[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]
BILLING CODE 4410-09-M