[Federal Register Volume 65, Number 93 (Friday, May 12, 2000)]
[Notices]
[Pages 30616-30619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11890]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 98-34]


Edson W. Redard, M.D., Continuation of Registration With 
Restrictions

    On June 12, 1998, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA) issued an 
Order to Show Cause to Edson W. Redard, M.D. (Respondent) of 
Sacramento, California, notifying him of an opportunity to show cause 
as to why DEA should not revoke his DEA Certificate of Registration 
BR1670012 and deny any pending applications for renewal of such 
registration as a practitioner pursuant to 21 U.S.C. 823(f), 824(a)(2) 
and (a)(4).
    By letter dated June 26, 1998, Respondent, through counsel, filed a 
request for a hearing, and following prehearing procedures, a hearing 
was held in Sacramento, California on April 27 and 28, 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 December 20, 1999, Judge 
Bittner issued her Opinion and Recommended Ruling, Findings of Fact, 
Conclusions of Law and Decision, recommending that Respondent's 
registration not be revoked subject to two restrictions. Neither party 
filed exceptions to Judge Bittner's Opinion and Recommended Ruling, 
Findings of Fact, Conclusions of Law and Decision, and on January 24, 
2000, 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. 
The Deputy Administrator adopts the Opinion and Recommended Ruling, 
Findings of Fact, Conclusions of Law and Decision of the Administrative 
Law Judge, but includes additional restrictions on Respondent's 
continued registration. 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 1987, and in 1991 he began working as a family 
practitioner at a large multi-specialty clinic in Sacramento, 
California.
    On August 27, 1997, a pharmacist called the California Department 
of Justice, Bureau of Narcotic Enforcement (BNE) and told an 
investigator that on May 20, 1997, Respondent had presented a 
prescription in the name of Donald Gram, for Vicodin ES, a Schedule III 
controlled substance. At that time, Respondent filled out a patient 
information form using the name Donald Gram. The pharmacist had 
previously met Respondent when she worked at another pharmacy, so she 
knew that this was not Respondent's name. Further investigation 
revealed that the address given to the pharmacist on the patient 
information form was Respondent's address.
    The pharmacist told the investigator that Respondent had presented 
another prescription for Vicodin on July 25, 1997, which another 
pharmacist filled. The pharmacist further told the investigator that a 
pharmacy technician advised her that Respondent had presented 
controlled substance prescriptions in the name Carol Jordan.

[[Page 30617]]

