[Federal Register Volume 66, Number 67 (Friday, April 6, 2001)]
[Notices]
[Pages 18305-18309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8477]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 99-30]


Barry H. Brooks, M.D.; Continuation of Registration

    On April 8, 1999, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Barry H. Brooks, M.D. (Respondent), of 
Cleveland, Ohio, proposing to revoke his DEA Certificate of 
Registration BB2048127, pursuant to 21 U.S.C. 824(a)(1), (2), and (4), 
and to deny any pending applications for such registration pursuant to 
21 U.S.C. 823(f).
    Respondent timely requested a hearing on the issues raised by the 
Order to Show Cause, and following pre-hearing procedures, a hearing 
was held in Cleveland, Ohio, on December 7, 1999, before Administrative 
Law Judge Mary Ellen Bittner. At the hearing, both parties called 
witnesses and introduced documentary evidence. After the hearing, the 
Government submitted proposed findings of fact, conclusions of law, and 
argument; and Respondent submitted a ``Post Hearing Brief.'' On May 24, 
2000, Judge Bittner issued her Opinion and Recommended Decision, 
recommending that the Respondent's registration be continued, and that 
any pending applications for renewal be granted. On July 18, 2000, 
Judge Bittner transmitted the record of these proceedings to the 
Administrator for his final order.
    The Administrator has considered the record in its entirety, and 
pursuant to 21 CFR 1316.67, hereby issues his final order adopting the 
Opinion and Recommended Decision of the Administrative Law Judge. His 
adoption is in no matter diminished by any recitation of facts, issues, 
and conclusions herein, or by any failure to mention a matter of fact 
or law.
    The Administrator finds that the Respondent graduated from Harvard 
Medical School in 1967 and thereafter completed training in psychiatry 
and internal medicine. Since 1979, he has been a member of the faculty 
at Case Western Reserve University School of Medicine, and he is 
currently on the staff at five hospitals, while maintaining a private 
practice in Cleveland, Ohio. Respondent is a recovering alcoholic who 
is actively involved in Alcoholics Anonymous and is a speaker at its 
meetings. He has been involved in Alcoholics Anonymous for over fifteen 
years.
    The Administrator further finds that on or about March 7, 1985, 
Respondent

[[Page 18306]]

