[Federal Register Volume 59, Number 149 (Thursday, August 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19056]
[[Page Unknown]]
[Federal Register: August 4, 1994]
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DEPARTMENT OF JUSTICE
[Docket No. 93-4]
Timothy H. Reese, M.D. Denial of Application
On September 29, 1992, the Deputy Assistant Administrator, Office
of Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Timothy H. Reese, M.D. (Respondent), of
Pittsburgh, Pennsylvania, proposing to deny his application for
registration as a practitioner. The Order to Show Cause alleged that
Respondent's registration would be inconsistent with the public
interest as that term is used in 21 U.S.C. 823(f).
Respondent, through counsel, requested a hearing on the issues
raised by the Order to Show Cause, and the matter was placed on the
docket of Administrative Law Judge Mary Ellen Bittner. Following
prehearing procedures, a hearing was held in Arlington, Virginia, on
May 18, 1993. On March 8, 1994, in her findings of fact, conclusions of
law, and recommended ruling, the administrative law judge recommended
that Respondent's application for DEA registration be denied. No
exceptions were filed by either party.
On April 8, 1994, the administrative law judge transmitted the
record to the Administrator. The Deputy Administrator has carefully
considered the entire record in this matter and, pursuant to 21 CFR
1316.67, hereby issues his final order in this matter based upon
findings of fact and conclusions of law as hereinafter set forth.
The administrative law judge found that the Respondent is an
emergency room physician who completed a three-year residency in family
practice in 1977, and then became affiliated with medical groups that
provided emergency room coverage for various hospitals. Respondent also
maintained a small, private practice until April 1989.
In 1984, an investigator for the Ohio State Medical Board (Board)
obtained from a pharmacy various prescriptions for controlled
substances written by Respondent. Most of the prescriptions bore the
address of Respondent's residence, and were written for members of
Respondent's family. The investigator interviewed some of Respondent's
family members that were purportedly issued prescriptions by the
Respondent, and they denied ever receiving prescriptions for him.
Thereafter, the Board subpoenaed Respondent's patient records,
however, Respondent indicated that they had been destroyed. Respondent
was then requested to appear before the Board to explain why he wrote
the prescriptions at issue. In his deposition before the Board,
Respondent states that he did not know what controlled substances were,
what schedules certain controlled substances were in, and that he wrote
these prescriptions mainly for weight loss. In 1986, the Board's
investigation of Respondent concluded with no charges being filed.
In 1989, a sergeant with the Columbus (Ohio) Police Department,
Narcotics Bureau (Narcotics Bureau), was informed by local pharmacists
of their suspicions regarding prescriptions issued by the Respondent.
The prescriptions were for large quantities of controlled substances,
typically Dilaudid. The pharmacists were unfamiliar with the patients
bringing in the prescriptions, and the patients named on the
prescriptions did not have local addresses.
The pharmacists further informed the Narcotics Bureau sergeant that
the physician's telephone number listed on some of the prescriptions
was disconnected, and that other prescriptions bore telephone numbers
either at emergency rooms in Pennsylvania, or a residence in
Westerville, Ohio. A confidential informant later advised the Narcotics
Bureau that Respondent wrote prescriptions to members of his family and
friends, and they in turn returned the prescribed drugs to Respondent,
who used them to treat his wife's heroin addiction. As a result of this
information, the Narcotics Bureau seized a number of Dilaudid
prescriptions issued by Respondent from local pharmacies.
The investigation by the Narcotics Bureau also revealed that: One
of the individuals that attempted to fill a controlled substance
prescription was seen by the pharmacist driving a car registered to
Respondent's address; several of the individuals did not reside at the
address listed on their prescriptions; an individual stated that she
used cocaine while in Respondent's home, sold cocaine to Respondent,
and was offered cocaine by the Respondent to fill a prescription, which
she refused; Respondent asked the same individual to fill a
prescription for Dilaudid, and the individual later prepared syringes
of Dilaudid and water that Respondent's wife injected; all of the
telephone numbers for Respondent on the prescriptions corresponded to
emergency rooms in Pennsylvania. Respondent testified at the hearing,
that someone falsified his signature on the prescriptions found by the
Narcotics Bureau.