    Subsequently, the investigator obtained prescriptions issued to 
Carol Jordan on Respondent's prescription forms from three different 
pharmacies. These prescriptions accounted for 1,510 dosage units of 
Vicodin ES for the period February 27, 1995 to August 26, 1997.
    Thereafter on October 20, 1997, the pharmacist again contacted the 
investigator and advised him that Respondent had just presented two 
prescriptions, one for 80 dosage units of Vicodin ES and the other for 
a non-controlled substance, in the name of Donald Gram. The 
investigator also learned that on October 17, 1997, one of the other 
pharmacies had filled a prescription issued to Carol Jordan on 
Respondent's prescription form for 80 dosage units of Vicodin ES. A 
check of Department of Motor Vehicle records revealed no matches for 
the purported names and dates of birth of Donald Gram or Carol Jordan.
    On November 24, 1997, a search warrant for Respondent's office, 
residence and car was executed. In Respondent's car, the investigators 
found prescription receipts and numerous empty prescription bottles in 
the names of Donald Gram and Carol Jordan. In the master bedroom of 
Respondent's residence, the investigators found empty prescription 
bottles and physician samples.
    During the search an investigator with the Medical Board of 
California (Medical Board) interviewed a physician assistant whom 
Respondent supervised. The physician assistant admitted to calling in 
about four prescriptions for Vicodin for Respondent during the previous 
year using another physician's name.
    Respondent cooperated with the investigators during the search, and 
admitted that he was addicted to Vicodin. Respondent told the Medical 
Board investigator that he was originally prescribed Vicodin for two or 
three months for a back problem. At some point he stopped taking the 
drug for approximately six months but resumed taking it sometime in 
1995. Respondent told the Medical Board investigator that initially he 
took two or three tablets per day, but that as of the date of the 
search he was taking eight to twelve tablets per day. Respondent also 
admitted to taking Ionamin, Ambien, Doral, Brontex, and Xanax, all 
controlled substances. Further, Respondent admitted that he had issued 
prescriptions in the fictitious names Donald Gram and Carol Jordan; 
that he asked the physician assistant to call in prescriptions for him; 
and that he know that when the physician assistant called in those 
prescriptions the physician assistant indicated that they were 
authorized by another physician.
    Following the execution of the search warrant, Respondent was 
arrested and charged with obtaining a controlled substance by fraud, 
prescribing for a non-patient, and possession of a controlled 
substance.
    After Respondent's arrest, the Medical Board investigator continued 
her investigation of Respondent and discovered several additional 
prescriptions written prior to Respondent's arrest in the name of 
Donald Gram or Carol Jordan for a total of 720 dosage units of Vicodin 
or its generic equivalent. In addition the investigator found four 
prescriptions, each for 50 dosage units of Vicodin ES, that were called 
into a local pharmacy between July 23, 1996 and October 30, 1997. Three 
of these prescriptions were called in by the physician assistant and 
one was called in by a nurse practitioner at the clinic where 
Respondent was employed. All of these prescriptions indicated that they 
were authorized by a physician other than Respondent. The Medical Board 
investigator interviewed the physicians who allegedly authorized these 
prescriptions and they indicated that they had not authorized the 
prescriptions and were unaware that their names had been used.
    On December 1, 1997, Respondent was arraigned in the Sacramento 
Superior/Municipal Court on three felony counts of obtaining and 
attempting to obtain hydrocodone by fraud. On March 9, 1998, Respondent 
pled nolo contendere to one count and the court ordered that he be 
diverted from further proceedings for an 18-month period. On March 18, 
1998, the Sacramento County Probation Department ordered Respondent to 
obtain counseling from the Mexican-American Alcohol Program. Respondent 
testified that he successfully completed this program. On April 12, 
1999, the court entered an order terminating Respondent's diversion, 
and ultimately dismissed the criminal proceedings.
    On December 23, 1997, an interim suspension of Respondent's license 
to practice medicine was issued. Thereafter, on January 9, 1998, the 
Medical Board filed an Accusation against Respondent alleging that 
Respondent had written prescriptions for Vicodin for fictitious 
persons, asked a physician assistant to call in prescriptions for 
Vicodin purportedly on the authorization of another physician, admitted 
abusing Vicodin and other controlled substances, and tested positive 
for hydrocodone on November 24, 1997.
    Effective March 19, 1998, Respondent and the Medical Board entered 
into an Agreement in Lieu of Discipline wherein Respondent agreed to 
enter and complete the Medical Board's Diversion Program and the 
Medical Board agreed to withdraw the Accusation upon Respondent's 
successful completion of that program. Respondent's authority to handle 
controlled substances was not limited.
    On April 9, 1998, the Medical Board issued a Modification of 
Interim Suspension Order, permitting Respondent to return to the 
practice of medicine on condition that he be monitored by the Diversion 
Program, meet with the Diversion Evaluation Committee, and sign a 
Diversion Agreement after that meeting. In May 1998, Respondent 
formally entered the Medical Board's Diversion Program and on June 24, 
1998, the Medical Board terminated the interim suspension of 
Respondent's medical license.
    At the hearing in this matter, Respondent testified that he injured 
his back in 1991, and that after his physician stopped issuing him 
prescriptions for Vicodin, he took samples of the drug from his office. 
He also admitted that although Vicodin was his drug of choice, he also 
took samples of other drugs to avoid the symptoms of withdrawal. 
According to Respondent, his drug abuse intensified in 1995 during the 
breakup of his marriage. He became concerned that he was taking too 
many samples from his office, so he began issuing prescriptions using 
the fictitious names of Donald Gram and Carol Jordan. Respondent 
testified that he was relieved when he was arrested.
    According to Respondent, upon his arrest he contacted that Medical 
Board's Diversion Program and began attending diversion group meetings. 
However, Respondent was concerned that it could take several months to 
be formally admitted to the Diversion Program, so on December 4, 1997, 
he voluntarily entered a hospital in Oregon that offered a treatment 
program for addicted physicians. Respondent was an inpatient at the 
hospital until March 13, 1998.
    While Respondent was in treatment, the medical director of the 
clinic where he was employed sent Respondent a letter advising him that 
the clinic intended to terminate his employment, but because he was 
participating in a professional assistance program, the clinic would 
indefinitely suspend his termination if he entered into a Last Chance 
Agreement with the clinic. Respondent agreed to the terms of this Last 
Chance Agreement which requires Respondent, among other things, to (1)

[[Page 30618]]

