[Federal Register Volume 64, Number 107 (Friday, June 4, 1999)]
[Notices]
[Pages 30060-30063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14100]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 98-10]


Lawrence C. Hill, M.D.; Conditional Grant of Restricted 
Registration

    On January 2, 1998, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Lawrence C. Hill, M.D. (Respondent) of Monroe, 
Louisiana, notifying him if an opportunity to show cause as to why DEA 
should deny his pending application for registration as a practitioner 
pursuant to 21 U.S.C. 823(f), for reason that his registration would be 
inconsistent with the public interest.
    By letter dated January 30, 1998, Respondent, through counsel, 
filed a request for a hearing, and following prehearing procedures, a 
hearing was held in Monroe, Louisiana on May 6 and 7, 1998, before 
Administrative Law Judge Mary Ellen Bittner. At the hearing, both 
parties called witnesses to testify and introduced documentary 
evidence. After the hearing, both parties submitted proposed findings 
of fact, conclusions of law and argument.
    On October 30, 1998, Judge Bittner issued her Opinion and 
Recommended Ruling, Findings of Fact, Conclusions of Law and Decision, 
recommending that Respondent's application for registration be granted. 
Neither party filed exceptions to the Administrative Law Judge's 
recommended decision, and on December 2, 1998, Judge Bittner 
transmitted the record of these proceedings to the Deputy 
Administrator.
    The 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 Deputy Administrator adopts the Opinion and Recommended Ruling, 
Findings of Fact, Conclusions of Law and Decision of he Administrative 
Law Judge, except as specifically noted below. 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 Deputy Administrator finds that Respondent graduated from 
medical school in 1976 and entered private practice as a general 
practitioner in 1977. In 1976, Respondent was issued DEA Certificate of 
Registration AH7179725, which he allowed to expire on October 31, 1980. 
According to Respondent, he moved office locations without advising DEA 
of his new address, and as a result he did not receive the renewal 
application for his registration.
    In July 1987, Respondent called DEA's New Orleans Field Division 
and requested that he be issued DEA order forms to enable him to 
purchase Schedule II controlled substances. Respondent was informed 
that his DEA registration had expired and that he would need to apply 
for and receive a new registration before he could again handle 
controlled substances. On July 16, 1987, Respondent executed an 
application for a new DEA registration. on that same day a DEA 
investigator visited Respondent at his office and reiterated that his 
previous DEA registration had expired and that he could no handle 
controlled substances until he received a new DEA registration. On July 
20, 1987, Respondent contacted the investigator's supervisor to verify 
what he had been told. Respondent was again advised that he could not 
handle controlled substances until he received a new DEA registration.
    On August 13, 1987, the investigator visited the pharmacy located 
across the street from Respondent's office. The investigator discovered 
that Respondent had issued 44 controlled substance prescriptions since 
July 17, 1987, when she had advised him that he was not authorized to 
handle controlled substances. A subsequent review of another pharmacy's 
records revealed that Respondent issued an addition 54 controlled 
substance prescriptions between July 17 and August 13, 1987.
    The investigator questioned Respondent about these prescriptions. 
Respondent indicated that another physician had agreed to ``cover'' his 
prescriptions. Respondent was again advised that he could not handle 
controlled substances until he received a new DEA registration. After 
the investigator left his office, Respondent telephoned DEA's New 
Orleans Field Division to confirm that he was not permitted to handle 
controlled substances.
    On August 21, 1987, the owner of the pharmacy located cross the 
street from Respondent's office called the DEA investigator and 
informed her that a friend of his had recently visited Respondent and 
was given a medication bottle filled with Lorcet, a Schedule III 
controlled substance, and Valium, a Schedule IV controlled substance, 
in exchange for $5.00. During a subsequent interview, the individual 
confirmed this information and also indicated that Respondent had 
dispensed Vicodin, a Schedule III controlled substance, to the 
individual's wife on August 27, 1987.
    As a result of this information, the DEA investigator contacted 
several pharmaceutical companies to determine whether Respondent had 
ordered any controlled substances since July 16, 1987. One company 
indicated that on September 16, 1987, Respondent had requested 100 
dosage units of Lorcet and 100 dosage units of Lorcet Plus 
misrepresenting that his expired DEA registration AH7179725 would 
expire on October 31, 1987. A second company advised that since July 
17, 1987, Respondent had requested and received controlled substances 
such as Valium, Dalmane and Limbitrol, all Schedule IV controlled 
substances. Finally, the records of a third company showed that 
Respondent used his expired DEA registration on July 28, 1987 to 
request 100 dosage units of Vicodin.
    Based upon this information, several undercover visits were made to 
Respondent's office in an attempt to determine whether Respondent would 
prescribe, dispense or administer controlled substances to the 
undercover officers. No controlled substances were obtained by the 
undercover officers.
    On December 9, 1987, a search warrant was executed at Respondent's 
office and investigators found, among other things, a small amount of 
controlled substances. Respondent told the investigators that he did 
not realize that there were still controlled substances in his office 
and that he thought that he had disposed of all of them. During 
execution of the warrant, records of patients who had received 
controlled substances from Respondent were seized. These records were 
then turned over to the Louisiana State Board of Medical Examiners 
(Medical Board) for its review.
    In November 1988, Respondent withdrew his pending application for 
registration with DEA after he received

