[Federal Register Volume 60, Number 57 (Friday, March 24, 1995)]
[Notices]
[Pages 15585-15587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7316]



-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE
Drug Enforcement Administration


Henry M. Goshen, M.D.; Denial of Application

    On February 14, 1994, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Henry M. Goshen, M.D. (Dr. Goshen), of Chicago, 
Illinois, proposing to deny his application for a DEA Certificate of 
Registration, as a practitioner, under 21 U.S.C. 823(f). The Order to 
Show Cause alleged that Dr. Goshen'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 served on Dr. Goshen by registered 
mail. More than thirty days have passed since the Order to Show Cause 
was received by Dr. Goshen and the DEA has received no response 
thereto. Pursuant to 21 CFR 1301.54(a) and 1301.54(d), Henry M. Goshen, 
M.D., is deemed to have waived his opportunity for a hearing. 
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.
    The Deputy Administrator finds that the Illinois State Police 
initiated an undercover investigation of Dr. Goshen's medical practice. 
On October 24, 1985, an undercover police officer met Dr. Goshen at his 
office to request diet pills. Notwithstanding that Dr. Goshen 
determined that this person was not overweight, he dispensed to the 
undercover officer 14 dosage unites of phentermine, a Schedule IV 
controlled substance, which he indicated was a two week supply.
    On October 29, 1985, the undercover officer returned to Dr. 
Goshen's office and asked for additional diet pills, explaining that 
she had given some of her phentermine to a girl friend. Dr. Goshen then 
dispensed more phentermine to the undercover officer. The undercover 
officer returned to Dr. Goshen's office, on November 5, 1985 and, once 
again, Dr. Goshen dispensed phentermine tablets. The undercover officer 
paid Dr. Goshen $20 for each visit.
    Based upon excessive purchase reports for controlled substances and 
complaints about Dr. Goshen's controlled substance dispensing 
practices, a Chicago DEA task force initiated an undercover operation 
in 1989. On October 5, 1989, an undercover police officer visited Dr. 
Goshen's office, seeking controlled substances. When she encountered 
Dr. Goshen, she requested phentermine using the street name for this 
controlled substance. Dr. Goshen, without seeking any medical 
information from her or performing any medical examinations, dispensed 
28 dosage units of phentermine in exchange for $40.
    This undercover officer returned to Dr. Goshen's office on October 
17, 1989, again requesting more phentermine and using the drug's street 
name. On this occasion, she asked for double the amount she received on 
the prior visit. In response, Dr. Goshen dispensed two envelopes, each 
containing 28 phentermine capsules. When Dr. Goshen gave her the drugs, 
he asked her who would receive the pills. The officer gave him three 
names. She then paid Dr. Goshen $80 for the phentermine.
    On November 3, 1989, Dr. Goshen was arrested and charged with one 
count of illegal distribution of controlled substances in violation of 
21 U.S.C. 841(a)(1). At the time of his arrest, a search warrant was 
executed at Dr. Goshen's office and during the search approximately 
42,000 dosage units of controlled substances were seized. Further 
investigation revealed that Dr. Goshen had no dispensing 
[[Page 15586]] records for any controlled substances, as required by 21 
U.S.C. 827.
    DEA investigators discovered that Dr. Goshen ordered 6,250 dosage 
units of controlled substances on November 6, 1989, shortly after he 
was released following his arrest. The investigation revealed that Dr. 
Goshen explained to the distributor that the drug order was necessary 
to replenish his stock because his office had recently been 
burglarized.
    On November 15, 1989, DEA issued an Order to Show Cause/Immediate 
Suspension of Dr. Goshen's previous DEA Certificate of Registration. 
The Order to Show Cause/Immediate Suspension was based upon the 
undercover buys of phentermine; the search of Dr. Goshen's office and 
discovery of 42,000 dosage units of controlled substances along with no 
dispensing records; and the order of controlled substances that Dr. 
Goshen made, shortly after his arrest, under the pretext that his 
office had been burglarized.
    On February 15, 1990, in the United States District Court, Northern 
District of Illinois, Dr. Goshen pled guilty to one felony count of 
knowingly and intentionally omitting material information from reports, 
records and other documents required to be made, kept or filed, in 
violation of 21 U.S.C. 843(a)(4)(A). Specifically, Dr. Goshen failed to 
keep records of receipt or disposition of approximately 19,950 dosage 
units of phentermine. On June 5, 1990, Dr. Goshen was sentenced to five 
years probation, 200 hours of community service and a $10,000 fine. As 
a result of the conviction, on February 25, 1990, Dr. Goshen 
surrendered his previous DEA Certificate of Registration.
    On July 11, 1990, the Illinois Department of Professional 
Regulation (Department of Regulation) filed a complaint, seeking to 
revoke Dr. Goshen's medical license based upon his felony conviction. 
