[Federal Register Volume 74, Number 71 (Wednesday, April 15, 2009)]
[Notices]
[Pages 17525-17528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8612]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 08-49]


Joseph Baumstarck, M.D.; Revocation of Registration

    On May 19, 2008, I, the Deputy Administrator of the Drug 
Enforcement Administration, issued an Order to Show Cause and Immediate 
Suspension of Registration to Joseph Baumstarck, M.D. (Respondent), of 
Lovell, Wyoming. The Order proposed the revocation of Respondent's DEA 
Certificate of Registration, BB2806480, which authorizes him to 
dispense controlled substances in schedules II through V, and proposed 
the denial of any pending applications to renew or modify his 
registration, on the ground that Respondent had committed acts which 
render his continued registration inconsistent with the public 
interest.

[[Page 17526]]

Show Cause Order at 1 (citing 21 U.S.C. 824(a)(4)).
    The Show Cause Order alleged that Respondent had repeatedly issued 
controlled-substance prescriptions without establishing a legitimate 
doctor-patient relationship in violation of Federal and state laws in 
that he failed to obtain adequate patient histories or failed to 
perform adequate physical examinations of his patients. Id. (citing 21 
U.S.C. 841(a)(1), 21 CFR 1306.04, & Wyo. Stat. Sec.  33-26-402(a)). The 
Order further alleged that Respondent issued controlled-substance 
prescriptions to persons he knew to be drug addicts and that these 
persons were not using the drugs for a legitimate medical purpose. Id. 
Relatedly, the Order alleged that Respondent did ``nothing to confirm 
that these patients are not diverting the controlled substances'' that 
he prescribed. Id. at 1-2.
    The Show Cause Order further alleged that ``on at least four 
occasions in January and February 2008, Respondent had prescribed 
schedule II controlled substances for the purpose of detoxification 
and/or maintenance treatment,'' notwithstanding that he was not 
registered to conduct a narcotic-treatment program, and that the drugs 
he prescribed were ``not approved by the Food and Drug Administration 
(FDA) for detoxification and/or maintenance treatment in an office-
based setting.'' Id. at 2 (citing 21 U.S.C. 823(g)(1) & 21 CFR 
1306.07(a)). Relatedly, the Order alleged that in April 2008, 
Respondent had discussed with a police officer who claimed to be 
addicted to prescription pain killers, how he prescribed drugs 
containing oxycodone, a schedule II controlled substance, to treat 
addicts for addiction.\1\ Id. The Order also alleged that Respondent's 
illegal practices were ongoing. Id. I thus concluded that Respondent's 
``continued registration during the pendency of these proceeds would 
constitute an imminent danger to the public health and safety.'' Id. 
(citing 21 U.S.C. 824(d)).
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    \1\ The Order also alleged that on at least eight occasions, 
Respondent had violated Federal law by failing to include his 
registration number and the patient's address on controlled-
substance prescriptions. Show Cause Order at 2 (citing 21 U.S.C. 
842(a); 21 CFR 1306.05(a)).
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    On May 22, 2008, the Order was served on Respondent. On June 16, 
2008, Respondent requested a hearing on the allegations. Letter of 
Joseph Baumstarck, Jr., to Hearing Clerk (June 16, 2008). Respondent 
denied the allegations, but further stated that because he had been 
charged criminally, he was exercising his Fifth Amendment right against 
self-incrimination. Id.
    On June 25, 2008, the Government moved for summary disposition (and 
to stay the filing of pre-hearing statements) on the ground that on 
June 9, 2008, the Wyoming Board of Medicine had summarily suspended 
Respondent's state medical license and that the suspension was to 
remain in effect pending the resolution of the Board's proceeding. Gov. 
Mot. for Summ. Disp. at 2. The Government further noted that while a 
practitioner in Wyoming must hold both a medical license and a state 
issued controlled-substance registration (which is issued by the Board 
of Pharmacy), and Respondent still held a state controlled-substance 
registration, he was currently without authority to practice medicine 
and thus could not prescribe any drug (whether controlled or non-
controlled). Id. at 3.
