[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