12840 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Notices

attempted to locate Dr. Bigelsen in

Arizona through the telephone directory

and the Arizona Board of Medical

Examiners without success. DEA

investigators went to Dr. Bigelsen’s last

known address and were advised that

he no longer lived there.

The Acting Deputy Administrator

finds that DEA has attempted to locate

Dr. Bigelsen and has determined that his

whereabouts are unknown. It is evident

that Dr. Bigelsen is no longer practicing

medicine at the address listed on his

DEA Certificate of Registration. The

Acting Deputy Administrator concludes

that considerable effort has been made

to serve Dr. Bigelsen with the Order to

Show Cause without success. Dr.

Bigelsen is therefore deemed to have

waived his opportunity for a hearing.

The Acting Deputy Administrator now

enters his final order in this matter

without a hearing and based on the

investigative file. 21 C.F.R. 1301.54 and

1301.57.

The Acting Deputy Administrator

finds that effective May 2, 1994, the

Board of Medical examiners of the State

of Arizona (Board) entered into a

Consent Order with Dr. Bigelsen

whereby his license to practice

medicine in the State of Arizona was

canceled. The Board’s action was a

result of a plea agreement entered into

by Dr. Bigelsen on or about October 21,

1993, wherein he pled guilty to charges

of filing false, fictitious or fraudulent

claims in violation of 18 U.S.C. 287,

mail fraud in violation of 18 U.S.C.

1341, and conspiring to obstruct justice

in violation of 18 U.S.C. 371. As part of

the plea agreement, Dr. Bigelsen agreed

to voluntarily relinquish his licenses to

practice medicine in Arizona, New York

and New Jersey, and his DEA Certificate

of Registration. Attempts by DEA to

obtain the voluntary surrender of Dr.

Bigelsen’s DEA Certificate of

Registration have been unsuccessful.

As a result of the cancellation of his

Arizona medical license, the Acting

Deputy Administrator finds that Dr.

Bigelsen is not currently authorized to

handle controlled substances in the

State of Arizona. The DEA does not

have statutory authority under the

Controlled Substances Act to issue or

maintain a registration if the applicant

or registrant is without state authority to

handle controlled substances in the

state in which he conducts his business.

21 U.S.C. 802(21), 823(f), and 824(a)(3).

This prerequisite has been consistently

upheld. See Earl G. Rozeboom, M.D., 61

FR 60,730 (1996); Charles L. Novosad,

Jr., M.D., 60 FR 47,182 (1995); Dominick

A. Ricci, M.D., 58 FR 51,104 (1993).

Since Dr. Bigelsen is not currently

authorized to handle controlled

substances in the State of Arizona, he is

not entitled to a DEA registration in that

state.

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, BB3105992,

previously issued to Harvey Bigelsen,

M.D., be, and it hereby is, revoked. The

Acting Deputy Administrator further

orders that any pending applications for

renewal of such registration be, and they

hereby are, denied. This order is

effective April 17, 1997.

Dated: March 11, 1997.

James S. Milford,

Acting Deputy Administrator.

[FR Doc. 97–6792 Filed 3–17–97; 8:45 am]

BILLING CODE 4410–09–M

[Docket No. 96–36]

Yu-To Hsu, M.D., Denial of Application

On May 15, 1996, the Deputy

Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration (DEA), issued an Order

to Show Cause to Yu-To Hsu, M.D.

(Respondent), of Houston, Texas,

notifying him of an opportunity to show

cause as to why DEA should not deny

his application for a DEA Certificate of

Registration as a practitioner pursuant

to 21 U.S.C. 823(f), as being inconsistent

with the public interest. Specifically,

the Order to Show Cause alleged that:

(1) On ten separate occasions between

February 28, 1991 and November 4,

1992, [Respondent] prescribed

controlled substances to undercover

officers for no legitimate medical

purpose. On at least seven of those

occasions, [Respondent] prescribed

combinations of Tylenol with codeine

and Valium (diazepam) to undercover

officers when [he] knew or should have

known that the combination of these

drugs is highly abused on the streets.

(2) Following the execution of a

Federal search warrant at

[Respondent’s] office, on December 4,

1992, [he] voluntarily surrendered his

DEA Certificate of Registration,

AH8099788, as well as [his] State of

Texas Controlled Substances

Registration Certificate. [Respondent’s]

Texas Controlled Substances

Registration Certificate has since been

reinstated.

