[Federal Register Volume 69, Number 24 (Thursday, February 5, 2004)]
[Notices]
[Pages 5579-5581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2338]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Thomas G. Easter II, M.D.; Denial of Registration

    On August 29, 2002, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Thomas G. Easter II, M.D. (Dr. Easter) notifying 
him of an opportunity to show cause as to why DEA should not deny his 
pending application for a DEA Certificate of Registration pursuant to 
21 U.S.C. 823(f). The order alleged in relevant part that: Dr. Easter 
had been convicted in Texas State court of eight felony counts of 
Possession of Controlled Substances by Fraud; that the court terms of 
his probation prohibited him from prescribing controlled substances and 
he was thus not authorized to handle controlled substances in the State 
in which he practices; and that his registration was inconsistent with 
the public interest based on Dr. Easter's material false statements in 
his DEA Application for Registration and a false statement on his 
application for renewal of State registration under the Texas 
Controlled Substances Act. The order also notified Dr. Easter that 
should no

[[Page 5580]]

request for a hearing be filed within 30 days, his hearing right would 
be deemed waived.
    The Order to Show Cause was sent by certified mail to Dr. Easter at 
his registered location in El Paso, Texas. On September 18, 2002, DEA 
received an undated signed receipt indicating the Order to Show Cause 
was received on his behalf. DEA has not received a request for hearing 
or any other reply from Dr. Easter or anyone purporting to represent 
him in this matter.
    Therefore, the Acting Deputy Administrator of DEA, finding that: 
(1) 30 days having passed since the delivery of the Order to Show Cause 
at Dr. Easter's registered address, and (2) no requests for hearing 
having been received, concludes that Dr. Easter is deemed to have 
waived his hearing right. See Samuel S. Jackson, D.D.S., 67 FR 65145 
(2002); David W. Linder, 67 FR 12579 (2002). After considering material 
from the investigative file in this matter, the Acting Deputy 
Administrator now enters her final order without a hearing pursuant to 
21 CFR 1301.43(d) and (e) and 1301.46.
    Pursuant to 21 U.S.C. 824(a)(1), the Acting Deputy Administrator 
may revoke a DEA Certificate of Registration and deny any pending 
applications for such a certificate upon a finding that the registrant 
has materially falsified any DEA application for registration. Pursuant 
to 21 U.S.C. 824(a)(2), the Deputy Administrator may revoke a DEA 
Certificate of Registration and deny any pending applications for such 
a certificate upon a finding that the registrant has been convicted of 
a felony related to controlled substances under State or Federal law.
    In addition, the Acting Deputy Administrator may revoke a DEA 
Certificate of Registration and deny any pending applications for such 
certificate if she determines that the issuance of such registration 
would be inconsistent with the public interest, as determined pursuant 
to 21 U.S.C. 823(a)(4) and 823(f). Section 823(f) requires 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.
    As a threshold matter, it should be noted that the factors 
specified in section 823(f) are to be considered in the disjunctive: 
The Acting Deputy Administrator may properly rely on any one or a 
combination of the factors, and give each factor the weight she deems 
appropriate, in determining whether a registration should be revoked or 
denied. Henry J. Schwarz, Jr., M.D., 54 FR 16422 (1989)
    The Acting Deputy Administrator's review of the investigative file 
reveals that on April 23, 2001, in State of Texas v. Thomas Easter, 
Cause No. 99D00731 in the 243rd District Court of El Paso County, 
Texas, Dr. Easter pled guilty to an eight count indictment alleging 
violations of Texas Penal Code Sec. 481.129, Possession of Controlled 
Substance by Fraud, a Third Degree Felony. On May 24, 2001, the court 
deferred adjudication of guilt and placed Dr. Easter on 10 years 
Community Supervision, with Terms and Conditions.
