[Federal Register Volume 62, Number 35 (Friday, February 21, 1997)]
[Notices]
[Pages 8038-8041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4345]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 95-29]
Roger D. McAlpin, D.M.D., Grant of Restricted Registration
On March 7, 1995, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA) issued an
Order to Show Cause to Roger McAlpin, D.M.D. (Respondent) of
Louisville, Kentucky, 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), for reason that such registration
would be inconsistent with the public interest.
By letter dated March 29, 1995, the Respondent, acting pro se,
timely filed a request for a hearing, and following prehearing
procedures, a hearing was held in Louisville, Kentucky on February 21,
1996, before Administrative Law Judge Mary Ellen Bittner. At the
hearing, both parties called witnesses to testify and the Government
introduced documentary evidence. After the hearing, the Government
submitted proposed findings of fact, conclusions of law and argument.
On July 3, 1996, Judge Bittner issued her Opinion and Recommended
Ruling. Findings of Fact, Conclusions of Law and Decision, recommending
that Respondent's application for a DEA Certificate of Registration
should be granted in Schedules III non-narcotic, IV and V subject to
various restrictions. On July 22, 1996, the Government filed exceptions
to the Recommended Ruling of the Administrative Law Judge, and on
August 6, 1996, Judge Bittner transmitted the record of these
proceedings, including the Government's exceptions to the Deputy
Administrator.
The Acting Deputy Administrator has considered the record in it
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 Acting Deputy Administrator adopts, except as specifically
noted below, the Opinion and Recommended Ruling, Findings of Fact,
Conclusions of Law and Decision of the Administrative Law Judge. The
Acting Deputy Administrator's 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 Acting Deputy Administrator finds that Respondent received his
D.M.D. degree from the University of Kentucky in 1979. Following
graduation, Respondent worked for a non-profit dental clinic in
California for approximately two years. Over the ensuing years,
Respondent practiced dentistry at various times in Kentucky, Illinois
and Tennessee.
According to Respondent, he began using cocaine recreationally
while in dental school. He testified that he quit using cocaine after
graduation, but then resumed using cocaine and other controlled
substances in 1981. Respondent quit abusing drugs again after
approximately two years and then recommenced his abuse in the late
1980's. According to Respondent, in April 1988 he entered into a 30-day
in-patient rehabilitation treatment facility. Following his discharge
from the facility, he continued to attend Narcotics Anonymous and
Alcoholics Anonymous meetings three to four nights a week.
Subsequently, Respondent concluded that he was cured of his addiction,
stopped attending support meetings, and broke off all contact with his
sponsor.
In 1989, Respondent was working for a dental clinic in Tennessee
which was owned by an individual who was not a dentist. In November
1989, the Tennessee Department of Health and Environment, Health
Related Boards initiated an investigation of Respondent after receiving
a complaint from a local pharmacist that Respondent was possibly
overprescribing and distributing controlled substances. A review of
Respondent's prescriptions revealed that several of Respondent's
patients had received Schedule II
[[Page 8039]]
controlled substances at regular intervals; that multiple prescriptions
for Schedule II controlled substances were filled by the same
individuals at different pharmacies on the same day; and that many of
these patients had the same address or interchanged addresses. On March
27, 1990, Tennessee Investigators interviewed Respondent during which
Respondent admitted to abusing cocaine in the past and to selling
prescriptions. Sometime in 1989, Respondent began writing and selling
Schedule II prescriptions for no legitimate medical reason to
approximately eight individuals who sold the drugs on the street.
Respondent testified at the hearing before Judge Bittner that he needed
the money to pay for his daughter's eye surgery and to reimburse the
Internal Revenue Service for unpaid taxes. According to Respondent, he
sold the prescriptions for approximately nine months and was
occasionally using drugs himself during that time.
On March 30, 1990, Respondent surrendered his previous DEA
Certificate of Registration. On June 14, 1990, the Tennessee Board of
Dentistry (Tennessee Board) revoked Respondent's license to practice
dentistry in the State of Tennessee. The Tennessee Board found that
Respondent unlawfully prescribed controlled substances for financial
gain and violated a provision of Tennessee law which prohibits a
licensed dentist from being employed by a non-dentist.
In the meantime, Respondent had applied for and received a dental
license in the Commonwealth of Virginia on May 1, 1990. On September
20, 1990, the Virginia Board of Dentistry (Virginia Board) revoked
Respondent's license in that state. The Virginia Board found that
Respondent's Tennessee license had been revoked for allowing controlled
substances to be diverted to the public for illicit use; that
Respondent had falsified his Virginia application, in that he denied an
addiction to drugs and that he had any complaints pending in any
jurisdiction against him; and that Respondent had not finalized a
contract with the Caring Dentists Committee of the Virginia Dental
Association as required by the Impaired Dentists' Contract he had
signed with the Concerned Dentist Committee of the Tennessee Dental
Association.
