[Federal Register Volume 60, Number 106 (Friday, June 2, 1995)]
[Notices]
[Pages 28795-28798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13455]



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[[Page 28796]]

DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 93-65]


Harlan J. Borcherding, D.O.; Revocation of Registration

    On June 17, 1993, the Deputy Assistant Administrator (then-
Director), Office of Diversion Control, Drug Enforcement Administration 
(DEA), issued an Order to Show Cause to Harlan J. Borcherding, D.O., of 
Houston, Texas (Respondent), proposing to revoke his DEA Certificate of 
Registration, AB1540079, and deny any pending applications for such 
registration. The statutory basis for the Order the Show Cause was that 
Respondent's continued registration would be inconsistent with the 
public interest as that term is used in 21 U.S.C. 823(f) and 824(a)(4).
    Respondent, through counsel, requested a hearing on the issues 
raised in 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 Houston, Texas, on May 25, 1994.
    On October 11, 1994, Judge Tenney issued his findings of fact, 
conclusions of law and recommended ruling. The Government filed 
exceptions to Judge Tenney's recommended ruling on October 28, 1994. No 
exceptions were filed by Respondent.
    On November 11, 1994, the administrative law judge transmitted the 
record, including the Government's exceptions, to the Deputy 
Administrator. The Deputy Administrator has considered the record in 
its entirety and enters his final order in this matter pursuant to 21 
CFR 1316.67, based on findings of fact and conclusions of law as set 
forth herein.
    The administrative law judge found that Respondent is a primary-
care family physician. Respondent's medical practice is situated in a 
low-income area and his clientele primarily are economically deprived 
individuals.
    The administrative law judge further found that DEA initiated an 
investigation of Respondent, in March of 1990, following information 
received from the Texas Department of Human Services that Respondent 
was among the top 1,000 Medicaid prescribers. DEA also received 
information from the Houston Police Department that Respondent was 
writing numerous prescriptions for Tylenol #4, a Schedule III 
controlled substance, and Valium, a Schedule IV controlled substance.
    The administrative law judge found that an undercover Houston 
police officer participated in DEA's investigation of Respondent for 
the purpose of obtaining prescriptions for Tylenol #4 and Valium from 
Respondent for non-medical reasons. The undercover officer, wired with 
a transmitter, visited Respondent's office on ten occasions between 
October 1990 and March 1991. The undercover officer completed a patient 
information sheet during his first meeting with Respondent on March 21, 
1990, and indicated that he was unemployed. Respondent recorded the 
officer's blood pressure, temperature and weight, and drew a blood 
sample. The officer informed Respondent that he ``needed something to 
mellow out at the end of the day'', and specifically asked for Valium. 
Judge Tenney noted that Respondent explained to the officer that he did 
not give Valium to new patients and that he would only give it to 
regular patients. Respondent also asked if the lack of a job was the 
reason the officer complained of stress and, therefore, had requested 
the medication. Respondent dispensed to the officer 18 Tranxene 7.5 mg 
tablets, a Schedule IV controlled substance.
    The administrative law judge found that the officer made his second 
visit the Respondent's office on April 24, 1990, and received a 
prescription for 30 Tranxene 7.5 mg tablets, plus one refill. Judge 
Tenney also noted that after giving the officer the prescription, 
Respondent asked him if he needed a note for work.
    The administrative law judge further found that, on June 8, 1990, 
at his third visit, the officer informed Respondent that he had been 
taking two Tranxene tablets at a time. The officer received a 
prescription of 30 Valium 10 mg tablets, with one refill.
    Judge Tenney found that, on the officer's next visit in July 1990, 
the officer informed Respondent that he now was taking two Valium per 
day and asked for a prescription for Tylenol #4. Respondent refused to 
prescribe Tylenol #4 stating that Tylenol #4 is only needed for pain 
and that the combination of Valium and Tylenol #4 is potent. Respondent 
also informed that officer that he could continue to take two Valium 
per day, but that one per day was preferable. The officer obtained a 
prescription for 30 Valium 10 mg tablets, plus one refill. Respondent 
again asked the officer if he needed a note for work.
