[Federal Register Volume 63, Number 159 (Tuesday, August 18, 1998)]
[Notices]
[Pages 44278-44283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22098]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 96-23]


Merritt Matthews, M.D.; Continuation of Registration With 
Restrictions

    On February 22, 1996, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Merritt Matthews, M.D., (Respondent) of San 
Diego, California, notifying him of an opportunity to show cause as to 
why DEA should not revoke his DEA Certificate of Registration, 
AM0006571, and deny any pending applications for renewal of such 
registration as a practitioner under 21 U.S.C. 823(f), for reason that 
pursuant to 21 U.S.C. 824(a)(4), his continued registration would be 
inconsistent with the public interest.
    By letter dated March 15, 1996, Respondent, through counsel, filed 
a timely request for a hearing, and following prehearing procedures, a 
hearing was held in San Diego, California on January 15-16, 1997, and 
April 22-24, 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 December 3, 1997, Judge Randall issued her Opinion and Recommended 
Ruling, recommending that Respondent's registration be continued 
subject to two conditions. On January 23, 1998, the Government filed 
Exceptions to the Opinion and Recommended Ruling of the Administrative 
Law Judge, and on February 12, 1998, Respondent submitted a response to 
the Government's exceptions. On March 9, 1998, Judge Randall 
transmitted the record of these proceedings to the Acting Deputy 
Administrator.
    The Acting Deputy Administrator has considered the record in its 
entirety, and pursuant to 21 CFR 1316.67, hereby issued 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 of 
the Administrative Law Judge, and adopts, with one modification, the 
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 received his 
medical degree in 1965 from Howard University. In 1970 Respondent moved 
to San Diego, California and ultimately joined the Western Medical 
Group, a multi-specialty practice in a low income area of San Diego. In 
1994, Respondent left the Western Medical Group and went to work for a 
large health maintenance organization (HMO). Respondent is board 
certified by the American Board of Family Physicians and is a member of 
the American Academy of Family Physicians. To maintain his 
certification, Respondent must complete an oral and a written 
examination every seven years, which covers at least four different 
areas concerning pharmaceuticals. According to Respondent, the 
examination process includes a peer review of his patient charts. 
Respondent was last recertified in 1995.
    In 1991, the California Bureau of Narcotic Enforcement and the 
Bureau of MediCal Fraud initiated an investigation of Respondent after 
an inmate at a local detention facility indicated that anyone with 
$100.00 cash could get a controlled substance prescription for Valium 
or Doriden from Respondent for no legitimate medical reason. As a 
result of this information, undercover operatives went to Respondent's 
office to attempt to obtain controlled substance prescriptions for no 
legitimate medical purpose. Each of the undercover operatives wore a 
concealed transmitting device. The visits were monitored and recorded 
by agents located in Respondent's office parking lot.
    The first undercover visit occurred on May 7, 1991. The transcript 
of the visit reveals that the undercover agent told Respondent that she 
``was here to get a prescription,'' specifically asking for Valium, a 
Schedule IV controlled substance. Respondent told the undercover agent 
that he would give her ``some Valium this time, but no more. And don't 
come back here for no more Valium.'' The undercover agent indicated 
that she was not nervous and that nothing was wrong with her, but she 
needed something to ``help (her) out once and awhile.'' The undercover 
agent asked for 50 dosage units of Valium, yet Respondent nonetheless 
wrote her a

[[Page 44279]]

prescription for 100 dosage units. Respondent asked the agent a series 
of medical history questions, and performed a physical examination. 
Notations in the patient chart for the undercover agent indicate that 
the agent was there for a check up, and that there were to be ``no more 
refills.''
    An expert, called as a witness by the Government, testified that he 
evaluated all of the undercover visits conducted during this 
investigation. In arriving at his conclusions, he reviewed the reports 
written by the undercover agents, the tape recordings and transcripts 
of the visits and the patient charts. It was his opinion that this 
Valium prescription was not issued for a legitimate medical purpose.
