Federal Register / Vol. 81, No. 23 / Thursday, February 4, 2016 / Notices 6047 

1The Show Cause Order also notified Respondent 

of his right to request a hearing on the allegations 

or to submit a written statement in lieu of a hearing, 

the procedure for electing either option, and the 

consequence of failing to elect either option. GX 1, 

at 2 (citing 21 CFR 1301.43). 

2Pursuant to an earlier Board Order, Respondent 

did not, at the time of the prior Agency proceeding, 

possess state authority ‘‘to prescribe narcotics, 

including but not limited to, all opioid analgesics, 

including buprenorphine and all synthetic opioid 

analgesics.’’ Id. at 62676. 

medicine safely. . . constitutes 

unprofessional conduct.’’ See also Cal. 

Bus. & Prof. Code sec. 2238 (‘‘A 

violation of any federal statute or 

regulation, or any of the statutes or 

regulations of this state regulating 

dangerous drugs or controlled 

substances constitutes unprofessional 

conduct.’’). 

I further conclude that the MBC’s 

findings establish that Registrant 

violated the CSA when he issued 

fraudulent prescriptions in his wife’s 

name for Klonopin (clonazepam), a 

schedule IV controlled substance, which 

he then used and abused. See 21 U.S.C. 

843(a)(3) (‘‘It shall be unlawful for any 

person knowingly or intentionally. . . 

to acquire or obtain possession of a 

controlled substance by 

misrepresentation, fraud, forgery, 

deception or subterfuge.’’); see also id. 

sec. 844(a) (‘‘It shall be unlawful for any 

person knowingly or intentionally to 

possess a controlled substance unless 

such substance was obtained directly, or 

pursuant to a valid prescription or 

order, from a practitioner, while acting 

in the course of his professional 

practice.’’); 21 CFR 1306.04(a) (‘‘A 

prescription for a controlled 

substance. . . must be issued for a 

legitimate medical purpose by an 

individual practitioner acting in the 

usual course of his professional 

practice.’’). Not only is this conduct 

actionable under Factor Four, it is also 

relevant in assessing Registrant’s 

experience in dispensing controlled 

substances (Factor Two). 

Accordingly, I find that the evidence 

establishes Registrant ‘‘has committed 

such acts as would render his 

registration. . . inconsistent with the 

public interest.’’ See 21 U.S.C. 824(a)(4). 

Because Registrant failed to respond in 

any manner to the Show Cause Order, 

I will order that his registration be 

revoked and that any pending 

application be denied. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) and 824(a), as well 

as 28 CFR 0.100(b), I order that DEA 

Certificate of Registration FB4421474, 

issued to David W. Bailey, M.D., be, and 

it hereby is, revoked. I further order that 

any pending application of David W. 

Bailey, M.D., to renew or modify his 

registration, be, and it hereby is, denied. 

This Order is effective March 7, 2016. 

Dated: January 18, 2016. 

Chuck Rosenberg, 

Acting Administrator. 

[FR Doc. 2016–02127 Filed 2–3–16; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Kenneth H. Bull, M.D.; Decision and 

Order 

On August 21, 2015, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration (DEA), issued an Order 

to Show Cause to Kenneth H. Bull, M.D. 

(Respondent), of Albuquerque, New 

Mexico. GX 1, at 1. The Show Cause 

Order proposed the revocation of 

Respondent’s DEA Certificate of 

Registration AB5662552, and the denial 

of any applications for renewal or 

modification of the registration, as well 

as for any other registration, on two 

grounds: (1) That he lacks authority to 

handle controlled substances in New 

Mexico, the State in which he is 

registered with DEA, and (2) his 

‘‘registration would be inconsistent with 

the public interest.’’ Id. (citing 21 U.S.C. 

823(f), 824(a)(3) and (4)). 

The Show Cause Order alleged that 

Respondent is registered as a 

practitioner in schedules IIN, IIIN, IV 

and V, at the registered address of 3500 

Comanche Blvd., Building Suite 6, 

Albuquerque, New Mexico. Id. The 

Order also alleged that his registration 

does not expire until July 31, 2017. Id. 

As grounds for the proposed action, 

the Show Cause Order alleged that 

effective June 30, 2014, the New Mexico 

Medical Board (Board) issued a Decision 

and Order which revoked Respondent’s 

medical license, thus rendering him 

without authority ‘‘to order, dispense, 

prescribe or administer any controlled 

substances’’ in New Mexico, the State in 

which he holds his registration. Id. 

