[Federal Register Volume 62, Number 52 (Tuesday, March 18, 1997)]
[Notices]
[Pages 12840-12842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6793]


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DEPARTMENT OF JUSTICE
[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

[[Page 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:

[[Page 12842]]

    (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