[Federal Register Volume 62, Number 52 (Tuesday, March 18, 1997)]
[Notices]
[Pages 12842-12847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6795]


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DEPARTMENT OF JUSTICE
[Docket No. 95-36]


Donald P. Tecca, M.D. Continuation of Registration With 
Restrictions

    On April 3, 1995, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Donald P. Tecca, M.D. (Respondent) of San Diego, 
California, notifying him of an opportunity to show cause as to why DEA 
should not revoke his DEA Certificate of Registration, AT1241847, and 
deny any pending applications for renewal of such registration as a 
practitioner under 21 U.S.C. 823(f), for reason that pursuant to 21 
U.S.C. 824(a)(4), his continued registration would be inconsistent with 
the public interest. The Order to Show Cause alleged, in essence, that: 
(1) in June 1992, DEA received complaints from several area pharmacies 
that Respondent was overprescribing controlled substances including 
Vicodin and codeine, and in particular, one individual has received 
1,640 dosage units of Tylenol No. 3 with codeine over a three month 
period; and (2) on eight occasions between December 28, 1992 and May 
25, 1993, Respondent prescribed controlled substances to undercover 
officers for no legitimate medical reason.
    By letter dated April 26, 1995, Respondent, through counsel, filed 
a timely request for a hearing, and following prehearing procedures, a 
hearing was held in San Diego, California on September 19 and 20, 1995, 
before Administrative Law Judge Mary Ellen Bittner. At the hearing, 
both parties called witnesses and introduced documentary evidence. 
After the hearing, counsel for both parties submitted proposed findings 
of fact, conclusions of law and argument. On June 21, 1996, Judge 
Bittner issued her Opinion and Recommended Ruling, Findings of Fact, 
Conclusion of Law and Decision, recommending that Respondent's DEA 
registration be revoked, and any pending applications for registration 
be denied. Respondent filed exceptions to Judge Bittner's Opinion and 
Recommended Ruling, and thereafter, on August 6, 1996, the record of 
these proceedings was transmitted to the Deputy Administrator.
    The Acting Deputy Administrator has considered the record in its 
entirety, and pursuant to 21 C.F.R. 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 noted, the 
findings of fact and conclusions of law of the Administrative Law 
Judge, but rejects the recommended ruling, for the reasons stated 
below.
    The Acting Deputy Administrator finds that Respondent graduated 
from medical school in 1980, and in 1983, become board certified in 
internal medicine. At the time of the hearing in this matter, he was on 
the senior staff at three hospitals in San Diego, had consulting 
privileges at a psychiatric hospital in San Diego, was the chief of the 
Department of Medicine at one of the local hospitals, and maintained a 
private practice in internal medicine.
    In 1992, two local pharmacists made allegations to DEA that 
Respondent may have been overprescribing controlled substances. While 
the Order to Show Cause issued in this proceeding cited this alleged 
overprescribing as evidence

[[Page 12843]]

