[Federal Register Volume 59, Number 174 (Friday, September 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22358]


[[Page Unknown]]

[Federal Register: September 9, 1994]


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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 93-12]

 

Dennis E. McBride, M.D.; Grant of Restricted Registration

    On October 15, 1992, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Dennis E. McBride, M.D. (Respondent), of Rhonert 
Park, California, proposing to revoke Respondent's DEA Certificate of 
Registration, BM0555182, and to deny any pending applications for 
registration as a practitioner under 21 U.S.C. 823(f) and 824(a). The 
Order to Show Cause alleged that Respondent's continued registration is 
inconsistent with the public interest, as that term is used in 21 
U.S.C. 823(f) and 824(a)(4) and that Respondent was convicted of a 
felony under State law relating to controlled substances, as set forth 
in 21 U.S.C. 824(a)(2). Specifically, the Order to Show Cause alleged 
that between 1984 and 1985 Respondent was treated on two separate 
occasions for abuse of controlled substances; in June 1985 Respondent 
was granted a medical license by the Board of Medical Quality 
Assurance, State of California, (Medical Board) on a probationary basis 
for five years; between September and December 1989, Respondent issued 
seven prescriptions in order to obtain Vicodin, a Schedule III 
controlled substance, for his own drug addiction; between August and 
December 1989, Respondent purchased Talacen, a Schedule IV controlled 
substance, and Lortab, a Schedule III controlled substance, for his own 
drug addiction; on July 7, 1990, Respondent was convicted in the 
Superior Court of the State of California of one felony count of 
obtaining Vicodin by fraud, deceit or misrepresentation; and in March 
1991, the Medical Board revoked Respondent's medical license but stayed 
such revocation and imposed probationary conditions for five years.
    Respondent, through counsel, timely filed a request for a hearing 
on the issues raised in the Order to Show Cause and the matter was 
docketed before Administrative Law Judge Mary Ellen Bittner. Following 
prehearing procedures, a hearing was held, beginning on September 14, 
1993, in San Francisco, California.
    On April 7, 1994, Judge Bittner issued her opinion and recommended 
ruling, findings of fact, conclusions of law and decision, recommending 
that Respondent's DEA Certificate of Registration be renewed but with 
certain restrictions: Respondent would only be allowed to write 
prescriptions and would not be allowed to dispense, possess or store 
any controlled substances, except that he could administer controlled 
substances in a hospital setting and could possess controlled 
substances obtained pursuant to valid prescriptions issued by another 
practitioner; Respondent would not be allowed to issue any 
prescriptions for his own use; and for at least two years, Respondent 
would be required to keep a log of all prescriptions for controlled 
substances he writes and to send a copy of the log on a quarterly basis 
to the Special Agent in Charge or his designee of the nearest DEA 
office. Neither party filed exceptions to Judge's Bittner opinion and 
recommended ruling.
    On May 11, 1994, Judge Bittner transmitted the record of the 
proceedings to the Deputy Administrator. The Deputy Administrator has 
considered the record and adopts the opinion and recommended decision 
of the administrative law judge in its entirety. Pursuant to 21 CFR 
1316.67, the Deputy Administrator hereby issues his final order in this 
matter.
    The Deputy Administrator finds that, as a teenager, Respondent 
started to abuse various controlled substances and alcohol. The abuse 
continued while he was in medical school and included such substances 
as marijuana, amphetamines and cocaine.
    After medical school, Respondent joined the Navy as a medical 
officer. Between July 27 and August 14, 1984, Respondent wrote 90 
fictitious prescriptions, 82 for Demerol, seven for Nisentil and one 
for morphine, all Schedule II controlled substances, for his own use. 
Respondent was placed in a psychiatric ward for his own safety and 
thereafter entered an inpatient treatment center at the Naval Drug 
Rehabilitation Center at Miramar, California, that lasted approximately 
five weeks.
    Respondent then worked part time in an administrative position at a 
San Francisco hospital while participating in drug abuse therapy and 
support groups. In July 1985, Respondent was tried by court martial and 
dismissed from the Navy for issuing fraudulent prescriptions. After his 
dismissal from the Navy, Respondent obtained a five year probationary 
medical license from the Medical Board, effective April 5, 1985. The 
terms of probation limited Respondent's use of Schedule II and III 
controlled substances to hospital settings only and required Respondent 
to submit to random drug testing and to abstain from the use of 
alcohol.
    Respondent then completed his residency in obstetrics and 
gynecology, working an average of 90 to 100 hours per week. After 
completing his residency, Respondent opened up an office in Sonoma 
County. During this period, Respondent had no real recovery program; he 
attended meetings infrequently, he had no local sponsor and on one he 
worked with knew that he was an addict. Respondent's Medical Board 
compliance officer discovered that Respondent applied for hospital 
privileges at a hospital in August 1987. His application disclosed his 
past alcohol abuse but not his drug addiction problem.
    In 1989, a physician opened a practice with Respondent, sharing his 
staff and equipment, but seeing her own patients. In the Fall of 1989, 
she discovered that the staff had been telephoning local pharmacies 
with oral prescriptions for Vicodin for Respondent using her name as 
the authorizing physician. Since she knew of Respondent's past history 
