[Federal Register Volume 65, Number 24 (Friday, February 4, 2000)]
[Notices]
[Pages 5680-5682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2534]



[[Page 5680]]

-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 98-38]


Theodore Neujahr, D.V.M.; Continuation of Registration

    On July 16, 1998, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Theodore A. Neujahr, D.V.M. (Respondent) of 
Eatonville, Washington, notifying him of an opportunity to show cause 
as to why DEA should not revoke his DEA Certificate of Registration, 
AN1015331, pursuant to 21 U.S.C. 824(a)(4), and deny any pending 
applications for renewal or modification of such registration as a 
practitioner under 21 U.S.C. 823(f), for reason that his registration 
is inconsistent with the public interest.
    By letter dated July 28, 1998, Respondent filed a request for a 
hearing, and following prehearing procedures, a hearing was held in 
Tacoma, Washington on March 3, 1999, 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 July 19, 1999, Judge Bittner issued her Opinion and 
Recommended Ruling, Findings of Fact, Conclusions of Law and Decision 
(Opinion), recommending that Respondent's registration be continued and 
any pending applications be granted. Neither party filed exceptions to 
Judge Bittner's Opinion, and on August 19, 1999, the record was 
transmitted 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. This 
final order replaces and supersedes the final order issued on December 
14, 1999, and published at 64 FR 72362 (December 27, 1999). The Deputy 
Administrator adopts, with one noted exception, the Opinion 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 received his degree 
in veterinary medicine in 1979. In 1981, Respondent started his own 
practice in Eatonville, Washington, where he continues to practice.
    Respondent testified that he developed a chemical dependency 
problem in 1988 or 1989 while going through a divorce. He further 
testified that ``I found that the pain relievers that I had purchased 
for animals helped to relieve some of my pain, and I found that the 
amphetamines made me feel better too.'' According to Respondent, he 
took approximately three Dexedrine 5 mg. tablets per week and two or 
three Percodan tablets per week for a period of more than a year. Both 
of these drugs are Schedule II controlled substances.
    Respondent testified that he became concerned about his drug use 
and contacted a treatment program. On February 23, 1990, Respondent and 
his receptionist, who was also a close personal friend, met with the 
doctor in charge of the program. It was agreed that the doctor and 
Respondent's receptionist would monitor Respondent by requesting that 
Respondent submit to a urinalysis if they suspected that he had taken a 
mood altering substance.
    In April 1990, a DEA investigator was reviewing DEA order forms 
used for purchasing Schedule II controlled substances and noticed that 
Respondent had purchased Dexedrine, which is not commonly used in 
veterinary practice, and Percodan, which is occasionally used in 
veterinary practice. On April 6, 1990, the DEA investigator and an 
investigator with the Washington Board of Pharmacy went to Respondent's 
office where they discovered that Respondent kept controlled substances 
in an unlocked drawer in his office and at his residence, which is an 
unregistered location. Initially, Respondent told the investigators 
that he was going to use the Dexedrine to treat obese dogs, but 
ultimately admitted that he had taken the Dexedrine himself. Respondent 
also said at some point that he had used the Percodan to treat dogs. 
However, the record does not indicate whether he admitted to the 
investigators during this meeting that he had taken the Percodan 
himself.
    At the conclusion of this meeting, the DEA investigator gave 
Respondent the opportunity to voluntarily surrender his Schedule II and 
IIN privileges. Respondent signed the voluntary surrender form and 
checked the box that indicated that he was surrendering his DEA 
registration in Schedules II and IIN ``[i]n view of my alleged failure 
to comply with the Federal requirements pertaining to controlled 
substances, and as an indication of my good faith in desiring to remedy 
any incorrect or unlawful practices on my part.''
    Respondent testified that at the time that he surrendered his 
Schedule II privileges, he was abstaining from controlled substances 
and alcohol, but that he felt threatened by the two investigators and 
signed the voluntary surrender form out of fear. Judge Bittner credited 
Respondent's testimony on this point and found that Respondent 
perceived that he was being threatened.
    On May 23, 1990, Respondent began an outpatient treatment program 
which he completed on January 16, 1991. At the time Respondent entered 
the program, he had been drug-free for several months. This program 
consisted of random urinalysis which were all negative, and counseling 
sessions.
    On January 7, 1991, the Washington State Veterinary Board of 
Governors (Veterinary Board) issued a Statement of Charges against 
Respondent seeking suspension or revocation of his license to practice 
veterinary medicine on grounds that he had possessed Schedule II 
controlled substances for other than legitimate or therapeutic purposes 
by possessing them for his own use. It is unclear from the record, but 
it appears that at some point Respondent entered into a stipulation 
with the Veterinary Board admitting that he possessed Schedule II 
controlled substances including, but not limited to, Dexedrine, 
Percodan, and oxycodone with aspirin for other than legitimate or 
therapeutic purposes. The Veterinary Board suspended Respondent's 
license to practice veterinary medicine for at least 24 months, but 
stayed the suspension subject to various terms of probation. 
Specifically, the Veterinary Board required Respondent to submit 
quarterly progress reports on his methods of handling stress, his use 
of and handling of drugs, his mental and physical health, his methods 
of dealing with legal charges, professional responsibilities and 
activities and personal activities relating to his practice; to attend 
at least two Narcotics Anonymous or Alcoholics Anonymous (12-step) 
meetings per week; to submit to random and observed biological fluid 
testing at least once per month; not to possess a Schedule II or IIN 
registration for two years; and not to submit a request for 
reinstatement of his license for at least two years.
    On April 27, 1992, the Veterinary Board accepted a stipulation 
between Respondent and the State of Washington Department of Health 
which provided, among other things, that Respondent would sign a 
contract with the Washington Health Professional Services (WHPS) 
program and comply with the terms and conditions of that contract, and 
that if Respondent failed

