[Federal Register Volume 70, Number 108 (Tuesday, June 7, 2005)]
[Notices]
[Pages 33200-33203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11251]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Scott H. Nearing, D.D.S., Grant of Restricted Registration

    On January 27, 2003, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA) issued an 
Order to Show Cause to Scott H. Nearing, D.D.S. (Dr. Nearing/
Respondent) of Wichita, Kansas. Dr. Nearing was notified of an 
opportunity to show cause as to why DEA should not deny this 
application for a DEA Certificate of Registration as a practitioner on 
the grounds that his registration would be inconsistent with the public 
interest, as that term is used in 21 U.S.C. 823(f).
    The Order to Show Cause alleged in sum, that between April 1989 and 
May 1993 Dr. Nearing wrote and presented more than 100 fictitious 
prescriptions to local pharmacies for controlled substances and ordered 
narcotic and benzodiazepine controlled substances from a wholesale drug 
company, all for his personal use and not for legitimate medical 
purposes. As a result of these actions, he surrendered his DEA 
Certificate of Registration on June 23, 1993, and on July 11, 1994, 
pled guilty to one count of violating 21 U.S.C. 843(a)(3) and was 
sentenced to four months home confinement and placed on probation for 
four years. It was further alleged that between 1994 and 2000, the 
Kansas State Dental Board (Dental Board) took several disciplinary 
actions against Respondent, ranging from license suspensions in 1994 
and 1998 to discipline imposed in 2000 for practicing without a 
license.
    Respondent, acting pro se, requested a hearing and the matter was 
docketed before Administrative Law Judge Mary Ellen Bittner. Following 
pre-hearing procedures, a hearing was held in Topeka, Kansas, on July 
15, 2004. At the hearing, both parties called witnesses to testify and 
introduced documentary evidence. Subsequently, both parties filed 
Proposed Findings of Fact, Conclusions of Law, and Argument.
    On January 3, 2005, Judge Bittner issued her Opinion and 
Recommended Ruling, Findings of Fact, Conclusions of Law, and Decision 
of the Administrative Law Judge (Opinion and Recommended Ruling), 
recommending that Respondent's application for registration as a 
practitioner be granted, with the following restrictions: (1) 
Respondent shall not write any prescriptions for himself, and shall not 
obtain or possess for his use any controlled substance except upon the 
written prescription of another licensed medical professional, and (2) 
for at least two years from the date of the entry of a final order in 
this proceeding, Respondent shall continue to attend Caduceus meetings 
on a monthly basis. No Exceptions to the Opinion and Recommended Ruling 
were filed and on February 2, 2005, Judge Bittner transmitted the 
record of these proceedings to the Deputy Administrator.
    The Deputy Administrator has considered the record in its entirety 
and pursuant to 21 CFR 1316.67, hereby issues her final order based 
upon findings of fact and conclusions of law hereinafter set forth. The 
Deputy Administrator adopts in full, the recommended ruling, findings 
of fact and conclusions of law of the Administrative Law Judge and 
agrees Respondent's application should be approved, with restrictions.
    The record before the Deputy Administrator shows Dr. Nearing 
graduated from the University of Missouri, Kansas City Dental School in 
1983. In March 1984, he purchased a small dental practice from the 
widow of another dentist located in Overland Park, Kansas and nine 
years later, DEA began investigating Respondent after local pharmacies 
began questioning prescriptions he had written.

[[Page 33201]]

