[Federal Register Volume 64, Number 199 (Friday, October 15, 1999)]
[Notices]
[Pages 55962-55965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27004]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 97-22]


James C. LaJevic, D.M.D.; Revocation of Registration

    On June 5, 1997, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to James C. LaJevic, D.M.D. (Respondent) of 
Pittsburgh, Pennsylvania, notifying him of an opportunity to show cause 
as to why DEA should not revoke his DEA Certificate of Registration, 
BL4788064, pursuant to 21 U.S.C. 824(a)(1), and deny any pending 
applications for renewal of such registration pursuant to 21 U.S.C. 
823(f). The Order to Show Cause alleged that Respondent materially 
falsified two applications for registration with DEA.
    Respondent requested a hearing on the issues raised by the Order to 
Show Cause, and the matter was docketed before Administrative Law Judge 
Mary Ellen Bittner. During prehearing procedures, the issue was framed 
to include not only the material falsification of applications as a 
basis for the revocation of Respondent's DEA registration, but also 
whether Respondent's continued registration would be inconsistent with 
the public interest pursuant to 21 U.S.C. 823(f) and 824(a)(4). 
Following prehearing procedures, a hearing was held in Pittsburgh, 
Pennsylvania on March 10, 1998, and in Arlington, Virginia on August 
18, 1998. At the hearing, both parties called witnesses to testify and 
the Government introduced documentary evidence. After the hearing, both 
parties submitted proposed findings of fact, conclusions of law and 
argument.
    On May 6, 1999, Judge Bittner issued her Opinion and Recommended 
Ruling, Findings of Fact, Conclusions of Law and Decision, recommending 
that Respondent's DEA Certificate of Registration be revoked, and any 
pending applications be denied. On June 18, 1999, Respondent filed 
exceptions to Judge Bittner's opinion and recommended decision, and on 
July 9, 1999, the Government filed its response to Respondent's 
exceptions. Thereafter, on July 15, 1999, 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, in full, the Opinion and Recommended 
Ruling, Findings of Fact, Conclusions of Law and Decision 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 Deputy Administrator finds that Respondent has practiced 
dentistry in Pittsburgh, Pennsylvania since 1976. While Respondent now 
lives in Boulder City, Nevada, he still practices dentistry in 
Pittsburgh approximately seven to ten days per month.
    On September 10, 1990, the Commonwealth of Pennsylvania, Department 
of State, Bureau of Professional and Occupational Affairs, State Board 
of Dentistry (Dental Board) issued an Order suspending Respondent's 
state dental license for a period of three months commencing on October 
12, 1990. The Dental Board's action was based on Respondent's 1988 
conviction in the United States District

[[Page 55963]]

