[Federal Register Volume 64, Number 115 (Wednesday, June 16, 1999)]
[Notices]
[Pages 32271-32274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15189]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 98-13]


Jimmy H. Conway, Jr., M.D.; Grant of Restricted Registration

    On January 28, 1998, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Jimmy Harold Conway, Jr., M.D. (Respondent) of 
Oklahoma City, Oklahoma, notifying him of an opportunity to show cause 
as to why DEA should not deny his application for registration as a 
practitioner pursuant to 21 U.S.C. 823(f) and 824(a)(2) and (a)(4), for 
reason that he was convicted of a felony relating to controlled 
substances and that his registration would be inconsistent with the 
public interest.
    By letter dated February 23, 1998, Respondent, through counsel, 
requested a hearing on the issues raised by the Order to Show Cause. 
Following prehearing procedures, a hearing was held in Oklahoma City, 
Oklahoma on July 14 and 15, 1998, before Administrative Law Judge Gail 
A. Randall. 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 December 21, 1998, Judge Randall issued her Recommended Rulings, 
Findings of Fact, Conclusions of Law and Decision, recommending that 
Respondent's application for registration be granted without 
restrictions. Neither party filed exceptions to Judge Randall's 
opinion, and on January 26, 1999, Judge Randall 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 in full the recommended rulings, 
findings of fact and conclusions of law of the Administrative Law 
Judge, and adopts in part Judge Randall's recommended decision in this 
matter. 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 1983, and has been in private practice since 1989. He 
is an orthopedic surgeon specializing primarily in the treatment of 
shoulder and knee juries, general orthopedics, and sports medicine.
    On February 27, 1996, an agent with the Oklahoma Bureau of 
Narcotics and Dangerous Drugs Control (OBN) received a complaint from a 
pharmacist concerning Respondent. The pharmacist had become suspicious 
of several prescriptions filled at the pharmacy for patient ``Jim 
Conway'' for Lorcet, a Schedule III control substance, and Soma, a non-
controlled substance

[[Page 32272]]

