[Federal Register Volume 63, Number 210 (Friday, October 30, 1998)] [Notices] [Pages 58418-58421] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 98-29063] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 97-23] Bradford's Pharmacy Conditional Grant of Registration On June 16, 1997, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Bradford's Pharmacy (Respondent) of Estill Springs, Tennessee, notifying it of an opportunity to show cause as to why DEA should not deny its application for registration as a retail pharmacy pursuant to 21 U.S.C. 823(f), for reason that its registration would be inconsistent with the public interest. By letter dated July 12, 1997, Respondent, with counsel, timely filed a request for a hearing, and following prehearing procedures, a hearing was held in Nashville, Tennessee on November 18, 1997, before Administrative Law Judge Gail A. Randall. At the hearing, both parties called witnesses to testify and introduced documentary evidence. After the hearing, both parties submitted proposed findings of fact, conclusions of law and argument. On May 28, 1998, Judge Randall issued her Opinion and Recommended Ruling, recommending that Respondent's application for registration be granted. Neither party filed exceptions to the Administrative Law Judge's recommended decision, and on June 29, 1998,. Judge Randall [[Page 58419]] transmitted the record of these proceedings to the Acting Deputy Administrator. The Acting Deputy Administrator has considered the record, 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 Acting Deputy Administrator adopts, except as specifically noted below, the Opinion and Recommended Ruling of the Administrative Law Judge, and his adoption is in no manner diminished by any recitation of facts, issues and conclusions herein, or of any failure to mention a matter of fact or law. The Acting Deputy Administrator finds that James R. Bradford \1\ is a licensed pharmacist and the owner of Respondent pharmacy. In 1989, Mr. Bradford owned and operated Prince Drug Store in Winchester, Tennessee. An investigation of Prince Drug Store was conducted in March 1989. During a routine compliance inspection by the Tennessee Board of Pharmacy (Pharmacy Board), it was noted that there was an excessive amount of telephone prescriptions for controlled substances. An investigator contacted some of the physicians whose names appeared on the prescriptions and learned that the physicians had not authorized the prescriptions. As a result, Mr. Bradford was arrested on May 2, 1989. --------------------------------------------------------------------------- \1\ James R. Bradford was referred to as Dr. Bradford at various times throughout the transcript of these proceedings and by Judge Randall in her opinion. There is nothing in the record to indicate that he has a degree that warrants this title, and therefore he will be referred to as Mr. Bradford throughout this final order. --------------------------------------------------------------------------- On June 15, 1989, investigators obtained more records from Respondent. After interviewing approximately 20 physicians, the investigators calculated that Respondent dispensed over 60,000 dosage units of controlled substances between January 1, 1988 and June 15, 1989, that were not authorized by a physician. Of particular note, unauthorized prescriptions accounting for approximately 5,500 dosage units were dated after Mr. Bradford's arrest on May 2, 1989. Mr. Bradford was indicted in the Franklin County Circuit Court in Tennessee on one count each of illegally dispensing drugs, failure to keep drug records, furnishing false and fraudulent records, and obtaining controlled substances by use of forged and altered prescriptions. On July 28, 1989, Mr. Bradford pled guilty to all four felony counts. On August 3, 1989, DEA served an Order to Show Cause and Immediate Suspension of Registration on Prince Drug Store. At that time, Mr. Bradford voluntarily surrendered the pharmacy's DEA registration. On September 27, 1989, Mr. Bradford, both individually and on behalf of Prince Drug Store, entered into an Agreed Final Order with the Pharmacy Board, whereby he agreed to the revocation of the pharmacy's license and his pharmacist license. On November 17, 1989, Mr. Bradford was sentenced to two years in jail for each of the four felony counts, to be served concurrently. He served approximately six months in jail, and was released on probation. Mr. Bradford's probation officer testified at the hearing in this matter that after one year of probation, Mr. Bradford was discharged from active supervision. According to the probation officer, Mr. Bradford was ``an exceptional probationer,'' he has been rehabilitated, and he has not committed any further offenses. The sheriff of Franklin County testified that while incarcerated, Mr. Bradford served as a trustee. Trustees have work assignments and are selected because they are believed to be trustworthy. In the sheriff's opinion, Mr. Bradford is rehabilitated. On September 28, 1993, the Pharmacy Board entered a Consent Order reinstating Mr. Bradford's pharmacist license on condition that he perform 160 hours of internship within two-months of the order and that he complete 15 hours of continuing education. Mr. Bradford fulfilled these conditions, and his license was reinstated and placed on probation for five years. One