[Federal Register Volume 61, Number 23 (Friday, February 2, 1996)]
[Notices]
[Pages 3948-3950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2239]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
[Docket No. 94-35]
Therial L. Bynum, M.D.; Revocation of Registration
On March 11, 1994, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Therial L. Bynum, M.D., (Respondent) of
Murfreesboro, Tennessee, notifying him of an opportunity to show cause
as to why DEA should not revoke his DEA Certificates of Registration,
BB2042048 and AB8535087, under 21 U.S.C. 824(a), and deny any pending
applications for renewal of such registrations 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:
[The Respondent] materially falsified required applications as
set forth in 21 U.S.C. 824(a)(1); [the Respondent had] been
convicted of a felony relating to controlled substances as set forth
in 21 U.S.C. 824(a)(2); [the Respondent had] had a state license
suspended or revoked by competent State authority and [is] no longer
authorized to handle controlled substances in one of the states that
[he is] operating as set forth in 21 U.S.C. 824(a)(3); and [the
Respondent has] committed acts which render [his] registrations
inconsistent with the public interest as set forth in 21 U.S.C.
824(a)(4).
By letter dated April 8, 1994, the Respondent replied to the show
cause order, requesting a hearing. On May 16, 1994, Government counsel
filed a prehearing statement, and on June 24, 1994, the Respondent
filed his prehearing statement. However, on May 4, 1995, Administrative
Law Judge Paul A. Tenney issued an order, Notice of Cancellation of
Hearing, noting that the Respondent had failed to reply to several of
his previous orders, notifying the Respondent that his inaction was
being deemed a waiver of his hearing right and an implied withdrawal of
his request for a hearing, and giving the Respondent until May 31,
1995, to request reconsiderations of the matter. However, the
Respondent failed to reply, and by order dated June 1, 1995, Judge
Tenney closed the case file and removed this matter from his active
docket. By letter also dated June 1, 1995, Judge Tenney informed the
Deputy Administrator of his actions, and the case file was transmitted
for issuance of a final order.
The Deputy Administrator has considered the prehearing statements
of the parties and the investigative file. Accordingly, he now enters
his final order in this matter, without a hearing and based upon this
record, pursuant to 21 C.F.R. 1301.54(e) and 1301.57.
Initially, the Deputy Administrator finds that the Respondent has
two active DEA Certificates of Registration as a practitioner:
BB2042048 for his practice in Murfreesboro, Tennessee, and AB8535087,
for his practice in Omaha, Nebraska.
On November 30, 1988, the Respondent was convicted in the Circuit
Court, Cook County, State of Illinois, of conspiracy with intent to
commit the offense of ``[k]ickbacks in the amount of more than
$10,000.'' Specifically, the Respondent, then a Medicaid provider,
acted to accept remuneration from an individual representing a
laboratory which was also a Medicaid provider, in exchange for
referring specimens to this laboratory. Subsequently, effective April
26, 1991, the Department of Professional Regulation, State of Illinois,
indefinitely suspended the Respondent's state medical license. Although
the Respondent, in his prehearing statement, wrote that he had appealed
this suspension, he did not submit any documentation reflecting the
appeal, and the investigative record does not contain any such record.
On June 19, 1991, the Respondent submitted an application to renew
his Nebraska DEA Certificate of Registration, and in response to a
question on that application, indicated that he had never had a state
professional license revoked, suspended, restricted or denied, when, in
fact, his Illinois medical license had been suspended effective April
26, 1991. That registration was renewed June 27, 1991. In his
prehearing statement, the Respondent wrote that he was living in
Tennessee at the time he submitted his renewal application, and that he
had not received notification of the Illinois action, although he had
been represented by legal counsel before that forum.
In March of 1992, the Division of Health Related Boards, Department
of Health, State of Tennessee, suspended the Respondent's medical
license, and on June 4, 1992, the Tennessee Board of Medical Examiners
(Tennessee Board) revoked the Respondent's state medical license. The
Tennessee Board found that the Respondent had been treating patients
with a ``secret drug that [he] claimed can `cure' AIDS.'' He sold this
`` `drug' to patients for an initial payment of $10,000.00, with
additional payments of this magnitute (sic.) for treatment of the
disease at later stages. * * * Some patients were directed to stop
taking AZT while taking the `drug.' * * * The Respondent[] made
representations about the effectiveness of [his] AIDS `drug' to induce
friends and relatives of the AIDS victims to pay for the `drug.' ''
During the course of an undercover operation, a dose of this ``drug''
was obtained and analyzed, and the Tennessee Board found that ``[t]he
drug does not cure AIDS. There is no known drug which will have the
effect on AIDS that the Respondent[] claim[s] for [his] drug. * * *
Precluding an AIDS victim from taking AZT would have a harmful effect
on that patient's health. Furthermore, the `drug' contains medications
which could be harmful to the immune system of AIDS patients.'' The
Tennessee Board concluded that the Respondent's acts had violated the
Tennessee Medical Practice Act. The Respondent appealed the Tennessee
Board's action, and the Chancery Court
[[Page 3949]]
for the State of Tennessee affirmed the Tennessee Board's order.
On June 26, 1992, the Respondent submitted an application to renew
his Tennessee DEA Certificate of Registration, and in response to a
question on that application, indicated that he was then authorized to
prescribe, dispense, conduct research or otherwise handle controlled
substances under the laws of the State in which he was operating or
proposing to operate, Tennessee, when in fact his Tennessee medical
license had been under suspension effective March 16, 1992, and
permanently revoked effective June 4, 1992.