Continuing, the Order asserted that ‘‘the 

DEA must revoke [Respondent’s] 

registration based upon [his] lack of 

authority to handle controlled 

substances in’’ New Mexico. Id. (citing 

21 U.S.C. 802(21), 823(f), and 824(a)(3)). 

As further ground, the Government 

alleged that Respondent’s ‘‘registration 

is inconsistent with the public interest 

because [he] did not comply with 

applicable Federal law related to 

controlled substances, in violation of 21 

U.S.C. 824(a)(4) and 823(f)(4).’’ Id. The 

Government based this allegation on the 

factual findings and legal conclusions of 

a prior agency proceeding, which 

suspended his DEA registration for six 

months and restricted his registration to 

non-narcotic controlled substances. Id. 

at 2 (citing Kenneth Harold Bull, M.D., 

78 FR 62666 (2013)). The Show Cause 

Order then set forth several of the 2013 

Order’s findings of the violations found 

during a November 2009 administrative 

inspection.1 Id. 

The Show Cause Order was served on 

Respondent by registered mail sent to 

his registered location; according to the 

Government, the return receipt card 

showed that the mailing was received 

on September 16, 2015. Request for 

Final Agency Action (RFAA), at 2; GX 

7. Thereafter, on September 22, 2015, 

Respondent, through his attorney, filed 

a written response to the Show Cause 

Order. GX 8. 

Therein, Respondent expressly 

waived his right to a hearing but 

submitted a written statement for my 

consideration. GX 8, at 1 (citing 21 CFR 

1301.43(c)). Thereafter, the Government 

submitted a Request for Final Agency 

Action with supporting documents; in 

its submission, the Government also 

included Respondent’s written 

statement. 

Based on Respondent’s submission, I 

find that he has waived his right to a 

hearing on the allegations of the Show 

Cause Order. 21 CFR 1301.43(c). 

However, I will consider Respondent’s 

statement along with the evidence 

submitted by the Government in this 

matter. I make the following findings of 

fact. 

Findings 

Respondent, who is a psychiatrist in 

the State of New Mexico, is the holder 

of DEA Certificate of Registration 

AB5662552, pursuant to which he is 

currently authorized to dispense 

controlled substances in Schedules IIN, 

IIIN, IV and V; his registration does not 

expire until July 31, 2017. GX 2, at 1. 

Respondent was previously authorized 

to dispense controlled substances in 

Schedules II through V, as well to 

dispense buprenorphine as a DATAWaiver physician. See Bull, 78 FR at 

62669. However, on September 22, 

2013, the then-Administrator issued a 

Decision and Order which suspended 

Respondent’s registration for six 

months; the Order also revoked 

Respondent’s DATA-Waiver 

Identification Number and restricted his 

dispensing authority to non-narcotic 

controlled substances only.2 Id. at 62676; 

GX 2. 


asabaliauskas on DSK5VPTVN1PROD with NOTICES
6048 Federal Register / Vol. 81, No. 23 / Thursday, February 4, 2016 / Notices 

3Respondent states that he is the holder of a DEA 

Certificate of Registration, which authorizes him to 

dispense controlled substances in schedules II 

through V, including narcotic controlled 

substances, as a practitioner. GX 8, at 2. Although 

his statement notes that his registration was the 

subject of a previous DEA show cause proceeding, 

it does not accurately state the outcome of that 

proceeding, which restricted his registration to 

authorize the dispensing of only non-narcotic 

controlled substances. See 78 FR at 62676. 

4Respondent also included a copy of the PostHearing Brief filed on his behalf in the Board 

proceeding. 

5 It is noted that the Hearing Officer found that 

‘‘[t]he CPEP Assessment was designed to evaluate 

Respondent’s practice of outpatient adolescent and 

adult psychiatry, including the prescribing of 

controlled substances within a psychiatry practice,’’ 

and the CPEP Assessment involved a review of 

Respondent’s medical charts, interviews of 

Respondent, and ‘‘simulated patient-physician 

interactions.’’ GX 5, at 8. Moreover, the Board 

adopted the Hearing Officer’s findings that 

Respondent’s ‘‘[c]linical judgment and reasoning 

were not adequate, particularly his prescribing of 

controlled substances within the context of a 

psychiatric practice’’ and ‘‘[h]is documentation in 

the patient charts submitted for review was not 

adequate.’’ Id. The Board also adopted the Hearing 

Officer’s finding regarding Respondent’s use of 

cheek swabs rather than urine drug screening ‘‘[t]o 

address the addiction and diversion issues in his 

patients.’’ Id. at 9. However, the Government does 

not argue that these findings support a finding that 

Respondent has committed such acts as would 

render his registration inconsistent with the public 

interest and, in adjudicating this matter, I rely 

solely on the Board’s action in suspending his 

medical license and the fact that the suspension 

remains in effect. 

