[Federal Register Volume 60, Number 205 (Tuesday, October 24, 1995)]
[Notices]
[Pages 54511-54513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26223]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 94-63]
David D. Miller, M.D.; Grant of Restricted Registration
On June 28, 1994, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to David D. Miller, M.D., (Respondent) of
Bartlesville, Oklahoma, notifying him of an opportunity to show cause
as to why DEA should not deny his pending application for registration
as a practitioner under 21 U.S.C. 823(f), as being inconsistent with
the public interest. Specifically, the Order to Show Cause alleged
that: (1) In September 1992, the Respondent delivered one-eighth ounce
of marijuana, a Schedule I controlled substance, to an Oklahoma State
undercover officer, and in October 1992, he surrendered two to three
ounces of marijuana to the same officer, after admitting that he had
been obtaining marijuana locally for several years and had been a user
of marijuana since his college days; (2) on October 12, 1992, the
Respondent entered a plea of nolo contendere to a felony charge of
unlawful distribution of a controlled dangerous substance-marijuana,
and the Oklahoma Eleventh Judicial District Court deferred the
imposition of sentence for five years, placing the Respondent on
probation for that period; (3) on October 12, 1992, the Oklahoma Bureau
of Narcotic and Dangerous Drugs ordered the suspension of the
Respondent's controlled dangerous substances registration, but
reinstated it in April 1993; (4) on December 3, 1992, the Oklahoma
Board of Medical Licensure determined that the Respondent's conduct
violated the State Medical Practice Act and suspended the Respondent's
license to practice medicine, but reinstated it and placed the
Respondent on five years probation beginning April 8, 1993; and (5) on
January 2, 1993, the Respondent voluntarily surrendered his DEA
Certificate of Registration; BM0852423, for cause.
On July 25, 1994, the Respondent filed a timely request for a
hearing, and following prehearing procedures, a hearing was held in
Oklahoma City, Oklahoma, on November 29, 1994, before Administrative
Law Judge Paul A. Tenney. At the hearing, the Respondent was
represented by counsel, both parties called witnesses to testify and
introduced documentary evidence, and after the hearing, counsel for
both sides submitted proposed findings of fact, conclusions of law and
argument. On January 17, 1995, Judge Tenney issued his Findings of
Fact, Conclusions of Law, and Recommended Ruling, recommending that DEA
grant the Respondent's application for a DEA Certificate of
Registration with certain limitations. Neither party filed exceptions
to his decision, and on February 17, 1995, Judge Tenney transmitted the
record of these proceedings to the Deputy Administrator.
The Deputy Administrator has considered the record in its entirety,
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 Findings of Fact,
Conclusions of Law, and Recommended Ruling 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 during the hearing before Judge
Tenney, a Special Agent of the Oklahoma Bureau of Narcotics testified
that in 1992, he opened a criminal investigation of the Respondent.
With the assistance of a nurse, on September 1, 1992, the Agent
received marijuana from the Respondent. The parties stipulated that
marijuana is a Schedule I controlled substance pursuant to 21 C.F.R.
1308.11(d). On October 1, 1992, the Agent asked the Respondent to come
to the Washington County Sheriff's Office in Bartlesville, Oklahoma,
and after being notified of the investigation and the potential
charges, the Respondent voluntarily turned over approximately two to
three ounces of marijuana to the Agent. After rights advisement, the
Respondent also told the Agent that he
[[Page 54512]]
had had a problem with marijuana, and that he had smoked it since his
student days.
The Agent also testified that during the course of the
investigation he had not received any information that the Respondent
was growing or selling marijuana, or that he had violated any laws
concerning the prescription of narcotics. Further, he testified that
the Respondent was very cooperative throughout the investigation.
As a result of the Agent's investigation, the Respondent was
charged with unlawful distribution of a controlled dangerous
substance--marijuana. On October 14, 1992, the Respondent entered a
plea of nolo contendere to the charge of unlawful distribution, and on
that same day the Court deferred judgment and imposition of sentence,
placed the Respondent on five years' probation, ordered him to serve
100 hours of community service, and fined him $500.