    In support of its motion, the Government attached the State Board's 
order which summarily suspended Respondent's medical license. Id. at 
Ex. B. As grounds for its action, the Board's order noted that on May 
19, 2008, Respondent had been indicted by a federal grand jury on four 
counts of unlawful distribution of hydrocodone and two counts of 
unlawful distribution of oxycodone. Id. at 1-2 (citing 21 U.S.C. 
841(a)(1)(B) & (1)(D) and id. Sec.  841(a)(1)(B) & (1)(C)). The order 
also noted that the Board had received an Adverse Action Report from 
the National Practitioner Data Bank indicating that on May 29, 2008, 
North Big Horn Hospital of Lovell, Wyoming, had summarily suspended 
Respondent's clinical privileges pending the resolution of the criminal 
case. Id. at 3. The order further noted that on June 5, 2008, the Board 
had received a report from the state Pharmacy Board that Respondent had 
prescribed Suboxone on multiple occasions ``without the required DEA 
endorsement.'' \2\ Id. Finally, the Order noted that as a condition of 
his release from custody, the Federal District Court had imposed a 
restriction that Respondent could ``continue the practice of medicine 
only after the Board * * * creates a plan regarding the prescribing of 
any controlled substances'' and that he ``shall not see patients 
without another licensed physician present in the room with him,'' and 
that Respondent had told the Medical Board's Executive Secretary that 
he intended to seek a removal of the condition that another physician 
directly supervise his practice. Id. at 2-3. Based on all of these 
findings, the State Board concluded that ``the public health, safety or 
welfare imperatively requires emergency action and that a summary 
suspension of [Respondent's] license is necessary to protect the 
citizens of Wyoming.'' Id. at 4.
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    \2\ The State Board's Order also noted the allegations contained 
in my Order to Show Cause and Immediate Suspension of Registration. 
Ex B at 2.
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    Upon reviewing the Government's motion, the ALJ issued a memorandum 
which provided Respondent with the opportunity to respond to the 
motion. Memorandum to Parties (June 25, 2008). The following day, 
Respondent submitted a letter to the Hearing Clerk in which he stated 
that he opposed the Government's motion, but that because of the 
pending criminal case and his invocation of his Fifth Amendment 
privilege, he was ``unable * * * to adequately address'' the issues, 
and that the Agency was therefore denying him his right to Due Process. 
Ltr. of Joseph Baumstarck, Jr., to Hearing Clerk (June 26, 2008). 
Respondent further contended that ``[t]he actions which the 
government's statement alleges as having occurred in regard to my 
ability to practice in Wyoming are the result of the DEA's action which 
is the issue being contested here.'' Id. Respondent then requested that 
the proceeding be postponed until his criminal case was resolved. Id.
    Thereafter, the Government moved to deny Respondent's request for a 
postponement and also requested that the ALJ grant its motion for 
summary disposition. See Gov. Response to Resp.'s Req. for Postponement 
and Resp.'s Opp. In its motion, the Government maintained that under 
the Controlled Substances Act (CSA), the Agency does not have authority 
to maintain the registration of a practitioner who lacks state 
authority to handle controlled substances and ``that the reason for 
[Respondent's] state suspension is irrelevant.'' Id. at 2 & n 1. The 
Government further argued that Respondent had also been ``investigated 
by state and local law enforcement [and] thus, his assertion that DEA 
is the cause of his [s]tate medical license suspension is without 
merit.'' Id. The Government also maintained that granting its motion 
for summary disposition would not violate Respondent's right to Due 
Process because the granting of such motions (when no material facts 
are in dispute) is a common feature of adjudicatory proceedings. Id. at 
2. Finally, the Government urged the ALJ to reject Respondent's request 
for a postponement because the issue in the case--whether he is without 
state authority to handle controlled substances--could be litigated 
without Respondent having to testify (by submitting documentary 
evidence to the

