[Federal Register Volume 61, Number 13 (Friday, January 19, 1996)]
[Notices]
[Pages 1406-1410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-465]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 94-41]
Homayoun Homayouni, M.D.; Continuation of Registration With
Restrictions
On March 21, 1994, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Homayoun Homayouni, M.D., (Respondent), of
Northfield, New Jersey, notifying him of an opportunity to show cause
as to why DEA should not revoke his DEA Certificate of Registration,
BH0295748, under 21 U.S.C. Sec. 824(a)(4), and deny any pending
applications for renewal of such registration as a practitioner under
21 U.S.C. Sec. 823(f), as being inconsistent with the public interest.
Specifically, the Order to Show Cause alleged that:
1. On at least six occasions between November 1988 and March
1989 [the Respondent] allegedly wrote prescriptions for controlled
substances to undercover officers without a legitimate medical
reason in exchange for cash and failed to maintain medical records
of the transactions.
2. On April 14, 1989, the New Jersey State Board of Medical
Examiners (Medical Board) temporarily suspended [the Respondent's]
license to practice medicine and surgery because of the
aforementioned allegations.
3. On August 9, 1989, the Medical Board suspended [the
Respondent's] state medical license for five years, the first two
years active and the remainder as a period of probation. In
addition, [the Respondent was] ordered to pay the sum of $12,145.35
in
[[Page 1407]]
penalties and trial costs, to contribute 300 hours of community
service, and [to] complete a mini-residency in appropriate
prescribing of Controlled Dangerous Substances.
4. On December 1, 1989, [the Respondent was] convicted, on a
guilty plea, of one count of failure to keep records of distribution
of drugs (Vicodin, Hydrocodone Bitartrate, Tylenol) in New Jersey
Superior Court, Atlantic County, and sentenced to two years
probation, a $10,000.00 fine, and 200 hours [of] community service.
5. On April 16, 1991, the Medical Board reinstated [the
Respondent's] state medical license. Shortly thereafter, the New
Jersey State Department of Health, Division of Alcoholism and Drug
Abuse[,] renewed [the Respondent's] expired New Jersey Controlled
Dangerous Substance registration.
On April 14, 1994, the Respondent, through counsel, filed a timely
request for a hearing, and following prehearing procedures, a hearing
was held in Philadelphia, Pennsylvania, on March 7-8, 1995, before
Administrative Law Judge Paul A. Tenney. At the hearing, 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 June 5, 1995, Judge Tenney
issued his Findings of Fact, Conclusions of Law, and Recommended
Ruling, recommending that the Deputy Administrator permit the
Respondent to retain his DEA Certificate of Registration. Neither party
filed exceptions to his decision, and on July 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. Sec. 1316.67, hereby issues his final order
based upon findings of fact and conclusions of law as hereinafter set
forth. The Deputy Administrator adopts, with noted exceptions, the
opinion 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 the Respondent is licensed to
practice medicine in New Jersey. He was born and educated in Iran, but
he performed his internship and residency training in the United
States. In late 1987, the Respondent established a private practice in
Atlantic County, New Jersey.
In late 1988 and early 1989, an undercover investigation was
initiated in which an informant (Informant) working for the Atlantic
County Prosecutors Office met with the Respondent on November 21, 1988,
and on November 29, 1988. At these two meetings, the Respondent
provided the Informant with prescriptions for controlled substances,
including Tylenol No. 3, Valium, and Vicodin, and at each visit, the
Informant paid the Respondent $50.00 for the prescriptions. The
Informant tape recorded these transactions, and Judge Tenney admitted
transcripts of these recordings into evidence. At each meeting, no
medical examination was conducted, and the Informant presented no
medical symptoms or complaints. At the November 29, 1988 meeting, the
Respondent told the Informant, ``don't come too frequent, it makes it
suspicious.'' (Emphasis added). The parties stipulated that Valium, a
brand name for diazepam, is a Schedule IV controlled substance pursuant
to 21 C.F.R. Sec. 1308.14(c), Tylenol No. 3 is a Schedule III
controlled substance pursuant to 21 C.F.R. Sec. 1308.13, and Vicodin
is a brand name for a product containing hydrocodone bitartrate, which
is a Schedule III controlled substance pursuant to 21 C.F.R. Sec.