that Respondent's continued registration would be inconsistent with the 
public interest, no evidence was introduced at the hearing regarding 
the validity of these allegations. Therefore, the Acting Deputy 
Administrator has only considered the pharmacists' allegations as the 
basis for the initiation of the investigation. Subsequently, state 
undercover officers made 10 visits to Respondent's office between 
December 1992 and July 1993 to attempt to obtain controlled substance 
prescriptions from Respondent for no legitimate medical purpose.
    The first visit occurred on December 28, 1992, when Special Agent 
Roberts of the Bureau of Narcotic Enforcement (BNE) of the California 
Department of Justice attempted to obtain a prescription for anabolic 
steroids from Respondent. Before seeing Respondent, Agent Roberts 
filled out a patient history form on which he did not indicate any 
medical problems, and a nurse weighed him and took his blood pressure 
and pulse. The transcript of this visit indicates that Respondent asked 
Agent Roberts a series of medical history questions. Agent Roberts then 
told Respondent that he was not seeing results at the gym, that he was 
going to jail for a year and that he wanted to ``gain some size''. 
Respondent indicated that it would probably not hurt Agent Roberts to 
take anabolic steroids to put on muscle mass since he appeared healthy. 
Then, in the agent's presence, Respondent telephoned a local pharmacist 
seeking advice as to what to prescribe for this purpose. Respondent 
testified that the pharmacist told him that Anadrol was used for that 
purpose, but did not indicate that such use of the substance was 
illegal or that it was a controlled substance. Following the 
conversation with the pharmacist, Respondent told the agent, ``Anadrol 
is what they use but it's not supposed to be prescribed for this 
purpose.'' Respondent then consulted the 1991 edition of the 
Physicians' Desk Reference, which did not indicate that Anadrol was a 
controlled substance, to determine the proper dosage to prescribe. 
Respondent told Agent Roberts that, ``I don't think there's anything 
illegal about this, it's just frowned on because it's felt that the 
risk outweighs the gain.'' Respondent warned Agent Roberts of the 
possible side effects, advised him to discontinue taking the medication 
if any of the side effects occurred, and told him to return in three 
weeks for a blood test. Respondent then issued Agent Roberts a 
prescription for 120 dosage units of Anadrol with no refills, 
impressing upon him the need for follow-up care. Agent Roberts paid 
$40.00 for the office visit.
    At the follow-up visit on January 19, 1993, Agent Roberts had 
gained a pound, his blood pressure had gone down, and he reported some 
strength gains. The transcript of this visit indicates that Respondent 
asked about various side effects, and Agent Roberts indicated that he 
had not experienced any side effects. Respondent examined Agent Roberts 
for possible liver enlargement and Respondent's nurse drew blood. Agent 
Roberts asked Respondent for a prescription for Cylert, a Schedule IV 
stimulant, because he felt that he was ``kind of dragging''. Agent 
Roberts testified at the hearing that he asked for Cylert because it is 
commonly taken by steroid users and because it was his understanding 
that physicians who unlawfully prescribe controlled substances will 
issue prescriptions for all types of controlled substances. Respondent 
refused to give Agent Roberts a prescription for Cylert and suggested 
aerobic activity instead. Respondent wrote Agent Roberts a prescription 
for 100 dosage units of Anadrol with three refills, told him to return 
in two months for a follow-up visit, and told him to call the office 
for the results of the blood test. Agent Roberts paid $45.00 for the 
office visit.