On June 30, 2014, the New Mexico 

Medical Board issued a Decision and 

Order which adopted nearly all of the 

findings of a state Hearing Officer. GX 

4, at 1. The Board suspended 

Respondent’s medical license 

‘‘effectively immediately,’’ based upon 

‘‘the deficiencies noted in’’ a report by 

the Center for Personalized Education 

for Physicians (CPEP), which had 

assessed his clinical skills, as well as 

the Hearing Officer’s ‘‘finding of 

manifest incompetence.’’ Id. The Board 

further ordered that the suspension 

would remain in effect until Respondent 

‘‘successfully completes a Board 

approved retraining in a residency or 

residency-like program to address the 

deficiencies noted in the CPEP report,’’ 

and that upon completion, he ‘‘may 

petition. . . for reinstatement of his 

medical license.’’Id. 

The Government states that 

Respondent’s medical license remains 

suspended, and Respondent does not 

deny this in his written statement. GX 

8, at 2. Moreover, a search of the online 

records of the New Mexico Medical 

Board shows that Respondent’s medical 

license remains suspended. See http://

cgi.docboard.org/cgi-shl/nhayer.exe. 

Respondent’s written statement 

summarizes his academic and 

professional career, noting that he has 

been practicing for more than 40 

years.3 Id. at 1–2. Respondent disputes 

the allegation of the Order to Show 

Cause that his medical license has been 

revoked, arguing that ‘‘the Board 

suspended [his] license pending [his] 

attending a residency-like program.’’ Id. 

at 2. While Respondent is correct, as a 

practical matter, this is a distinction 

without a material difference. 

Respondent further states that he 

‘‘strongly disagrees with the Board’s 

findings and conclusions, but has 

accepted them.’’ Id. Continuing, he 

states that he ‘‘has freely accepted and 

described without reservation the 

mistakes he had made as a practitioner, 

but disagrees [that] he is ‘manifestly 

incompetent.’’ ’’ ’’Id. 

Respondent then engages in a collateral 

attack on the Board’s Order. He argues: 

[T]he Medical Board’s prosecution rested 

its case entirely on unsworn hearsay 

evidence in the form of a report issued by a 

Colorado physician assessment organization 

called the . . . CPEP. The report was based 

on approximately three hours of interview 

time with [him] done by unidentified 

physician consultants who conducted a 

review of a tiny fraction of his total patient 

records (24 records out of hundreds of cases). 

[Respondent] also participated in two 30 

minute simulated patient intake interviews 

with actors playing the patients. The New 

Mexico Medical Board based its suspension 

on its conclusion [that he] required a 

residency-type program to continue 

practicing psychiatry, a claim [his] expert 

witness disagreed with strongly.4

Id. 

Respondent then argues that ‘‘there is 

no claim [he] engaged in any sort of 

financial impropriety, diversion of 

medications, boundary issues, or 

harmed a patient in any manner.’’ 

Stating that he ‘‘intends to ask the Board 

to modify its order in the near future to 

allow him to resume practice,’’ 

Respondent asks that I delay 

consideration of the matter ‘‘until this 

occurs.’’ Id. Finally, Respondent notes 

that ‘‘New Mexico is a notoriously 

underserved medical community’’ and 

that he provided care for patients ‘‘in 

desperate need of psychiatric services’’ 

and ‘‘with severe behavioral problems 

and extremely serious mental illness,’’ 

and that ‘‘[h]e will not be able to do so 

without a DEA registration.’’ Id. at 3. 

Discussion 

In its Request for Final Agency 

Action, the Government asserts two 

grounds to revoke Respondent’s 

registration. RFAA, at 4. With respect to 

the public interest ground, the 

Government contends that, ‘‘in the 

present proceeding, [I] can give res 

judicata effect to the prior DEA final 

order,’’ and therefore, ‘‘the prior 

findings of fact and conclusions of law 

in [that] proceeding may be 

incorporated into the present final 

order.’’ Id. 

