[Federal Register Volume 60, Number 86 (Thursday, May 4, 1995)]
[Notices]
[Pages 22075-22076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10928]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 93-62]
Leonard Merkow, M.D.; Denial of Application
On June 10, 1993, the Deputy Assistant Administrator (then
Director), Office of Diversion Control, Drug Enforcement Administration
(DEA), issued an Order to Show Cause to Leonard Merkow, M.D.
(Respondent). The Order to Show Cause sought to deny Respondent's
application for a [[Page 22076]] DEA Certificate of Registration. The
Order to Show cause alleged that Respondent's registration would be
inconsistent with the public interest as that term is used in 21 U.S.C.
823(f).
The Order to Show Cause was received by Respondent. 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. Judge Bittner ordered the
parties to file prehearing statements. After the Government filed its
prehearing statement, Respondent requested and obtained an extension of
time to file his prehearing statement on or before February 10, 1994.
On February 28, 1994, Judge Bittner issued an order terminating the
proceedings based upon the fact that Respondent had not filed a
prehearing statement nor any other pleading. The order also found that
Respondent waived his right to a hearing pursuant to 21 CFR 1301.54(a)
and 1301.54(d). Accordingly, the Deputy Administrator now enters his
final order in this matter without a hearing and based on the
investigative file. 21 CFR 1301.57.
In 1986, Respondent prescribed various narcotic and benzodiazepine
controlled substances to an individual whom Respondent knew was drug
addicted. Respondent also prescribed Tylenol with codeine, a Schedule
III controlled substance, and Doriden, then a Schedule III controlled
substance and now a Schedule II substance, to this individual. This
combination, known by its street name of ``fours and dors'', is
commonly abused by many drug addicts and Respondent was aware of such
fact at the time he prescribed these substances to this individual.
In October 1987, this individual acting in an undercover capacity
made thirteen undercover visits to Respondent's office. The transcripts
of these undercover visits revealed that Respondent was well aware that
the combination of Tylenol with codeine and Doriden was used by drug
abusers and that he was not prescribing these substances to this
individual for any legitimate reason. In addition, from October 1987 to
December 1987, Respondent's receptionist gave this individual over 300
dosage units of Valium, a Schedule IV controlled substance, and 144
dosage units of Doriden for no legitimate medical purpose. Although
Respondent claimed he was unaware of this activity, he was responsible
for this employee's actions and ultimately accountable for the
controlled substances that were dispensed from his office.
Respondent ordered about 200,000 dosage units of controlled
substances in a nine month period in 1987. These controlled substances
were stored at his residence, and then transferred to Respondent's two
offices; one of these offices was never a registered location and
Respondent let the other office's registration lapse in January 1987.
In February of 1986, Respondent was convicted in the Commonwealth
of Pennsylvania of 47 counts of submitting false or fraudulent Medicaid
claims. Respondent was sentenced to three years probation and to pay a
fine and restitution. The Pennsylvania Bureau of Occupational and
Professional Affairs suspended Respondent's medical license in March
1988, but reinstated the license about a month later.
On March 23, 1988, Respondent was notified that his prior DEA
registration was immediately suspended and that he should notify DEA of
any controlled substance deliveries that he might receive subsequent to
that date. In fact Respondent did order over 19,000 dosage units of
controlled substances on March 23, 1988, and he received this shipment
on March 28, 1988. He never notified DEA of this receipt of controlled
substances. The controlled substances were discovered in the garage at
the residence of Respondent's attorney pursuant to a search warrant
which was served on April 13, 1988. Based upon these events,
Respondent's prior DEA registration, AM5075305, was revoked on March
27, 1989. 54 FR 13254 (1989).
In evaluating whether Respondent's registration by the Drug
Enforcement Administration would be inconsistent with the public
interest, 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 registration would be inconsistent with
the public interest, the Deputy Administrator is not required to make
findings with respect to each of the factors listed above. Instead, he
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).
Regarding factor two, Respondent's experience in dispensing
controlled substances is poor based upon his prescribing the
combination of Tylenol with codeine and Doriden to an individual,
especially when Respondent was aware that this combination was subject
to abuse. This factor is also supported by the fact that Respondent's
employee dispensed numerous controlled substances to this individual in
addition to the controlled substances that he received from
Respondent's illegitimate prescriptions.
With respect to factor four, Respondent failed to comply with
applicable Federal law by dispensing controlled substances from an
unregistered location. 21 U.S.C. 822(e). Respondent also did not
maintain records of the controlled substances dispensed from his office
by his employee. 21 U.S.C. 827(a). Finally, Respondent received
controlled substances after he was notified that his DEA registration
was suspended. 21 U.S.C. 843(a)(2). This violation is particularly
egregious because Respondent ignored instructions to inform DEA of any
controlled substance shipments received after the suspension of his DEA
registration. Factor five is applicable based upon Respondent's
Medicaid fraud convictions.
No evidence of explanation or mitigating circumstances has been
offered by Respondent. Therefore, the Deputy Administrator concludes
that Respondent's application for a DEA Certificate of Registration
must be denied.
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 the
application for a DEA Certificate of Registration, submitted by Leonard
Merkow, M.D., be, and it is hereby denied. This order is effective May
4, 1995.
Dated: April 28, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-10928 Filed 5-3-95; 8:45 am]
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