    Sergeant Arvizu, then with the Medi-Cal Fraud Unit of the 
Department of Health Services, went to Respondent's office on two 
occasions, posing as Agent Roberts' girlfriend. Sergeant Arvizu had 
never acted in an undercover capacity before and was instructed to ask 
for Tylenol No. 3 with codeine (Tylenol No. 3), a Schedule III 
controlled substance, without telling Respondent that anything was 
wrong with her. There were no transcripts of these visits introduced 
into evidence at the hearing.
    On February 8, 1993, she entered Respondent's office, told the 
receptionist that she was there for a check-up, filled out medical 
history forms indicating as her chief complaint ``check-up'', and had 
her weight, temperature and blood pressure taken. Sergeant Arvizu 
testified that when Respondent asked her why she was there, she told 
him that she was there for a check-up and that she wanted some Tylenol 
No. 3. She testified that Respondent said ``sure'' and then asked some 
medical history questions and checked her chest and back with a 
stethoscope, checked her eyes, ears, throat, and neck, and reported 
that she was in good health. Respondent testified that Sergeant Arvizu 
stated that she wanted the Tylenol No. 3 to feel good and that implicit 
in that request was that something was wrong with her. He testified 
that he performed an extensive physical examination of Sergeant Arvizu 
and found her to be very tense with quite a bit of muscle tenderness 
and rigidity. At first, Respondent testified that Sergeant Arvizu 
winced during the physical examination and told him that she had muscle 
pain, but later testified that the finding of pain was based solely 
upon his physical examination and her social history. Respondent's 
medical chart for Sergeant Arvizu indicated ``Normal exam with muscle 
tenderness-tension * * * Tylenol #3 for tension-muscle pain.'' Sergeant 
Arvizu however testified that she never told Respondent that anything 
was wrong with her and that there was no discussion during this visit 
of any muscle pain or tenderness. Judge Bittner found Sergeant Arvizu 
to be a credible witness and that she did not tell Respondent that she 
was in pain. Respondent issued Sergeant Arvizu a prescription for 40 
tablets of Tylenol No. 3, ``per pain'', with no refills.
    Sergeant Arvizu returned to Respondent's office on February 22, 
1993, and had her weight and blood pressure taken. She testified that 
she told Respondent that she wanted another prescription for Tylenol 
No. 3 because it made her feel good. Sergeant Arvizu further testified 
that Respondent stated that ``this isn't really legitimate * * * it's 
not really legal * * * you're putting me in a bind.'' Sergeant Arvizu 
testified that there was then some discussion where Respondent said 
that something had to be wrong with her and ``he made a suggestion 
about a headache or a backache.'' Sergeant Arvizu also testified that 
she told Respondent that she had used drugs in the past, but that 
Respondent stated that he did not think that she was addicted to the 
Tylenol No. 3, however she should only use it for emergencies. 
Respondent testified that he conducted a brief physical examination on 
this occasion. His notes of the visit indicate ``some muscle 
tenderness'' in the neck and ``Tylenol <SUP>#3 for tension Headaches--
may be useful to keep her off drugs and monitor usage.'' Respondent 
further testified that there was no indication of any misuse of the 
previous prescription for Tylenol No. 3. Respondent issued Sergeant 
Arvizu a prescription for 48 tablets of Tylenol No. 3 with no refills, 
``per pain'' and she paid the receptionist $20.00 for the visit.
    Next, BNE Agent Ellis went to Respondent's office on two occasions 
posing as a friend of Agent Roberts and seeking Winstrol, an anabolic 
steroid. On his first visit on March 22, 1993, Agent Ellis filled out a 
patient history