1308.13(e).
On December 5, 1988, the Respondent met with an investigator,
(Investigator), who had identified herself as a friend of the
Informant. The Investigator requested a prescription for Fiorinal, a
Schedule III controlled substance pursuant to 21 C.F.R. Sec. 1308.13.
During her conversation with the Respondent, the Investigator twice
denied that she suffered from headaches. However, the Respondent wrote
a prescription for Fiorinal, and she paid him $50.00 for the
prescription. On December 16, 1988, the Investigator unsuccessfully
tried to obtain a prescription from the Respondent for Vicodin for the
Informant, and Dilaudid for herself. However, the Respondent did give
her a prescription for Fiorinal, writing on the prescription that the
medication was ``for migraine headache only.''
On January 12, 1989, the Investigator, accompanied by a Sergeant
from her office, visited the Respondent, and he issued prescriptions
for Fiorinal for the Investigator, and diazepam, a Schedule IV
controlled substance pursuant to 21 C.F.R. Sec. 1308.14(c), for the
Sergeant. They paid the Respondent $100.00. The Respondent questioned
the Sergeant as to whether she had made any ``suicide attempts or
anything.'' the Sergeant responded ``[n]o.'' However, the Respondent
took no further medical history nor performed any medical examination.
On January 24, 1989, the Sergeant again met with the Respondent, and
she did not inform him of any symptoms necessitating medication.
However, the Respondent gave her a prescription for Fiorinal and
diazepam. On March 2, 1989, both the Investigator and the Sergeant
returned to the Respondent's office, and he asked the Investigator
whether she had any headaches, to which she replied ``No.'' The
Respondent continued to question why she wanted a prescription for
Fiorinal, and the Investigator stated that it ``relaxed'' her. The
Respondent explained that he wanted to change the Investigator's
medication, stating: ``Yea, let me change a little the category of the
medication so you don't get caught and you don't get questioned and eh,
it would be better for me, as well.'' (Emphasis added). He then changed
her prescription to Xanax, a Schedule IV controlled substance pursuant
to 21 C.F.R. Sec. 1308.14(c), and he changed the Sergeant's
prescription to Tranxene, also a Schedule IV controlled substance.
On the same day, after that transaction, a search warrant was
executed by a Captain of the Atlantic County Prosecutors Office, and he
recovered from the Respondent's wallet the $100.00 paid by the
Investigator and the Sergeant for their prescriptions. Although the
officers searched for patient records pertaining to the Investigator
and the Sergeant, none were found.
At the hearing before Judge Tenney, the Respondent asserted that
the Informant had ``fooled'' him, and that he had not suspected
anything illicit in his motives for wanting controlled substances. The
Respondent also testified that the Informant had told him that the
Investigator suffered from migraine headaches, and that she usually
took Fiorinal for relief. He denied hearing the Investigator's negative
response to his question concerning migraine headaches, asserting
instead that he thought she had said ``yes'' to his headache question.
In his opinion, Judge Tenney noted that ``From a cultural standpoint,
[the Respondent] was somewhat unfamiliar with the presence and habits
of drug-abusers in the United States of America in 1988-89. He also has
some problems with the English language.''