[[Page 30061]]

an Order to Show Cause proposing to deny the application.
    Based upon its review of information received from DEA, the Medical 
Board filed an Administrative Complaint against Respondent alleging 
that Respondent prescribed, administered or dispensed controlled 
substances to 11 patients, ``in amount, frequency, and duration, in 
excess of any legitimate justification.'' Rather than have these 
charges adjudicated at a hearing, Respondent entered into a Consent 
Order with the Medical Board on June 12, 1989, however he did not admit 
the accuracy of the allegations. Pursuant to the Consent Order 
Respondent's medical license was suspended for six months, and then 
placed on probation until June 1, 1999. Respondent was prohibited from 
handling controlled substances for the duration of his medical career; 
fined $5,000; and ordered to attend at least 50 credit hours per year 
of continuing medical education.
    The United States Attorney's Office contemplated criminally 
prosecuting Respondent for using an expired DEA registration to 
prescribe and order controlled substances. However, criminal 
prosecution was declined in light of Respondent's agreement to a 
lifetime suspension of his controlled substance authority as contained 
in the Consent Order with the Medical Board. For the same reasons, the 
United States Attorney's Office declined to pursue a civil complaint 
against Respondent.
    However, on August 10, 1994, the Medical Board issued a letter to 
Respondent, notifying him that ``the Board voted to grant your request 
for release from your probation and allow you to apply for your DEA 
privileges.'' As a result, Respondent submitted the application that is 
the subject of these proceedings.
    At the hearing in this matter, the Government introduced a letter 
to DEA dated July 28, 1995, from the United States Attorney for the 
Western District of Louisiana objecting to Respondent being granted a 
DEA registration. According to the United States Attorney a ``key 
factor'' in the decision not to criminally prosecute Respondent in 1989 
was his agreement to forfeit, for life, his privilege to handle 
controlled substances. He further stated that ``had this office known 
[Respondent] would not live up to his word, this office would have 
vigorously prosecuted him.''
    Respondent testified at the hearing that as a result of the 
suspension of his medical license he closed his medical practice. He 
further testified that after the investigation, he ``went through a 
tremendous amount of self-directed anger for having been so wrong-
headed and you might say willful, and anger was translated at one point 
into depression, and I became very depressed.''
    In 1989, Respondent entered the residency program at E.A. Conway 
Hospital, Louisiana State University Monroe Medical Center in Monroe, 
Louisiana (LSU Monroe Medical Center). Respondent was considered an 
impaired physician because according to the hospital's medical 
director, ``he just frankly didn't believe that the rules applied to 
himself * * *.'' As a result, Respondent was closely monitored during 
his residency. During the final year of his residency, Respondent was 
elected chief resident.
    After graduating from the residency program in 1992, Respondent was 
offered a position at the emergency room at LSU Monroe Medical Center, 
where he was still working as of the date of the hearing. Respondent 
administers and dispenses controlled substances using the hospital's 
DEA registration, however, he does not issue controlled substance 
prescriptions.
    At the hearing, Respondent testified that following the lifting of 
his probation, he applied for and received his Louisiana controlled 
substance license, however he let it lapse since he did not have a DEA 
registration. Following the hearing, on July 7, 1998, Respondent 
introduced into evidence a copy of his Louisiana Controlled Dangerous 
Substance License with an expiration date of March 1, 1998.
    After the Medical Board lifted his probation, Respondent became 
Board certified in family practice. To maintain his certification, he 
is required to attend at least 50 hours of continuing medical education 
each year.
    A number of Respondent's supervisors and colleagues testified on 
his behalf at the hearing and/or wrote letters of recommendation for 
Respondent. Essentially it was the position of these physicians that 
Respondent does not pose a threat to the public health and safety; that 
he is a competent, hard working physician; that he is well respected by 
his peers; and that they have no hesitation in recommending that 
Respondent be issued a DEA registration.
    Respondent testified that with respect to his handling of 
controlled substances in the 1980s he felt that he was ``under-
trained'' and that he would do things differently now in light of all 
of his subsequent training. He further testified that he had learned 
from his mistakes and that although he has gone through difficult times 
because of those mistakes, he feels that ``it's been to (his) 
benefit.'' He stated that DEA ``can take assurances that I will not 
break the rules again if I were to receive my DEA license again.''
    The Government contends that Respondent's application for 
registration should be denied because he continued to handle controlled 
substances after being told several times that he was not authorized to 
do so. Respondent contends that he made mistakes in his past, but he 
has been rehabilitated. He further asserts that he needs a DEA 
registration in order to better care for his patients.
    Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy 
Administrator may revoke a DEA Certificate of Registration and deny any 
pending application for renewal of such registration, if he determines 
that the continued registration would be inconsistent with the public 
interest. Section 823(f) requires that the following factors be 
considered in determining the public interest:
    (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 denied. See Henry J. Schwartz, Jr., M.D., 54 FR 16,422 
(1989).
    Regarding factor one, there is no dispute that in June 1989, the 
Medical Board issued a Consent Order that suspended Respondent's 
medical license for six months, placed him on probation for nine and 
one-half years, and prohibited him from handling controlled substances 
for life. It is also undisputed that in 1994, the Medical Board removed 
all restrictions from Respondent's medical license and permitted him to 
apply for a DEA Certificate of Registration.
    However, what is in dispute is whether Respondent is currently 
authorized to handle controlled substances in Louisiana. Judge Bittner 
concluded that ``Respondent also

