[Federal Register Volume 60, Number 205 (Tuesday, October 24, 1995)]
[Notices]
[Pages 54513-54515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26224]



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DEPARTMENT OF JUSTICE
[Docket No. 94-11]


Albert L. Pulliam, M.D.; Denial of Application

    On October 26, 1993, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Alert L. Pulliam, M.D., (Respondent) of Houston, 
Texas, notifying him of an opportunity to show cause as to why DEA 
should not deny his pending application for a DEA Certificate of 
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) On three 
separate occasions between September 1988 and December 1988, the 
Respondent issued controlled substance prescriptions to an undercover 
DEA Special Agent for other than legitimate medical purposes and 
outside the scope of his professional practice, and on one of those 
occasions the Respondent knowingly accepted stolen merchandise in 
exchange for prescriptions; (2) on December 21, 1988, the Respondent 
was indicted on nine counts of unlawful dispensing of controlled 
substances, in violation of 21 U.S.C. 841(a)(1), in the United States 
District Court for the Southern District of Texas; all of the counts 
constituted felony offenses relating to controlled substances; (3) on 
September 18, 1989, the Respondent was convicted, after entering a 
guilty plea, to three counts of unlawfully dispensing controlled 
substances, and he was sentenced to thirty days incarceration, five 
years probation, 100 hours community service, and a $10,000 fine; (4) 
on October 6, 1989, the Administrator had issued a final order revoking 
the Respondent's previous DEA registration as inconsistent with the 
public interest based upon his felony conviction and improper 
prescribing practices; and (5) on November 6, 1989, the Respondent 
voluntarily surrendered his Texas Controlled Substance Privileges for 
an indefinite period, thus resulting in his not being authorized to 
handle controlled substances in the State of Texas.
    On November 22, 1993, the Respondent filed a timely request for a 
hearing, and following prehearing procedures, a hearing was held in 
Houston, Texas, on October 19, 1994, before Administrative Law Judge 
Paul A. Tenney. At the hearing, the Government called one witness to 
testify and introduced documentary evidence, and the Respondent, acting 
without counsel, testified, called no other witnesses, and offered no 
documentary evidence. After the hearing, the Government submitted 
proposed findings of fact, conclusions of law and argument. The 
Respondent did not submit a post-hearing brief. On December 14, 1994, 
Judge Tenney issued his Opinion and Recommended Ruling, recommending 
that the Respondent's application for a DEA Certificate of Registration 
be denied. Neither party filed exceptions to his decision, and on 
January 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 CFR 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 

