Federal Register / Vol. 89, No. 198 / Friday, October 11, 2024 / Notices 82635 

1Based on the Government’s submissions in its 

RFAA dated October 16, 2023, the Agency finds 

that service of the OSC on Registrant was adequate. 

Specifically, the Declaration from a DEA Diversion 

Investigator (DI) indicates that on July 12, 2023, the 

DI personally left a copy of the OSC along with her 

business card at Registrant’s registered address. 

RFAAX 1, at 1–2. The DI also stated in her 

Declaration that on August 22, 2023, Registrant’s 

attorney contacted her and noted that Registrant 

received the OSC and business card. Id. at 2. 

Additionally, the Declaration from a DEA Group 

Supervisor (GS) indicates that on July 14, 2023, the 

GS sent a copy of the OSC via certified mail to 

Registrant’s registered address and emailed a copy 

of the OSC to Registrant’s registered email address. 

RFAAX 2, at 2; see also id., at Attachment A. 

2The Agency need not adjudicate the criminal 

violations alleged in the instant OSC. Ruan v. 

United States, 142 S. Ct. 2,370 (2022) (decided in 

the context of criminal proceedings). 

3Registrant also failed to address that: (1) UC1 

received hydrocodone/acetaminophen from a 

different physician between the January 12, 2021, 

and February 18, 2021 visits; (2) UC1 received 

alprazolam, hydrocodone/acetaminophen, and 

mixed amphetamine salts from different physicians 

between the February 18, 2021, and April 2, 2021 

visits; and (3) UC1 received alprazolam, 

hydrocodone/acetaminophen, and mixed 

amphetamine salts from different physicians 

between the April 2, 2021, and June 24, 2021 visits. 

Id. at 4–5. 

The last notification was filed with 

the Department on June 3, 2024. A 

notice was published in the Federal 

Register pursuant to section 6(b) of the 

Act on June 24, 2024 (89 FR 52509). 

Suzanne Morris, 

Deputy Director Civil Enforcement 

Operations, Antitrust Division. 

[FR Doc. 2024–23620 Filed 10–10–24; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Michael Berman, D.O.; Decision and 

Order 

On July 6, 2023, the Drug 

Enforcement Administration (DEA or 

Government) issued an Order to Show 

Cause (OSC) to Michael Berman, D.O., 

of Rancho Mirage, California 

(Registrant). Request for Final Agency 

Action (RFAA), Exhibit (RFAAX) 1, 

Attachment A, at 1, 10. The OSC 

proposed the revocation of Registrant’s 

DEA Certificate of Registration 

(registration) No. BB3337905, alleging 

that Registrant has committed such acts 

as would render his registration 

inconsistent with the public interest. Id. 

at 2–3 (citing 21 U.S.C. 823(g)(1), 

824(a)(4)). 

The OSC notified Registrant of his 

right to file with DEA a written request 

for hearing, and that if he failed to file 

such a request, he would be deemed to 

have waived his right to a hearing and 

be in default. Id. at 8–9 (citing 21 CFR 

1301.43). Here, Registrant did not 

request a hearing. RFAA, at 2.1 ‘‘A 

default, unless excused, shall be 

deemed to constitute a waiver of the 

registrant’s/applicant’s right to a hearing 

and an admission of the factual 

allegations of the [OSC].’’ 21 CFR 

1301.43(e). 

Further, ‘‘[i]n the event that a 

registrant . . . is deemed to be in 

default . . . DEA may then file a request 

for final agency action with the 

Administrator, along with a record to 

support its request. In such 

circumstances, the Administrator may 

enter a default final order pursuant to 

[21 CFR] § 1316.67.’’ Id. § 1301.43(f)(1). 

Here, the Government has requested 

final agency action based on Registrant’s 

default pursuant to 21 CFR 1301.43(c), 

(f), 1301.46. RFAA, at 1; see also 21 CFR 

1316.67. 