    Respondent testified that he had diagnosed the undercover agent 
with anxiety neurosis, however this diagnosis was not noted in the 
patient chart. Respondent testified that he felt that he had enough 
information to make the diagnosis and to prescribe a one month supply 
of Valium. However, Respondent further testified that he told the 
undercover agent to see someone else because he did not think that he 
had good rapport with her.
    A second undercover agent went to Respondent's office on June 24, 
1991, claiming to be new to the area and indicating that she was 
looking for a doctor in San Diego. Respondent asked a series of medical 
history questions and performed a physical examination. The undercover 
agent asked for a refill of a Tylenol with codeine prescription stating 
that she ``had a doctor (in the Bay area) who, uh, I could get it from, 
uh, I don't take street drugs or anything like that. I'm in good 
health, uh, I just take it every once in awhile * * * just to kinda get 
met through.'' Respondent issued the undercover agent a prescription 
for 35 dosage units of Tylenol with codeine, a Schedule III controlled 
substance.
    This undercover agent made another visit to Respondent's office on 
July 9, 1991, however she was refused a refill of the prescription 
because it had not been a month since her last visit. On August 5, 
1991, the undercover agent did receive a prescription from Respondent 
for 45 Tylenol with codeine. The patient chart for this visit indicated 
that the agent suffered from menses pain and back pain. The transcript 
of the visit did not reflect any conversation between Respondent and 
the undercover agent regarding pain. However, the undercover agent did 
have a conversation with Respondent's nurse which was not transcribed 
verbatim. The expert concluded that both of these prescriptions were 
not issued for a legitimate medical purpose.
    On September 27, 1991, a third undercover agent went to 
Respondent's office claiming to have a doctor in another city and 
requesting a refill on a Vicodin prescription. Respondent refused to 
issue this agent a prescription and inquired about any payment made by 
her to ensure that she had not paid for services he had not provided.
    A fourth undercover agent went to Respondent's office on November 
21, 1991, claiming to be looking for a new doctor since she was from 
Cleveland, Ohio. Respondent asked the agent a series of medical history 
questions and performed a physical examination. The undercover agent 
specifically asked for a prescription for Vicodin, a Schedule III 
controlled substance, which she used to get ``back home.'' Respondent 
informed the agent that MediCal would not cover Vicodin, but that 
Tylenol with codeine or aspirin with codeine would be covered. The 
undercover agent indicated that she wanted Tylenol with codeine and 
Respondent issued her a prescription for 30 dosage units. The expert 
witness indicated that it was his opinion that there was no legitimate 
medical reason for the issuance of this prescription.
    Respondent testified at the hearing in this matter that he 
prescribed to this undercover agent based upon a continuity of care 
determination, and that he did not believe that she was a drug abuser. 
Physicians testified at the hearing that continuity of care means 
either a physician taking continuous care of a patient, or a physician 
continuing a new patient on the care provided by a prior physician. 
However, Respondent did not identify or contact the undercover agent's 
previous doctor. Respondent admitted at the hearing that his patient 
chart for this agent was incomplete since it did not reflect the 
prescription issued nor the results of the physical examination. 
Respondent testified that he did not know why he gave the agent a 
prescription for Tylenol with codeine since there was no indication of 
pain, however, it may have been for continuity of care and because he 
believed her.
    On December 30, 1991, a fifth undercover agent went to Respondent's 
office claiming to have moved from Cleveland, Ohio and stating that his 
girlfriend wanted him to get a check up. Respondent asked the agent a 
series of medical history questions during which the agent told 
Respondent that he smoked ``marijuana, now and then, a little bit.'' 
Respondent testified that it was not uncommon in his practice for 
patients to admit to smoking marijuana. Respondent performed a physical 
examination and referred the agent to the laboratory for an 
electrocardiogram and chest x-ray. The agent asked for and received a 
prescription for Tylenol, however, he did not receive a prescription 
for any controlled substance. The undercover agent subsequently 
telephoned Respondent's office and attempted to obtain a prescription 
for Tylenol with codeine, but this request was refused.
