[Federal Register Volume 84, Number 159 (Friday, August 16, 2019)]
[Notices]
[Pages 42014-42016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17622]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Brent E. Silvers, M.D.; Decision and Order

    On May 9, 2019, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause to Brent E. Silvers, M.D. 
(hereinafter, Registrant) of Irvine, California. Order to Show Cause 
(hereinafter, OSC), at 1. The OSC proposed the revocation of 
Registrant's Certificate of Registration No. BS2811392 on the ground 
that Registrant ``is without authority to handle controlled substances 
in the State of California, the state in which [Registrant is] 
registered with the DEA.'' Id. at 1-2 (citing 21 U.S.C. 824(a)(3)).
    Specifically, the OSC alleged that on January 11, 2019, the Medical 
Board of California (hereinafter, Board) issued a Decision revoking 
Registrant's California medical license, effective February 8, 2019. 
Id.
    The OSC notified Registrant of the right to request a hearing on 
the allegations or to submit a written statement while waiving the 
right to a hearing, the procedures for electing each option, and the 
consequences for failing to elect either option. Id., at 2 (citing 21 
CFR 1301.43). The OSC also notified Registrant of the opportunity to 
submit a corrective action plan. Id. at 2-3 (citing 21 U.S.C. 
824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated June 19, 2019, a Diversion Investigator 
(hereinafter, DI) assigned to the Riverside District office, Los 
Angeles Field Division, stated that he and another DI traveled to 
Registrant's registered address located at 2 Hughes, Suite 150, Irvine, 
California 92618 on May 10, 2019. Request for Final Agency Action dated 
July 10, 2019 (hereinafter, RFAA), Government Exhibit (hereinafter, GX) 
GX 4 (DI's Declaration). The DI stated that upon arrival at the 
registered address, ``Registrant identified himself . . . as Dr. 
Silvers'' to the DIs. Id. The DI then ``personally served the [OSC] on 
Registrant by handing it to him.''. Registrant signed a DEA Form 12, 
Receipt for Cash or Other Items, to acknowledge his receipt of the Show 
Cause Order. Id.; see also GX 4B.
    In its RFAA, the Government represents that ``at least [thirty] 
days have passed since the time the [OSC] was served on Registrant'' 
and he ``has not requested a hearing and has not otherwise corresponded 
or communicated with DEA.'' RFAA, at 1. The Government requests that 
``Registrant's DEA Registration [ ] be revoked based on 21 U.S.C. 
824(a)(3) because Registrant has no valid medical license in California 
. . . [and] is without state authority to handle controlled substances 
in California.'' Id. at 2-3.
    Based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government accomplished service of the OSC on Registrant on May 10, 
2019. I also find that more than thirty days have now passed since the 
Government accomplished service of the OSC. Further, based on the 
Government's written representations, I find that neither Registrant, 
nor anyone purporting to represent the Registrant, requested a hearing, 
submitted a written statement while waiving Registrant's

[[Page 42015]]

right to a hearing, or submitted a corrective action plan. Accordingly, 
I find that Registrant has waived the right to a hearing and the right 
to submit a written statement and corrective action plan. 21 CFR 
1301.43(d) and 21 U.S.C. 824(c)(2)(C). I, therefore, issue this 
Decision and Order based on the record submitted by the Government, 
which constitutes the entire record before me. 21 CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
BS2811392 at the registered address of 2 Hughes, Suite 150, Irvine, 
California 92618. GX 1 (Certification of Registration Status). Pursuant 
to this registration, Registrant is authorized to dispense controlled 
substances in schedules II through V as a practitioner. Id. 
Registrant's registration expires on February 28, 2021, and is ``in an 
active pending status.'' Id.