Court for the Western District of Pennsylvania for income tax evasion.
    On April 1, 1991, Respondent submitted an application for the 
renewal of DEA Certificate of Registration AL6222296, which was 
initially issued to Respondent in November 1974. Respondent answered 
``No'' to the question on the application, hereinafter referred to as 
the liability question, which asked, ``Has the applicant ever been 
convicted of a crime in connection with controlled substances under 
State or Federal law, or ever surrendered or had a Federal controlled 
substance registration revoked, suspended, restricted or denied, or 
ever had a State professional license or controlled substance 
registration revoked, suspended, denied, restricted or placed on 
probation?'' Respondent's registration was renewed.
    Effective March 9, 1994, following a formal hearing, the Dental 
Board issued an Adjudication and Order finding, among other things, 
that Respondent (1) failed on two occasions to responsibly administer 
the controlled substance Halcion, (2) failed to keep thorough and 
adequate records of the administration of controlled substances in his 
office, (3) failed to take into account the medical condition of his 
patients when performing dental procedures, (4) failed to provide 
patients with adequate information regarding treatment and controlled 
substances, and (5) violated the standards of professional conduct by 
self-prescribing Hydrodiuril, a hypertensive drug, for twelve years. 
The Dental Board suspended Respondent's dental license for two years 
beginning on April 8, 1994, but provided that one year of the 
suspension was to be active and the remaining year of the suspension 
was stayed and Respondent was paced on probation. In addition, 
Respondent was fined $1,000.00.
    Upon learning of Respondent's suspension, a DEA investigator sent 
Respondent a letter dated May 13, 1994, providing Respondent with the 
opportunity to voluntarily surrender his DEA Certificate of 
Registration since he was not currently authorized to handle controlled 
substances in Pennsylvania. DEA did not receive a response to this 
letter, but the investigator did not pursue further administrative 
action against Respondent's registration, since the registration 
expired on March 31, 1994, with no renewal application being submitted.
    In February 1996, an agent with the Pennsylvania Office of the 
Attorney General, Bureau of Narcotics Investigation (BNI), interviewed 
several local pharmacists to determine whether Respondent was issuing 
controlled substance prescriptions using his expired DEA registration. 
One pharmacist told the BNI agent that Respondent frequented his 
pharmacy and had telephoned prescriptions for his personal use for 
Valium, and for a cough syrup containing Hycodan, both controlled 
substances. The pharmacist indicated that when he questioned Respondent 
about the Valium prescription, Respondent indicated that it was for 
office use only, and the pharmacist noted ``office'' on the 
prescription. Respondent testified at the hearing that he never told 
anyone that any presciption was for ``office use,'' and the Hycodan 
cough syrup was something that he personally used for a cough.
    On March 14, 1996, a search warrant was executed at Respondent's 
office by state agents. During execution of the warrant, Respondent's 
DEA Certificate of Registration AL6222296 which expired on March 31, 
1994, was found in Respondent's desk drawer. Respondent told the BNI 
agent that he knew that his previous DEA registration had expired since 
several pharmacists had informed him of this in February 1996, and that 
he had recently reapplied for a new Certificate of Registration. 
Respondent offered no explanation as to why he had failed to renew his 
previous registration, but he indicated that he continued writing 
controlled substance prescriptions because his patients needed the 
medication for pain. Respondent also told the BNI agent that he had 
assumed that his DEA registration was automatically suspended when his 
state dental license was suspended and believed that when his state 
dental license was reinstated, so was his DEA registration. When asked 
about the prescription for personal and office use, Respondent said 
that he was not familiar with that pharmacy and never wrote 
prescriptions for personal use.
    During the course of the state investigation, the BNI agent found 
60 controlled substance prescriptions issued or authorized by 
Respondent using his expired DEA registration AL6222296.
    After learning from several pharmacists that his previous DEA 
registration had expired, Respondent submitted an application for a new 
Certificate of Registration. In early March 1996, the Registration Unit 
at DEA Headquarters received an application for registration from 
Respondent that was signed but undated. Again Respondent indicated that 
he had never had his State professional license or controlled 
substances registration revoked, suspended, denied, restricted, or 
placed on probation. In reviewing this application, a registration 
assistant performed a routine computer database background check but 
misspelled Respondent's name and as a result no adverse action was 
noted. As a result, DEA issued Respondent DEA Certificate of 
Registration BL4788064.
    The local DEA investigator was surprised when he learned that 
Respondent had been granted a registration because he had intended to 
request an Order to Show Cause seeking to deny any application 
submitted by Respondent. On August 30, 1996, DEA sent Respondent a 
letter providing him with an opportunity to surrender his new DEA 
Certificate of Registration. On September 3, 1996, Respondent called 
the local DEA office to discuss the August 30, 1996 letter. Respondent 
was told that DEA planned to take action against his new registration 
based upon the falsification of his March 1996 application for 
registration. The DEA investigator testified that in response, 
Respondent explained that he had mistakenly answered ``No'' to the 
liability question, believing that the question related only to the 
suspension or probation of his DEA registration, and not his State 
licensure. Respondent declined to surrender his registration, which 
resulted in the Order to Show Cause that initiated these proceedings.
    At the hearing in this matter, Respondent testified that he wrote 
controlled substance prescriptions without a valid DEA registration 
from March 1995 until February 1996, at which point he was told by a 
pharmacist that his previous DEA registration was no longer valid. 
Respondent stated that he had practiced dentistry for over 25 years and 
had never before forgotten to renew his DEA registration. According to 
Respondent when his dental license was suspended in 1994, state 
personnel came to his office and removed the plaque with his dental 
license which had his DEA registration taped to it. The plaque was 
returned at the end of the year suspension and he resumed practicing.
    Respondent also testified that he did not intentionally falsify his 
DEA applications. He asserted that he had nothing to gain by falsifying 
the applications and was confused by the liability question. According 
to Respondent, he simply misread the question and believed that it only 
pertained to suspensions based upon controlled substance violations.
    The Deputy Administrator, in his discretion, may revoke a DEA 
Certificate of Registration and deny any applications if the registrant 
``has

[[Page 55964]]

