[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Notices]
[Page 781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-235]


[[Page Unknown]]

[Federal Register: January 6, 1994]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 92-56]

 

Abel J. Sands, M.D.; Denial of Application

    On May 14, 1992, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Abel J. Sands, M.D. (Respondent) of 316 South 
Midwest Boulevard, Midwest City, Oklahoma 73110. The Order to Show 
Cause, which proposed to deny Respondent's application for registration 
pursuant to 21 U.S.C. 823(f), alleged that Respondent's registration 
would be inconsistent with the public interest. The Order to Show Cause 
alleged that Respondent issued prescriptions for controlled substances 
to undercover agents of the Oklahoma State Bureau of Narcotics and 
Dangerous Drugs (OBN) for other than legitimate medical purposes; that 
OBN took action against Respondent's state license to handle controlled 
substances; and that Respondent failed to keep complete and accurate 
records of this purchasing and dispensing of controlled substances.
    Respondent, through counsel, requested a hearing and the matter was 
placed on the docket of Administrative Law Judge Mary Ellen Bittner. 
Following prehearing procedures, a hearing was held in Oklahoma City, 
Oklahoma, on December 15, 1992. On September 8, 1993, the 
administrative law judge issued her findings of fact, conclusions of 
law and recommended ruling. On September 30, 1993, Respondent filed 
exceptions to the recommended ruling of the administrative law judge. 
On October 12, 1993, the administrative law judge transmitted the 
record in this proceeding to the Administrator. Having considered the 
record in its entirety, and pursuant to 21 CFR 1316.67, the Acting 
Administrator hereby issues his final order in this matter based upon 
the findings of fact and conclusions of law set forth below.
    It was proven at the hearing that on numerous occasions, Respondent 
wrote prescriptions to undercover agents in the absence of a legitimate 
medical purpose. OBN first became aware of Respondent's prescribing 
practices after Respondent's name arose in the course of an 
investigation into the street purchase of cocaine, a Schedule II 
controlled substance, Valium and Xanax, both Schedule IV controlled 
substances. OBN agents posed as patients and visited Respondent's 
office in an attempt to obtain prescriptions for controlled substances 
without legitimate medical reason. The OBN agents conducted a total of 
seven successful undercover operations at Respondent's office between 
December 1988 and April 1989. On each occasion, the OBN agents were 
able to obtain prescriptions for Xanax without legitimate medical 
purpose. All of these undercover operations were taped and transcribed.
    On the first undercover visit on December 14, 1988, the undercover 
agent told Respondent that a friend from whom he had been purchasing 
Xanax advised him that he could obtain a prescription for Respondent. 
The agent told Respondent that the Xanax made him ``feel good.'' After 
initially refusing to provide the prescription, Respondent informed the 
agent that he would make a patient chart for him, the charge for which 
would be $25.00. Respondent proceeded to perform a cursory examination 
of the agent, which included taking his weight and blood pressure. The 
agent told Respondent that he needed Xanax to ``function'' at work 
after he used cocaine. Respondent ultimately provided the agent with a 
prescription for 60 Xanax, stating that writing for 100 would get him 
(Respondent) in ``trouble.''
    OBN agents conducted similar undercover operations on six other 
occasions and obtained prescriptions for Xanax each time. The lead 
agent testified, and the transcripts provided corroboration, that he 
never complained of any medical problem which warranted the use of 
Xanax. The administrative law judge determined that Respondent did not 
establish a physician-patient relationship with the OBN agents and 
concluded that none of the prescriptions at issue was for a legitimate 
medical purpose.
    The administrative law judge further noted that Respondent's taped 
comments to the OBN agents demonstrated that he was aware of the 
illegitimacy of the prescriptions and was concerned that his conduct 
would become known to law enforcement. As a result, the administrative 
law judge concluded that Respondent's contention that he issued the 
prescriptions pursuant to a valid physician-patient relationship was 
disingenuous and did not ``bode well for the proposition that 
[Respondent] is likely in the future to accept and discharge the 
responsibilities of a DEA registrant.''
    Also proven at the administrative hearing was the fact that 
Respondent, after surrendering his DEA Certificate of Registration and 
after his state controlled substance license had been suspended, was 
found to be in possession of controlled substances. On January 29, 
1990, OBN agents and DEA Diversion Investigators delivered to 
Respondent an ``imminent danger letter'' from OBN, which suspended 
Respondent's state controlled substance registration. The same day, 
Respondent signed a DEA Form 104, voluntarily surrendering his DEA 
Certificate of Registration. An investigation by Medical Board 
investigators revealed that on June 4, 1990, Respondent was in 
possession of Equagesic and Halcion, both controlled substances.
    The Medical Board investigation also revealed that Respondent had 