was convicted in the Cuyahoga County Court of Common Pleas of thirteen 
felony counts of attempted illegal processing of drug documents as a 
result of prescribing Dilaudid to patients for the treatment of heroin 
addiction. Respondent received a sentence of one year imprisonment, but 
the sentence was suspended and he was placed on one year probation and 
fined a thousand dollars plus court costs.
    In a letter dated November 7, 1985, the State of Ohio Medical Board 
(Medical Board) notified Respondent of its intent to determine whether 
it should continue to permit him to practice medicine and surgery in 
the State of Ohio. The letter cited Respondent's conviction as the 
reason for the Medical Board's inquiry and advised Respondent of his 
right to a hearing. Respondent requested a hearing, and on February 11, 
1986, he appeared before a hearing examiner for the Medical Board.
    Following the hearing, the hearing examiner issued a Report and 
Recommendation to the Medical Board. The hearing examiner found that 
both Respondent's prescribing Dilaudid to drug addicted individuals to 
facilitate their detoxification and the 1985 conviction that resulted 
from this conduct were bases for revoking his license. The report 
stated that ``Dr. Brooks' practice of prescribing Dilaudid to 
facilitate detoxification was not only illegal, but also blatant: the 
prescriptions themselves declared that the medication was being used 
for an explicitly illegal purposes.'' Consequently, the hearing 
examiner recommended that the Medical Board revoke Respondent's Ohio 
Medical license. In addition, the hearing examiner recommended that the 
Medical Board require Respondent immediately to surrender his DEA 
Certificate of Registration.
    On July 24, 1986, the Medical Board issued an Entry of Order 
revoking Respondent's license to practice medicine in Ohio, staying the 
revocation, and placing Respondent on probation for a period of at 
least five years but no more than eight years. The Medical Board 
imposed various conditions, including requirements that Respondent (1) 
not prescribe, administer, dispense, order, or possess controlled 
substances, except those listed in Schedules IV and V, for a minimum of 
two years; (2) undergo psychiatric treatment at least twice a month and 
ensure that quarterly psychiatric reports were forwarded to the Medical 
Board; (3) submit daily specimens for random urine screening and ensure 
that weekly screening reports were forwarded to the Medical Board; (4) 
undertake and maintain participation in an alcohol rehabilitation 
program at least two times per week and submit reports that documented 
his continual compliance with the program; (5) abstain completely from 
the use of or possession of drugs, other than those that are available 
over-the-counter or those that were prescribed, administered, or 
dispensed to him by a person authorized by law; and (6) abstain 
completely from the used of alcohol.
    On April 24, 1987, as a result of the Medical Board's action, 
Respondent surrendered his DEA Certificate of Registration AB7408619 in 
Schedules II and III. Respondent maintained his privileges to handle 
controlled substances in Schedules IV and V, however.
    About January of 1989, after Respondent had satisfied the two year 
minimum restriction on handling Schedule II and III controlled 
substances, the Medical Board reinstated Respondent's state privileges 
to handle Schedule II and III controlled substances.
    On February 6, 1989, Respondent submitted an application to DEA as 
a practitioner to handle controlled substances in Schedules II through 
V. Question 4(b) of this DEA application asks: ``Has the applicant ever 
been convicted of a felony in connection with controlled substances 
under State and Federal law, or over surrendered or had a CSA 
registration revoked, suspended, or denied?'' Respondent answered 
``no.''
    In June 1992, Respondent submitted an application to the Medical 
Board for renewal of his medical license. This application included the 
following questions: ``Have you been found guilty of, or pled guilty or 
no contest to: (A.) A felony or misdemeanor. (B.) A federal or state 
law regulating the possession, distribution or use of any drug?'' In 
response to each of these questions, Respondent checked ``yes.''
    On or about November 21, 1995, Respondent signed an Application for 
Privileges to the Health Care Network/Facility/Organization and/or 
Hospital. Page nine of this form contains the following questions:
    2. Have there ever been any actions against your professional 
license, including but not limited to, restrictions, limitations, 
denial, revocation, suspension, voluntary or involuntary surrender or 
cancellation in any state?
    3. Has your DEA license ever been restricted, reduced, denied, 
suspended, canceled or been voluntarily or involuntarily relinquished?
    4. Have you ever been convicted of a felony?
    The responses marked on the form indicate a ``yes'' answer to each 
of these three questions. Respondent testified that he signed the form, 
but he was unsure whether he signed it before or after it was filled 
out. He further testified that although he signed this form, he did not 
read it, and it was completed by an administrator.
    On June 16, 1992, and again or June 19, 1995, Respondent submitted 
DEA Registration renewal applications. Question 2(b) on each of these 
applications asks the following:

    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 place on probation?

In response to this question, Respondent checked ``no'' on both the 
1992 and 1995 applications.
    A Staff Coordinator in the DEA Office of Diversion Control, 
Chemical Investigation Unit, testified that the DEA applications for 
registration contain three liability questions that are intended to 
elicit information from applicants to determine if further 
investigation is needed. The first liability question asks whether the 
state or the jurisdiction in which the applicant is practicing has 
granted the applicant the authority to handle controlled substances. 
The second and third liability questions asks whether an applicant has 
ever been convicted of a felony in connection with controlled 
substances under state or federal law, or ever surrendered or had a 
controlled substances registration revoked, suspended, or denied. The 
Staff Coordinator testified that the answers to these questions 
determine whether further investigation is required. If further 
investigation is required, the application is sent from DEA 
Headquarters to the appropriate DEA field office to determine the 
extent of the applicant's criminal history and the status of his 
controlled substance registrations, and a ``hold'' is placed on that 
application until the field office returns an approval to DEA 
Headquarters.
    In April 1996, the DEA Cleveland Resident Office received a change-
of-address request from the Respondent. A DEA Diversion Investigator 
(DI) testified that he was working in the Cleveland office at the time 
and reviewed Respondent's request. The DI noted that there seemed to be 
some discrepancies