[[Page 12844]]

form indicating no medical problems, and then a nurse took his weight 
and blood pressure, which was a little high. Agent Ellis then met with 
Respondent and told Respondent that he was referred by his friend who 
had gotten steroids from Respondent and that he wanted some Winstrol to 
help him gain strength at the gym. Respondent indicated that he knew 
who Agent Ellis was referring to, since he had only prescribed steroids 
once before. Respondent then asked some medial history questions, took 
Agent Ellis' blood pressure again, and stated that Winstrol is ``not 
totally benign'' describing the various possible side effects. 
Respondent told Agent Ellis that he needed to have a blood test for a 
baseline, but Agent Ellis was reluctant to have blood drawn. Respondent 
insisted that he could not give Agent Ellis the Winstrol without a 
blood test, since the whole point of going to a doctor is so the doctor 
can monitor the patient. Respondent issued Agent Ellis a prescription 
for 60 dosage units of Winstrol and told him to come back for a follow-
up visit in a month. The transcript of this visit indicates that Agent 
Ellis said, ``You know if I had a good supply of these we could make 
lots of money,'' and Respondent replied, ``Well, I'm not interested in 
that. Basically, you know, I'm not interested in making money; I'm just 
interested that if I do a treatment, it's used properly.'' Agent Ellis 
paid $65.00 for the visit.
    Agent Ellis returned for his follow-up visit on April 26, 1993, 
during which a nurse took his weight and blood pressure. Respondent 
discussed the results of the blood test with Agent Ellis, asked if he 
had experienced any side effects, to which Agent Ellis reported none, 
checked Agent Ellis' liver, and gave Agent Ellis information about a 
low-cholesterol diet. Respondent then indicated that he would give 
Agent Ellis a refill of the prescription, but that next month he was 
going to reduce the dosage. Agent Ellis then asked if he could pick up 
a prescription for his friend, Agent Roberts. Respondent refused to 
issue such a prescription and essentially told Agent Ellis that he 
would not issue a prescription without seeing the patient. Respondent 
gave Agent Ellis a prescription for 60 tablets of Winstrol and with no 
refills, and Agent Ellis paid $39.00 for the office visit.
    On May 3, 1993, Investigator Hutchison of the Medical Board of 
California went to Respondent's office in an undercover capacity 
seeking Vicodin, a Schedule III controlled substance. Investigator 
Hutchison completed a patient history form on which she did not 
indicate any medical complaints. A nurse took her weight and blood 
pressure. Respondent asked Investigator Hutchison a series of medical 
history questions and the investigator then asked for some Vicodin 
explaining that she liked to take it when she went out with her friends 
because she did not like alcohol. She told Respondent that Vicodin made 
her feel relaxed and mellow. The transcript of this visit indicates 
that Respondent stated on more than one occasion that this was a 
strange request and that he had never had a request like this before. 
Respondent warned Investigator Hutchison of the risks of addiction and 
that such use could lead to abuse of other substances. Investigatory 
Hutchison said that she used the Vicodin infrequently. Respondent told 
Investigator Hutchison that if he gave her a small prescription she 
would not become addicted, but that she should really reconsider using 
the drug to relax since such use was not accepted in society. 
Respondent also acknowledged that it was illegal for him to give her 
the drug to feel good. Investigator Hutchison offered to tell 
Respondent that she had a headache. Respondent issued Investigator 
Hutchison a prescription for 30 tablets of Vicodin and charged her 
$40.00 for the visit. Respondent testified that he knew that 
Investigator Hutchison did not have a headache and that she was using 
the Vicodin inappropriately, but that he issued her a trial 
prescription to see how she would use the drug and then would try to 
treat her inappropriate use the drug.
    Investigator Hutchison returned to Respondent's office on June 28, 
1993, and asked for another prescription for Vicodin. The transcript of 
this visit indicates that Respondent repeatedly told Investigator 
Hutchison that what she was doing was wrong. Respondent discussed the 
dangers of addiction and that it was illegal for her to use the Vicodin 
for her stated purpose.
    Respondent attempted to discourage Investigator Hutchison from 
continuing to use Vicodin the way she had been using it. Investigator 
Hutchison offered several times to tell Respondent that she had 
headaches or pain. Respondent refused to issue Investigator Hutchison a 
prescription and did not charge her for this visit. Investigator 
Hutchison testified that she believed that Respondent was trying to 
establish a rapport with her and counseled her on the misuse of Vicodin 
for illegal purposes.
    Finally, BNE Agent Price made two undercover visits to Respondent 
attempting to obtain prescriptions for Tylenol No. 3 without indicating 
a medical reason for the substance. On May 25, 1993, Agent Price filled 
out a patient history form indicating no medical problems. Agent Price 
told Respondent that she had received Tylenol No. 3 about a year and a 
half earlier following an appendectomy, and that she usually kept some 
on hand. Agent Price told Respondent that she had no real pain, but 
used the Tylenol No. 3 for relaxation. The transcript indicates that 
Agent Price told Respondent that ``I work out at the gym a lot like 
that. When I get home I just, once in awhile I might take a pill or 
something.'' Agent Price further stated that it was ``not so much for 
aches  * * * it just kind of relaxes me.'' Respondent performed a brief 
physical examination. Respondent told Agent Price that her request was 
strange and he was not sure that he approved of her using Tylenol No. 3 
for relaxation since it was a pain pill, but decided that he could give 
her a few pills for emergencies. Respondent issued Agent Price a 
prescription for 30 tablets for Tylenol No. 3 with one refill and she 
paid $40.00 for the office visit. Respondent testified at the hearing 
that he was confused by Agent Price's request because she did not 
appear to be an addict since she was well-groomed and stated that she 
only used a few pills, and he had never before had anyone request 
Tylenol No. 3 for relaxation. Respondent further testified that he 
interpreted Agent Price's use of the word ``relaxation'' to mean relief 
from pain.
    Agent Price returned to Respondent's office on July 26, 1993 and 
told Respondent that she was not having any pains, that she wanted the 
drug only for relaxation, and that she was just coming back for a 
refill of the Tylenol No. 3 prescription. Respondent reiterated that 
Tylenol No. 3 is used for pain and not relaxation, and that he did not 
believe that Agent Price was using the medication for relief of pain. 
Respondent expressed concern that Agent Price was becoming dependent on 
the drug and refused to issue her another prescription. Respondent did 
not charge Agent Price for the visit. On her chart for this visit, 
Respondent wrote as his assessment, ``Drug Addiction (highly likely).''
    A Special Agent with BNE testified at the hearing that he had asked 
various knowledgeable sources, including manufacturers of anabolic 
steroids, the Food and Drug Administration, and the American Medical 
Association, whether the use of anabolic steroids to build muscle mass 
is appropriate, and that all

