[Federal Register Volume 73, Number 41 (Friday, February 29, 2008)]
[Notices]
[Pages 11146-11148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3873]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Pamela Monterosso, D.M.D.; Denial of Application

    On February 6, 2006, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Pamela Monterosso, D.M.D., (Respondent) of New York, N.Y. 
The Show Cause Order proposed the denial of Respondent's pending 
application for a DEA Certificate of Registration as a practitioner on 
the ground that her ``registration would be inconsistent with the 
public interest.'' Show Cause Order at 1 (citing 21 U.S.C. 823(f)).
    The Show Cause Order specifically alleged that Respondent had 
previously held a DEA registration at premises located in Washington, 
DC, which she surrendered for cause in November 1997. Id. According to 
the allegations, in September 1997, Respondent was

[[Page 11147]]

arrested for obtaining oxycodone, a schedule II controlled substance, 
by use of a fraudulent prescription, and admitted to investigators that 
she was abusing pharmaceutical controlled substances. Id. The Show 
Cause Order alleged that following her arrest, DEA investigators 
audited Respondent's handling of controlled substances and found that 
she could not ``produce proper records to account for the dispensing of 
these substances.'' Id. at 2. The Show Cause Order further alleged that 
on October 22, 1997, the United States Attorney for the District of 
Columbia filed an information which charged Respondent with obtaining a 
controlled substance by fraud, a violation of 21 U.S.C. 843(a)(3), and 
that Respondent subsequently pled guilty to the charge and was 
sentenced to two years probation. Id.
    The Show Cause Order next alleged that in July 1998, Respondent 
entered into a Consent Order with the Maryland Board of Dental 
Examiners under which she was placed on probation for three years. Id. 
The Show Cause Order further alleged that in June 1999, the Maryland 
Board suspended Respondent's dental license for a period of twelve 
months. Id.
    The Show Cause Order alleged that between September 1998 and March 
1999, Respondent ``fraudulently obtained narcotics from Maryland 
pharmacies'' on six occasions. Id. The Show Cause Order alleged that 
Respondent was subsequently arrested for obtaining hydrocodone by 
fraud, and that in April 2000, Respondent was convicted following her 
guilty plea on one count of violating Maryland narcotics laws and was 
sentenced to twelve months probation. Id.
    The Show Cause Order also alleged that in June 2004, Respondent 
failed to disclose her ``post-1997 drug abuse, arrest, and conviction'' 
to the New York State Board of Dentistry. Id. The Show Cause Order 
further alleged that Respondent committed a material falsification 
because she ``failed to disclose [her] 2000 criminal conviction'' on 
the DEA application that is at issue in this proceeding. Id.
    Upon service of the Show Cause Order, Respondent, through her 
counsel, requested a hearing and submitted a letter responding to the 
allegations. The matter was assigned to Administrative Law Judge (ALJ) 
Mary Ellen Bittner who ordered the parties to file pre-hearing 
statements. While the Government timely filed its statement, Respondent 
did not meet its May 30, 2006 filing deadline. Accordingly, on July 13, 
2006, the Government moved to terminate the proceeding and requested 
that the ALJ find that Respondent had waived her right to a hearing. 
Gov. Mot. for Summ. Disp. at 1-2.
    Upon receipt of the Government's motion, the ALJ issued a 
memorandum offering Respondent the opportunity to respond by July 31, 
2006. Order Terminating Proceeding at 1. Respondent failed to do so. On 
August 9, 2006, the ALJ found that Respondent had waived her right to a 
hearing, granted the Government's motion, and ordered that the 
proceeding be terminated. Id.
    On June 6, 2007, the case file was forwarded to me for final agency 
action. Based on: (1) Respondent's failure to comply with the ALJ's 
Order to submit her pre-hearing statement, and (2) her failure to 
respond to the Government's motion for summary disposition, I adopt the 
ALJ's finding that Respondent has waived her right to a hearing. See 21 
CFR 1301.43(d). I therefore issue this Decision and Final Order without 
a hearing based on relevant material in the investigative file and make 
the following findings.

