[Federal Register Volume 59, Number 141 (Monday, July 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17946]


[[Page Unknown]]

[Federal Register: July 25, 1994]


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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 89-46]

 

James H. Brown, M.D.; Revocation of Registration

    On May 26, 1989, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to James H. Brown, M.D. (Respondent), of New 
Orleans, Louisiana, proposing to revoke his DEA Certificate of 
Registration, AB3370967, and deny any pending applications for renewal 
of such registration. The statutory basis for the Order to Show Cause 
was that Dr. Brown's continued registration would be inconsistent with 
the public interest, as that term is used in 21 U.S.C. 823(f).
    Respondent, through counsel, requested a hearing on the issues 
raised by the Order to Show Cause. Following prehearing procedures, a 
hearing was held in New Orleans, Louisiana, on March 31 and April 1, 
1993. On January 25, 1994, in her findings of fact, conclusions of law, 
and recommended ruling, the administrative law judge recommended that 
Respondent's DEA Certificate of Registration be revoked.
    On February 11, 1994, Respondent filed exceptions to Judge 
Bittner's recommended ruling pursuant to 21 CFR 1316.66, and on 
February 28, 1994, 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 the Respondent is a 
psychiatrist who graduated from medical school in 1947. Respondent, as 
of the date of the hearing, maintained a private practice as a 
psychiatrist in New Orleans, Louisiana.
    The administrative law judge found that in November or December 
1986, an informant told DEA that Respondent issued prescriptions for 
controlled substances in exchange for money. Consequently, on several 
occasions between December 3, 1986 and February 26, 1987, the informant 
and an undercover police officer purchased controlled substance 
prescriptions from Respondent for no legitimate medical reason.
    During the first visit on December 3, 1986, the informant advised 
the Respondent that she wanted to purchase Valium, a Schedule IV 
controlled substance, to use with her boyfriend. The informant did not 
provide the Respondent with any medical problem or condition, and paid 
the Respondent $80.00 in exchange for a prescription for 60 dosage 
units of Valium.
    During the second visit on December 12, 1986, the informant told 
the Respondent that her boyfriend had swapped some of the Valium 
Respondent had prescribed for Seconal, a Schedule II controlled 
substance. The informant then asked for some Seconal, telling 
Respondent that she and her friends liked to use the drug. The 
Respondent issued a prescription for 30 Seconal in exchange for $80, 
and told the informant to destroy the pill bottle.
    On January 8, 1987, an undercover police officer accompanied the 
informant to Respondent's office, posing as her boyfriend. The 
Respondent wrote both the undercover officer and the informant 
prescriptions for 30 Seconal in exchange for $160. The officer 
testified at the hearing that Respondent did not perform any physical 
examination on either of them, nor was there any discussion of any 
medical problems.
    On February 10, 1987, the informant returned alone to Respondent's 
office. Respondent issued two prescriptions, one in the informant's 
name, and one in the name of the undercover officer. Each prescription 
was for 30 Seconal and informant paid the Respondent $160. On February 
26, 1987, the undercover officer went to Respondent's office alone,and 
received two prescriptions for Seconal, in exchange for $160, again 
with one prescription in the name of the undercover officer and the 
other in the informant's name.
    On August 3, 1987, a search warrant was executed at Respondent's 
office which revealed handwritten notes regarding the informant and the 
undercover officer in a file, and prescription bottles of various 
controlled substances which bore the names of other physicians. 
Respondent stated that the bottles were brought in by patients who no 
longer used those drugs, and that he dispensed them to other patients 
as needed. Respondent did not maintain an inventory of the drugs nor 
did he know the expiration dates of the medication. Respondent 
testified at the hearing that patients sometimes gave him medications 
they they had been prescribed by other physicians, and that he 
sometimes gave small quantities of these drugs to other patients as a 
trial before issuing prescriptions for the patients.
    On July 30, 1987, Respondent was indicted by the grand jury of the 
United States District Court for the Eastern District of Louisiana on 
eight felony counts of violating 21 U.S.C. 841 for issuing 
prescriptions for controlled substances to the informant and the 
officer. On September 15, 1987, a superseding information was filed 
charging Respondent with one misdemeanor count of violating 18 U.S.C. 2 
and 21 U.S.C. 844 by aiding and abetting the possession of Valium that 
was not dispensed in the normal course of professional practice or for 
a legitimate medical purpose. On September 17, 1987, Respondent pled 
guilty to the misdemeanor count, and the indictment was dismissed. On 
November 20, 1987, Respondent was placed on two years active probation, 
ordered to perform 250 hours of community service, fined $25,000, and 
ordered to pay a special assessment of $25. On March 29, 1988, the 
court denied Respondent's motion for reduction of sentence.
    On November 12, 1987, Respondent surrendered his DEA registration 
with respect to Schedule II controlled substances. Respondent testified 
that he was initially asked to surrender his registration in all 
schedules, but refused, believing that he was to retain his Schedule 
III through V privileges as part of the plea agreement, and that when 
he was later issued a registration in Schedules III through V, he 
understood it to be pursuant to the plea agreement. The administrative 
law judge found that the plea agreement specified that Respondent would 
surrender his DEA registration in Schedule II, did not refer to 
Schedules III through V, and explicitly stated that ``no other promise 
has been made or implied by or for either the [Respondent] or the 
[United States Attorney's Office]''.
    On March 5, 1993, Respondent filed a Motion to Enforce Plea 
Agreement in the United States District Court for the Eastern District 
of Louisiana, alleging that he agreed to plead guilty to a misdemeanor 
and to surrender his DEA registration in Schedules I and II in return 
for the Government's agreement to dismiss the indictment and forego 
forfeiture and administrative revocation proceedings. On March 10, 
1993, the court denied Respondent's motion on grounds that the plea 
agreement was not ambiguous but, rather, silent as to Respondent's 