    A sixth undercover agent went to Respondent's office on March 19, 
1992. The agent told Respondent that she was feeling tired because she 
was working and attending school full-time. Respondent asked the agent 
a series of medical history questions, and performed a physical 
examination noting that the agent's thyroid was large and the inside of 
her eyelids were pale. The undercover agent asked Respondent for some 
``Prelude'' stating that she had been prescribed it by a doctor ``back 
east.'' The Respondent indicated that Preludin is a diet pill, but that 
one of its side effects ``is that it peps you up.'' After giving the 
agent extensive warnings regarding the addictive nature of the drug, 
Respondent issued her a prescription for 30 dosage units of Preludin, a 
Schedule II controlled substance. On March 20, 1992, the agent returned 
to Respondent's office and told him that Preludin had been 
discontinued. Respondent had her read excerpts from the Physicians' 
Desk Reference regarding diet pills. He then issued the agent a 
prescription for 30 dosage units of Desoxyn, a Schedule II controlled 
substance, with two refills. Thereafter, on March 23, 1992, the 
undercover agent telephoned Respondent and told him that the Desoxyn 
prescription was not on a triplicate form as required. Respondent 
informed the agent that he did not issue triplicate prescriptions. 
However, he would issue her a prescription for Ionamin, a Schedule IV 
controlled substance, which she picked up on March 24, 1992. The expert 
witness concluded that none of these prescriptions were issued for a 
legitimate medical purpose. In addition, he testified that the refills 
on the Desoxyn prescription were not proper since Schedule II 
prescriptions cannot be refilled.
    Respondent testified that he saw no problem with his prescribing 
for this agent, as long as she took the medication as it had been 
prescribed. Respondent stated that he does not believe that 
amphetamines are physically addictive.
    Finally, a seventh undercover agent went to Respondent's office on 
April 9,

[[Page 44280]]

1992. Ultimately the undercover agent received a prescription for 
Prelu-II, a Schedule III controlled substance. However, Judge Randall 
found that ``(t)he actual events of the undercover operation and the 
transactions between (the undercover agent) and the Respondent and his 
staff are unclear.'' At the hearing, it was discovered that part of the 
agency's visit to Respondent's office was not reflected in the tape 
recording nor the transcript of the visit. Judge Randall ruled that the 
tape recording was inadmissible due to the possibility of taint to the 
exhibit, since after the tape had been admitted into evidence, the 
Government removed if for analysis without her permission or notice to 
Respondent. In addition, Judge Randall found that the transcript was 
incomplete since it did not reflect the undercover agent's 
conversations while in the waiting room for approximately 30 minutes. 
The agent monitoring the undercover visit testified that she turned the 
tape recorder off while the undercover agent was in the waiting room.
    The Acting Deputy Administrator agrees with Judge Randall's rulings 
and findings. It is important to know what if anything was discussed 
while the undercover agent was in the waiting room because there is a 
discrepancy between the transcript of the visit and the patient chart 
for the undercover agent. The transcript does not indicate that the 
undercover agent gave any medical need for the Prelu-II prescription, 
while the patient chart indicates that the agent stated that she wanted 
to ``lose weight--modeling.'' In addition, the Acting Deputy 
Administrator finds that even though the undercover agent testified at 
the hearing, no testimony was elicited as to what if any reason was 
given for wanting the prescription. Accordingly, the Acting Deputy 
Administrator agrees with Judge Randall that a determination cannot be 
made as to the legitimacy of the prescription issued to this undercover 
agent.
    The United States Attorney's Office was provided with the results 
of the investigation of Respondent. A determination was made not to 
bring any charges against Respondent. In addition, no complaints have 
been filed against Respondent with the California Medical Board.