I. Findings of Fact 

The Agency finds that, in light of 

Registrant’s default, the factual 

allegations in the OSC are admitted.2

Registrant is deemed to have admitted, 

and the Agency finds, that from at least 

January 12, 2021, through at least 

August 26, 2021, Registrant issued 

numerous controlled substance 

prescriptions to undercover DEA Task 

Force Officers without first conducting 

an appropriate evaluation, performing a 

physical examination, taking a patient 

history, establishing a proper medical 

justification, or obtaining informed 

consent. RFAAX 1, Attachment A, at 2– 

8. Registrant further admits, and the 

Agency finds, that after prescribing, 

Registrant failed to properly monitor the 

undercovers by appropriately 

addressing red flags of abuse and 

diversion. Id. 

A. Prescribing to UC1 

Between January 12, 2021, and 

August 26, 2021, Registrant issued 

prescriptions for mixed amphetamine 

salts 30 mg, a Schedule II stimulant, and 

hydrocodone/acetaminophen 10/325 

mg, a Schedule II opioid, to an 

undercover DEA Task Force Officer 

(UC1). RFAAX 1, Attachment A, at 3. 

On January 12, 2021, February 18, 

2021, April 2, 2021, and June 24, 2021, 

Registrant prescribed UC1 mixed 

amphetamine salts 30 mg to treat 

Attention Deficit Hyperactivity Disorder 

(ADHD), but repeatedly did so without 

conducting an appropriate evaluation. 

Id. at 3–5. Specifically, Registrant: (1) 

failed, during the initial visit, to address 

UC1’s ADHD questionnaire, despite 

UC1 reporting minimal symptoms of 

ADHD; (2) repeatedly failed to perform 

adequate physical examinations of UC1; 

and (3) repeatedly failed to take a 

patient history. Id. Accordingly, 

Registrant repeatedly failed to establish 

a proper medical justification for 

prescribing mixed amphetamine salts to 

UC1. Id. Registrant also repeatedly 

failed to obtain UC1’s informed consent 

by informing UC1 of the benefits, risks, 

and reasons for prescribing mixed 

amphetamine salts. Id. 

On July 23, 2021, and August 26, 

2021, Registrant prescribed UC1 mixed 

amphetamine salts 30 mg and 

hydrocodone/acetaminophen 10/325 

mg, but in both instances did so without 

conducting an appropriate evaluation. 

Id. at 5–6. In both instances, Registrant 

again failed to perform an adequate 

physical examination of UC1 and failed 

to take a patient history. Id. 

Accordingly, Registrant failed in both 

instances to establish a proper medical 

justification for prescribing mixed 

amphetamine salts and hydrocodone/ 

acetaminophen to UC1. Id. Registrant 

also failed in both instances to obtain 

UC1’s informed consent by informing 

UC1 of the benefits, risks, and reasons 

for prescribing mixed amphetamine 

salts and hydrocodone/acetaminophen. 

Id. 

Throughout Registrant’s treatment of 

UC1, Registrant failed to properly 

monitor UC1’s medication compliance 

and failed to appropriately address red 

flags of abuse and/or diversion. Id. at 3– 

6. Specifically, when UC1 tested 

negative for all drugs on a urine drug 

test, despite reporting that he/she was 

taking mixed amphetamine salts and 

hydrocodone/acetaminophen, Registrant 

failed to discuss the test results with 

UC1. Id. at 3. Further, Registrant 

repeatedly failed to address UC1’s 

regular receipt of the highest dosages of 

oxycodone, hydrocodone/, alprazolam, 

carisoprodol, and mixed amphetamine 

salts from different physicians, as 

indicated on the California Controlled 

Substance Utilization, Review and 

Evaluation System (CURES). Id. at 3–6.3

Finally, when provided with UC1’s 

prior medical file, Registrant failed to 

address the diversion red flag that UC1 

tried hydrocodone/acetaminophen and 

carisoprodol (‘‘Soma’’) that he/she had 

obtained from a friend. Id. at 5. 

