[Federal Register Volume 59, Number 45 (Tuesday, March 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5204]
[[Page Unknown]]
[Federal Register: March 8, 1994]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 92-62]
Allan L. Gant, D.O.; Denial of Application
On June 23, 1992, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Allan L. Gant, D.O. (Respondent), of Richwood,
West Virginia, proposing to deny his application for DEA registration
as a practitioner. The statutory basis for seeking the denial of the
application was that Respondent's registration would be inconsistent
with the public interest, as set forth in 21 U.S.C. 823(f).
The Order to Show Cause alleged that in May 1990, while employed at
the Richwood Medical Center, the Respondent admitted diverting to his
personal use three 20 mg. bottles of injectable Demerol, a Schedule II
controlled substance, and a bottle of injectable Valium, a Schedule IV
controlled substance, from the stocks of that medical center;
Respondent admitted in his personal history provided to a hospital
treatment center in May 1990 that he had abused Demerol, a Schedule II
controlled substance, during the period from at least 1984 until at
least 1988; while in in-patient attendance at a rehabilitation facility
in April 1990, Respondent self-administered Demerol which he had
smuggled into that facility; and on June 5, 1990, he voluntarily
surrendered his DEA Certificate of Registration, AG9806108, for cause.
Respondent, acting pro se, filed a request for hearing on the
issues raised by the Order to Show Cause, and the matter was docketed
before Administrative Law Judge Mary Ellen Bittner. Following
prehearing procedures, a hearing was conducted in Charleston, West
Virginia, on January 21, 1993.
On November 4, 1993, the administrative law judge issued her
opinion and recommended ruling, findings of fact, conclusions of law
and decision, in which she recommended that the Respondent's
application for registration be denied. On December 6, 1993, the
administrative law judge transmitted the record to the Acting
Administrator. The Respondent subsequently filed exceptions to the
opinion, which were received by the administrative law judge on
December 9, 1993, and forwarded to the Acting Administrator on December
13, 1993. Although not timely filed, the Acting Administrator has
included the Respondent's exceptions in the record. The Acting
Administrator has carefully considered the entire record in this matter
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 administrative law judge found that Respondent is an osteopath
and is licensed and practices in West Virginia. Respondent is a Vietnam
veteran, who testified that he sustained severe wounds and suffers from
post-traumatic stress disorder as a result of his war experience. The
Respondent testified that due to complications from his war wounds
during 1986 to 1988, he began to self-administer Demerol to a point
where he was using 300 mg. to 400 mg. two to four times daily.
The administrative law judge found that testimony and documents
indicated that in September 1988, the Respondent, after a morphine
overdose, was admitted to a Charleston hospital, and was subsequently
treated by physicians at the Veterans Administration Hospital in
Clarksburg for opiate dependence. In November 1988, he was transferred
to the Preston Memorial Hospital and was released to the Shawnee Hills
Outpatient Clinic. Respondent voluntarily discontinued his care in
January 1989.
In April 1990, syringes and a bottle containing opiates were found
in Respondent's personal effects, and while at an in-patient recovery
center, Respondent self-injected Demerol which he had smuggled into
that facility. Subsequently, in May 1990, the Chief Administrator of
Richwood Medical Center, where the Respondent was employed, found three
20 mg. bottles of injectable Demerol and a bottle of injectable Valium
missing from stocks. The Respondent admitted to his employer that he
had taken them for his own use. Respondent was again admitted to
Preston Memorial Hospital on May 24, 1990, but apparently refused to
stay in the program and was discharged on June 4, 1990. The Respondent
surrendered his previous DEA registration on June 5, 1990.
There was testimony at the administrative hearing that the
Respondent was regularly ordering non-controlled injectable pain
medications in his current private practice. The Respondent testified
that they were the only type of analgesic that were appropriate and
available for administration to his patients whom he saw both in his
office setting and in the emergency room.