    Two of Respondent's employees at the Western Medical Group 
testified at the hearing in this matter, indicating that there were a 
maximum of two employees assisting Respondent at any one time. One of 
the employees had worked for Respondent for 10 years in various 
positions performing both administrative and clinical functions. She 
would screen patients to determine whether they were drug seekers. She 
testified that if she thought an individual was only seeking drugs, she 
would either send him/her away or she would warn Respondent about her 
suspicions. The other employee had worked for Respondent for seven 
years as of the date of the hearing, first at the Western Medical Group 
and now at the HMO where Respondent is currently employed. This 
employee testified that while at the Western Medical Group, she was 
trained in how to handle drug seeking individuals.
    A physician testified on behalf of Respondent who practiced in the 
same neighborhood as the Western Medical Group. He described his and 
Respondent's practice as in a community with very low incomes, high 
crime rates, a lack of physicians, and a serious drug abuse problem 
among the patient population. The physician testified that he had the 
opportunity to observe Respondent's prescribing practices since he and 
Respondent covered for each other in the care of patients. He stated 
that he had never seen Respondent improperly prescribe controlled 
substances.
    A physician who was part of the Western Medical Group also 
testified on behalf of Respondent. He testified as to the problem of 
drug seeking patients in the practice. This physician served on the 
Board of Medical Quality, a committee that provides quality review of 
medical services in response to patient complaints. he testified that 
he would routinely cover Respondent's patients and therefore had the 
opportunity to review Respondent's patient charts. He stated that he 
had never seen any inappropriate prescribing or care by Respondent.
    Respondent testified at the hearing in this matter regarding the 
nature of his practice with the Western Medical Group. The practice was 
located in a low income area. Some of the problems his patients faced 
were illiteracy, single parent status, domestic violence, and drug 
abuse.
    Respondent testified that since 1994 he has been employed by an 
HMO. As an employee, he must adhere to the HMO's medical and 
administrative practices, which include specific requirements for 
patient charts. In addition, he now has more support staff, his patient 
load has decreased, and there are fewer walk-in patients than at 
Western Medical Group.
    Pursuant to 21 U.S.C. 832(f) and 824(a), the Deputy Administrator 
may revoke a DEA Certificate of Registration and deny any pending 
application for renewal of such 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., 54 FR 16, 422 (1989).
    As to factor one, it is undisputed that the California Medical 
Board (Board) has not only taken no action against Respondent's medical 
license, but no complaints have ever been filed against Respondent with 
the Board.
    Factors two and four, Respondent's experience in dispensing 
controlled substances and his compliance with applicable laws related 
to the handling of controlled substances, are relevant to the public 
interest determination in this proceeding. The Government asserts that 
the prescriptions issued by Respondent to the undercover agents were 
not issued for a legitimate medical purpose as required by 21 U.S.C. 
829 and 21 CFR 1306.04(a). The Government's expert reviewed the 
reports, tapes, transcripts, and patient charts of each visit and 
determined that in his opinion, none of the prescriptions in question 
were issued for a legitimate medical purpose.
    The Respondent asserts that if a finding is made that the 
prescriptions were not issued for a legitimate medical purpose, he 
should not be held responsible because he was entrapped by the 
undercover agents. Respondent does not cite to any Federal court cases 
or DEA administrative cases to support his position that an entrapment 
defense is available to him in his proceeding. Conversely, the 
Government argues that such a defense is not available to Respondent as 
a matter of law, since this is an administrative adjudication to 
determine the public interest and not a

[[Page 44281]]

punitive proceeding. In support of its position, the Government cites 
two analogous cases where Federal courts have held that the entrapment 
defense is not applicable to administrative proceedings. See Yousef v. 
United States, 647 F. Supp. 127, 131 (M.D. Fla. 1986; Tyer v. United 
States, 645 F. Supp. 1528, 1532 (N.D. Miss. 1986).