    Among these Terms and Conditions was the prohibition that, without 
further order of the court, Dr. Easter was not to prescribe any 
medications, although he was permitted to make recommendations to a 
supervising physician. On February 22, 2002, the court modified the 
Terms and Conditions to generally allow Dr. Easter to prescribe 
medications, if done under the supervision of another physician. 
However, the court's order specifically prohibited him from prescribing 
``scheduled narcotics.''
    Pursuant to an August 22, 1998, Agreed Order of the Texas State 
Board of Medical Examiners, Dr. Easter's license to practice medicine 
in Texas was restricted for a period of five years. That restricted 
license allowed him to prescribe, administer or dispense dangerous and 
controlled drugs with addictive potential, if he complied with certain 
enumerated conditions set forth in the Agreed Order. On June 6, 2003, 
the Texas State Board of Medical Examiners denied a request by Dr. 
Easter to terminate that Agreed Order.
    DEA does not have statutory authority under the Controlled 
Substances Act to issue a registration if the applicant is without 
State authority to handle controlled substances in the State in which 
he conducts business. See 21 U.S.C. 802(21), 823(f) and 824(a)(3). The 
Acting Deputy Administrator and her predecessors have consistently so 
held. See Douglas L. Geiger, M.D., 67 FR 64418 (2002); Theodore T. 
Ambadgis, M.D., 58 FR 5759 (1993); Ishan A. Karaagac, M.D., 51 FR 34695 
(1986).
    While Dr. Easter may hold a Texas medical license allowing him to 
prescribe, administer and dispense scheduled drugs, as of the date of 
this final order, there is no evidence that the Order of the District 
Court dated February 14, 2002, has been modified, revoked or otherwise 
terminated. The State court's order thus remains in full effect, 
prohibiting Dr. Easter from prescribing scheduled narcotic substances 
in Texas as a condition of his criminal probation.
    Considering the foregoing, the Acting Deputy Administrator 
concludes, pursuant to 21 U.S.C. 823(f), that by virtue of that order, 
Dr. Easter currently lacks authority under the laws of the State of his 
applied-for registration and practice, to dispense controlled narcotic 
substances and his application should be denied on that, as well as the 
following grounds. See John P. Daniels, M.D., 51 FR 34694 (1986) (State 
criminal court's probation order prohibiting defendant from possessing 
or prescribing dangerous drugs used as a basis for denying DEA 
application based on lack of State authorization).
    The Acting Deputy Administrator further finds that Dr. Easter has 
been convicted of eight State felonies relating to the distribution or 
dispensing of controlled substances and that denial of his application 
for registration is independently appropriate under 21 U.S.C. 823(f) 
and 824(a)(2).
    Dr. Easter also materially falsified his DEA Application for 
Registration (Control No. C07851408K). On February 23, 2002, he signed 
and certified the information in that application as being true and 
correct. Among the misrepresentations in the application, Dr. Easter 
affirmatively responded to Question 4(a), which asked if he was 
``currently authorized to prescribe'' controlled substances ``under the 
laws of the State or jurisdiction in which you are operating or propose 
to operate.'' However, pursuant to the District Court's Order of 
February 22, 2002, Dr. Easter was at the time he signed that 
application, and still is, prohibited from prescribing controlled 
narcotic substances in Texas, the State of intended registration and 
practice.
    Additionally, Dr. Easter replied in the negative to Question 4(c) 
of the application, which asked if he had ``ever been convicted of a 
crime in connection with controlled substances under State or Federal 
law?'' While entry of judgment in his criminal case was deferred, 
Respondent pled guilty to eight counts of Possession of Controlled 
Substance by Fraud, a Third Degree Felony under Texas law. DEA has 
consistently held that a deferred adjudication of guilt following a 
guilty plea, is a conviction within the meaning