[[Page 12845]]

of them replied in the negative. Anabolic steroids became controlled 
substances under California law effective August 20, 1986, and 
effective February 27, 1991, anabolic steroids became a Schedule III 
controlled substance federally under the Controlled Substances Act. 
Respondent testified that before prescribing Anadrol and Winstrol to 
the undercover officers he consulted the 1991 edition of the 
Physicians' Desk Reference, which did not indicate that they were 
controlled substances.
    The Director of Pharmacy Services at the psychiatric hospital where 
Respondent had consulting privileges, testified that he monitors and 
fills the prescriptions of doctors at the hospital and that he has 
known Respondent for 10 years. He further testified that he had never 
seen a prescription issued by Respondent for anabolic steroids and that 
in his opinion, Respondent's use of Tylenol No. 3 and Vicodin is very 
conservative and clinically appropriate. Three physicians, Respondent's 
supervisor, an associate professor at the University of California San 
Diego School of Medicine, and an internist in private practice, all 
testified at the hearing that his prescribing of Vicodin and Tylenol 
No. 3 to the undercover agents was medically appropriate, and that in 
1992 and 1993, they were unaware that anabolic steroids were controlled 
substances. One of the doctors testified that it is a common practice 
to issue a trial prescription if a doctor is not sure whether a 
substance is being misused. Respondent's supervisor at one of the 
hospitals rated Respondent's medical abilities as a ten on a scale of 
ten. Respondent also introduced into evidence a letter from a doctor 
who has known Respondent for 11 years and considers him ``a most 
knowledgeable, conscientious and ethical physician.'' This doctor also 
stated in his letter that Respondent ``practiced at the standard of the 
community'' in his prescribing of controlled substances to the 
undercover officers. Respondent also introduced into evidence a letter 
from a physician who has known Respondent for 11 years and shared an 
office with him for four years, who stated that Respondent ``has 
consistently demonstrated high quality medical care.'' Finally, 
Respondent introduced a letter from a pharmacist who has known 
Respondent for approximately 12 years and has filled hundreds of his 
prescriptions. The pharmacist considers Respondent to be a ``very 
conscientious, dedicated, and knowledgeable physician.''
    Respondent testified at the hearing that he felt that he was 
already conservative in his prescribing practices, but that as a result 
of this experience he has become even more conservative. He stated that 
he would never prescribe anabolic steroids again and that he has 
learned that he must be very cautious in his prescribing of Schedule 
III controlled substances.
    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.
    (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, there is no evidence in the record of any 
state action taken against Respondent's license to practice medicine. 
Likewise, regarding factor three, there is no evidence that Respondent 
has even been convicted under federal or state laws relating to the 
manufacture, distribution, or dispensing of controlled substances.
    As to factor, four, Respondent's experience in dispensing 
controlled substances, the Administrative Law Judge found that 
Respondent issued prescriptions to Sergeant Arvizu, Investigator 
Hutchison and Agent Price for no legitimate purpose. Judge Bittner 
found that ``Respondent prescribed Vicodin to Investigator Hutchison 
despite knowing any saying that doing so was illegal because she had 
not complained of any headache or other pain.'' Respondent testified 
that he diagnosed Investigator Hutchison as inappropriately using 
Vicodin; that he could have turned her away, but felt that his job was 
not to just diagnose, but to treat the problem; and that he therefore 
issued her a trial prescription on her first visit. Judge Bittner 
specifically found that ``[a]' `trial prescription' of a controlled 
substance just to see how a patient will use the substance * * * is too 
likely to result in diversion and is not given for a legitimate medical 
purpose. The same is true of prescribing a controlled substance just to 
build a relationship with a patient.'' The Acting Deputy Administrator 
agrees that a DEA registrant must be extremely careful in the 
dispensing of controlled substances to protect against the diversion of 
these dangerous substances. However, the Acting Deputy Administrator 
does not adopt Judge Bittner's general proposition that trial 
prescriptions are not issued for a legitimate medical purpose. The 
Acting Deputy Administrator believes that every prescription must be 
evaluated in light of the totality of the circumstances surrounding the 
issuance of a prescription, and one of the physicians who testified in 
this proceeding indicated that it is common practice to issue trial 
prescriptions to see if a drug is being misused. But, the Acting Deputy 
Administrator does find that in this case, Respondent's prescribing of 
Vicodin to Investigator Hutchison during her first visit was extremely 
questionable and was evidence of Respondent's lax prescribing 
practices. Respondent admitted that he knew that Investigator Hutchison 
was misusing Vicodin. Therefore, there was presumably no need to issue 
a trial prescription.
    Regarding Sergeant Arvizu, the Acting Deputy Administrator concurs 
with Judge Bittner's conclusion that ``Respondent prescribe Tylenol No. 
3 to Sergeant Arvizu although she said she was not in pain,'' and that 
this prescribing was ``especially inappropriate'' since she had 
indicated that she had a drug abuse problem in the past, and that 
should have caused Respondent to be ``particularly suspicious of her 
specific request for Tylenol No. 3.'' Respondent himself admitted at 
the hearing that his experience with Sergeant Arvizu taught him that he 
needs ``to be very cautious in prescribing Schedule III medications.''
    The Acting Deputy Administrator concludes that Respondent's 
issuance of a prescription to Agent Price was highly questionable given 
that she told him that she used Tylenol No. 3 for relaxation and not 
for pain. Respondent thought this was a strange request, but 
nonetheless issued her a prescription for the drug to keep on hand for