The Government does not explain, 

however, why the factual findings and 

legal conclusions of the prior Agency 

Decision and Order now support the 

revocation of Respondent’s registration 

on public interest grounds. Notably, in 

that proceeding, the prior Administrator 

found that Respondent had accepted 

responsibility and demonstrated that he 

would not engage in future misconduct 

with respect to the misconduct that 

‘‘was properly at issue in the 

proceeding.’’ 78 FR at 62675. Moreover, 

the prior Administrator did not find the 

misconduct that was proven on the 

record of the proceeding to be 

sufficiently egregious to warrant 

revocation. Id. at 62676. 

Presumably, Respondent served his 

suspension without incident, and 

notably, the Government makes no 

allegation in this proceeding that 

Respondent has, since the first 

proceeding, engaged in any further 

misconduct related to controlled 

substances. See GX 1, at 1–2 (Show 

Cause Order). Indeed, in its Request for 

Final Agency Action, the Government 

states that Show Cause Order ‘‘did not 

allege that [the Board’s] final order 

entails findings that reveal violations 

related to [Respondent’s] DEA 

registration.’’ RFAA, at 3. Given the 

Government’s position that the State 

Board proceeding does not involve 

misconduct related to his registration 

and the absence of evidence of 

misconduct related to controlled 

substances since the first proceeding, 

there is no basis to invoke the Agency’s 

public interest authority to revoke his 

registration.5

There is, however, no dispute that 

Respondent lacks authority to handle 

controlled substances in New Mexico, 

the State where he is currently 

registered, and pursuant to 21 U.S.C. 

824(a)(3), the Attorney General is 

authorized to suspend or revoke a 

registration issued under section 823, 

‘‘upon a finding that the registrant . . . 

has had his State license . . . 

suspended [or] revoked . . . by 

competent State authority and is no 

longer authorized by State law to engage 

in the . . . dispensing of controlled 

substances.’’ Moreover, DEA has 

repeatedly 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. 


asabaliauskas on DSK5VPTVN1PROD with NOTICES
Federal Register / Vol. 81, No. 23 / Thursday, February 4, 2016 / Notices 6049 

6While Respondent also asked that I delay the 

resolution of this matter, ‘‘in circumstances similar 

to those raised by Respondent, DEA has repeatedly 

denied requests to stay the issuance of a final order 

of revocation, noting that [u]nder the Controlled 

Substances Act, a practitioner must be currently 

authorized to handle controlled substances in the 

jurisdiction in which [he] practices in order to 

maintain [his] DEA registration.’’ Gregory F. Saric, 

76 FR 16821, 16822 (2011) (internal quotations and 

citations omitted). Of further note, Respondent’s 

state medical license was suspended more than 18 

months ago, and yet his license still remains 

suspended. 

Finally, while Respondent asserts that New 

Mexico is a medically underserved area, in the case 

of individual practitioners, DEA has held that 

community impact evidence is irrelevant in the 

public interest determination as it is in a 

proceeding based on a loss of state authority. See 

Linda Sue Cheek, 76 FR 66972, 66972 (2011); 

Gregory Owens, 74 FR 36751, 36757 (2009). So too, 

Respondent’s statement regarding his acceptance of 

responsibility is not a defense to a revocation based 

on the loss of state authority, because the CSA 

mandate that a practitioner possess such authority 

to obtain and maintain a DEA registration. 

7Based on the findings of fact and conclusions of 

law which led the NMMB to immediately suspend 

Registrant’s license until he successfully completes 

Board approved re-training,’’ GX 4, at 1; I conclude 

that the public interest requires that this Order be 

effective immediately. See 21 CFR 1316.67. 

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 Act, 

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 medicine. See, 

e.g., Calvin Ramsey, 76 FR 20034, 20036 

(2011); Sheran Arden Yeates, M.D., 71 

FR 39130, 39131 (2006); Dominick A. 

Ricci, 58 FR 51104, 51105 (1993); Bobby 

Watts, 53 FR 11919, 11920 (1988). 

Thus, the Agency has held that 

revocation is warranted even where, as 

here, the state board has suspended (as 

opposed to revoked) a practitioner’s 

dispensing authority and that authority 

may be restored at some point in the 

future through further proceedings. See 

Ramsey 76 FR at 20036 (citations 

omitted). As the Agency has held, the 

controlling question is not whether a 

practitioner’s license to practice 

medicine in the state is suspended or 

revoked; rather, it is whether the 

Respondent is currently authorized to 

handle controlled substances in the 

state. James L. Hooper, 76 FR 71371 

(2011) (collecting cases), pet. for rev. 

denied, Hooper v. Holder, 481 Fed. 

