[Federal Register Volume 69, Number 204 (Friday, October 22, 2004)]
[Notices]
[Pages 62081-62084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23709]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 02-35]


Imran I. Chaudry, M.D.; Revocation and Denial of Registration

    On February 6, 2002, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Imran I. Chaudry, M.D. (Respondent) at two 
separate addresses in Monroe, Louisiana. The Order to Show Cause 
notified Respondent of an opportunity to show cause as to why DEA 
should not revoke his DEA Certificate of Registration, BC4775233, and 
deny any pending applications for modification or renewal of that 
registration, pursuant to 21 U.S.C. 824(a)(4) and 823(f), for reason 
that Respondent's continued registration was inconsistent with the 
public interest.
    Specifically, the Order to Show Cause alleged that in March of 
2001, Respondent, (1) had been abusing the controlled substances 
cocaine and methamphetamine, an (2) in April of 2001, Respondent 
offered to purchase, and in fact purchased, approximately 14 grams of 
methamphetamine, for which he was arrested and charged with Possession 
of Methamphetamine with Intent to Distribute, and Conspiracy to 
Distribute Methamphetamine.
    By letter dated March 5, 2002, Respondent through his legal counsel 
requested a hearing on the issues raised by the Order to Show Cause. 
Following pre-hearing procedures, a hearing was held on December 4, 
2002, in Monroe, Louisiana. While both parties called witnesses to 
testify at the hearing, Respondent elected not to testify in his 
behalf. Both parties also introduced documentary evidence. After the 
hearing, both parties submitted written proposed findings of fact, 
conclusions of law, and argument.
    On June 13, 2003, Administrative Law Judge Gail A. Randall (Judge 
Randall) issued her Recommended Rulings, Findings of Fact, Conclusions 
of Law and Decision (Opinion and Recommended Ruling) in which she 
concluded that grounds existed to revoke Respondent's DEA registration, 
but recommended that Respondent's then-pending applications for renewal 
and change of registered address be granted, subject to certain 
conditions. On June 19, 2003, the Government filed exceptions to Judge 
Randall's Opinion and Recommended Ruling and on July 2, 2003, 
Respondent filed a response to the Government's exceptions. On August 
6, 2003, Judge Randall transmitted the record of these proceedings to 
the Administrator of DEA.
    The Deputy Administrator has considered the record in it entirety, 
and pursuant to 21 CFR 1316.67, hereby issues her final order based 
upon findings of fact and conclusions of law as hereinafter set forth. 
As set forth below, the Deputy Administrator adopts in part, the 
recommended findings of fact and conclusions of law of the 
Administrative Law Judge. The Deputy Administrator does not adopt the 
Administrative Law Judge's recommendation that Respondent's 
applications for renewal of registration and change of registered 
address be granted.
    The record before the Deputy Administrator shows that as of the 
date of the hearing, Respondent's license to practice medicine in 
Louisiana was in good standing and that he possessed a then-current 
Louisiana narcotics license. Respondent practices medicine in the 
vicinity of Monroe, Louisiana as a cardiologist. In the rural area 
where Respondent's practice is located, the ratio of physicians to 
patients is approximately 1 to 2,000 to 2,500. Respondent is the only 
cardiologist in that community. Evidence was also presented during the 
hearing that, although twenty-five percent of Louisiana's citizens 
reside in rural areas of the state, only six percent of Louisiana's 
practicing primary care physicians practice medicine in rural areas.
    On August 19, 1998, DEA issued Certificate of Registration 
BC4775233 to Respondent and that certificate expired on August 31, 
2001. Nevertheless, by application dated September 4, 2001, Respondent 
attempted to renew the registration and modify it to reflect a new 
address. A Government witness testified that because Respondent 
submitted a renewal application, he was authorized to prescribe 
controlled substances within the course of legitimate medical practice 
on a day-to-day basis until conclusion of these proceedings. However, 
since he was no

