factor five, other conduct that many threaten the 
public health and safety, Respondent's actions discussed above are also 
relevant under this factor. The Deputy Administrator is particularly 
troubled by Dr. Bischoff's abuse of the trust placed in him as a family 
friend and physician, both by the minor and his parents and by Dr. 
Bischoff's calculated efforts to obtain controlled substances through 
fraud and misrepresentation.
    In sum, Dr. Bischoff's cavalier disregard for the law and 
regulations governing controlled substances and the abandonment of his 
responsibilities as a physician and registrant cannot be tolerated. 
They weigh heavily in favor of a finding that his continued 
registration would not be in the public interest.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in her by 21 U.S.C. 
823 and 28 CFR 0.100(b), and 0.104, hereby orders that DEA Certificate 
of Registration BB0377247, issued to James S. Bischoff, M.D., be, and 
it 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 April 14, 
2005.

    Dated: February 24, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05-5072 Filed 3-14-05; 8:45 am]
BILLING CODE 4410-09-M