failed to keep accurate records of his purchase and dispensing of 
controlled substances. After a Medical Board hearing was scheduled, but 
before the hearing date, the Medical Board proposed and Respondent 
accepted a five year probation period during which Respondent was 
prohibited from prescribing, administering or dispensing any Schedule 
II or III controlled substances. On April 16, 1991, OBN granted 
Respondent a state controlled substance registration limited to 
Schedules IV and V for the period of his Medical Board probation.
    The Acting Administrator also finds that on November 15, 1989, 
Respondent was indicted in the United States District Court for the 
Western District of Oklahoma on seven counts of violating 21 U.S.C. 
842(a)(1). This indictment was based on Respondent's writing of 
prescriptions to the undercover OBN agents. Respondent was acquitted of 
all charges on February 22, 1990, following a jury trial.
    Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Administrator may 
revoke a DEA Certificate of Registration or deny an application for 
registration if he determines that the registration would be 
inconsistent with the public interest. 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; and, (5) such other conduct which may threaten 
the public health and safety.
    The Administrator may rely on any one or any combination of these 
factors when determining whether an application should be denied or a 
registration revoked. See Neveille H. Williams, D.D.S., 51 FR 17556 
(1986); Anne L. Hendricks, M.D., 51 FR 41030 (1986). The administrative 
law judge correctly found that all these factors, with the exception of 
21 U.S.C. 823(f)(3), were relevant to a determination of whether 
Respondent's registration would be in the public interest.
    Two Oklahoma authorities which exercise control over the licensing 
of physicians, OBN, which issues controlled substances registrations, 
and the Oklahoma Medical Board (Medical Board), which issues medical 
licenses, have taken action against Respondent. With respect to 
Respondent's experience with dispensing controlled substances, the OBN 
investigation clearly demonstrates that Respondent cannot be trusted to 
fulfill his responsibilities as a DEA registrant. This conduct, 
combined with his recordkeeping violations as discovered by the Medical 
Board, indicates that Respondent has not complied with Federal and 
State regulations relating to controlled substances.
    Finally, Respondent's cavalier conduct when issuing prescriptions, 
as evidenced by comments made during the undercover operations, is 
disturbing. As the Administrative law judge correctly noted, the 
transcripts clearly indicate that Respondent was aware of the 
illegality of his actions. Respondent's knowledge of the illicit nature 
of his conduct demonstrates that Respondent cannot fulfill the 
significant responsibilities which come with a DEA registration. 
Additionally, it is further evidence that the public health and safety 
would be comprised were Respondent given the opportunity to return to 
his prior conduct. After considering these elements, the administrative 
law judge concluded that Respondent's registration would not be in the 
public interest and recommended that Respondent's application be 
denied.
    On September 30, 1993, Respondent filed exceptions to the 
administrative law judge's recommended decision. In these exceptions, 
Respondent took issue with the administrative law judge's reliance on 
the testimony of the OBN agent and the transcripts of the undercover 
operations. Respondent maintained that the agent's credibility was 
damaged given the discrepancies between his testimony before the grand 
jury and his testimony during the criminal trial. The Acting 
Administrator finds, however, that the administrative law judge 
carefully considered these issues and concluded that the alleged 
inconsistencies in testimonies did not affect the administrative 
hearing. The inconsistencies were adequately explained by the agent at 
the administrative hearing. Furthermore, as the administrative law 
judge correctly noted, some of the agent's statements which Respondent 
insisted were contradictory were not necessarily inconsistent. Finally, 
and perhaps most importantly, the transcripts of the undercover 
operations, the accuracy of which was not challenged by Respondent, 
speak for themselves.
    Respondent asserts that the administrative law judge did not base 
her opinion on all the evidence presented, and instead relied 
exclusively on the transcripts of the undercover operations. This 
contention, however, is not supported by the detailed opinion and 
recommended ruling prepared by the administrative law judge. The Acting 
Administrator finds that the administrative law judge properly weighed 
the evidence presented by both the Government and Respondent.
    The Acting Administrator agrees with the administrative law judge 
that, after considering the applicable factors pursuant to 21 U.S.C. 
823(f), Respondent's registration would not be in the public interest 
and adopts her recommended decision in its entirety. 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), hereby orders that Abel J. Sands' application for 
registration be, and it hereby is, denied. This order is effective 
January 6, 1994.


    Dated: December 28, 1993.
Stephen H. Greene,
Acting Administrator of Drug Enforcement.
[FR Doc. 94-235 Filed 1-5-94; 8:45 am]
BILLING CODE 4410-09-M