The Respondent also testified that he occasionally attended
Alcoholics Anonymous meetings, but that he did not belong to Narcotics
Anonymous or any impaired physician program because they were too far
away. The Respondent submitted a letter from an addiction specialist
physician who concluded that there was no medical, legal, or ethical
reason why the Respondent should not be able to prescribe controlled
drugs.
The administrative law judge found that the Secretary for the West
Virginia Board of Osteopathy (Board), testified on behalf of the Board
at the administrative hearing, that the Board was aware of the
Respondent's problem with narcotics abuse and knew he had entered two
rehabilitative programs but failed to successfully complete either. In
addition, the Board had written to the Respondent and strongly urged
him to enter a substance abuse program, and at the time of the hearing
it was the Board's opinion that the Respondent should not receive a DEA
Certificate of Registration.
The Respondent contended that the State licensing board had never
indicated its opposition to his registration. He also stated that he
was subject to regular urine testing by the Board and that he had not
abused controlled substances in three years.
The Administrator may deny an application for registration if he
determines that such registration would be inconsistent with the public
interest. Pursuant to 21 U.S.C. 823(f), ``[i]n determining the public
interest, the following factors shall be considered: (1) The
recommendation of the appropriate State licensing board or 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.''
It is well established that these factors are to be considered in
the disjunctive, i.e., the Administrator may properly rely on any one
or a combination of factors, and give each factor the weight he deems
appropriate. Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 54 FR 16422
(1989).
The administrative law judge found factors one, two, four and five
relevant. Judge Bittner found as to factor one, that the State of West
Virginia Board of Osteopathy recommended that Respondent not be given a
DEA registration; as to factor two, the Respondent admitted personal
use of Demerol and morphine; as to factor four, the Respondent self-
administered controlled substances in violation of State and Federal
law; and as to factor five, his drug abuse history and the status of
his recovery were relevant to the public health and safety.
The administrative law judge found that the Respondent's testimony
did not indicate that he had admitted or accepted the severity and
nature of his drug dependency problem. Although the Respondent
testified that this experience with surrendering his previous DEA
registration had pushed him into earnest rehabilitation, Judge Bittner
found that in the absence of evidence that Respondent is prepared and
able to commit to a more aggressive recovery program, that his risk of
relapse is substantial. The administrative law judge concluded that the
Respondent is not yet ready to discharge the responsibilities inherent
in a DEA registration, and recommended that if Respondent were to
demonstrate in the future that he has made the requisite commitment,
that his application for registration should be considered in a more
favorable light.
The Respondent, in his December 6, 1993 letter, responding to the
administrative law judge's opinion, objected to the testimony of the
Government counsel (apparently a reference to the post-hearing brief
filed by the Government, since there was no testimony presented by
counsel); and the lack of weight ostensibly accorded to a letter from
the addiction specialist submitted on his behalf. The Respondent also
argued that he could not be a threat to the public since his medical
practice was under scrutiny and any controlled substances administered
in his practice would be handled by nurses. The Respondent also alleged
that a Government witness had committed perjury and that Government
investigators had lied to him or had engaged in underhanded tactics.
The Acting Administrator finds nothing that would lend support to any
of these contentions or allegations by the Respondent.
The Acting Administrator adopts the opinion and recommended ruling,
findings of fact, conclusions of law and decision of the administrative
law judge in its entirety. The Acting Administrator finds that the
Respondent's registration is inconsistent with the public interest, and
his pending application for registration must be denied. Accordingly,
the Administrator of the Drug Enforcement Administration, pursuant to
the authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR
0.100(b), hereby orders that the application for a DEA Certificate of
Registration of Allan L. Gant, D.O., be, and it hereby is, denied. This
order is effective March 8, 1994.
Dated: March 1, 1994.
Stephen H. Greene,
Acting Administrator of Drug Enforcement.
[FR Doc. 94-5204 Filed 3-7-94; 8:45 am]
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