On March 15, 1989, the Attorney General of New Jersey filed with
the New Jersey State Board of Medical Examiners (Medical Board) an
application for a temporary suspension of the Respondent's license to
practice medicine. He also filed a Verified Complaint and Application
(Complaint) which listed various charges against the Respondent based
on allegations that he had issued prescriptions between December of
1988 and March of 1989 to undercover officers without adequate
[[Page 1408]]
examination or medical justification, and without maintaining any
medical records. In April of 1989, the Medical Board issued an order
temporarily suspending the Respondent's medical license pending a State
administrative hearing on the Complaint. In that Order, the Medical
Board wrote:
The Board has undertaken to review the evidence, particularly
the transcripts of the visits by the undercover investigators. The
Board finds sufficient indicia to conclude that these five visits
amount to nothing more than commercial transactions, exchanging
fifty dollars for each of the eight substances prescribed. From the
start, it would seem apparent that the doctors knew or should have
known that the patient [Investigator] presented no symptomology
which would warrant the issuance of a prescription for Fiorinal. . .
. Their visit together is totally devoid of any medical information.
. . . His first interaction with patient [Sergeant] was similarly
devoid of any effort to elicit from her any medical symptomology
which might explain her desire to obtain medication. His willingness
to give patient [Sergeant] a prescription for two medications when
he knew that the Fiorinal was intended for use by patient
[Investigator], is further evidence of his willingness to use his
licensure privileges in exchange for money. . . . In the Board's
view, the cash transactions represented by the eight counts of the
Complaint have all the trappings of a ``drug deal.''
Our review of these facts, coupled with the doctor's post arrest
interview, his acknowledgement of the authenticity of the
prescriptions and his failure to have created a treatment record
with regard to these patients, leads us to the inescapable
conclusion that the doctor has failed to exercise sufficient
judgment so that we can trust his ability to render safe medical
care to his patients.
(Emphasis added)
Prior to a State administrative hearing on the allegations
contained in the Complaint, the Respondent indicated his willingness to
plead ``no contest'' and to seek resolution of the matter through a
consensual agreement. The Board agreed, issuing an Order on August 9,
1989, which contained the following mutually agreed upon conditions:
suspension of the Respondent's medical license for five years--two
years' active and total suspension, and three years of probation,
provided the Respondent complies with stated conditions; payment of a
fine and costs totalling $12,145.35; contribution of 300 hours of
community service; successful completion of a mini-residency course on
the appropriate procedures for prescribing controlled dangerous
substances; and attendance at a status conference prior to
reinstatement of his license, so that the Respondent can demonstrate
his ``capacity and competence to re-enter the practice of medicine and
surgery and his familiarity with and understanding of the laws and
rules specifically applicable to licensees of this Board.''
On October 12, 1989, as part of a plea bargain, the Respondent pled
guilty in State court to a New Jersey controlled dangerous substances
record-keeping violation. He was sentenced to two years' probation, 200
hours of community service, and a fine of $10,000.00.
As of April 16, 1994, the Respondent's medical license was restored
without limitation. By letter, the Executive Director of the Medical
Board wrote: ``According to Board records, after the conclusion of the
active period of suspension, [the Respondent] resumed medical practice
under the probationary period, and all provisions of the Order have
been satisfactorily completed.'' Therefore, the Board deemed the
Respondent ``eligible'' to be a DEA registrant, while acknowledging
that ``the granting of that privilege [rested] solely within the
authority of the [DEA].'' Further, the parties stipulated, and
testimony was received at the hearing before Judge Tenney, that since
1989, the DEA had conducted no further investigations, had no knowledge
of any future allegations regarding the Respondent and his handling of
controlled substances, and knew of no further investigations or
allegations by the Atlantic County's Prosecutor's Office of misconduct
pertaining to the Respondent's practice. Also, no complaints or
malpractice suits had been filed against the Respondent concerning the
quality of his medical services. The record also contains numerous
written documents from individuals, including colleagues and patients,
writing to support the Respondent's application and to attest to the
fact that he is a caring and compassionate physician.
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
pending applications, if he determines that the continued 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 will 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
a registration should be revoked or an application for registration
denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 54 Fed. Reg.
16,422 (1989).
