[Federal Register Volume 61, Number 52 (Friday, March 15, 1996)]
[Notices]
[Pages 10789-10791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6221]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
[Docket No. 94-73]
R. Bruce Phillips, D.D.S.; Grant of Application
On August 11, 1994, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order
[[Page 10790]]
to Show Cause to R. Bruce Phillips, D.D.S., (Respondent) of Pineville,
Louisiana, notifying him of an opportunity to show cause as to why DEA
should not deny his application for 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) In 1985, the Louisiana State Police conducted an investigation
concerning the Respondent's prescribing practices. The investigation
revealed that between January 1980 and September 1985, the Respondent
prescribed large amounts of controlled substances to several
individuals for no legitimate medical reason.
(2) As a result of this investigation, in August 1986, a one-count
Bill of Information was filed in the United States District Court,
Western District of Louisiana, charging the Respondent with unlawfully
dispensing 1,263 dosage units of controlled substances. On September 2,
1986, the Respondent pled guilty to the Bill of Information. The
Respondent was sentenced to a six-month period of confinement, placed
on probation for four years, and ordered to pay a fine of $5,000.00.
(3) Following the Respondent's conviction, he entered into a
consent agreement with the Louisiana State Board of Dentistry (Dental
Board) on October 28, 1986. As part of the agreement, the Dental Board
placed his dental license on probation for five years subject to
certain terms and conditions, and the Respondent's State authority to
handle controlled substances was revoked permanently. As a result, on
October 27, 1986, the Respondent voluntarily surrendered his DEA
Certificate of Registration, AP3383685. On July 23, 1992, the Dental
Board reinstated the Respondent's State privileges to prescribe
controlled substances.
On September 6, 1994, the Respondent, through counsel, filed a
timely request for a hearing, and following prehearing procedures, a
hearing was held in New Orleans, Louisiana, on June 21, 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 August 28, 1995, Judge
Tenney issued his Opinion and Recommended Ruling, recommending that the
Respondent's application for registration be granted. Neither party
filed exceptions to his decision, and on September 28, 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 conclusions herein, or of any failure to mention a
matter of fact or law.
The Deputy Administrator finds that, pursuant to stipulations made
by the parties before Judge Tenney, the following facts are not in
dispute: (1) In 1985, the Louisiana State Police conducted an
investigation concerning the Respondent's prescribing practices, which
covered the period of January 1980 and September 1985; (2) in August
1986, a one-count Bill of Information was filed in the United States
District Court, Western District of Louisiana, relating to the
Respondent's unlawful dispensing of 1,263 dosage units of controlled
substances; (3) on September 2, 1986, the Respondent pled guilty to the
Bill of Information, and he was sentenced to a six-month period of
confinement, placed on probation for four years, and ordered to pay a
fine of $5,000.00; (4) following his conviction, the Respondent entered
into a consent agreement with the Dental Board on October 28, 1986, and
as part of the agreement, the Dental Board placed the Respondent's
dental license on probation for five years, subject to certain terms
and conditions, and his State authority to handle controlled substances
was revoked; and (5) on October 27, 1986, the Respondent voluntarily
surrendered his DEA Certificate of Registration, but on July 23, 1992,
the Dental Board reinstated his State privileges to prescribe
controlled substances. The parties also stipulated that Percodan,
Demerol, and Mepergan Fortais are Schedule II controlled substances.
The Deputy Administrator also finds that the Respondent is a Board
qualified oral and maxillo-facial surgeon who has practiced in that
field of speciality since 1958. He is licensed to practice his
specialty in the State of Louisiana. On August 5, 1992, he executed an
application for registration as a practitioner with the DEA.
The acts underlying the criminal conviction include the
Respondent's conduct of issuing prescriptions for controlled substances
at the request of two individuals, after he had been drinking alcohol
to excess. One of these individuals was a local resident with widely
known criminal ties, and the second individual was a local attorney who
was representing the Respondent in a pending court action. The
Respondent did not maintain office records for either of these
individuals. During an interview with the State police on August 26,
1986, the Respondent admitted that he had issued prescriptions to the
first individual as a personal favor, even though this individual
suffered ailments outside the Respondent's area of practice.
Before Judge Tenney, a Special Agent with the FBI testified about
the investigation he had conducted while employed as a Louisiana State
Trooper involving the Respondent. He stated that from May of 1980 to
August of 1984, the Respondent had issued 77 prescriptions for almost
1,500 dosage units of controlled substances for the first individual or
his wife. During the same interview with the State Trooper, the
Respondent admitted that, before prescribing controlled substances to
the attorney, he had not conducted an examination, and that, although
he had become aware that the attorney was abusing the drugs he
prescribed for him, he continued to issue the prescriptions for
controlled substances partly out of friendship, and partly out of fear
that the attorney would not properly handle his lawsuit should the
Respondent cease providing the prescriptions. From 1982 to 1984, the
Respondent wrote a total of 36 prescriptions to this attorney for a
total of 710 dosage units of Percodan.
Judge Tenney found that the evidence established that ``the vast
majority, if not all of the unlawful prescriptions were issue[d] while
[the Respondent] was under the influence of alcohol.'' He also found
that the ``State police investigation revealed that both [of these
individuals] took advantage of [the Respondent's] intoxicated state and
`used' him for the purpose of obtaining controlled dangerous
substances.''