Findings

    On February 6, 2005, Respondent submitted an application for a DEA 
Certificate of Registration as a practitioner. On the application, 
Respondent was required to answer several questions including whether 
she had ``ever been convicted of a crime in connection with controlled 
substances under state or federal law?,'' and whether she had ``ever 
surrendered or had a federal controlled substance registration revoked, 
suspended, restricted or denied?'' Respondent answered ``yes'' to both 
of these questions.\1\ Respondent offered the following explanation of 
her ``yes'' answers:

    \1\ On the application, Respondent was also asked whether she 
had ``ever surrendered or had a state professional license or 
controlled substance registration revoked, suspended, denied, 
restricted, or placed on probation?'' Respondent answered ``no'' to 
this question.
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    [O]n December 14, 1997 I [pled] guilty to one count of Rx fraud 
in Washington D.C. under His Honor Judge Stanley Sporkin. I was 
suffering from post partum depression after the birth of my first & 
second child. I was told not to prescribe narcotics until my 
treatment was completed, and my diagnosis assured. * * * Full 
prescribing rights were given back to me. No state license was ever 
revoked [or] suspended. No problems have occurred since, and to the 
best of my knowledge the case was expunged exactly 7 years later in 
2004.

    Based on Respondent's affirmative answers to the two questions, her 
application was assigned to a Diversion Investigator (DI) for further 
investigation. During the course of her investigation, the DI 
determined that in December 1997, Respondent had pled guilty to one 
count of obtaining oxycodone by fraud, a violation of 21 U.S.C. 
843(a)(3), in the U.S. District Court for the District of Columbia, and 
that she had also surrendered her DEA registration. Moreover, as a 
result of her conviction, in July 1998, the Maryland State Board of 
Dental Examiners entered into a consent order with Respondent which 
placed her on probation for a period of three years during which she 
was prohibited from prescribing controlled substances.
    The DI also determined that a DEA investigation had found that on 
various dates between January 4, 1995, and August 28, 1997, Respondent 
had failed to document on order forms, the date and quantity of 
schedule II controlled substances (oxycodone) she had received. The 
same investigation also audited Respondent's handling of controlled 
substances and found that she was short 427 oxycodone tablets. As a 
result of this investigation, Respondent entered into a civil 
settlement with the Department of Justice and agreed to pay a civil 
penalty of $15,000.
    The DI further determined that in early 1999, Respondent was 
arrested by officers of the Montgomery County, Maryland police 
department, and charged with six additional offenses under Maryland law 
related to controlled substances including obtaining hydrocodone by 
fraud and the unlawful possession of hydrocodone. While five of the six 
counts were dismissed, on April 6, 2000, Respondent pled guilty to the 
unlawful possession of a controlled substance for which she was fined 
and placed on probation. Respondent satisfactorily completed her 
probation and was granted probation before judgment.
    In her request for a hearing, Respondent acknowledged that she 
``did in fact obtain the schedule III controlled substance hydrocodone 
from a pharmacy in Montgomery County.'' Resp. Req. for Hearing at 1. 
Respondent asserts, however, that she ``return[ed] the pills to the 
pharmacist just 10 minutes later,'' but that the pharmacist nonetheless 
filed a police report which led to her arrest ``364 days later.'' Id.
    Respondent contends that ``in the spring of 2000, in the Montgomery 
County Court, the case was ruled nulle prosequi * * * and was 
dropped.'' Id. Respondent further asserts that ``[w]e were advised by 
our legal counsel that a nol-pros decision meant that [the] arrest was 
thrown out and future disclosure of the event was neither

[[Page 11148]]

appropriate nor necessary,'' and that she ``was told that this decision 
meant, in laymen's terms, `that the arrest never happened.' '' Id.\2\ 
Respondent further stated that she would submit the transcript from the 
proceeding to the Agency, Id., but did not do so.
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    \2\ Respondent also contended that while in June 1999, the 
Maryland Board ``did indeed suspend her dental license for 12 
months, [the suspension] was also stayed immediately.'' Respondent's 
Req. for Hearing at 1. The record contains, however, a copy of a 
June 2, 1999 consent order under which Respondent voluntarily agreed 
not to practice dentistry for a period of twelve months. This order 
contains no indication that it was stayed. The Show Cause Order did 
not, however, allege either that Respondent's ``no'' answer to the 
liability question regarding whether her state license had been the 
subject of discipline or her statement that ``[n]o state license was 
ever revoked and/or suspended'' was materially false. I therefore do 
not consider whether either of these statements is grounds for the 
denial of her application.
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Discussion

    Section 303(f) of the Controlled Substances Act provides that an 
application for a practitioner's registration may be denied upon a 
determination ``that the issuance of such registration would be 
inconsistent with the public interest.'' 21 U.S.C. 823(f). In making 
the public interest determination, the CSA requires the consideration 
of the following factors:

    (1) The recommendation of the appropriate State licensing board 
or professional disciplinary authority.
    (2) The applicant's experience in dispensing * * * 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.

