[Federal Register Volume 62, Number 220 (Friday, November 14, 1997)]
[Notices]
[Pages 61145-61148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29972]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 97-5]
Martha Hernandez, M.D.; Reprimand and Continuation of
Registrations With Restriction
On January 14, 1997, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Martha Hernandez, M.D., (Respondent) of Chicago,
Illinois and Gary, Indiana, notifying her of an opportunity to show
cause as to why DEA should not revoke her DEA Certificates of
Registration, AH2262424 and BH4493475, pursuant to 21 U.S.C. 824(a)(1),
and deny any pending applications for renewal of her registrations as a
practitioner under 21 U.S.C. 823(f). The Order to Show Cause alleged
that Respondent materially falsified two applications for registration
with DEA.
By letter dated February 6, 1997, Respondent, through counsel,
filed a timely request for a hearing, and following prehearing
procedures, a hearing was held in Chicago, Illinois on May 27, 1997,
before Administrative Law Judge Gail A. Randall. At the hearing, both
parties called witnesses to testify and introduced documentary
evidence. After the hearing, counsel for both parties submitted
proposed findings of fact, conclusions of law and argument. On
September 5, 1997, Judge Randall issued her Opinion and Recommended
Ruling, recommending that Respondent's registrations not be revoked,
but that Respondent be reprimanded and that she be required to submit
certain documentation to DEA on an annual basis for three years. On
September 25, 1997, the Government filed exceptions to Judge Randall's
Opinion and Recommended Ruling, and on October 6, 1997, the record was
transmitted to the Acting Deputy Administrator.
On October 15, 1997, Respondent submitted a request to file a
response to the Government's exceptions, as well as her response to the
exceptions. Respondent argued that ``[t]he Government filed its
exceptions on September 25, 1997 and pursuant to regulation the
Respondent has 20 days to request leave and file a response.'' In
addition, Respondent stated that the Government does not object to
Respondent filing a response to the exceptions. The Acting Deputy
Administrator finds that Respondent has misread 21 CFR 1316.66, which
provides for the filing of exceptions within 20 days of service of the
Administrative Law Judge's Opinion and Recommended Ruling. The
regulation further provides that the Administrative Law Judge may grant
time beyond the twenty days for the filing of a response to any
exceptions filed. Nowhere in the regulations is a party given 20 days
from the filing of exceptions to submit a response. However, the Acting
Deputy Administrator will nonetheless consider Respondent's response to
the Government's exceptions since it has been represented that the
Government does not object to the consideration of Respondent's
response.
The Acting 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 Acting Deputy Administrator adopts, in full, the Opinion and
Recommended Ruling of the Administrative Law Judge. 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 Acting Deputy Administrator finds that Respondent is a
psychiatrist licensed to practice medicine in the states of Illinois
and Indiana, with a DEA Certificate of Registration issued to her in
each state. On June 15, 1990, the State of Illinois, Department of
Professional Regulation (IDPR) refused to renew Respondent's Illinois
medical license because she had defaulted on her student loan payments.
On December 2, 1991, Respondent entered into a consent order with IDPR,
which reinstated her Illinois medical license, but placed her license
on probation until such time as she completes repayment of her student
loan. The consent order set forth a schedule for repayment of the loan.
However, by Order dated January 10, 1994, the IDPR indefinitely
suspended Respondent's Illinois medical license due to her failure to
abide by the repayment plan.
On October 1, 1994, Respondent submitted a renewal application for
DEA Certificate of Registration AH2262424 issued to her in Illinois. On
this renewal application, Respondent indicated that she was currently
authorized to handle controlled substances ``in the state in which [she
is] operating or propos[ing] to operate'', yet she listed her Indiana
state medical license number. Also, Respondent answered ``No'' to the
liability question which asked, ``Has the applicant ever been convicted
of a crime in connection with controlled substances under State or
Federal law, or ever surrendered or had a Federal controlled substance
registration revoked, suspended, restricted or denied, or ever had a
State professional license or controlled substance registration
revoked, suspended, denied, restricted or placed on probation?''
