5680 Federal Register / Vol. 65, No. 24 / Friday, February 4, 2000 / Notices

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 98–38]

Theodore Neujahr, D.V.M.;

Continuation of Registration

On July 16, 1998, the Deputy

Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration (DEA), issued an Order

to Show Cause to Theodore A. Neujahr,

D.V.M. (Respondent) of Eatonville,

Washington, notifying him of an

opportunity to show cause as to why

DEA should not revoke his DEA

Certificate of Registration, AN1015331,

pursuant to 21 U.S.C. 824(a)(4), and

deny any pending applications for

renewal or modification of such

registration as a practitioner under 21

U.S.C. 823(f), for reason that his

registration is inconsistent with the

public interest.

By letter dated July 28, 1998,

Respondent filed a request for a hearing,

and following prehearing procedures, a

hearing was held in Tacoma,

Washington on March 3, 1999, before

Administrative Law Judge Mary Ellen

Bittner. 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 July 19, 1999,

Judge Bittner issued her Opinion and

Recommended Ruling, Findings of Fact,

Conclusions of Law and Decision

(Opinion), recommending that

Respondent’s registration be continued

and any pending applications be

granted. Neither party filed exceptions

to Judge Bittner’s Opinion, and on

August 19, 1999, the record was

transmitted to the Deputy

Administrator.

The Deputy Administrator has

considered the record in its 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. This final order

replaces and supersedes the final order

issued on December 14, 1999, and

published at 64 FR 72362 (December 27,

1999). The Deputy Administrator

adopts, with one noted exception, the

Opinion of the Administrative Law

Judge. 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 Deputy Administrator finds that

Respondent received his degree in

veterinary medicine in 1979. In 1981,

Respondent started his own practice in

Eatonville, Washington, where he

continues to practice.

Respondent testified that he

developed a chemical dependency

problem in 1988 or 1989 while going

through a divorce. He further testified

that ‘‘I found that the pain relievers that

I had purchased for animals helped to

relieve some of my pain, and I found

that the amphetamines made me feel

better too.’’ According to Respondent,

he took approximately three Dexedrine

5 mg. tablets per week and two or three

Percodan tablets per week for a period

of more than a year. Both of these drugs

are Schedule II controlled substances.

Respondent testified that he became

concerned about his drug use and

contacted a treatment program. On

February 23, 1990, Respondent and his

receptionist, who was also a close

personal friend, met with the doctor in

charge of the program. It was agreed that

the doctor and Respondent’s

receptionist would monitor Respondent

by requesting that Respondent submit to

a urinalysis if they suspected that he

had taken a mood altering substance.

In April 1990, a DEA investigator was

reviewing DEA order forms used for

purchasing Schedule II controlled

substances and noticed that Respondent

had purchased Dexedrine, which is not

commonly used in veterinary practice,

and Percodan, which is occasionally

used in veterinary practice. On April 6,

1990, the DEA investigator and an

investigator with the Washington Board

of Pharmacy went to Respondent’s

office where they discovered that

Respondent kept controlled substances

in an unlocked drawer in his office and

at his residence, which is an

unregistered location. Initially,

Respondent told the investigators that

he was going to use the Dexedrine to

treat obese dogs, but ultimately

admitted that he had taken the

Dexedrine himself. Respondent also

said at some point that he had used the

Percodan to treat dogs. However, the

record does not indicate whether he

admitted to the investigators during this

meeting that he had taken the Percodan

himself.

At the conclusion of this meeting, the

DEA investigator gave Respondent the

opportunity to voluntarily surrender his

Schedule II and IIN privileges.

Respondent signed the voluntary

surrender form and checked the box that

indicated that he was surrendering his

DEA registration in Schedules II and IIN

‘‘[i]n view of my alleged failure to

comply with the Federal requirements

pertaining to controlled substances, and

as an indication of my good faith in

desiring to remedy any incorrect or

unlawful practices on my part.’’

Respondent testified that at the time

that he surrendered his Schedule II

privileges, he was abstaining from

controlled substances and alcohol, but

that he felt threatened by the two

investigators and signed the voluntary

surrender form out of fear. Judge Bittner

credited Respondent’s testimony on this

point and found that Respondent

perceived that he was being threatened.

