[Federal Register Volume 66, Number 151 (Monday, August 6, 2001)]
[Notices]
[Pages 41040-41048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19514]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


In the Matter of Rosalind A. Cropper, M.D.; Grant of Application

    On June 15, 1999, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Rosalind A. Cropper, M.D. (Respondent), 
proposing to deny her pending application for a DEA Certificate of 
Registration in the State of Tennessee, pursuant to 21 U.S.C. 823(f), 
and revoke her DEA Certificate of Registration (BC0747381, as a 
practitioner in the State of Louisiana, under 21 U.S.C. 823(f), 
824(a)(1) and 824(a)(4), on the grounds that her registration would be 
inconsistent with the public interest. The Order to Show Cause alleged, 
in substance that:
    (1) Between September 1991 and May 1992, Respondent dispensed 
methadone, a Schedule II controlled substance, to drug-dependent 
persons for detoxification or maintenance treatment without being 
registered as a narcotic treatment program as required pursuant to 21 
U.S.C. 823(g).
    (2) Respondent entered into a Memorandum of Agreement (MOA) with 
DEA, effective between July 11, 1995, and July 10, 1998, in which she 
agreed to maintain a log of all methadone that she prescribed, 
dispensed, or administered and to send a copy of such log to the DEA 
New Orleans Field Division quarterly. In this MOA Respondent also 
agreed to notify DEA quarterly if she did not prescribe, dispense, or 
administer any methadone. While and after this MOA was in effect, 
Respondent failed to send any copies of any log or to otherwise notify 
DEA of any activity pertaining to her handling or not handling 
methadone.
    (3) On April 22, 1992, the State of Louisiana Methadone Authority, 
Division of Alcohol and Drug Abuse, Office of Human Services, 
Department of Health and Hospitals (Methadone Authority) denied 
Respondent's application of September 12, 1991, to operate a Methadone 
Treatment Program.
    (4) Respondent knew or should have know that DEA, effective May 10, 
1995, denied her application, dated September 6, 1991, to be registered 
as a Narcotic Treatment Program pursuant to a final order issued by the 
DEA Deputy Administrator, 60 FR 18143 (1995).
    (5) Respondent materially falsified an application for a DEA 
Certificate of Registration dated February 2, 1998, by indicating that 
she never had a Federal

[[Page 41041]]

controlled substance registration denied or restricted and that she 
never had a State professional license denied, based upon the actions 
taken by the Methadone Authority and DEA as set forth above.
    Respondent filed a timely request for a hearing on the issues 
raised in the Order to Show Cause. Following pre-hearing procedures, a 
hearing was held before Administrative Law Judge Mary Ellen Bittner in 
Memphis, Tennessee, on January 11 and 12, 2000. At the hearing, both 
parties called witnesses and introduced documentary evidence. After the 
hearing, both parties submitted proposed findings of fact, conclusions 
of law, and argument. On May 24, 2000, Judge Bittner issued her Opinion 
and Recommended Ruling, recommending that Respondent's application for 
DEA registration be granted. On June 13, 2000, the Government filed 
Exceptions to the Opinion and Recommended Ruling of the Administrative 
Law Judge. On July 11, 2000, counsel for Respondent filed a Motion for 
Leave to Withdraw that was granted by Judge Bittner by a Ruling dated 
July 24, 2000. On July 17, 2000, Judge Bittner transmitted the record 
of these proceedings to the then-Acting Deputy Administrator.
    The Acting 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 Acting Administrator adopts in full, the Recommended Ruling and 
Findings of Fact of the Administrative Law Judge. The Acting 
Administrator adopts the Conclusions of Law set forth by the 
Administrator Law Judge, except with regard to the evidentiary ruling 
set forth below. 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 of law.
    The first issue that will be addressed is the evidentiary ruling. 
At the hearing, the Government introduced testimony that two patients 
from a narcotic treatment program were transferred to Respondent for 
the treatment of narcotic addiction. Respondent's counsel objected to 
this testimony on the basis of the ``best evidence rule,'' as codified 
by Rules 1002, 1003, and 1004 of the Federal Rules of Evidence, arguing 
that the best evidence of this purported transfer would be the records 
of the narcotic treatment program. The Acting Administrator finds that 
Judge Bittner correctly admitted the testimony, but reaches this 
conclusion for different reasons.
    In her analysis regarding the admissibility of this testimony, 
Judge Bittner found that ``[t]he Federal Rules of Evidence (with the 
exception of those pertaining to hearsay) generally apply to these 
proceedings.'' The Acting Administrator disagrees, and finds instead 
that the Federal Rules of Evidence (FRE) do not apply directly to these 
proceedings, based on the following analysis.
    In Klinestiver v. Drug Enforcement Administration, 606 F.2d 1128 
(D.C. Cir. 1979), the court addressed inter alia issues concerning the 
admissibility of evidence in DEA's administrative proceedings. In the 
context of petitioner's argument that DEA's decision was improperly 
based exclusively on hearsay testimony, the court found with regard to 
21 CFR 1316.59(a), governing the admission of evidence in these 
proceedings, that ``[t]he history of this regulation convinces us that 
DEA never intended to bind itself to a higher standard of admissibility 
than that prescribed by the Administrative Procedure Act, 5 U.S.C. 
556(d), which permits the introduction of `any oral or documentary 
evidence.' '' The Klinestiver court then held ``that nothing in 21 CFR 
1316.59(a) requires DEA to limit admissible testimony to that which 
would be acceptable in a jury trial or under the Federal Rules of 
Evidence.'' 606 F.2d at 1130. See also Richardson v. Perales, 402 U.S. 
389, 409 (1971); Calhoun v. Bailar, 626 F.2d 145, 148 (9th Cir. 1980), 
cert. denied, 452 U.S. 906 (1981); Sinatra v. Heckler, 566 F. Supp, 
1354, 1358 (E.D.N.Y. 1983). Thus, unless modified by agency rules, 
evidence is admitted in administrative proceedings in accordance with 5 
U.S.C. 556(d) of the APA, which provides that ``[a]ny oral or 
documentary evidence may be received, but the agency as a matter of 
policy shall provide for the exclusion of irrelevant, immaterial, or 
unduly repetitious evidence.'' 5 U.S.C. 556(d) (2000). Anderson v. 
United States, 799 F. Supp. 1198, 1202 (Ct. Int'l Trade 1992). See, 
e.g., Puckett v. Chater, 100 F.3d 730, 734 (10th Cir. 1996); Director 
of the Office of Thrift Supervision v. Lopez, 960 F.2d 958, 964, n.11 
(11th Cir. 1992). The sections governing these proceedings found in 21 
Code of Federal Regulations contain no references to the FRE; and 21 
CFR 1316.59, governing the submission and receipt of evidence in these 
proceedings, requires only that admitted evidence be ``competent, 
relevant, material, and not unduly repetitious.'' The FRE themselves 
bolster the conclusion that they are inapplicable. FRE Rule 1101, 
regarding the applicability of the FRE, does not state that the Rules 
are applicable to proceedings pursuant to the APA. The Acting 
Administrator therefore finds that the FRE do not apply directly to 
these proceedings, but may be used for guidance, where they do not 
conflict with agency regulations. See Sinatra v. Heckler, 566 F. Supp. 
1354, 1358 (E.D.N.Y. 1983).
    The Acting Administrator finds as follows. Respondent is a 
physician. She graduated from MeHarry Medical College (MeHarry) in 
1977, completed an internship at a United States Public Health Service 
Hospital in New Orleans, Louisiana, and then served in the National 
Health Service Corps for two years. She then returned to New Orleans 
and completed a residency at the same hospital where she had interned. 
Following a fellowship at the National Institutes of Health she 
returned to MeHarry to teach and then studied health policy at Brandeis 
University. Respondent returned to New Orleans to enter the private 
practice of internal medicine in 1986, and obtained a DEA registration 
as a practitioner on December 29, 1986. While in private practice, 
Respondent was also medical director of Desire Narcotic Rehabilitation 
Center (Desire), a DEA-registered narcotic treatment program in New 
Orleans.
    Respondent testified that in 1987 or 1988 she became aware of the 
association between intravenous drug use and HIV/AIDS. At some point, 
Respondent asked the Desire administration for permission to write a 
grant application to obtain funding for primary care of HIV-positive 
substance abusers. Respondent testified that Desire received the 
funding, but that management decided to spend the money on counseling 
and other services instead of primary care. As a result, according to 
Respondent, addicts came to her private practice for medical treatment. 
Respondent further testified that many of the medical problems these 
patients presented were associated with HIV/AIDS rather than substance 
abuse. When Respondent first started treating this population she had 
125 patients who were HIV positive; of these, seventy-two had AIDS.
    Respondent testified that narcotic treatment centers did not want 
to become involved in the medical management of patients with HIV. 
Respondent further testified that there was a reaction between 
methadone and other medications, and that when she recommended to the 
management of the center where she worked that HIV-positive patients 
receive a lower dosage of methadone, ``we began to differ on