Subsequently, on December 15, 1990, the Kentucky Board of Dentistry
(Kentucky Board) conducted a hearing regarding Respondent's license to
practice dentistry in that state. The Kentucky Board concluded that
Respondent violated state law by engaging in unprofessional conduct
culminating in the revocation of his licenses to practice dentistry in
Tennessee and Virginia. The Kentucky Board placed Respondent on
probation for two years and ordered him to sign a contract with and
participate in the impaired dentists program of the Kentucky Dental
Association, make quarterly reports to the Kentucky Board regarding his
progress in that program, and otherwise comply fully with the Kentucky
Dental Practice Act. By the time of the hearing before Judge Bittner,
Respondent had completed his probation with the Kentucky Board.
On May 18, 1991, Respondent forged a prescription for 16 dosage
units of Lortab 7.5 mg., a Schedule III controlled substance, and
attempted to have it filled at a local pharmacy. Respondent testified
that he had arrived early at his Narcotics Anonymous meeting that
evening and was reading a book in his car when he noticed that the book
marker was an old prescription form of a dentist for whom he used to
work. He then spontaneously forged the prescription and attempted to
have it filled, but never received the drugs because the pharmacist
determined that the prescription was forged. On August 15, 1991,
Respondent pled guilty in state court to criminal attempt to possess a
Schedule IV non-narcotic controlled substance and was sentenced to six
months in prison, fined $200.00, and ordered to pay court costs. The
sentence was credited four days for time served and then stayed in
favor of one year probation and payment of the fine.
Respondent testified at the hearing before Judge Bittner that he
has been drug-free since 1990, and that after his 1991 conviction he
began seeing a doctor for chemical dependency counseling and drug
screening. According to Respondent, he was unable to introduce into
evidence any documentation regarding the drug screens and counseling
because the doctor has since died. Respondent further testified that he
has maintained close contact with a counselor at his church; has been
attending Narcotics Anonymous meetings; had been attending Caduceus
group meetings, a medical professionals support group, until the group
relocated; and has been trying to get invited to join a Caduceus group
that meets in Louisville.
A DEA investigator contacted the doctor at the treatment facility
where Respondent had received treatment for his addiction from April 10
through May 10, 1988. The doctor indicated to the investigator that he
had not had any contact with Respondent since May 10, 1988, other than
one telephone call during which Respondent ``sounded grandiose''
causing the doctor to suspect that Respondent had not made a sound
recovery. The doctor stated that he would not recommend granting
Respondent his DEA registration without evidence of sound recovery.
Respondent testified at the hearing that if his application for DEA
registration is granted, he is willing to have whatever conditions/
restrictions DEA deems appropriate placed on his registration. He also
testified that he is currently paying taxes and that he is repaying the
Internal Revenue Service on an arranged payment schedule.
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an
application for a DEA Certificate of Registration if he determines that
such registration would be inconsistent with the public interest. In
determining the public interest, the following factors are 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 and
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 be
denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 54 FR 16,422
(1989).
Regarding factor one, Respondent has had his license to practice
dentistry revoked in both Tennessee and Virginia and the Kentucky Board
placed his license on probation for two years. While Respondent is not
currently authorized to practice dentistry in Tennessee and Virginia,
he does now have an unrestricted registration in Kentucky, the state in
which he is applying to be registered with DEA. As Judge Bittner noted,
``[w]hile a state license to practice dentistry is a necessary
condition for the granting of a DEA registration, it is not
dispositive.''
As to factor two, Respondent's experience in dispensing controlled
substances, it is undisputed that in 1989, Respondent, motivated solely
by financial gain, sold controlled substance prescriptions to
approximately eight
[[Page 8040]]
individuals over a nine month period for no legitimate medical purpose,
and that he attempted to fill a forged prescription for a controlled
substance in 1991. Judge Bittner concluded that, ``Respondent's conduct
in this respect weighs in favor of a finding that Respondent's
registration would be inconsistent with the public interest; however, I
found Respondent to be a credible witness and believe his expressions
of remorse.''
Regarding factor three, following his attempt to fill a forged
prescription for controlled substances, Respondent was convicted in
1991 of criminal attempt to possess a controlled substance. Judge
Bittner found that ``[t]his criminal conviction supports the
Government's contention that Respondent cannot responsibly handle
controlled substances,'' and therefore concluded that ``this factor
weighs in favor of a finding that Respondent's registration with the
DEA would be inconsistent with the public interest.'' The Acting Deputy
Administrator finds however, that while Respondent was charged with
obtaining a controlled substance by fraud, he ultimately was convicted
of criminal attempt to possess a controlled substance. Therefore, the
Acting Deputy Administrator concludes that it appears that Respondent
has no conviction record relating to the manufacture, distribution or
dispensing of controlled substances.
As to factor four, it is evident from the record that Respondent
has violated various laws and regulations relating to controlled
substances. By prescribing controlled substances to eight individuals
over a nine year period in 1989 for no legitimate medical purpose,
Respondent violated 21 U.S.C. 841(a)(1) and 21 CFR 1306.04. He violated
various state and Federal laws by self-abusing cocaine and other
controlled substances. Further, his attempt to obtain controlled
substances by forging a prescription violated 21 U.S.C. 843(a)(3).