    The Administrative Law Judge recommended that the Acting Deputy 
Administrator find that the entrapment defense is not applicable, as a 
matter of law, to DEA administrative proceedings. The Acting Deputy 
Administrator recognizes that DEA has allowed the entrapment defense to 
be raised in proceedings such as these in the past, but has ruled that 
the defense has failed on a factual basis. See, e.g., Lowell O. Kirk, 
M.D., 58 FR 15,378 (1993). However, the Acting Deputy Administrator 
finds the Government's argument compelling. The entrapment defense is 
not appropriate in DEA administrative proceedings where the protection 
of the public health and safety is at issue.
    In evaluating the circumstances surrounding the issuance of the 
prescriptions to the undercover agents, the Acting Deputy Administrator 
agrees with the Administrative Law Judge. The evidence is not as clear 
cut as the Government argues that all of the prescriptions were issued 
for no legitimate medical purpose.
    As to the first undercover visit on May 7, 1991, Judge Randall 
found that ``a preponderance of the evidence does not support a 
conclusion that this prescription was issued without a legitimate 
medical purpose.'' In support of this conclusion, Judge Randall found 
it significant that Respondent told the undercover agent not to return, 
and indicated ``no more refills'' on the agent's chart. Respondent 
admitted at the hearing that the patient chart did not reflect his 
diagnosis of anxiety neurosis. However, Judge Randall found ``that the 
Respondent's testimony concerning his diagnosis and the basis of this 
diagnosis credible.'' Judge Randall concluded that while ``Respondent 
was lax in his recordkeeping practices, the preponderance of the 
evidence in this instance does not support a conclusion that the 
Respondent lacked a legitimate medical purpose in issuing this 
prescription in 1991.'' The Acting Deputy Administrator agrees with 
Judge Randall's conclusion that a finding cannot be made as to the 
legitimacy of this prescription. However, the Acting Deputy 
Administrator is troubled by Respondent's lax recordkeeping and by the 
fact that Respondent issued the undercover agent a prescription for 100 
dosage units of Valium even though the agent only asked for 50 dosage 
units.
    Regarding the two Tylenol with codeine prescriptions issued to the 
second undercover agent, Judge Randall agreed with the Government's 
expert witness that the first prescription issued on June 24, 1991, by 
Respondent was for no legitimate medical purpose. The undercover agent 
did not indicate that she was in any pain, there is no diagnosis in the 
patient chart for this visit, and Respondent did not testify about his 
diagnosis. The Acting Deputy Administrator concurs with the conclusion 
that this prescription was not issued for a legitimate medical purpose. 
The undercover agent was refused a prescription on his second visit, 
since it had not been a month since she had received the first 
prescription. However, on August 5, 1991, Respondent issued the agent 
another prescription for Tylenol with codeine. The patient chart 
indicates that the agent suffered from menses pain and back pain, but 
the transcript of the conversation between Respondent and the 
undercover agent does not reflect any discussion regarding pain. Judge 
Randall found that this lack of discussion between Respondent and the 
agent is not conclusive as to the issue of the legitimacy of the 
prescription because the conversation between the undercover agent and 
Respondent's nurse was not transcribed. In addition, the Government did 
not present the testimony of the undercover agent nor offer any other 
evidence to refute the chart entries. Consequently, the Acting Deputy 
Administrator agrees with Judge Randall's conclusion ``that a 
preponderance of the evidence does not support a finding that this 
second prescription for Tylenol with codeine to [the second undercover 
agent] was issued without a legitimate medical purpose.''
    It is undisputed that Respondent refused to issue the third 
undercover agent a controlled substance prescription. But, on November 
21, 1991, Respondent did issue the fourth undercover agent a 
prescription for Tylenol with codeine. Respondent testified that he did 
not know why he issued this prescription, because there is no notation 
in the chart that she had presented any pain symptoms. His only 
explanation was that he had issued the prescription as a part of her 
continuing care, since the agent had represented that she had received 
pain medication ``back home.'' Respondent testified that he believed 
the undercover agent needed the medication and did not believe that she 
was a drug abuser. However, there is no evidence in the record that 
Respondent made any attempt to locate the agent's previous physician to 
verify that the medication was needed or to independently verify the 
diagnosis of pain. Judge Randall found that Respondent's ``[f]ailure to 
take such precautions in handling controlled substances shows a serious 
disregard for the physician's prescribing practice responsibilities 
necessary in handling controlled substance prescriptions.''