[[Page 41042]]

how things should be done.'' Consequently, according to Respondent, in 
1989 she resigned as medical director, but HIV-positive patients 
continued to come to her private practice and she needed to treat both 
their medical conditions and their substance abuse, including 
withdrawal symptoms. Respondent further testified that she had used 
methadone as an analagesic to treat patients who were not addicted.
    Respondent testified that DEA informed her that it had received 
anonymous calls from persons who said that she was treating addicts. 
DEA also informed Respondent that if she was treating these patients 
she needed to obtain a DEA registration as a narcotic treatment 
program. Respondent further testified that she no intention of treating 
addiction, but was willing to obtain the additional license if it was 
necessary to treat medical patients who were withdrawn.
    Respondent also testified that someone from a state agency informed 
her that she needed to be part of an organization or a corporation in 
order to become a narcotic treatment program, that she hired an 
attorney to form a corporation, and that the attorney told her he had 
formed the corporation Rosalind A. Cropper, Inc. On September 6, 1991, 
Rosalind A. Cropper, Inc. filed an application for DEA registration as 
a narcotic treatment program.
    A DEA Diversion Investigator (D/I) of DEA's New Orleans Field 
Division described narcotic treatment programs as facilities that 
provide methadone or levo-alphacetylmethadol (LAAM) (both of which are 
Schedule II controlled substances) to persons who are addicted to 
heroin or morphine-like drugs. The D/I testified that most narcotic 
treatment programs provide the medications for patients to take home, 
but that the programs may also administer the medications, i.e. provide 
them to patients to take while at the clinic.
    The D/I testified that DEA coordinates matters concerning narcotic 
treatment programs with various state agencies because DEA cannot issue 
a registration without prior state approval. In Louisiana, according to 
the D/I, DEA coordinates narcotic treatment program registrations with 
the Department of Health and Hospitals, the State Methadone Authority, 
and the Division of Narcotics and Dangerous Drugs.
    The D/I testified that DEA also works with the federal Food and 
Drug Administration (FDA), which issues a separate license to narcotic 
treatment programs; both the FDA license and the state licenses are 
required for DEA registration. The FDA has also promulgated regulations 
governing the medical treatment of patients of Narcotic treatment 
programs with respect to the dosages dispensed to them and the number 
of ``take home'' doses they are permitted to have. According to the D/
I, the only controlled substances that narcotic treatment programs are 
permitted to use in treating narcotic addiction are methadone and LAAM, 
and the programs may not dispense these medications by prescription. 
Methadone is used primarily by narcotic treatment programs to treat 
narcotic addiction. It is less commonly used to treat severe pain.
    The D/I testified that in order to operate as a narcotic treatment 
program in Louisiana, a physician must have a state medical license, a 
state controlled dangerous substance number issued by the Department of 
Health and Hospitals, a separate state controlled dangerous substance 
number for the narcotic treatment program, and a DEA Registration as a 
narcotic treatment program. The D/I further testified that the first 
license required is issued by the Louisiana State Methadone Authority 
(Methadone Authority), which determines whether it is a need for a 
narcotic treatment program in the proposed location. According to the 
D/I, if the Methadone Authority gives its approval, the applicant 
applies for state controlled substance registration and, after 
obtaining it, applies to DEA and FDA.
    Practitioners who are not registered as narcotic treatment programs 
may treat addicted patients with methadone only as permitted by 21 CFR 
1306.07(b). This provision, known as the ``three-day rule,'' is as 
follows:

Nothing in this section shall prohibit a physician who is not 
specifically registered to conduct a narcotic treatment program from 
administering (but not prescribing) narcotic drugs to a person for 
the purpose of relieving acute withdrawal symptoms when necessary 
while arrangements are being made for referral for treatment. Not 
more than one day's medication may be administered to the person or 
for the person's use at one time. Such emergency treatment may be 
carried out for not more than three days and may not be renewed or 
extended.