DEA personnel telephonically contacted Respondent on January 31,
1995, and again on May 3, 1995. During these conversations, the DEA
personnel discussed with Respondent the effect of the IDPR's suspension
upon Respondent's DEA registration; the possible voluntary surrender of
Respondent's Illinois DEA registration in light of the continued
suspension of her Illinois medical license; and the need for Respondent
to submit a new application for registration with DEA in the State of
Indiana. However, the DEA personnel did not indicate to Respondent
during these conversations that her answer to the liability question on
the October 1, 1994 renewal application was incorrect or questionable.
On May 5, 1995, Respondent submitted a new application for a DEA
registration in the State of Indiana. Again, she answered ``No'' to the
liability question which asks, ``Has the applicant ever had a State
professional license or controlled substance registration revoked,
suspended, denied, restricted or placed on probation?'' Subsequently,
on July 10, 1995, Respondent was issued DEA Certificate of Registration
BH4493475, in the State of Indiana.
On June 16, 1995, Respondent submitted an application to renew her
Indiana medical license. On that application, Respondent answered
``No'' to a question which asked, ``In the last two years, has
disciplinary action been taken regarding any license, certificate,
registration or permit you hold or have held?'' As a result of this
application, Respondent's Indiana medical license was renewed on June
30, 1995.
Following her conversations with the DEA personnel, Respondent
decided not
[[Page 61146]]
to surrender her Illinois DEA registration. Judge Randall found that
``Respondent credibly testified [at the hearing in this matter] that
she had declined to surrender her DEA Certificate of Registration
because she felt that the choices given on the DEA surrender form
pertaining to the reason for the surrender implied failure on her part
to comply with Federal law in her handling of controlled substances.''
Judge Randall further found that Respondent ``credibly testified that
she had believed such form language did not apply to her, since the
suspension of her Illinois medical license was due to her inability to
repay her Illinois student loan, not due to her failure to comply with
Federal law in her handling of controlled substances.''
Since Respondent declined to voluntarily surrender her Illinois DEA
registration, on November 27, 1995, DEA issued an Order to Show Cause
to Respondent proposing to revoke her Illinois DEA Certificate of
Registration in light of the fact that she was not then authorized to
handle controlled substances in the State of Illinois due to the
continued suspension of her Illinois medical license. However, on
November 29, 1995, the IDPR entered into another consent agreement with
Respondent, which reinstated Respondent's Illinois medical license and
placed this license on probation subject to Respondent's adhering to a
student loan repayment schedule. As a result of the consent agreement,
the November 27, 1995 Order to Show Cause was not pursued.
In July 1996, Respondent submitted an application to renew her
Illinois medical license. On this application, Respondent answered
``Yes'' to a question which asked, ``Since July 31, 1993, have you been
denied a professional license or permit, or privilege of taking an
examination, or had a professional license or permit disciplined in any
way by any licensing authority in Illinois or elsewhere?'' Respondent
testified that she answered the question in the affirmative, after
discussing the interpretation of the question with an Illinois
official.
On July 8, 1996, the Indiana Medical Licensing Board (Indiana
Board) issued a complaint against Respondent. The complaint alleged
that Respondent had falsified her application for renewal of her
Indiana medical license dated June 16, 1995, by indicating that in the
last two years no disciplinary action had been taken against any
licenses that she had held or was currently holding, even though the
IDPR had indefinitely suspended her Illinois medical license on January
10, 1994. In a letter dated January 13, 1997, Respondent informed the
Indiana Board that ``[a]t the time I reapplied for my Indiana license
[June 16, 1995] I was not aware of my Illinois license being
resuspended.'' On July 14, 1997, the Indiana board issued its Findings
of Fact and Order finding that Respondent's conduct constituted
``knowingly engaging in fraud or material deception in order to obtain
a license to practice in violation of Ind. Code. * * *'' Accordingly,
the Indiana Board ordered that Respondent be reprimanded, fined $200.00
and assessed costs.
At the hearing in this matter, Respondent contradicated her January
13, 1997 letter to the Indiana Board when she agreed that in January
and May of 1995, she had had conversations with DEA personnel
concerning the suspension of her Illinois medical license in January
1995.
