[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]
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