[[Page 17527]]

contrary), and because ``there [was] no guarantee that'' his criminal 
case would be resolved by date he claimed it would be. Id. at 3.
    On July 1, 2008, Respondent sent an additional letter to the 
Hearing Clerk in which he reiterated his previous objections to the 
Government's position, including his contention that his inability ``to 
practice medicine in Wyoming [is] the result of the DEA's action which 
is the issue being contested here.'' Letter of Respondent to Hearing 
Clerk (June 30, 2008). Respondent disputed the Government's argument 
that he could reapply for a new registration as ``beg[ging] the 
question of due process.'' Id. He also contended that the Government's 
argument that the criminal case could be rescheduled several times was 
irrelevant to the issue of whether this proceeding should be stayed 
because he had ``no control over the scheduling of court cases.'' Id.
    On the same day, the ALJ stayed the proceeding pending her review 
of the Government's motion. ALJ at 6. On July 16, 2008, the ALJ granted 
the Government's motion. Id. at 7. Noting that it was ``undisputed that 
Respondent is without state authority to hand controlled substances in 
Wyoming,'' id., the ALJ applied the Agency's long-settled ruled that a 
practitioner may not maintain his registration if he lacks authority to 
handle controlled substances under the laws of the State in which he 
practices. Id. at 6-7. The ALJ thus recommended that Respondent's 
registration be revoked and that any pending applications be denied.
    On July 23, 2008, Respondent submitted his ``formal objection'' to 
the ALJ's decision. Letter of Respondent to Hearing Clerk (July 23, 
2008). Respondent ``reiterate[d] [his] previous position that it is 
ludicrous that a government entity is able to cause by its original 
action a secondary action by another government entity and then use the 
second action to justify the original action.'' Id. Respondent also 
restated his position that he was ``unable to give a detailed 
statement'' regarding the allegations because he had been criminally 
charged and was exercising his Fifth Amendment rights.
    Thereafter, the record was forwarded to me for final agency action. 
Having considered the entire record in this matter (including the 
issues raised by Respondent in his July 23, 2008 letter), I adopt the 
ALJ's decision in its entirety.
    I find that Respondent currently holds DEA Certificate of 
Registration, BB2806480, which authorizes him to dispense controlled 
substances in schedule II through V as a practitioner at registered 
premises of 342 E. Main St., Lovell, Wyoming. Respondent's registration 
does not expire until July 31, 2009.
    On June 6, 2008, the Wyoming Board of Medicine summarily suspended 
Respondent's physician's license and further ordered that ``such 
suspension shall continue pending proceedings for revocation or other 
action against'' his license. GX B. The State's order cited five 
different grounds as support for its order including: (1) That on May 
19, 2008, Respondent had been indicted in federal court on six counts 
of unlawful distribution of controlled substances; (2) the allegations 
of the Order to Show Cause; (3) the Adverse Action Report that 
Respondent's privileges had been suspended by a local hospital; (4) the 
state Pharmacy Board's report that Respondent had prescribed Suboxone 
on numerous occasions without holding the requisite endorsement to his 
DEA registration; and (5) that Respondent had told the Board's 
Executive Secretary of his intent to seek the removal of certain 
conditions of his release which were imposed by the Federal District 
Court. According to the Wyoming Board of Medicine Web site, 
Respondent's state license remains suspended.
    Under the CSA, a practitioner must be currently authorized to 
handle controlled substances in ``the jurisdiction in which he 
practices'' in order to maintain a DEA registration. See 21 U.S.C. 
802(21) (``[t]he term `practitioner' means a physician * * * 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''). See 
also id. Sec.  823(f) (``The Attorney General shall register 
practitioners * * * if the applicant is authorized to dispense * * * 
controlled substances under the laws of the State in which he 
practices.''). As these provisions make plain, possessing authority 
under state law to handle controlled substances is an essential 
condition for holding a DEA registration.
    Accordingly, the Agency has held repeatedly that the CSA requires 
the revocation of a registration issued to a practitioner whose state 
license has been suspended or revoked. David Wang, 72 FR 54297, 54298 
(2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick A. 
Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 
(1988). See also 21 U.S.C. 824(a)(3) (authorizing the revocation of a 
registration ``upon a finding that the registrant * * * has had his 
State license or registration suspended [or] revoked * * * and is no 
longer authorized by State law to engage in the * * * distribution [or] 
dispensing of controlled substances''). Moreover, because the statutory 
text makes plain that a practitioner must have current authority to 
handle controlled substances under state law in order to maintain his 
CSA registration, the Agency has also held that revocation is warranted 
even when a practitioner's state authority has only been suspended and 
there remains a possibility that the authority will be restored 
following a state proceeding. See Bourne Pharmacy, Inc., 72 FR 18273, 
18274 (2007).
    Here, there is no dispute that Respondent does not have current 
authority under state law to dispense controlled substances. 
Respondent, however, maintains that the Agency's revocation of his 
registration based on the State's suspension of his medical license 
would violate his right to Due Process because the State's action was 
based on my Order which immediately suspended his registration.
    Respondent ignores, however, that the State's suspension order did 
not rely solely on my Order. Rather, the State Board also relied on 
Respondent's indictment by a federal grand jury, which represents the 
judgment of an independent body of citizens that probable cause exists 
to believe that Respondent had committed six felony counts of unlawful 
distribution of controlled substances. See, e.g., FDIC v. Mallen, 486 
U.S. 230, 241 (1988) (where ``[a] grand jury ha[s] determined that 
there was probable cause that [bank officer] had committed a felony,'' 
the finding supported suspension followed by a hearing).
    Moreover, the State Board also relied on the Board of Pharmacy's 
Report that Respondent had violated the law in prescribing Suboxone, 
the report from the National Practitioner Bank that a local hospital 
had suspended his privileges, and Respondent's own statements to the 
Board's Executive Secretary that he was seeking to remove the District 
Court's requirement that another physician directly supervise his 
practice. In short, in concluding that Respondent posed ``an immediate 
threat to the public health, safety or welfare of the people of * * * 
Wyoming,'' GX B at 3-4, the Board clearly conducted its own independent 
evaluation of the evidence against him and did not simply piggyback on 
my Order of Immediate Suspension. See Oakland Medical Pharmacy, 71 FR 
50100, 50102 (2006) (rejecting the contention that it is circular for 
DEA to rely on a state suspension order to revoke a registration