In this case, all five factors are relevant in determining whether
the Respondent's continued registration would be inconsistent with the
public interest. As to factor one, ``recommendation of the appropriate
State licensing board,'' the Medical Board issued a temporary
suspension of the Respondent's medical license within weeks of his
arrest in March of 1989. Further, the Medical Board ultimately
suspended the Respondent's medical license for two years and placed it
in a probationary status subject to ordered conditions. However, on
April 16, 1994, the Respondent's medical license was restored without
restrictions, and evidence was presented to show that the Respondent
complied with all ordered conditions, to include the successful
completion of a mini-residency course dealing with the procedures to
follow for the appropriate prescribing of controlled dangerous
substances. The Medical Board also wrote that it deemed the Respondent
``eligible'' to be a DEA registrant. Judge Tenney also noted that ``it
is clear that the `recommendation of the appropriate State licensing
board or professional disciplinary authority' strongly favors the
Respondent. . . . Thus, the State of New Jersey no longer believes that
the Respondent is a danger to the public.''
As to factor two, the Respondent's ``experience in dispensing . . .
controlled substances,'' the Deputy Administrator agrees with Judge
Tenney's conclusion that ``[b]ased on the evidence presented at the
hearing, there can be no doubt that the Respondent's practice of
dispensing controlled substances to the under cover officers was
woefully inadequate. He dispensed controlled substances absent
appropriate indications that the substances were medically necessary,
and he failed to document the dispensation.'' Further, the observations
by the Medical Board, that the Respondent's conduct in 1988 and 1989
was analogous to ``commercial transactions'' or a ``drug deal,'' were
substantiated by the transcripts of the
[[Page 1409]]
individual interactions between the Respondent, the Informant, the
Investigator, and the Sergeant. The Deputy Administrator agrees with
Judge Tenney's conclusion, that ``notwithstanding any evidence that
tends to favor the Respondent, a preponderance of the evidence supports
the conclusion that the Respondent knowingly dispensed controlled
substances for illegitimate purposes.''
However, the evidence also shows that since the Respondent's
probationary reinstatement of his medical license in April of 1991, no
investigations or allegations have been raised concerning the
Respondent's dispensing of controlled substances. Further, the evidence
supports a conclusion that the Respondent has also completed remedial
training relevant to his handling of controlled substances. Again, the
Deputy Administrator agrees with Judge Tenney's conclusion that ``the
Respondent's illicit behavior in 1988-89 is minimized by his conduct
since that time.''
As to factor three, the Respondent's ``conviction record under
Federal or State laws relating to . . . dispensing of controlled
substances,'' the evidence demonstrates that the Respondent pled guilty
on October 12, 1989, to a New Jersey controlled dangerous substances
record-keeping violation, and he was sentenced to two years' probation,
200 hours of community service, and a monetary fine. The Respondent's
``conviction record'' is thus relevant in determining the public's
interest in his continued registration with the DEA.
As to factor four, the Respondent's ``[c]ompliance with applicable
State, Federal, or local laws relating to controlled substances,'' the
Government argued that the Respondent violated State law in his
dispensing activities in 1988 and 1989, as found by the Medical Board.
However, Judge Tenney noted that the Government ``[did] not reference,
or provide the text of, any specific statutes with which the Respondent
allegedly failed to comply, nor does it point to any State entity's
finding that the Respondent violated any laws other than the record-
keeping provision discussed under factor (3)'' as pertaining to his
State conviction. Thus, the Deputy Administrator agrees with Judge
Tenney's conclusion that factor four is of limited significance given
the evidence of record.
As to factor five, ``[s]uch other conduct which may threaten the
public health or safety,'' the Deputy Administrator finds relevant an
observation made by Judge Tenney that the DEA took no action against
the Respondent's registration while he was actively suspended from
practicing medicine by the New Jersey Medical Board. Further, he noted
that ``[t]he delay from April of 1991 until March of 1994, however,
tends to suggest, albeit slightly, that the DEA did not consider the
Respondent to be a serious threat to the public health and safety.''