Dr. Goshen entered into a stipulation and recommendation for settlement 
with the Illinois Medical Disciplinary Board and Controlled Substance 
Hearing Officer. Dr. Goshen agreed that: His medical license be 
suspended for three months and thereafter be placed on probation for 
five years; his state controlled substance license be suspended for 
five years; he complete 50 hours of continuing medical education 
courses on the use of controlled substances; he complete 50 additional 
hours of continuing medical education for each year of his five year 
probation; and he pay a $5,000 fine. The stipulation and recommendation 
was adopted by the Department of Regulation on June 3, 1991.
    On March 3, 1992, the Bureau of Medical Quality Assurance of the 
Illinois Department of Public Aid (Department of Public Aid) served Dr. 
Goshen with a complaint seeking to terminate his right to participate 
in the Medical Assistance Program. The complaint was predicated on his 
felony conviction and the action taken against Dr. Goshen's medical 
license. During an administrative hearing regarding this complaint, Dr. 
Goshen testified that phentermine is non-addicting and had a street 
value far less than other controlled substances. During cross-
examination, he admitted, however, that other medical authorities 
considered phentermine to be a drug that posed a substantial risk of 
dependency with repeated use. Dr. Goshen also admitted that he had 
always known that records for phentermine were required to be kept.
    Following the hearing, the hearing officer recommended that Dr. 
Goshen's participation in the Medical Assistance Program be revoked. 
The Director of the Department of Public Aid adopted the recommendation 
and terminated Dr. Goshen's right to participate in the Medical 
Assistance Program, effective November 10, 1992.
    Dr. Goshen then sought to have the Department of Regulation 
reinstate his controlled substance privileges before the five year term 
expired. Based upon a stipulated agreement, effective January 11, 1993, 
the Department of Regulation agreed to restore Dr. Goshen's Illinois 
controlled substance privileges, on a four year probationary status. 
Pursuant to the order, Dr. Goshen was limited to prescribing, but not 
dispensing, controlled substances.
    In evaluating whether Respondent's registration by the Drug 
Enforcement Administration would be inconsistent with the public 
interest, as that term is used in 21 U.S.C. 823(f), 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 an applicant's registration is inconsistent 
with the public interest, the Deputy Administrator is not required to 
make findings with respect to each of the factors listed above. 
Instead, the Deputy Administrator 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).
    Factor one is applicable based upon the Department of Regulation's 
action against Dr. Goshen's medical license which initially resulted, 
inter alia, in a five year suspension of his state controlled 
substances privileges in June 1991. Although the Department of 
Regulation lifted the five year suspension in 1993, Dr. Goshen's 
controlled substance privileges were still placed on probation for four 
years and limited to the prescribing of controlled substances only. 
Factor one is also applicable based upon the Illinois Department of 
Public Aid's action which terminated Dr. Goshen's right to participate 
in the Medical Assistance Program in November 1992.
    Factor two is applicable based upon Dr. Goshen's dispensing of 
phentermine to two undercover agents on five separate occasions in 1985 
and 1989. The transcripts reveal that there was not even a pretense of 
a medical justification for Dr. Goshen's actions. During the 1989 
visit, the undercover officer requested the drugs by using street names 
and telling Dr. Goshen that the drugs were for herself as well as 
others.
    Factor three is applicable based upon Dr. Goshen's conviction for 
knowingly and intentionally failing to keep required records for the 
massive amount of phentermine that he ordered.
    Factor four is relevant in light of the undercover buys of 
phentermine as noted under factor two. The blatant sale of the 
phentermine in no way complies with Federal or State laws.
    Factor five is relevant based upon the conduct of Dr. Goshen 
shortly after his arrest. Notwithstanding his arrest and the fact that 
large quantities of phentermine were removed from Dr. Goshen's office, 
Dr. Goshen almost immediately ordered large quantities of phentermine, 
explaining to the distributor that he needed the drugs because his 
office had been burglarized.
    No evidence of explanation or mitigating circumstances has been 
offered by Dr. Goshen. Therefore, the Deputy Administrator concludes 
that Dr. Goshen's application for a DEA Certificate of Registration 
must be denied. [[Page 15587]] 
    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, executed by Henry M. Goshen, M.D., on February 9, 1993, 
for a DEA Certificate of Registration as a practitioner, be, and it 
hereby is, denied. This order is effective April 24, 1995.

    Dated: March 20, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-7316 Filed 3-23-95; 8:45 am]
BILLING CODE 4410-09-M