[[Page 62082]]

longer practicing at his registered address, he could not administer, 
store or dispense controlled substances at the unregistered location.
    Around March 2001, law enforcement officers from Ouachita Parish in 
Louisiana received information from a source that Respondent was 
abusing cocaine and methamphetamine, both Schedule II controlled 
substances. In response, on April 24, 2001, local law enforcement 
personnel used a cooperating individual to engage Respondent in a 
controlled sale of fourteen grams of methamphetamine for $850.00. Prior 
to their meeting, Respondent and the cooperating individual had a 
series of monitored phone calls during which Respondent indicated the 
methamphetamine was not just for personal use, but would be shared with 
another physician. He requested the methamphetamine be packaged in 
three separate containers; two containing two grams each and a third 
with ten grams.
    As officers watched, Respondent, who was alone, met the cooperating 
individual in a parking lot. While seated in adjoining vehicles, 
Respondent received the drugs, packaged as requested, through the open 
window of his car. Respondent was then immediately arrested for 
possession of methamphetamine with intent to distribute and conspiracy 
to distribute methamphetamine.
    During a videotaped post-arrest interview (admitted into evidence 
as a Government exhibit in this proceeding), Respondent admitted 
purchasing and using methamphetamine three or four times during the 
preceding six months. He told officers the methamphetamine he was 
buying when arrested was for himself and another physician. He admitted 
obtaining methamphetamine for that same colleague on one prior 
occasion. Respondent claimed he was not addicted to illegal substances 
and that he never used drugs at any time while working.
    No charges were filed against Respondent's colleague and Respondent 
was ultimately charged in state court with possession of 
methamphetamine. As of the date of the hearing before Judge Randall, a 
motion to suppress Respondent's post-arrest statement was then pending 
and no trial date had yet been set. There is no evidence in the record 
that Respondent was ever subsequently tried or convicted of any charges 
related to this incident.
    After his arrest, Respondent entered the Palmetto Addiction 
Recovery Center (``Palmetto Center'') in Rayville, Louisiana. The 
Palmetto Center is approved for evaluation and treatment of substance 
abuse patients by the Louisiana State Board of Medical Examiners 
(Board). Respondent was evaluated for chemical abuse or dependency at 
the request of the Board.
    Following the Palmetto Center evaluation, Respondent was referred 
to the Physician's Health Program (``PHP''). The PHP is a professional 
group that monitors physicians with a prior history of substance abuse. 
It has had a Memorandum of Understanding with the Board since 1984 and 
has been accepted by the Board for monitoring the evaluation and 
treatment of impaired physicians since August 2001. Respondent entered 
into a monitoring contract with PHP from October 2001 through October 
2002 for the purposes of determining whether or not he had developed a 
chemical dependency.
    During this contract period, Respondent was required to abstain 
from consuming any mood altering substances unless prescribed by a 
physician, after consultation with PHP. Respondent was randomly drug 
tested twice a month for the presence of over thirty-five different 
drugs, including methamphetamine and completed each of his ramdom drug 
screenings in a timely manner without missing a test. The results were 
all negative.
    PHP also required that Respondent work with a psychiatrist on a 
regular basis, as well as with a licensed clinical social worker and 
work-site monitor. The work-site monitor saw Respondent on a daily 
basis and reported to PHP on Respondent's overall progress in the 
program, including his interaction with patients, staff and 
``timeliness in responding to calls, timeliness in doing charts'' and 
his overall professionalism. The record in this proceeding shows 
Respondent never missed a session with these clinicians.
    PHP's medical director testified for Respondent as an expert in 
addiction medicine. He testified to receiving reports every two months 
from the monitor and that reports on Respondent's overall interaction 
with staff and patients were found, among other things, to be 
``exemplary.'' The director also received very favorable progress notes 
from the psychiatrist and the clinical social worker and neither 
reported any evidence of clinical disorders in Respondent. 
Specifically, there were no reports of any indications of substance 
abuse or addictive behavior from their professionals monitoring 
Respondent's conduct.
    Respondent attended continuing medical education courses as part of 
his contract with PHP. Specifically, he completed a review course 
sponsored by the American Society of Addiction Medicine. In addition to 
successfully completing his one-year monitoring contract, Respondent 
completed his exit interview with PHP personnel and voluntarily 
remained in communication with PHP.
    Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy 
Administrator may revoke a DEA Certificate of Registration and deny any 
pending applications for renewal of such registration, if she 
determines that the continued registration would be inconsistent with 
the public interest. Section 823(f) requires that the following factors 
be considered in determining the public interest:
    (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 she deems appropriate in determining 
whether a registration should be revoked or an application for 
registration denied. See Henry J. Schwartz, Jr., M.D., 54 FR 16422 
(1989).
    As to factor one, the recommendation of the appropriate state 
licensing board or professional disciplinary authority, the Deputy 
Administrator finds that the Louisiana State Board of Medical Examiners 
has not made a recommendation in this matter. However, it has not taken 
adverse action against Respondent's medical or narcotic licenses and he 
is fully licensed as a physician in Louisiana with controlled substance 
handling privileges in that state, despite the Board's awareness of the 
then-pending criminal proceedings. While this may weigh in favor of 
continuing his registration with DEA, ``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 (2000).
    With regard to factors two and four, Respondent's experience in 
handling controlled substances and his compliance with applicable 
controlled substance laws, the record contains no

