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Stuart A. Bergman, M.D., Revocation of Registration
FR Doc 05-11244 [Federal Register: June 7, 2005 (Volume 70, Number 108)]
[Notices] [Page 33193-33194] From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jn05-81]
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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