[Federal Register Volume 62, Number 35 (Friday, February 21, 1997)]
[Notices]
[Pages 8038-8041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4345]


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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 95-29]


Roger D. McAlpin, D.M.D., Grant of Restricted Registration

    On March 7, 1995, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA) issued an 
Order to Show Cause to Roger McAlpin, D.M.D. (Respondent) of 
Louisville, Kentucky, notifying him of an opportunity to show cause as 
to why DEA should not deny his application for registration as a 
practitioner under 21 U.S.C. 823(f), for reason that such registration 
would be inconsistent with the public interest.
    By letter dated March 29, 1995, the Respondent, acting pro se, 
timely filed a request for a hearing, and following prehearing 
procedures, a hearing was held in Louisville, Kentucky on February 21, 
1996, before Administrative Law Judge Mary Ellen Bittner. At the 
hearing, both parties called witnesses to testify and the Government 
introduced documentary evidence. After the hearing, the Government 
submitted proposed findings of fact, conclusions of law and argument. 
On July 3, 1996, Judge Bittner issued her Opinion and Recommended 
Ruling. Findings of Fact, Conclusions of Law and Decision, recommending 
that Respondent's application for a DEA Certificate of Registration 
should be granted in Schedules III non-narcotic, IV and V subject to 
various restrictions. On July 22, 1996, the Government filed exceptions 
to the Recommended Ruling of the Administrative Law Judge, and on 
August 6, 1996, Judge Bittner transmitted the record of these 
proceedings, including the Government's exceptions to the Deputy 
Administrator.
    The Acting Deputy Administrator has considered the record in it 
entirety, 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, Findings of Fact, 
Conclusions of Law and Decision of the Administrative Law Judge. The 
Acting Deputy Administrator's 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 Respondent received his 
D.M.D. degree from the University of Kentucky in 1979. Following 
graduation, Respondent worked for a non-profit dental clinic in 
California for approximately two years. Over the ensuing years, 
Respondent practiced dentistry at various times in Kentucky, Illinois 
and Tennessee.
    According to Respondent, he began using cocaine recreationally 
while in dental school. He testified that he quit using cocaine after 
graduation, but then resumed using cocaine and other controlled 
substances in 1981. Respondent quit abusing drugs again after 
approximately two years and then recommenced his abuse in the late 
1980's. According to Respondent, in April 1988 he entered into a 30-day 
in-patient rehabilitation treatment facility. Following his discharge 
from the facility, he continued to attend Narcotics Anonymous and 
Alcoholics Anonymous meetings three to four nights a week. 
Subsequently, Respondent concluded that he was cured of his addiction, 
stopped attending support meetings, and broke off all contact with his 
sponsor.
    In 1989, Respondent was working for a dental clinic in Tennessee 
which was owned by an individual who was not a dentist. In November 
1989, the Tennessee Department of Health and Environment, Health 
Related Boards initiated an investigation of Respondent after receiving 
a complaint from a local pharmacist that Respondent was possibly 
overprescribing and distributing controlled substances. A review of 
Respondent's prescriptions revealed that several of Respondent's 
patients had received Schedule II

[[Page 8039]]

