[Federal Register Volume 59, Number 28 (Thursday, February 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3026]
[[Page Unknown]]
[Federal Register: February 10, 1994]
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DEPARTMENT OF JUSTICE
[Docket No. 92-36]
Jerry Neil Rand, M.D.; Denial of Application
On February 13, 1992, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Jerry Neil Rand, M.D. (Respondent), of San
Diego, California, proposing to deny his application for registration
as a practitioner on grounds that his registration would be
inconsistent with the public interest, as set forth in 21 U.S.C.
823(f). The Order to Show Cause alleged that from at least mid-1986
Respondent self-administered hypnotic sedatives and pain medication; on
November 21, 1987, Respondent was arrested for the illegal possession
of Schedule III and IV controlled substances in Orange County,
California; in May 1988, the Medical Board of California filed a
complaint against the Respondent alleging that he was intoxicated while
attending a patient, that he failed to supervise his physician
assistants by pre-signing prescriptions, and that he engaged in
unprofessional conduct in the treatment of five patients; and the
Medical Board of California (Medical Board), on September 18, 1989,
entered a stipulated decision and order which revoked the Respondent's
medical license, and then stayed that order and placed him on five
years probation.
Respondent, through counsel, filed a request for hearing on the
issues raised by the Order to Show Cause, and the matter was docketed
before Administrative Law Judge Mary Ellen Bittner. Following
prehearing procedures, a hearing was held in San Diego, California on
June 25, 1992. On July 7, 1993, in her opinion and recommended ruling,
findings of fact, conclusions of law, and decision, the administrative
law judge recommended that the Respondent's application for a DEA
Certificate of Registration be granted subject to certain restrictions.
No exceptions to Judge Bittner's opinion were filed by either
party. On August 9, 1993, the administrative law judge transmitted the
record to the Administrator.
The Acting Administrator has carefully considered the entire record
in this matter and, pursuant to 21 CFR 1316.67, hereby issues his final
order in this matter based upon findings of fact and conclusions of law
as hereinafter set forth.
The administrative law judge found that the Respondent is a
licensed physician in the State of California, under probation from the
Medical Board. He graduated from the Chicago Medical School in 1972 and
specialized in emergency medicine at hospitals in Illinois and
California. In 1984, the Respondent opened an urgent care center in
Orange County, California, which he operated until his entry into a
drug rehabilitation program in April 1988.
The administrative law judge found that the Respondent sent a
letter to the DEA in February 1990, advising that he had voluntarily
terminated his previous DEA registration. Subsequently, in July 1990,
Respondent submitted an application for a new DEA Certificate of
Registration.
During the hearing, the Government presented evidence that over a
period of several years, from at least mid-1986, the Respondent was
accused of self-administering hypnotic sedatives and pain medications,
including a daily dose of 40 to 50 mg. of Valium, a Schedule IV
controlled substance; that the Respondent entered three separate
substance abuse treatment facilities in August, October, and November
of 1987, where he was diagnosed as drug dependent; that on November 21,
1987, Respondent was arrested in Orange County, California for illegal
possession of controlled substances for his own use, including
Dolophine, a Schedule II controlled substance, Anexsia, Fiorinal and
Fioricet, Schedule III controlled substances, and Darvon, a Schedule IV
controlled substance, which resulted in a State court issuing a
temporary restraining order prohibiting the Respondent from practicing
medicine; that on September 18, 1989, the Medical Board issued a
stipulated decision and order which revoked Respondent's medical
license, stayed the revocation, and placed the Respondent on five years
probation; that the Respondent's ex-girlfriend had told a Medical Board
investigator that Respondent had abused Demerol, a Schedule II
controlled substance, in his home, that he had telephoned local
pharmacies for controlled substance deliveries to his home or office,
and that he had abused barbiturates; that an employee of the Respondent
told an investigator that Demerol was routinely missing from office
stock, and that the Respondent kept unsecured controlled substance
samples in his desk; and that a State audit of the Respondent's office
had determined that he could only account for nine of fifty-six DEA
Schedule II order forms that he had received in 1986.
Respondent testified at the hearing that he did not believe that
all of the Government's evidence was factually correct. He maintained
that the Anexsia found by the Orange County police was prescribed by an
orthopedist, and the other noted substances were office samples. He
also disagreed with his ex-girlfriend's representation, and asserted
that she was a Demerol abuser, and in fact that he was allergic to
Demerol. Regarding his office practice, he admitted that he had pre-
signed prescriptions for his physician assistants, but was not sure
what happened to his DEA Schedule II order forms.
The administrative law judge found that in May 1988, the Medical
Board filed an accusation alleging that the Respondent had been
arrested in 1987; had been diagnosed as drug dependent; that as a
result of his usage of controlled substances or dangerous drugs he had
``become a danger to himself, other persons or the public, or has
impaired his ability to practice his profession safely''; had treated a
patient while intoxicated; and failed to adequately supervise physician
assistants by signing blank prescription forms. A supplemental
accusation, filed in June 1988, and amended in March 1989, alleged that
between 1985 and 1986, the Respondent provided incompetent and grossly
negligent medical care to five patients.
The administrative law judge found that the Respondent admitted the
substantive allegations of the accusations when he entered into a
stipulated decision and order with the Medical Board. The order,
effective September 25, 1989, revoked Respondent's medical license,
stayed the revocation and placed Respondent of five years probation.
The order further required, inter alia, that the Respondent enter a
drug rehabilitation program, an refrain from practicing medicine until
the Medical Board and the drug rehabilitation program concluded that it
would be safe for him to reenter the practice of medicine.
