[Federal Register Volume 70, Number 108 (Tuesday, June 7, 2005)]
[Notices]
[Pages 33193-33194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11244]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 05-2]


Stuart A. Bergman, M.D., Revocation of Registration

    On September 16, 2004, the Deputy Assistant Administrator, Office 
of Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Stuart A. Bergman, M.D., (Respondent) of San 
Antonio, Texas, notifiying him of an opportunity to show cause as to 
why DEA should not revoke his DEA Certificate of Registration BB0187953 
as a practitioner pursuant to 21 U.S.C. 824(a)(3) and (4), and deny any 
pending applications for renewal or modification of that registration 
pursuant to 21 U.S.C. 823(f).
    As a basis for revocation, the Order to Show Cause alleged, in sum, 
that Respondent's Texas medical license had been temporarily suspended 
and he did not have authority to handle controlled substances in that 
state; that he issued prescriptions to a physician's assistant for non-
therapeutic resaons and failed to keep medical records on that 
individual; that he failed to respond to inquiries from pharmacies and 
the Texas State Board of Medical Examiners (Texas Board) about those 
prescriptions; that he left threatening voicemails for a staff attorney 
from the Texas Board; and that he purchased excessive quantities of 
controlled substances and told investigators he distributed them to 
family members without keeping medical charts on those individuals.
    Respondent, through counsel, timely requested a hearing in this 
matter and Presiding Administrative Law Judge Mary Ellen Bittner (Judge 
Bittner) issued an Order for Prehearing Statements. On November 17, 
2004, in lieu of filing a prehearing statement, the Government filed 
its Motion for Summary Disposition and Motion to Stay the Filing of 
Prehearing Statements (Motion). In its Motion the Government asserted 
the Texas Board had temporarily suspended Respondent's license to 
practice medicine, effective July 27, 2004, and that he was no longer 
authorized to handle controlled substances in Texas, where he is 
registered with DEA. As a result, the Government argued that further 
proceedings in this matter were not required. Attched to the 
Government's Motion was a copy of the Texas Board's Order Granting 
Temporary Suspension, temporarily suspending Respondent's medical 
license, effective July 27, 2004, until such time as that action was 
superseded by a subsequent order of the Board.
    On November 18, 2004, Judge Bittner issued a Memorandum to Counsel 
providing Respondent until December 6, 2004, to respond to the 
Government's Motion. Respondent filed an opposition and an amended 
opposition to the Government's Motion and on December 17, 2004, his 
counsel requested that Judge Bittner delay her ruling on the 
Government's Motion until after February 2, 2005, when a hearing was 
scheduled before the Texas Board, which could impact the suspension 
status of his license. Over the Government's objections, Judge Bittner 
granted Respondent a delay until March 1, 2005, in order to file 
documentation showing he was then-authorized to handle controlled 
substances in Texas.
    On March 1, 2005, Respondent filed an Advisory Memorandum with the 
Administrative Law Judge. In that document he did not claim his Texas 
medical license had been reinstated. However he asserted that during 
the February 2nd hearing, the Texas Board had offered to return his 
license, subject to certain conditions. However, Respondent claimed 
that when he received the draft Agreed Order, he would not sign it, as 
he felt it contained findings and conditions to which he had not 
agreed. Because he did not sign the Agreed Order, the matter would be 
proceeding to a formal disciplinary hearing and Respondent asked Judge 
Bittner to ``temporarily suspend'' his DEA registration until the Texas 
Board had rendered its final decision.
    On March 8, 2005, Judge Bittner issued her Opinion and Recommended 
Decision of the Administrative Law Judge (Opinion and Recommended 
Decision). As part of her recommended ruling, Judge Bittner denied 
Respondent's request to temporarily suspend his registration and 
granted the Government's Motion for Summary Disposition, finding 
Respondent lacked authorization to handle controlled substances in 
Texas, the state in which he is registered with DEA and recommending 
that Respondent's DEA Certificate of Registration be revoked and any 
pending applications denied.
    No exceptions were filed by either party to Judge Bittner's Opinion 
and Recommended Decision and on April 14, 2005, the record of these 
proceedings was transmitted to the Office of the DEA Deputy 
Administrator.
    The Deputy Administrator has considered the record in its entirety 
and pursuant to 21 CFR 1316.67, hereby issues her final order based 
upon findings of fact and conclusions of law as hereinafter set forth. 
The Deputy Administrator adopts, in full, the Opinion and Recommended 
Decision of the Administrative Law Judge.
    The Deputy Administrator finds that Respondent holds DEA 
Certificate of Registration BB0187953 as a practitioner. The Deputy 
Administrator further finds that effective July 27, 2004, Respondent's 
license to practice medicine in Texas was temporarily suspended after 
the Texas Board concluded ``Respondent's continuation in the practice 
of medicine would constitute a continuing threat to the public 
welfare.'' That action was based primarily upon facts similar to those 
alleged in DEA's Order to Show Cause and there is no evidence that the 
temporary suspension has been set aside, stayed or modified.
    The Deputy Administrator therefore finds Respondent is currently 
not licensed to practice medicine in Texas and lacks authorization 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 Stephen J. Graham, M.D., 69 FR 11,661 (2004), Dominick A. Ricci, 
M.D., 58 FR 51,104 (1993); Bobby Watts, M.D., 53 FR 11,919 (1988). 
Denial or revocation is also appropriate when a state license has been 
suspended, but with the possibiity of future reinstatement. See 
Paramabaloth Edwin, M.D., 69 FR 58,540 (2004); Alton E. Ingram, Jr., 
M.D., 69 FR 22,562 (2004); Anne Lazar Thorn, M.D., 62 FR 847 (1997).
    Here, it is clear Respondent is not currently licensed to handle 
controlled substances in Texas, the jurisdiction in which he is 
registered with DEA. Therefore, he is not entitled to registration in 
that state.
    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 BB0187953, issued to Stuart A. Bergman, 
M.D., be, and it hereby is, revoked. The Deputy

[[Page 33194]]

Administrator further orders that any pending applications for renewal 
or modification of such registration be, and they hereby are, denied. 
This order is effective July 7, 2005.

    Dated: May 25, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05-11244 Filed 6-6-05; 8:45 am]
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