[Federal Register Volume 59, Number 113 (Tuesday, June 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14335]


[[Page Unknown]]

[Federal Register: June 14, 1994]


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DEPARTMENT OF JUSTICE
[Docket No. 93-21]

 

Wilbert McClay, Jr., M.D.; Revocation of Registration

    On November 24, 1992, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Wilbert McClay, Jr., M.D. (Respondent), of Baton 
Rouge, Louisiana, proposing to revoke his DEA Certificate of 
Registration, AM3221708, and deny any pending applications for 
registration as a practitioner. The statutory basis for seeking the 
revocation of the Certificate of Registration was that Respondent's 
continued registration would be inconsistent with the public interest, 
as that term is used in 21 U.S.C. 823(f) and 21 U.S.C. 824(a)(4).
    Respondent, through counsel, requested a hearing on the issues 
raised by the Order to Show Cause, and the matter was docketed before 
Administrative Law Judge Paul A. Tenney. Following prehearing 
procedures, a hearing was held in New Orleans, Louisiana on August 10, 
1993. On October 6, 1993, in his findings of fact, conclusions of law, 
and recommended ruling, the administrative law judge recommended a 
suspension of Respondent's DEA registration, to run concurrently with 
the suspension of his medical license by the Louisiana State Board of 
Medical Examiners, as well as the concurrent indefinite suspension of 
his Schedule II privileges.
    On October 18, 1993, the Government filed exceptions to Judge 
Tenney's opinion, and on November 8, 1993, the administrative law judge 
transmitted the record to the then-Acting Administrator. The Deputy 
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 in August 1984, a hearing 
was held before the Louisiana State Board of Medical Examiners (Board) 
to determine whether Respondent prescribed legally controlled 
substances in other than a legal or legitimate manner, and to allow him 
to respond to charges of ``medical incompetency'' under the Louisiana 
State Medical Practice Act. The charges were based on an investigation 
conducted by the Louisiana Division of Narcotics and Dangerous Drugs. 
The investigation revealed that from January 1979 through October 1982, 
Respondent prescribed a number of Schedule II controlled substances.
    Following the hearing, the Board issued a decision on January 31, 
1985, in which it found that Respondent had issued prescriptions 
without a legitimate medical purpose and ordered that Respondent's 
license to practice medicine be suspended for three months, followed by 
a three-year period of probation. The Board further ordered that 
Respondent surrender his state and Federal permits to handle Schedule 
II and Schedule III controlled substances. After the three year 
probation period, the Board reinstated Respondent's Schedule III 
privileges, however, his Schedule II privileges remained suspended 
indefinitely.
    In April 1988, the Respondent contacted the Board's Executive 
Secretary concerning his probationary status. The Executive Secretary 
erroneously advised the Respondent that because he had successfully 
completed his probation, his medical license and controlled substances 
privileges were unrestricted.
    In addition, the Executive Secretary mistakenly mailed a 
notification letter to the Louisiana Department of Health and Human 
Resources, Division of Licensing and Certification, informing them that 
Respondent's Schedule II controlled substances privileges were no 
longer restricted. Upon discovering the error, the Executive Secretary 
attempted unsuccessfully to telephone the Respondent. Following 
Respondent's probation period, DEA issued Respondent a Certificate of 
Registration limited to Schedules IV and V, and in reliance on the 
Board's incorrect information, Respondent's DEA registration was 
modified to include Schedule II and III in June 1988. The registration 
was renewed on March 3, 1990, in Schedules II-V.
    On July 29, 1988, the Board's Executive Secretary sent a letter to 
the Respondent advising him that she had misread the Board's 1985 order 
and that the Respondent remained without Schedule II privileges. On 
August 1, 1988, the Program Manager for the Division of Licensing and 
Certification at the Louisiana Department of Health and Human Resources 
sent Respondent a copy of his state controlled substances license and 
informed the Respondent that since his medical license had been 
restricted by the Board, his controlled substances license must also be 
restricted.
    After receiving erroneous information from the Board that 
Respondent had an unrestricted medical license, the Division of 
Licensing and Certification sent a second letter to the Respondent on 
August 19, 1988, with an enclosed unrestricted state controlled 
substances license.
    When the Board was informed that Respondent had been issued an 
unrestricted state controlled substances license, the Board again wrote 
to the Respondent on September 12, 1988, advising him that he had been 
mistakenly issued an unrestricted controlled substances registration 
and that his Schedule II privileges remained suspended.
    On September 29, 1988, the Respondent appeared before the Board to 
request that the Board lift the restrictions that had been placed on 
his medical license and prescribing privileges. The Board informed the 
Respondent that his schedule II privileges would remain suspended.
    In July 1991, the Board received information that the Respondent 
had written three prescriptions in 1991 for Schedule II controlled 
substances. On July 2, 1991, DEA contacted the Respondent by telephone, 
requesting that he surrender his registration so that it could be 
modified to reflect an authorization to handle Schedules III-V. 
Respondent informed DEA that it received incorrect information from the 
Board, and that Respondent was, in fact, permitted to prescribe 
Schedule II controlled substances, The DEA also sent Respondent a 
letter dated July 23, 1991, requesting the voluntary surrender of his 
Schedule II and IIN privileges. Shortly thereafter, the Respondent 
notified DEA in writing of his refusal to voluntarily surrender his 
Schedule II privileges.
    The Respondent testified at the administrative hearing that because 
of his relocation to another office, he did not receive the August 1, 
1988 notice from the Program Manager for the Division of Licensing and 
Certification regarding the restrictions that were placed on his 
medical license and controlled substances license until the summer of 
1992. The Respondent also testified that although he received the 
September 12, 1988 letter from the Board advising him that he had been 