[[Page 30062]]

received his Louisiana controlled substance license. Thus, Respondent 
is now fully licensed in Louisiana.'' The Deputy Administrator does not 
believe that such a conclusion can be drawn from the evidence in the 
record. At the hearing, Respondent testified that he allowed his state 
controlled substance permit to lapse since he was not registered with 
DEA. Judge Bittner kept the record open following the conclusion of the 
hearing to allow Respondent to present evidence that he is currently 
authorized to handle controlled substances in Louisiana, a prerequisite 
to DEA registration in that state. By letter dated July 7, 1998, 
counsel for Respondent forwarded a copy of Respondent's Louisiana 
controlled dangerous substance license. However, review of this license 
indicates that it expired on March 1, 1998. Therefore, there is a 
question as to whether Respondent is in fact currently authorized to 
handle controlled substances in Louisiana. This is significant because 
DEA does not have the statutory authority under the Controlled 
Substances Act to register a practitioner unless that practitioner is 
authorized by the state to handle controlled substances. See 21 U.S.C. 
802(21) and 823(f).
    As to factors two and four, Respondent's experience in handling 
controlled substances and his compliance with applicable laws relating 
to controlled substances, the evidence is clear that Respondent handled 
controlled substances, the evidence is clear that respondent handled 
controlled substances in 1987 knowing that he was not authorized to do 
so. He used his expired DEA Certificate of Registration to prescribe, 
dispense, administer, and order controlled substances in violation of 
21 U.S.C. 843(a)(2).
    While there is some indication that Respondent may have excessively 
prescribed diet pills to 11 patients, the only evidence presented 
regarding this allegation is the Administrative Complaint filed by the 
Medical Board. As Judge Bittner noted, ``[a]n Administrative complaint 
alone, however, fails to prove by a preponderance of the evidence that 
Respondent's DEA registration is not in the public interest.'' Like 
Judge Bittner, the Deputy Administrator does not rely on the 
allegations in the Medical Board's Administrative Complaint in 
rendering his decision regarding Respondent's application for 
registration.
    There is also evidence in the record regarding Respondent's 
experience in handling controlled substances since 1987. Respondent has 
undergone extensive training in among other things, how to properly 
handle controlled substances. He has been working at LSU Monroe Medical 
Center since 1992 and has been administering and dispensing controlled 
substances under the hospital's DEA registration. There are no 
allegations that he has improperly handled controlled substances or 
failed to comply with controlled substance laws since 1987. In fact, 
Respondent's supervisors and colleagues are of the opinion that 
Respondent is a hard working, dedicated professional and that he is not 
a threat to the public health and safety.
    Regarding factor three, there is no evidence that Respondent has 
ever been convicted under State or Federal laws relating to controlled 
substances.
    Under factor five, the Government asserted that the only reason 
Respondent was not prosecuted for his use of his expired DEA 
registration to handle controlled substances was because he agreed with 
the Medical Board to the lifetime suspension of his ability to handle 
controlled substances. In his July 28, 1995 letter, the United States 
Attorney stated, ``(Respondent) received the benefit of his agreement 
and now, when the statute of limitations prohibits (the United States 
Attorney's Office) from taking further action, he wants to `renege' on 
the agreement.'' But as Judge Bittner noted ``the only formal agreement 
that Respondent would not seek to handle controlled substances was 
between Respondent and the Medical Board, and neither the United States 
Attorney nor DEA has standing to assert any rights with regard to that 
agreement or to claim detrimental reliance on it.''
    Judge Bittner concluded that the Government presented a prima facie 
case for denying Respondent's application for registration based upon 
Respondent's use of his expired DEA registration to continue to handle 
controlled substances in the 1980s and the Medical Board's action 