As a result of this conduct, the Respondent entered a guilty plea
in Federal court for unlawfully dispensing Percodan. The Court
sentenced him to five years imprisonment, but suspended all but six
months of this time, and placed him on probation for four years. He was
also ordered to pay a fine of $5,000.00. The Respondent also entered
into a consent agreement with the Dental Board. The consent agreement
levied conditions upon his continued practice of dentistry, to include
placing him on probation for five years and revoking his State
registration to handle controlled substances.
[[Page 10791]]
The Respondent had an early release fro the detention center, he
performed 400 hours of community service at the Huey P. Long Medical
Center, and he paid his fine. On November 19, 1990, the Respondent's
probation was terminated early upon the recommendation of his probation
officer. Further, the Respondent voluntarily quit drinking alcohol
about ten years ago, a fact corroborated by his co-workers, one of
which testified before Judge Tenney that he believed that the
Respondent had ``quit drinking completely.''
Although the consent decree at the Dental Board indicated that the
Respondent's certificate to prescribe controlled substances was
``revoked'' permanently, the Respondent's license to prescribe
controlled substances was reissued by the State Department of Health
and Hospitals. Further, testimony was received from a representative of
the Dental Board, that the Board had not received any complaints
concerning the Respondent, and that he as ``in good standing.''
Finally, the record contains a document demonstrating that the Dental
Board ``strongly recommended the return of [the Respondent's] DEA
registration.''
Currently, the Respondent is employed at the Huey P. Long Medical
Center (Center), and he is performing his dental specialty at the
Center's satellite clinic on England Air Force Base. The Center's
director submitted an affidavit dated June 19, 1995, writing that he
had known the Respondent for nearly 30 years, was aware of his problems
which surfaced in the mid-1980's, and that it was his opinion that the
Respondent was ``a skilled, competent, [and] knowledgeable oral surgeon
with a good moral character.'' He also wrote that the Respondent
operated at the clinic daily and saw approximately 2,500 patients
annually.
Another dentist working at the Center testified before Judge
Tenney, stating that the Respondent was a highly competent oral and
maxillo-facial surgeon, and he recommended that the Respondent's DEA
Certificate of Registration be reinstated. This colleague also opined
that the Respondent had a strong relationship with his wife, children,
and grandchildren.
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an
application for registration as a practitioner, if he determines that
granting the 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 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 FR 16422 (1989).
In this case, all five factors are relevant in determining whether
the Respondent's registration would be inconsistent with the public
interest. As to factor one, ``recommendation of the appropriate State
licensing board, * * *'' the consent decree of record between the
Respondent and the Dental Board is relevant, indicating the State
licensing board's response to the Respondent's misconduct. However,
also relevant is the Dental Board's contribution of the Respondent's
license to practice dentistry, for it was never revoked, and the
reinstatement of the Respondent's State license to prescribe controlled
substances. Finally, the Dental Board, in correspondence to the
Respondent, recommended that his DEA registration application be
granted.
As to factor two, the Respondent's ``experience in dispensing * * *
controlled substances,'' factor four, the Respondent's ``[c]ompliance
with applicable State, Federal, or local laws relating to controlled
substances,'' and factor five, ``[s]uch other conduct which may
threaten the public health or safety,'' there is no dispute that in the
mid-1980's, the Respondent had engaged in the unlawful prescribing of
controlled substances for no legitimate medical purpose. Further, as to
factor three, the Respondent's ``conviction record under Federal or
State laws relating to the * * * distribution, or dispensing of
controlled substances,'' there is no dispute that the Respondent,
pursuant to the entry of a guilty plea, was convicted of the unlawful
dispensing of 1,263 dosage units of controlled substances. Thus, the
Deputy Administrator agrees with Judge Tenney's conclusion that the
Government has made a prima facie case for denying the Respondent's
application.
However, the Respondent presented considerable evidence of
rehabilitation. The Respondent had engaged in his prior misconduct
while under the influence of alcohol. Now, however, the record supports
a finding that the Respondent, for approximately ten years, voluntarily
has quit drinking alcohol. Judge Tenney also found that the Respondent
had demonstrated, and other witnesses had corroborated, that he had
experienced a significant life change since he stopped drinking
alcohol. His relationship with his wife has improved; he has close
relationships with his children and grandchildren; and he was active in
his church. Professionally, he is in good standing with the Dental
Board, and the Director of the Center where he is employed supports his
application.
In light of the above, the Deputy Administrator agrees with Judge
Tenney's conclusion that the Respondent ``has accepted responsibility
for his actions and has suffered the consequences. In balance, it is
evident that [the Respondent] has turned his life around and will not
repeat the mistakes of the past.'' Although in no way condoning the
Respondent's past misconduct, the Deputy Administrator finds that now
the public's interest is best served by issuing a DEA Certificate of
Registration to the Respondent.
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in him by 21 U.S.C.
823, and 28 CFR 0.100(b) and 0.104, hereby orders that the pending
application of R. Bruce Phillips, D.D.S., for a DEA Certificate of
Registration, be, and it hereby is, approved. This order is effective
March 15, 1996.
Dated: March 7, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-6221 Filed 3-14-96; 8:45 am]
BILLING CODE 4410-09-M