    Based on records from approximately 30 Kansas City pharmacies, DEA 
Diversion Investigators determined that between 1989 and 1993, 
Respondent presented multiple fictitious prescriptions for narcotic 
controlled substances, using false names of patients. Most were for 
drugs containing hydrocodone, a Schedule III controlled substance, but 
some were for oxycodone, a Schedule II controlled substance. It was 
also determined Respondent had ordered narcotic and benzodiazepine 
controlled substances for his personal use from a wholesale drug 
company.
    On June 22, 1993, Diversion Investigators went to Respondent's 
office and confronted him about the fictitious prescriptions. After 
initial denials, he cooperated and admitting writing the fraudulent 
prescriptions to feed his drug abuse problem. Dr. Nearing also executed 
a DEA Form 1204, voluntarily surrendered his DEA Certificate of 
Registration and agreed to not reapply for registration for a minimum 
of two years.
    Records introduced at the hearing showed that between May 1, 1989 
and April 27, 1993, Respondent issued approximately 188 fraudulent 
prescriptions for Schedule II and III controlled substances, most of 
which were for 16 or 20 dosage units. Further documentary evidence 
showed that between March 27 and June 10, 1993, Dr. Nearing ordered 
approximately 1700 dosage units of Vicodin, Darvocet N-100 and Valium 
from two drug wholesalers. Vicodin is the brand name for a product 
containing hydrocodone, Valium is the brand name of a product 
containing diazepam, a Schedule IV controlled substance and Darvocet N-
100 is the brand name for a product containing propoxyphene, also a 
Schedule IV controlled substance. Dr. Nearing testified at the hearing 
that while most of the Valium was provided to patients, he probably 
personally used the other drugs. There is no evidence that Dr. Nearing 
ever diverted any of these controlled substances to others or that any 
patient was harmed as a result of his personal abuse problems.
    As a result of this investigation, on June 8, 1994, Respondent was 
charged in a one-count information in the United States District Court 
for the District of Kansas, with violating 21 U.S.C. 843(a)(3) by 
fraudulently obtaining a Schedule III narcotic controlled substance. 
Dr. Nearing pled guilty to that offense and on September 19, 1994, was 
placed on probation for four years, sentenced to four months home 
confinement, ordered to participate in a substance abuse treatment 
program and required to pay a $1,000.00 fine.
    On March 22, 1994, the Dental Board entered into a stipulation with 
Respondent under which his license to practice dentistry was suspended 
for one year. However, the suspension was stayed so long as he met 
certain conditions, including complying with a rehabilitation program 
and refraining from any use of alcohol or controlled substances. This 
program included attendance at twelve-step meetings, personal 
counseling, working with a sponsor, participation in an aftercare group 
and drug testing upon demand.
    The administrator of the Impaired Provider Program (IPP) later 
advised the Dental Board that Respondent was not complying with the 
program's requirements because he had refused therapy. As a result, 
Respondent entered into a Stipulation Agreement and Enforcement Order 
with the Dental Board in December 1996. Under that Order, his license 
would be suspended for twelve months; however, this suspension was also 
not put into effect, as long as Respondent re-enrolled in IPP and 
adhered with its requirements.
    Respondent did reenter IPP, however, as a result of a second 
refusal to undergo therapy, the administrator again advised the Dental 
Board that he was not in compliance with the program. As a consequence, 