    The administrative law judge further found that during the 
officer's next visit in September of 1990, the officer informed 
Respondent that he had a new job. The officer also asked for a 
prescription of Tylenol #4, stating that he had run out of Valium and 
had taken Tylenol #4 in its place. Respondent refused the request for 
Tylenol #4 and, instead, again prescribed 30 Valium 10 mg tablets, plus 
one refill.
    The administrative law judge found that the officer made another 
visit to Respondent on December 14, 1990, and was refused his requested 
refill of Valium because, as Respondent stated, narcotics agents were 
monitoring Respondent's prescriptions, particularly those for street 
drugs. However, respondent did give the officer a prescription for 30 
Tranxene 7.5 mg tablets, plus one refill.
    The officer again visited Respondent on January 25, 1991, and 
informed Respondent that he had obtained Tylenol #4 from another 
physician. The administrative law judge found that the officer did not 
complain of any illness during this visit nor give any reason why he 
might need a prescription for Tylenol #4. Respondent prescribed 30 
Tranxene 15 mg tablets, plus one refill.
    Judge Tenney found that the officer returned to Respondent on 
February 26, 1991. Respondent informed the officer that he should not 
have returned until two months after his previous January 25, 1991 
visit. The officer responded that he had been giving some of his 
medication to his girlfriend and asked whether she could see 
Respondent. The officer additionally informed Respondent that the 
Tranxene was not working as well as the Valium. Respondent prescribed 
60 Tranxene 15 mg tablets, plus one refill.
    Judge Tenney found that, on March 20, 1991, at the final visit, the 
officer brought another undercover police officer to Respondent's 
office to pose as his girlfriend. The second officer requested a 
prescription because she ``just needed something to relax.'' Respondent 
refused to prescribe medication to either officer at this visit.
    With regard to the officer's visits to Respondent, Judge Tenney 
noted that Respondent spent, on average, only three minutes with the 
officer on most of these visits, and that two visits lasted only one 
minute each. During these visits Respondent did not pursue the nature 
of the officer's complaints beyond checking the officer's blood 
pressure and, on two occasions, checking his chest with a stethoscope. 
Judge Tenney additionally noted that Respondent never advised the 
officer to call him or make arrangements for follow-up appointments.
    Nonetheless, the administrative law judge concurred with 
Respondent's expert witness that the undercover [[Page 28797]] officer 
presented a legitimate medical complaint to Respondent, i.e. anxiety 
purportedly induced by unemployment. Judge Tenney further found that 
Respondent's treatment of the officer with Tranxene and Valium was 
medically proper.
    In January of 1992, a grand jury in Harris County, Texas indicted 
Respondent on three counts of prescribing Clorazepate (also known by 
its brand name ``Tranxene''), a Schedule IV controlled substance, 
without a valid medical purpose. The indictment was based on 
Respondent's prescriptions of Tranxene to the undercover officer on 
December 14, 1990, January 25, 1991, and February 26, 1991.
    The administrative law judge found that Respondent pled guilty to a 
single misdemeanor count and that adjudication of guilt was deferred. 
Respondent was given two years probation, a $2,000 fine and 200 hours 
of community service. Respondent's probationary period expired without 
an adjudication of guilt and the proceedings were dismissed.
    Judge Tenney also found that DEA conducted an accountability audit 
covering the period between January 1, 1992 and February 19, 1993. The 
audit revealed shortages and overages of various controlled substances. 
The audit revealed recordkeeping violations, including failure to 
maintain complete and accurate records of controlled substances 
received and dispensed; failure to take an initial or biennial 
inventory of all stocks of controlled substances; and failure to 
maintain dispensing records of controlled substances in a readily 
retrievable form. The administrative law judge noted Respondent's 
admission concerning recordkeeping deficiencies, and additionally noted 
Respondent's testimony that he had instituted new office procedures to 
remedy his recordkeeping problems.
    The administrative law judge found that the United States Attorney 
for the Southern District of Texas prepared a complaint seeking civil 
penalties for violations of 21 U.S.C. 827(a)(3) based on ``virtually 
identical'' recordkeeping deficiencies as those asserted in this 
proceeding. Respondent entered into a settlement agreement dated 
October 28, 1993. Judge Tenney found that no representation was made, 
through the course of the settlement, that DEA would surrender its 
claims concerning Respondent's DEA Certificate of Registration.