Judge Randall found that ``Respondent credibly testified [at the
hearing in this matter] that during 1994 she had experienced unexpected
financial difficulties which contributed to her inability to pay her
student loans * * * [and] that the suspension of her Illinois medical
license in January of 1994 was not a rememberable event to her, since
she was primarily practicing medicine in Indiana in 1994, and given the
general turmoil of her life at that time.'' Judge Randall further found
that ``Respondent credibly testified that she was unaware of a need for
a separate DEA Certificate of Registration to reflect her Indiana place
of business.'' In addition, Respondent testified that she answered
``No'' to the liability question on the DEA applications because she
thought that since she was applying for a Federal registration to
handle controlled substances, the question only pertained to actions
taken based upon malpractice, criminal activity, or improper
prescribing of controlled substances, and not to the suspension of a
medical license due to a failure to repay a student loan.
Pursuant to 21 U.S.C. 824(a)(1), ``A registration pursuant to
section 823 of this title to * * * dispense a controlled substance * *
* may be suspended or revoked by the Attorney General upon a finding
that the registrant--(1) has materially falsified any application filed
pursuant to or required by this subchapter or subchapter II of this
chapter.'' The Government contends that Respondent's DEA Certificates
of Registration should be revoked pursuant to 21 U.S.C. 824(a)(1)
because she falsified two different DEA applications by indicating that
no adverse action had been taken against any of her state professional
licenses when in fact such action had been taken against her Illinois
medical license. In addition, she improperly answered a similar
question on her application for an Indiana medical license. The
Government argues that the crucial issues are ``Respondent's
credibility and the ability of DEA investigators to ascertain the
status of a registrant's or an applicant's past history based upon
answers to the applicable liability questions.'' The Government
contends that Respondent's testimony regarding her responses to the
liability questions was not credible.
Respondent admits that her responses to the liability questions
were incorrect. However, Respondent argues that the statements at issue
were not ``material'' falsifications. Respondent further contends that
revocation would be too harsh a sanction since she had no intent to
deceive or mislead DEA; because her underlying misconduct was not
related to malpractice in her treatment of patients or the mishandling
of controlled substances; and, since once advised by the IDPR of the
correct interpretation of the liability questions, she answered the
question on her July 1996 state application appropriately.
As Judge Randall notes, ``[a]nswers to the liability question are
material, since the DEA relies upon such answers to determine whether
an investigation is needed prior to grating the application.'' DEA has
previously held that in finding that there has been a material
falsification of an application, it must be determined that the
applicant knew or should have known that the response given to the
liability question was false. See Bobby Watts, M.D., 58 FR 4699 (1993);
Herbert J. Robinson, M.D., 59 FR 6304 (1994).
The Acting Deputy Administrator concurs with Judge Randall's
conclusion that Respondent materially falsified her October 1, 1994
renewal application for her Illinois DEA Certificate of Registration
and her May 5, 1995 application for a DEA registration in Indiana.
Respondent indicated on both of these applications that she had not had
a state professional license denied or suspended, even through she knew
that the renewal of her Illinois medical license had been denied in
1990, and that after being reinstated, was again suspended in 1994.
Respondent does not deny that she incorrectly answered the liability
question on the applications, but contends that she did not think that
the actions of the IDPR due to her failure to repay her student loan
was the type of action that needed to be disclosed in response to the
question. The Acting Deputy Administrator concurs with Judge Randall's
conclusion that, ``[a]lthough the Respondent credibly
[[Page 61147]]
testified concerning her misinterpretation of the question, she was not
relieved of her responsibility to carefully read the question and to
honestly answer all parts of the question.''
Therefore, the Acting Deputy Administrator concludes that based
upon Respondent's material falsification of the two applications,
ground exist to revoke her DEA Certificates of Registration pursuant to
21 U.S.C. 824(a)(1). The question now becomes whether the Acting Deputy
Administrator, in exercising his discretion, believes that revocation
is the appropriate sanction in light of the facts and circumstances of
this case.
Judge Randall found that ``Respondent's testimony was credible
during her explanation of her confusion concerning the DEA registration
requirements for her Indiana practice, and her misunderstanding, albeit
unjustified, concerning the phrasing of the liability questions in
issue.'' Therefore, Judge Randall concluded that Respondent did not
intend to deceive DEA, but that her falsification of the applications
was due to her carelessness and negligence. As Judge Randall noted,
``lack of intent is irrelevant to the legal test of material
falsification.'' However she suggested that ``such a lack of intent
should be considered in fitting the remedy to the situation in this
case.''