mistakenly issued an unrestricted controlled substances registration 
and that his Schedule II privileges remained suspended, he did not read 
it because, in his opinion, ``the letter was * * * moot.'' The 
administrative law judge found Respondent's testimony in this regard 
not credible, since the Respondent implicitly demonstrated knowledge of 
the contents of the letters by appearing before the Board in September 
1988 to request that the restrictions be removed from his medical 
license.
    The Respondent also admitted at the administrative hearing that he 
wrote three prescriptions for Schedule II controlled substances in 1991 
and that he was unaware of any restriction that would have prohibited 
him from prescribing these controlled substances. Respondent further 
testified that DEA did not ask him to surrender his DEA registration.
    In December 1991, Respondent appeared before the Board to respond 
to charges that he prescribed Schedule II controlled substances in 
violation of the restrictions placed on his license by the Board in 
January 1985. On January 9, 1992, the Board issued its decision and 
order and found that Respondent was at all times aware of the 
restrictions placed on his license by the order of January 31, 1985. As 
a result, effective April 1, 1992, the Board suspended Respondent's 
medical license for six months, and continued the indefinite suspension 
of his Schedule II prescribing privileges.
    In June 1992, the Civil District Court for the Parish of New 
Orleans, State of Louisiana, granted Respondent's motion for stay of 
the Board's order of suspension of his medical license. On November 12, 
1992, the court denied Respondent's appeal from the decision of the 
Board. Respondent has been granted a second stay of the suspension of 
his medical license, pending the outcome of his appeal filed with the 
Fourth Circuit of the State of Louisiana.
    Pursuant to 21 U.S.C. 823(f) and 824(a)(4) the Deputy Administrator 
may revoke a registration and deny any application for such 
registration, if he determines that the continued registration would be 
inconsistent with the public interest. Section 823(f) requires that the 
following factors be considered:
    (1) The recommendation of the appropriate State licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing controlled substances.
    (3) The applicant's conviction record under Federal or State laws 
relating to the 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 Deputy Administrator may properly rely on 
any one or a combination of the factors and give each factor the weight 
he deems appropriate. See Henry J. Schwarz, Jr., M.D., Docket No. 88-
42, 54 FR 16422 (1989).
    In considering whether grounds exist to revoke Respondent's 
registration pursuant to 21 U.S.C. 824(a)(4), the administrative law 
judge found factors one, two, four and five listed in section 823(f) 
relevant. Factor one is applicable by virtue of the fact that the 
Louisiana State Board of Medical Examiners suspended Respondent's 
Schedule II prescribing privileges indefinitely. Factors two, four and 
five are applicable based upon Respondent's abuse of his Schedule II 
prescribing privileges during the period of January 1979 and October 
1982, and his unauthorized prescribing of Schedule II controlled 
substances on three occasions in 1991.
    Respondent argued that he believed that he was in full compliance 
with State and Federal law since he had a Certificate of Registration 
from both the State of Louisiana and the DEA. The administrative law 
judge concluded that Respondent's reliance upon these mistakenly issued 
documents was unreasonable. Respondent was notified on several 
occasions by both letter and telephone conversations that his Schedule 
II controlled substances privileges had been erroneously reinstated.
    The administrative law judge recommended a suspension of 
Respondent's DEA Certificate of Registration to run concurrently with 
the suspension of Respondent's medical license by the Board. The 
administrative law judge further recommended that the suspension of the 
Respondent's Schedule II privileges be continued for the period of the 
State's suspension, which is currently indefinite.
    The Government filed exceptions to the administrative law judge's 
recommendation of a suspension of Respondent's DEA registration to run 
concurrently with the state's suspension, since the record was not 
clear as to whether the Respondent has already served the six month 
suspension of his state license in view of the various appeals and 
stays of the Board's decision. The Government also took exception to 
the administrative law judge's recommendation that the suspension of 
the Respondent's DEA Schedule II privileges coincide with the state's 
indefinite suspension of those privileges. The Government argued that 
Respondent's flagrant disregard for the rules and regulations 
pertaining to controlled substances warranted, at the very least, 
revocation of his Schedule II privileges.
    The Deputy Administrator having considered the entire record adopts 
the administrative law judge's findings of fact and conclusions of law, 
however, disagrees with both aspects of the recommended ruling of a 
suspension of Respondent's DEA registration. The record is clear that 
Respondent issued controlled substance prescriptions without legitimate 
medical purpose and not in the good faith administration of bona fide 
treatment. The Respondent lost all of his controlled substance 
privileges on two, albeit short, occasions in 1985 (three months) and 
1992 (six months). It is uncontroverted that Respondent lost his 
Schedule II privileges in January 1985, and they were never restored. 
Despite these prohibitions, he prescribed Schedule II controlled 
substances on at least three occasions in 1991, and although he was 
notified on several occasions that the reinstatement of his Schedule II 
privileges was erroneous, he refused to surrender any of his 
registrations. Respondent has shown repeated disregard for the rules 
and regulations relating to controlled substances.
    The Deputy Administrator concludes that a suspension of 
Respondent's DEA Certificate of Registration to run concurrent with the 
Louisiana Board's six month suspension is minimal and ineffective. 
Accordingly, the Deputy 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) and 0.104, hereby orders that DEA 
Certificate of Registration, AM3221708, issued to Wilbert McClay, Jr., 
M.D., be and it hereby is, revoked, however, after one year, favorable 
consideration will be given to an application for a limited 
registration. This order is effective July 14, 1994.

    Dated: June 6, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-14335 Filed 6-13-94; 8:45 am]
BILLING CODE 4410-09-M