[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Notices]
[Pages 28895-28897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14131]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Jerry Neil Rand, M.D.; Denial of Registration
On September 5, 1995, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Jerry Neil Rand, M.D., (Respondent) of San
Diego, California, notifying him of an opportunity to show cause as to
why DEA should not deny his application for a DEA Certificate of
Registration, under 21 U.S.C. 823(f), as being inconsistent with the
public interest. Specifically, the Order to Show Cause alleged, in
relevant part, that in
[[Page 28896]]
January of 1995, an investigation by DEA revealed that on numerous
occasions the Respondent used prescription blanks presigned by other
physicians to treat his patients, falsified patient charts in which he
had prescribed controlled substances, and stored controlled substances
surrendered by his patients in his desk drawer.
The Order was mailed in the U.S. Mail, one copy to the Respondent
and one copy to his attorney, and a signed receipt dated September 15,
1995, was returned from the Respondent, and a second receipt dated
September 11, 1995, was returned from the Respondent's attorney to DEA.
However, neither the Respondent nor anyone purporting to represent him
has replied to the Order to Show Cause. More than thirty days have
passed since the Order was served upon the Respondent. Therefore,
pursuant to 21 CFR 1301.54(d), the Deputy Administrator finds that the
Respondent has waived his opportunity for a hearing on the issues
raised by the Order to Show Cause, and, after considering the
investigative file, enters his final order in this matter without a
hearing pursuant to 21 CFR 1301.54(e) and 1301.57.
The Deputy Administrator finds that by order dated February 4,
1994, the Acting Administrator of DEA had previously denied the
Respondent's application for registration after finding that the
Respondent had engaged in conduct inconsistent with the public
interest. Jerry Neil Rand, M.D., 59 FR 6302 (1994). Specifically, by a
jointly-stipulated decision and order of the Medical Board of
California, dated September 25, 1989, the Respondent substantially
admitted that he had been diagnosed as drug dependent; that as a result
of his usage of controlled substances or dangerous drugs, he had
``become a danger to himself, other persons or the public, or has
impaired his ability to practice his profession safely''; that he had
treated a patient while intoxicated; that he had failed to adequately
supervise physician assistants by signing blank prescription forms; and
that between 1985 and 1986 he had provided incompetent and grossly
negligent medical care to five patients. As a result of the Medical
Board's decision, the Respondent's medical license was revoked, but the
revocation was stayed, and his license was placed on probation for five
years. Conditions of probation included requirements that the
Respondent (1) enter into a drug rehabilitation program, (2) abstain
from the personal use or possession of controlled substances unless
such substances were lawfully prescribed to him for a bona fide illness
by another practitioner, and (3) obey all Federal, State, and local
laws. Finally, the DEA's final order noted that:
Judge Bittner further found that as a result of his personal
abuse of controlled substances, the Respondent abrogated his
professional responsibilities as a physician and his
responsibilities as a DEA registrant; that he was hospitalized three
times for substance abuse; voluntarily surrendered his previous DEA
registration; and had his State medical license placed on probation
for a period of five years. The administrative law judge concluded
that there is a lawful basis for denying the Respondent's
application.
Id. at 6303. The Acting Administrator substantially concurred with
Judge Bittner's findings of fact and conclusions of law, but disagreed
with her finding that the Respondent was unlikely to abuse controlled
substances or the privileges of a registrant in the future. The Acting
Administrator concluded that the Respondent's rehabilitative efforts at
that time were not sufficiently complete to ensure that he would not
succumb to the pressures of abusing controlled substances, and he
denied the Respondent's application. Ibid. The Respondent appealed the
Acting Administrator's final decision to the Ninth Circuit Court of
Appeals.
While the appeal was still pending, the Respondent again applied
for a DEA Certificate of Registration. In response to his application,
the local DEA office conducted an inquiry, and a Diversion Investigator
served a Notice of Inspection upon a local pharmacy. This inspection
and subsequent investigation revealed that from January of 1994 through
January of 1995, the Respondent had prescribed Schedule III and
Schedule IV controlled substances by using presigned prescription forms
belonging to a Dr. S. When interviewed, Dr. S. admitted that he did not
see patients at the Respondent's clinic. He stated that he did go there
occasionally to review medical charts of the Respondent's patients,
noting that these patients had received prescriptions for controlled
substances reflecting Dr. S's DEA number. Dr. S. also admitted that he
had prescription pads printed up with his name, his DEA Certificate of
Registration Number, and the Respondent's clinic's address. He then
presigned these prescriptions for the Respondent's use. He also stated
that the Respondent would use his DEA registration number for call-in
prescriptions as well, but that he believed the Respondent called him
every time he used his registration number and told him what he was
prescribing. However, Dr. S. admitted that he did not examine or
otherwise meet or interact with the Respondent's patients receiving
controlled substances in this matter. Further, prescriptions retrieved
from two local pharmacies, dated between January 10, 1994, and January
4, 1995, revealed that the Respondent prescribed 570 dosage units of
Schedule III controlled substances and 220 dosage units of Schedule IV
controlled substances using Dr. S's registration number.
