[Federal Register Volume 63, Number 203 (Wednesday, October 21, 1998)]
[Notices]
[Pages 56220-56223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28175]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 97-30]


Robert D. Iver, D.D.S. Continuation of Registration With 
Restrictions

    On August 8, 1997, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Robert D. Iver, D.D.S. (Respondent) of Miami 
Beach, Florida, notifying him of an opportunity to show cause as to why 
DEA should not revoke his DEA Certificate of Registration AI5413404, 
and deny any pending applications for renewal of such registration, 
pursuant to 21 U.S.C. 823(f), 824(a)(2) and 824(a)(4).
    By letter dated August 21, 1997, Respondent, through counsel, filed 
a timely request for a hearing, and following prehearing procedures, a 
hearing was held in Fort Lauderdale, Florida on February 3, 1998, 
before Administrative Law Judge Paul A. Tenney. At the hearing, both 
parties called witnesses to testify and the Government introduced 
documentary evidence. After the hearing, only the Government submitted 
proposed findings of fact, conclusions of law and argument. On April 7, 
1998, Judge Tenney issued his Opinion and Recommended Ruling, Findings 
of Fact, Conclusions of Law and Decision, recommending that the Order 
to Show Cause be vacated. On April 20, 1998, the Government filed 
Exceptions to the Opinion and Recommended Ruling of the Administrative 
Law Judge, and on May 11, 1998, Judge Tenney 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 C.F.R. 1316.67, hereby issues his final 
order based upon findings of fact and conclusions of law as hereinafter 
set forth.
    The Acting Deputy Administrator finds that Respondent graduated 
from

[[Page 56221]]

dental school in 1972 and has been in private practice since 1974. 
Sometime in 1984 or 1985, Respondent began abusing cocaine and became 
addicted. According to Respondent he used cocaine approximately every 
six months.
    In March 1998, Respondent was arrested as a result of a shooting 
incident involving his wife. Respondent testified that he was free-
basing cocaine at the time of his arrest. Respondent underwent 
inpatient evaluation and treatment, during which he admitted to prior 
sporadic use of cocaine. On or about May 23, 1998, Respondent entered 
into a contract with Florida's Physicians Recovery Network (PRN) which 
he completed in June 1993. PRN is a program that monitors impaired 
professionals and requires that individuals be evaluated and possibly 
enter drug treatment. The program's monitoring includes random drug 
screens.
    On September 21, 1993, the PRN received a number of calls from 
Respondent's wife indicating that Respondent was free-basing cocaine. 
Also on this date, the local police were called to Respondent's 
residence regarding a domestic violence complaint by Respondent's wife 
who indicated that she and Respondent had been arguing over 
Respondent's drug use.
    At the hearing in this matter, Respondent's wife testified that 
Respondent had been drug free since 1988, but she told police that 
Respondent was using drugs because, ``[t]here's nothing worse for an 
addict * * * to be using alone * * * and when one party is not using 
and the other party is, there is a constant battle going on. And this 
was my battle that evening, as I recall. He wouldn't use with me so I 
implicated him as using. * * *''
    The PRN ordered Respondent to submit to a professional evaluation, 
and on September 24, 1993, he was admitted to a local hospital for an 
inpatient evaluation. During that evaluation, Respondent tested 
positive for cocaine and benzodiazepines. Respondent insisted that he 
had not ingested any drugs, and later his wife admitted that she had 
covertly added drugs to his food and drink.
    The evaluating physician opined that Respondent was in relapse and 
recommended that Respondent enter into another contract with the PRN. 
Respondent began attending Alcoholics Anonymous or Narcotics Anonymous 
meetings and professional support group meetings, but he refused to 
enter into another contract with the PRN. According to the medical 
director of the addiction treatment program at the hospital where 
Respondent was evaluated, Respondent's refusal to sign a new contract 
with the PRN was based upon the advice of Respondent's attorney.
    On August 2, 1995, local police went to Respondent's residence 
