Registration revocations, restrictions, denials, reinstatements: Brockbank, Kevin Dean, M.D.,

[Federal Register: May 25, 2006 (Volume 71, Number 101)]

[Notices]

[Page 30167-30168]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr25my06-90]

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

Kevin Dean Brockbank, M.D.; Revocation of Registration

On October 14, 2004, the Deputy Administrator of the Drug Enforcement Administration (DEA) issued an Order to Show Cause and Immediate Suspension of Registration to Kevin Dean Brockbank, M.D. (Dr. Brockbank) of Lakeside, Arizona. Dr. Brockbank was notified of an opportunity to show cause as to why DEA should not revoke his DEA Certificate of Registration, AB2053027, as a practitioner, and deny any pending applications for renewal or modification of that registration pursuant to 21 U.S.C. 823(f) and 824(a)(4) on the basis that his continued registration would be inconsistent with the public interest. Dr. Brockbank was further notified that pursuant to 21 U.S.C. 824(d), his DEA registration was being immediately suspended as an imminent danger to the public health and safety.

The Order to Show Cause and Immediate Suspension of Registration alleged, in sum, that Dr. Brockbank was issuing prescriptions for large amounts of controlled substances to individuals without physical examinations, testing or evaluations consistent with a legitimate doctor-patient relationship. These prescriptions, which included OxyContin and hydrocodone, were not issued for legitimate medical purposes or in the usual course of professional treatment, thus violating 21 CFR 1306.04 and 21 U.S.C. 841(a). It was also alleged that over a six month period in 2004, on six occasions Dr. Brockbank issued prescriptions under such circumstances to local law enforcement officers posing undercover as patients.

The Order to Show Cause and Immediate Suspension of Registration alleged that over a 13 month period, Dr. Brockbank prescribed an estimated 690,000 dosage units of controlled substances to patients and that local pharmacies were refusing to fill or drastically reducing the ordered amounts of medication he was prescribing. As a result, individuals were traveling long distances to fill their prescriptions at out-of-area pharmacies. It was also alleged that one individual died of an accidental overdose of Schedule II controlled substances, which had been excessively prescribed by Dr. Brockbank to a friend of the victim and obtained by the decedent while visiting. Finally, it was alleged Dr. Brockbank had sexually assaulted a female patient during a home visit after administering her a Schedule II controlled substance.

According to the investigative file, the Order to Show Cause and Immediate Suspension of Registration was personally served on Dr. Brockbank by a DEA Diversion Investigator on October 26, 2004. More than thirty days have passed since service of the Order to Show Cause and Immediate Suspension of Registration and DEA has not received a request for hearing or any other reply from Dr. Brockbank or anyone purporting to represent him in this matter.

Therefore, the Deputy Administrator of DEA, finding that (1) thirty days having passed since the delivery of the Order to Show Cause and Immediate Suspension of Registration to Dr. Brockbank, and (2) no request for hearing having been received, concludes that Dr. Brockbank is deemed to have waived his hearing right. See David W. Linder, 67 FR 12,579 (2002). After considering material from the investigation file in this matter, the Deputy Administrator now enters her final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.

The Deputy Administrator finds that Dr. Brockbank is currently registered with DEA as a practitioner under DEA Certificate of Registration AB2053027. According to information in the investigative file, on October 18, 2004, Dr. Brockbank entered into a Consent Agreement for Surrender of Active License (Consent Agreement) with the Arizona Medical Board. In that Consent Agreement Dr. Brockbank admitted prescribing narcotic medications to two female patients without obtaining and recording detailed patient and family histories, performing minimum physical examinations or informing the individuals of the risks and benefits of taking the controlled medications. These actions were found to be outside the standard of care for a physician licensed to practice in Arizona. Dr. Brockbank also admitted making ``house calls'' to two female patients, where he injected them with controlled substances and then made sexual comments and advances toward them.

The Arizona Board concluded Dr. Brockbank had engaged in unprofessional conduct under state law

[[Page 30168]]

and directed him to immediately surrender his license to practice medicine. There is no evidence before the Deputy Administrator that the Consent Agreement has been modified, lifted or stayed or that Dr. Brockbank's Arizona medical license has been renewed or reinstated.

Pursuant to 21 U.S.C. 824(a)(3), the Deputy Administrator may revoke a DEA Certificate of Registration if she finds the registrant has had his state license revoked and is no longer authorized to dispense controlled substances in the jurisdiction of registration. Alternatively, revocation is authorized if the registrant has committed such acts as would render his registration contrary to the public interest, as determined by factors listed in 21 U.S.C. 823(f). See Thomas B. Pelkowski, D.D.S., 57 FR 28,538 (1992).

Nevertheless, despite Dr. Brockbank's egregious prescribing activities, his grossly inappropriate conduct with female patients and the public interest factors that are implemented by such unprofessional and unlawful conduct, his lack of state authorization to handle controlled substances is dispositive of this matter.

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 Rory Patrick Doyle, M.D., 69 FR 11,655 (2004); Dominick A. Ricci, M.D., 58 FR 51,104 (1993); Bobby Watts, M.D., 53 FR 11,919 (1988).

Here, it is clear Dr. Brockbank surrendered his medical license and it is reasonable to infer that he is currently not authorized to handle controlled substances in Arizona and is therefore not entitled to a DEA registration in that state. As a result of the finding that Dr. Brockbank lacks any state authorization to handle controlled substances, the Deputy Administrator concludes it is unnecessary to address further whether his DEA registration should be revoked based upon the public interest grounds asserted in the Order to Show Cause and Immediate Suspension of Registration. See Gilbert C. Aragon, Jr., D.O., 69 FR 58,536 (2004); Samuel Silas Jackson, D.D.S., 67 FR 65,145 (2002); Nathaniel-Aikens-Afful, M.D., 62 FR 16,871 (1997); Sam F. Moore, D.V.M., 58 FR 14,428 (1993).

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, AB2053027, issued to Kevin Dean Brockbank, 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 June 26, 2006.

Dated: May 5, 2006. Michele M. Leonhart, Deputy Administrator.

[FR Doc. 06-4837 Filed 5-24-06; 8:45am]

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