[[Page 18307]]

in the Respondent's submissions that warranted further investigation, 
and consequently, he reviewed Respondent's drug-related criminal 
history in a DEA computer database and discovered Respondent's 1985 
felony conviction.
    The DI testified that he and another DEA Diversion Investigator met 
with Respondent on November 19, 1996. At that meeting, Respondent 
admitted that he was familiar with the 1989 DEA application, and that 
he had checked ``no'' in response to question 4(b). The DI further 
testified that during this meeting, Respondent indicated that he was 
familiar with the 1992 and 1995 renewal applications, and that he 
signed each of them. The DI testified that Respondent stated that he 
believed he was again eligible for Medical Board privileges after the 
passage of five years following his conviction, that Respondent also 
stated that he believed he could obtain his DEA privileges as soon as 
he was eligible for Medical Board privileges, and for these reasons, he 
answered ``no'' to the liability questions on the various DEA 
applications. The DI further testified that later in the meeting, 
however, Respondent admitted that ``he had screwed up'' in answering 
the liability questions. Similarly, the Respondent testified before 
Judge Bittner in these proceedings regarding his responses to the DEA 
liability questions that he ``definitely had made a mistake and 
realized that.''
    On March 28, 1997, an Assistant United States Attorney for the 
Northern District of Ohio wrote to Respondent's attorney at that time, 
advising that the United States Attorney's Office had decided to pursue 
a criminal prosecution of Respondent pursuant to 21 U.S.C. 
843(a)(4)(A). On April 8, 1997, Respondent wrote to DEA's Registration 
Unit advising that his 1989, 1992, and 1995 DEA registration 
applications were in error with respect to the liability questions, and 
requesting that the ``no'' answers to liability questions on his 
pending 1995 renewal application be changed to ``yes'' answers. 
Respondent was indicted on two counts of violating 21 U.S.C. 
843(a)(4)(A) (in 1992 and 1995, respectively) and was acquitted after a 
two day trial in August 1997.
    Respondent gave testimony in these proceedings with regard to why 
he answered the liability questions on the DEA applications as he did. 
Specifically, he stated he did not believe he had to refer to his 
conviction after the passage of five years, and he further stated he 
though his conviction had been expunged. Respondent further testified 
that he thought the surrender of his registration in Schedules II and 
III was tied to his conviction, and therefore, he believed that the 
surrender was also expunged. He also testified that he believed DEA 
knew about his conviction prior to his submission of the 1989, 1992, 
and 1995 DEA applications because in accordance with the Medical 
Board's order he had submitted his surrender of schedule II and III 
privileges to a DEA Diversion Investigator in 1987.
    Respondent testified that at the time he executed the 1992 and 1995 
DEA applications he believed he was not required to report his 
conviction. Respondent testified that he believed the Medical Board was 
the ``gold standard;'' that is, if the Medical Board did not require 
him to report a conviction after five years, he was not required to 
report it on any other application.
    With regard to his negative answers to the liability questions on 
his 1989 DEA application, Respondent testified that although this 
application was completed less than five years after his felony 
conviction, he believed his conviction had been expunged. Similarly, 
Respondent testified that he provided a negative response on his 1989 
DEA application to the question of whether he had ever surrendered a 
controlled substances registration because he believed that the 
surrender was tied to his conviction.
    In support of these contentions, Respondents testified that in the 
late 1980's he sponsored an attorney in Alcoholics Anonymous, and at 
some point told the attorney about his 1985 felony conviction. 
Respondent testified that the attorney recommended to him that the 
conviction be expunged, and that he told the attorney ``go ahead and do 
it.'' Respondent testified that although he never paid the attorney 
anything, he later received a letter from the attorney that the 
expungement ``had been accomplished.'' Respondent testified he did not 
have a copy of the letter because it was subsequently destroyed in a 
fire. Respondent testified that he was informed by the court 
(presumably the same court that convicted him) there was no record of 
the expungement sometime during the 1997 DEA investigation leading to 
these proceedings.
    Pursuant to 21 U.S.C. 824(a)(1), the Administrator may revoke a DEA 
Certificate of Registration and deny any pending applications for such 
a certificate upon a finding that the registrant has materially 
falsified any DEA application for registration. Pursuant to 21 U.S.C. 
824(a)(2), the Administrator may revoke a DEA Certificate of 
Registration and deny any pending applications for such a certificate 
upon a finding that the registrant has been convicted of a felony 
related to controlled substances under state or federal law.
    In addition, the Administrator may revoke a DEA Certificate of 
Registration and deny any pending applications for such a certificate 
if he determines that the issuance of such registration would be 
inconsistent with the public interest as determined pursuant to 21 
U.S.C. 824(a)(4) and 823(f). Section 823(f) requires that the following 
factors be considered:
    (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.
    As a threshold matter, it should be noted that the factors 
specified in section 823(f) are to be considered in the disjunctive: 
The Administrator may properly rely on any one or a combination of the 
factors, and give each factor the weight he deems appropriate, in 
determining whether a registration should be revoked or an application 
for a registration denied. Henry J. Schwarz, Jr., M.D., 54 FR 16,422 
(DEA 1989).
    Pursuant to 21 U.S.C. 824(a)(1), falsification of a DEA application 
constitutes independent grounds to revoke a registration. Past cases 
have established that the appropriate test for determining whether an 
applicant materially falsified any application is whether the applicant 
``knew or should have known'' that the submitted application was false. 
Terrance E. Murphy, M.D., 61 FR 2,841, 2,844 (DEA 1996); Bobby Watts, 
M.D., 58 FR 46,995 (DEA 1993).
    It is undisputed that after his 1985 conviction, on his 1989 
application for DEA registration Respondent provided a ``no'' response 
to the question of whether he had ever been convicted of a felony in 
connection with controlled substances under state or federal law or 
ever surrendered a federal controlled substances registration. 
Similarly, on his 1992 and 1995 DEA applications, Respondent answered 
in the negative to the question of whether he had ever been convicted 
of a crime in connection