in a Final Order dated January 16, 1998, Respondent's dental license 
was suspended for twelve months. During this period, Respondent failed 
to renew his license and it was cancelled, effective March 1, 1999. In 
late 1999, after his suspension period had run, Respondent was seen 
practicing dentistry by a state investigator and because he had not 
renewed his license, Respondent was then practicing without a license.
    He applied for a new license and in a Stipulation and Final Agency 
Order dated May 20, 2000, the Dental Board granted his application. 
However, as a sanction, it suspended his license to practice while he 
underwent additional rehabilitation. Respondent then entered a program 
run by the Professional Renewal Center (Center) of Lawrence, Kansas. 
This included intensive psychotherapy and treatment for a previously 
undiagnosed problem, which the Center had discovered.
    In January 2001, the Center's then-Director wrote the Dental Board 
supporting Respondent's request to return to practice, noting Dr. 
Nearing's significant progress, the support of his family and his 
significant motivation for change. The Director supported Dr. Nearing's 
resumption of practice under enumerated conditions, which included 
continued participation in Caduceus, a support group for health 
professionals patterned after Alcoholics Anonymous and Narcotics 
Anonymous. The Director further recommended that Dr. Nearing not engage 
in a solo practice, as the strains of running such a business had 
contributed to his original abuse problems.
    Based on this recommendation, in an Order dated January 30, 2001, 
the Dental Board lifted Dr. Nearing's license suspension and as of the 
date of the DEA hearing, he is fully licensed to practice dentistry in 
Kansas.
    Respondent testified at the hearing, describing his history of 
violations and rehabilitative efforts. Immediately after the June 1993 
interview, where he was apprised that authorities were aware of his 
activities, he entered his first in-patient treatment program. From 
1994 to 1997 he underwent rehabilitative treatment as recommended by 
the Dental Board. However, he did stop seeing the therapist which the 
program's director had recommended. Dr. Nearing attributed this to 
confusion over whether seeing the therapist was mandatory and his then-
belief the therapy was not helping him. This resulted in the first 
letter to the Dental Board that he was not in compliance with the 
program. Although he discontinued therapy, his urine screens were all 
negative and he attended Alcoholics Anonymous meetings. Dr. Nearing was 
reinstated into the program but in 1998 was dropped once more, again 
apparently for not seeing a therapist as directed.
    On the recommendation of the Dental Board, he finally entered the 
Center's program in Lawrence, which addressed problems that had 
previously gone undiagnosed and this led eventually to full 
reinstatement of his license to practice dentistry. Respondent 
testified that he has not used drugs since August 18, 1994, and has not 
consumed alcohol since at least August 1999.
    At the time of the hearing, Dr. Nearing was the supervising dentist 
in a clinic owned by another dentist. He oversees the professional 
practice of several other dentists, but does not have the business 
responsibilities which contributed to his abuse problems while 
operating a solo practice. He described his current situation as a 
``wonderful practice'' and there is no evidence he has relapsed or 
abused any drugs since 1994. Dr. Nearing continues to attend Caduceus 
meetings and testified that he would not object to having conditions 
placed on his registration if the application was granted.
    The current director of the Center and Respondent's monitoring 
physician