(3) Following [Respondent’s]

indictment on seven counts of unlawful

prescribing of controlled substances to

undercover officers, on March 30, 1993,

in the District Court of Harris County,

Texas, [he] pled guilty to each count of

the indictment. On July 23, 1993,

[Respondent was] sentenced to

probation for a period of ten years with

deferred adjudication, fined $10,000

and ordered to perform 1,500 hours of

community service.

By letter to DEA dated June 16, 1996,

counsel for Respondent replied to the

Order to Show Cause, but did not

request a hearing on the issues raised by

the Order to Show Cause. The matter

was docketed before Administrative

Law Judge Mary Ellen Bittner. In a letter

dated July 3, 1996, the Office of

Administrative Law Judges advised

counsel for Respondent that Respondent

had until July 19, 1996, to file a request

for a hearing or else be deemed to have

waived the right to a hearing. No request

for a hearing was filed on behalf of

Respondent. Therefore, on July 24,

1996, Judge Bittner issued an order

finding that Respondent had waived his

right to a hearing, and ordering that all

proceedings before her be terminated.

Thereafter, the case was transmitted to

the Deputy Administrator for issuance

of a final order pursuant to 21 C.F.R.

1301.54(e).

According, the Acting Deputy

Administrator now enters his final order

in this matter pursuant to 21 C.F.R.

1301.54(e) and 1301.57, without a

hearing and based on the investigative

file and the letter dated July 16, 1996,

from counsel for Respondent.

The Acting Deputy Administrator

finds that sometime in the late 1980’s or

early 1990’s, DEA received information

from the Houston Police Department

that Respondent was a major diverter of

Schedule III through V controlled

substances. DEA then contacted the

Medicaid Fraud Division of the Texas

Department of Human Services and

learned that Respondent had issued a

large number of controlled substance

prescriptions. A subsequent survey of

area pharmacies also revealed that

Respondent issued a large number of

controlled substance prescriptions and

further revealed that he continually

prescribed Tylenol with Codeine No. 4

(Tylenol No. 4), a Schedule III

controlled substance, in combination

with diazepam 10 mg., a Schedule IV

controlled substance. At that time, this

combination of drugs was being abused

in the Houston area and was being sold

at crack houses throughout the Houston

area to help users alleviate the effects of

coming off a crack cocaine high. In

addition, DEA learned that on April 5,

1990, during the execution of a search

warrant at a crack house by the Houston

Police Department, several prescription

bottles were found, containing Tylenol
Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Notices 12841

No. 4 and diazepam and listing

Respondent as the prescriber.

As a result of this information, DEA

initiated an undercover investigation of

Respondent’s prescribing practices. On

February 28, 1991, undercover DEA

Agent #1 went to Respondent’s office

during which the agent indicated that

she used crack cocaine and needed

‘‘some pills . . . to mellow out.’’

Respondent told her not to come back

to his office and not to refer any other

individuals to him, yet nonetheless

issued the agent a prescription for 30

dosage units of Tylenol No. 4 and a

prescription for 30 dosage units of

diazepam 10 mg.

On April 4, 1991, undercover DEA

Agent #2 told Respondent that she had

just started to use crack cocaine and that

she needed something to relax.

Respondent asked the agent if she

needed something to ‘‘bring [her] down’’

and told her to return to his office if she

became a ‘‘little big fidgety.’’

Respondent issued the agent a

prescription of 38 dosage units of

diazepam 10 mg. and one for 50 dosage

units of Soma, a non-controlled

substance, and told the agent to return

to see him and he could help her quit

using crack cocaine.

Undercover DEA Agent #3 went to

Respondent’s office on July 31, 1991,

posing as Agent #2’s boyfriend. Agent #3

indicated that he smoked crack cocaine

and that he had used some of the

medication that Respondent had

prescribed for his ‘‘girlfriend’’. The

transcript of this visit indicates that

Respondent stated, ‘‘crack cocaine . . .

it’s a lot to satisfy a body. You know,

you should buy the good stuff—cocaine.