Id.
     ``These factors are considered in the disjunctive.'' 
Robert A. Leslie, M.D., 68 FR 15227, 15230 (2003). I ``may rely on any 
one or a combination of factors, and may give each factor the weight 
[I] deem[] appropriate in determining whether * * * an application for 
registration [should be] denied.'' Id. Moreover, I am ``not required to 
make findings as to all of the factors.'' Hoxie v. DEA, 419 F.3d 477, 
482 (6th Cir. 2005); see also Morall v. DEA, 412 F.3d 165, 173-74 (D.C. 
Cir. 2005).
    Furthermore, under Section 304(a)(1), a registration may be revoked 
or suspended ``upon a finding that the registrant * * * has materially 
falsified any application filed pursuant to or required by this 
subchapter.'' 21 U.S.C. 824(a)(1). Under agency precedent, the various 
grounds for revocation or suspension of an existing registration that 
Congress enumerated in section 304(a), 21 U.S.C. 824(a), are also 
properly considered in deciding whether to grant or deny an application 
under section 303. See Anthony D. Funches, 64 FR 14267, 14268 (1999); 
Alan R. Schankman, 63 FR 45260 (1998); Kuen H. Chen, 58 FR 65401, 65402 
(1993). Thus, the allegation that Respondent materially falsified her 
application is properly considered in this proceeding, see Samuel S. 
Jackson, 72 FR 23848, 23852 (2007), and is, if proved, an adequate 
ground for denying her application.
    On the Show Cause Order, the Government made two allegations that 
Respondent engaged in material falsification. First, it alleged that in 
June 2004, Respondent failed to disclose her ``post-1997 drug, abuse, 
arrest, and conviction'' when she ``appeared before the New York State 
Board of Dentistry * * * as an applicant for a license to practice 
dentistry.'' Show Cause Order at 2.
    Respondent remains, however, licensed in good standing in the State 
of New York. Under these circumstances, the allegation that she failed 
to disclose to the New York Board of Dentistry the second arrest and 
conviction (and thus procured her dental license by fraudulent means) 
is a matter which should be resolved in the first instance by the State 
and not DEA. The allegation is therefore dismissed.
    Respondent's statement on her DEA application is, however, properly 
before the Agency. Even accepting Respondent's statement that she was 
advised by her legal counsel that she was not required to disclose her 
arrest and plea, DEA has long taken the view that even when a court 
withholds adjudication and ultimately dismisses the charge after the 
completion of probation, the proceeding is still a conviction within 
the meaning of the Controlled Substances Act. See Eric A. Baum, M.D., 
53 FR 47272, 47274 (1988); see also David A. Hoxie, 69 FR 51477, 51478 
(1994).
    Moreover, the failure to disclose such a conviction constitutes a 
material falsification because it is ``capable of influencing'' the 
decision as to whether to grant an application. See Kungys v. United 
States, 485 U.S. 759, 770 (1988) (int. quotation and other citation 
omitted). As DEA has frequently noted, an applicant's answers to the 
various liability questions are material because the Agency ``relies 
upon such answers to determine whether an investigation is needed prior 
to granting the application.'' Martha Hernandez, M.D., 62 FR 61145, 
61146 (1997). Respondent's failure to disclose the 2000 Maryland 
proceeding is material because the public interest inquiry under 
section 303(f) requires, inter alia, that the Agency examine her 
``experience in dispensing * * * controlled substances,'' her 
``conviction record * * * relating to the * * * dispensing of 
controlled substances,'' and her ``[c]ompliance with applicable State, 
Federal, or local laws relating to controlled substances.'' 21 U.S.C. 
823(f). Respondent was therefore required to disclose the circumstances 
surrounding her subsequent arrest even if her conviction was expunged. 
Her failure to do so constitutes material falsification.
    Furthermore, even crediting Respondent's statement that she was 
advised by counsel that she need not disclose the Maryland proceeding 
in the future, in her explanation she then proceeded to make an 
affirmative and material misrepresentation when she stated that ``[n]o 
problems have occurred since'' the 1997 federal proceeding. The 
statement was clearly false and Respondent had reason to know this to 
be so. I therefore conclude that Respondent knowingly made a material 
false statement in an attempt to obtain a favorable decision from the 
Agency on Respondent's application and that granting Respondent a new 
registration ``would be inconsistent with the public interest.'' 21 
U.S.C. 823(f); see also e.g., Dan E. Hale, 69 FR 69402 (2004).

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well 
as 28 CFR 0.100(b) & 0.104, I order that the application Pamela 
Monterosso, D.M.D., for a DEA Certificate of Registration as a 
practitioner, be, and it hereby is, denied. This order is effective 
March 31, 2008.

    Dated: February 15, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-3873 Filed 2-28-08; 8:45 am]
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