[[Page 33202]]

jointly wrote DEA in support of his application for registration. They 
reported Dr. Nearing was in sustained full remission and characterized 
his dependence recovery as being ``remarkable.''
    Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny any 
pending application for registration if she determines that 
registration would be inconsistent with the public interest. Section 
823(f) requires that the following factors be considered in determining 
the public interest:
    (1) The recommendation of the appropriate state licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing or conducting research 
with respect to controlled substances.
    (3) The applicant's conviction record under Federal or state laws 
relating to the manufacture, distribution, or dispensing of controlled 
substances.
    (4) Compliance with applicable state, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health or 
safety.
    These factors are to be considered in the disjunctive; the Deputy 
Administrator may rely on any one or a combination of factors and may 
give each factor the weight she 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 16,422 
(1989).
    With regard to factor one, the recommendation of the appropriate 
state licensing board or professional disciplinary authority, Judge 
Bittner found Respondent is now fully licensed by the State of Kansas 
to practice dentistry and has authority to handle controlled substances 
in that state. She therefore found this factor weighed in favor of 
registration. Nevertheless, as noted by the Administrative Law Judge, 
state licensure is a necessary, but not sufficient condition for 
registration, and therefore this factor is not dispositive. See e.g., 
Wesley G. Harline, M.D., 65 FR 5,665-01 (2000); James C. LaJevic, 
D.M.D., 64 FR 55,962 (1999). The Deputy Administrator agrees.
    With regard to factor two, Respondent's experience in handling 
controlled substances, he abused controlled substances after obtaining 
them through fictitious prescriptions and ordering them from 
wholesalers. Judge Bittner concluded that even though Respondent never 
inappropriately prescribed, administered or otherwise dispensed 
controlled substances to any patient, this factor weighed in favor of a 
finding that Respondent's registration would be inconsistent with the 
public interest. The Deputy Administrator concurs.
    The record also establishes Respondent entered a guilty plea to a 
charge of violating federal law by fraudulently obtaining a Schedule 
III narcotic controlled substance. Thus, as also found by Judge 
Bittner, factor three weighs in favor of a finding that Respondent's 
registration would be inconsistent with the public interest.
    With regard to factor four, compliance with applicable laws 
relating to controlled substances, Respondent's use of purported 
prescriptions with fictitious names violated statutory and regulatory 
requirements that prescriptions be issued only for legitimate medical 
purposes and must bear the full name and address of the patient. As 
found by Judge Bittner, this factor also weighs against registration.
    Finally, with regard to factor five, beyond the violations 
addressed above, the Deputy Administrator agrees with Judge Bittner 
that Respondent has not engaged in other conduct that may threaten the 
public health or safety.
    Applying the above factors, Judge Bittner concluded the record 
clearly establishes grounds for finding that Respondent's registration 
would be inconsistent with the public interest. However, she 
recommended that the Deputy Administrator, in the exercise of her 
discretion, grant Respondent's application, with restrictions.
    Judge Bittner noted Respondent cooperated with DEA investigators 
when he was first confronted with his misconduct in 1994. He admitted 
his abuse of controlled substances and the fraudulent means used to 
acquire them. He immediately sought treatment and there is no evidence 
that Dr. Nearing has abused any controlled substances for almost 11 
years. While terminated from his initial rehabilitation program over 
the therapy issue, he did not return to drug use and eventually Dr. 
Nearing successfully completed an intensive program for impaired 
professionals.
    The Administrative Law Judge, who observed Respondent's demeanor 
during the hearing, credited his testimony that he has continued 
rehabilitation and concluded that Dr. Nearing is unlikely to repeat his 
past misconduct. She therefore found that granting Respondent's 
application would not be inconsistent with the public interest, subject 
to the enumerated restrictions.
    The Deputy Administrator also finds that adequate grounds exist for 
denying Respondent's application for DEA registration. Having concluded 
that there is a lawful basis upon which to deny Respondent's 
application, the question remains as to whether the Deputy 
Administrator should, in the exercise of her discretion, grant or deny 
the application. Like Judge Bittner, the Deputy Administrator concludes 
that it would not be inconsistent with the public interest to grant 
Respondent's pending application. See Karen A. Kreuger, M.D., 69 FR 
7,016 (2004) [grant of restricted registration]; Jeffrey Martin Ford, 
D.D.S., 68 FR 10,750 (2003) [same].
    The Deputy Administrator finds significant Respondent's willingness 
to cooperate with investigators and accept responsibility, both 
administratively and criminally. Upon discovery of his activities he 
immediately entered rehabilitation and most recently completed an 
intensive program for health professionals tailored to a diagnosis made 
only upon Dr. Nearing's admission to that program.
    Most importantly, there is no evidence he has misused any 
controlled substances for almost eleven years now and he is in a 
responsible professional situation that is conducive to his continued 
compliance with the laws and regulations governing controlled 
substances. In sum, it appears from these positive developments that 
Respondent has acknowledged his past problems and taken steps to ensure 
continued recovery.
    However, given the concerns about Respondent's past mishandling of 
controlled substances, a restricted registration is warranted. 
Accordingly, the Deputy Administrator adopts the following restrictions 
upon the Respondent's DEA registration, as recommended by Judge 
Bittner:
    1. Respondent shall not write any prescriptions for himself, and 
shall not obtain or possess for his use any controlled substance except 
upon the written prescription of another licensed medical professional.
    2. For at least two years from the date of the entry of a final 
order in this proceeding, Respondent shall continue to attend Caduceus 
meetings on a monthly basis.
    Additionally,
    3. Respondent's controlled substance handling authority shall be 
limited to the administering of controlled substances in his office and 
the writing of prescriptions only.
    4. Respondent shall inform the DEA, within 30 days of the event, of 
any adverse action taken by any state upon his license to practice 
dentistry or upon his authorization to handle controlled substances 
within that state.
    Accordingly, the Deputy Administrator of the Drug Enforcement

[[Page 33203]]

Administration, pursuant to the authority vested in her by 21 U.S.C. 
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that the 
application for DEA Certificate of Registration submitted by Scott H. 
Nearing, D.D.S. be, and it hereby is, granted, subject to the above 
described restrictions. This order is effective July 7, 2005.

    Dated: May 25, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05-11251 Filed 6-6-05; 8:45 am]
BILLING CODE 4410-09-M