[[Page 5681]]

to comply with that contract his license would be subject to 
disciplinary action by the Veterinary Board.
    The WHPS is a division of the Washington Department of Health and 
is a monitoring program that provides an alternative to license 
discipline for various health care professions. The WHPS referred 
Respondent to a chemical dependency and family therapist who reported 
to the WHPS monthly on Respondent's progress. The therapist testified 
that he did not recall making any adverse reports regarding Respondent; 
that he felt that Respondent ``was doing all of the things that a 
person who is successful in recovery does;'' that he did not violate 
any of the rules of the program; that he was convinced that Respondent 
was continuing his recovery and was stable in his lifestyle; and that 
he thought it would be in the public interest for Respondent to have a 
DEA registration.
    Respondent's case manager with WHPS from December 1993 until 
November 1994 testified that Respondent complied with his contract with 
the WHPS; that he consistently attended more 12-step meetings than 
required; and that all of his urinalyses were negative.
    On October 5, 1992, Respondent executed a renewal application for 
his DEA registration, answering ``No'' to the question, hereinafter 
referred to as the liability question, which asks, ``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 testified while he knew that he had 
surrendered a portion of his DEA registration in 1990, he did not know 
how to answer the liability question. According to Respondent, he asked 
the instructors at continuing education courses that, ``if you 
voluntarily give up a portion of your DEA registration is that for 
cause and does that mean that you have to answer that question `yes' 
and they told me that it was not true if you voluntarily give it up.'' 
Respondent also testified that he relied upon statements of the 
investigators that his ``license'' would not be affected if he signed a 
confession and if he did whatever the treatment program told him to do; 
that he tended to confuse his license to practice veterinary medicine 
that his DEA registration; and that the investigators also told him 
that he could reapply for registration to handle Schedule II and IIN 
substances later.
    Respondent testified that he was ``quite nervous'' when he sent off 
his application but that when he received his updated Certificate of 
Registration, he concluded that he had answered the question properly. 
On September 30, 1995, Respondent executed another renewal application 
for his DEA registration and answered ``No'' to essentially the same 
liability question. Respondent testified that in executing this 
application, he did not give the question ``any thought at all'' 
because he knew how he had answered the similar question on the 1992 
application and it had been granted with no difficulty. In 1995, 
Respondent sought registration in Schedules II, IIN, III, IIIN, IV and 
V.
    On November 3, 1995, another DEA investigator telephoned Respondent 
to verify information on his 1995 renewal application. The investigator 
testified that she read the liability question from the 1995 
application to Respondent and that Respondent said that the answer to 
the question was ``No.'' According to the investigator, she then asked 
Respondent, ``[Y]ou've never had any action taken?'' and Respondent 
again stated ``No.''
    Respondent testified that the investigator caught him off guard and 
he was convinced that he had answered the liability question on the 
1992 and 1995 renewal applications correctly. Respondent further 
testified that after he hung up with the investigator he realized that 
he had made a mistake, but he did not know how to contact the 
investigator. Respondent also testified that if he remains registered 
with DEA, he would find someone to help him answer the liability 
questions properly on his next renewal application.
    At the hearing, Respondent testified that he has not had any 
relapses since he stopped using controlled substances in 1990, and that 
he has a good support network in place. Respondent's case manager with 
the WHPS testified that completing an adequate number of years in a 
monitored recovery program greatly decreases the likelihood of a 
relapse, and that she was not aware of any reason that Respondent 
should not be authorized to handle controlled substances.
    Pursuant to 21 U.S.C. 824(a)(1), the Deputy Administrator may 
revoke a DEA Certificate of Registration upon a finding that 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 61145 
(1997); Herbert J. Robinson, M.D., 59 FR 6304 (1994).
    It is undisputed that Respondent answered ``No'' to the liability 
question on his 1992 and 1995 renewal applications despite the fact 
that his state veterinary license was placed on probation and he had 
surrendered his Schedule II and IIN privileges. Respondent testified 
that he did not know how to answer the question, since he did not think 
that he had surrendered his Schedule II privileges ``for cause.'' 
However, there is no indication that Respondent even attempted to 
contact the DEA investigator who obtained the surrender from Respondent 
for guidance. Yet, even if one were to accept Respondent's explanation, 
it would not explain why Respondent did not disclose that his state 
veterinary license was placed on probation.
    The Deputy Administrator finds that Respondent knew or should have 
known that his responses were false. Answers to the liability question 
are always material because DEA relies on the answers to these 
questions to determine whether it is necessary to conduct an 
investigation prior to granting an application. See Bobby Watts, M.D., 
58 FR 46995 (1993); Ezzat E. Majd Pour, M.D., 55 FR 47547 (1990). 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.'' Martha Hernandez, M.D., 62 FR 61147. Therefore, grounds 
exist to revoke Respondent's DEA Certificate of Registration pursuant 
to 21 U.S.C. 824(a)(1).
    Also, 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 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 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.