Further, the Government argues that the Respondent remains ``unable
or unwilling to understand or admit the true nature of the activities
for which the government issued a show cause [order].'' Judge Tenney
noted that, based upon the Respondent's testimony before him, ``[t]here
is little doubt that the Respondent is still under the illusion that he
was an innocent participant in the 1988-89 undercover transactions.''
However, the evidence supports a contrary finding, for the transcripts
of the exchanges between the Respondent and the undercover
investigators clearly show that the Respondent was aware that he was
prescribing controlled substances for illegitimate purposes.
Significant was the Respondent's change of controlled substances
prescribed to the Investigator and the Sergeant, and his statement,
``Yea, let me change a little the category of the medication so you
don't get caught and you don't get questioned and eh, it would be
better for me, as well.'' No mention was made of a legitimate medical
purpose for prescribing controlled substances in this instance or to
substantiate the change in medication prescribed. Such evidence makes
the Respondent's contention that he was an innocent ``fooled'' by the
assertions of his patients incredible.
However, the Deputy Administrator also finds compelling Judge
Tenney's observations concerning the Respondent's credible remorse for
his misconduct. He wrote that the Respondent, an Iranian by birth, was
``a proud man, who sincerely [was] ashamed of his conduct, even though
his pride apparently contribute[d] to his inability to be completely
candid regarding that conduct.'' Furthermore, the Respondent also
provided extensive evidence from colleagues and patients of his caring
and compassionate treatment of his patients. Also, the record contains
no evidence of any investigation or allegations of misconduct regarding
the Respondent's medical practices since 1989.
In analyzing this diverse evidence relevant to the Respondent's
likely future conduct and the public interest, Judge Tenney emphasized
the unique nature of this case. Specifically, he noted that in previous
cases, when a respondent had failed to admit to the full extent of his
involvement in documented misconduct involving controlled substances,
Judge Tenney had then discounted the testimony of that respondent and
doubted such a respondent's commitment to compliance with the
Controlled Substances Act in future practice. See, e.g., Prince George
Daniels, D.D.S., Docket No. 94-23, 60 Fed. Reg. 62,884 (1995); Albert
L. Pulliam, M.D., Docket No. 94-11, 60 Fed. Reg. 54,513 (1995). Here,
however, Judge Tenney found that the weight of the evidence favored the
continued registration of this Respondent because of the unique
circumstances of his case.
The Deputy Administrator, in considering all the evidence and the
submission of the parties, agrees with Judge Tenney and concludes that
the Respondent's DEA Certificate of Registration should not be revoked
at this time. However, he also finds that the imposition of certain
restrictions upon the Respondent's continued registration will ``allow
the Respondent to demonstrate that he can responsibly handle controlled
substances in his medical practice, yet simultaneously protect the
public by providing a mechanism for rapid detection of any improper
activity related to controlled substances.'' Steven M. Gardner, M.D.,
Docket No. 85-26, 51 Fed. Reg. 12,576 (1986). Specifically, the
Respondent is to maintain a log of all controlled substance
prescriptions issued or authorized by him for a period of two years
from the date of this Order's publication in the Federal Register. He
is also to provide a copy of this log on a quarterly basis to the
Special Agent in Charge of the DEA Newark Field Division, or his
designee, and this individual, consistent with this Order, will
determine specific data to be recorded on this log. Therefore, the
Deputy Administrator finds that the public interest is best served by
continuing the Respondent's DEA Certificate of Registration subject to
compliance with the above enumerated requirements.
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
Certificate of Registration BH0295748, issued to Homayoun Homayouni,
M.D., be continued, and any pending applications be granted, with the
above restrictions. This order is effective upon publication in the
Federal Register.
[[Page 1410]]
Dated: January 4, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-465 Filed 1-18-96; 8:45 am]
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