[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]



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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