controlled substances at regular intervals; that multiple prescriptions 
for Schedule II controlled substances were filled by the same 
individuals at different pharmacies on the same day; and that many of 
these patients had the same address or interchanged addresses. On March 
27, 1990, Tennessee Investigators interviewed Respondent during which 
Respondent admitted to abusing cocaine in the past and to selling 
prescriptions. Sometime in 1989, Respondent began writing and selling 
Schedule II prescriptions for no legitimate medical reason to 
approximately eight individuals who sold the drugs on the street. 
Respondent testified at the hearing before Judge Bittner that he needed 
the money to pay for his daughter's eye surgery and to reimburse the 
Internal Revenue Service for unpaid taxes. According to Respondent, he 
sold the prescriptions for approximately nine months and was 
occasionally using drugs himself during that time.
    On March 30, 1990, Respondent surrendered his previous DEA 
Certificate of Registration. On June 14, 1990, the Tennessee Board of 
Dentistry (Tennessee Board) revoked Respondent's license to practice 
dentistry in the State of Tennessee. The Tennessee Board found that 
Respondent unlawfully prescribed controlled substances for financial 
gain and violated a provision of Tennessee law which prohibits a 
licensed dentist from being employed by a non-dentist.
    In the meantime, Respondent had applied for and received a dental 
license in the Commonwealth of Virginia on May 1, 1990. On September 
20, 1990, the Virginia Board of Dentistry (Virginia Board) revoked 
Respondent's license in that state. The Virginia Board found that 
Respondent's Tennessee license had been revoked for allowing controlled 
substances to be diverted to the public for illicit use; that 
Respondent had falsified his Virginia application, in that he denied an 
addiction to drugs and that he had any complaints pending in any 
jurisdiction against him; and that Respondent had not finalized a 
contract with the Caring Dentists Committee of the Virginia Dental 
Association as required by the Impaired Dentists' Contract he had 
signed with the Concerned Dentist Committee of the Tennessee Dental 
Association.
    Subsequently, on December 15, 1990, the Kentucky Board of Dentistry 
(Kentucky Board) conducted a hearing regarding Respondent's license to 
practice dentistry in that state. The Kentucky Board concluded that 
Respondent violated state law by engaging in unprofessional conduct 
culminating in the revocation of his licenses to practice dentistry in 
Tennessee and Virginia. The Kentucky Board placed Respondent on 
probation for two years and ordered him to sign a contract with and 
participate in the impaired dentists program of the Kentucky Dental 
Association, make quarterly reports to the Kentucky Board regarding his 
progress in that program, and otherwise comply fully with the Kentucky 
Dental Practice Act. By the time of the hearing before Judge Bittner, 
Respondent had completed his probation with the Kentucky Board.
    On May 18, 1991, Respondent forged a prescription for 16 dosage 
units of Lortab 7.5 mg., a Schedule III controlled substance, and 
attempted to have it filled at a local pharmacy. Respondent testified 
that he had arrived early at his Narcotics Anonymous meeting that 
evening and was reading a book in his car when he noticed that the book 
marker was an old prescription form of a dentist for whom he used to 
work. He then spontaneously forged the prescription and attempted to 
have it filled, but never received the drugs because the pharmacist 
determined that the prescription was forged. On August 15, 1991, 
Respondent pled guilty in state court to criminal attempt to possess a 
Schedule IV non-narcotic controlled substance and was sentenced to six 
months in prison, fined $200.00, and ordered to pay court costs. The 
sentence was credited four days for time served and then stayed in 
favor of one year probation and payment of the fine.
    Respondent testified at the hearing before Judge Bittner that he 
has been drug-free since 1990, and that after his 1991 conviction he 
began seeing a doctor for chemical dependency counseling and drug 
screening. According to Respondent, he was unable to introduce into 
evidence any documentation regarding the drug screens and counseling 
because the doctor has since died. Respondent further testified that he 
has maintained close contact with a counselor at his church; has been 
attending Narcotics Anonymous meetings; had been attending Caduceus 
group meetings, a medical professionals support group, until the group 
relocated; and has been trying to get invited to join a Caduceus group 
that meets in Louisville.
    A DEA investigator contacted the doctor at the treatment facility 
where Respondent had received treatment for his addiction from April 10 
through May 10, 1988. The doctor indicated to the investigator that he 
had not had any contact with Respondent since May 10, 1988, other than 
one telephone call during which Respondent ``sounded grandiose'' 
causing the doctor to suspect that Respondent had not made a sound 
recovery. The doctor stated that he would not recommend granting 
Respondent his DEA registration without evidence of sound recovery.
    Respondent testified at the hearing that if his application for DEA 
registration is granted, he is willing to have whatever conditions/
restrictions DEA deems appropriate placed on his registration. He also 
testified that he is currently paying taxes and that he is repaying the 
Internal Revenue Service on an arranged payment schedule.
    Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an 
application for a DEA Certificate of Registration if he determines that 
such 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, 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.
    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 be 
denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 54 FR 16,422 
(1989).
    Regarding factor one, Respondent has had his license to practice 
dentistry revoked in both Tennessee and Virginia and the Kentucky Board 
placed his license on probation for two years. While Respondent is not 
currently authorized to practice dentistry in Tennessee and Virginia, 
he does now have an unrestricted registration in Kentucky, the state in 
which he is applying to be registered with DEA. As Judge Bittner noted, 
``[w]hile a state license to practice dentistry is a necessary 
condition for the granting of a DEA registration, it is not 
dispositive.''
    As to factor two, Respondent's experience in dispensing controlled 
substances, it is undisputed that in 1989, Respondent, motivated solely 
by financial gain, sold controlled substance prescriptions to 
approximately eight