B. Prescribing to UC2 

Between February 9, 2021, and April 

20, 2021, Registrant issued prescriptions 

for mixed amphetamine salts 30 mg to 

an undercover DEA Special Agent 

(UC2). Id. at 6. 

On February 9, 2021, March 10, 2021, 

and April 20, 2021, Registrant 

prescribed UC2 mixed amphetamine 


ddrumheller on DSK120RN23PROD with NOTICES1
82636 Federal Register / Vol. 89, No. 198 / Friday, October 11, 2024 / Notices 

4The OSC notes that on March 10, 2021, 

Registrant prescribed UC2 60 tablets of Adderall 30 

mg. Id. at 7. Adderall is a brand name for 

amphetamine-dextroamphetamine, a Schedule II 

controlled substance. 

5As to Factor A, the record contains no evidence 

of a recommendation from any state licensing board 

or professional disciplinary authority. 21 U.S.C. 

823(g)(1)(A). Nonetheless, an absence of such 

evidence ‘‘does not weigh for or against a 

determination as to whether continuation of the 

[registrant’s] DEA certification is consistent with 

the public interest.’’ Roni Dreszer, M.D., 76 FR 

19434, 19444 (2011). As to Factor C, there is no 

evidence in the record that Registrant has been 

convicted of an offense under either federal or state 

law ‘‘relating to the manufacture, distribution, or 

dispensing of controlled substances.’’ 21 U.S.C. 

823(g)(1)(C). However, Agency cases have found 

that ‘‘the absence of such a conviction is of 

considerably less consequence in the public interest 

inquiry’’ and is therefore not dispositive. Dewey C. 

MacKay, M.D., 75 FR 49956, 49973 (2010). Finally, 

as to Factor E, the Government’s evidence fits 

squarely within the parameters of Factors B and D 

and does not raise ‘‘other conduct which may 

threaten the public health and safety.’’ 21 U.S.C. 

823(g)(1)(E). Accordingly, Factor E does not weigh 

for or against Registrant. 

salts 30 mg to treat ADHD. Id. at 6–8.4

As with UC1, Registrant repeatedly 

issued the mixed amphetamine salts 

prescriptions without conducting an 

appropriate evaluation. Id. Specifically, 

Registrant: (1) failed, during the initial 

visit, to address UC2’s ADHD 

questionnaire, despite UC2 reporting 

minimal symptoms of ADHD; (2) 

repeatedly failed to perform adequate 

physical examinations of UC2; and (3) 

repeatedly failed to take a patient 

history. Id. Accordingly, Registrant 

repeatedly failed to establish a proper 

medical justification for prescribing 

mixed amphetamine salts to UC2. Id. 

Registrant also repeatedly failed to 

obtain UC2’s informed consent by 

informing UC2 of the benefits, risks, and 

reasons for prescribing mixed 

amphetamine salts. Id. 

Throughout Registrant’s treatment of 

UC2, Registrant failed to properly 

monitor UC2’s medication compliance 

and failed to appropriately address red 

flags of abuse and/or diversion. Id. at 6– 

8. For example, Registrant failed to 

appropriately address UC2’s negative 

urine drug screen, UC2’s admission that 

he/she diverted drugs to his/her 

boyfriend, and UC2’s CURES report, 

which showed that UC2 filled 

controlled substance prescriptions at 

multiple pharmacies and regularly 

received the highest dosages of 

hydrocodone/acetaminophen, 

alprazolam, mixed amphetamine salts, 

oxycodone, and diazepam. Id. at 7. 