Federally but a Schedule IV controlled substance in Oklahoma. The 
pharmacist was having trouble verifying the prescriptions with the 
alleged prescribing physician, and indicated that she had learned that 
``Jim Conway'' was a physician in the Oklahoma City area. A printout 
from the pharmacy revealed that between June 1, 1995 and February 26, 
1996, ``Jim Conway'' had 13 prescriptions filled at the pharmacy. It 
was later discovered that the address listed on these prescriptions was 
the same as Respondent's residence.
    Subsequently, the OBN agent visited a number of pharmacies in the 
Oklahoma City area and seized prescriptions allegedly issued to 
Respondent by various physicians for approximately 5,973 dosage units 
of controlled substances.
    On March 4, 1996, the OBN agent met with a physician whose name 
appeared as the prescribing physician on a number of the prescriptions. 
This physician had been a medical partner with Respondent at 
Respondent's then-current practice, and had known Respondent socially 
and professionally since 1979. After reviewing the prescriptions he 
alleged wrote for Respondent, the physician indicated that he did not 
write or authorize any of the prescriptions.
    That same day, the OBN agent met with another physician whose name 
appeared as the prescribing physician on a number of the prescriptions. 
This physician was a then-current partner at Respondent's practice. 
After reviewing the prescriptions he allegedly wrote for Respondent, 
the physician also indicated that he did not write or authorize any of 
the prescriptions. This physician further indicated to the agent that 
in approximately March 1995, he was told by a pharmacist that 
Respondent was using his prescription pad to acquire controlled 
substances. The physician confronted Respondent who admitted forging 
prescriptions, but told the physician that it was poor judgment on his 
part; that it was a ``one-time'' occurrence; and that he would never 
forge prescriptions again. The physician never reported this incident 
to any law enforcement authorities.
    Also on March 4, 1996, the OBN agent met with Respondent at which 
time Respondent candidly admitted to the agent that he had forged the 
prescriptions by using the names and DEA registration numbers of his 
partners without their knowledge. Respondent attributed his addiction 
to ``frustration over his practice and workload.'' At that time 
Respondent was dissatisfied with his medical practice which according 
to him was mainly a group of doctors that associated with each other 
professionally, but practiced as individuals. This dissatisfaction 
caused his stress level to increase.
    In the past, Respondent relieved stress by drinking alcohol. In 
late 1992 or 1993, Respondent began using controlled substances first 
on the weekends and then also at night. Initially he consumed samples 
of Lortab and Soma taken from his medical practice. Respondent then 
began forging prescriptions for drugs such as Lorcet, Ambien, Soma, 
Xanax and Restoril, by signing the names of his medical partners on the 
prescriptions. Ultimately, Respondent became addicted to these 
substances.
    While he was addicted to these drugs, Respondent was physically and 
emotionally withdrawn from the people around him. Although Respondent 
admitted his addiction to the OBN agent, he stated that ``he did not 
feel the addiction had impaired him in any way during surgery.'' A 
colleague testified at the hearing that he did not feel that Respondent 
was impaired when they would perform surgery together.
    At the conclusion of the meeting with the OBN agent on March 4, 
1996, Respondent surrendered his state and DEA controlled substance 
registrations. On March 8, 1996, the Oklahoma Board of State Medical 
Licensure and Supervision (Board) held an emergency hearing, and on 
March 29, 1996, issued an Emergency Order immediately suspending 
Respondent's medical license.
    According to Respondent, he felt relieved when confronted by the 
OBN agent because he knew that at that point he would be able to 
receive help for his addiction. Within two hours of meeting the OBN 
agent on March 4, 1996, Respondent admitted himself to a local hospital 
for detoxification. Respondent readily admitted his addiction to his 
doctor at the hospital. After five days at the local hospital, 
Respondent entered a treatment center in a suburb of Chicago. Most 
patients spend about 12 weeks at the treatment center, however 
Respondent was released from in-patient treatment after only 8\1/2\ 
weeks. Respondent's success at the treatment center is attributable to 
the fact that he had already admitted his drug addiction and had 
accepted that he had a problem before he entered the center.
    While at the treatment center, Respondent learned about what 
constitutes an addiction; how to control and treat his dependence; what 
causes relapse; and how to prevent it from happening to him. Respondent 
credibly testified at the hearing that ``I have absolutely no desire to 
return to that lifestyle.''
    Respondent left the treatment center in May 1996. The treatment 
center requires program participants to undergo further drug treatment 
monitoring for at least two years following release from in-patient 
treatment, since the likelihood of relapse is extremely low after two 
years. Therefore, Respondent committed to a two-year ``contract'' with 
the treatment center which required Respondent to attend Alcoholics 
Anonymous (AA) meetings and to participate in the Oklahoma Physicians 
Recovery Program (PRP). This contract expired in May 1998.
    After returning to Oklahoma from the treatment center, Respondent 
entered into a five-year contract with the PRP, which is aimed at 
supporting the recovery of physicians with addictions. This contract 
required drug screening two times a week for the first six months, and 
then weekly random testing for up to two years. After two years, drug 
screening is completely at random, but once a person is called for a 
test, he must give a urine sample within four hours. In addition, 
participants must attend at least three weekly twelve-step meetings, 
such as AA, and must have a physician to monitor their physical well-
being, and a different physician sponsor to help them overcome their 
addiction. Respondent has compiled with the program requirements and is 
committed to continuing his participation in the PRP and AA.
    In late September 1996, the Board issued an order granting 
Respondent a medical license subject a five-year probationary term 
beginning on March 8, 1996. Respondent is required to maintain 
duplicate, serially numbered controlled substance prescriptions and to 
make them available to the Board upon request. He is prohibited from 
authorizing any personnel under his supervisor to issue a prescription, 
and he may not handle any amphetamines, amphetamine-like substances, 
aneroxic drugs and/or anabolic steroids. During his probation with the 
Board, Respondent is required to submit biological fluid specimens upon 
request, and he is prohibited from prescribing, administering or 
dispensing any medications for personal use. Respondent is further 
prohibited from taking any medication unless it is authorized by a 
physician treating him for a legitimate medical need. Finally, he is 
required to continue his contract with the treatment center in Chicago.
    Subsequently, on October 31, 1996, Respondent pled guilty to two 
counts of

[[Page 32273]]