    Registrants must use official DEA order forms, known as DEA form 
222s, to transfer Schedule II or narcotic Schedule III controlled 
substances to another registrant. A registrant seeking to purchase or 
otherwise receive these substances must obtain the forms, which are 
preprinted with that registrant's name, DEA number, and address, from a 
DEA office. The forms are in triplicate; the receiving registrant fills 
out the form, send the first two copies to the registrant who is 
supplying the drugs, and keeps the third copy. When the goods are 
received, the receiving registrant fills out receipt information on 
that copy. The supplier lists additional information on the first two 
copies, keeps the top copy, and send the second one to DEA.
    The D/I testified that on August 27, 1991, an anonymous person 
telephoned the DEA New Orleans office and told her that Respondent was 
treating him for HIV. The caller also said that Respondent was a drug 
counselor at the Desire Narcotics Rehabilitation Center, and that 
Respondent was prescribing medication for Medicaid patients and having 
the patients fill the prescriptions and then return the medication to 
her for her to distribute among all her patients. The D/I testified 
that such a practice would contravene DEA regulations because a 
prescription may only be authorized for the end user; physicians may 
not issue prescriptions for general office use.
    The D/I testified that the anonymous caller also told her that the 
prescriptions at issue were being filled at Egle's Pharmacy in New 
Orleans, gave the name of the pharmacist filling them, and that 
Respondent had said that the prescriptions must be filled at this 
pharmacy.
    The D/I testified that on September 6, 1991, she received a 
telephone call from the clinical administrator of the Metropolitan 
Treatment Center (Metropolitan), a DEA-registered narcotic treatment 
program in New Orleans. This individual told the D/I that one of the 
Metropolitan's patients had received a prescription for methadone from 
Respondent. The D/I testified that patients in narcotic treatment 
programs are released from the program if they receive methadone from 
an outside source. That same day the D/I faxed the pharmacist at Egle's 
Pharmacy a copy of 21 CFR 1306.07, quoted above.
    Also on September 6, 1991, as noted above, Respondent executed an 
application for registration as a narcotic treatment program in the 
name of Rosalind A. Cropper, Inc. The application requires the 
applicant to list its FDA approval number; respondent wrote 
``pending.'' The applicant also requires the applicant to list the 
``Current State License Number for the State in which you are applying 
for Registration;'' Respondent listed her Louisiana practitioner's 
controlled substance license number.
    On September 20, 1991, two DEA D/I's visited Egle's Pharmacy and 
spoke to the previously identified pharmacist.

[[Page 41043]]

The pharmacist told the investigators that Respondent had faxed him a 
methadone prescription but that he did not fill it because he had 
learned that Respondent was not registered to operate a methadone 
treatment program. The pharmacist also said that Respondent had given 
him a list of ten patients she intended to treat for narcotic addiction 
and told him that she believed she could write methadone prescriptions 
for this purpose.
    On October 3, 1991, a D/I sent Respondent a copy of DEA's 
regulations pertaining to registration of practitioners, security, 
narcotic treatment programs, recordkeeping, and order forms. On October 
28, 1991, Respondent telephoned the D/I and said that her security 
system had been installed and she was ready for DEA to inspect her 
office. However, on November 7, 1991, the FDA informed the D/I that 
neither it nor the Methadone Authority had received an application from 
Respondent.
    On November 12, 1991, Respondent left a message for the D/I asking 
the status of her DEA application. The D/I returned the call the next 
day and told Respondent that the FDA and the Methadone Authority did 
not have applications from her. On November 19, 1991, Respondent called 
the D/I again and said that she did not need a state license to operate 
a narcotic treatment program because she was already licensed by the 
state as a practitioner. The D/I testified that she advised Respondent 
that her state license as a practitioner could not be used to operate a 
narcotic treatment program and that she needed a separate state license 
for that purpose.
    The D/I testified that on January 15, 1992, Respondent again called 
her and said that someone at the Louisiana Department of Health and 
Hospitals had advised her that she did not need to obtain a state 
license. The next day, the D/I called both the FDA and the Methadone 
Authority. According to the D/I, the person she talked to at the FDA 
told her that it had received an application from Respondent, but that 
the application was incomplete. The FDA also sent the D/I a copy of a 
letter that the FDA had sent to Respondent on December 6, 1991, 
advising her of the omissions in her application. The D/I also spoke 
with the head of the Methadone Authority, who said that his agency had 
not received an application from Respondent.
    On March 31, 1992, Respondent called the D/I to advise that she had 
received a state license, a copy of which she faxed to the D/I. This 
license, in evidence as a Government exhibit, was issued by the State 
of Louisiana Department of Health and Hospitals to Rosalind Cropper, 
Inc., ``to operate substance abuse treatment,'' and was effective from 
March 28, 1992, until March 31, 1993. The D/I testified that this 
license applied to general substance abuse programs, but that only the 
Methadone Authority could license an applicant to operate a narcotic 
treatment program. On April 6, 1992, the D/I confirmed with the 
Methadone Authority that it had not issued any license to Respondent.
    On April 10, 1992, Respondent again telephoned the D/I, who told 
Respondent that the Methadone Authority, had advised the D/I that it 
had not issued the March 28, 1992 license. Respondent then sent the D/I 
a letter dated March 30, 1992, and addressed to Respondent from the 
Director of the Department of Health and Hospitals. In that letter, the 
Director advised Respondent that ``our records indicate that you 
provide the following services: Methadone treatment.''
    The D/I contacted the Methadone Authority again on April 20, 1992. 
In that conversation, the head of the Methadone Authority stated that 
the March 28, 1992, license had been ``pulled,'' and that he had 
telephoned Respondent and left a message for her, but she had not 
returned his call. Also on April 20, the D/I contacted the FDA and 
advised that Respondent had not received a license from the Methadone 
Authority and that DEA would therefore not process her application.
    By letter dated April 22, 1992, the Assistant Special Agent in 
Charge of DEA's New Orleans Field Division advised Respondent that the 
application for registration of Rosalind Cropper, Inc., ``cannot be 
processed due to your failure to obtain state registration.'' The 
letter noted that, ``According to the Louisiana Department of Health 
and Hospital's Office of Mental Health, Alcohol and Drug Abuse, now new 
narcotic treatment programs will be approved due to the fact that 
several treatment programs are open in the New Orleans area and these 
programs are not filled to capacity.'' The letter further requested 
Respondent to withdraw the application for DEA registration.
    On April 22, 1992, the head of the Methadone Authority wrote to 
both the Director of the Department of Health and Hospitals and to the 
Program Manager of the Controlled Dangerous Substances section within 
the Department of Health and Hospitals, that he understood that their 
office had issued Respondent a license to operate a methadone treatment 
facility. The head of the Methadone Authority stated that the Standards 
Manual for Licensing Alcohol and Drug Abuse Programs required 
Respondent to file an application ``simultaneously and in triplicate to 
the Food and Drug Administration and to the designated State Methadone 
Authority,'' but that his office had not received the necessary 
paperwork. Consequently, the head of the Methadone Authority asked the 
Department of Health and Hospitals to revoke the license that 
department had issued.
    Also on April 22, the Program Manager wrote to the head of the 
Methadone Authority advising that he had not issued Respondent a 
license to operate a methadone clinic. The Program Manager stated that 
his office had completed its on-site inspection and credential 
verification procedures, but that ``we were holding [Respondent's] 
application as pending until we received verification of the required 
Jurisdictional Approvals.'' He attached a copy of a letter he had 
written to Respondent, explaining that he was returning her application 
because her facility was required to be ``Licensed and in good standing 
with Jurisdictional approvals from all Agencies/Authorities 
concerned,'' and that she could reapply when she had obtained the 
necessary approvals.
    On April 29, 1992, Respondent called DEA's New Orleans Office and 
spoke to the D/I and her supervisor. Respondent said she did not want 
to withdraw her application and so the order to show cause process was 
explained to her. The D/I's supervisor also explained that DEA sought 
to deny Respondent's application because she did not have the requisite 
state licensure. Respondent replied that she would welcome a hearing so 
that she could publicize the problems of HIV-positive patients who were 
taking methadone. According to the D/I, Respondent acknowledged in that 
conversation that she was using methadone to treat narcotic addicts who 
were suffering from AIDS, and also admitted that she did not have a 
license to do so. Respondent further admitted that the D/I had advised 
her not to use the ``three-day rule'' to operate a narcotic treatment 
program without a license.
    On May 4, 1992, the D/I, her supervisor, and the Assistant Special 
Agent in Charge met with Respondent and Respondent's partner. 
Respondent and her partner expressed concern about the process 
Respondent was required to undergo to obtain registration as a narcotic 
treatment program and about whether DEA was being pressured by outside 
sources to deny her application. The D/I's