term of the probation was that Mr. Bradford could not serve as the pharmacist in charge at a pharmacy, but after two years he could petition the Pharmacy Board to remove this restriction. Upon reinstatement of his pharmacist license, a pharmacy submitted a request to DEA for a waiver of 21 CFR 1301.76(a), to permit Mr. Bradford to work at the pharmacy with access to controlled substances. In a letter dated February 6, 1995, this request was denied based upon the fact that Mr. Bradford would be unsupervised while working in the pharmacy. On September 19, 1995, Mr. Bradford entered into another Consent Order with the Pharmacy Board whereby the previous Consent Order was modified and Mr. Bradford's authority to serve as a pharmacist in charge was reinstated. On January 2, 1996, Mr. Bradford opened Respondent and subsequently applied for a DEA registration for the pharmacy. In the application for registration, Mr. Bradford disclosed his criminal convictions and the actions against his previous DEA registration and sate licenses. At the hearing before Judge Randall, Mr. Bradford acknowledged dispensing controlled substances without a physician's authorization and explained that he had difficulty saying ``no'' and that he did want to lose customers. Mr. Bradford testified that he takes full responsibility for his actions, specifically stating that: I left James R. Bradford of `88 and `89 in Franklin County Jail when I was released. He is no more. I've learned from my mistakes and I'm a different person. It just won't happen again. I realize what is to be lost * * * I lost a thriving business. I lost my livelihood. I lost the respect of the citizens of Franklin County. I lost my privilege of practicing the profession that I had trained for. I lost everything--everything except my family. And at times, it was even hard to face them. Mr. Bradford further testified that his practice of pharmacy is different now than it was in the late 1980's. Judge Randall found that he credibly testified that ``[t]he patients in the late `80s--my main objective was filling their prescriptions, keeping them coming to my store, and I did anything to do that. Now my main objective is the safety and well-being of my patients.'' According to Mr. Bradford, he now contacts physicians if he believes a patient is overutilizing drugs and he does not prematurely refill prescriptions. Additionally, he currently participates in managed care networks, and as a result, if he tried to prematurely refill a prescription, the pharmacy's computer would reject it and if he did refill the prescription, he would not receive payment from the managed care network. The mayor of Estill Springs testified that Respondent is the only pharmacy in the town. The population of Estill Springs is 1,500 to 1,600 people with approximately 60 percent of the population retired. Some in the community lack transportation to be able to frequent pharmacies outside of Estill Springs. The mayor testified that he considers Mr. Bradford to be an outstanding professional with the highest integrity and honesty. Respondent introduced into evidence the affidavit of an Estill Springs physician who stated that he is personally familiar with Mr. Bradford, his pharmacy practices, his conviction for controlled substance violations, and the actions by the Pharmacy Board. It is the physician's opinion that Mr. Bradford displays ``a high degree of honesty, integrity and professionalism [[Page 58420]] in the provision of pharmacy services to patients * * * [and] in relationships with other health care professionals.'' Both Mr. Bradford and Respondent possess state licenses issued by the Pharmacy Board. In Tennessee, both the pharmacist and the pharmacy are required to obtain a controlled substance registration. The Director of the Pharmacy Board testified at one point that Mr. Bradford's controlled substance registration was reinstated by the Pharmacy Board with his pharmacist license. However when later asked whether Respondent pharmacy has a Tennessee controlled substance license, he testified that ``I'm sure they probably don't, but that's because of the absence of the DEA waiver, and he did not request that either.'' Further, when asked whether Mr. Bradford is licensed in the state to handle controlled substances, the Director responded. ``He would be, but that was not requested, I don't think. Without having his license in front of me, I couldn't [say].'' Since there was no explanation for the discrepancy in the Director's testimony and since the Government did not raise lack of state authorization as an issue, Judge Randall ``assume[d] that [the Director's] initial testimony about that the status of the state controlled substance registration is correct * * * [and] assume[d] that his testimony to the contrary was based on a misunderstanding of the question.'' Therefore, Judge Randall found that Respondent pharmacy and Mr. Bradford possess state authority to dispense controlled substances. The Acting Deputy Administrator agrees with Judge Randall that based upon the Pharmacy Board Director's testimony, there is confusion regarding the status of Respondent's state authorization to handle controlled substances. However, as will be discussed further below, the Acting Deputy Administrator disagrees with Judge Randall's assumption that Respondent is authorized in Tennessee to handle controlled substances. Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny any application for a DEA Certificate of 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. (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 he deems appropriate in determining whether a registration should be revoked or an application for registration denied. See Henry J. Schwarz, Jr., M.D., 54 FR 16,422 (1989). As to factor one, it is undisputed that Mr. Bradford's pharmacist license and the license of his previous pharmacy were revoked through an Agreed Final Order on September 27, 1989. In 1993, Mr. Bradford's pharmacist license was reinstated, but he was precluded from being the pharmacist in charge of a pharmacy. Then, in 1995 all of Mr. Bradford's privileges were restored and he was on probation until September 1998. Regarding factors two and four, the applicant's experience in dispensing controlled substances and compliance with applicable laws relating to controlled substances, Mr. Bradford's dispensing practices while the owner and pharmacist at Prince Drug Store are relevant to these proceedings. DEA has consistently held that a pharmacy operates under the control of owners, stockholders, pharmacists, or other employees, and that the conduct of these individuals is relevant in evaluating a pharmacy's fitness to be registered with DEA. See e.g., Rick's Pharmacy, 62 FR 42,595 (1997); Big T Pharmacy, Inc., 47 FR 51,830 (1982). Mr. Bradford, the owner of Respondent, admits that he dispensed over 60,000 dosage units of controlled substances without a physician's authorization. As Judge Randall noted, ``[i]t is particularly troubling that Dr. Bradford continued to dispense controlled substances without authorization after his first arrest.'' According to Mr. Bradford, he had trouble saying ``no'' to his customers and he did not want to lose any business, so he dispensed drugs without authorization. However, Mr. Bradford has accepted responsibility for his actions and says that his main objective now is his patients' safety and well- being. He recognizes how much he has to lose should he unlawfully dispense controlled substances again. In addition, the mayor of Estill Springs, the sheriff of Franklin County and Respondent's probation officer all believe that Mr. Bradford has been rehabilitated. Further, the Acting Deputy Administrator notes that Mr. Bradford appears to have kept abreast of changes in DEA's regulations even though he has not been handling controlled substances since 1989. As to factor three, it is undisputed that Mr. Bradford was convicted of four felony counts related to his handling of controlled substances. Regarding factor five, the Acting Deputy Administrator agrees with Judge Randall that the record does not indicate any additional conduct that would threaten the public health or safety. The Acting Deputy Administrator concludes that the Government has presented a prima facie case for denial of Respondent's application for registration based upon Mr. Bradford's unlawful dispensing of over 60,000 dosage units of controlled substances, his conviction, and the action of the Pharmacy Board. However, Mr. Bradford appears to be extremely remorseful and to be rehabilitated. He has not engaged in any unlawful conduct since 1989. Further, He approaches the dispensing of drugs very differently now than he did in 1989. He contacts a physician if he believes that a patient is using too much of a drug. Also, he participates in managed care networks which causes his computer system to reject a prescription if he tries to refill it prematurely. Finally, Respondent is the only pharmacy in Estill Springs which has a population of approximately 1,500 people. Without a DEA registration, Respondent cannot meet the needs of the community since it cannot dispense controlled substances. Therefore, the Acting Deputy Administrator agrees with Judge Randall that it would be in the public interest to grant Respondent a DEA Certificate of Registration. However, the status of Respondent's state authorization to handle controlled substances is unclear. This is significant since DEA does not have the statutory authority under the Controlled Substances Act to register a practitioner unless that practitioner is authorized by the state to handle controlled substances. See 21 U.S.C. 802(21) and 823(f). Given the Pharmacy Board Director's testimony, there is confusion as to whether Respondent pharmacy is in fact authorized by the State of Tennessee to handle controlled substances. Unlike Judge Randall, the Acting Deputy Administrator does not assume that the pharmacy is properly licensed by the state. Therefore, the Acting Deputy Administrator concludes that Respondent pharmacy should be issued a DEA Certificate of Registration [[Page 58421]] once it provides evidence to DEA that it is authorized to handle controlled substances in Tennessee. Accordingly, the Acting 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, hereby orders that the application for a DEA Certificate of Registration submitted by Bradford's Pharmacy, be, and it hereby is granted upon receipt by the DEA Nashville office of evidence of the pharmacy's state authorization to handle controlled substances. This order is effective November 30, 1998. Dated: October 23, 1998. Donnie R. Marshall, Acting Deputy Administrator. [FR Doc. 98-29063 Filed 10-29-98; 8:45 am] BILLING CODE 4410-09-M