    The Government filed an exception to Judge Randall's conclusion 
regarding this prescription, because Judge Randall did not specifically 
find that this prescription was issued without a legitimate medical 
purpose. The Acting Deputy Administrator is unable to conclude that a 
preponderance of the evidence presented supports a finding that there 
was no legitimate medical purpose of this prescription. At the very 
least however, Respondent's issuance of this prescription indicates 
extremely lax prescribing practices.
    It is undisputed that Respondent refused to issue the fifth 
undercover agent a controlled substance prescription. However, 
Respondent did issue the sixth undercover agent three controlled 
substance prescriptions in March 1992, after the agent requested diet 
pills to give her more energy. Respondent testified that he saw no 
problem with prescribing diet medication to help the agent stay more 
alert; that the agent would not have experienced any adverse effects if 
she had consumed the medication as prescribed; and that he did not 
believe that amphetamines were physically addictive. Judge Randall 
concluded and the Acting Deputy Administrator agrees, that these 
prescriptions were issued without a legitimate medical purpose. In 
addition, Respondent's authorization of a refill of the Desoxyn 
prescription was unlawful since Schedule II prescriptions cannot be 
refilled pursuant to 21 U.S.C. 829 and 21 CFR 1306.12.
    The Government filed an exception to Judge Randall's conclusion 
regarding these prescriptions arguing that Judge Randall should have 
specifically found that Respondent falsified the prescription for 
Ionamin by noting on the prescription that it was to decrease appetite. 
The Acting Deputy Administrator is extremely troubled by the fact that 
Respondent made this notation on the prescription knowing that the 
medication was not going to be used for appetite suppression, and 
agrees with the Government's contention that this prescription contains 
false information.
    As discussed above, the Acting Deputy Administrator agrees with 
Judge

[[Page 44282]]

Randall's conclusion that a determination cannot be made as to the 
legitimacy of the prescription issued to the seventh undercover agent.
    The Acting Deputy Administrator concludes that Respondent issued 
four controlled substance prescriptions to the undercover agents for no 
legitimate medical purpose during the course of the investigation. In 
addition, at the very least, Respondent's issuance of the prescription 
to the fourth undercover agent raises serious concerns regarding 
Respondent's appreciation of the serious nature of controlled 
substances.
    Regarding factor three, it is undisputed that Respondent has not 
been convicted of any offense related to the manufacture, distribution 
or dispensing of controlled substances. Further, it is undisputed that 
the United States Attorney's Office declined to prosecute Respondent 
following the investigation conducted in 1991 and 1992.
    As to factor five, the Acting Deputy Administrator is deeply 
concerned about Respondent's apparent disregard for the tremendous 
responsibility that accompanies a DEA registration. His cavalier 
attitude regarding the addictive quality of amphetamines, as well as 
his failure to accept any responsibility for any dangers his practices 
may have created, raise concerns regarding his future prescribing of 
controlled substances and the risk created to the public health and 
safety.
    The Acting Deputy Administrator concludes that the Government has 
presented a prima facie case and therefore, grounds exist for the 
revocation of Respondent's DEA Certificate of Registration. However, 
the Acting Deputy Administrator does not believe that the severe 
sanction of revocation is warranted in this case. Two physicians who 
have been in a position to observe Respondent's controlled substance 
prescribing practices both testified that they have never seen any 
inappropriate prescribing by Respondent. In addition, as a member of 
the American Academy of Family Physicians and the American Board of 
Family Physicians, Respondent's patient charts are periodically 
reviewed and he must pass an examination that includes four different 
areas regarding pharmaceuticals. Therefore, like Judge Randall, the 
Acting Deputy Administrator concludes that the four prescriptions 
issued for no legitimate medical purpose during the course of the 
investigation in 1991 and 1992 do not appear to be indicative of 
Respondent's overall practice.