    Pursuant to 21 U.S.C. 824(a)(4) the Deputy Administrator of the DEA 
may revoke the registration of a practitioner upon a finding that the 
registrant has committed such acts as would render his registration 
inconsistent with the public interest as that term is used in 21 U.S.C. 
823(f). In determining the public interest, the following factors will 
be considered:
    ``(1) The recommendation of the appropriate State licensing board 
or professional disciplinary authority.
    (2) The [registrant]'s experience in dispensing, or conducting 
research with respect to controlled substances.
    (3) The [registrant]'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 in assessing the public interest. See Mukand Lal 
Arora, M.D., 60 FR 4447 (1995); Henry J. Schwartz, Jr., M.D., 54 FR 
16422 (1989).
    The Government argued that factors (2) through (5) are relevant in 
the instant case. The administrative law judge found that the 
Government had established a prima facie case only with respect to 
factors (3) and (5). Judge Tenney held, with respect to factors (2) and 
(4), that the Government had not proven by a preponderance of the 
evidence that Respondent lacked a legitimate medical purpose for 
dispensing and prescribing controlled substances to the undercover 
officer.
    The administrative law judge did find, however, that this is a 
``close case'', because of such facts as Respondent's average three 
minute office visits, and Respondent's concern that narcotics agents 
were monitoring his prescriptions for street drugs. Judge Tenney 
additionally noted the fact that Respondent, on two occasions, asked 
the officer if he needed a note for work, raising the question as to 
whether Respondent actually was treating the officer for anxiety 
allegedly inducted by unemployment.
    With regard to factor (3), the administrative law judge rejected 
Respondent's argument that he had not been ``convicted'' of any offense 
within the meaning of 21 U.S.C. 823(f)(3). The law is well settled that 
a DEA registrant may be found to have been ``convicted'' within the 
meaning of the Controlled Substances Act, despite a deferred 
adjudication of guilt. See Mukand Lal Arora, M.D., 60 FR 4447 (1995) 
(conviction, sentence of probation and deferred adjudication may be 
considered under 21 U.S.C. 823(f)(3)); also, Clinton D. Nutt, D.O., 55 
FR 30992 (1990), aff'd 916 F.2d 202 (5th Cir. 1990); Eric A. Baum, 
M.D., 53 FR 47272 (1988).
    With respect to factor (5) the administrative law judge found that 
the Government presented credible, uncontradicted testimony concerning 
Respondent's recordkeeping deficiencies and that Respondent had 
conceded that his recordkeeping practices were inadequate. The 
administrative law judge also briefly addressed and rejected 
Respondent's contentions that revocation of his registration, based on 
these recordkeeping deficiencies, is precluded by double jeopardy and 
collateral estoppel following Respondent's payment of a civil fine for 
recordkeeping violations as part of his settlement with the United 
States Attorney's office for the Southern District of Texas. Judge 
Tenney found that the settlement agreement does not preclude DEA from 
revoking or suspending Respondent's registration based on deficient 
recordkeeping practices.
    Notwithstanding his conclusion that the Government had met its 
burden of proof with respect to 21 U.S.C. 823(f) (3) and (5), the 
administrative law judge recommended that Respondent retain his DEA 
Certificate of Registration, but should receive a formal reprimand.
    The Government took exception to Judge Tenney's findings that 
Respondent legitimately dispensed and prescribed controlled substances 
to an undercover officer from March 21, 1990 to February 26, 1991. The 
Government argued that Respondent's guilty plea to the criminal 
misdemeanor fraud count constitutes an admission that Respondent did 
not legitimately prescribe controlled substances to the undercover 
officer.