against his medical license. Nonetheless, Judge Bittner concluded that 
Respondent's application should be granted. Respondent has admitted his 
mistakes, is remorseful, and has taken great steps to rehabilitate 
himself. He has the support of his supervisors and colleagues and has 
been handling controlled substances since at least 1992 using the 
hospital's DEA registration with no indication of any problems. Judge 
Bittner stated that ``I am satisfied that Respondent now understands 
that the rules do apply to him and that there is little likelihood that 
his misconduct will recur.''
    The Deputy Administrator appreciates the concerns of the United 
States Attorney's Office. Respondent agreed with the Medical Board not 
to handle controlled substances for the duration of his medical career. 
In light of this agreement, the United States Attorney's Office 
declined to criminally or civilly prosecute Respondent for his 
wrongdoing. While it is true that there was no formal agreement with 
the United States Attorney's Office or DEA, Respondent clearly was 
aware that his agreement with the Medical Board was the reason that he 
was not criminally prosecuted. Then in 1994, Respondent sought to be 
released from his agreement with the Medical Board, and as a result, he 
is no longer prohibited from handling controlled substances.
    However, the Deputy Administrator must look at the record as a 
whole to determine whether Respondent's registration is currently in 
the public interest. In light of Respondent's admission of wrongdoing 
and expressions of remorse; his training since 1989; and his handling 
of controlled substances since at least 1992 using the hospital's DEA 
registration with no problems, the Deputy Administrator agrees with 
Judge Bittner that it is in the public interest to issue Respondent a 
DEA Certificate of Registration.
    But, given the egregious nature of Respondent's conduct in the 
1980s and that he has not had his own DEA registration since 1980, the 
Deputy Administrator concludes that a restricted registration is 
appropriate. Respondent needs to demonstrate his ability to effectively 
and responsibly handle controlled substances with his own DEA 
registration. Imposing strict controls upon Respondent's registration 
``will allow 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.'' Steven M. 
Gardner, M.D., 51 FR 12,576 (1986), as cited in Michael J. Septer, 
D.O., 61 FR 53,762 (1996).
    Therefore, for one year from the issuance of the DEA Certificate of 
Registration:
    (1) Respondent shall maintain a log of all controlled substances 
that he prescribes. This log shall include at a minimum the name of the 
patient, the date of the prescription, and the name, strength and 
quantity of the controlled substance prescribed. This log shall be made 
available for inspection by DEA personnel.

[[Page 30063]]

    (2) Respondent shall notify the Special Agent in Charge of the DEA 
New Orleans Field Division, or his designee, if he ceases to be 
employed at LSU Monroe Medical Center.
    (3) If Respondent goes into private practice, he shall permit DEA 
personnel to conduct inspections of his registered location and of his 
controlled substance records without an Administrative Inspection 
Warrant.
    However, having said that it is in the public interest to issue 
Respondent a restricted registration, DEA cannot issue him such a 
registration unless he is authorized to handle controlled substances by 
the state in which he practices. As discussed above, it is unclear 
whether Respondent possesses a current valid state controlled substance 
license. Therefore, the Deputy Administrator concludes that Respondent 
should be issued a DEA Certificate of Registration subject to the above 
described conditions once he provides evidence to DEA that he is 
authorized to handle controlled substances in Louisiana.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that the 
application for a DEA Certificate of Registration submitted by Lawrence 
C. Hill, M.D., be, and it hereby is granted subject to the above 
described conditions, upon receipt by the DEA New Orleans office of 
evidence of his state authorization to handle controlled substances. 
This order is effective June 4, 1999.

    Dated: May 25, 1999.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 99-14100 Filed 6-3-99; 8:45 am]
BILLING CODE 4410-09-M