[Federal Register Volume 60, Number 113 (Tuesday, June 13, 1995)]
[Notices]
[Pages 31166-31167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14369]



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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 93-74]


Richard C. Matzkin, M.D. Grant of Continued Registration

    On July 27, 1993, the Deputy Assistant Administrator (then-
Director), Office of Diversion Control, Drug Enforcement Administration 
(DEA), issued an Order to Show Cause to Richard C. Matzkin, M.D. of 
Bethesda, Maryland (Respondent), proposing to revoke his DEA 
Certificate of Registration, AM2532631, and deny any pending 
applications for such registration. The statutory basis for the Order 
to 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 Mary Ellen Bittner. Following prehearing 
procedures, a hearing was held in Arlington, Virginia on March 14, 
1994.
    On November 3, 1994, the administrate law judge issued her opinion 
and recommended ruling, findings of fact, conclusions of law and 
decision, recommending that Respondent's DEA Certificate of 
Registration not be revoked subject to his compliance with several 
requirements. No exceptions to Judge Bittner's decision were filed by 
either party.
    On December 6, 1994, the administrative law judge transmitted the 
record of the proceeding to the Deputy Administrator. After careful 
consideration of the record in its entirety, the Deputy Administrator 
enters his final order in this matter, in accordance with 21 CFR 
1316.67, based on findings of fact and conclusions of law as set forth 
herein.
    The administrative law judge found that Respondent obtained a 
license to practice medicine in Maryland in 1984 and maintained a 
practice in Bethesda. Respondent subsequently became licensed in 
Virginia and the District of Columbia. In the summer of 1989, 
Respondent began a general practice in Virginia, but continued to 
maintain a practice in Bethesda which, by Respondent's testimony, was 
limited to treating members of his immediate family and three close 
friends.
    The administrative law judge found that, in 1986, a detective from 
the Pharmaceutical Unit of the Montgomery County, Maryland, Police 
Department was informed by several pharmacists that they had received 
prescriptions written by Respondent which they felt were not within a 
legitimate prescribing pattern, and that most of the prescriptions were 
for Percocet, a Schedule II controlled substance. The detective further 
testified that he found approximately 50 prescriptions for Percocet 
issued by Respondent at various area pharmacies, and that most of these 
prescriptions had been issued for five individuals, several of whom had 
been targets of prior investigations and/or had been arrested on drug 
charges.
    The administrative law judge further found that a former 
investigator for the Virginia Department of Health (the Virginia 
investigator) investigated a complaint that Respondent was prescribing 
controlled substances to persons living outside of the state. The 
investigator found that most of these prescriptions were written for 
Percocet and that they had been written for Respondent's father, 
brother and then-wife, as well as two of the individuals identified by 
the Montgomery County, Maryland investigation.
    The Virginia investigator testified that Respondent had prescribed 
controlled substances, primarily Percocet, to a number of individuals 
without a legitimate medical need and without conducting medical 
examinations prior to issuing controlled substances prescriptions. In 
one such instance, Respondent prescribed controlled substances to an 
individual who he knew to be drug and alcohol dependent.
    The Virginia investigator further testified that several of the 
pharmacists who filled Respondent's prescriptions had complained that 
he often picked up the filled prescriptions for his out-of-state 
patients, and subsequently mailed the drugs to these patients. The 
Virginia investigator acknowledged that this practice was not unlawful.
    The Virginia investigator also interviewed Respondent who informed 
her that he did not perform physical examinations on these patients 
prior to issuing prescriptions for them, and that his mother had 
disposed of the medical records that he had maintained on these 
patients. She further testified that, although Respondent had stated 
that all of the people who received the prescriptions at issue had 
complained of some type of pain or medical condition, Respondent's 
conduct was in violation of Virginia law because he did not maintain 
medical records for these patients, nor conduct physical examinations 
prior to prescribing controlled substances.
    The administrative law judge found that on March 29, 1991, the 
Virginia Board of Medicine notified Respondent that it would conduct an 
informal conference on allegations that he had violated provisions of 
Virginia law pertaining to the practice of medicine. On June 21, 1991, 
Respondent entered into a consent order pursuant to which he 
voluntarily surrendered his Virginia license in lieu of further 
administrative proceedings.
    The administrative law judge further found that, on January 20, 
1992, the Montgomery County state's attorney office executed 
information charging Respondent with two counts of 
[[Page 31167]] unlawfully prescribing Schedule II drugs and that 
Respondent was arrested on these charges on January 30, 1992. The 
