05-11244. 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temporarily suspending Respondent's medical license, effective July 27, 2004, until such time as that action was superseded by a subsequent order of the Board.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 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.