[[Page 41044]]

supervisor explained that in order to operate a narcotic treatment 
program in Louisiana four licenses were required: From the Methadone 
Authority, the Division of Narcotic and Dangerous Drugs (the agency 
that issued a state controlled substance registration number), the DEA, 
and FDA, respectively. The D/I explained that all applicants for 
registration as a narcotic treatment program would be subject to the 
same requirements. The Assistant Special Agent in Charge agreed to 
allow Respondent more time to comply with the various state 
requirements, and Respondent said that she would not order methadone 
again until she was authorized to operate a narcotic treatment program.
    On May 15, 1992, the D/I served an administrative subpoena on the 
pharmacist in charge at Eagle's Pharmacy, seeking documents, including 
order forms, prescriptions, and invoices, reflecting Respondent's 
transactions involving controlled substances with the pharmacy. The 
pharmacist responded to the subpoena three days later, providing five 
order forms for methadone tablets and/or liquid that Respondent 
executed between November 5, 1991, and January 1992. A sixth form is 
dated May 5, 1992, and shows that same date as the date shipped.
    On June 28, 1992, the D/I again called the Methadone Authority and 
asked if an application from Respondent had been received; the response 
was negative.
    On September 8, 1992, the D/I was informed by two other DEA D/I's 
that two patients from the Oscar Carter Memorial Rehabilitation Center 
(Oscar Carter), a DEA-registered narcotic treatment program in New 
Orleans, had been transferred to Respondent for treatment of narcotic 
addiction. The investigators advised that these patients had been 
transferred on September 6 and October 16, 1991, respectively.
    Subsequently, on October 15, 1992, Respondent wrote to the 
Assistant Special Agent in Charge, enclosing a copy of an application 
dated September 12, 1991, to operate a methadone clinic. The 
application is on a preprinted form that states it is addressed to the 
``Louisiana DHH, Division of Licensing and Certification, Controlled 
Dangerous Substances.'' In the letter, Respondent advised that the 
Department of Health and Hospitals had not responded to the application 
until October 12, 1992, and that she therefore asked the DEA New 
Orleans office to keep her DEA application active until the state had 
time to review her response.
    Respondent testified that although she initially thought that the 
corporation would need a separate DEA number, DEA informed her that 
this was not the case, but ``that the physician's DEA number needed to 
be registered with the request to do narcotic treatment.'' Respondent 
further testified that DEA sent her another application form and that:

    It was not my understanding that the application was to file for 
a second DEA number. And, in fact, I remember specifically that [the 
D/I's supervisor] told me that a DEA number is issued for the person 
and not for the facility. And that a facility would not get a 
number, but it would be issued to the physician or the practitioner. 
And because as a practitioner I already had a number, I did not need 
a second number.