charges against Respondent eventually were nolle-prossed.
    The administrative law judge found that the Maryland State Board of 
Physician Quality Assurance (the Board) initiated an investigation of 
Respondent in November 1991 after the Maryland Division on Drug Control 
notified the Board that Responent had surrendered his Virginia license. 
In February 1992, the Board summarily suspended Respondent's medical 
license in Maryland based upon the surrender of his Virginia license, 
his January 1992 arrest and the charges that he had improperly 
prescribed controlled substances. As a result of the criminal case 
against Respondent being nolle-prossed, the Board executed a consent 
order on June 2, 1992, lifting the summary suspension and placing 
Respondent on a three year probationary period with conditions. Judge 
Bittner also noted testimony that, at the time of the hearing in this 
proceeding, Respondent remained in full compliance with the conditions 
of his probation.
    The Government argued that Respondent's DEA Certificate of 
Registration should be revoked because Respondent: (1) violated 21 CFR 
1306.04(b) by prescribing controlled substances to individuals without 
first conducting physical examinations; (2) had violated 21 U.S.C. 
822(e) and 21 CFR 1301.23 by having prescriptions filled for controlled 
substances and mailing them to individuals; (3) prescribed controlled 
substances to an individual who was drug and alcohol dependent; and (4) 
voluntarily surrendered his Virginia medical license because of his 
inappropriate prescribing of controlled substances.
    Respondent argued that: (1) he was never convicted of any criminal 
activity; (2) he voluntarily surrendered his Virginia license in lieu 
of further administrative proceedings; (3) his failure to maintain 
adequate medical records for certain patients was not his usual 
practice; (4) the patients to whom he mailed controlled substances were 
longtime friends or family and he acted with good intentions; (5) he 
has been in good standing with the Maryland State Board of Physician 
Quality Assurance since he signed the consent order; and (6) he 
continues to maintain a medical practice in the State of Maryland.
    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 administrative law judge found that factors (1), (2), 
(4), and (5) were relevant in considering whether Respondent's DEA 
registration should be revoked.
    The administrative law judge found that testimony by two patients 
that Respondent had used cocaine and traded other controlled substances 
for-cocaine, were statements made by acknowledged drug abusers who, 
themselves, were under investigation at the time they raised their 
allegations against Respondent, and, therefore, their hearsay 
statements were not sufficiently reliable to warrant a finding that 
Respondent had engaged in the alleged conduct. Judge Bittner further 
found that it was not disputed that Respondent had picked up filled 
prescriptions and mailed the medication to patients, but that such 
conduct was not illegal in Virginia, the jurisdiction in which 
Respondent was practicing at that time, and that there was no evidence 
of any other state or Federal regulation of such practice. Judge 
Bittner found no merit to the Government's contention that Respondent's 
practice of retrieving filled prescriptions for certain patients 
violated 21 CFR 1306.04(b).
    The administrative law judge additionally found that it was not 
disputed that Respondent had prescribed medication to certain patients 
without first performing a physical examination. It was further 
undisputed that Respondent did not keep charts on the patients he 
treated out of his Bethesda location after December 1989, when, as 
Respondent contended, his mother disposed of his patient records. Judge 
Bittner found that Respondent's failure to maintain records on those 
patients constitutes grounds for revoking his DEA registration. 
However, the administrative law judge found that the evidence did not 
establish that revocation of Respondent's registration would be in the 
public interest and recommended that Respondent's DEA Certificate of 
Registration not be revoked subject to his compliance with the 
following conditions for two years from the effective date of the 
Deputy Administrator's final order: (1) Respondent shall not dispense 
directly or administer any controlled substances except in a hospital 
setting; (2) Respondent shall use triplicate forms for all controlled 
substance prescriptions and shall maintain at his registered location 
one copy of each form and arrange for another copy to be received by 
the Special Agent in Charge of DEA's Baltimore District Office or his 
designee; and (3) Respondent shall consent to inspections of his 
registered premises pursuant to notices of inspection as described in 
21 U.S.C. 880.
    The Deputy Administrator adopts the opinion and recommended ruling, 
findings of fact, conclusions of law and decision of the administrative 
law judge 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, hereby 
orders that DEA Certificate of Registration, AM2432631, issued to 
Richard C. Matzkin, M.D., be, and it hereby is, continued subject to 
the conditions enumerated by the administrative law judge. This order 
is effective on July 13, 1995.

    Dated: June 6, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-14369 Filed 6-12-95; 8:45 am]
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