Judge Bittner concluded that, ``this factor weighs in favor of finding
that his reregistration would be inconsistent with the public interest;
however, Respondent's most recent misconduct occurred five years before
the date of this hearing, and it now appears that Respondent
acknowledges his wrongdoing and realizes the consequences of his
actions.''
Finally, as to factor five, as Judge Bittner notes, ``[t]here is no
dispute that Respondent has had a long history of drug abuse, dating
back to 1974.'' Respondent acknowledged at the hearing that he has
relapsed in the past following efforts at rehabilitation, however he
has been drug-free since 1990, and as of the date of the hearing,
continues to strive to maintain his successful rehabilitation. The
Acting Deputy Administrator is troubled however, at the lack of
evidence in the record regarding Respondent's rehabilitation efforts.
In fact, other than Respondent's own testimony, the only other evidence
presented was a letter from the doctor who oversaw his treatment in
1988, who stated that, ``(Respondent) sounds grandiose over the phone
and I suspect that he does not have a sound recovery.'' However, Judge
Bittner noted that she ``was very impressed by Respondent as a witness;
he appeared very candid and remarkably straight-forward at the hearing
and I credit his testimony that he has been in rehabilitation and has
remained drug-free for five years.''
The Administrative Law Judge concluded that Respondent's past
history regarding controlled substances is ``dismal'', finding that
Respondent ``has abused drugs, including cocaine, throughout most of
his adult life, that he sold Schedule II controlled substance
prescriptions to approximately eight individuals for no legitimate
medical purpose, and that he attempted to pass a forged prescription
for a Schedule III controlled substance during a relapse.'' However, in
light of her finding that Respondent's testimony regarding his
rehabilitation from drug abuse was credible, Judge Bittner concluded
that it would not be inconsistent with the public interest to grant
Respondent's application for DEA registration. Judge Bittner determined
however, that some restrictions were appropriate to protect the public.
Accordingly, Judge Bittner recommended that Respondent's registration
should be limited to non-narcotic controlled substances in Schedule III
and controlled substances in Schedule IV and V; Respondent should be
permitted to prescribe, but not administer or otherwise dispense,
controlled substances in the above categories; and he should be
required to submit a log of his prescriptions to the nearest DEA
resident office for review every three months for two years from the
date of issuance of his registration.
The Government filed exceptions to the Recommended Ruling of the
Administrative Law Judge. The Government argued that ``the record in
this proceeding, specifically Respondent's past abuse of prescribing
privileges and the absence of evidence regarding Respondent's
rehabilitation, supports denial of Respondent's application for DEA
registration.'' The Government further argued that, ``should the Acting
Deputy Administrator decide to adopt the recommended ruling of the
administrative law judge, the Government requests that Respondent also
be restricted from prescribing any controlled substance to himself or
to members of his immediate family.''
The Acting Deputy Administrator concludes that the evidence in the
record raises serious questions regarding Respondent's fitness to
possess a DEA registration based upon Respondent's prescribing of
controlled substances in 1989 purely for financial gain and not for any
legitimate medical reason, his self-abuse of controlled substances from
at least 1974 to 1990, and his attempt to obtain controlled substances
by forging a prescription. Nevertheless, the Acting Deputy
Administrator notes that there is no evidence of any wrongdoing since
1991, and Judge Bittner found Respondent to be credible in his
expressions of remorse and assertions regarding his rehabilitative
efforts. Thus, the Acting Deputy Administrator concludes that it would
not be inconsistent with the public interest to grant Respondent a DEA
registration. However, the Acting Deputy Administrator is concerned by
the lack of evidence in the record regarding Respondent's
rehabilitative efforts, other than Respondent's own testimony, and
therefore, concludes that additional restrictions beyond those
recommended by the Administrative Law Judge are necessary to protect
the public interest. Accordingly, the Acting Deputy Administrator
concludes that Respondent should be issued a limited DEA Certificate of
Registration in Schedules III non-narcotic, IV and V subject to the
following terms and conditions for a period of three years from the
date of issuance of the registration:
(1) Respondent shall be permitted to prescribe, but not administer
or otherwise dispense, controlled substances.
(2) Respondent shall not be permitted to possess any controlled
substance unless properly authorized by another licensed practitioner
who has been advised of the restrictions on Respondent's registration.
(3) Respondent shall not prescribe controlled substances for
himself or any member of his immediate family.
(4) Respondent shall be required to submit a log of his
prescriptions to the DEA Louisville Resident Office for review every
three months. This log shall include, at a minimum, the date of
issuance of the prescription, the name of the patient receiving the
prescription, and the name, dosage and quantity of the controlled
substance prescribed.
[[Page 8041]]
(5) Respondent is required to undergo random drug screening at his
own expense not less than one time per month, and is required to
forward the results of the drug screens to the DEA Louisville Resident
Office.
Accordingly, the Acting 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
application, submitted by Roger McAlpin, D.M.D., for a DEA Certificate
of Registration be, and it hereby is, granted in Schedules III non-
narcotic, IV and V subject to the above described restrictions. This
order is effective March 24, 1997.
Dated: February 10, 1996.
James S. Milford,
Acting Deputy Administrator.
[FR Doc. 97-4345 Filed 2-20-97; 8:45 am]
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