Submit to a minimum of two random urine tests each month; (2) notify 
the medical director in writing of any prescriptions he has filled at 
any pharmacy; (3) abstain from consuming any controlled or mood-
altering substances; (4) provide a certificate from both the court-
ordered and Medical Board diversion programs stating that he has begun 
and, when applicable, completed a treatment program; and (5) 
participate in the diversion programs' recommended aftercare program. 
Respondent also agreed that he would not order or accept any controlled 
substance samples and that the agreement would be in effect for four 
years from February 26, 1998. There was testimony at the hearing that 
Respondent has complied with this Last Chance Agreement.
    The Associate Medical Director for Quality Management at the clinic 
where Respondent is employed testified that the Credentialing Committee 
reviewed approximately 50 randomly selected records of patients that 
Respondent treated in the three months prior to his arrest, between 50 
and 100 controlled substance prescriptions issued by Respondent between 
1996 and 1999, and 50 patient records for the three months after 
Respondent returned to work following his suspension. This review did 
not disclose any problems with Respondent's practice of medicine. 
Further, none of the staff who worked with Respondent perceived that he 
engaged in any impaired behavior or inappropriate prescribing of 
medications.
    As of the date of the hearing, Respondent was still participating 
in the Medical Board's Diversion Program. He regularly attends 
diversion meetings and undergoes random urine tests three to four times 
a month, which have all been negative. The staff of the Diversion 
Program believes that Respondent can safely practice medicine.
    The Administrator of the Medical Board's Diversion Program 
testified that in order to successfully complete the program a 
physician must have a minimum of three years of continuous sobriety or 
abstinence, and must have implemented lifestyle changes that are 
sufficient to maintain the physician's abstinence and recovery. The 
Administrator testified that because Respondent has not been abstinent 
for three years he cannot be considered to have successfully completed 
the Diversion Program, but if he maintains the lifestyle changes he has 
made and continues to be abstinent, he will complete the program.
    Respondent is also monitored by the Wellness Committee of the 
hospital where he sees patients. In addition, Respondent's physician 
manager and workplace monitor testified that he randomly reviews 
patient records after Respondent sees a patient and he has found no 
problem with the quality of care provided by Respondent. Several 
supervisors and/or colleagues testified that Respondent practices 
competently, he has never appeared to be under the influence of any 
substance, and his rehabilitation is progressing well.
    Respondent testified that he has not abused drugs since November 
24, 1997. Respondent further testified that although he is not proud of 
his addiction, he is proud that he was honest with investigators, he 
sought help, he admitted his shortcomings, and he has a support group 
that monitors his recovery and ability to practice on a daily basis.
    According to Respondent, he needs a DEA registration in order to 
effectively treat his patients and in order to maintain his employment 
since the Last Chance Agreement with his current employer requires him 
to have an unrestricted ability to practice medicine.
    Pursuant to 21 U.S.C. 824(a)(2), the Deputy Administrator may 
revoke a DEA Certificate of Registration upon a finding that the 
registrant has been convicted of a felony relating to controlled 
substances under state or Federal law. It is undisputed that on March 
9, 1998, Respondent pled nolo contender in state court to one felony 
count of obtaining hydrocodone by fraud. The court granted a deferred 
entry of judgment and the criminal proceedings were dismissed after 
Respondent completed criminal diversion program.
    Respondent contends that he was not convicted of a felony offense 
since no judgment was entered against him and the criminal proceedings 
were dismissed. The Deputy Administrator agrees with Judge Bittner that 
Respondent has been convicted of a controlled substance related felony 
offense for purposes of these proceedings.
    DEA has consistently held that a plea of nolo contendere 
constitutes a ``conviction'' within the meaning of 21 U.S.C. 824(a)(2). 
See Clinton D. Nutt, D.O., 55 FR 30,992 (1990); Eric A. Baum, M.D., 53 
FR 47,272 (1988). Further, DEA has held that there is still a 
``conviction'' within the meaning of the Controlled Substances Act even 
if the proceedings are later dismissed. The Deputy Administrator agrees 
with Judge Bittner that any other interpretation would mean that ``the 
conviction could only be considered between its date and the date of 
its subsequent dismissal * * * [which would be] inconsistent with 
holdings in other show cause cases that the passage of time since 
misconduct affects only the weight to be given the evidence'' citing 
Mark Binette, M.D., 64 FR 42,977, 42,980 (1999); Thomas H. McCarthy, 
D.O., 54 FR 20,938 (1989), aff'd No. 89-3496 (6th Cir. Apr. 5, 1990).
    Therefore, since Respondent has been convicted of a felony relating 
to controlled substances, the Deputy Administrator finds that grounds 
exist to revoke Respondent's DEA Certificate of Registration pursuant 
to 21 U.S.C. 824(a)(2).
    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.
    (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 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).
    Regarding factor one, it is undisputed that Respondent's license to 
practice medicine was suspended in December 1997. Subsequently the 
Medical Board filed an Accusation against Respondent and in March 1998, 
Respondent and the Medical Board entered into an Agreement in Lieu of 
Discipline wherein Respondent agreed to complete the Medical Board's 
Diversion Program. On April 9, 1998, the suspension order was modified 
to allow Respondent to return to the practice of medicine, but he was 
required to remain in the Diversion Program. No restrictions have been 
placed on Respondent's ability to handle controlled substances by the 
Medical Board. Therefore, Respondent