[[Page 62083]]

evidence that Respondent unlawfully dispensed controlled substances 
during the course of his professional practice. However, on April 24, 
2001, Respondent unlawfully purchased fourteen grams of methamphetamine 
from a cooperating individual for $850.00. He also admitted that he had 
unlawfully used methamphetamine three or four times in the preceding 
six months.
    Of particular concern to the Deputy Administrator is Respondent's 
admission that he previously distributed methamphetamine to a fellow 
local physician and the evidence showing a portion of the 
methamphetamine he was buying when arrested was intended for 
distribution to that same medical colleague. Respondent's purchase, use 
and distribution of methamphetamine violated Louisiana and federal law 
and factors two and four weigh in favor of a finding that his continued 
registration with DEA would be inconsistent with the public interest.
    Factor three, the applicant's conviction record under federal or 
state laws relating to the manufacture, distribution, or dispensing of 
controlled substances, is not relevant for consideration, as there is 
no evidence Respondent was ever convicted of any crime related to 
controlled substances.
    With respect to factor five, other conduct that may threaten the 
public health and safety, Respondent's unlawful purchase and use of 
methamphetamine on prior occasions and his distribution of the 
controlled substance to another physician are also relevant under 
factor five and weigh in favor of a finding that continued registration 
would be inconsistent with the public interest.
    As noted above, Respondent did not testify at the hearing. The 
Deputy Administrator may draw a negative inference from Respondent's 
failure to testify during the administrative hearing. See David A. 
Hoxie, M.D., 60 FR 51477 (2004); Alexander Drug Company, Inc., 66 FR 
18299 (2001); Alan L. Ager, D.P.M., 63 FR 54732 (1998); Raymond A. 
Carlson, M.D., 53 FR 7424 (1988); Antonio C. Camacho, M.D., 51 FR 11654 
(1986). The negative inference drawn from Respondent's failure to 
testify is that he was unwilling to be forthright and completely honest 
with the Administrative Law Judge and the Drug Enforcement 
Administration. See Antonio C. Camacho, M.D., supra.
    The Deputy Administrator agrees with the Government and Judge 
Randall that Respondent's choice in not testifying left the record 
silent as to possible remorse following his unlawful purchase and use 
of controlled substances. The Deputy Administrator also shares Judge 
Randall's concern about the lack of reassurances on the part of 
Respondent that he will not again engage in unlawful conduct with 
respect to controlled substances.
    The Deputy Administrator agrees with Judge Randall that the 
Government met its prima facie burden for revoking Respondent's DEA 
Certificate of Registration and deny his pending requests for renewal 
and modification. Specifically, the Deputy Administrator agrees with 
Judge Randall that, ``Although not linked with his medical practices 
per se, the Respondent unlawfully handled methamphetamine by purchasing 
it for his personal use and the use of others without appropriate 
medical justification. Such total disregard for the law governing 
controlled substances can not be tolerated in a physician who has been 
entrusted to use his professional discretion in treating patients with 
these same substances.''
    However, as Judge Randall notes in her Opinion and Recommended 
Ruling, the governing statute is discretionary. See Mary Thomson, M.D., 
65 FR 75969 (2000). In exercising her discretion in determining the 
appropriate remedy in any given case, the Deputy Administrator should 