DEA consulted with an independent 

medical expert who reviewed 

recordings of the undercover visits with 

Registrant described above. Id. at 8. The 

medical expert concluded that 

Registrant’s prescribing ‘‘violated the 

minimum medical standards applicable 

to the practice of medicine in 

California.’’ Id. Registrant is deemed to 

have admitted, and the Agency finds, 

that the controlled substance 

prescriptions described above were not 

issued for a legitimate medical purpose 

or in the usual course of professional 

practice. Id. 

II. Discussion 

A. The Five Public Interest Factors 

Under the Controlled Substances Act 

(CSA), ‘‘[a] registration . . . to . . . 

dispense a controlled substance . . . 

may be suspended or revoked by the 

Attorney General upon a finding that 

the registrant . . . has committed such 

acts as would render his registration 

under [21 U.S.C. 823] inconsistent with 

the public interest as determined under 

such section.’’ 21 U.S.C. 824(a). In 

making the public interest 

determination, the CSA requires 

consideration of the following factors: 

(A) The recommendation of the 

appropriate State licensing board or 

professional disciplinary authority. 

(B) The [registrant]’s experience in 

dispensing, or conducting research with 

respect to controlled substances. 

(C) The [registrant]’s conviction record 

under Federal or State laws relating to the 

manufacture, distribution, or dispensing of 

controlled substances. 

(D) Compliance with applicable State, 

Federal, or local laws relating to controlled 

substances. 

(E) Such other conduct which may threaten 

the public health and safety. 

21 U.S.C. 823(g)(1). 

The Agency considers these public 

interest factors in the disjunctive. Robert 

A. Leslie, M.D., 68 FR 15227, 15230 

(2003). Each factor is weighed on a caseby-case basis. Morall v. Drug Enf’t 

Admin., 412 F.3d 165, 173–74 (D.C. Cir. 

2005). Any one factor, or combination of 

factors, may be decisive. David H. Gillis, 

M.D., 58 FR 37507, 37508 (1993). 

While the Agency has considered all 

of the public interest factors in 21 U.S.C. 

823(g)(1),5 the Government’s evidence 

in support of its prima facie case for 

revocation of Registrant’s registration is 

confined to Factors B and D. See 

RFAAX 1, Attachment A, at 2–3. 

Moreover, the Government has the 

burden of proof in this proceeding. 21 

CFR 1301.44. 

Here, the Agency finds that the 

Government’s evidence satisfies its 

prima facie burden of showing that 

Registrant’s continued registration 

would be ‘‘inconsistent with the public 

interest.’’ 21 U.S.C. 824(a)(4). 

Factors B and D 

Evidence is considered under Public 

Interest Factors B and D when it reflects 

compliance (or non-compliance) with 

laws related to controlled substances 

and experience dispensing controlled 

substances. See Sualeh Ashraf, M.D., 88 

FR 1095, 1097 (2023); Kareem Hubbard, 

M.D., 87 FR 21156, 21162 (2022). In the 

current matter, the Government has 

alleged that Registrant violated both 

federal and state law regulating 

controlled substances. RFAAX 1, 

Attachment A, at 1–2. Specifically, 

under federal regulations, a prescription 

for a controlled substance is valid only 

if ‘‘issued for a legitimate medical 

purpose by an individual practitioner 

acting in the usual course of his 

professional practice.’’ 21 CFR 

1306.04(a). As for state law, California 

regulations also require that ‘‘[a] 

prescription for a controlled substance 

shall only be issued for a legitimate 

medical purpose by an individual 

practitioner acting in the usual course of 

his or her professional practice.’’ Cal. 

Health & Safety Code sec. 11153(a). 

Additionally, California regulations 

define unprofessional conduct to 

include, as relevant here: violating or 

attempting to violate any provision of 

the Medical Practice Act; gross 

negligence; repeated negligent acts; 

incompetence; and ‘‘[p]rescribing, 

dispensing, or furnishing [controlled 

substances] without an appropriate 

prior examination and a medical 

indication.’’ Cal. Bus. & Prof. Code secs. 

2234, 2242(a). 