    Additionally, the Acting Deputy Administrator finds it significant 
that Respondent's practice at the time of the hearing is very different 
from his practice during the investigation in 1991 and 1992. As an 
employee of a managed health care organization, Respondent is now 
subject to routine peer review procedures; his charting and prescribing 
practices are monitored by his employer; his patient load has 
decreased; and his number of support staff has increased. As Judge 
Randall noted, ``common sense leads to the conclusion that the 
Respondent, now subject to standards established by an employer and 
conscious of the scrutiny afforded his medical decisions and resulting 
medical charts, will enhance his attention to detail in his prescribing 
practices.''
    Judge Randall concluded ``that the totality of the circumstances 
justifies continuing the Respondent's Certificate of Registration with 
certain requirements.'' Accordingly, Judge Randall recommended that 
Respondent's registration be continued subject to the following 
conditions:
    ``1. Within six months of the effective date of the Deputy 
Administrator's final order the Respondent [shall] provide to the DEA 
San Diego Field Division evidence of his successful completion of at 
least 15 hours of training in the proper handling of controlled 
substances, to include coverage of the addictive characteristics of 
such substances.
    2. For a period of three years from the effective date of the 
Deputy Administrator's final order, the Respondent (shall) provide the 
DEA San Diego Field Division, information of the Respondent's change of 
employment, if any, thirty days prior to the effective date of the 
actual change of employment. This requirement is especially necessary 
for the protection of the public interest should the Respondent choose 
to leave the HMO setting and return to private practice as a self-
employed physician.''
    The Acting Deputy Administrator agrees with Judge Randall that 
Respondent's registration should not be revoked at this time. Based 
upon the evidence presented, Respondent's inappropriate prescribing in 
1991 and 1992 appears to be an aberration from his normal course of 
practice. Also, since the events in question, Respondent's employment 
situation has changed dramatically. While these facts lead the Acting 
Deputy Administrator to conclude that Respondent's registration should 
be continued, the Acting Deputy Administrator agrees with Judge Randall 
that some restrictions on Respondent's registration are necessary to 
protect the public interest. The Acting Deputy Administrator is 
extremely concerned by Respondent's failure to recognize the addictive 
nature of amphetamines and by his failure to ensure that controlled 
substances are only prescribed for a legitimate medical purpose.
    The Government filed exceptions to Judge Randall's recommended 
ruling, arguing that ``if the Acting Deputy Administrator chooses not 
to revoke (Respondent's) registration * * * then at the very least 
Respondent's registration should be suspended until and unless he 
completes the 15 hours of training in the handling of controlled 
substances as recommended by (Judge Randall).'' The Government argues 
that suspending Respondent's registration is necessary ``(g)iven the 
seriousness of the violations and Respondent's total lack of candor in 
refusing to admit that his conduct violated the law * * *.'' 
Additionally, the Government argues that a suspension is appropriate 
because ``(u)nder (Judge Randall's) recommendation, if Respondent did 
not obtain the required training within 6 months or did not make any 
attempt to commence this training * * * he would still be 
registered(,)'' and ``DEA would have to issue another Order to Show 
Cause based upon Respondent's failure to comply with this condition.'' 
The Government asserts that with a suspension, the burden of completing 
the training would be on Respondent and ``the public health and safety 
would be protected because Respondent would be without a DEA 
registration unless and until he completed the controlled substance 
training.'' In support of its contention, the Government cites to 
Margaret E. Sarver, M.D., 61 FR 57,896 (1996), where DEA previously 
suspended a DEA registration for at least 120 days or until the 
registrant demonstrated that she had completed 24 hours of training in 
pharmacology.
