[Federal Register Volume 60, Number 195 (Tuesday, October 10, 1995)]
[Notices]
[Pages 52705-52707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24949]



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DEPARTMENT OF JUSTICE
Drug Enforcement Administration

[Docket No. 94-2]


Herman E. Walker, Jr., M.D.; Revocation of Registration

    On September 16, 1993, the Deputy Assistant Administrator, Office 
of Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Herman E. Walker, Jr., M.D., (Respondent) of 
Houma, Louisiana, notifying him of his opportunity to show cause as to 
why DEA should not revoke his DEA Certificate of Registration, 
AW3369697, and should not deny any pending application for renewal of 
his registration, under 21 U.S.C. 823(f) and 824(a)(4), as being 
inconsistent with the public interest. Specifically, the Order to Show 
Cause alleged that: (1) On two occasions in the fall of 1986, the 
Respondent prescribed Schedule II controlled substances to an 
undercover police officer for no legitimate medical reason; (2) between 
October 1986 and September 1988, the Respondent maintained 52 patients 
on prolonged and continuous regimens of Schedule III controlled 
substances (``anorectics''); (3) on or about January 19, 1989, an 
Administrative Complaint was filed against the Respondent by the 
Louisiana State Board of Medical Examiners (Board) charging him with 
prescribing, dispensing or administering legally controlled substances 
or any dependency-inducing medication without legitimate medical 
justification; (4) on September 27, 1989, the Board suspended his 
license to practice medicine for five years, and he was ordered by the 
Board to surrender his Schedule II controlled substance privileges 
permanently. On November 21, 1989, Louisiana's Fourth Circuit Court of 
Appeals stayed the Board's decision suspending his license, but upheld 
its decision regarding the surrender of his Schedule II controlled 
substances privileges. The Order to Show Cause noted that the 
Respondent was, therefore, without state authorization to handle 
controlled substances in Schedule II, citing 21 U.S.C. 824(a)(3).
    By letter dated October 14, 1993, the Respondent, through counsel, 
timely 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 Mary Ellen Bittner. Following prehearing procedures, a hearing 
was held in New Orleans, Louisiana, on April 13, 1994, where both 
parties called witnesses to testify and introduced documentary 
evidence. On September 19, 1994, the Respondent filed Proposed Findings 
of Fact and Conclusions of Law and Argument, and on September 20, 1994, 
the Government filed its Proposed Finding of Fact, Conclusions of Law 
and Argument.

    On November 30, 1994, Judge Bittner issued her Opinion and 
Recommended Ruling, Finding of Fact, Conclusions of Law and Decision of 
the Administrative Law Judge, recommending that Respondent's DEA 
registration be revoked, and that any pending applications be denied. 
The Respondent filed exceptions to Judge Bittner's decision on January 
5, 1995. On January 12, 1995, Judge Bittner transmitted the record of 
these proceedings, including the Respondent's exceptions, to the Deputy 
Administrator.

    The Deputy Administrator has considered the record in its entirety, 
to include the Respondent's exceptions, and pursuant to 21 C.F.R. 
1316.67, hereby issues his final order based upon findings of fact and 
conclusions of law as hereinafter set forth. The Deputy Administrator 
adopts, in full, the Opinion and Recommended Ruling, Findings of Fact, 
Conclusions of Law and Decision of the Administrative Law Judge, and 
his adoption is in no manner diminished by any recitation of facts, 
issues and conclusions herein, or of any failure to mention a matter of 
fact or law.

    The Deputy Administrator finds that in 1986, as a result of an 
anonymous complaint against the Respondent, the Louisiana State Police 
Department initiated an investigation of Respondent. As part of this 
investigation, on October 30, 1986, a State Police Officer, posing as a 
patient, visited the Respondent complaining that he worked long hours, 
was not sleeping at night, and that he wanted something ``to perk him 
up.'' He did not complain of any other medical or mental condition or 
problem. The Officer received a prescription from the Respondent for 30 
dosage units of Ritalin. Ritalan is the brand name of a product 
containing methylphenidate, a Schedule II controlled substance. On 
November 24, 1986, the State Police Officer returned to the 
Respondent's office, did not complain of any medical or mental 
condition requiring treatment, and told Respondent that he had lost or 

[[Page 52706]]
misplaced his Ritalin prescription. The Officer received another 
prescription from the Respondent for, inter alia, 15 dosage units of 
Ritalin. Although the same State Police Officer returned to the 
Respondent's office on January 14, 1987, the Respondent did not 
prescribe any controlled substances at that time.
    On May 14, 1987, a second State Police Officer visited the 
Respondent and told him that he had to drive all night and sought a 
stimulant to help him stay awake. In response to the Respondent's 
questions, the Officer told him that he slept very well and getting to 
sleep was not his problem. The Respondent refused to give the Officer a 
prescription for amphetamines, but the Respondent gave the Officer a 
prescription for XANAX, to help him sleep. XANAX is a product 
containing alprazolam, a Schedule IV controlled substance.
    On January 19, 1989, the Board's Investigating Officer filed an 
Administrative Complaint against the Respondent, primarily alleging 
that on approximately fifty occasions between September 1987 and 
September 1988, the Respondent concurrently prescribed multiple or 
excessive amounts of controlled substances to approximately fifty-two 
patients. After conducting a hearing, the Board issued its decision on 
September 27, 1989, concluding that the Respondent had substituted--

    Prolonged medication regimes and polypharmacology for sound 
medical treatment, repeatedly and consistently prescribed legally 
controlled, dependency-inducing substances without legitimate 
medical justification therefor . . . [and that] such practices 
clearly and convincingly demonstrate medical incompetency on the 
physician's part and continuing and recurring medical practice which 
fails to satisfy the prevailing and usually accepted standards of 
medical practice in this state.