[[Page 8040]]

individuals over a nine month period for no legitimate medical purpose, 
and that he attempted to fill a forged prescription for a controlled 
substance in 1991. Judge Bittner concluded that, ``Respondent's conduct 
in this respect weighs in favor of a finding that Respondent's 
registration would be inconsistent with the public interest; however, I 
found Respondent to be a credible witness and believe his expressions 
of remorse.''
    Regarding factor three, following his attempt to fill a forged 
prescription for controlled substances, Respondent was convicted in 
1991 of criminal attempt to possess a controlled substance. Judge 
Bittner found that ``[t]his criminal conviction supports the 
Government's contention that Respondent cannot responsibly handle 
controlled substances,'' and therefore concluded that ``this factor 
weighs in favor of a finding that Respondent's registration with the 
DEA would be inconsistent with the public interest.'' The Acting Deputy 
Administrator finds however, that while Respondent was charged with 
obtaining a controlled substance by fraud, he ultimately was convicted 
of criminal attempt to possess a controlled substance. Therefore, the 
Acting Deputy Administrator concludes that it appears that Respondent 
has no conviction record relating to the manufacture, distribution or 
dispensing of controlled substances.
    As to factor four, it is evident from the record that Respondent 
has violated various laws and regulations relating to controlled 
substances. By prescribing controlled substances to eight individuals 
over a nine year period in 1989 for no legitimate medical purpose, 
Respondent violated 21 U.S.C. 841(a)(1) and 21 CFR 1306.04. He violated 
various state and Federal laws by self-abusing cocaine and other 
controlled substances. Further, his attempt to obtain controlled 
substances by forging a prescription violated 21 U.S.C. 843(a)(3). 
Judge Bittner concluded that, ``this factor weighs in favor of finding 
that his reregistration would be inconsistent with the public interest; 
however, Respondent's most recent misconduct occurred five years before 
the date of this hearing, and it now appears that Respondent 
acknowledges his wrongdoing and realizes the consequences of his 
actions.''
    Finally, as to factor five, as Judge Bittner notes, ``[t]here is no 
dispute that Respondent has had a long history of drug abuse, dating 
back to 1974.'' Respondent acknowledged at the hearing that he has 
relapsed in the past following efforts at rehabilitation, however he 
has been drug-free since 1990, and as of the date of the hearing, 
continues to strive to maintain his successful rehabilitation. The 
Acting Deputy Administrator is troubled however, at the lack of 
evidence in the record regarding Respondent's rehabilitation efforts. 
In fact, other than Respondent's own testimony, the only other evidence 
presented was a letter from the doctor who oversaw his treatment in 
1988, who stated that, ``(Respondent) sounds grandiose over the phone 
and I suspect that he does not have a sound recovery.'' However, Judge 
Bittner noted that she ``was very impressed by Respondent as a witness; 
he appeared very candid and remarkably straight-forward at the hearing 
and I credit his testimony that he has been in rehabilitation and has 
remained drug-free for five years.''
    The Administrative Law Judge concluded that Respondent's past 
history regarding controlled substances is ``dismal'', finding that 
Respondent ``has abused drugs, including cocaine, throughout most of 
his adult life, that he sold Schedule II controlled substance 
prescriptions to approximately eight individuals for no legitimate 
medical purpose, and that he attempted to pass a forged prescription 
for a Schedule III controlled substance during a relapse.'' However, in 
light of her finding that Respondent's testimony regarding his 
rehabilitation from drug abuse was credible, Judge Bittner concluded 
that it would not be inconsistent with the public interest to grant 
Respondent's application for DEA registration. Judge Bittner determined 
however, that some restrictions were appropriate to protect the public. 