Here, Registrant has admitted, and the 

Agency finds, that Registrant repeatedly 

issued prescriptions for controlled 

substances without conducting 

appropriate evaluations, establishing a 

medical justification for the controlled 

substances prescribed, or obtaining 

informed consent. RFAAX 1, 

Attachment A, at 3–8. Further, 

Registrant has admitted, and the Agency 

finds, that Registrant repeatedly failed 

to properly monitor the two 

undercovers’ medication compliance 

and failed to appropriately address red 

flags of abuse and/or diversion. Id. 

DEA’s medical expert concluded, and 

thus the Agency finds, that Registrant’s 

prescribing ‘‘violated the minimum 

medical standards applicable to the 

practice of medicine in California.’’ Id. 

at 8. Registrant has further admitted, 

and the Agency finds, that none of the 

above-referenced controlled substance 

prescriptions were issued for a 

legitimate medical purpose in the usual 

course of professional practice. As such, 

the Agency finds that Registrant 

violated 21 CFR 1306.04(a); California 


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Federal Register / Vol. 89, No. 198 / Friday, October 11, 2024 / Notices 82637 

1Based on the Government’s submissions in its 

RFAA dated May 3, 2024, the Agency finds that 

service of the OSC on Registrant was adequate. 

Specifically, the Government’s Notice of Service of 

Order to Show Cause indicates that Registrant was 

personally served with the OSC on March 26, 2024. 

RFAAX 1, at 1, 3. 

2Under 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 the Agency’s finding by 

filing a properly supported motion for 

reconsideration of findings of fact within fifteen 

calendar days of the date of this Order. Any such 

motion and response shall be filed and served by 

email to the other party and to Office of the 

Administrator, Drug Enforcement Administration, 

at dea.addo.attorneys@dea.gov. 

Health & Safety Code sec. 11153(a); and 

California Business & Professions Code 

secs. 2234, 2242(a). 

Accordingly, the Agency finds that 

Factors B and D weigh in favor of 

revocation of Registrant’s registration 

and thus finds Registrant’s continued 

registration to be inconsistent with the 

public interest in balancing the factors 

of 21 U.S.C. 823(g)(1). The Agency 

further finds that Registrant failed to 

provide any evidence to rebut the 

Government’s prima facie case. 

III. Sanction 

Where, as here, the Government has 

established grounds for revocation, the 

burden shifts to the registrant to show 

why he can be entrusted with the 

responsibility carried by a registration. 

Garret Howard Smith, M.D., 83 FR 

18882, 18910 (2018). To establish that 

he can be entrusted with registration, a 

registrant must both accept 

responsibility and demonstrate that he 

has undertaken corrective measures. 

Holiday CVS, L.L.C., dba CVS Pharmacy 

Nos 219 and 5195, 77 FR 62316, 62339 

(2012) (internal quotations omitted). 

Trust is necessarily a fact-dependent 

determination based on individual 

circumstances; therefore, the Agency 

looks at factors such as the acceptance 

of responsibility, the credibility of that 

acceptance as it relates to the 

probability of repeat violations or 

behavior, the nature of the misconduct 

that forms the basis for sanction, and the 

Agency’s interest in deterring similar 

acts. See, e.g., Robert Wayne Locklear, 

M.D., 86 FR 33738, 33746 (2021). 

Here, Registrant failed to answer the 

allegations contained in the OSC and 

did not otherwise avail himself of the 

opportunity to refute the Government’s 

case. As such, Registrant has made no 

representations as to his future 

compliance with the CSA nor made any 

demonstration that he can be entrusted 

with registration. Moreover, the 

evidence presented by the Government 

shows that Registrant violated the CSA, 

further indicating that Registrant cannot 

be entrusted. 

Accordingly, the Agency will order 

the revocation of Registrant’s 

registration. 