DEA investigators also received information from a former employee
of the Respondent's, who stated that some of the Respondent's patients
had surrendered controlled substances to the Respondent as part of
their treatment, and that the Respondent had stored those substances in
his desk drawer. Further, the former employee stated that he/she
witnessed the Respondent and his brother alter patients' charts so that
both the Respondent's and Dr. S's initials appeared in the chart.
Specifically, the employee observed the Respondent and his brother (1)
copy Dr. S's initials, (2) cut and paste the copied initials into the
charts for patients who had been prescribed controlled substances, (3)
recopy the affected pages, and (4) reinsert the copied pages into the
chart to replace the original chart page.
When DEA investigators contacted the Respondent's brother, he
confirmed that he worked with the Respondent. He also stated that he
was aware of the Respondent's use of Dr. S's presigned prescription
pads.
The investigative file also contained documentation showing that
the Respondent's medical license had been cleared of all restrictions
as of September 25, 1994. Further, letters from colleagues demonstrated
that the Respondent has continued to successfully recover from his drug
addiction problem, and that he has successfully returned to the
practice of medicine, with an emphasis on treating patients with
addictive disorders and problems. One colleague wrote on June 6, 1995,
that, while working in a psychiatric hospital, the Respondent followed
all regulations and standards that apply to his privileges, and that he
did not prescribe or order controlled substances at that institution,
``as this is currently a restriction upon his practice of medicine.''
He also wrote that he has ``the utmost respect for Dr. Rand as a
caring, extremely knowledgeable and competent physician, as well as an
individual successfully recovering from the disease of addiction
himself.''`
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an
application for registration if he
[[Page 28897]]
determines that such registration would be inconsistent with the public
interest. In determining 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., 54 FR 16422 (1989).
In this case, factors one, two, four, and five 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 file does not contain a
response from the Medical Board relevant to the Respondent's latest
conduct. The file does reflect that the Medical Board reinstated the
Respondent's medical license without restrictions on September 25,
1994.
However, the Deputy Administrator also finds it significant that
the recent DEA investigation revealed that the Respondent actually
violated the terms of the Medical Board's order in 1994. Specifically,
the Respondent had agreed to obey all Federal and State laws, and he
had agreed not to possess controlled substances unless such substances
were prescribed for his personal use by another practitioner. Yet as
early as January of 1994, the Respondent prescribed controlled
substances to patients by using another physician's DEA registration
number, in violation of the Controlled Substances Act. Further, the
Respondent took possession of controlled substances from his patients
and stored them in his desk, all in violation of the terms of his
probation, which did not end until September of 1994.
As to factor two, the Respondent's ``experience in dispensing * * *
controlled substances,'' and factor four, the Respondent's
``[c]ompliance with applicable State, Federal, or local laws relating
to controlled substances,'' the Deputy Administrator finds it
significant that in 1994 and 1995, the Respondent engaged in conduct in
violation of the Controlled Substances Act. Specifically, 21 U.S.C. 843
(a)(2) provides that ``[i]t shall be unlawful for any person knowingly
or intentionally-- * * * (2) to use in the course of * * *
distribution, or dispensing of a controlled substance * * * a
registration number which is * * * issued to another person.'' Here,
the Respondent used the registration number of another person, Dr. S.,
to prescribe controlled substances to patients who were not seen or
treated by Dr. S., in violation of the Controlled Substances Act. See
also 21 CFR 1306.03 (``A prescription for a controlled substance may be
issued only by an individual practitioner who is * * * either
registered or exempted from registration * * *''). Further, when he
stored controlled substances in his desk, the Respondent violated DEA
regulatory provisions governing the permissible methods of storing
controlled substances in order to prevent the unlawful diversion of
such drugs. See 21 CFR 1301.75, Physical Security Controls for
Practitioners. Thus, this unregistered Respondent's total disregard for
the statutory and regulatory provisions governing the handling of
controlled substances indicates that he cannot be entrusted with a DEA
registration. See generally, Jude R. Hayes, M.D., 59 FR 41785 (1994).
As to factor five, ``[s]uch other conduct which may threaten the
public health or safety,'' the Deputy Administrator finds it
significant that the Respondent falsified patient records by adding the
initials of Dr. S. to the patients' charts, when Dr. S. had neither
seen nor treated the patients. Such falsification of records to conceal
the Respondent's unlawful prescribing practices also serves as a basis
for the Deputy Administrator's conclusion that the public interest is
best served by denying the Respondent's application for a DEA
Certificate of Registration.
The Deputy Administrator acknowledges that the record contains
letters from the Respondent's colleagues, noting his continued sobriety
and adherence to his substance abuse treatment program. Such behavior
is commendable. However, the Respondent's recent acts of falsifying
patients' records and prescribing controlled substances without a DEA
Certificate of Registration indicate that the public interest is still
better served by denying the Respondent's application for registration
at this time.
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 C.F.R. 0.100(b) and 0.104, hereby orders that the
application of Jerry Neil Rand, M.D., be, and it hereby is, denied.
This order is effective July 8, 1996.
Dated: May 31, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-14131 Filed 6-5-96; 8:45 am]
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