[[Page 12846]]

emergencies. The Acting Deputy Administrator finds that this 
prescribing is evidence of Respondent's lax practices.
    Regarding Respondent's prescribing of anabolic steroids to the two 
undercover agents, the Acting Deputy Administrator agrees with Judge 
Bittner that there is no evidence in the record that Respondent knew 
that these were controlled substances. In addition, the record shows 
that Respondent advise the agents of the potential side effects from 
taking the steroids; required that the agents submit to blood tests for 
monitoring purposes; told the agents to return for follow-up visits; 
checked for side effects during the follow-up visits; consulted with a 
pharmacist regarding what substance to prescribe; and consulted the 
Physicians' Desk Reference regarding the proper dosage to prescribe. As 
will be discussed in the context of factor four, the prescribing of 
steroids for the purpose of building muscle mass is not a legitimate 
medical use, however it appears from the record that Respondent was 
attempting to dispense the substances in a responsible fashion.
    The Acting Deputy Administrator also finds it significant, that 
Respondent refused one of the agent's invitations to go into the 
business of selling anabolic steroids, stating that he was not 
interested in making money, but in the proper management of the 
medication; that Respondent refused to issue Agent Roberts a 
prescription for Cylert; and that Respondent refused to give Agent 
Ellis a prescription for his friend who was not present, stating that 
he had to see the friend personally before he would issue a 
prescription.
    Judge Bittner concluded that, ``[a]though there is no direct 
evidence that Respondent has done anything improper outside of the ten 
undercover visits that took place as part of this investigation, what 
occurred in those visits establishes that Respondent is lax about 
prescribing controlled substances and that he is likely to prescribe 
controlled substances for other than legitimate medical purposes in 
other situations.''
    The Acting Deputy Administrator concurs with Judge Bittner that 
there is evidence in the record that, at least on some occasions, 
Respondent was lax in this controlled substance prescribing practices. 
However, there is also evidence in the record that other physicians and 
pharmacists, who are in positions that enable them to observe and 
evaluate Respondent's prescribing practices, find him to be 
conscientious, knowledgeable, and ethical. In addition, Respondent 
testified that this experience has caused him to ``become more 
conservative''. Therefore, unlike Judge Bittner, the Acting Deputy 
Administrator concludes that with proper training and monitoring, as 
will be discussed below, it is unlikely that Respondent will prescribe 
controlled substances for other than legitimate medical purposes in the 
future.
    Regarding factor four, there is evidence in the record that 
Respondent prescribe control substances for no legitimate medical 
purpose and therefore violated 21 U.S.C. Sec. 841(a), 21 C.F.R 
Sec. 1306.04(a) and California Health and Safety Code Sec. 11153(a). 
Respondent prescribed narcotic pain medication to three of the 
undercover agents after they specifically told him that they were not 
in pain. Investigator Hutchison was prescribed Vicodin after telling 
Respondent that she used it to ``mellow out''. Sergeant Arvizu was 
prescribed Tylenol No. 3 after telling Respondent that she takes it 
``to feel good.'' Finally, Respondent prescribed Tylenol No. 3 to Agent 
Price after she told him that she used it ``for relaxation and to 
unwind''. DEA has previously revoked registrations based upon similar 
conduct. See Mukand Lal Arora, M.D., 60 FR 4447 (1995) (practitioner's 
DEA registration was revoked upon a finding that the practitioner 
prescribed Vicodin to an undercover officer to mellow-out where the 
undercover officer did not give an indication of any medical purpose 
and denied any physical complaint.)
    In addition, on four occasions, Respondent prescribed anabolic 
steroids to undercover agents for no legitimate medical purpose. A BNE 
Agent testified at the hearing before Judge Bittner that according to 
various knowledgeable sources, including manufacturers of anabolic 
steroids, the Food and Drug Administration, and the American Medical 
Association, it is not proper medical practice to use anabolic steroids 
to build muscle mass. DEA has previously held that the prescribing of 
anabolic steroids for body enhancement is a violation of California 
law, since it was not prescribed for a legitimate medical purpose. See 
John W. Copeland, M.D., 59 FR 47,063 (1994).
    The Administrative Law Judge concluded ``that the record as a whole 
establishes that Respondent's continued registration would be 
inconsistent with the public interest.'' Judge Bittner further 
concluded that ``[u]ntil Respondent can demonstrate that he 
acknowledges that his decisions were wrong and understands why and has 
taken concrete steps to prevent it from happening again, allowing him 
to dispense controlled substances presents to great a risk that 
controlled substances will be diverted into illicit channels.'' 
Therefore, Judge Bittner recommended that Respondent's DEA registration 
be revoked.
    Respondent argues in his exceptions to Judge Bittner's Recommended 
Ruling that the Government did not meet its burden of proof; that a 
preponderance of the evidence shows that Respondent's continued 
registration is consistent with the public interest; that Judge 
Bittner's interpretation of the evidence was ``one-sided'' and 
``unfair''; that a re-examination of the evidence refutes that 
Respondent was lax in his prescribing practices or would be so in the 
future; and that Respondent has accepted full responsibility for his 
actions. In his exceptions, Respondent provided detailed citations to 
the record in support of his arguments, and provided evidence of what 
he has done since the hearing ``to avoid any similar incidents in the 
future''. In addition, Respondent suggested an alternative resolution 
to complete revocation, whereby certain restrictions would be placed on 
his DEA registration.
    The Acting Deputy Administrator has not considered the new 
information in the exceptions submitted by Respondent that was not part 
of the record derived from the hearing. Exceptions are a vehicle for 
pointing out perceived errors in the recommended decision of the 
Administrative Law Judge and not a vehicle for introducing evidence not 
admitted through testimony and/or exhibits at the hearing. Respondent 
could have filed a motion to reopen the record had he wanted this new 
information considered.
    However, the Acting Deputy Administrator has carefully considered 
the entire record in this proceeding, including Respondent's exceptions 
to Judge Bittner's recommended decision, and concludes that while the 
Government established a prima facie case based upon Respondent's lax 
prescribing of controlled substances to the undercover officers, 
complete revocation of Respondent's registration is not necessary at 
this time to protect the public interest. Evidence of Respondent's lax 
prescribing practices appears to be limited to the prescriptions 
provided to the undercover officers. Respondent testified at the 
hearing that in hindsight he should not have prescribed some of the 
substances to the undercover officers, and that he has become more 
conservative in his prescribing practices. Therefore, the Acting Deputy 
Administrator finds that Respondent's actions do not warrant complete 
revocation of his DEA registration.