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. BB3337905 issued to 

Michael Berman, D.O. Further, pursuant 

to 28 CFR 0.100(b) and the authority 

vested in me by 21 U.S.C. 823(g)(1), I 

hereby deny any pending applications 

of Michael Berman, D.O., to renew or 

modify this registration, as well as any 

other pending application of Michael 

Berman, D.O., for additional registration 

in California. This Order is effective 

November 12, 2024. 

Signing Authority 

This document of the Drug 

Enforcement Administration was signed 

on October 2, 2024, by Administrator 

Anne Milgram. That document with the 

original signature and date is 

maintained by DEA. For administrative 

purposes only, and in compliance with 

requirements of the Office of the Federal 

Register, the undersigned DEA Federal 

Register Liaison Officer has been 

authorized to sign and submit the 

document in electronic format for 

publication, as an official document of 

DEA. This administrative process in no 

way alters the legal effect of this 

document upon publication in the 

Federal Register. 

Heather Achbach, 

Federal Register Liaison Officer, Drug 

Enforcement Administration. 

[FR Doc. 2024–23513 Filed 10–10–24; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

William J. Mack, M.D.; Decision and 

Order 

On March 21, 2024, the Drug 

Enforcement Administration (DEA or 

Government) issued an Order to Show 

Cause (OSC) to William J. Mack, M.D., 

of Leawood, Kansas (Registrant). 

Request for Final Agency Action 

(RFAA), Exhibit (RFAAX) 2, at 1, 3. The 

OSC proposed the revocation of 

Registrant’s Certificate of Registration 

No. BM8877473, alleging that 

Registrant’s registration should be 

revoked because Registrant is ‘‘currently 

without authority to prescribe, 

administer, dispense, or otherwise 

handle controlled substances in the 

State of Kansas, the state in which [he 

is] registered with DEA.’’ Id. at 2 (citing 

21 U.S.C. 824(a)(3)). 

The OSC notified Registrant of his 

right to file with DEA a written request 

for hearing, and that if he failed to file 

such a request, he would be deemed to 

have waived his right to a hearing and 

be in default. Id. (citing 21 CFR 

1301.43). Here, Registrant did not 

request a hearing. RFAA, at 2.1 ‘‘A 

default, unless excused, shall be 

deemed to constitute a waiver of the 

[registrant’s] right to a hearing and an 

admission of the factual allegations of 

the [OSC].’’ 21 CFR 1301.43(e). 

Further, ‘‘[i]n the event that a 

registrant . . . is deemed to be in 

default . . . DEA may then file a request 

for final agency action with the 

Administrator, along with a record to 

support its request. In such 

circumstances, the Administrator may 

enter a default final order pursuant to 

[21 CFR] § 1316.67.’’ Id. § 1301.43(f)(1). 

Here, the Government has requested 

final agency action based on Registrant’s 

default pursuant to 21 CFR 1301.43(c), 

(f), 1301.46. RFAA, at 1; see also 21 CFR 

1316.67. 

Findings of Fact 

The Agency finds that, in light of 

Registrant’s default, the factual 

allegations in the OSC are admitted. 

According to the OSC, Registrant’s 

Kansas medical license was suspended 

on January 30, 2024. RFAAX 2, at 2. 

According to Kansas online records, of 

which the Agency takes official notice, 

Registrant’s Kansas medical license is 

under a ‘‘Previous’’ status with the 

‘‘License Type’’ listed as ‘‘Cancelled— 

Suspended.’’ 2 Kansas Board of Healing 

Arts Licensee & Registrant Profile 

Search, https://www.kansas.gov/ssrvksbhada/search.html (last visited date 

of signature of this Order). Accordingly, 

the Agency finds that Registrant is not 

licensed to practice medicine in Kansas, 

the state in which he is registered with 

DEA. 

Discussion 

Pursuant to 21 U.S.C. 824(a)(3), the 

Attorney General is authorized to 

suspend or revoke a registration issued 

under 21 U.S.C. 823 ‘‘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 


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