consider all the facts and circumstances of the case. See Martha 
Hernandez, M.D., 62 FR 61145 (1997).
    Judge Randall concluded a lesser sanction than total revocation of 
respondent's DEA Certificate of Registration was warranted, based 
primarily on Respondent's efforts since 2001 to demonstrate continued 
avoidance of substance abuse and, secondarily, on his community's need 
for a cardiology specialist, coupled with the absence of any evidence 
that Respondent mishandled controlled substances in the course of his 
medical practice. Judge Randall recommended that the Deputy 
Administrator grant Respondent's application to renew his DEA 
Certificate of Registration and modify it to the requested new address, 
with the conditions that he continue participating in the PHP program 
for the duration of his registration period and that the results of 
continuing random drug tests be provided the local DEA office.
    The Deputy Administrator acknowledges Respondent's positive efforts 
to tackle his problems. He entered himself into the Palmetto Addiction 
Recovery Center and was subsequently referred to PHP, where he 
completed an intensive one-year monitoring program for impaired 
physicians. It appears Respondent was compliant with all phases of the 
program, including submission to random urine screens designed to 
detect the presence of illicit drugs and alcohol. Respondent was deemed 
to not have a chemical dependency.
    The initial findings of the Palmetto Center and Respondent's 
compliance with the physician monitoring program were corroborated at 
the hearing by the PHP medical director's testimony on Respondent's 
behalf. There is no evidence of any misuse of controlled substances by 
Respondent since his April 2001 arrest, nor is there evidence of any 
disciplinary action being brought against Respondent by the Louisiana 
State Medical Board with respect to his handling of controlled 
substances. However, it is also recognized that these rehabilitative 
steps were taken while Respondent was under the threat of state 
prosecution and would have been motivated, at least in part, by the 
impact they might have on then-pending criminal proceedings, as well as 
his ability to remain licensed to practice medicine.
    As noted above, the Government filed exceptions to Judge Randall's 
Opinion and Recommended Ruling and Respondent filed a response in 
opposition to the Government's exceptions.
    The Government took exception to Judge Randall's finding that 
Respondent was the only cardiologist in Rayville, Louisiana; that Judge 
Randall made ancillary findings regarding physician populations 
generally in Louisiana; and, that Judge Randall neglected to note that 
one of the maps in a Respondent's exhibit showed that nearly every 
parish in Louisiana was classified as ``medically underserved.''
    There was no evidence presented in this matter that anyone other 
than Respondent was a licensed cardiologist practicing in Rayville, a 
town of approximately 4,000 people, which was the parish seat. While 
there was evidence that six physicians, including Respondent, practiced 
in the area, there was no evidence that any of them, other than 
Respondent, were trained, licensed or otherwise possessed credentials 
to practice cardiology.
    The Deputy Administrator is also not persuaded by the Government's 
argument regarding the physician population in Louisiana, or its 
argument regarding the appropriate weight to be accorded evidence of 
maps purportedly demonstrating medically underserved parishes in 
Louisiana.
    The Deputy Administrator finds that, regardless of any demographic 
showing as to what proportion of Louisiana's population is medically 
underserved;