The Respondent testified that he suffered a back injury in 1984,
and received a regimen of treatment which included traction and various
controlled substances. In 1986, he had spinal fusion surgery and was
continued on pain medications and anti-depressants. He testified that
various physicians and psychiatrists prescribed controlled substances
for pain, and he would frequently overdose, which included the night of
his arrest by Orange County police. The Respondent testified that he
entered a methadone treatment center in 1987, which did not help; was
subsequently hospitalized for three weeks, where he only received more
pain medication; and then entered a three week drug abuse
rehabilitation program at Saint Joseph's Hospital in April 1988.
Witnesses for the Respondent, including a chemical dependency
counselor, a psychiatrist, and physicians testified that after
Respondent left St. Joseph's Hospital, he attended an inpatient drug
rehabilitation program at Rancho L'Abri for two-and-a-half months,
where he received detoxification treatment and therapy; he then moved
to Alternative Solutions, a halfway house type of recovery center,
where he resided for approximately two years. The witnesses agreed that
the Respondent had embraced the recovery program, had made steady
progress, was aware of the negative impact of drugs, and had abstained
from drugs. Various letters from other individuals also attested to the
Respondent's attendance in recovery programs.
Witnesses also testified as to the Respondent's continuing
participation in the Medical Board Diversion Program in which he
attends mandated twice weekly counseling, and submits to random visits
from compliance officers and urine screenings. The Respondent testified
that for the 18 months following his stay at the halfway house, he was
employed in a clinic where he engaged in general practice and addiction
medicine.
The Administrator may deny an application for registration if he
determines that such registration would be inconsistent with the public
interest. Pursuant to 21 U.S.C. 823(f), ``[i]n determining the public
interest, the following factors shall be considered:
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting
research with respect to controlled substances.
(3) The applicant's conviction record under Federal or State laws
relating to the manufacture, distribution, or dispensing of controlled
substances.
(4) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health and
safety.''
It is well established that these factors are to be considered in
the disjunctive, i.e., the Administrator may properly rely on any one
or a combination of factors, and give each factor the weight he deems
appropriate. Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 54 FR 16422
(1989).
The administrative law judge concluded that the first, fourth, and
fifth factors were relevant and found that as to the first factor, the
Respondent's medical license is restricted by a five year probation;
that as to factor four, the Respondent unlawfully obtained and abused
controlled substances; and that as to factor five, the Medical Board
findings regarding his treatment of patients were pertinent.
Judge Bittner further found that as a result of his personal abuse
of controlled substances, the Respondent abrogated his professional
responsibilities as a physician and his responsibilities as a DEA
registrant; that he was hospitalized three times for substance abuse;
voluntarily surrendered his previous DEA registration; and had his
State medical license placed on probation for a period of five years.
The administrative law judge concluded that there is a lawful basis for
denying the Respondent's application.
The administrative law judge also found that the Respondent has
demonstrated his current fitness to possess a DEA registration, insofar
as his substance abuse began as a result of a chronic pain condition
generated by a back injury; that the Respondent admitted his drug abuse
and indicated remorse for past misconduct; that the Respondent
presented credible evidence of appropriate medical and rehabilitative
treatment; and that he had not used drugs for over three years
preceding the hearing, and was committed to a drug-free lifestyle.
The administrative law judge found that several witnesses credibly
testified that the Respondent was committed to his recovery. The
administrative law judge further credited the Respondent's stated
intent to establish an addictionology medical practice and his
contention that he needed controlled substance authority to be
effective in this field. Judge Bittner found that the Respondent is
unlikely to abuse controlled substances in the future or otherwise
abuse the privileges of a DEA registrant.
As a result, the administrative law judge recommended that the
Administrator grant the Respondent's application for a DEA registration
subject to certain restrictions. These restrictions included provisions
that the Respondent be limited to prescribing controlled substances,
except in a hospital setting where he would be allowed to administer
controlled substances; that he not possess or store any controlled
substances in his office or home (other than those lawfully prescribed
by another practitioner); that he not dispense, other than by
prescription, any controlled substance from his office or home; that he
not write any controlled substance prescriptions for himself, or any
family member; that he not obtain for his own use any controlled
substances, except on written prescription by another practitioner;
that he notify the DEA on each occasion he acquires a controlled
substance by prescription; that he submit quarterly to the DEA for a
period of two years a log of all controlled substance prescriptions he
issues; and finally that he complete an appropriate continuing medical
education course, approved by the Medical Board, in the proper handling
of controlled substances.
The Acting Administrator concurs with the administrative law
judge's findings of fact and conclusions of law, except as herein
noted. The Acting Administrator disagrees with the administrative law
judge's finding that the Respondent is unlikely to abuse controlled
substances or the privileges of a registrant in the future. The Acting
Administrator concludes that the Respondent's rehabilitative efforts,
although laudable, are not sufficiently complete to ensure that he will
not again succumb to the pressures of abusing controlled substances.
The Acting Administrator does not adopt the administrative law judge's
conclusion that the Respondent's registration, even with certain
restrictions in place, would be in the public interest. The Acting
Administrator declines to adopt the administrative law judge's decision
and recommendation that the Respondent's application be granted.
Accordingly, the Acting Administrator finds that the registration of
the Respondent would not be in the public interest at this time.
The Acting Administrator of the Drug Enforcement Administration,
pursuant to the authority vested in him by 21 U.S.C. 823 and 824 and 28
CFR 0.100(b), hereby orders that the application for a DEA Certificate
of Registration of Jerry Neil Rand, M.D., be, and it hereby is, denied.
This order is effective February 10, 1994.
Dated: February 4, 1994.
Stephen H. Greene,
Acting Administrator of Drug Enforcement.
[FR Doc. 94-3026 Filed 2-9-94; 8:45 am]
BILLING CODE 4410--09-M