[[Page 12847]]

    Nonetheless, a DEA registration carries with it the responsibility 
to ensure that controlled substances are only prescribed for a 
legitimate medical purpose thereby preventing the diversion of these 
potentially dangerous substances from legitimate channels. Therefore, 
the Acting Deputy Administrator concludes that some monitoring of 
Respondent's controlled substance handling practices and some training 
in the proper handling of controlled substance is necessary to protect 
the public health and safety.
    Thus, the Acting Deputy Administrator concludes that Respondent's 
DEA registration should be continued subject to the following 
conditions:
    (1) For a period of two years from the effective date of this 
order, Respondent shall be required to submit to the DEA San Diego 
Field Division for review every three months, a log of his prescribing, 
dispensing and administering of controlled substances. This log shall 
include, at a minimum, the date of the prescribing, dispensing and 
administering, the name of the patient, and the name, dosage and 
quantity of the controlled substance prescribed, administered or 
dispensed.
    (2) Within three months of the effective date of this order, 
Respondent shall provide to the DEA San Diego Field Division evidence 
of the successful completion of at least 24 hours of training in the 
proper handling of controlled substances.
    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 C.F.R. 0.100(b) and 0.104, hereby orders 
that DEA Certificate of Registration AT1241847, issued to Donald P. 
Tecca, M.D., be continued, and any pending applications be granted, 
subject to the above conditions. This order is effective April 17, 
1997.

James S. Milford,
Acting Deputy Administrator.
    Dated: March 4, 1997.
[FR Doc. 97-6795 Filed 3-17-97; 8:45 am]
BILLING CODE 4410-09-M