Concentration so much it stop a few

puffs.’’ The agent indicated that after

smoking crack, ‘‘the coming down was

hurting.’’ Respondent then asked, ‘‘How

many Valiums need you to get out of

this state?’’ Respondent issued the agent

prescriptions for 30 dosage units of

diazepam 10 mg. and 50 dosage units of

Soma, but told the agent not to return

to Respondent’s office.

When Agent #3 returned to

Respondent’s office on September 17,

1991, he waited in the reception area for

three hours. Respondent did

acknowledge the agent’s presence, but

did not meet with the agent. The agent

left Respondent’s office without

obtaining any controlled substances

prescriptions.

On December 23, 1991, undercover

Agent #4 went to Respondent’s office

and asked Respondent for some Valium

(brand name for diazepam) or Tylenol

with codeine No. 3 (Tylenol No. 3), a

Schedule III controlled substance,

stating that he had been using cocaine

for about two years, that he’s taken

Tylenol No. 3 with beer in the past, and

it has helped him ‘‘come down off’’ the

cocaine. Respondent replied that the

Tylenol No. 3 will not help him quit

using cocaine, but that he will give him

the medication anyway. Respondent

further stated that the agent should not

return to Respondent’s office, and

encouraged the agent to quit using

cocaine. Respondent issued the agent

prescriptions for 28 dosage units of

diazepam 10 mg. and 30 dosage units of

Tylenol No. 3.

Agent #4 returned to Respondent’s

office on January 29, 1992. Respondent

asked the agent, ‘‘what’s your problem?’’

The agent replied that, ‘‘I just came in

to see if I can get some, Tylenol 3’s and

some Valium.’’ Respondent asked the

agent why he used Tylenol No. 3 and

the agent stated that, ‘‘I use cocaine on

occasion and it helps me come down

after I get on it. . . .’’ There was then

some discussion regarding the merits of

the agent selling cocaine. Respondent

issued the agent a prescription for 26

dosage units of Tylenol No. 3 and a

prescription for 28 dosage units of

diazepam 10 mg.

On March 3, 1992, Agent #4 again

returned to Respondent’s office and

asked for more Tylenol No. 3 and

Valium. Respondent replied, ‘‘You take

too much man, you still smoking the

dope?’’ The agent told Respondent that

he still used cocaine, and they then

discussed the price of cocaine. The

agent asked Respondent if he would see

one of the agent’s ‘‘fiends’’ who was out

in the waiting room, but Respondent

refused because the ‘‘friend’’ did not

have any identification. Respondent

issued the agent a prescription for 26

dosage units of Tylenol No. 3 and one

for 28 dosage units of diazepam 10 mg.

Agnt #4 returned to Respondent’s

office on April 23, 1992, accompanied

by undercover DEA Agent #5.

Respondent first met with Agent #4 and

asked the agent if he wanted some

Tylenol No. 4 and Valium, and also

asked the agent if he was still using

cocaine. Respondent then issued the

agent a prescription for 26 dosage units

of Tylenol No. 4 and a prescription for

28 dosage units of diazepam 10 mg.

Respondent next met with Agent #5.

Agent #5 asked Respondent for some

Tylenol No. 3 and some Valium because

he uses cocaine and ‘‘it helps me come

down’’. Respondent refused to issue the

agency any controlled substance

prescriptions on this occasion and

encouraged the agent to stop using

cocaine.

Agent #5 returned to Respondent’s

office on July 24, 1992. During this visit,

Respondent remembered that he had not

written any prescriptions for the agent

on his previous visit. The agent told

Respondent that he had quit using

cocaine, but that he needed something

because he had ‘‘been burning the

candle on both ends.’’ On this occasion

Respondent issued the agent a

prescription for 28 dosage units of

Tylenol No. 3 and a prescription for 28

dosage units of diazepam 10 mg.

On November 4, 1992, Respondent

asked Agent #5 if he wanted the same

medication. The agent told Respondent

that he still used cocaine occasionally.

Respondent issued him prescriptions for

28 dosage units of Tylenol No. 4 and 28

dosage units of diazepam 10 mg.

Respondent told Agent #5 not to come

to Respondent’s office too often. On the

same day, Respondent issued Agent #4

a prescription for 28 dosage units of

Tylenol No. 4 and one for 28 dosage

units of diszepam 10 mg.