[[Page 5581]]

of the Controlled Substances Act. See Vincent J. Scolero, D.O., 67 FR 
42060, 42065 (2002); Edson W. Redard, M.D., 65 FR 30616, 30618 (2000); 
Yu-To Hsu, M.D., 62 FR 12840, 12842 (1997).
    The Application for Registration form includes a block for 
applicants to explain any ``yes'' answers to questions ion section 4 of 
the form. Dr. Easter left that block empty. The Acting Deputy 
Administrator finds that Dr. Easter should have revealed in his 
application that he had pled guilty to the drug related felony counts 
and that checking the block ``no'' to Question 4(c), coupled with 
omission of any mention of his criminal history in the application, was 
a material falsification.
    Dr. Easter also answered ``no'' to Question 4(e) which asked in 
relevant part, whether he ``ever had a state professional license 
revoked, suspended, denied, restricted, or placed on probation?'' 
(Emphasis added). However, a review of the record shows Dr. Easter's 
Texas medical license was restricted at the time of his DEA application 
pursuant to the Texas State Board of Medical Examiners' Agreed Order of 
August 22, 1998.
    Pursuant to 21 U.S.C. 824(a)(1), falsification of a DEA application 
constitutes independent grounds to revoke a registration. Past cases 
have established that the appropriate test for determining whether an 
applicant materially falsified an application is whether the applicant 
``knew or should have known'' that the submitted application was false. 
See Barry H. Brooks, M.D., 66 FR 18305, 18307 (2001); Terrance E. 
Murphy, M.D., 61 FR 2841, 2844 (1996); Bobby Watts, M.D., 58 FR 46995 
(1993). The Acting Deputy Administrator finds that Dr. Easter knew or 
should have known that his answers to the above liability questions 
were false.
    False answers to liability questions are always considered 
material, as DEA relies on the answers to those questions in 
determining whether it is necessary to conduct an investigation prior 
to granting an application. See Barry H. Brooks, M.D., supra, 66 FR at 
18308; Theodore Neujahr, D.V.M., 64 FR 72362, 72364 (1999). Prior DEA 
cases have held that `` `[s]ince [it] must rely on the truthfulness of 
information supplied by applicants in registering them to handle 
controlled substances, falsification cannot be tolerated.' '' See 
Terrance E. Murphy, M.D., supra, 61 FR at 2845 (quoting Bobby Watts, 
MD., supra, 58 FR at 46995.
    In prior DEA cases the Deputy Administrator has held that the 
totality of the circumstances is to be considered in determining 
whether a registration should be revoked because of a registrant's 
material falsification of an application. See Barry H. Brooks, M.D., 
supra, 66 FR at 18308; Martha Hernandez, M.D., 62 FR 611435, 61147-48. 
In this case, the Acting Deputy Administrator finds that Dr. Easter 
provided false information in responding to the liability questions on 
his application and after considering the totality of the 
circumstances, finds that these misrepresentations constitute a 
material falsification warranting denial of registration under 21 
U.S.C. 824(a)(1).
    With regard to the public interest factors of 21 U.S.C. 823(f), as 
to factor one, recommendations of the State licensing board/
disciplinary authority, it is noted that, except to the extent that Dr. 
Easter cannot treat himself or his family and must prescribe and 
administrator controlled drugs only when medically indicated and upon 
adequate examination, the Texas Medical Board has not currently 
restricted his ability to handle or prescribe controlled substances. 
Therefore, except for the order of the District Court, the Texas 
Medical Board would permit him to handle controlled substances in that 
State. However, `` `inasmuch as State licensure is a necessary but not 
sufficient condition for a DEA registration * * * this factor is not 
dispositive.' '' See Edson W. Redard, M.D., 65 FR 30616, 30619.
    It is noted the record reflects that on August 18, 1999, Dr. Easter 
surrendered his Colorado medical license and that his New Mexico 
medical license was revoked in September 2002, based on the Texas 
convictions and his failure to report those convictions to New Mexico 
licensing authorities in a timely manner. The Hearing Office in the New 
Mexico proceedings specifically noted that, despite his criminal 
convictions, Dr. Easter still saw nothing wrong in what he had done, 
asserted his acts were justified and showed no contrition or remorse. 
The Hearing Officer found Dr. Easter was not rehabilitated and, ``if 
given the opportunity to do so, Respondent would write fraudulent 
prescriptions again if he believes he is justified.'' This conclusion 
is considered by the Acting Deputy Administrator as adverse to Dr. 
Easter under factor one and, as discussed below, factor five, as well.
    Regarding factors two, three, four and five, the actions resulting 
in his conviction of the eight drug related felony counts discussed 
earlier, are relevant and adverse to Dr. Easter. With regard to factor 
five, such other conduct which may threaten the public health and 
safety, in Dr. Easter's Application for Renewal of his Texas Controlled 
Substances Registration Certificate which he signed on March 29, 2002, 
he advised the Texas Department of Public Safety that, ``initially I 
was ordered by the Court not to write prescriptions; however, on 
Valentine's Day 2002 Judge Bonnie Rangel reinstated my ability to write 
prescriptions.'' However, as the court's order modifying the terms and 
conditions of Dr. Easter's community supervision provides, while it 
generally authorized him to write prescriptions, the court specifically 
prohibited him from writing prescriptions for ``scheduled narcotics.'' 
Dr. Easter's omission of this critical fact from his State renewal 
application was a material misrepresentation, further indicating that 
his DEA registration would be inconsistent with the public interest.
    While recognizing the conduct forming the basis for Dr. Easter's 
convictions occurred in 1997 and 1998, the Acting Deputy Administrator 
is particularly troubled by the attitude he has displayed as recently 
as July 2002. After his hearing before the New Mexico Medical Board, 
the hearing officer concluded Dr. Easter's ``lack of contrition or 
remorse and [his] apparent belief that he can write fraudulent 
prescriptions in violiation of the law if he believes he is justified 
to do so under certain circumstances shows [Dr. Easter] is not 
rehabilitated.''
    Couped with the series of omissions and misrepresentations in his 
DEA and Texas applications, it appears Dr. Easter still fails to 
appreciate the seriousness of his professional and personal misconduct 
and has a continuing penchant for not being candid when dealing with 
State and Federal licensing authorities.
    In light of the foregoing, the Acting Deputy Administrator finds 
that Dr. Easter's registration would be inconsistent with the public 
interest, as that term is used in 21 U.S.C. 823(f) and 824(a)(4).
    According, the Acting Deputy Administrator of the Drug Enforcement 
Administrator, pursuant to the authority vested in her by 21 U.S.C. 823 
and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that the pending 
application for DEA Certificate of Registration, submitted by Thomas G. 
Easter II, M.D., be, and it hereby is, denied. This order is effective 
March 8, 2004.

    Dated: January 7, 2004.
Michele M. Leonhart,
Acting Deputy Administrator.
[FR Doc. 04-2338 Filed 2-4-04; 8:45 am]
BILLING CODE 4410-09-M