The Government filed exceptions to Judge Randall's conclusion
arguing that Respondent intentionally sought to deceive DEA by
incorrectly answering the liability question on the applications. The
Government argues that Respondent clearly knew that her Illinois
medical license had been suspended, yet she indicated on her
applications for registration that no adverse action had been taken
against her state professional license.
The Acting Deputy Administrator agrees with Judge Randall that a
lack of intent to deceive should be considered in determining whether a
registration should be revoked. However, the Acting Deputy
Administrator further notes that negligence and carelessness in
completing an application could be a sufficient reason to revoke a
registration. In determining whether revocation is warranted, the
Acting Deputy Administrator looks at the totality of the circumstances
in each case.
In this case, it is undisputed that Respondent knew that her
Illinois medical license had been suspended. But, the Acting Deputy
Administrator does not agree with the Government that Respondent
intended to deceive DEA in responding to the liability question.
Respondent testified at the hearing in this matter that she thought
that since she was applying to handle controlled substances, the
question on the applications did not apply to her since her Illinois
medical license was suspended due to her failure to repay a student
loan, and not due to inadequate patient care or mishandling of
controlled substances. While this is clearly an incorrect
interpretation of the liability question, the Acting Deputy
Administrator concurs with Judge Randall's conclusion that this is a
credible explanation for the falsification.
Notwithstanding the foregoing, the Acting Deputy Administrator is
troubled by Respondent's carelessness in failing to carefully read the
question on the applications. However, the Acting Deputy Administrator
finds it significant that prior to receiving the Order to Show Cause in
this matter alleging that Respondent materially falsified her
applications, Respondent answered a similar liability question
correctly on her July 1996 Illinois application. Respondent testified
that she gave a different response on this application after discussing
the matter with an Illinois official.
In considering the appropriate sanction, Judge Randall also found
it significant that ``both the Illinois medical board and the Indiana
medical board chose to grant [Respondent's] applications, even in light
of her past failures to remain current in the payment of her student
loan, and more recently, even in light of the Indiana Board's finding
that the Respondent's June 1995 renewal application had been prepared
in a fraudulent or materially deceptive manner.'' The Government, in
its exceptions, argues that the fact that the IDPR has not currently
taken action against Respondent's Illinois medical license should not
be considered a mitigating factor, since it has taken significant
action against her state license in the past. The Acting Deputy
Administrator finds that the actions of the state boards are relevant,
although not dispositive, in determining the appropriate sanction in
this matter. As stated previously, the Acting Deputy Administrator must
look at all of the circumstances surrounding a particular case. The
Acting Deputy Administrator concludes that while it is true that
Respondent's Illinois medical license was not renewed in 1990 and was
suspended in 1994 due to her failure to repay a student loan, the IDPR
has seen fit to allow Respondent to continue to practice medicine as
long as she continues to repay her loan.
The Government further argues in its exceptions that the action of
the Indiana Board should not be considered a mitigating factor, because
it was not the result of an adjudicatory proceeding, but rather a
settlement conference. The Government contends that in John W.
Copeland, M.D., 59 FR 46,063 (1994), DEA previously held that a consent
decree between the Respondent and the state in no way detracted from
the findings and conclusions found in the DEA's final order. In that
case the then-Deputy Administrator found egregious violations regarding
the handling of controlled substances and that the consent order of the
state board did not change those findings. In this case, the Acting
Deputy Administrator has not found similar violations. In fact, as the
Government points out, in this case the Indiana Board found that
Respondent knowingly engaged in fraud or material deception. The
Indiana Board nonetheless allowed her to continue to practice medicine
with a reprimand and a fine. As stated previously, unlike the Indiana
Board, the Acting Deputy Administrator has found that Respondent did
not intend to deceive DEA with her answers to the liability question on
the applications.