    Consequently, Respondent listed her practitioner's number on the 
form she executed September 6, 1991. Respondent testified that she was 
told she needed a state controlled substance registration for the 
corporation and a dispensing license as a medical practitioner from the 
Medical Board, and that she applied for the dispensing license within a 
month after she submitted the DEA application. Respondent also 
testified that it was as not her understanding that the Methadone 
Authority ``would issue me a license. It was may understanding that 
they would clear me to get a controlled substance license.'' Respondent 
further testified that her application to state officials was never 
denied, but that she stopped pursuing her efforts to open a narcotic 
treatment program.
    Respondent further testified that after she filed the September 
1991 application with DEA, she continued to receive calls from DEA 
claiming that she was operating as a methadone treatment program 
without being registered to do so. Her response to DEA was that she had 
filed the application and was waiting to go through the requisite 
procedures. Respondent testified that later she was informed that she 
needed to apply to both the FDA and the state, that she filed an 
application with the FDA, and ``then [the FDA] said, well, everything 
looks good, but we haven't heard from the state. The state then 
received a copy of exactly what I sent to the FDA, and then everything 
went haywire.''
    Respondent testified that she recalled receiving and responding to 
the December 6, 1991, letter from the FDA, and that in reply to her 
response, FDA told her she had satisfactorily addressed its concerns, 
but still needed approval from the Methadone Authority. Respondent 
testified that in consequence she met with the head of the Methadone 
Authority, two members of the city council, and other state personnel 
sometime in 1992. According to Respondent, state personnel insisted 
that ``they'' had not received her application, although the person at 
the Methadone Authority who took possession of the application 
confirmed he had in fact received it. Respondent further testified that 
the head of the Methadone Authority said he would get back to her, but 
never did. Respondent also testified that although she did not 
specifically recall receiving the Department of Health and Hospitals' 
April 22, 1992, letter, she did recall receiving the application back.
    With respect to the May 4, 1992, meeting with DEA personnel, 
Respondent testified that her communication with the D/I had been poor, 
and Respondent's partner suggested that they meet with the D/I and her 
supervisor. Respondent testified that at the meeting the parties 
discussed her suing methadone to treat substance abusers with AIDS, and 
that she said she understood that unless she obtained a dispensing 
license she could treat these patients with methadone only for three 
days and only in her office. Respondent further testified that the D/
I's supervisor agreed that there had been some confusion as to how the 
application should be handled, and that he suggested some additional 
steps Respondent should take. He also agreed to give Respondent more 
time to take those steps.
    Respondent acknowledged that from November 1991 until perhaps March 
1992 she used DEA order forms to obtain methadone from Egle's Pharmacy, 
testifying that she did so because she needed methadone to treat 
patients who came to her office needing emergency care. Respondent 
testified that she never provided methadone to a patient to take home, 
but that she did administer methadone to patients in her office, with 
the understanding that she could do so for no more than three days at a 
time. When asked whether methadone was ``something that you either 
prescribed or dispensed or administered to [patients] for either HIV 
and/or their opiate addiction,'' Respondent replied, ``If I did, it 
would be no more than for three days and under emergency situations in 
the office.''
    Respondent further testified that she had a standing order to 
purchase methadone from Egle's Pharmacy: Her practice was to advise the 
pharmacist that she needed enough methadone to care for a specific 
number of patients and to give him signed forms in blank; when the 
pharmacist was able to obtain

[[Page 41045]]

the methadone, he filled in the form and ordered the methadone. 
Respondent denied requesting any methadone after the May 4 meeting with 
DEA personnel, and testified that she would given the order form dated 
May 5, 1992, to the pharmacist at least a week or two earlier.
    On August 31, 1994, the Deputy Assistant Administrator of DEA's 
Office of Diversion Control issued an Order to Show Cause to Respondent 
and to Rosalind Cropper, Inc., seeking to revoke Respondent's DEA 
registration as a practitioner in Louisiana to deny Rosalind Cropper, 
Inc.'s application for registration as a narcotic treatment program.
    On April 3, 1995, the then-Deputy Administrator of DEA issued a 
final order denying the application of Rosalind Cropper, Inc., on 
grounds that the applicant did not have authority from the FDA to 
dispense controlled substances. In the meantime, on December 6, 1994, 
the Methadone Authority recommended to FDA denial of Respondent's 
application for approval of a narcotic treatment program, and on 
December 16, 1994, the FDA wrote to Respondent advising that because 
the Methadone Authority had denied Rosalind Cropper, Inc.'s 
application, the FDA could not approve it. Respondent testified that 
she did not remember receiving this letter.
    On July 11, 1995, Respondent and the DEA entered into a Memorandum 
of Agreement in lieu of further proceedings to revoke Respondent's DEA 
registration as a practitioner. The agreement provided that DEA would 
renew Respondent's registration subject to Respondent's agreement to, 
among other things: (1) Abide by all federal, state, and local statutes 
and regulations relating to controlled substances, with specific 
reference to 21 CFR 1306.07; (2) maintain a legible log of all 
methadone prescribed, dispensed, or administered, including information 
as to the date, the name and address of the patient, the name of the 
controlled substance, the strength and dosage, the form, the reason for 
prescribing, administering, or dispensing the methadone, and refills 
(if any); (3) send a copy of the log quarterly to the D/I or any of her 
successors at Diversion Section, New Orleans Field Office, Drug 
Enforcement Administration, 3838 North Causeway Blvd., Suite 1800, 
Three Lakeway Center, Metairie, Louisiana 70002; and (4) notify DEA if 
she did not prescribe, dispense or administer methadone during a 
particular quarter.
    The Memorandum of Agreement also stated that it would remain in 
effect for three years after the last party to the agreement signed it 
and that Respondent understood that any violation of its terms could 
result in proceedings to revoke her DEA registration.
    Respondent testified that when she received the 1994 Order to Show 
Cause she retained counsel, that she did not realize that the order 
applied to her practitioner registration as well as the application for 
a narcotic treatment program, and that with respect to the latter, ``in 
all actuality, after May of '92, because of the problems and situation, 
I kind of just didn't bother with it anymore.'' Respondent further 
testified that she was not aware of the final order denying Rosalind 
Cropper, Inc.'s application until her present counsel told her about in 
November 1999.
    Respondent testified that she understood that because she had not 
completed all of the necessary applications for the narcotic treatment 
program, DEA ``closed the case and didn't process that application.'' 
Respondent testified that she also understood that if she agreed to no 
longer pursue registration as a narcotic treatment program, DEA ``would 
go ahead and issue * * * the renewal of my DEA number * * * And that if 
I had the need to * * * use methadone in any way within my practice, I 
would document and * * * send that information on or have it made 
available to [the D/I].''
    In support of this testimony, Respondent introduced into evidence 
an affidavit from Kern Reese, the attorney who represented her in the 
1994 show cause proceeding. Mr. Reese stated that he had no 
recollection of sending Respondent a copy of or discussing with her 
``the decision in Docket No. 94-76, denying Rosalind A. Cropper, Inc.'s 
application for a DEA Certificate of Registration as an NTP.''
    One of the issues in this proceeding is whether Respondent 
submitted the logs required by the 1995 Memorandum of Agreement. There 
are logs in evidence covering all the calendar quarters encompassed by 
the Memorandum of Agreement except the third quarter of 1995. As to 
that quarter, Respondent introduced into evidence a cover page, but 
testified that she could not find the actual log. The Government 
contends that DEA never received any of these logs.
    The D/I's supervisor submitted an affidavit dated December 13, 
1999, in evidence as a Government exhibit. The affidavit states that 
memoranda of agreement often included a requirement that registrants 
deliver reports to DEA's New Orleans Field Division. The affidavit 
further states that such reports were routinely given to the DEA 
diversion investigator to whom they were addressed or, if the addressee 
could not readily be determined from the envelope or the face of the 
report, the New Orleans Field Division's mail unit would open the 
letter or package and determine the section to which the document 
should be delivered. The affidavit also states that any correspondence 
pertaining to a case involving a registrant, whether the case was open 
or closed, would not be discarded or destroyed, although it might be 
archived after ten years from the date the case was opened. Finally, 
the affidavit states that the supervisor had never seen the methadone 
logs described above until he was asked to review them in the course of 
making the December 1999 affidavit.
    The Diversion Group Supervisor at the New Orleans Field Division as 
of the date of the hearing also submitted an affidavit, dated December 
10, 1999, and in evidence as a government exhibit. The current 
supervisor stated that he had reviewed files pertaining to Respondent 
and that these files did not contain any of the logs that Respondent 
was required to send. The current supervisor further states that he had 
never seen any of the logs described above.
    Similarly, the D/I testified that she had never seen these logs 
until counsel for the Government faxed them to her on November 17, 
1999. The D/I further testified that a review of the New Orleans Field 
Division's computer records did not disclose any report of the receipt 
of any of these logs, and that she also reviewed all the files in the 
office pertaining to Respondent and the logs were not in them.
    The D/I testified that in her experience, memoranda of agreement 
generally required registrants to maintain logs at their offices and 
that DEA investigators inspected these logs on site, and that she had 
never before had a registrant mail reports or logs to her.
    Respondent testified that she had a computerized reminder for when 
she was supposed to generate the logs, that she maintained and sent 
every log that was required, and that she mailed all of them herself. 
Respondent further testified that she established a system, had all of 
her prescriptions made in duplicate, and devised a format so that the 
log would reflect the information she was supposed to provide.
    As noted above, some of the log cover sheets were undated. 
Respondent testified that she failed to date some of the cover sheets 
because during periods when she did not handle methadone she

