[Federal Register Volume 60, Number 86 (Thursday, May 4, 1995)]
[Notices]
[Pages 22075-22076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10928]



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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 93-62]


Leonard Merkow, M.D.; Denial of Application

    On June 10, 1993, the Deputy Assistant Administrator (then 
Director), Office of Diversion Control, Drug Enforcement Administration 
(DEA), issued an Order to Show Cause to Leonard Merkow, M.D. 
(Respondent). The Order to Show Cause sought to deny Respondent's 
application for a [[Page 22076]] DEA Certificate of Registration. The 
Order to Show cause alleged that Respondent's registration would be 
inconsistent with the public interest as that term is used in 21 U.S.C. 
823(f).
    The Order to Show Cause was received by Respondent. Respondent, 
through counsel, timely filed a request for a hearing on the issues 
raised in the Order to Show Cause and the matter was docketed before 
Administrative Law Judge Mary Ellen Bittner. Judge Bittner ordered the 
parties to file prehearing statements. After the Government filed its 
prehearing statement, Respondent requested and obtained an extension of 
time to file his prehearing statement on or before February 10, 1994. 
On February 28, 1994, Judge Bittner issued an order terminating the 
proceedings based upon the fact that Respondent had not filed a 
prehearing statement nor any other pleading. The order also found that 
Respondent waived his right to a hearing pursuant to 21 CFR 1301.54(a) 
and 1301.54(d). Accordingly, the Deputy Administrator now enters his 
final order in this matter without a hearing and based on the 
investigative file. 21 CFR 1301.57.
    In 1986, Respondent prescribed various narcotic and benzodiazepine 
controlled substances to an individual whom Respondent knew was drug 
addicted. Respondent also prescribed Tylenol with codeine, a Schedule 
III controlled substance, and Doriden, then a Schedule III controlled 
substance and now a Schedule II substance, to this individual. This 
combination, known by its street name of ``fours and dors'', is 
commonly abused by many drug addicts and Respondent was aware of such 
fact at the time he prescribed these substances to this individual.
    In October 1987, this individual acting in an undercover capacity 
made thirteen undercover visits to Respondent's office. The transcripts 
of these undercover visits revealed that Respondent was well aware that 
the combination of Tylenol with codeine and Doriden was used by drug 
abusers and that he was not prescribing these substances to this 
individual for any legitimate reason. In addition, from October 1987 to 
December 1987, Respondent's receptionist gave this individual over 300 
dosage units of Valium, a Schedule IV controlled substance, and 144 
dosage units of Doriden for no legitimate medical purpose. Although 
Respondent claimed he was unaware of this activity, he was responsible 
for this employee's actions and ultimately accountable for the 
controlled substances that were dispensed from his office.
    Respondent ordered about 200,000 dosage units of controlled 
substances in a nine month period in 1987. These controlled substances 
were stored at his residence, and then transferred to Respondent's two 
offices; one of these offices was never a registered location and 
Respondent let the other office's registration lapse in January 1987.
    In February of 1986, Respondent was convicted in the Commonwealth 
of Pennsylvania of 47 counts of submitting false or fraudulent Medicaid 
claims. Respondent was sentenced to three years probation and to pay a 
fine and restitution. The Pennsylvania Bureau of Occupational and 
Professional Affairs suspended Respondent's medical license in March 
1988, but reinstated the license about a month later.
    On March 23, 1988, Respondent was notified that his prior DEA 
registration was immediately suspended and that he should notify DEA of 
any controlled substance deliveries that he might receive subsequent to 
that date. In fact Respondent did order over 19,000 dosage units of 
controlled substances on March 23, 1988, and he received this shipment 
on March 28, 1988. He never notified DEA of this receipt of controlled 
substances. The controlled substances were discovered in the garage at 
the residence of Respondent's attorney pursuant to a search warrant 
which was served on April 13, 1988. Based upon these events, 
Respondent's prior DEA registration, AM5075305, was revoked on March 
27, 1989. 54 FR 13254 (1989).
    In evaluating whether Respondent's registration by the Drug 
Enforcement Administration would be inconsistent with the public 
interest, the Deputy Administrator considers the factors enumerated in 
21 U.S.C. 823(f). They are as follows:
    (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.
    In determining whether a registration would be inconsistent with 
the public interest, the Deputy Administrator is not required to make 
findings with respect to each of the factors listed above. Instead, he 
has the discretion to give each factor the weight he deems appropriate, 
depending upon the facts and circumstances of each case. See David E. 
Trawick, D.D.S., Docket No. 88-69, 53 FR 5326 (1988).
    Regarding factor two, Respondent's experience in dispensing 
controlled substances is poor based upon his prescribing the 
combination of Tylenol with codeine and Doriden to an individual, 
especially when Respondent was aware that this combination was subject 
to abuse. This factor is also supported by the fact that Respondent's 
employee dispensed numerous controlled substances to this individual in 
addition to the controlled substances that he received from 
Respondent's illegitimate prescriptions.
    With respect to factor four, Respondent failed to comply with 
applicable Federal law by dispensing controlled substances from an 
unregistered location. 21 U.S.C. 822(e). Respondent also did not 
maintain records of the controlled substances dispensed from his office 
by his employee. 21 U.S.C. 827(a). Finally, Respondent received 
controlled substances after he was notified that his DEA registration 
was suspended. 21 U.S.C. 843(a)(2). This violation is particularly 
egregious because Respondent ignored instructions to inform DEA of any 
controlled substance shipments received after the suspension of his DEA 
registration. Factor five is applicable based upon Respondent's 
Medicaid fraud convictions.
    No evidence of explanation or mitigating circumstances has been 
offered by Respondent. Therefore, the Deputy Administrator concludes 
that Respondent's application for a DEA Certificate of Registration 
must be denied.
    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 the 
application for a DEA Certificate of Registration, submitted by Leonard 
Merkow, M.D., be, and it is hereby denied. This order is effective May 
4, 1995.

    Dated: April 28, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-10928 Filed 5-3-95; 8:45 am]
BILLING CODE 4410-09-M