[Federal Register Volume 59, Number 160 (Friday, August 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20426]


[[Page Unknown]]

[Federal Register: August 19, 1994]


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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 93-25]

 

Charles A. Buscema, M.D.; Continuance of Registration

    On December 21, 1992, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Charles A. Buscema, M.D. (Respondent), of 
Albany, New York, proposing to revoke his DEA Certificate of 
Registration, BB0636021, and deny any pending applications for 
registration on grounds that he had been convicted of a felony related 
to controlled substances, was not currently licensed to handle 
controlled substances in the state in which he practices, and that his 
continued registration would be inconsistent with the public interest, 
as set forth in 21 U.S.C. 824(a)(2), (3), and (4) and 823(f). The Order 
to Show Cause alleged that: (1) On January 13, 1989, before the Albany 
County Court of the State of New York, Respondent was convicted of one 
felony count of a violation of falsifying business records in the first 
degree, which falsification referred to the dispensation of controlled 
substances, and Respondent was sentenced to five years probation which 
included a provision that he not dispense any controlled substances 
from his office; (2) on November 12, 1990, Respondent voluntarily 
surrendered his DEA Certificate of Registration, AB7544314, for cause; 
(3) on May 29, 1991, the New York State Board of Health entered a 
stipulation and order which found that during the period February 1983 
through November 1987, Respondent dispensed 9,850 dosage units of 
Schedule II controlled substances without preparing a prescription, 
failed to make records of dispensing 5,060 dosage units of controlled 
substances, and made 32 false entries regarding controlled substances 
in patient records, and as a result Respondent was assessed a civil 
penalty and his ability to use official New York State prescription 
forms was revoked for two years; (4) on January 22, 1992, the 
Commissioner, New York Education Department, Board of Regents, granted 
Respondent's application for a consent order with the State Board for 
Professional Medical Conduct, which consent order suspended his medical 
license for a period of six years, stayed execution for five years and 
placed his license on five years probation. As a result, Respondent was 
not licensed to practice medicine in the State of New York for a period 
of one year beginning January 27, 1992.
    Respondent, through counsel, filed a request for 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 Albany, New York on January 13, 1994. 
On April 18, 1994, in his findings of fact, conclusions of law and 
recommended ruling, the administrative law judge recommended that 
Respondent's DEA Certificate of Registration not be revoked and that 
his application for renewal be granted. The Government filed exceptions 
to Judge Tenney's opinion. On May 23, 1994, the administrative law 
judge transmitted the record to the Deputy 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 Respondent received a 
medical degree from Albany Medical College in 1967. After a surgical 
internship in Connecticut, he entered a psychiatric residency at Albany 
Medical Center Hospital and was subsequently made chief of psychiatry 
at Saint Peter's Hospital in Albany.
    The administrative law judge found that in 1986, a review of 
controlled substance order forms by New York State officials indicated 
that Respondent was receiving large quantities of the Schedule II 
controlled substance, amphetamine. In response to a request for medical 
records, Respondent provided the state with order forms indicating his 
purchases and a tabulation to account for his disposal of these drugs. 
Under New York State law, a practitioner is required to complete a 
triplicate prescription form whenever he dispenses any Schedule II 
controlled substance, and to maintain a patient record with evidence of 
examination, complaint, illness, and therapy. Respondent executed no 
such prescriptions to account for his disposition of controlled 
substances. In response to a state request for more documentation, 
Respondent claimed that his records were on computer. Respondent 
subsequently presented an extract of records for 17 patients. State 
investigators were unable to locate nine of these patients, four others 
claimed they had received no such medication, and one was a relative of 
Respondent's spouse. Investigators subsequently interviewed 40 other 
patients, of which only five patients, all relatives of Respondent, 
verified that they had received the controlled substances that 
Respondent attributed to them.
    The administrative law judge found that on January 13, 1989, before 
the Albany County Court of the State of New York, Respondent was 
convicted of one felony count of a violation of falsifying business 
records in the first degree, which falsification referred to the 
dispensation of controlled substances. Respondent was sentenced to five 
years probation which included a provision that he not dispense any 
controlled substances from his office. Subsequently, on November 12, 
1990, Respondent voluntarily surrendered his DEA Certificate of 
Registration, AB7544314, for cause.
    On May 29, 1991, Respondent and the New York State Board of Health 
entered a stipulation and order which found that during the period 
February 1983 through November 1987, Respondent dispensed 9,850 dosage 
units of Schedule II controlled substances without preparing a 
prescription; failed to make records of dispensing 5,060 dosage units 