after receiving a call from Respondent's wife that he had suffered a 
cocaine overdose. According to an incident report in evidence in this 
proceeding, Respondent's wife told the officers that Respondent has 
``gone crazy.'' The officers discovered Respondent naked and covered in 
blood. In addition, the officers discovered a cocaine pipe, torch and 
glass beaker, items that are commonly associated with free-basing 
cocaine. Respondent was arrested and charged with two counts of 
misdemeanor battery and one count of misdemeanor possession of drug 
paraphernalia. On October 17, 1995, Respondent was found guilty in the 
Dade County Court, Florida, of one count of use, possession, 
manufacture, delivery, or advertisement of drug paraphernalia and one 
count of battery following his nolo contendere plea. Adjudication was 
deferred and he was sentenced to 12 months probation. As part of his 
probation, Respondent was required to continue to participate in the 
PRN.
    At the hearing before Judge Tenney, Respondent explained that 
``[o]n the night of August 2nd, my wife and I had been having a series 
of tremendous fights and my wife was actively using drugs * * * I came 
out of the shower and I saw her using, I got very, very upset, I ended 
up getting severely cut on a mirror, that was blood all over the place. 
* * *'' He further testified that his attorney advised him to plead 
nolo contendere to the charges against him since, ``my wife was in 
treatment for her drug addiction [and] that it would be unwise,, after 
consulting with the people in the drug addiction program, to pull her 
out, bring her into court. * * *''
    On September 15, 1995, the State of Florida, Agency for Health Care 
Administration issued an emergency order suspending Respondent's 
license to practice dentistry. Thereafter, on October 20, 1995, 
Respondent entered into a second PRN contract wherein he agreed that he 
would be subject to random unannounced urine or blood screens; that he 
would abstain from using all mood altering substances; that he would be 
monitored by a physician; that he would attend Alcoholic Anonymous or 
Narcotics anonymous meetings and professional support group meetings; 
and that his wife would also enter a recovery program.
    In January 1996, a hearing was held regarding Respondent's Florida 
dental license. At the hearing, the medical director of the addiction 
treatment center where Respondent was evaluated and the director of the 
PRN both testified that Respondent is safe to practice dentistry as 
long as he is monitored by the PRN and that he poses no danger to the 
public's health, safety or welfare. On March 13, 1996, the State of 
Florida, Agency for Health Care Administration, Board of Dentistry 
(Board) issued a final order regarding Respondent's Florida dental 
license. The Board reprimanded Respondent; ordered that his dental 
license would remain suspended until September 14, 1996; and fined him 
$6,000.00. The Board further ordered that upon reinstatement of 
Respondent's dental license, his license will be on probation as long 
as he practices dentistry in Florida. As a condition of his probation, 
Respondent is required to remain under contract with the PRN.
    At the hearing in this matter, Respondent's evaluating physician, 
who is an expert in the field of additionology, testified that 
Respondent did not have a full commitment to recovery from 1988 to 
1993, but that now, ``[Respondent's] prognosis is very good. He has 
around him a comprehensive support system that he is utilizing.'' 
According to the physician, Respondent is no longer in denial, he is in 
the middle stage of recovery, and he has a 90% chance of not relapsing.
    Respondent testified before Judge Tenney that in dealing with his 
addition since August 1995, he has ``put my program back into full 
swing.'' He attends approximately four to five Alcoholics Anonymous or 
Narcotics Anonymous meetings per week, as well as his weekly 
professional support group meeting and his PRN meeting. According to 
Respondent, ``[b]eing in recovery had just turned my whole life back 
around.''
    Respondent testified that he needs his DEA registration ``for the 
health and well-being of my patients.'' He further testified that he 
has become very conservative in his dispensing of controlled substances 
as a result of his training through the PRN and his recovery groups, 
but that there are times that he needs controlled substances to treat 
his patients.