materially falsified any application filed pursuant to or required by 
this subchapter * * *.'' 21 U.S.C. 824(a)(1). In addition, the Deputy 
Administrator may also revoke a DEA Certificate of Registration and 
deny any pending applications for registration ``if he determines that 
the issuance of such registration would be inconsistent with the public 
interest.'' 21 U.S.C. 824(a)(4).
    In determining the public interest, the Deputy Administrator is to 
consider the following factors set forth in 21 U.S.C. 823(f):
    (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).
    First, pursuant to 21 U.S.C. 824(a)(1), a registration may be 
revoked if the registrant has materially falsified an application for 
registration. DEA has previously held that in finding that there has 
been a material falsification of an application, it must be determined 
that the applicant knew or should have known that the response given to 
the liability question was false. See, Martha Hernandez, M.D., 62 FR 
61,145 (1997), Herbert J. Robinson, M.D., 59 FR 6304 (1994).
    It is undisputed that Respondent answered ``No'' to the liability 
question on both his 1991 renewal application and his 1996 application 
which asked whether his state medical license had been suspended or 
placed on probation. Respondent admitted that he knew that his state 
medical license had been suspended in 1990 and had been suspended and 
then placed on probation in 1994, but he testified that he did know 
that his answers to the liability questions were false because the 
questions were confusing and he thought that the questions only dealt 
with disciplinary actions relating to the improper handling of 
controlled substances.
    The Deputy Administrator concurs with Judge Bittner's conclusion 
that Respondent materially falsified his applications of registration. 
DEA has previously held that it is the registrant's ``responsibility to 
carefully read the question and to honestly answer all parts of the 
question.'' See Samuel Arnold, D.D.S., 63 FR 8687 (1998); Martha 
Hernandez, M.D., 62 FR 61,145 (1997). Therefore, grounds exist to 
revoke Respondent's registration pursuant to 21 U.S.C. 824(a)(1).
    Respondent has consistently argued that he did not intentionally 
answer the liability questions incorrectly. The Deputy Administrator 
notes that if evidence existed that indicated that Respondent 
intentionally falsified his applications, criminal charges could have 
been brought against Respondent. But as has been previously noted, 
negligence and carelessness in completing an application for 
registration could be a sufficient reason to revoke a registration. See 
Id. Clearly, Respondent was negligent and careless in completing his 
applications, and Judge Bittner did not find Respondent's explanations 
persuasive.
    In his exceptions to Judge Bittner's opinion, Respondent argued for 
the first time that he misread the question believing that it asked 
whether there had ever been any disciplinary action against ``his State 
professional license for controlled substance registration,'' rather 
than ``his State professional license or controlled substance 
registration.'' In its response to Respondent's exceptions, the 
Government argued that Respondent's ``disingenuous belated argument 
reinforces (Judge Bittner's) conclusion that Respondent was not 
candid.'' The Deputy Administrator agrees with the Government. 
Respondent seems to be grasping for any explanation as to why he 
falsified his applications for registration. Had this truly been the 
reason for Respondent's answer to the liability questions, Respondent 
should have raised this at the hearing rather than for the first time 
in his exceptions.
    Next, the Deputy Administrator must consider whether Respondent's 
continued registration would be inconsistent with the public interest. 
As to factor one, it is undisputed that Respondent's dental license was 
suspended by the state Dental Board in 1990, as suspended and then 
placed on probation in 1994. The Deputy Administrator notes that some 
of the reasons for the second suspension related to Respondent's 
handling of controlled substances in his dental practice. But it is 
also undisputed that Respondent has had an unrestricted license to 
handle controlled substances in Pennsylvania since 1996. However, as 
Judge Bittner stated, ``inasmuch as State licensure is a necessary but 
not sufficient condition for a DEA registration, * * * this factor is 
not determinative.''
    As to factors two and four, Respondent's experience in handling 
controlled substances and his compliance with applicable laws relating 
to controlled substances, the Deputy Administrator has considered these 
factors together. There is no question that Respondent has practiced 
dentistry for 25 years. But, it is also undisputed that between April 
1, 1994 and March 15, 1996, Respondent issued 60 controlled substance 
prescriptions using an expired DEA registration, clearly a violation of 
21 U.S.C. 843(a)(2). Respondent attempted to justify this conduct by 
stating that he did not realize that his previous DEA registration had 
expired until he was so advised by a local pharmacist. But, the Deputy 
Administrator agrees with Judge Bittner that, ``[t]here is simply no 
excuse for Respondent's failure to be aware of the status of his DEA 
registration.'' Respondent knew that his DEA registration needed to be 
renewed on a regular basis since he had consistently renewed his 
registration in the past. His failure to do so on this occasion is 
another example of his negligent and careless behavior. The record also 
supports a conclusion that Respondent wrote a prescription for diazepam 
for office use in violation of 21 CFR 1306.04(b).
    Regarding factor three, there is no evidence that Respondent has 
ever been convicted under State or Federal laws relating to controlled 
substances.
    As to factor five, the Deputy Administrator finds that Respondent's 
inconsistent explanations for the falsification of his 1991 and 1996 
applications for registration demonstrate Respondent's lack of candor.
    Judge Bittner concluded that Respondent's DEA registration should 
be revoked based upon the material falsification of his applications 
and that his continued registration would be inconsistent with the 
public interest. In his exceptions to Judge Bittner's opinion, 
Respondent argued that revocation would be too harsh a sanction in 
light of his ``administrative errors.''
    The Deputy Administrator agrees with Judge Bittner. Revocation is 
warranted in this case. Not only did Respondent materially falsify two 
applications for registration, but he also authorized 60 controlled 
substance prescriptions using an expired DEA registration. At the very

[[Page 55965]]

least, this lack of attention to detail demonstrates Respondent's 
negligence and carelessness in his compliance with controlled substance 
laws and regulations. Therefore, the Deputy Administrator finds that 
Respondent's DEA Certificate of Registration must be revoked based upon 
the material falsification of his applications for registration and 
based upon a finding that Respondent's continued registration would be 
inconsistent with the public interest.
    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 DEA 
Certificate of Registration BL4788064, issued to James C. LaJevic, 
D.M.D., be, and it hereby is, revoked. The Deputy Administrator further 
orders that any pending applications for registration, be, and they 
hereby are, denied. This order is effective November 15, 1999.
    Dated: October 7, 1999.

Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 99-27004 Filed 10-14-99; 8:45 am]
BILLING CODE 4410-09-M