of controlled substances, and had made 32 false entries regarding 
controlled substances in nine patient care records. Respondent was 
assessed a civil penalty of $30,000, of which $15,000 was stayed. On 
January 22, 1992, the Commissioner, New York Education Department, 
Board of Regents, granted Respondent's application for a consent order 
with the State Board for Professional Medical Conduct. The consent 
order suspended Respondent's medical license for a period of six years, 
stayed execution for five years and placed his license on five years 
probation. As a result, Respondent was not licensed to practice 
medicine in the State of New York for a period of one year beginning 
January 27, 1992. Respondent's medical license was restored on January 
28, 1993.
    At the hearing in this matter, Respondent testified that after his 
state conviction, he was concerned that his wife not be prosecuted or 
charged with any violation of law. He stated that his wife, who had 
also been his office employee, had been sick and was having problems 
with drugs. There was no indication that Respondent used drugs himself. 
Respondent claimed that he voluntarily submitted to random drug testing 
and monitoring, that he never tested positive for drugs; and that he 
will continue to be monitored for another four years. Respondent stated 
that it was his opinion that his wife had taken the amphetamines, but 
he did not know how much. Respondent testified that he attempted to 
counsel his wife for chemical dependency, and he did not get her help 
earlier due to the fact that he had a very high profile psychiatric 
practice in town. His wife subsequently got involved with a 
rehabilitative program, now holds a top nursing job, and has been 
``clean'' from drugs for a number of years. Respondent conceded that he 
made a mistake in the way he handled things and stated that it was an 
error in judgment to stonewall or attempt to cover up his wife's abuse 
of controlled substances. Respondent felt that he paid for this mistake 
and is still doing so.
    The administrative law judge found that Respondent is currently 
employed as a staff psychiatrist for the State of New York. Respondent 
presented testimony from his peers and supervisor that he was well-
liked, extremely motivated, hard-working, knowledgeable, and that he 
was considered exceptionally competent, an excellent clinician, and 
made positive contributions to the state institution and his patients. 
Respondent's supervisor was of the opinion that Respondent could 
competently assume the responsibilities of a DEA registration.
    Under 21 U.S.C. 824(a)(4), the Deputy Administrator may revoke a 
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 Deputy Administrator may properly rely on 
any one or a combination of factors, and give each factor the weight he 
deems appropriate. Paul Stepak, M.D., 51 FR 17556 (1986).
    The administrative law judge found that all five factors were 
relevant in determining whether Respondent's registration should be 
revoked. As to the first factor, the administrative law judge found 
that Respondent has a current license to practice medicine and handle 
controlled substances. As to the second factor, Respondent failed to 
execute prescriptions to account for the disposition of Schedule II 
controlled substances, and attributed controlled substances to patients 
who had not received them. As to the third factor, Respondent was 
convicted of one felony count of falsifying records related to the 
dispensing of controlled substances. As to the fourth factor, 
Respondent violated New York State laws relating to controlled 
substances, and surrendered his previous DEA Certificate of 
Registration for cause. As to the fifth factor, the administrative law 
judge found that there was no indication that Respondent himself has 
abused drugs, but Respondent inferred that his wife took the 
amphetamines due to her own drug problems.
    The administrative law judge found that Respondent's guilty plea to 
the felony was motivated by his desire to spare his wife from 
prosecution. The administrative law judge also found Respondent's 
testimony to be sincere, and gave substantial weight to the fact that 
the State of New York had exacted full and fair retribution for 
Respondent's conviction. Respondent was discharged from probation two 
and one-half years early, and has accepted responsibility for his 
conduct and failures regarding his wife's chemical dependency, which 
has now been successfully treated. Consequently, the administrative law 
judge recommended that Respondent's registration not be revoked.
    The Government filed exceptions to the recommendation of the 
administrative law judge contending that Respondent's testimony had 
failed to respond to the issue of diversion of the controlled 
substances and his subsequent cover-up activity; that Judge Tenney had 
applied undue weight to the character evidence presented by Respondent; 
and that, in any event, Respondent has not shown that he does not pose 
a continuing threat to diversion, especially with regard to Schedule II 
controlled substances.
    The Deputy Administrator concurs with the administrative law 
judge's findings of fact, conclusions of law, and recommended ruling in 
its entirety. 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, BB0636021, issued 
to Charles A. Buscema, M.D., be and it hereby is, continued, and that 
any pending applications, be, and they hereby are, granted. This order 
is effective on August 19, 1994.

    Dated: August 15, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-20426 Filed 8-18-94; 8:45 am]
BILLING CODE 4410-09-M