an eleven-count criminal information charging him with obtaining 
controlled substances by forged or altered prescriptions, with the 
remaining counts dismissed pursuant to a plea agreement. Respondent 
received a four-year deferred sentence and as part of the sentence, 
Respondent agreed to participate in ``drug testing [and] treatment as 
required by [the] Medical Board,'' and to participate in 120 hours of 
community service programs with Alcoholics Anonymous and/or the 
Fellowship of Christian Athletes.
    In November 1996, the OBN granted Respondent a state controlled 
substance license which was also placed on probation for five years, 
effective March 8, 1996. The OBN license is subject to the same terms 
as those imposed by the Board on Respondent's medical license.
    Respondent cooperated with authorities throughout the investigation 
and the subsequent criminal and regulatory proceedings. As of the date 
of the hearing, Respondent has willingly compiled with all of the terms 
of his probation and his contracts with the PRP and the treatment 
center. Respondent's urine screens have all been negative, and he has 
been ``clean'' since March 4, 1996.
    Respondent is currently a member of a different group medical 
practice than he was during his addiction. In this practice, Respondent 
has supportive relationships with the other partners in the practice. 
The physicians in this practice attend regular ``accountability 
meetings'' and the partners are vigilant in monitoring Respondent's 
behavior. According to Respondent, his stress level is reduced and his 
job satisfaction is higher, due in part, to his professional support 
system.
    The physician who treated Respondent at the local hospital and is 
now the medical director of the PRP, testified that a person's active 
involvement in the recovery process is the best predicator of future 
performance. Specifically he testified that, ``[a]s long as that person 
is actively involved in an ongoing recovery process, relapse is 
seldom.'' According to this physician, the recovery rate for physicians 
participating in the PRP is approximately 90-95%.
    Respondent's wife, the Chief Executive Operating officer of his 
current practice, and several of his colleagues and friends all 
testified that if Respondent were to begin abusing controlled 
substances again, they would recognize the abuse.
    At some point during his addiction recovery period, Respondent 
legitimately ingested narcotics following knee surgery. According to 
Respondent he had no desire to use additional medication, and he did 
not relapse as a result of the lawfully prescribed use of this 
medication.
    Respondent's current and potential patients are inconvenienced 
because Respondent does not have a DEA registration. Patients must wait 
until another physician is available to prescribe them narcotics to 
control their pain. Respondent is unable to obtain privileges at a 
number of hospitals and he cannot participate in many insurance plans 
without a DEA registration. According to one of the physicians whose 
name was used by Respondent to forge prescriptions, without a DEA 
Certificate of Registration, Respondent's ``talents * * * cannot be 
adequately utilized.''
    As Respondent pointed out, the lack of a DEA registration does not 
affect his ability to abuse controlled substances, if he chooses to do 
so. Respondent candidly acknowledged that ``[m]y ability to prescribe 
medicine in no way affects my recovery from addiction in terms of me 
actually writing a prescription. The way I obtained the medication 
prior to my treatment was by forgery and I could do that regardless of 
whether or not I had a DEA number.''
    Judge Randall found that Respondent exhibited genuine remorse for 
his actions and has accepted responsibility for his prior conduct.
    Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an 
application for a DEA Certificate of Registration, if he determines 
that the 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. Schwarz, Jr., M.D., 54 FR 16422 
(1989).
    Both parties argue that all five factors are relevant in this case 
in determining the public interest. The Government contends that 
Respondent's application should be denied in light of the actions by 
the Board and OBN; Respondent's forging of controlled substance 
prescriptions for several years; his conviction of two felonies 
relating to controlled substances; and his untruthful behavior. 
Respondent, on the other hand, argues that despite his unlawful 
conduct, he should be granted a DEA Certificate of Registration. In 
support of his contention, Respondent points out that he is currently 
authorized to practice medicine and handle controlled substances in 
Oklahoma; he did not illegally dispense controlled substances to anyone 
but himself; his deferred sentence is not considered a conviction under 
state law; he has complied with applicable laws except regarding his 
own addition; and those in regular contact with him have indicated that 
he is not a threat to the public health and safety.
    As to factor one, it is undisputed that in March 1996, Respondent 
voluntarily surrendered his state controlled substance license and his 
medical license was suspended. However it is also undisputed that in 
September 1996, the Board reinstated Respondent's medical license and 
in November 1996, the OBN granted Respondent a license to handle 
controlled substances. Both of these licenses were granted subject to a 
five-year probationary period and Respondent is therefore still on 
probation with the Board and OBN. Although state licensure is a 
prerequisite for a DEA registration, it is not the only factor to be 
considered.
    Factors two and four, Respondent's experience in dispensing 
controlled substances and his compliance with laws related to 
controlled substances, are clearly relevant in determining the public 
interest in this matter. While it is true that Respondent did not 
illegally dispense controlled substances to anyone but himself, his 
conduct was nonetheless egregious. He abused his position as a 
physician beginning in 1992 or 1993 by taking samples of controlled 
substances from his medical office for his own personal use. When that 
was no longer effective, he began forging his medical partners' 
signatures, and thereby using their DEA registrations, to issue 
unauthorized prescriptions for his own personal use. There is no 
question that Respondent violated 21 U.S.C. 843(a)(2) and (a)(3). 
However, it is also undisputed that Respondent's illegal actions were 
caused by his addiction to controlled