The Status of Registrant's State License

    On January 11, 2019, the Medical Board of California (hereinafter, 
Board) issued a Decision and Order (hereinafter, Order) revoking 
Registrant's medical license, effective February 8, 2019. GX 3 (Order). 
The Board's Order adopted the Proposed Decision of a state 
Administrative Law Judge (ALJ) following a lengthy hearing resulting 
from Accusations brought by the Board against Registrant. GX 3 (ALJ 
Proposed Decision), at 1. According to the ALJ's Proposed Decision, the 
Board initiated an investigation into Registrant's medical practice 
after receiving anonymous complaints in February and March 2016 and a 
consumer complaint in July 2017, which was accompanied by a copy of a 
Complaint for Medical Negligence filed in the Superior Court of 
California. Id. at 2. On September 26, 2017, the Board issued an 
``Interim Suspension Order No Practice'' against Registrant, which was 
upheld on October 27, 2017. Id. On April 26, 2018, the Board filed its 
First Amended Accusation against Registrant and it filed its Second 
Amended Accusation on November 16, 2018. Id. The ALJ affirmed the 
Board's Second Amended Accusation on December 28, 2018, and issued the 
Proposed Decision revoking Registrant's California Physician's and 
Surgeon's Certificate. Id. at 17.
    The ALJ found that Registrant ``has complied with the terms of the 
Interim Suspension Order and he has tested negative for alcohol in 
random testing.'' Id. at 2. However, the ALJ ultimately found that 
``clear and convincing evidence established that [Registrant] has a 
mild cognitive disorder and severe alcohol use disorder,'' which ``is 
adversely affecting [his] memory and judgment'' and that his ``ability 
to practice medicine safely is impaired because a mental or physical 
illness [is] affecting his competency.'' Id. at 13. He further found 
that ``clear and convincing evidence'' established that Registrant 
engaged in ``unprofessional conduct based on gross negligence or 
repeated acts of negligence'' and ``unprofessional conduct by engaging 
in acts of sexual misconduct.'' Id. at 14, 15. He concluded that 
``[p]ublic protection is best served by revocation of [Registrant's] 
license.'' Id. at 17. The Board adopted the ALJ's Proposed Decision and 
ordered that revocation become effective on February 8, 2019. GX 3 
(Order).
    According to the website of the California Department of Consumer 
Affairs, of which I take official notice, Registrant's license is still 
revoked.\1\ https://search.dca.ca.gov/details/8002/A/49201/cdbaeea6d15fdfd3a0d8a46e76dde3f9 (last visited July 19, 2019).
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    \1\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Registrant may dispute my finding by filing 
a properly supported motion for reconsideration within 15 calendar 
days of the date of this Order. Any such motion shall be filed with 
the Office of the Administrator and a copy shall be served on the 
Government. In the event Registrant files a motion, the Government 
shall have 15 calendar days to file a response.
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    Accordingly, I find that Registrant currently is not licensed to 
engage in the practice of medicine in California, the State in which he 
is registered with the DEA.

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of the 
Controlled Substances Act (hereinafter, CSA), ``upon a finding that the 
registrant . . . has had his State license or registration suspended . 
. . [or] revoked . . . by competent State authority and is no longer 
authorized by State law to engage in the . . . dispensing of controlled 
substances.'' With respect to a practitioner, the DEA has also long 
held that the possession of authority to dispense controlled substances 
under the laws of the State in which a practitioner engages in 
professional practice is a fundamental condition for obtaining and 
maintaining a practitioner's registration. See, e.g., James L. Hooper, 
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 
(4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 
(1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined the term ``practitioner'' to mean ``a physician 
. . . or other person licensed, registered, or otherwise permitted, by 
. . . the jurisdiction in which he practices . . ., to distribute, 
dispense, . . . [or] administer . . . a controlled substance in the 
course of professional practice.'' 21 U.S.C. 802(21). Second, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed that ``[t]he Attorney General shall register 
practitioners . . . if the applicant is authorized to dispense . . . 
controlled substances under the laws of the State in which he 
practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess State authority in order to be deemed a 
practitioner under the CSA, the DEA has held repeatedly that revocation 
of a practitioner's registration is the appropriate sanction whenever 
he is no longer authorized to dispense controlled substances under the 
laws of the State in which he practices. See, e.g., Hooper, supra, 76 
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby 
Watts, M.D., 53 FR 11,919, 11,920 (1988); Blanton, supra, 43 FR at 
27,617.
    According to the California Uniform Controlled Substances Act, ``No 
person other than a physician . . . shall write or issue a 
prescription.'' Cal. Health & Safety Code Sec.  11150 (West, Westlaw 
current with urgency legislation through Ch. 5 of 2019 Reg. Sess.). 
Further, ``physician,'' as defined by California statute, is a person 
who is ``licensed to practice'' in California. Cal. Health & Safety 
Code Sec.  11024 (West, Westlaw current with urgency legislation 
through Ch. 5 of 2019 Reg. Sess.).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in California. As 
already discussed, a physician must be a licensed practitioner to 
dispense a controlled substance in California. Thus, because Registrant 
lacks authority to practice medicine in California and, therefore, is 
not authorized to handle controlled substances in California, I will 
order

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that Registrant's DEA registration be revoked.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. 
BS2811392 issued to Brent E. Silvers, M.D. Further, I hereby deny any 
pending application of Brent E. Silvers, M.D. to renew or modify this 
registration, as well as any pending application of Brent E. Silvers, 
M.D. for registration in California. This Order is effective September 
16, 2019.

    Dated: August 2, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-17622 Filed 8-15-19; 8:45 am]
BILLING CODE 4410-09-P