[[Page 56222]]

    Pursuant to 21 U.S.C. 823(f) and 824(a)(4),\1\ the Deputy 
Administrator may revoke a DEA Certificate of Registration and deny any 
pending applications, if he determines that the continued registration 
would be inconsistent with the public interest. Section 823(f) requires 
that the following factors be considered:

    \1\ Both the Order to Show Cause and the issue set forth in the 
Prehearing Ruling cited 21 U.S.C. 824(a)(2) as another ground for 
revocation in this matter. It appears from testimony at the hearing 
and the posthearing filings that the Government is no longer 
pursuing revocation under 21 U.S.C. 824(a)(2).
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    (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 be 
denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 54 FR 16,422 
(1989).
    As to factor one, it is undisputed that on September 15, 1995, the 
State of Florida, Agency for Health Care Administration issued an 
emergency order suspending Respondent's license to practice dentistry 
as a result of his use of cocaine. Thereafter, the Board issued a final 
order on March 13, 1996, regarding Respondent's dental license. The 
Board continued the suspension of Respondent's license until September 
14, 1996, reprimanded Respondent and fined him $6,000.00. As of 
September 14, 1996, Respondent's Florida dental license was reinstated, 
but it is on probation as long as he practices in the State of Florida. 
As part of his probation, Respondent is required to remain under 
contract with the PRN.
    Regarding factor two, there is no evidence in the record regarding 
Respondent's experience in dispensing or conducting research with 
controlled substances.
    As to factor three, on October 17, 1995, Respondent was found 
guilty in the Dade County Court, following his nolo contendere plea to 
one misdemeanor count of use, possession, manufacture, delivery, or 
advertisement of drug paraphernalia. While adjudication was deferred, 
this is still considered a conviction for purposes of the Controlled 
Substances Act. See David D. Miller, M.D., 60 FR 54,511 (1995); David 
W. Davis, D.O., 60 FR 45,739 (1995).
    Regarding Respondent's compliance with laws relating to controlled 
substances, it is undisputed that prior to 1988, Respondent unlawfully 
possessed and used cocaine.
    As to factor five, the Government contends that Respondent has a 
history of chemical dependency and drug abuse, and did not sustain his 
earlier recovery, relapsing in 1993. However, the Acting Deputy 
Administrator notes that the testimony indicates that Respondent has 
been drug-free since 1988, and the 1993 relapse resulted from 
Respondent's wife putting drugs in his food and drink. Respondent 
himself admits that he suffered an ``emotional relapse'' in 1993, and 
``slipped out of [the] program.'' When asked what is different about 
his recovery now from his recovery in 1998 to 1993, Respondent 
testified that ``I've committed to a lifetime contract with the PRN, no 
five years, it goes forever. And it's opened up all new avenues for me 
for recovery and I think that the first time around was more of, `Let 
me have this goal of five years,' because that's what they had set for 
me. Now it's the rest of my life.'' Respondent's evaluating physician 
testified that Respondent's prognosis for continued recovery is very 
good given his strong support system.
    Judge Tenney found that given Respondent's prior drug use, the 
Government has presented a prima facie case for revocation of his DEA 
registration. However, Judge Tenney found that this case ``is close.'' 
Judge Tenney noted that Respondent is in the middle of recovery, his 
expected chance of recovery is in the 90% range, and he is 
participating in the PRN. Judge Tenney relied heavily on the testimony 
of Respondent's evaluating physician, who is an expert in the field of 
addictionology, and ``concluded that the `public interest' would not be 
prejudiced by allowing Respondent to continue in practice.'' Judge 
Tenney recommended that the Order to Show Cause be vacated.
    The Government filed exceptions to Judge Tenney's recommendation 
arguing that ``[i]f the Deputy Administrator decides that the 
registration of Respondent would be in the public interest[,] * * * 
`conditions' upon such registration would be of benefit to the DEA 
regulatory process.'' The Government contends that ``since Respondent 
is in the midst of a second recovery, * * * more tangible assurances of 
his progress ought to be available to the DEA rather than to simply 
issue an unrestricted registration.''
    The Acting Deputy Administrator agrees with Judge Tenney that 
revocation of Respondent's registration would not be appropriate. But, 
the Acting Deputy Administrator does not agree with Judge Tenney that 
the Order to Show Cause should be vacated. The Order to Show Cause 
notified Respondent of his opportunity to contest the proposed 
revocation of his DEA registration. Respondent availed himself of this 
opportunity which resulted in the hearing in this matter, and 
ultimately this final order. Therefore, since proper administrative 
procedures have been followed, there is no basis to vacate the Order to 
Show Cause.
    However, the Acting Deputy Administrator agrees that it would be in 
the public interest to allow Respondent to maintain his DEA 
registration. According to Respondent's expert witness, Respondent's 
prognosis for continued recovery is ``very good.'' In addition, as long 
as he practices in Florida, Respondent will be closely monitored by the 
PRN.
    But, the Acting Deputy Administrator also agrees with the 
Government. Respondent had a serious drug abuse problem, and by his own 
admission, will be in recovery for the rest of his life. Subjecting 
Respondent's registration to some restrictions ``will allow the 
Respondent to demonstrate that he can responsibly handle controlled 
substances in his medical practice, yet simultaneously protect the 
public by providing a mechanism for rapid detection of any improper 
activity related to controlled substances.'' See Michael J. Septer, 
D.O. 61 FR 53,762 (1996); Steven M. Gardner, M.D., 51 FR 12,576 (1986).
    Therefore, the Acting Deputy Administrator concludes that 
Respondent's DEA Certificate of Registration should be continued 
subject to the following conditions for three years from the effective 
date of this final order.
    (1) Respondent shall remain under contract with Florida's 
Physicians Recovery Network for at least three years from the effective 
date of this final order. Should Respondent seek to transfer his DEA 
registration to another state, Respondent shall enter into a similar 
contract in that state.
    (2) Respondent shall submit or cause to be submitted, copies of the 
reports regarding his random urine and/or blood screens to the Special 
Agent in

[[Page 56223]]

Charge of the DEA Miami Field Division, or his designee.
    (3) Respondent shall not prescribe or otherwise dispense controlled 
substances for himself or his immediate family members.
    (4) Respondent shall maintain a log of his handling of controlled 
substances. At a minimum, the log shall include the date that the 
controlled substance is prescribed, administered or dispensed, the name 
of the patient, and the name, dosage and quantity of the substance 
prescribed, administered or dispensed. The log shall be sent on a 
quarterly basis to the Special Agent in Charge of the DEA Miami Field 
Division, or his designee.
    (5) Respondent shall inform the Special Agent in Charge of the 
Miami Field Division, or his designee, of any action taken by any state 
regarding his medical license or his authorization to handle controlled 
substances. This notification must occur within 30 days of the state 
action.
    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 AI5413404, previously issued to Robert 
D. Iver, D.D.S., be renewed and continued subject to the above 
described restrictions.

    This order is effective November 20, 1998.

    Dated: October 14, 1998.
Donnie R. Marshall,
Acting Deputy Administrator.
[FR Doc. 98-28175 Filed 10-20-98; 8:45 am]
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