On May 23, 1990, Respondent began

an outpatient treatment program which

he completed on January 16, 1991. At

the time Respondent entered the

program, he had been drug-free for

several months. This program consisted

of random urinalysis which were all

negative, and counseling sessions.

On January 7, 1991, the Washington

State Veterinary Board of Governors

(Veterinary Board) issued a Statement of

Charges against Respondent seeking

suspension or revocation of his license

to practice veterinary medicine on

grounds that he had possessed Schedule

II controlled substances for other than

legitimate or therapeutic purposes by

possessing them for his own use. It is

unclear from the record, but it appears

that at some point Respondent entered

into a stipulation with the Veterinary

Board admitting that he possessed

Schedule II controlled substances

including, but not limited to, Dexedrine,

Percodan, and oxycodone with aspirin

for other than legitimate or therapeutic

purposes. The Veterinary Board

suspended Respondent’s license to

practice veterinary medicine for at least

24 months, but stayed the suspension

subject to various terms of probation.

Specifically, the Veterinary Board

required Respondent to submit quarterly

progress reports on his methods of

handling stress, his use of and handling

of drugs, his mental and physical

health, his methods of dealing with

legal charges, professional

responsibilities and activities and

personal activities relating to his

practice; to attend at least two Narcotics

Anonymous or Alcoholics Anonymous

(12-step) meetings per week; to submit

to random and observed biological fluid

testing at least once per month; not to

possess a Schedule II or IIN registration

for two years; and not to submit a

request for reinstatement of his license

for at least two years.

On April 27, 1992, the Veterinary

Board accepted a stipulation between

Respondent and the State of Washington

Department of Health which provided,

among other things, that Respondent

would sign a contract with the

Washington Health Professional

Services (WHPS) program and comply

with the terms and conditions of that

contract, and that if Respondent failed

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to comply with that contract his license

would be subject to disciplinary action

by the Veterinary Board.

The WHPS is a division of the

Washington Department of Health and

is a monitoring program that provides

an alternative to license discipline for

various health care professions. The

WHPS referred Respondent to a

chemical dependency and family

therapist who reported to the WHPS

monthly on Respondent’s progress. The

therapist testified that he did not recall

making any adverse reports regarding

Respondent; that he felt that

Respondent ‘‘was doing all of the things

that a person who is successful in

recovery does;’’ that he did not violate

any of the rules of the program; that he

was convinced that Respondent was

continuing his recovery and was stable

in his lifestyle; and that he thought it

would be in the public interest for

Respondent to have a DEA registration.

Respondent’s case manager with

WHPS from December 1993 until

November 1994 testified that

Respondent complied with his contract

with the WHPS; that he consistently

attended more 12-step meetings than

required; and that all of his urinalyses

were negative.

On October 5, 1992, Respondent

executed a renewal application for his

DEA registration, answering ‘‘No’’ to the

question, hereinafter referred to as the

liability question, which asks, ‘‘Has the

applicant ever been convicted of a crime

in connection with controlled

substances under State or Federal law,

or ever surrendered or had a Federal

controlled substance registration

revoked, suspended, restricted or

denied, or ever had a State professional

license or controlled substance

registration revoked, suspended, denied,

restricted or placed on probation?’’

Respondent testified while he knew that

he had surrendered a portion of his DEA

registration in 1990, he did not know

how to answer the liability question.

According to Respondent, he asked the

instructors at continuing education

courses that, ‘‘if you voluntarily give up

a portion of your DEA registration is

that for cause and does that mean that

you have to answer that question ‘yes’

and they told me that it was not true if

you voluntarily give it up.’’ Respondent

also testified that he relied upon

statements of the investigators that his

‘‘license’’ would not be affected if he

signed a confession and if he did

whatever the treatment program told

him to do; that he tended to confuse his

license to practice veterinary medicine

that his DEA registration; and that the

investigators also told him that he could

reapply for registration to handle

Schedule II and IIN substances later.

Respondent testified that he was

‘‘quite nervous’’ when he sent off his

application but that when he received

his updated Certificate of Registration,

he concluded that he had answered the

question properly. On September 30,

1995, Respondent executed another

renewal application for his DEA

registration and answered ‘‘No’’ to

essentially the same liability question.

Respondent testified that in executing

this application, he did not give the

question ‘‘any thought at all’’ because he

knew how he had answered the similar

question on the 1992 application and it

had been granted with no difficulty. In

1995, Respondent sought registration in

Schedules II, IIN, III, IIIN, IV and V.