[[Page 41046]]

did not pay is much attention to the log. Respondent acknowledged, 
however, that some of the undated cover sheets pertained to logs for 
periods when she did handle methadone.
    Respondent further testified that she understood that if the New 
Orleans DEA office did not receive her logs, someone from that office 
would notify her.
    Respondent testified that from 1995 through 1998 she was in private 
practice and saw approximately thirty to fifty patients daily. She had 
received a grant to do early intervention treatment of patients with 
HIV/AIDS and worked with a local hospice program and with the state 
health department on a tuberculosis prevention program. Respondent 
testified that she did not handle methadone at all after the second 
quarter of 1998.
    In December 1997 Respondent moved to Memphis to work for the 
Memphis Health Center, a government-subsidized community health center 
that provides primary medical care to a predominantly poor population. 
Memphis Health Center operates four facilities, three in Memphis and 
one in Rossville, Fayette County, Tennessee, about thirty-five miles 
from Memphis. As of the date of the hearing, Respondent was employed as 
assistant medical director and director of special programs for the 
Memphis Health Center, and also practiced as a primary care physician 
at the Rossville facility.
    The chief executive officer of the Memphis Health Center testified 
that the clinic in Rossville had been in existence for about twenty 
years and had been operated by Memphis Health Center for about nine 
years, and that at the time the Rossville clinic opened, Fayette County 
was one of the poorest counties in the United States. He further 
testified that Memphis Health Center pays physicians slightly below the 
market rate and that it is difficult to recruit physicians for clinics 
located in poor rural areas such as Rossville.
    The chief executive officer testified that Memphis Health Center 
was able to recruit Respondent because she was interested in initiating 
an AIDS program. He testified that as of the hearing date Respondent's 
salary was abut $122,000. He further testified that Memphis Health 
Center is concerned about quality care, productivity, and revenue, that 
Respondent more than met the health center's productivity and quality 
standards, and that because Respondent attracted to the practice older 
people whose care was financed by Medicare, she had also contributed to 
enhanced revenue.
    He testified that Fayette County had a very high incidence of 
sexually transmitted disease and that the incidence of AIDS was rising. 
Consequently, Memphis Health Center asked Respondent to help develop an 
AIDS program. As part of this program, Respondent sees patients in the 
county jail and also made some home visits. He testified that 
Respondent had decreased some of her activities in Rossville as a 
result of her increased responsibilities, but that ``the primary focus 
for her is Rossville.''
    Respondent testified at the hearing that she moved to Memphis 
because:

I kind of got tired of fighting. I was the center of almost any 
controversial issue around HIV/AIDS and substance abusers. The job 
was becoming very demanding. There was no money hardly because I was 
in private practice. And * * * a lot of the other programs were 
going after the grants. And I guess it was battle fatigue. I don't 
know. I made a decision just to try something else.

    Respondent further testified that the Memphis Health Center was 
trying to develop an HIV/AIDS program and that she could work in that 
program and not have to manage administrative overhead.
    Respondent testified that about twenty-five percent of her patients 
at the Rossville Health Center were geriatric patients with multiple 
diseases, that she had fifty-six patients who were in the last stage of 
HIV/AIDS, and that she worked in an HIV/AIDS intervention program at 
the Fayette County jail. With respect to the latter group, Respondent 
testified that since August 1999 she had identified five HIV-positive 
patients at the jail and had found an additional twelve individuals who 
were not inmates but became HIV positive from contact with those 
inmates. Respondent testified that she did not utilize methadone in her 
work because most of her HIV/AIDS patients derived the virus from 
sexual contact, not injectable drug use.
    On February 2, 1998, Respondent executed an application for 
registration as a practitioner in Tennessee. Question four of the 
application form includes line on which the applicant is to list his or 
her state license number and state controlled substance number: as to 
both of these queries Respondent checked the box marked ``not 
applicable.'' Respondent explained at the hearing that she did not fill 
in a state controlled substance number because Tennessee does not 
require a separate controlled substance registration. Respondent 
further testified that she thought the reference to a state license 
number was to a dispensing license, which she did not need, and not to 
her medical license.
    The application form also includes, among other things, the 
following questions, each followed by boxes labeled ``yes'' and ``no'' 
respectively: ``4.(c). Has the applicant ever surrendered or had a 
Federal controlled substance registration revoked, suspended, 
restricted, or denied? 4.(d). Has the applicant ever had a State 
professional license or controlled substance registration revoked, 
suspended, denied, restricted or placed on probation?''
    Respondent checked the ``no'' box for both of these questions. The 
application form also directs the applicant to explain any affirmative 
answer to these questions on the reverse of the form; Respondent did 
not do so.
    Respondent testified that she had never surrendered a federal 
controlled substance registration or had one revoked, suspended, 
restricted or denied. Respondent testified that she did not consider 
that the denial of her 1991 application came under the purview of 
question 4.(c). because of ``[t]wo things. It didn't appear to me to be 
an application for a DEA number. And, secondly, it wasn't for Rosalind 
Cropper--me as a practitioner. It was for what I thought was permission 
to do a narcotic treatment on my DEA number, which was not 
restricted.''
    Respondent further testified that as far as state action on that 
application was concerned, she understood:

that I needed to resubmit that once I had gone through whatever the 
Methadone Authority wanted me to do * * * and if that was approved, 
then they would have no problem giving me an additional number for 
Rosalind Cropper, Inc. But it was on hold pending completion of some 
other steps that I later learned I needed to do.