On October 27, 1993, the Respondent was convicted based upon a jury
verdict in the U.S. District Court, Middle District of Tennessee, of
one count of knowingly or intentionally furnishing false or fraudulent
material information in, or omitting material information from, a
renewal application for a DEA Certificate of Registration, pursuant to
21 U.S.C. 843(a)(4)(A). On October 5, 1994, his appeal of that decision
was dismissed by the U.S. Court of Appeals for the Sixth Circuit.
The Drug Enforcement Administration lacks statutory authority to
issue or maintain the registration of a practitioner who is not duly
authorized to handle controlled substances in the state in which he
conducts his practice. 21 U.S.C. 802(21), 823(f), and 824(a)(3). This
prerequisite has been consistently upheld. See Charles L. Novosad, Jr.,
60 Fed. Reg. 47,182 (1995); Dominick A. Ricci, M.D., 58 Fed. Reg.
81,104 (1993); James H. Nickens, M.D., 57 Fed. Reg. 59,847 (1992); Roy
E. Hardman, M.D., 57 Fed. Reg. 49,195 (1992). Here, the Respondent's
medical license in the State of Tennessee has been revoked, and he is
no longer authorized to practice medicine, to include prescribing
controlled substances. Therefore, having considered the facts and
circumstances in this matter, the Deputy Administrator concludes that
Dr. Bynum's DEA Certificate of Registration for Tennessee should be
revoked due to his lack of authorization to handle controlled
substances in that state.
As for his Certificate of Registration in Nebraska, there is no
evidence in the investigative file or in the Respondent's prehearing
statement either proving or disproving that the Respondent is still
licensed to handle controlled substances in Nebraska. However, assuming
he is, then 21 U.S.C. 824(a)(1) is relevant, stating:
(a) A registration pursuant to section 823 of this title to . .
. distribute, or dispense a controlled substance may be suspended or
revoked . . . upon a finding that registrant--
(1) has materially falsified any application filed pursuant to
or required by his subchapter . . .
It has been previously noted that the Deputy Administrator may
revoke or suspend the Respondent's registration upon a showing that he
``materially falsified'' any application filed pursuant to the
applicable Controlled Substances Act provisions. See, e.g., Terrence E.
Murphy, M.D., Docket No. 94-19, 61 FR 2841, Jan. 29, 1996. The
appropriate test for determining whether the Respondent materially
falsified any application is whether the Respondent materially
falsified any application is whether the Respondent ``knew or should
have known'' that he submitted a false application. See Bobby Watts,
M.D., 58 Fed. Reg. 46,995 (1993); accord Herbert J. Robinson, M.D., 59
Fed. Reg. 6,304 (1994).
Here, written on the Respondent's June 1991 DEA renewal application
for his Nebraska certificate, was a false answer to the question
regarding his state medical licenses. Specifically, the Respondent had
failed to acknowledge the adverse action taken in Illinois against his
professional license. As has been previously noted, such an omission is
material, for ``if the Respondent correctly had checked `YES' to the
question, that would have been a red flag to [the] DEA to go check with
the [State] licensing authorities . . . Cf. . . . Gonzales v. United
States, 286 F.2d 118, 120 (10th Cir. 1960) (addressing a statute
concerning ``material false statements . . . ., i.e., statements that
could affect or influence the exercise of a governmental function''),
cert. denied, 365 U.S. 878, 81 S. Ct. 1028, 6 L. Ed. 2d 190 (1961).''
Murphy, supra.
The Respondent attempted to mitigate this falsification by writing
that he was unaware of the Illinois action at the time he prepared this
renewal application. The Deputy Administrator finds this statement,
without any corroborating information, incredible, for the Illinois
Board order was effective two months before the Respondent's renewal
application to DEA was submitted, the Respondent was represented by
legal counsel before the Illinois Board, and the Respondent provided no
information to show that the Illinois Board failed to provide timely
notification of their adverse action.
Further, 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
profession 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
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, factors one, three, and five 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 Deputy
Administrator finds it significant that Illinois has indefinitely
suspended the Respondent's medical license for cause, and that
Tennessee has revoked the Respondent's medical license for cause.
As to factor three, the Respondent's ``conviction record under
Federal or State laws relating to the . . . dispensing of controlled
substances,'' the Deputy Administrator finds relevant the Respondent's
conviction in Federal Court of knowingly or intentionally furnishing
false or fraudulent material information in his application to renew
his DEA registration. As noted by the Administrator in Bobby Watts,
supra: ``Since DEA must rely on the truthfulness of information
supplied by applicants in registering them to handle controlled
substances, falsification cannot be tolerated.''
As to factor five, ``[s]uch other conduct which may threaten the
public health or safety, the Respondent's acts of Medicaid fraud are
relevant. See, Leonard Merkow, M.D., Docket No. 93-62 60 Fed. Reg.
22,075 (1995). Further, the Respondent's actions in Tennessee in
prescribing a `drug', for the payment of $10,000.00, which he falsely
claimed was an AID's cure, creates a threat to the public interest
inconsistent with his retaining his DEA Certificates of
[[Page 3950]]
Registration. Finally, the Respondent has failed to provide any
information which would indicate that his future behavior would not
continue to be a threat to the public interest.
Therefore, the Deputy Administrator finds that the public interest
is best served by revoking the Respondent's DEA Certificates of
Registration and denying any pending applications. 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 DEA Certificates of Registration
BB2042048 and AB8535087, previously issued to Therial L. Bynum, M.D.,
be, and they hereby are, revoked and any pending applications are
denied. This order is effective March 4, 1996.
Dated: January 29, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-2239 Filed 2-1-96; 8:45 am]
BILLING CODE 4410-09-M