Schedule III through V privileges, and that if it had been the 
intention of the parties to preclude DEA from proceeding against 
Respondent's registration in those schedules, it could have been 
indicated in the plea agreement.
    The administrative law judge found that on July 22, and November 
18, 1988, the Louisiana State Board of Medical Examiners (Board) 
conducted a hearing on charges that Respondent's prescribing to the 
informant and the officer violated the Louisiana Medical Practice Act. 
On December 9, 1988, the Board issued a decision in which it found that 
Respondent's prescribing was for an illegitimate purpose motivated by 
financial gain. However, based on its finding that Respondent's 
activity was unlikely to recur in the future, the Board suspended 
Respondent's medical license for two years, stayed all but four months 
of the suspension and imposed terms of probation, including that 
Respondent not handle any controlled substances, that he obtain at 
least 50 hours of continuing medical education per year, and that he 
pay a fine of $5,000.
    On December 19, 1988, Respondent filed an Application for 
Rehearing, which was denied by the Board on January 5, 1989. Respondent 
then filed a request in state court for reversal of the Board's order 
or a remind for further proceedings. Following an evidentiary hearing, 
on April 29, 1991, the court remanded the case to the Board for 
issuance of a new decision. On June 20, 1991, the Board issued another 
decision making the same findings and imposing the same sanctions as 
the initial decision. Respondent again appealed to the court, which 
stayed the Board's order. The stay was still in effect as of the date 
of the hearing in this matter.
    Respondent admitted at the administrative hearing that he was 
``lax'' with respect to his prescribing to the informant and the 
officer. Respondent also testified that the individuals paid him for 
their office visits, not for the prescriptions, and that the informant 
told him that she was nervous and had headaches. However, Respondent 
later acknowledged that the informant denied having headaches or 
tension, and that Seconal is not prescribed for headaches. Respondent 
testified that he believed that the informant and the undercover 
officer manipulated him. The Respondent further testified that the loss 
of his DEA registration would make it difficult to treat his patients, 
and to his willingness to cooperate with DEA in verifying compliance 
with the rules and regulations surrounding a DEA registration.
    Respondent presented the testimony of several witnesses as to his 
professional competence and concern for his patients. Included among 
these witnesses was a patient of Respondent, two psychiatrists, 
Respondent's brother, two of his sons, as well as his daughter-in-law. 
The witnesses testified to Respondent's exemplary character and his 
exceptional abilities as a medical provider; to the devastating impact 
of the criminal and disciplinary proceedings upon the Respondent; and 
to the unlikelihood that Respondent would abuse his controlled 
substance privileges in the future. However, the administrative law 
judge accorded little weight to their testimony since the witnesses did 
not appear to be fully apprised of the extent of Respondent's 
misconduct.
    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. In determining the public 
interest, the following factors are 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 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 DEA 
registration, the administrative law judge found factors one through 
four relevant in light of the evidence regarding the prescriptions 
Respondent issued to the informant and undercover police officer; his 
transfer of controlled substances among patients; the action taken by 
the Board; and Respondent's subsequent conviction.
    The administrative law judge found that the informant obtained 
Valium from the Respondent on her first visit to him, although she 
presented no medical condition warranting the prescription. The 
administrative law judge also found that on the next visit, the 
informant told Respondent that her boyfriend swapped some of the 
previously prescribed Valium for Seconal; Respondent warned the 
informant that she should not use the drug ``just to get high''; and 
the informant did not indicate any medical need for controlled 
substances. Nonetheless, Respondent gave the informant a prescription 
for Seconal. In addition, Respondent issued prescriptions for Seconal 
for the informant and the undercover officer when they visited him 
together; when the informant later visited Respondent by herself; and 
when the officer subsequently visited Respondent by himself.
    The administrative law judge found that the Respondent took no 
medical history and conducted no physical examinations during any of 
the visits, and that neither of the individuals demonstrated a medical 
need for the prescriptions they received. Therefore, the administrative 
law judge found that Respondent's prescriptions to the informant and 
the officer were not issued for a legitimate medical purpose.
    The administrative law judge further found that although Respondent 
conceded that he was ``lax'' in his prescribing of controlled 
substances, he has not acknowledged that he abused the privileges he 
held as a DEA registrant, and that under the circumstances, little 
credence should be placed upon Respondent's testimony that he will be 
more careful in the future if permitted to retain his DEA registration 
in Schedules III through V. Therefore, Judge Bittner concluded that 
Respondent's continued registration would not be consistent with the 
public interest, and recommended that Respondent's DEA registration be 
revoked and that any pending applications be denied. The Respondent 
filed exceptions to the administrative law judge's recommendation 
incorporating the arguments in his post-hearing brief filed on July 17, 
1993.
    The Deputy Administrator having considered the entire record adopts 
the administrative law judge's findings of fact, conclusion of law, and 
recommended ruling in its entirety. The Deputy Administrator considered 
the arguments made by Respondent in his exceptions to the extent 
already considered by the administrative law judge in rendering her 
recommendation and adopted herein.
    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 (59 FR 23637), hereby orders 
that DEA Certificate of Registration, AB3370967, issued to James H. 
Brown, M.D., be and it hereby is, revoked, and any pending applications 
be, and they hereby are, denied. This order is effective August 24, 
1994.

    Dated: July 15, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-17946 Filed 7-22-94; 8:45 am]
BILLING CODE 4410-09-M