    On cross-examination, Respondent testified that she agreed to drop 
the proceedings on her application for Rosalind, Cropper, Inc., to be 
registered as a narcotic treatment program. Asked if she ever signed 
any written indication of that agreement, Respondent testified that she 
signed an agreement with Mr. Reese that he would act as her agent.
    A registration technician in DEA's Atlanta, Georgia, Field 
Division, stated in an affidavit in evidence as a Government exhibit 
that on April 3, 1998, Respondent called her and asked the status of 
her application, and that during this conversation that registration 
technician was reviewing a databank that revealed derogatory 
information about Respondent. The registration technician stated that 
she asked Respondent whether she had had any problems in the past, and 
Respondent responded in the negative to both questions. Finally, the

[[Page 41047]]

registration technician stated that she told Respondent that she would 
send the application to the DEA Tennessee District Office and that she 
in fact did so on April 3, 1998.
    Respondent testified that in this conversation the registration 
technician asked if she had any past problems with her DEA number, and 
that she responded in the negative. Respondent further testified that 
she did not consider her registration ``restricted'' by the 1995 
memorandum of agreement and that she had asked Mr. Reese about the 
matter and he had said that the requirements to which she agreed were 
things that every doctor is supposed to do anyway. According to 
Respondent, she asked Mr. Reese, ```Does this mean that I'm being 
restricted, denied or should use my license in any different way?' And 
the answers were `no.''' Respondent further testified, ``[a]nd that's 
the way I interpreted this. That this does not restrict me in any way 
from doing any other thing other than any other physician could do with 
a DEA number.''
    A diversion group supervisor of DEA's Tennessee District Office 
testified that on April 6, 1998, Respondent telephoned him and said 
that the DEA registration clerk in Atlanta had referred her to him to 
ascertain the status of her DEA registration. The group supervisor told 
Respondent that applications were not normally forwarded to his office 
unless there was a problem, and asked her whether she had had any 
previous difficulties with her DEA registration; Respondent replied in 
the negative. A D/I of DEA's Tennessee District Office was assigned to 
investigate the application. The D/I telephoned Respondent on April 29, 
1998, and advised her that the Tennessee District Office would 
recommend denial of her application because she had falsely answered 
question 4.(c) and thus materially falsified her application. The D/I 
testified that she explained to Respondent that she should have 
answered that question in the affirmative because her application for 
registration as a narcotic treatment program had been denied and 
because she had entered into a Memorandum of Agreement affecting her 
registration as a practitioner. According to the D/I, Respondent:

said that her application was not denied, and that it was a 
political protest in that the State was requiring here to show a 
substance abuse problem in the area and that she needed to provide a 
certificate of need. And she stated that she didn't--she just 
determined not to proceed with [efforts to obtain the state license 
for a narcotic treatment program].

    Respondent did, however, acknowledge that she had entered into a 
Memorandum of Agreement with DEA. The D/I testified that she considered 
the Memorandum of Agreement a restriction on Respondent's registration 
because it required her to file records with DEA. The D/I acknowledged 
that she did not receive any information leading her to conclude that 
Respondent knew that DEA considered this requirement a restriction.
    According to the chief executive officer of the Memphis Health 
Center, revocation of Respondent's DEA registration would have a 
``devastating'' impact on Memphis Health Center and its patients. He 
testified that physicians who work at Memphis Health Center are 
required to have DEA registrations. Respondent testified that she could 
not continue her practice in Rossville if her application for DEA 
registration is denied because she would not be able to provide her 
patients the care they need.
    Pursuant to 21 U.S.C. 824(a)(1) the Acting Administrator may revoke 
a DEA Certificate of Registration, ``upon a finding that the registrant 
* * * has materially falsified any application'' for a DEA 
registration. Pursuant to 21 U.S.C. 824(a)(4), the Acting Administrator 
may revoke a registration if he determines that the issuance of such 
registration would be ``inconsistent with the public interest'' as 
determined pursuant to 21 U.S.C. 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 Acting Administrator may properly rely on any one or a combination 
of those factors, and give each factor the weight he deems appropriate, 
in determining whether a registration should be revoked or an 
application for registration denied. See Henry J. Schwartz, Jr., M.D., 
54 FR 16422 (DEA 1989).
    It should be noted that the Acting Administrator may apply the 
bases of revoking a registration under Sec. 824(a) to the denial of 
registrations under Sec. 823(f). See Anthony D. Funches, 64 FR 14268 
(DEA 1999).
    As noted above, 21 CFR 1306.07(b) provides that a physician who is 
not specifically registered to conduct a narcotic treatment program may 
administer ``narcotic drugs to a person for the purpose of relieving 
acute withdrawal symptoms when necessary while arrangements are being 
made for referral for treatment.'' The regulation prohibits 
administering more than one days' medication at one time and prohibits 
treating such a person for more than three days.
    Certain other regulatory provisions are also relevant in this case: 
21 CFR 1306.07(a) generally prohibits registrants from administering or 
dispensing directly narcotic drugs to treat narcotic addicts unless the 
registrant is separately registered as a narcotic treatment program; 
and 21 CFR 1305.06(d) requires that an order form be dated by the 
person who signed it.
    A number of findings in this case turn on credibility 
determinations: (1) Whether Respondent knew that Rosalind Cropper, 
Inc.'s application for registration as a narcotic treatment program had 
been denied; (2) whether Respondent sent methadone logs to DEA's New 
Orleans office as required by the Memorandum of Agreement; and (3) 
whether, if so, DEA investigators received those logs.
    Based on their demeanor, Judge Bittner found, and the Acting 
Administrator concurs, that the DEA investigators who testified were 
credible witnesses. The Acting Administrator therefore concurs with 
Judge Bittner's finding that none of them received the methadone logs 
that Respondent purportedly submitted. The Acting Administrator further 
concurs with Judge Bittner's finding that there is no indication the 
former Diversion Group Supervisor had any reason to be less than honest 
in the statements in his affidavit, and that he also did not receive 
the logs in question.
    Although the investigators who should have received the logs did 
not, the question remains whether Respondent sent them. Judge Bittner 
found the Respondent a difficult witness who frequently gave 
nonresponsive answers to questions. Having considered Respondent's 
demeanor, Judge Bittner found that she was credible. The Acting 
Administrator finds, however, that there is insufficient evidence in 
the record to determine whether or not Respondent sent the log