Appx. 826 (4th Cir. 2012). 

Respondent further argues that I 

should consider that the Medical 

Board’s case ‘‘rested entirely on 

unsworn hearsay evidence in the form 

of’’ the CPEP Report and that his expert 

witness ‘‘disagreed with’’ the Board’s 

conclusion that he should undergo a 

‘‘residency-type program to continue 

practicing. GX 8, at 2. This argument is 

simply a collateral attack on the State 

Board proceeding. The Agency has held, 

however, ‘‘that a registrant cannot 

collaterally attack the result of a state 

criminal or administrative proceeding in 

a proceeding under section 304, 21 

U.S.C. 824, of the CSA.’’ Muzaffer 

Aslan, 77 FR 37068, 37069 (2012) (other 

citations omitted). ‘‘Rather, 

Respondent’s challenge to the validity 

of the [New Mexico Board’s] Order must 

be litigated in the forums provided by 

the State of [New Mexico], and his 

contentions regarding the validity of the 

[Board’s] order are not material to this 

Agency’s resolution of whether he is 

entitled to maintain his DEA registration 

in’’ New Mexico. Id. 

Because it is undisputed that 

Respondent’s New Mexico medical 

license remains suspended, I find that 

he no longer has authority under the 

laws of New Mexico, the State in which 

he is registered, to dispense controlled 

substances. Therefore, he is not entitled 

to maintain his DEA registration. See 21 

U.S.C. 802(21), 823(f), 824(a)(3). 

Accordingly, I will order that his 

registration be revoked and that any 

pending application to renew or modify 

his registration be denied.6

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) and 824(a), as well 

as 28 CFR 0.100(b), I order that DEA 

Certificate of Registration AB5662552, 

issued to Kenneth Harold Bull, M.D., be, 

and it hereby is, revoked. I further order 

that any application of Kenneth Harold 

Bull, M.D., to renew or modify his 

registration, be, and it hereby is, denied. 

This Order is effective immediately.7

Dated: January 18, 2016. 

Chuck Rosenberg, 

Acting Administrator. 

[FR Doc. 2016–02129 Filed 2–3–16; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Notice of Lodging of Proposed Partial 

Consent Decree Under the Clean Water 

Act 

On January 28, 2016, the Department 

of Justice lodged a proposed Partial 

Consent Decree with the United States 

District Court for the Northern District 

of Mississippi in the lawsuit entitled 

United States and the State of 

Mississippi v. City of Greenville, 

Mississippi, Civil Action No. 4:16–cv– 

00018–DMB–JMV. 

The United States and the State of 

Mississippi filed this lawsuit under the 

Clean Water Act and the Mississippi Air 

and Water Pollution Control Law. The 

complaint seeks injunctive relief and 

civil penalties for violations in 

connection with the City’s sanitary 

sewer system. The City has grouped 

mini-systems within the sewer system 

into three different groups and 

prioritized Sewer Group 1 and Sewer 

Group 2 for sewer assessment and 

rehabilitation work. The Partial Consent 

Decree provides for the City to conduct 

early action projects; capacity, 

management, operations, and 

maintenance program; and assessment 

and rehabilitation of Sewer Groups 1 

and 2. The partial settlement will not 

resolve the claims for civil penalties or 

for injunctive relief related to Sewer 

Group 3, as those will be the topics of 

future negotiation among the parties. 

The publication of this notice opens 

a period for public comment on the 

Partial Consent Decree. Comments 

should be addressed to the Assistant 

Attorney General, Environment and 

Natural Resources Division, and should 

refer to United States and the State of 

Mississippi v. City of Greenville, 

Mississippi, D.J. Ref. No. 90–5–1–1– 

10932. All comments must be submitted 

no later than thirty (30) days after the 

publication date of this notice. 

Comments may be submitted either by 

email or by mail: 

To submit 

comments: Send them to: 

By email ....... pubcomment-ees.enrd@

usdoj.gov. 

By mail ......... Assistant Attorney General, 

U.S. DOJ—ENRD, P.O. 

Box 7611, Washington, DC 

20044–7611. 

During the public comment period, 

the Partial Consent Decree may be 

examined and downloaded at this 

Justice Department Web site: http://

www.justice.gov/enrd/consent-decrees. 

We will provide a paper copy of the 

Partial Consent Decree upon written 


asabaliauskas on DSK5VPTVN1PROD with NOTICES