[Federal Register Volume 59, Number 126 (Friday, July 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15996]


[[Page Unknown]]

[Federal Register: July 1, 1994]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 92-68]

 

Lynn L. Pearson, M.D., Denial of Application

    On June 23, 1992, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Lynn L. Pearson, M.D. (Respondent), of Jasper, 
Texas, 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 in May 1986, the Respondent was convicted of 
two felony counts of violating 21 U.S.C. 841(a)(1), for the unlawful 
dispensing of the Schedule II controlled substances Percodan, Dilaudid, 
and Dolophine, and was sentenced to eight years imprisonment; that the 
Respondent's previous DEA Certificate of Registration was revoked in 
July 1987; that in February 1988, the Texas State Board of Medical 
Examiners (Board) revoked his license to practice medicine, stayed the 
revocation, and placed his license on ten years probation; and that in 
May 1991, the California Medical Board revoked the Respondent's medical 
license.
    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, the parties waived personal appearances, and 
agreed to submit matters upon affidavit and documentary evidence. On 
February 1, 1994, 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 conditions. The Government 
filed exceptions to Judge Bittner's opinion. On March 11, 1994, the 
administrative law judge transmitted the record to the 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 the Respondent is a Board 
certified orthopedic surgeon licensed to practice medicine in the State 
of Texas. On May 22, 1986, before the United States District Court for 
the Southern District of Texas, the Respondent was convicted of two 
felony counts of a violation of 21 U.S.C. 841(a)(1), for the unlawful 
dispensing of Percodan, Dilaudid, and Dolophine, all Schedule II 
controlled substances. The conviction was affirmed on appeal. In its 
decision, the Court of Appeals noted that two of the Respondent's 
patients had testified that Respondent prescribed them Dilaudid for 
$10.00 per pill, and that Respondent had prescribed 8,920 dosage units 
of Dilaudid and 650 dosage units of Percodan for these two patients. On 
October 20, 1986, as a result of these convictions, the DEA issued an 
Order to Show Cause proposing to revoke Respondent's previous 
registration. On July 31, 1987, pursuant to a Memorandum of Agreement 
between the Respondent and DEA, Respondent's DEA registration was 
revoked.
    The administrative law judge found that on February 8, 1988, the 
Texas State Board of Medical Examiners (Board) ordered that 
Respondent's medical license be revoked, stayed that revocation, and 
placed his license to practice medicine on probation for ten years. The 
terms of this probation limited the Respondent to practicing medicine 
without pay at a local community health center and prohibited 
Respondent from possessing, dispensing or prescribing any controlled 
substance.
    The administrative law judge found that in May 1990, the United 
States District Court discharged the Respondent from any further 
sentence, noting his service as a volunteer physician, the esteem 
accorded him by his patients and peers, and the supervision of the 
Board. In June 1990, the Board modified its previous order, permitting 
the Respondent to apply for State and DEA controlled substance 
registrations in Schedules II through V. Respondent was issued a Texas 
State controlled substance registration in February 1992.
    The administrative law judge found that in an affidavit submitted 
by Respondent, Respondent expressed remorse for his past treatment of 
one of his patients and indicated that he had treated more than 50,000 
patients in the community health center over the past several years. 
Respondent requested registration in Schedules III through V and ``to 
have in-house prescribing capabilities'' for Schedules II through V. 
The chief of staff of the local area hospital submitted an affidavit 
stating that Respondent was honest, maintained an active orthopedic 
practice, and was an outstanding member of the hospital staff. The 
administrator of the same hospital filed a letter stating that for a 
period of time, the Respondent was the only full time physician at the 
local community health center, was on call 24 hours a day, treated many 
indigent patients, and saw at least sixty patients per day. He further 
indicated that Respondent was serving as Chief of Surgery at the 
hospital and had the highest respect of his peers. Other health care 
professionals submitted letters or affidavits stating that they were 
unaware of any incidents of mis-prescribing of medications and that the 
Respondent kept appropriate medical records, complied with hospital 
rules and regulations, and was aware of the responsibilities of 
prescribing controlled substances.
    The Deputy 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 of 
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 controlling 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 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 found that the first four factors were 
relevant in determining whether the application should be granted. As 
to the first factor, the Deputy Administrator finds that the Texas 
Board permitted the Respondent to apply for a DEA Certificate of 
Registration in Schedules II through V, and granted Respondent a State 
Controlled Dangerous Substances registration in February 1992. As to 
the second factor, the Deputy Administrator finds that in 1981, the 
Respondent illegally dispensed, for personal gain, significant 
quantities of Schedule II controlled substances. Regarding the third 
factor, the Deputy Administrator finds that in 1986, the Respondent was 
convicted of two felony counts of illegally dispensing controlled 
substances, and finally, as to the fourth factor, the Deputy 
Administrator finds that in 1981, the Respondent violated both State 
and Federal laws relating to controlled substances.
    The administrative law judge concurred with the Government's 
contention that the Respondent has not demonstrated that he is fully 
cognizant of his responsibilities as a DEA registrant. The 
administrative law judge recommended that the Respondent's application 
be granted in Schedule III through V with a restriction that he be 
authorized only to prescribe these medications, and to order or 
administer them to hospitalized patients, but that he not be authorized 
to maintain a supply for dispensing to outpatients. The administrative 
law judge further recommended that upon a showing by Respondent that he 
has completed a course in handling controlled substances, approved by 
the Board for continuing medical education credit, he be granted the 
authority to handle Schedule II controlled substances, subject to the 
same restrictions outlined above.
    The Government filed exceptions to the recommendation of the 
administrative law judge contending that Judge Bittner gave undue 
weight to the affidavits submitted by Respondent and failed to give 
appropriate weight to the Government's evidence. The Government noted 
that the Board stayed the revocation of Respondent's medical license 
only if Respondent would engage in voluntary unpaid practice, and that 
his criminal sentence was reduced in light of this community service. 
The Government also argued that it has established a prima facie case 
for denial of registration under 21 U.S.C. 823(f).
    The Deputy Administrator concurs with the administrative law 
judge's findings of fact and conclusions of law, except as herein 
noted. The Deputy Administrator finds that the Government has made a 
prima facie showing in support of denial of Respondent's application. 
The Deputy Administrator finds that, in light of the Government having 
met its burden of proof, the Respondent has not adequately shown that 
the public interest would be protected, particularly with regard to 
Schedule II controlled substances, and further, that the Respondent's 
past illegal activities outweight his affidavit evidence of character 
and rehabilitation offered in mitigation.
    The Deputy Administrator declines to 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 
Deputy Administrator concludes that the Respondent's registration at 
this time would not be in the public interest. The Deputy Administrator 
further finds that, if, after a period of one year from the date of 
this order, the Respondent presents additional evidence of educational 
improvements with regard to handling controlled substances, and 
continued rehabilitative efforts to indicate that he is cognizant of 
his responsibilities as a DEA registrant, a new application for at 
least partial registration will be given favorable consideration.
    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 (59 FR 23637), hereby orders that the 
application of Lynn L. Pearson, M.D., for registration as a 
practitioner, be, and it hereby is, denied. This order is effective 
July 1, 1994.

    Dated: June 24, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-15996 Filed 6-30-94; 8:45 am]
BILLING CODE 4410-09-M