    The board, inter alia, ordered Respondent to permanently refrain 
from handling Schedule II controlled substances and to surrender his 
registration as to that schedule. However, when contacted by a DEA 
Diversion Investigator, the Respondent refused to surrender his DEA 
registration with respect to Schedule II. The district court affirmed 
the Board's order, and the appellate court affirmed the district 
court's decision. The record contains notice from the Respondent of his 
intent to file an appeal to the Louisiana Supreme Court, but it does 
not contain anything further concerning the status of that appeal.
    During the hearing before Judge Bittner, Mr. Hingle, a registered 
pharmacist and consultant to the Board, testified that he had also 
served as the acting chief of the State Narcotics Program in the health 
Department. He testified that the Respondent had prescribed 
amphetamine-type substances, also called anorectics, and that the State 
Board of Medical Examiners had issued a policy statement (Statement) in 
1984, advising physicians that if a prescription for anorectics was 
issued without medical justification, the physician's medical license 
was subject to suspension or revocation. The Statement also established 
standards, which if violated, would be considered per se evidence of 
prescribing controlled substances without legitimate medical 
justification. These standards included restricting the period of time 
anorectics could be prescribed to a single patient to 12 consecutive 
weeks, restricting the quantity of dosages per patient to insure the 
patient did not ingest more than one maximum therapeutic dosage unit 
per day, and restricting the issuance of anorectic prescriptions to 
persons who were not drug dependent and who demonstrated weight loss 
during the course of treatment. The Statement was part of the record, 
and Mr. Hingle testified that the Statement was given to physicians 
when they applied for their annual relicensure and was also published 
in a newsletter issued by the Board to all state licensed physicians.
    Because of complaints and subsequent investigation results, a DEA 
Assistant Special Agent issued subpoenas to five pharmacies, and a DEA 
Diversion Investigator obtained prescriptions written for specified 
patients by the Respondent between January 1992 and September 1993. At 
the hearing before Judge Bittner, the Investigator testified that 
patient profiles were prepared by using those prescriptions. Mr. Hingle 
then testified, after referring to the patient profiles, that in 
numerous instances the Respondent had issued to individual patients 
concurrent prescriptions for multiple substances, and that he would not 
have filled these concurrent prescriptions because of the potential for 
abuse of the substances if taken in conjunction with one another. He 
also testified about the quantity of controlled substances contained in 
numerous prescriptions and opined that in specified instances the 
quantities prescribed or the period of time the substance was to be 
consumed was excessive and could result in physical dependency. For 
example, in a single month, one specific patient was prescribed 
quantities of Valium and Vicodin which would allow the patient to take 
approximately 11 doses a day. Vicodin was described as a phenanthrene 
opioid, and Valium as the brand name of a product containing diazepam, 
a Schedule IV controlled substance.
    Also, Mr. Hingle noted a specific instance in which a prescription, 
dated November 22, 1993, was issued for two substances containing 
hydrocodone as a principal product ingredient. He testified that if the 
patient had filled and consumed these substances together, the effect 
would have been of taking a duplicate dosage of a depressant to the 
central nervous system, and that such effect could have been dangerous 
to the patient. He also testified that the Respondent had issued on 
January 7, 1993, five prescriptions for central nervous system 
depressants to one patient, that such a prescription practice was 
unusual, and that he could not recall ever having seen five 
prescriptions for controlled substances or central nervous system 
depressants issued on the same day to a single patient for concurrent 
use.
    The Respondent testified during the hearing before Judge Bittner, 
stating that he was a physician in general practice and had been 
practicing medicine in Houma, Louisiana, since 1966. He stated that he 
was aware that Ritalin was mostly prescribed to children for attention 
deficit disorder, and that he had prescribed Ritalin to the State 
Police Officer knowing that he did not have that condition. He also 
testified that he knew XANAX was often used as a sleeping pill.
    Further, the Respondent testified about his usual treatment and 
prescribing practices, especially of patients participating in his 
weight-control practice. During his testimony, the Respondent denied 
knowledge prior to the Board's action against him of the ``12-week 
rule'' pertaining to the prescription of anorectics. He testified that, 
after he became aware of the rule, he had continued prescribing 
anorectics in compliance with the rule, but that he had not prescribed 
any anorectics since the end of 1990.
    In response to Mr. Hingle's testimony, the Respondent testified 
about his diagnosis, treatment, and issuance of prescriptions relative 
to specifically addressed patients. However, he did not offer into 
evidence any patient treatment records documenting his practices. Also, 
the Respondent did not acknowledge committing any wrongdoing in his 
prescription practices, despite the 1989 findings of the Board and the 
patient profile evidence of his multiple prescriptions to single 
patients in 1992 and 1993 presented during the hearing before 