On November 3, 1995, another DEA

investigator telephoned Respondent to

verify information on his 1995 renewal

application. The investigator testified

that she read the liability question from

the 1995 application to Respondent and

that Respondent said that the answer to

the question was ‘‘No.’’ According to the

investigator, she then asked

Respondent, ‘‘[Y]ou’ve never had any

action taken?’’ and Respondent again

stated ‘‘No.’’

Respondent testified that the

investigator caught him off guard and he

was convinced that he had answered the

liability question on the 1992 and 1995

renewal applications correctly.

Respondent further testified that after he

hung up with the investigator he

realized that he had made a mistake, but

he did not know how to contact the

investigator. Respondent also testified

that if he remains registered with DEA,

he would find someone to help him

answer the liability questions properly

on his next renewal application.

At the hearing, Respondent testified

that he has not had any relapses since

he stopped using controlled substances

in 1990, and that he has a good support

network in place. Respondent’s case

manager with the WHPS testified that

completing an adequate number of years

in a monitored recovery program greatly

decreases the likelihood of a relapse,

and that she was not aware of any

reason that Respondent should not be

authorized to handle controlled

substances.

Pursuant to 21 U.S.C. 824(a)(1), the

Deputy Administrator may revoke a

DEA Certificate of Registration upon a

finding that the registrant has materially

falsified an application for registration.

DEA has previously held that in finding

that there has been a material

falsification of an application, it must be

determined that the applicant knew or

should have known that the response

given to the liability question was false.

See Martha Hernandez, M.D., 62 FR

61145 (1997); Herbert J. Robinson, M.D.,

59 FR 6304 (1994).

It is undisputed that Respondent

answered ‘‘No’’ to the liability question

on his 1992 and 1995 renewal

applications despite the fact that his

state veterinary license was placed on

probation and he had surrendered his

Schedule II and IIN privileges.

Respondent testified that he did not

know how to answer the question, since

he did not think that he had

surrendered his Schedule II privileges

‘‘for cause.’’ However, there is no

indication that Respondent even

attempted to contact the DEA

investigator who obtained the surrender

from Respondent for guidance. Yet,

even if one were to accept Respondent’s

explanation, it would not explain why

Respondent did not disclose that his

state veterinary license was placed on

probation.

The Deputy Administrator finds that

Respondent knew or should have

known that his responses were false.

Answers to the liability question are

always material because DEA relies on

the answers to these questions to

determine whether it is necessary to

conduct an investigation prior to

granting an application. See Bobby

Watts, M.D., 58 FR 46995 (1993); Ezzat

E. Majd Pour, M.D., 55 FR 47547 (1990).

DEA has previously held that it is the

registrant’s ‘‘responsibility to carefully

read the question and to honestly

answer all parts of the question.’’

Martha Hernandez, M.D., 62 FR 61147.

Therefore, grounds exist to revoke

Respondent’s DEA Certificate of

Registration pursuant to 21 U.S.C.

824(a)(1).

Also, 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, if

he 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.

5682 Federal Register / Vol. 65, No. 24 / Friday, February 4, 2000 / Notices

(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., 54 FR

16422 (1989).

As to factor one, it is undisputed that

Respondent’s state veterinary license

was suspended for 24 months, with the

suspension stayed and his license

placed on probation subject to various

conditions. It is also undisputed that

Respondent entered into a Stipulation

with the state whereby he agreed to

enter into a contract with the WHPS.

However, his state license is now

unrestricted and he is authorized to

handle controlled substances in the

State of Washington. But as Judge

Bittner noted, ‘‘inasmuch as State

authorization is a necessary but not

sufficient condition for a DEA

registration, * * * this factor is not

determinative.’’

Regarding factor two, it is undisputed

that Respondent used his DEA

Certificate of Registration and official

order forms to obtain Schedule II

controlled substances which he then

abused himself for about a year in 1988

or 1989. However, this behavior was a

result of Respondent’s chemical

dependency for which he has received

treatment. He has not abused controlled

substances since 1990, and he has a

good support network in place to help

prevent any relapse. There is no other

evidence that Respondent has

improperly dispensed controlled

substances.

As to factor three, there is no evidence

that Respondent has ever been

convicted under State or Federal laws

relating to the manufacture,

distribution, or dispensing of controlled

substances.