[[Page 18308]]

with controlled substances under state or federal law or ever 
surrendered a federal controlled substances registration. In addition, 
after the Medical Board restricted Respondent's controlled substances 
privileges in 1986, Respondent provided ``no'' responses on his 1992 
and 1995 DEA applications when asked whether he had ever a state 
professional license or controlled substances registration revoked, 
denied, restricted or placed on probation.
    In contrast to the DEA applications, on separate occasions 
Respondent submitted applications to organizations other than DEA and 
provided accurate information in response to liability questions. On an 
application to the Medical Board dated June 1992, Respondent provided 
``yes'' responses when asked whether he had been convicted of a felony 
or misdemeanor or whether he had been found guilty of a federal or 
state law regulating the handling of any drugs. Respondent signed and 
dated this application approximately three days after submitting a DEA 
application on which he provided a ``no'' response to similar liability 
questions. Also, in November of 1995, Respondent signed an 
``Application For Privileges To The Health Care Network/Facility/
Organization And/Or Hospital'' on which he provided ``yes'' responses 
when asked whether he had ever been convicted of a felony and whether 
his DEA registration had ever been ``restricted, reduced, denied, 
suspended, canceled or been voluntarily or involuntarily 
relinquished.''
    In sum, Respondent testified he believed that (1) he was not 
required to report the conviction on applications for licensure filed 
more than five years after his convictions; (2) an attorney with whom 
he was acquainted had expunged the conviction for him; (3) his 
surrender of Schedule II and III privileges in 1987 was tied to his 
conviction; and (4) the DEA knew of his conviction because the agency 
was involved in an investigation that eventually led to it.
    An examination of Respondent's contentions reveals the following. 
On February 6, 1989, Respondent provided a ``no'' response when asked 
on a DEA application whether he had ever been convicted of a felony 
related to controlled substances. Respondent signed and dated this 
application approximately four years following his 1985 conviction, 
controverting his assertion that five years was the cutoff point. 
Respondent testified that his explanation for answering ``no'' in this 
instance was that he believed his conviction had been expunged. 
Respondent also testified that on the same application he answered 
``no'' when asked whether he had ever surrendered a federal controlled 
substances registration because he believed that the surrender was 
related to the conviction, and therefore expunged. Respondent offered 
the same explanation with regard to the negative answers he provided a 
similar questions on his 1992 and 1995 DEA applications He also offered 
these explanations when testifying as to why he responded ``no'' on his 
1992 and 1995 DEA applications when asked whether he had ever had a 
state professional license or controlled substances registration 
revoked, suspended, denied, restricted or placed on probation.
    Judge Bittner noted, and the Administrator concurs, that the 
liability questions on the DEA applications ask whether the applicant 
has ``ever been convicted'' of a crime in connection with controlled 
substances or ``ever surrendered'' a federal controlled substances 
registration. (Emphasis added). Similarly, the application that 
Respondent signed in 1992 and 1995 ask whether the applicant ``ever had 
a State professional license or controlled substance registration 
revoked, suspended, denied, restricted or placed on probation.'' 