[[Page 52707]]
Judge Bittner. He also did not present any evidence of remedial actions 
taken or proposed, except his testimony that he had stopped prescribing 
anorectics in 1990.
    Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy 
Administrator may revoke a DEA Certificate of Registration and deny any 
application for such registration, if he determines that the continued 
registration would be inconsistent with the public interest. Section 
823(f) provides that the following factors be considered ``in 
determining the public interest:''
    (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.
    These factors are to be considered in the disjunctive. That is, the 
Deputy Administrator may rely on any one or a combination of factors 
and may give each factor the weight he deems appropriate in determining 
whether a registration should be revoked or an application for 
registration denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 
54 FR. 16422 (1989).
    Here, the Deputy Administrator finds that factors one, two, four 
and five are relevant in determining whether the Respondent's continued 
DEA registration would be inconsistent with the public interest. 
Evidence of record bearing on factor one includes the action of the 
Louisiana Board of Medical Examiners, as upheld by the Louisiana Fourth 
Circuit Court of Appeals, in ordering the Respondent to surrender his 
Schedule II controlled substance privileges permanently. Such action 
clearly reflects that Board's recommendation as to this Respondent's 
access to Schedule II substances.
    The Respondent's testimony demonstrated his knowledge of the 
medical purposes for which Ritalin and XANAX would be prescribed. Yet 
his actions of prescribing Ritalin, which contains a Schedule II 
substance, and XANAX, which contains a Schedule IV substance, to State 
Police Officers for no legitimate medical reason is not in compliance 
with applicable laws relating to the dispensing of controlled 
substances. Such actions are relevant to factors two and four of 
Section 823(f).
    Further, the record also established that in 1987 and 1988 the 
Respondent prescribed anorectics in a manner which directly violated 
the Louisiana Medical Board's disseminated 1984 Statement concerning 
the limitations placed upon issuing prescriptions for that substance. 
Although the Respondent denied knowledge of that Statement, 
significantly of record is the Board's reply to the same contention 
raised by the Respondent before it:

    Our findings and conclusions here, however, do not depend on 
whether or not Respondent did in fact have prior notice of the 
Statement, and we make no finding in that regard. The substance of 
the Statement is accepted medical fact of which any competent 
physician who undertakes to prescribe anorectic medications is, or 
should be, aware. Thus, as a physician who testified on [the 
Respondent's] behalf observed with respect to overprescribing 
anorectics, without recalling whether he himself had seen the 
Board's Statement, all physicians have been ``cautioned about it. 
I've been cautioned about amphetamines, all of us have, that you 
don't use them over a prolonged period of time, excessive long 
period of time.''

    Finally, the Board's findings as to the Respondent's medical 
treatment and prescription practices, and the testimony of Mr. Hingle, 
establish instances in the record of the Respondent's prescribing 
excessive amounts of substances to individuals in combinations commonly 
seen in cases of suspected substance abuse. Despite the Respondent's 
testimony explaining his prescribing practices, the Deputy 
Administrator finds that the preponderance of the evidence warrants a 
conclusion that the Respondent's prescribing practices are not 
consistent with the prevailing and usually accepted standards of 
medical practice in the State of Louisiana, and ``may threaten the 
public health or safety.'' 21 U.S.C. 832(f)(5).
    In his filed exceptions, the Respondent asserts that Judge Bittner 
erred in admitting hearsay evidence during the administrative hearing. 
However, since the Respondent's hearing was conducted in accordance 
with applicable statutes and regulations, the Deputy Administrator 
declines to adopt the Respondent's exceptions based upon his challenged 
evidentiary rulings. See, e.g., Klinestiver v. Drug Enforcement 
Administration, 606 F.2d 1128, 1129-30 (D.C. Cir. 1979); Gary E. 
Stanford, M.D., Docket No. 91-30, 58 FR 14430 (1993).
    Next, the Respondent has requested that any restrictions placed 
upon his DEA registration be limited to Schedule II substances as 
recommended by the Board. He wrote that he had been practicing medicine 
for the past five years under these restrictions without any violation 
or charges. However, the record demonstrates through the patient 
profiles and Mr. Hingle's testimony that the Respondent, in 1992 and 
1993, had prescribed excessive quantities of controlled substances, to 
include substances from Schedule IV, to individual patients. Thus, the 
Respondent's requested restriction is inadequate; revocation is the 
appropriate remedy.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 824, 28 C.F.R. 0.100(b) and 0.104, hereby orders that DEA 
Certificate of Registration, AW3369697, previously issued to Herman E. 
Walker, Jr., M.D., be, and it hereby is, revoked. It is further ordered 
that any pending applications for renewal of said registration be, and 
hereby are, denied.
    This order is effective November 9, 1995.

    Dated: October 3, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-24949 Filed 10-6-95; 8:45 am]
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