[[Page 30619]]

is authorized to practice medicine and handle controlled substances in 
California subject to his continued participation in the Medical 
Board's Diversion Program. But, 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, 
Respondent has admitted that he issued controlled substance 
prescriptions in fictitious names, took office samples of controlled 
substances, and used his authority over subordinates to obtain 
controlled substances. Clearly these actions violated 21 U.S.C. 
843(a)(3) as well as California law. However, the Deputy Administrator 
finds that Respondents's behavior was motivated by his addiction to 
controlled substances for which he has since received extensive 
rehabilitative treatment.
    As previously discussed, factor three is relevant since the Deputy 
Administrator finds that Respondent was convicted of a felony offense 
relating to controlled substances.
    Regarding factor five, there is no question that Respondent abused 
controlled substances for several years prior to November 1997 when he 
was arrested. Particularly troubling to the Deputy Administrator is 
that Respondent abused these substances while performing his duties as 
a physician.
    In light of Respondent's abuse of controlled substances, the 
methods he employed to obtain the drugs, and his felony conviction, the 
Deputy Administrator agrees with Judge Bittner that the Government has 
mad a prima facie case that Respondent's continued registration would 
be inconsistent with the public interest. Judge Bittner concluded 
however that while ``Respondent's misconduct was obliviously 
egregious[,]'' his testimony and that of his witnesses was credible 
``that Respondent now understands the gravity of his actions and is 
remorseful, that he had been conscientious in pursuing his recovery, 
and that he has a support network, including appropriate monitoring at 
his workplace, to assist him in those efforts.''
    Therefore, Judge Bittner recommended that Respondent be permitted 
to retain his DEA registration subject to the following restrictions:
    1. For three years after issuance of a final order in this 
proceeding, Respondent shall not be employed as a physician with any 
entity that does not impose the same conditions on him that MedClinic 
imposed in the February 26, 1998, Last Chance Agreement.
    2. Each calendar quarter, Respondent shall provide the Special 
Agent in Charge of the local DEA office (or that agent's designee) a 
list of all controlled substance prescriptions he has issued, including 
the patient's name and contact information, the name of the substance, 
the dosage form, strength, and quantity prescribed of the substance, 
and the number of refills authorized, if any.
    The Deputy Administrator agrees with Judge Bittner that revocation 
of Respondent's DEA registration is not warranted. Respondent has 
accepted responsibility for his actions. He underwent extended 
inpatient treatment for his addiction, completed the court-ordered 
treatment program, and is still participating in the Medical Board's 
Diversion Program. His practice of medicine, as well as his continued 
recovery, is monitored by the Medical Board's Diversion Program, his 
employer through the Last Chance Agreement, and the hospital's Wellness 
Committee. However, the Deputy Administrator is troubled by the 
relatively short period of time that Respondent has been drug-free. 
Therefore, the Deputy Administrator concludes that additional 
restrictions should be imposed on Respondent's DEA Certificate of 
Registration in order to protect the public health and safety.
    The Deputy Administrator concludes that Respondent's DEA 
Certificate of Registration should be continued subject to the 
following restrictions for three years from the effective date of this 
final order:
    1. Respondent shall continue to participate in the Medical Board of 
California's Diversion Program regardless of whether the Medical Board 
authorizes the termination of his participation at an earlier date.
    2. Respondent shall not practice medicine as a solo practitioner 
and he shall not be employed as a physician with any entity that does 
not impose the same conditions on him that MedClinic imposed in the 
February 26, 1998 Last Chance Agreement.
    3. Upon request, Respondent shall submit copies of the results of 
his random urine screens to DEA.
    4. Respondent shall not prescribe any controlled substances for 
himself or any immediate family member.
    5. Each calendar quarter, Respondent shall provide to the Special 
Agent in Charge of the local DEA office, or his designee, a log of all 
controlled substances that he prescribes, dispenses or administers, 
including the patient's name and contact information, the name of the 
substance, the dosage form, strength and quantity prescribed, 
administered or dispensed, and the number of refills authorized on 
prescriptions, if any.
    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 BR1670012, previously issued to Edson W. 
Redard, M.D., be and it hereby is continued, subject to the above 
described restrictions. This order is effective June 12, 2000.

    Dated: May 4, 2000.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 00-11890 Filed 5-11-00; 8:45 am]
BILLING CODE 4410-09-M