(Emphasis added). Nothing on the application forms suggests that the 
mere passage of time relieves the applicant of the obligation of 
providing accurate answers. Judge Bittner also observed that with 
regard to Respondent's expungement allegation, Respondent provided no 
documentary evidence to support his belief that the 1985 conviction had 
ever been expunged, and he offered no clear explanation for his belief 
that the surrender of his federal or state controlled substances 
registrations were related to his conviction. Judge Bittner therefore 
found, and the Administrator concurs, that Respondent's beliefs were 
not reasonable, that Respondent knew his answers to the liability 
questions were false, and therefore were not valid defenses.
    Judge Bittner found, and the Administrator concurs, that 
Respondent's attempt to argue that DEA was aware of Respondent's 1985 
conviction, and therefore, that any omission of the conviction on the 
DEA applications was immaterial, is also without merit. As the DEA 
Staff Coordinator testified, the liability questions on the DEA 
applications for registrations are intended to extract information from 
applicants to determine whether further investigation is needed. 
``Answers to the liability question[s] 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.'' Theodore Neujahr, D.V.M., 64 Fed. Reg. 72,362, 72,364 
(DEA 1999) (citing Bobby Watts, M.D., 58 FR 46,995 (DEA 1993); Ezzat E. 
Majd Pour, M.D., 55 FR 47,547 (DEA 1990).
    Prior DEA cases have established that ```[s]ince [it] must rely on 
the truthfulness of information supplied by applicants in registering 
them to handle controlled substances, falsification cannot be 
tolerated.' '' Terrance E. Murphy, M.D., 61 FR 2,841, 2,845 (DEA 1996) 
(quoting Bobby Watts, M.D., 58 FR 46,995 (DEA 1993). Judge Bittner 
found, and the Administrator concurs, that Respondent's contentions 
concerning the reasons for his untruthful answers on his DEA 
applications are meritless, and therefore constitute grounds for 
revoking Respondent's registration pursuant to section 824(a)(1). In 
addition, pursuant to 21 U.S.C. 824(a)(2), conviction of a felony 
related to controlled substances constitutes independent grounds to 
revoke a DEA registration. Judge Bittner further noted, however, that 
in prior DEA cases the Deputy Administrator has held that the totality 
of the circumstances is to be considered in determining whether a 
registration should be revoked because of a registrant's material 
falsification of an application. See Martha Hernandez, M.D., 62 FR 
61,145, 61,147-48 (DEA 1997).
    With regard to the public interest factors found at 21 U.S.C. 
823(f), it is undisputed that Respondent currently is authorized by the 
State of Ohio to handle controlled substances, and thus satisfies the 
first factor. Since state licensure is a necessary but insufficient 
condition for DEA registration, however, Judge Bittner found, and the 
Administrator concurs, that this factor is not determinative. James C. 
LaJevic, D.M.D., 64 FR 55,962, 55,964 (DEA 1999).
    With regard to the second public interest factor, Respondent's 
experience in handling controlled substances, Judge Bittner found, and 
the Administrator concurs, that since Respondent's felony conviction 
approximately fifteen years ago for illegally prescribing a controlled 
substance, Dilaudid, to patients for the treatment of heroin addiction, 
there have been no further allegations that Respondent has abused his 
controlled substances privileges since regaining a DEA registration in 
1989.
    With regard to the third public interest factor, Respondent's 
conviction record relating to controlled substances,