[[Page 41048]]

as she testified. Thus, the Acting Administrator finds insufficient 
evidence in the record to determine whether or not Respondent failed to 
comply with the terms of the Memorandum of Agreement.
    Finally, on the issue of whether Respondent knew about the denial 
of Rosalind Cropper, Inc.'s application, the Acting Administrator 
concurs with Judge Bittner's finding that Respondent credibly testified 
she did not.
    It is undisputed that Respondent answered ``no'' to the question on 
her 1998 application asking whether the ``applicant'' had ever had a 
Federal controlled substance registration revoked, suspended, 
restricted, or denied. Based on the record, the Acting Administrator 
concurs with Judge Bittner's finding that Respondent did not know that 
her application had been denied. Therefore, Respondent could not have 
intentionally falsified the application.
    A DEA Certificate of Registration may be revoked or an application 
denied based upon an unintentional falsification of an application, but 
a lack of intent to deceive is a relevant consideration in determining 
whether a registrant or applicant should possess a DEA registration. 
See Anthony D. Funches, 64 FR 14267 (DEA 1999); Samuel Arnold, D.D.S., 
63 FR 8687 (DEA 1998); Martha Hernandez, M.D., 62 FR 61145 (DEA 1997).
    In this case, the Respondent consistently testified that she 
believed she had allowed her DEA narcotic treatment program application 
to lapse. Indeed, the testimony of one of the Government 
investigator's, regarding her conversation with Respondent April 29, 
1998, corroborated Respondent's testimony in this respect. Judge 
Bittner specifically found credible Respondent's testimony that she 
unaware of the denial of the DEA application for a narcotic treatment 
program; and further found the DEA investigators who testified to be 
credible witnesses. The Acting Administrator concurs with Judge 
Bittner's finding that Respondent was unaware of the denial of her DEA 
narcotic treatment program application, and also concurs that, under 
the circumstances of this case, this misstatement does not disqualify 
Respondent from holding a DEA registration.
    With regard to factor one of 21 U.S.C. 823(f), it is undisputed 
that Respondent is authorized by the State of Tennessee to handle 
controlled substances. Inasmuch as State licensure is a necessary but 
insufficient condition for a DEA registration, the Acting Administrator 
concurs with Judge Bittner's finding that this factor is not 
determinative.
    With regard to factor two, the only evidence in the record on this 
factor pertains to Respondent's handling of methadone. Respondent 
conceded on cross-examination that between November 1991 and January 
1992, she administered methadone to treat patients ``for either HIV 
and/or their opiate addiction'' in her office, although she insisted 
that she did so for no more than three days. The Acting Administrator 
concurs with Judge Bittner's finding that does not appear from the 
record that this treatment was solely in preparation for referring 
patients to a treatment program. Respondent also admitted that she 
issued a few prescriptions for methadone.
    Respondent did not admit that she ordered methadone after telling 
DEA representatives that she would not. As discussed above, Respondent 
testified that the May 5, 1992, date appeared on an order form because 
the pharmacist filed in the date when he shipped the order, but that 
she actually provided the order form to him some time earlier. This 
practice would contravene the requirement in 21 CFR 1305.06(d) that the 
order form be dated by the person who signed it.
    In light of the foregoing, the Acting Administrator concurs with 
Judge Bittner's finding that this factor weighs in favor of a finding 
that Respondent's registration would be inconsistent with the public 
interest. However, the Acting Administrator further concurs with Judge 
Bittner's finding relevant that there were very few order forms or 
prescriptions at issue, and that there was insufficient evidence to 
determine the number of patients Respondent treated with methadone. The 
Acting Administrator also notes that Respondent has held a DEA 
registration as a practitioner since 1986, and the record reflects no 
additional negative allegations or evidence concerning her dispensing 
or prescribing practices.
    With regard to the third factor, there is no evidence that 
Respondent has been convicted of violating any laws relating to 
controlled substances.
    With regard to the fourth factor, as discussed above under factor 
two, Respondent violated 21 CFR 1306.07(a), 1306.07(b), and 1305.06(d).
    With regard to the fifth and final factor, the Acting Administrator 
finds the record contains insufficient information to make a finding 
whether or not Respondent violated the terms of the Memorandum of 
Agreement by failing to send in the required quarterly methadone logs. 
As previously mentioned, Judge Bittner specifically found credible both 
the DEA investigator's testimony that the logs were never received; and 
Respondent's testimony that the logs were sent.
    The Acting Administrator concurs with Judge Bittner's finding that 
Respondent violated various regulatory provisions in her handling of 
methadone in 1991 and 1992. Respondent does not admit that she engaged 
in any misconduct, and as discussed above, Judge Bittner found her a 
less than responsive witness. Nonetheless, with some reservations, the 
Acting Administrator concurs with Judge Bittner's recommendation that 
Respondent's instant application be granted. It appears that Respondent 
does not handle methadone in her current position and that she has no 
need to do so. The Acting Administrator concurs with Judge Bittner's 
conclusion that Respondent has not shown a full understanding of all 
the responsibilities of a DEA registrant, as evidenced by the findings 
pursuant to factors two and four, above. The record shows, however, 
that, other than these noted violations, Respondent has shown herself 
to have been a responsible DEA registrant since 1986.
    Accordingly, the Acting Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that the 
application for a DEA Certificate of Registration as a practitioner in 
Tennessee submitted by Rosalind A. Cropper, M.D., be, and it hereby is, 
granted, contingent upon a satisfactory criminal history and records 
check conducted by the DEA Office of Diversion Control regarding 
possible CSA convictions and/or violations to ensure that Respondent's 
status with regard to her application has not changed since the date 
Respondent completed the application. The Acting Administrator hereby 
further orders that Respondent's DEA Certificate of Registration, 
BC0747381, be continued in accordance with applicable law and 
regulations. This order is effective September 5, 2001.

    Dated: July 26, 2001.
William B. Simpkins,
Acting Administrator.
[FR Doc. 01-19514 Filed 8-3-01; 8:45 am]
BILLING CODE 4410-09-M