On November 21, 1992, the Oklahoma State Board of Medical Licensure
and Supervision (the Board) suspended the Respondent's medical license,
and on April 8, 1993, the Board terminated the suspension, imposed a
five-year probation, and reinstated his license. The Respondent is
required to comply with sixteen conditions incident to his probation,
to include prohibiting the Respondent from prescribing, administering
or dispensing any controlled substances for his personal use, requiring
the Respondent to submit blood or urine samples for testing and
analysis at the request of any investigator or agent of the Board,
requiring the Respondent to provide proof of his continued compliance
with his recovery treatment plan, and requiring the Respondent to
notify any hospital where he holds staff privileges of the terms and
conditions of the Board's probation order. The probationary period was
ordered to run from April 8, 1993, until April 8, 1998.
Also, on October 12, 1992, the Oklahoma State Bureau of Narcotics
and Dangerous Drugs Control (Bureau) suspended the Respondent's
registration authorizing him to prescribe, administer, and dispense
controlled substances, but in April 1993, the Bureau reinstated his
registration with limitations that remained in effect until November 1,
1993. His registration subsequently was renewed with the same
restrictions as those imposed by the Board. On January 2, 1993, the
Respondent voluntarily surrendered, for cause, his DEA Certificate of
Registration.
During the hearing before Judge Tenney, the Respondent testified
that he was licensed as a physician in 1980, and that he has a sub-
specialty in obstetrics and surgical gynecology. The record contains
evidence that his level of medical care has been ``excellent,'' that
his technical skills are above-average, that he has remained current in
his knowledge of the practice of his sub-specialty, and that there have
been no adverse reports concerning the quality of his care.
The Respondent also testified that from October 1992 until April
1993, he voluntarily sought and received five months of treatment at
the Talbott-Marsh Recovery Campus in Atlanta, Georgia. This treatment
center worked primarily with physicians, and the Respondent was
discharged with a recommendation that he return to the type of medical
practice he had left in Oklahoma. The record contains evidence that
such graduates from this treatment center experience a very high
success rate with a minimal possibility of relapse. Since his release
from the treatment center, the Respondent has submitted to random
urinalysis drug screenings multiple times per month, and all screenings
have been ``negative'' for controlled substances. Further, the
Respondent has complied with the provisions of his Continuing Care
Contract, to include filing quarterly monitoring reports and submitting
to random urine or blood drug screening tests. The Respondent also
participates in counseling, to include support groups and individual
counseling from a psychiatrist. Finally, the record contains ten
affidavits from individuals such as the Respondent's colleagues,
treating healthcare providers, and the District Attorney for the
Eleventh Judicial District of Oklahoma, all attesting to their beliefs
that the Respondent's receipt of a DEA Certificate of Registration
would not be a threat to the public health and safety.
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an
application for a DEA Certificate of Registration, if he determines
that granting the registration would be inconsistent with the public
interest. Section 823(f) requires that the following factors be
considered:
(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 or
safety.
These factors are to be considered in the disjunctive; 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
an application for registration should be granted or denied. See Henry
J. Schwarz, Jr., M.D., Docket No. 88-42, 54 FR 16422 (1989). The issue
becomes whether the Government has proven by a preponderance of the
evidence that registration of the Respondent by the DEA is inconsistent
with the public interest. See Timothy H. Reese, M.D., Docket No. 93-4,
59 FR 39792, 39793-94 (1994) (denying an application for DEA
Certificate of Registration because the preponderance of the evidence
established ``that it is unlikely that Respondent would competently or
reliably discharge the obligations inherent in a DEA registration, and
further concluded that it would not be in the public interest to grant
his application.''). Here, factors one, three, four, and five are
relevant in assessing the public interest.
As to factor one, although the Board suspended the Respondent's
license to practice medicine shortly after his court proceedings, and
the Bureau also suspended his registration to handle controlled
substances, the record also demonstrates that both the Board and the
Bureau subsequently reinstated the Respondent's license and
certificate, with certain limitations. Therefore, the State licensing
boards have reinstated the Respondent's privileges, provided he comply
with specified conditions and limitations.