[[Page 18309]]

it is undisputed that on or about March 7, 1985, in the Cuyahoga Court 
of Common Pleas, Cleveland, Ohio, Respondent was convicted of thirteen 
felony counts involving attempted illegal processing of drug documents.
    With regard to the fourth public interest factor, Respondent's 
compliance with applicable State, Federal, or local laws relating to 
controlled substances, it is undisputed that Respondent was convicted 
of attempted illegal processing of drug documents, as noted above. In 
addition, the State Medical Board of Ohio found that the acts that led 
to Respondent's conviction constituted a violation of the Ohio Revised 
Code. Furthermore, pursuant to 21 CFR 1306.04(c) (1999), a 
practitioner-registrant is prohibited from issuing prescriptions for 
the dispensing of narcotic drugs listed in any schedule for 
detoxification treatment. Respondent violated this section by 
prescribing Dilaudid to known drug addicts for the purpose of 
facilitating detoxification. Since Respondent violated 21 CFR 
1306.04(c), he also violated 21 CFR 1306.04(a) by issuing prescriptions 
illegally, not for a legitimate medical purpose and not in the usual 
course of professional practice. Judge Bittner found, and the 
Administrator concurs, that the findings pursuant to this factor weigh 
in favor of finding Respondent's continued registration inconsistent 
with the public interest.
    With regard to the fifth public interest factor, such other conduct 
which may threaten the public health and safety, Judge Bittner noted, 
and the Administrator concurs, that Respondent's actions in providing 
inaccurate answers to the liability questions on the various 
applications are relevant to this factor. Since the issues regarding 
this conduct have already been discussed, they need not be reiterated 
here.
    Judge Bittner concluded, and the Administrator concurs, that it is 
undisputed that Respondent was convicted of a drug related felony in 
1985 and that he provided inaccurate responses to the liability 
questions on at least three DEA applications. The Administrator also 
concurs with Judge Bittner's finding that Respondent's purported 
justifications for his inaccurate responses are not credible. Thus, the 
Administrator concurs with Judge Bittner's finding that there are 
grounds to revoke Respondent's registration pursuant to both 21 U.S.C. 
824(a)(1) and 824(a)(2).
    The Administrator concurs with Judge Bittner's recommendation that 
Respondent's registration be continued, however. The totality of the 
circumstances in this case suggest that the public interest is best 
served by allowing Respondent to maintain his registration. Respondent 
has held a DEA registration since 1989, and there is no evidence nor 
allegation that Respondent has abused the registration since that time. 
The Administrator concludes that the evidence shows that throughout 
Respondent has readily admitted fault, has taken responsibility for his 
past misconduct, and has fully cooperated with and assisted in the 
investigations concerning his illicit activities. Furthermore, 
considering the support systems he has in place, including his long-
term and active leadership in Alcoholics Anonymous, strong faith in 
God, a strong and close marriage, and full time employment in a 
professional medical community, the Administrator concludes that 
Respondent is unlikely to repeat his past mistakes and that his 
continued registration is consistent with the public interest.
    Accordingly, the Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 824 and 28 C.F.R. 0.100(b) and 0.104, hereby orders that DEA 
Certificate of Registration BB2048127, issued to Barry H. Brooks, M.D., 
be continued, and any pending applications for renewal granted. This 
order is effective May 7, 2001.

    Dated: March 27, 2001.
Donnie R. Marshall,
Administrator.
[FR Doc. 01-8477 Filed 4-5-01; 8:45 am]
BILLING CODE 4410-09-M