As a result of this investigation, on

December 4, 1992, Respondent

surrendered his Texas controlled

substance registration and his previous

DEA Certificate of Registration,

AH8099788. Subsequently, Respondent

was indicted in the 179th District Court,

Harris County, Texas and charged with

seven counts of unlawful prescribing of

controlled substances in violation of

state law. On March 30, 1993,

Respondent pled guilty to all seven

counts, and on July 23, 1993, he was

sentenced to probation for 10 years with

deferred adjudication of guilt, fined

$10,000.00 and ordered to perform

1,500 hours of community service.

In the letter dated June 16, 1996,

Respondent’s counsel asserted that

Respondent ‘‘has completed all of the

terms of his deferred adjudication and

his probation has been terminated,’’ and

that his state controlled substance

license has been reinstated. Counsel

also claimed that Respondent had a

hearing before the state medical board

in February 1994, and that Respondent’s

medical license ‘‘was neither revoked

nor suspended.’’ There was no

documentation submitted by

Respondent to support any of these

assertions. Regarding the undercover

purchases of controlled substance

prescriptions, Respondent’s counsel

stated, ‘‘I would have tried an

entrapment defense for [Respondent]

but juries, I feel, cannot understand

entrapment.’’

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 the

registration would be inconsistent with

the public interest. Section 823(f)

requires that the following factors be

considered:
12842 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Notices

(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, the record

indicates that while Respondent

surrendered his state controlled

substances license in December 1992, it

ha since been reinstated with no

restrictions. In addition, it is unclear

exactly what action, if any, was taken by

the Texas State Board of Medical

Examiners regarding Respondent’s

license to practice medicine in that

state. However, it is undisputed that he

is currently licensed to practice

medicine in Texas.

As to Respondent’s experience in

dispensing controlled substances, it is

clear that Respondent prescribed

controlled substances to the undercover

agents for no legitimate medical reason.

The agents told Respondent that they

were cocaine users and that they needed

Tylenol with codeine and Valium to

help them come off their cocaine highs.

The Acting Deputy Administrator finds

that prescribing controlled substances

for this purpose is reprehensible, since

it fosters the continued illegal use of

cocaine.

Regarding factor three, Respondent

has been convicted of a controlled

substance related offense. DEA has

consistently held that a deferred

adjudication of guilt following a plea of

guilty is a conviction within the

meaning of the Controlled Substances

Act. See Harlan J. Borcherding, D.O., 60

FR 28,796 (1995); see also Clinton D.

Nutt, D.O., 55 FR 30,992 (1990) (where

plea was ‘‘nolo contendere’’ rather than

‘‘guilty’’). In his letter dated June 16,

1996, Respondent’s counsel eludes to an

entrapment defense to the charges

brought against Respondent. There is no

elaboration of this argument in

Respondent’s letter, and it is

nonetheless irrelevant to this

proceeding, since Respondent pled

guilty to the charges against him.

As to factor four, Respondent’s

conviction in state court for the

unlawful prescribing clearly shows that

Respondent failed to comply with the

applicable state law. In addition,

Respondent’s prescribing of controlled

substances to the undercover agents for

no legitimate medical purpose was in

violation of 21 U.S.C. 841(a)(1).

In June 16, 1996 letter, Respondent’s

counsel asserts that Respondent has

‘‘never had any trouble with the D.E.A.

prior to 1993 and he does need his

D.E.A. Certificate so that he may

practice normally again.’’ However,

other than counsel’s unsubstantiated

assertions, there is no documentation in

the record of Respondent’s fitness to

handle controlled substances.

The Acting Deputy Administrator

concludes that based upon the record

before him, Respondent’s registration

with DEA would be inconsistent with

the public interest. Respondent

prescribed highly abused substances for

no legitimate medical purpose to

purported users of cocaine. There is no

indication that Respondent can now be

trusted to responsibly handle 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 28 C.F.R. 0.100(b) and 0.104,

hereby orders that the application

submitted by Yu-To Hsu, M.D. for a

DEA Certificate of Registration be, and

it hereby is, denied. This order is

effective April 17, 1997.

Dated: March 10, 1997.

[FR Doc. 97–6793 Filed 3–17–97; 8:45 am]

BILLING CODE 4410–09–M

[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