Respondent testified that after he and his wife separated in April
1989, and he moved from their Westerville, Ohio residence, he believed
that his wife continued to live in the residence until her eviction for
non-payment of rent. Respondent further testified that he left behind
all of his belongings, including prescription pads printed with the
address of his residence.
In August 1989, a DEA diversion investigator observed the wife's
eviction from Respondent's home. Among the items removed from the home
and subsequently recovered by DEA, were drug paraphernalia items,
including a white powder substance in a plastic container and pipes
containing residue. The items later tested positive for sodium
bicarbonate, oxycodone, and cocaine. The Narcotics Bureaus sergeant
testified at the hearing that despite the information disclosed by the
investigation, the Respondent was not criminally charged because he
moved out of the State of Ohio.
Following Respondent's relocation to the Commonwealth of
Pennsylvania, on October 26, 1989, DEA informed him that he was under
investigation for diverting Dilaudid. In response to this information,
Respondent surrendered his DEA registration.
On March 31, 1991, Respondent executed an application for DEA
registration, and answered affirmatively, the question regarding
whether he had ever surrendered a previous registration. DEA then
initiated a pre-registration investigation of the Respondent. The
investigation revealed that, in 1990, when Respondent began working for
a physicians' group that provided medical services, he informed his
employer that he was registered with DEA, and provided his surrendered
registration number. DEA later obtained Respondent's application for
employment at a health care facility in Mount Pleasant, Pennsylvania,
where Respondent was associated as an emergency room physician. In
response to a question on the application for employment regarding his
registration status, Respondent again stated that he held a current DEA
registration, and listed his surrendered registration number. DEA also
discovered numerous prescriptions issued by Respondent in 1990 and
1991, in which he repeatedly used his surrendered DEA registration
number.
Respondent testified that his wife used heroin and cocaine, that
she was taking methadone, and that she had access to his DEA number.
Respondent also testified that he has never abused drugs, been charged
with using drugs, or kept drug paraphernalia in his home. Respondent
acknowledged however that he never informed his employers of the
surrender of his DEA registration, because his lack of registration
would preclude his employment. Respondent further acknowledged that he
wrote prescriptions for controlled substances after the surrender of
his DEA registration because his work required him to do so, and that
he needed his DEA registration to continue his career as an emergency
room physician.
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny any
application for such registration, if he determines that the continued
registration would be inconsistent with the public interest. In
determining the public interest, the following factors are considered:
(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 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 Deputy Administrator may properly rely on
any one or a combination of the factors and give each factor the weight
he deems appropriate. See Henry J. Schwarz, Jr., M.D., Docket No. 88-
42, 54 FR 16422 (1989).
In considering whether grounds exist to deny Respondent's
application for DEA registration, the administrative law judge found
factors two, four and five relevant in light of evidence regarding
Respondent's falsification of employment applications, representing
that he held a DEA registration after he had surrendered the
registration; and, Respondent's issuing of prescriptions for controlled
substances using his surrendered DEA registration number.
The administrative law judge found, that despite Respondent's
explanations regarding his falsifying employment applications and
writing prescriptions with a surrendered DEA registration number,
Respondent showed no remorse, and appeared to consider his actions
justified by exigent circumstances. The administrative law judge also
found with respect to the prescriptions for Dilaudid, that Respondent's
testimony was not responsive nor particularly credible. The
administrative law judge further found that Respondent's admission that
other persons, including his wife whom Respondent knew to be a drug
abuser, had access to his prescription pads, showed that Respondent had
little respect for the responsibilities of being a DEA registrant.
Judge Bittner concluded that the preponderance of the credible
evidence established that it is unlikely that Respondent would
competently or reliably discharge the obligations inherent in a DEA
registration, and further concluded that it would not be in the public
interest to grant his application. Therefore, the administrative law
judge recommended that Respondent's application for DEA registration be
denied.
The Deputy Administrator having considered the entire record adopts
the administrative law judge's findings of fact, conclusions of law,
and recommended ruling in its entirety. Accordingly, the Deputy
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 (59 FR 23637), hereby orders that the application for
registration, executed by Timothy H. Reese, M.D., be, and it hereby is,
denied. This order is effective August 4, 1994.
Dated: July 28, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-19056 Filed 8-3-94; 8:45 am]
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