Accordingly, Judge Bittner recommended that Respondent's registration 
should be limited to non-narcotic controlled substances in Schedule III 
and controlled substances in Schedule IV and V; Respondent should be 
permitted to prescribe, but not administer or otherwise dispense, 
controlled substances in the above categories; and he should be 
required to submit a log of his prescriptions to the nearest DEA 
resident office for review every three months for two years from the 
date of issuance of his registration.
    The Government filed exceptions to the Recommended Ruling of the 
Administrative Law Judge. The Government argued that ``the record in 
this proceeding, specifically Respondent's past abuse of prescribing 
privileges and the absence of evidence regarding Respondent's 
rehabilitation, supports denial of Respondent's application for DEA 
registration.'' The Government further argued that, ``should the Acting 
Deputy Administrator decide to adopt the recommended ruling of the 
administrative law judge, the Government requests that Respondent also 
be restricted from prescribing any controlled substance to himself or 
to members of his immediate family.''
    The Acting Deputy Administrator concludes that the evidence in the 
record raises serious questions regarding Respondent's fitness to 
possess a DEA registration based upon Respondent's prescribing of 
controlled substances in 1989 purely for financial gain and not for any 
legitimate medical reason, his self-abuse of controlled substances from 
at least 1974 to 1990, and his attempt to obtain controlled substances 
by forging a prescription. Nevertheless, the Acting Deputy 
Administrator notes that there is no evidence of any wrongdoing since 
1991, and Judge Bittner found Respondent to be credible in his 
expressions of remorse and assertions regarding his rehabilitative 
efforts. Thus, the Acting Deputy Administrator concludes that it would 
not be inconsistent with the public interest to grant Respondent a DEA 
registration. However, the Acting Deputy Administrator is concerned by 
the lack of evidence in the record regarding Respondent's 
rehabilitative efforts, other than Respondent's own testimony, and 
therefore, concludes that additional restrictions beyond those 
recommended by the Administrative Law Judge are necessary to protect 
the public interest. Accordingly, the Acting Deputy Administrator 
concludes that Respondent should be issued a limited DEA Certificate of 
Registration in Schedules III non-narcotic, IV and V subject to the 
following terms and conditions for a period of three years from the 
date of issuance of the registration:
    (1) Respondent shall be permitted to prescribe, but not administer 
or otherwise dispense, controlled substances.
    (2) Respondent shall not be permitted to possess any controlled 
substance unless properly authorized by another licensed practitioner 
who has been advised of the restrictions on Respondent's registration.
    (3) Respondent shall not prescribe controlled substances for 
himself or any member of his immediate family.
    (4) Respondent shall be required to submit a log of his 
prescriptions to the DEA Louisville Resident Office for review every 
three months. This log shall include, at a minimum, the date of 
issuance of the prescription, the name of the patient receiving the 
prescription, and the name, dosage and quantity of the controlled 
substance prescribed.

[[Page 8041]]

    (5) Respondent is required to undergo random drug screening at his 
own expense not less than one time per month, and is required to 
forward the results of the drug screens to the DEA Louisville Resident 
Office.
    Accordingly, the Acting Deputy Administrator of the Drug 
Enforcement Administration, pursuant to the authority vested in him by 
21 U.S.C. 823 and 28 CFR 0.100(b) and 0.104, hereby orders that the 
application, submitted by Roger McAlpin, D.M.D., for a DEA Certificate 
of Registration be, and it hereby is, granted in Schedules III non-
narcotic, IV and V subject to the above described restrictions. This 
order is effective March 24, 1997.

    Dated: February 10, 1996.
James S. Milford,
Acting Deputy Administrator.
[FR Doc. 97-4345 Filed 2-20-97; 8:45 am]
BILLING CODE 4410-09-M