[[Page 17528]]

where the State did not rely solely on the DEA order in suspending a 
practitioner's state license).
    Respondent also apparently argues that revoking his registration 
would violate his right to Due Process because he has invoked his Fifth 
Amendment privilege and is ``unable'' to address the allegations. This 
argument would be unpersuasive even if the Agency was still seeking to 
revoke based on the allegations that he unlawfully distributed 
controlled substances.\3\
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    \3\ Due Process only requires that the Government provide a 
meaningful opportunity to test the Government's proof and respond to 
the allegations; a litigant's unwillingness to testify in a civil 
matter, because he fears incriminating himself, does not render a 
hearing opportunity unmeaningful in the constitutional sense. Ohio 
Adult Parole Authority v. Woodward, 523 U.S. at 272, 286 (1998). 
Indeed, the Supreme Court has even upheld the drawing of an adverse 
inference based on a respondent's refusal to testify in an 
administrative proceeding. See Woodward, 523 U.S. at (1998) (citing 
Baxter v. Palmigiano, 425 U.S. 308, 316-18 (1976)); see also INS v. 
Lopez-Mendoza, 468 U.S. 1032, 1043-44 (1984).
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    Moreover, Respondent ignores that under the CSA, the loss of state 
authority provides an independent ground to revoke and that the only 
issue now in dispute is whether Respondent holds state authority. 
Respondent was provided with a meaningful opportunity to refute the 
Government's evidence by showing that his state license had not been 
(or was no longer) suspended; such a showing would not require his 
testimony. That there is no such evidence (because the State's 
suspension order remains in effect) likewise does not deprive 
Respondent of Due Process.
    Because Respondent remains without authority to dispense controlled 
substances under the laws of the State in which he practices medicine 
and is registered with the Agency, his registration will be revoked. 
Moreover, for the same reasons that I ordered the immediate suspension 
of Respondent's registration, I further hold that this Order be 
effective immediately.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 
824(a), as well as 28 CFR 0.100(b) & 0.104, I hereby order that DEA 
Certificate of Registration, BB2806480, issued to Joseph Baumstarck, 
M.D., be, and it hereby is, revoked. I further order that any pending 
application of Joseph Baumstarck, M.D., for renewal or modification of 
his registration be, and it hereby is, denied. This order is effective 
immediately.

    Dated: April 3, 2009.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E9-8612 Filed 4-14-09; 8:45 am]
BILLING CODE 4410-09-P