[[Page 32274]]

substances for which he has received extensive treatment.
    As to factor three, there is some dispute as to whether Respondent 
has been convicted of controlled substance related offenses. Respondent 
pled guilty to two felony charges related to the illegal obtaining of 
controlled substances, and as a result received a four-year deferred 
sentence. Respondent argues that this deferred sentence may not be 
considered a conviction under Oklahoma state law, citing White v. 
State, 702 P.2d 1058, 1062 (Okla. Crim. App. 1985). However, DEA has 
consistently held that a deferred adjudication, following the entry of 
a guilty plea, is considered a ``conviction'' for purposes of the 
Controlled Substances Act. See Yu-To Hsu, M.D., 62 FR 12840 (1997), 
Harlan J. Borcherding, D.O., 60 FR 28796 (1995); Mukand Lal Arora, 
M.D., 60 FR 4447 (1995); Clinton D. Nutt, D.O., 55 FR 30992 (1990). 
Thus for purposes of this factor, Respondent has been convicted of two 
felony counts relating to controlled substances. However, the Deputy 
Administrator also recognizes that these convictions were a result of 
Respondent's addiction to controlled substances, and that he is in the 
midst of successful recovery efforts from this addition. As Judge 
Randall noted, ``[at]t the present time, the Respondent is halfway 
through the term of his deferred adjudication and has shown no signs of 
relapse.''
    As to factor five, during his addiction, Respondent lied to his 
colleagues and family about his drug abuse. The Deputy Administrator 
agrees with Judge Randall that ``[a]bsent rehabilitation, such behavior 
supports the Government's position that the Respondent could pose a 
threat to the public health and safety of the citizens of Oklahoma.''
    Judge Randall concluded that the Government made a prima facie case 
for the denial of Respondent's application for registration. However, 
she further concluded that it would not be in the public interest to 
deny the application. The Deputy Administrator agrees. Respondent has 
accepted responsibility for his prior actions and has shown remorse. He 
cooperated with law enforcement authorities from the moment he was 
questioned about the forged prescriptions. He is no longer affiliated 
with the medical practice that caused the stress which led to his 
addiction. He has taken affirmative steps toward rehabilitation and is 
being closely monitored by the Board, the OBN, the PRP, the treatment 
center, his family and his colleagues. As Judge Randall noted. ``the 
Respondent lives and works in a community dedicated to his recovery and 
personal growth. This external support system ensures to a high 
probability that the Respondent will remain free of narcotic and 
alcoholic substances.'' Of even greater significance to the Deputy 
Administrator than this external support system is Respondent's 
apparent commitment to continuing with his rehabilitative efforts and 
to living a drug-free life.
    Judge Randall recommended that Respondent be granted a DEA 
registration without restrictions since ``[t]he State of Oklahoma and 
the OBN have implemented substantial and aggressive monitoring 
procedures to ensure that the Respondent continues to comply with his 
licensing conditions and to ensure that any possible relapse is 
immediately detected.'' Judge Randall further recommended that should 
the deputy Administrator find that additional monitoring by DEA is 
necessary, Respondent should be required to file with DEA duplicate 
copies of the documents being filed with the State of Oklahoma.
    The Deputy Administrator agrees with Judge Randall that denial of 
Respondent's application is not warranted. However, the Deputy 
Administrator believes that some restrictions on Respondent's 
registration are necessary to protect the public health and safety in 
light of Respondent's fairly recent abuse of controlled substances, his 
forging of prescriptions and his felony convictions.
    Therefore, the Deputy Administrator concludes that Respondent's 
application for registration should granted subject to the following 
restrictions for three years from the date of issuance of the DEA 
Certificate of Registration:
    1. Respondent must maintain his contractual relationship with the 
Oklahoma Physicians Recovery Program and abide by its recommendations.
    2. Respondent shall continue to undergo random urinalysis at his 
own expense on at least a monthly basis regardless of whether he is 
released from his probation with the Oklahoma Board and the OBN. He 
shall forward copies of the results of these tests to the DEA Oklahoma 
City office.
    3. Respondent shall make copies of his prescriptions available to 
DEA personnel upon request for inspection and copying.
    4. Respondent shall notify the DEA Oklahoma City office within 30 
days of any change in his employment.
    5. Respondent shall consent to periodic inspections by DEA 
personnel based on a Notice of Inspection rather than an Administrative 
Inspection Warrant.
    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 
November 20, 1996 application for registration submitted by Jimmy 
Harold Conway, Jr., M.D., be, and it hereby is, granted subject to the 
above described restrictions. This order is effective upon the issuance 
of the DEA Certificate of Registration, but no later than July 16, 
1999.

    Dated: June 7, 1999.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 99-15189 Filed 6-15-99; 8:45 am]
BILLING CODE 4410-09-M