[[Page 62084]]

such information does not detract from the fact that Respondent 
provides needed medical services to such an area. However, as will be 
discussed below, while this provides some support for maintaining 
registration, under the facts of this case, it also has a negative 
implication for continued registration.
    The Government also took exception to Judge Randall's finding 
regarding the veracity of the random drug tests administered 
Respondent, especially as they relate to the detection of 
methamphetamine. The Government argued in part, that ``[f]rom the 
factual findings, it would be possible that Respondent could have taken 
methamphetamine many times in the month, and yet evaded detection.'' 
The Government further argues that the 24 to 36 hour metabolism rate 
for methamphetamine, in effect, creates an adequate window for a person 
to avoid detection when administered a drug test.
    The Deputy Administrator is reluctant to apply the Government's 
arguments to these facts. While it is acknowledged it is ``possible'' 
Respondent could have taken methamphetamine and avoided detection, to 
accept the premise that he continued abusing would require assumptions 
about his conduct that are not supported by the record.
    The primary aim of a ``random'' drug test is to create a level of 
unpredictability as to when the test will be administered. The 
unpredictable nature of such a test theoretically creates a 
disincentive for the continued use of drugs on the part of the 
individual being monitored. Against this backdrop, it is important to 
point out there is no evidence in the record raising any question as to 
the efficacy of the PHP drug testing program. Without such evidence, 
and in light of evidence of Respondent's negative drug tests, the 
Deputy Administrator concludes that the random nature of the PHP-
administered tests served as an effective deterrent to Respondent's 
further drug use.
    The Government also argued it would be unreasonable to reach the 
conclusion testified to by the PHP medical director that ``a single use 
of illegal drugs or even three illegal uses in a one-year period'' does 
not constitute evidence of chemical abuse. This argument is not 
particularly compelling.
    The Deputy Administrator agrees with Respondent that the term 
``abuse,'' as being used by the witness, was referring to the diagnosis 
of chemical abuse under the DSM-4, which requires certain criteria 
which, in the witness's opinion, were not present in Respondent's case. 
While the Deputy Administrator agrees with the Government that a single 
or multiple uses of illegal drugs can be deemed ``abuse'' in non-
diagnostic terminology, Judge Randall's findings on this point were 
primarily credibility findings as to the expert's assessment of 
Respondent's lack of chemical dependency.
    The Deputy Administrator considers Respondent's illicit purchase 
and use of methamphetamine particularly serious acts of misconduct. As 
the record demonstrates, Respondent was not chemically dependent. This 
infers that it was neither addiction nor dependency that motivated his 
``street'' purchases of methamphetamine. Instead, he exercised 
unhindered judgment to illegally obtain and use what he as a physician, 
well knew to be an insidiously dangerous controlled substance and did 
so, according to his post-arrest interview, to enhance his sex life. 
This motivation to violate the law and risk his reputation and 
livelihood evidences a particularly cavalier and irresponsible attitude 
toward his responsibilities as a DEA registrant.
    There is no evidence in the record that Respondent used illicit 
drugs while actually engaged in the practice of medicine. However, as a 
cardiologist, it is inferred that it was possible that he might be 
subject to being called on unexpectedly to treat patients experiencing 
serious heart problems on an emergent basis. If this had occurred while 
Respondent was under the influence of methamphetamine, his patients 
would either have been placed at risk by Respondent's impairment or, if 
he declined to treat them because of his drug use, they would not have 
been able to be seen immediately by another cardiology specialist, as 
Respondent was the only one in the rural area. These potential risks 
should have been apparent to Respondent when he elected to use 
methamphetamine and raise significant questions as to his judgment and 
ability to use sound professional discretion in treating patients with 
controlled substances.
    Of particular concern to the Deputy Administrator is the finding 
that Respondent admitted previously purchasing methamhetamine and 
illicitly distributing it to another individual. This criminal conduct 
is made even more egregious because the recipient was a fellow 
physician. The evidence also shows that a portion of the 
methamphetamine Respondent was purchasing when arrested was destined 
for distribution to that medical colleague. Thus, in an area already 
undeserved by medical professionals, Respondent not only placed himself 
at risk, but, by distributing methamphetamine to another physician, 
added to the threat posed to his rural community by potentially 
impaired physicians.
    Since his arrest, Respondent's professional practice has continued 
without blemish and he has avoided illicit drugs. These are commendable 
and indicate potential for future registration. On the other hand, 
Respondent's calculated abandonment of his responsibilities and 
willingness to risk serious criminal and professional sanctions do not 
auger well for continued registration being in the public interest. As 
observed by the Seventh Circuit Court of Appeal, ``[a]n agency 
rationally may conclude that past performance is the best projector of 
future performance.'' ALRA Laboratories, Inc. v. DEA, 54 F.3d 450, 451 
(7th Cir. 1995).
    Based on the foregoing, at this time, the Deputy Administrator does 
not have sufficient confidence that Respondent can successfully fulfill 
the responsibilities of a registrant.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in her by 21 U.S.C. 
823 and 28 CFR 0.100(b), and 0.104, hereby orders that DEA Certificate 
of Registration BC4775233, previously issued to Imran I. Chaudry, M.D., 
be and it hereby is revoked. His pending application for renewal of 
that registration and his request to modify said registration to 
reflect a new requested address, are hereby denied. This order is 
effective November 22, 2004.

    Dated: October 5, 2004.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 04-23709 Filed 10-21-04; 8:45 am]
BILLING CODE 4410-09-M