To not consider a state's action simply because it was reached by
agreement, rather than following an adjudicatory proceeding, would be
unreasonable. Therefore, the Acting Deputy Administrator disagrees with
the Government's contention that consent orders should not be
considered as mitigating evidence. Accordingly, the Acting Deputy
Administrator agrees with Judge Randall in this case, that while not
dispositive, the fact that both the Indiana and Illinois medical
licensing authorities have allowed Respondent to continue to practice
medicine is a mitigating factor when evaluating all of the
circumstances of this case to determine the appropriate sanction.
Judge Randall also found it appropriate to consider that
Respondent's falsification of her applications stemmed from her failure
to repay a student loan, and that there are no allegations that
Respondent improperly handled controlled substances. As Judge Randall
noted, ``this lack of connection to controlled substances is not
dispositive of the matter,'' however, she suggested that, ``it is
relevant in determining the appropriate remedy.'' The Government, in
its exceptions, argues that the lack of improper handling of controlled
substances ``should not be considered in mitigation,'' and that ``DEA's
past policy has been not to distinguish between those falsifications
that do and do not
[[Page 61148]]
have related controlled substance issues.''
The Acting Deputy Administrator agrees with the Government insofar
as DEA has in fact revoked registrations in the past based upon the
material falsification of an application that was not related to the
mishandling of controlled substances. See Ezzat E. Majd Pour, M.D., 55
FR 47,547 (1990). However, the Acting Deputy Administrator concludes
that in exercising his discretion in determining the appropriate
remedy, he must consider all of the facts and circumstances of a
particular case. Here, it is relevant that Respondent credibly
testified that she did not think that the liability question applied to
her since the suspension of her Illinois license was to due to the
improper handling of controlled substances. The Acting Deputy
Administrator also finds it relevant that Respondent correctly answered
a similar question on a subsequent state application even before she
received the Order to Show Cause from DEA alleging that she had
materially falsified two of her applications.
Judge Randall concluded that revocation would be too harsh a
sanction in this case, ``[h]owever, the Respondent's failure to pay
close enough attention to the administrative details necessary to
maintain her credentials in good standing warrants some concern about
the Respondent's meeting the responsibilities levied against a person
provided the authority to prescribe and to dispense controlled
substances.'' Therefore, Judge Randall recommended that Respondent be
reprimanded for her failure to properly complete here DEA registration
applications; and ``that for a period of three years, that Respondent
be ordered to file with the appropriate local DEA resident office, on
an annual basis, a copy of a document from both the Illinois and the
Indiana medical boards certifying that her medical licenses remain in
good standing in both States, and that there is no impediment to her
handling controlled substances at the State level.''
The Acting Deputy Administrator concludes that there is no question
that Respondent materially falsified two of her applications for DEA
registration. This is extremely troubling since DEA relies on accurate
information being submitted by its applicants. Further, Respondent's
actions indicate a careless disregard for attention to detail. This
lack of attention to detail is of great concern to the Acting Deputy
Administrator since DEA registrants are tasked with keeping meticulous
records regarding the handling of controlled substances in order to
prevent the diversion of these dangerous substances. However, the
Acting Deputy Administrator agrees with Judge Randall that revocation
would be too severe a sanction given the facts and circumstances of
this case. The Acting Deputy Administrator concurs with Judge Randall's
recommendation that Respondent be reprimanded for her failure to
properly complete her applications for registration and that she be
required for a period of three years to submit to the DEA Chicago Field
Division, on an annual basis, documentation from both the Illinois and
the Indiana medical licensing authorities certifying that her medical
licenses remain in good standing in both states, and that there is no
impediment to her handling controlled substances at the state level.
The first such documentation should be forwarded to DEA within thirty
days of the effective date of this final order.
Accordingly, the Acting 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 reprimands
Martha Hernandez, M.D., for failing to properly complete her DEA
registration applications. The Acting Deputy Administrator further
orders that DEA Certificates of Registration AH2262424 and BH4493475,
issued to Martha Hernandez, M.D., be continued, and any pending
applications be granted, subject to the above described restriction.
This order is effective December 15, 1997.
Dated: November 4, 1997.
James S. Milford,
Acting Deputy Administrator.
[FR Doc. 97-29972 Filed 11-13-97; 8:45 am]
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