Regarding factor four, there is

evidence in the record that Respondent

has failed to comply with applicable

laws relating to controlled substances.

By furnishing false information on his

applications for DEA registration,

Respondent violated 21 U.S.C.

843(a)(4)(A). By using DEA order forms

to obtain controlled substances for his

own use, Respondent violated 21 U.S.C.

828(e), and by dispensing controlled

substances for other than legitimate

medical purposes, Respondent violated

21 U.S.C. 841(a)(1). Further, Respondent

violated 21 CFR 1301.75(b) by failing to

maintain adequate physical security of

controlled substances. It also appears

from evidence in the record that

Respondent violated various provisions

of Washington state law.

As to factor five, other than

Respondent’s material falsification of

his applications for registration, there is

no evidence that Respondent has

engaged in any other conduct that may

threaten the public health and safety.

The Deputy Administrator agrees with

Judge Bittner’s conclusion that the

Government has made a prima facie

case that Respondent’s continued

registration would be inconsistent with

the public interest. Respondent used his

privileges as a DEA registrant to obtain

controlled substances to support his

chemical dependency, and he materially

falsified his 1992 and 1995 renewal

applications.

However, he has undergone treatment

for his chemical dependency and has

not abused controlled substances since

1990. Further, evidence in the record

suggests that there is little likelihood of

Respondent relapsing. The Deputy

Administrator finds it noteworthy that

Respondent first sought treatment for

his chemical dependency on his own

and not at the direction of another.

Judge Bittner also found it significant

that ‘‘there is no evidence that

[Respondent] improperly handled

controlled substances in any way since

1992, when he regained a DEA

registration.’’ However, the Deputy

Administrator can find no evidence in

the record that Respondent ever

completely lost his DEA privileges. But

it appears from the evidence in the

record that Respondent has had a DEA

registration since 1981. Therefore, the

Deputy Administrator finds it

significant that there is no evidence that

Respondent has improperly handled

controlled substances in any way since

1990.

Regarding the material falsification of

Respondent’s renewal applications, the

Deputy Administrator agrees with Judge

Bittner who noted that ‘‘Respondent

acknowledged that he falsified his

applications, he apparently regretted

that conduct, and I believe that he will

not repeat it.’’

Judge Bittner concluded ‘‘that the

evidence that Respondent has remained

drug free for more than eight years prior

to the hearing and is remorseful about

his prior behavior weighs in favor of

continuing his registration.’’ As a result,

Judge Bittner recommended that

Respondent’s DEA registration be

continued. The Deputy Administrator

agrees.

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,

hereby orders that DEA Certificate of

Registration AN1015331, previously

issued to Theodore Neujahr, D.V.M., be,

and it hereby is, continued and renewed

in Schedules II, IIN, IIIN, IV and V. This

final order is the final agency action for

appellant purposes pursuant to 21

U.S.C. 877.

Dated: January 18, 2000.

Donnie R. Marshall,

Deputy Administrator.

[FR Doc. 00–2534 Filed 2–3–00; 8:45 am]

BILLING CODE 4410–09–M

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 99–1]

Michael Alan Patterson, M.D.; Grant of

Restricted Registration

On September 23, 1998, the Deputy

Assistant Administrator, Office of

Diversion Control Drug Enforcement

Administration (DEA), issued an Order

to Show Cause to Michael Alan

Patterson, M.D. (Respondent) of

Memphis, Tennessee, notifying him of

an opportunity to show causes as to

why DEA should not deny his

application for registration as a

practitioner pursuant to 21 U.S.C.

823(f), for reason that his registration

would be inconsistent with the public

interest.

By letter dated October 22, 1998,

Respondent, through counsel, requested

a hearing on the issues raised by the

Order to Show Cause. Following

prehearing procedures, a hearing was

held in Nashville, Tennessee on March

10, 1999, 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 August 11, 1999,

Judge Randall issued her Recommended

Rulings, Findings of Fact, Conclusions

of Law, and Decision (Opinion),

recommending that Respondent’s

application for registration be granted

subject to various conditions. Neither

party filed exceptions to Judge Randall’s

Opinion, and on September 15, 1999,

Judge Randall transmitted the record of

these proceedings to the Deputy

Administrator.

The Deputy Administrator has

considered the record in its 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. This final order