    The Government further objected to the administrative law judge's 
failure to accord more weight to evidence introduced concerning 
inconsistencies in the Respondent's treatment of the undercover officer 
in determining whether Respondent prescribed controlled substances to 
the undercover officer for a legitimate medical purpose. Additionally, 
the Government took exception to Judge Tenney's conclusion that there 
was little evidence of Respondent's current non-compliance with 
recordkeeping requirements. The Government argued that Judge Tenney's 
conclusion was based, in part, on the failure of DEA personnel to 
return to Respondent's office to verify his [[Page 28798]] compliance 
following the February 1993 accountability audit in which the 
deficiencies were discovered. The Government further argued that it's 
evidentiary burden was satisfied upon establishing, as found by Judge 
Tenney, a prima facie case with respect to Respondent's deficient 
recordkeeping systems in the past. The Government argued that it does 
not have the additional burden of conducting ongoing investigations up 
until the date of the administrative hearing to verify continued non-
compliance or recent compliance. The Government further maintained that 
Respondent provided no evidence of his current compliance, and, further 
that the Government does not have the burden of establishing whether 
Respondent corrected his recordkeeping systems.
    The Deputy Administrator rejects the opinion and recommended 
decision of the administrative law judge in its entirety. The Deputy 
Administrator concludes that, for a controlled substance prescription 
to be valid, it must be written by an authorized individual acting 
within the scope of normal professional practice for a legitimate 
medical purpose. Under these parameters, the prescriptions issued to 
the undercover officer by Respondent were not valid prescriptions 
because Respondent, while authorized by law to prescribe controlled 
substances, did not act within the scope of normal, professional 
practice concerning his prescriptions of Tranxene and Valium to the 
undercover officer. Respondent's total treatment time averaged only 
three minutes per visit with two visits lasting only one minute each. 
The undercover officer received controlled substances at seven out of 
ten visits over a one year period, but Respondent never advised the 
officer to telephone his office or schedule an appointment for follow-
up. Respondent determined that since the undercover officer did not 
have a job and was partially ``uptight'', a prescription for Tranxene 
was warranted, but subsequently asked if the officer needed a note for 
work. Respondent continued to prescribe controlled substances to the 
undercover officer after the officer informed Respondent that he was 
taking the medication in larger quantities and more frequently than 
directed and was sharing the drugs with another person. Further, the 
officer dictated which controlled substance he wanted, rather than 
Respondent, as a practitioner, determining the medication appropriate 
for the medical condition presented by the officer.
    The Deputy Administrator further finds that the prescriptions 
issued by Respondent were not for a legitimate medical purpose as 
demonstrated by Respondent's non-medical rationale for not prescribing 
requested drugs. For example, Respondent initially refused the 
officer's request for Valium, not because the undercover officer did 
not present a legitimate medical problem to Respondent, but, as 
Respondent explained, as a rule he did not give Valium to new patients, 
only regular patients, as if regular patients had a more legitimate 
medical need for controlled substances. Additionally, after prescribing 
Valium to the officer on three separate visits, Respondent later 
refused to issue a prescription for Valium out of concern that narcotic 
agents were monitoring his prescriptions for street drugs, but, 
instead, gave the officer a prescription for Tranxene.
    The Deputy Administrator concludes, in light of the foregoing, that 
Respondent did not legitimately dispense or prescribe controlled 
substances to the undercover officer. The Government has met its burden 
of proof in this regard and factors (2) and (4) under 21 U.S.C. 823(f) 
are, therefore, relevant. Further, the Deputy Administrator concurs 
with the administrative law judge's finding that the Government 
established a prima facie case with respect to factor (3) and factor 
(5) under 21 U.S.C. 823(f). Finally, the Deputy Administrator concludes 
that Respondent's guilty plea, and his past recordkeeping violations 
demonstrate a pattern of noncompliance by Respondent with the 
Controlled Substance Act and its implementing regulations. Therefore, 
in consideration of 21 U.S.C. 823(f) (2), (3), (4) and (5), 
Respondent's continued registration would not be consistent with the 
public interest.
    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 DEA 
Certificate of Registration, AB1540079, previously issued to Harlan J. 
Borcherding, D.O., be, and it hereby is, revoked, and any pending 
applications for such registration be, and they hereby are, denied. 
This order is effective July 3, 1995.
    Dated: May 25, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-13455 Filed 6-1-95; 8:45 am]
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