    The Acting Deputy Administrator finds that the circumstances of 
this case are markedly different from those in Sarver. In that case 
there was significantly more evidence than here of a pattern of 
mishandling of controlled substances. Most notably, Dr. Sarver 
continued to prescribe a highly abused combination of drugs even after 
having been warned of the danger and abuse potential of the drugs. The 
Acting Deputy Administrator does not believe that Respondent's conduct 
warrants a suspension of his registration.
    The Acting Deputy Administrator appreciates the Government's 
concern that should Respondent not comply with the training 
requirement, the Government will be forced to issue

[[Page 44283]]

another Order to Show Cause to revoke Respondent's registration. In its 
response to the Government's exceptions, Respondent indicates that 
``although disagreeing with portions of the (Administrative Law 
Judge's) opinion (R)espondent believes that in totality it is an 
appropriate ruling. Respondent has accepted the ruling and has already 
completed four hours training in the proper handing (sic) of controlled 
substances.'' Respondent argues that there were no complaints regarding 
his prescribing practices before the undercover visits and there has 
been no complaints since the investigation approximately six years ago. 
The Acting Deputy Administrator concludes that the public interest 
would not be served by suspending Respondent's registration. However, 
the Acting Deputy Administrator hereby orders that should Respondent 
fail to comply with the training requirement imposed on his 
registration, all involved in the administrative process to potentially 
revoke Respondent's registration should act as expeditiously as 
possible.
    In addition, the Government takes exception to Judge Randall's 
recommended requirement that Respondent merely has to notify DEA of any 
change in his employment from the HMO. Judge Randall found the 
oversight offered by the HMO to be significant in recommending that 
Respondent's registration be continued and she therefore recommended 
that Respondent be required to notify DEA of any change in employment. 
The Government makes a compelling argument that ``if no additional 
sanctions are imposed and Respondent leaves the HMO, gives DEA the 
required notification and enters into private practice without 
participating in an HMO, any putative advantages in Respondent's prior 
participation in an HMO are dissipated. Yet DEA is left with no 
recourse because Respondent has not violated any conditions.'' 
Consequently, the Government suggested that Respondent be required to 
keep a log of his controlled substance handling and to make the log 
available for inspection. The Acting Deputy Administrator agrees with 
the Government that mere notification of a change in employment is not 
enough to monitor Respondent's prescribing practices.
    Therefore, the Acting Deputy Administrator finds that Respondent's 
DEA Certificate of Registration should be continued subject to the 
following conditions:
    (1) Within six months of the effective date of this final order, 
Respondent shall provide to the Special Agent in charge of the DEA San 
Diego Field Division, or his designee, evidence of his successful 
completion of at least 15 hours of training in the proper handling of 
controlled substances, to include coverage of the addictive 
characteristics of such substances.
    (2) For a period of three years from the effective date of this 
final order, Respondent shall notify in writing the Special Agent in 
Charge of the DEA San Diego Field Division, or his designee, of any 
change in employment. This notification shall be provided at least 
thirty days prior to the effective date of the actual change of 
employment.
    (3) For three years from the effective date of this final order, 
Respondent shall maintain a log of all controlled substances that he 
prescribes. At a minimum, the log shall include the name of the 
patient, the date that the controlled substance was prescribed, and the 
name, dosage and quantity of the controlled substance prescribed. Upon 
the request of the Special Agent in Charge of the DEA San Diego Field 
Division, or his designee, Respondent shall submit or otherwise make 
his prescription log available for inspection.
    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 orders 
that DEA Certificate of Registration, AM0006571, issued to Merritt 
Matthews, M.D., be continued, and any pending applications for renewal 
be granted, subject to the above described restrictions. This order is 
effective September 17, 1998.

    Dated: August 11, 1998.
Donnie R. Marshall,
Acting Deputy Administrator.
[FR Doc. 98-22098 Filed 8-17-98; 8:45 am]
BILLING CODE 4410-09-M