[[Page 54514]]
conclusions herein, or of any failure to mention a matter of fact or 
law.
    The Deputy Administrator finds that in October 1989, the 
Administrator of the DEA issued an order revoking the Respondent's 
registration certificate, effective November 15, 1989, because his 
continued registration would have been inconsistent with the public 
interest. The Administrator based his decision upon the facts that (1) 
in 1989 the Respondent had been convicted of a felony offense relating 
to controlled substances, (2) in 1988 he had exhibited an inability or 
unwillingness to properly handle controlled substances when he issued 
prescriptions for such substances to an undercover Agent for other than 
legitimate medical purposes, and (3) in 1988 he had falsified the 
Agent's patient records in order to conceal his illegal activities. 
Albert L. Pulliam, M.D., 54 FR 42376 (1989). Further, the Deputy 
Administrator finds that as part of the 1988 investigation, the 
Respondent received a purportedly ``stolen'' television and VCR from 
the undercover agent in exchange for $150.00 and prescriptions for 
controlled substances issued without medical justification.
    On November 6, 1989, the Respondent voluntarily surrendered his DEA 
Certificate of Registration and his Texas Controlled Substances 
Privileges. On April 30, 1993, the Texas State Board of Medical 
Examiners granted Respondent permission to reapply to the DEA and the 
Texas Department of Public Safety for reinstatement of his controlled 
substances registrations in all schedules, noting that the granting or 
denying of such an application would be within the authority and 
discretion of the appropriate agency. On November 11, 1993, the 
Respondent received his Texas certificate to dispense controlled 
substances, and that certificate was renewed on March 31, 1994, for an 
additional year.
    At the hearing before Judge Tenney, the Respondent testified that 
he felt that he had paid for his mistakes, that he had ``learned a 
great deal about narcotics and how to be very careful about dispensing 
[them],'' and that he was confident that he would not have problems in 
the future writing a prescription for narcotics. Next the Respondent 
described his past medical practice and testified that his current 
practice was ``basically the same.'' However, he noted that for the 
past five years he had been practicing medicine without issuing 
prescriptions for controlled substances, and he expected to issue less 
controlled substance prescriptions than the average doctor in his 
future practice.
    The Respondent also testified that he thought he was issuing 
prescriptions for controlled substances to the Special Agent in 1988 
for a legitimate medical purpose, for the Special Agent had complained 
of a cough and a headache. The Respondent also stated that he did not 
know that the television and VCR he received from the agent was stolen 
property.
    The Government called the Special Agent who had conducted the 
investigation in 1988 which resulted in the 1989 conviction of the 
Respondent, and he testified that in September 1988, November 1988, and 
December 1988, he received prescriptions from the Respondent for 
controlled substances, to include Valium, Tylenol No. 4, and Tussionex, 
despite the lack of a medical examination or any other clinical tests 
taken to substantiate a medical need for those substances. Valium 
contains diazepam, a Schedule IV controlled substance, Tylenol No. 4 
contains codeine, a Schedule IV controlled substance, Tylenol No. 4 
contains codeine, a Schedule III controlled substance, and Tussionex, 
contains hydrocodone, also a Schedule III controlled substance.
    The Special Agent also stated, and the transcripts corroborated, 
that he had not complained to the Respondent of tension headaches or 
problems with bronchitis, and that on one occasion the Respondent had 
made a statement about the Special Agent's lack of a medical problem. 
However, the record contains a copy of a patient record in the name 
used by the Special Agent during the 1988 investigation with entries 
noting tension headaches and bronchitis. The Special Agent also 
testified that he paid the Respondent for the prescriptions received in 
September and November 1988, that during his visit in November 1988, he 
told the Respondent that he could obtain stolen electrical equipment to 
sell, and during his December 1988 visit he brought a television with a 
VCR, valued at approximately $600 to $650, to the Respondent's office. 
The Respondent asked the Special Agent to put the television in the 
Respondent's car, and after discussing a price, the Respondent gave the 
Special Agent a check for $150 and prescriptions for Tussionex, Tylenol 
No. 4, and Valium at no charge. The Special Agent wore a transmitting 
device during each visit with the Respondent, their conversations had 
been recorded, and the transcripts of those recordings were made a part 
of the record.
    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 application would be inconsistent with the public 
interest. Section 823(f) requires that the following factors be 
considered to determine 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 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 denied. See Henry J. Schwarz, 
Jr., M.D., Docket No. 88-42, 54 FR 16422 (1989).
    In this case, factors two, three, four, and five are relevant in 
determining whether granting the Respondent's application would be 
inconsistent with the public interest. Significantly, Judge Tenney 
noted, and the Deputy Administrator concurs, that the real question in 
this case is whether the Respondent can now be trusted with the 
responsibilities inherent in being granted a DEA Certificate of 
Registration. His past misconduct is relevant, however, to a 
determination of his present trustworthiness. Therefore, relevant to 
factor two, the Respondent prescribed controlled substances to a 
Special Agent in 1988 for no legitimate medical purpose. As for factor 
three, the record contains evidence of the Respondent's conviction as a 
result of a guilty plea to three counts of unlawfully dispensing 
controlled substances and the sentence resulting from that conviction. 
This conviction also demonstrates the Respondent's failure to comply 
with federal laws relating to controlled substances, factor four.
    As to factor five, the record contains evidence demonstrating that 
the Respondent had falsified patient records, for despite the 
transcript demonstrating that the Respondent had told the Special Agent 
he had no medical problem, the treatment record contained annotations 
of headaches and bronchitis. Next, the Special Agent testified that he 
had informed the Respondent that the television exchanged in December 
1988 was stolen, and yet at the hearing in October 

[[Page 54515]]
1994, the Respondent continued to deny knowledge of that fact. 
Although, as Judge Tenney noted, the transcripts of the conversation 
between the Respondent and the Special Agent did not demonstrate that 
the Special Agent had expressed the words, ``the television is 
stolen,'' they clearly indicated that the Respondent was aware of the 
Special Agent's access to stolen property, that the Respondent knew the 
value of the television, and that the Respondent paid the Special Agent 
merely a fraction of that value. Thus, the Respondent's testimony at 
the October 1994 hearing demonstrates his failure to be truthful, a 
fact which impacts upon a determination of whether his conduct may 
threaten the public health and safety under factor five.
    Further, the Respondent asserted that he was sure he would not 
engage in misconduct related to controlled substances in the future, 
yet he offered no evidence of remedial actions he has taken since his 
1989 conviction to substantiate his assurances. Also, he testified that 
his medical practice remained the same, yet he did not submit any 
evidence to substantiate the fact that he remedied his problems 
concerning falsifying patient records and failing to conduct medical 
examinations prior to dispensing medication. For example, he submitted 
no evidence of acquiring additional education in the handling of 
controlled substances. Thus, the Deputy Administrator concurs with 
Judge Tenney's conclusion that DEA ``has not been adequately assured 
that the Respondent will responsibly use a DEA Certificate of 
Registration.'' Therefore, the Deputy Administrator finds that the 
public interest is best served by denying the Respondent's application 
for a DEA Certificate of Registration at this time.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823, and 21 CFR 0.100(b) and 0.104, hereby orders that the application 
for a DEA Certificate of Registration submitted by Albert L. Pulliam, 
M.D. be, and it hereby is, denied. This order is effective November 24, 
1995.

    Dated: October 13, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-26224 Filed 10-23-95; 8:45 am]
BILLING CODE 4410-09-M