with drugs, she contacted the Medical Board.
    In December 1989, when Respondent was confronted by his Medical 
Board compliance officer about his use of Vicodin, Respondent explained 
that he had been prescribed the drug by his dentist. Respondent denied 
issuing any unauthorized prescriptions; however, when confronted with 
the seven Vicodin prescriptions, Respondent admitted to issuing the 
fraudulent prescriptions for his own abuse. During the course of the 
investigation, it was also discovered that Respondent had fraudulently 
ordered samples of Lortab and Talacen. Respondent also requested that 
one of his employees bring to the office Vicodin, left over from a 
prescription issued to her by her dentist. The employee complied and a 
week later the Vicodin disappeared.
    On March 5, 1990, Respondent was arrested on felony charges and, on 
July 6, 1990, in the Superior Court of California, County of Sonoma, 
Respondent pled guilty to and was convicted of one count of obtaining 
controlled substances through fraud and deceit. Respondent was 
sentenced to four years probation, fined approximately $5,000, and 
ordered to serve 30 days in a work release program and complete 250 
hours of volunteer work.
    In May of 1990, the Medical Board filed an accusation against 
Respondent based on his relapse in 1989. The matter was resolved by a 
consent decree, placing Respondent's medical license on probation for 
another five year period. The same conditions were imposed that had 
been imposed pursuant to Respondent's first restricted medical license 
issued in 1985, except that there were no restrictions placed on 
Respondent's use of Schedule II and III substances.
    In his testimony at the hearing, Respondent candidly admitted the 
conduct in question and the serious extent of his drug abuse problem. 
In March 1990, Respondent entered an inpatient substance abuse 
treatment facility and after he completed that program became very 
involved in Alcoholics Anonymous and its 12-step recovery program. 
Respondent is not only monitored for drug abuse by his probation 
officer but also by the Medical Board and the California Diversion 
Program for Impaired Physicians. Respondent participates in counseling 
and helping other professionals who are recovering addicts.
    Personal as well as professional colleagues testified on 
Respondent's behalf. They all corroborated Respondent's testimony that 
Respondent has been more dedicated to recovery since his 1989 relapse 
and that he continues to be an excellent physician not allowing his 
work to dominate his life and interfere with his recovery.
    In evaluating whether Respondent's continued registration by the 
Drug Enforcement Administration would be inconsistent with the public 
interest, as that term is used in 21 U.S.C. 824(a)(4), the Deputy 
Administrator considers the factors enumerated in 21 U.S.C. 823(f). 
They are as follows:
    (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.
    In determining whether a registrant's continued registration is 
inconsistent with the public interest, the Deputy Administrator is not 
required to make findings with respect to each of the factors listed 
above. Instead, the Deputy Administrator has the discretion to give 
each factor the weight he deems appropriate, depending upon the facts 
and circumstances of each case. See David E. Trawick, D.D.S., Docket 
No. 88-69, 53 FR 5326 (1988).
    The Deputy Administrator concurs with the opinion and recommended 
ruling of the administrative law judge and finds that all of the 
factors apply. The record establishes, and Respondent does not dispute, 
that Respondent fraudulently obtained controlled substances for his own 
abuse. Respondent's medical license was placed on probation twice and 
he was convicted of a drug related felony. Clearly there are grounds to 
revoke Respondent's DEA registration.
    Respondent, through his own testimony as well as testimony of 
colleagues, fellow recovering addicts and his wife, has not only 
acknowledged the seriousness of his addiction, but has also 
demonstrated a strong commitment to recovery, contrary to his behavior 
prior to his 1989 relapse. The Deputy Administrator agrees with the 
administrative law judge's conclusion that, on balance, Respondent has 
demonstrated that his continuing recovery and his value to the 
community outweigh any threat to the public interest posed by the 
possibility of another relapse. This conclusion is reinforced by the 
fact that not only are many people aware of Respondent's addiction 
problem, but they are actively involved in his recovery. Therefore, the 
Deputy Administrator concludes that Respondent's DEA registration 
should not be revoked at this time but that the restrictions on his 
registration recommended by the administrative law judge should be 
imposed.
    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, BM0555182, previously issued to 
Dennis McBride, M.D., be, and it hereby is, renewed, subject to the 
following conditions: Respondent shall only write controlled substance 
prescriptions and shall not dispense, possess or store any controlled 
substances, except that he may administer controlled substances in a 
hospital setting; Respondent may only possess controlled substances 
which are medically necessary for his own use and which he obtained 
pursuant to a valid prescription issued by another practitioner; 
Respondent shall not issue any controlled substance prescriptions for 
his own use; and for two years from the effective date of this final 
order, every calendar quarter, Respondent shall submit a log of all 
prescriptions for controlled substances he has written during the 
previous quarter to the Special Agent in charge of the nearest DEA 
office, or his designee. This order is effective September 9, 1994

    .Dated: September 2, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-22358 Filed 9-8-94; 8:45 am]
BILLING CODE 4410-09-M