[[Page 5682]]

    (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 16422 (1989).
    As to factor one, it is undisputed that Respondent's state 
veterinary license was suspended for 24 months, with the suspension 
stayed and his license placed on probation subject to various 
conditions. It is also undisputed that Respondent entered into a 
Stipulation with the state whereby he agreed to enter into a contract 
with the WHPS. However, his state license is now unrestricted and he is 
authorized to handle controlled substances in the State of Washington. 
But as Judge Bittner noted, ``inasmuch as State authorization is a 
necessary but not sufficient condition for a DEA registration, * * * 
this factor is not determinative.''
    Regarding factor two, it is undisputed that Respondent used his DEA 
Certificate of Registration and official order forms to obtain Schedule 
II controlled substances which he then abused himself for about a year 
in 1988 or 1989. However, this behavior was a result of Respondent's 
chemical dependency for which he has received treatment. He has not 
abused controlled substances since 1990, and he has a good support 
network in place to help prevent any relapse. There is no other 
evidence that Respondent has improperly dispensed controlled 
substances.
    As to factor three, there is no evidence that Respondent has ever 
been convicted under State or Federal laws relating to the manufacture, 
distribution, or dispensing of controlled substances.
    Regarding factor four, there is evidence in the record that 
Respondent has failed to comply with applicable laws relating to 
controlled substances. By furnishing false information on his 
applications for DEA registration, Respondent violated 21 U.S.C. 
843(a)(4)(A). By using DEA order forms to obtain controlled substances 
for his own use, Respondent violated 21 U.S.C. 828(e), and by 
dispensing controlled substances for other than legitimate medical 
purposes, Respondent violated 21 U.S.C. 841(a)(1). Further, Respondent 
violated 21 CFR 1301.75(b) by failing to maintain adequate physical 
security of controlled substances. It also appears from evidence in the 
record that Respondent violated various provisions of Washington state 
law.
    As to factor five, other than Respondent's material falsification 
of his applications for registration, there is no evidence that 
Respondent has engaged in any other conduct that may threaten the 
public health and safety.
    The Deputy Administrator agrees with Judge Bittner's conclusion 
that the Government has made a prima facie case that Respondent's 
continued registration would be inconsistent with the public interest. 
Respondent used his privileges as a DEA registrant to obtain controlled 
substances to support his chemical dependency, and he materially 
falsified his 1992 and 1995 renewal applications.
    However, he has undergone treatment for his chemical dependency and 
has not abused controlled substances since 1990. Further, evidence in 
the record suggests that there is little likelihood of Respondent 
relapsing. The Deputy Administrator finds it noteworthy that Respondent 
first sought treatment for his chemical dependency on his own and not 
at the direction of another.
    Judge Bittner also found it significant that ``there is no evidence 
that [Respondent] improperly handled controlled substances in any way 
since 1992, when he regained a DEA registration.'' However, the Deputy 
Administrator can find no evidence in the record that Respondent ever 
completely lost his DEA privileges. But it appears from the evidence in 
the record that Respondent has had a DEA registration since 1981. 
Therefore, the Deputy Administrator finds it significant that there is 
no evidence that Respondent has improperly handled controlled 
substances in any way since 1990.
    Regarding the material falsification of Respondent's renewal 
applications, the Deputy Administrator agrees with Judge Bittner who 
noted that ``Respondent acknowledged that he falsified his 
applications, he apparently regretted that conduct, and I believe that 
he will not repeat it.''
    Judge Bittner concluded ``that the evidence that Respondent has 
remained drug free for more than eight years prior to the hearing and 
is remorseful about his prior behavior weighs in favor of continuing 
his registration.'' As a result, Judge Bittner recommended that 
Respondent's DEA registration be continued. The Deputy Administrator 
agrees.
    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 AN1015331, previously issued to Theodore 
Neujahr, D.V.M., be, and it hereby is, continued and renewed in 
Schedules II, IIN, IIIN, IV and V. This final order is the final agency 
action for appellant purposes pursuant to 21 U.S.C. 877.

    Dated: January 18, 2000.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 00-2534 Filed 2-3-00; 8:45 am]
BILLING CODE 4410-09-M