As to factors three and four, the record establishes that the
Respondent entered a plea of nolo contendere to the charge of unlawful
distribution of marijuana in an Oklahoma State court, and such evidence
established a prima facie case under factor three. See Clinton D. Nutt,
D.O., 55 FR 30,992 (1990); see also Sokoloff v. Saxbe, 501 F2d 571 (2d
Cir. 1974) (discussing nolo contendere pleas and the Controlled
Substance Act). Further, the acts committed by the Respondent which
formed the basis of this charge, unlawful possession and distribution
of marijuana in September and October 1992, demonstrate his
noncompliance with applicable State or Federal laws relating to
controlled substances. 823(f)(4).
As to factor five, the Respondent readily and candidly acknowledged
his
[[Page 54513]]
long-term substance abuse problem in 1992. However, he sought in-
patient treatment and long-term follow-on outpatient treatment of his
problem. The record demonstrates that his treatment program has a high
success rate, and that throughout his post-treatment time the
Respondent has remained drug-free. Further, both through testimony from
colleagues presented at the hearing, and through documentary exhibits
provided, the Respondent has shown that his medical competency has been
excellent, his technical skills above-average, and no adverse reports
have been submitted concerning his quality of care. As noted by Judge
Tenney, the record reflects that ``[a] heterogeneous group of
individuals from the fields of medicine and law enforcement concluded
that the Respondent is no longer any threat to the public health and
safety.''
The Deputy Administrator emphasizes that this order should in no
way be read to condone any illicit use or distribution of marijuana. As
Judge Tenney succinctly noted, ``[t]he use or distribution of marijuana
is a criminal act, and should be punished as such. The purpose of this
proceeding, however, is not to punish but to protect the public
interest. See Denis C. Chan, M.D., 55 FR 8,205 (1990); Leo R. Miller,
M.D., 53 FR 21,931 (1988).'' Therefore, consistent with these findings,
and the fact that the Oklahoma Board and Bureau have levied limitations
upon the Respondent's practice of medicine and handling of controlled
substances, the Deputy Administrator finds that granting the
Respondent's application for a DEA Certificate of Registration, with
the following limitations, would be consistent with the public
interest: (1) The Respondent's controlled substance handling authority
shall be limited to the writing of prescriptions only, and he shall not
dispense, possess, or store any controlled substance, except that the
Respondent may administer controlled substances in a hospital and may
possess controlled substances which are medically necessary for his own
use, and which he has obtained pursuant to a written prescription from
another licensed practitioner (unless the substance is legitimately
obtainable without a prescription); (2) the Respondent shall not
prescribe any controlled substances for his own use; (3) the Respondent
shall maintain a log, recording the date the prescription was written,
patient's name, name and amount of the controlled substance(s)
prescribed, and the pathology for which the prescription was written,
of all controlled substance prescriptions he has written, and upon
request by the Special Agent in Charge, or his designee, of the nearest
DEA office, submit or otherwise make available the log for inspection;
(4) the Respondent shall comply with any and all restrictions,
limitations, or conditions imposed by the Oklahoma Board of Medical
Licensure and Supervision and the Oklahoma State Bureau of Narcotics
and Dangerous Drugs Control until such authorities remove them; (5)
until the Oklahoma Board terminates the Respondent's probationary
period on his medical license, the Respondent shall submit, upon the
request of the Special Agent in Charge, or his designee, of the nearest
DEA office, copies of the results of his random urine or blood
screening tests. These restrictions shall remain in place for three
years beginning on the date of this order.
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 21 CFR 0.100(b) and 0.104, hereby orders that the
application of David D. Miller, M.D., for a DEA Certificate of
Registration for a practitioner be, and it hereby is granted subject to
the limitations enumerated above. This order is effective November 24,
1995.
Dated: October 13, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-26223 Filed 10-23-95; 8:45 am]
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