[Federal Register Volume 60, Number 57 (Friday, March 24, 1995)]
[Notices]
[Pages 15587-15588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7317]



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

DEPARTMENT OF JUSTICE
[Docket No. 93-60]


James C. Graham, M.D.; Denial of Application

    On June 7, 1993, the Deputy Assistant Administrator, Office of 
Division Control, Drug Enforcement Administration (DEA), directed an 
Order to Show Cause to James C. Graham, M.D. (Respondent), proposing to 
deny his pending application for registration as a practitioner under 
21 U.S.C. 823(f). The Order to Show Cause alleged that Respondent's 
registration would be inconsistent with the public interest.
    Respondent, through counsel, requested a hearing on the issues 
raised in the Order to Show Cause. The matter was docketed before 
Administrative Law Judge Mary Ellen Bittner. Following prehearing 
procedures, a hearing was held in Fort Wayne, Indiana, on January 26, 
1994.
    On October 11, 1994, Judge Bittner issued her opinion and 
recommended ruling, findings of fact, conclusions of law, and decision 
in which she recommended that the Respondent's application for 
registration be denied. Neither party filed exceptions to this opinion, 
and on November 14, 1994, the administrative law judge transmitted the 
record of the proceedings to the Deputy Administrator.
    The Deputy Administrator has considered the record in its entirety 
and, pursuant to 21 CFR 1316.67, enters his final order in this matter, 
based on findings of fact and conclusions of law as hereinafter set 
forth.
    The administrative law judge found that Respondent received a 
medical degree from Indiana University, and practiced medicine in Fort 
Wayne continuously from 1958 to 1983. Respondent stated that he 
sometimes saw as many as one hundred patients a day, often worked up to 
18 hours a day, performed multiple surgeries and delivered two to three 
hundred babies each year. Respondent also testified that many of his 
patients were on welfare or Medicaid, and that he treated about thirty 
percent of his patients without compensation. Respondent stated that 
because of a busy schedule he was unable to keep appropriate 
documentation on all of his patients.
    Judge Bittner found that in 1982, the Allen County Police 
Department received information that Respondent was writing 
prescriptions in exchange for merchandise. Subsequently, a cooperating 
individual and an undercover Indiana State police officer arranged 
meetings with Respondent in a local restaurant.
    Judge Bittner found that in October through December 1982, 
Respondent provided the cooperating individual several prescriptions 
for a Schedule IV controlled substance in exchange for liquor and meat, 
and on one occasion issuing the prescription to the confidential 
informant in another's name. Subsequently, in November and December 
1982, Respondent gave the undercover officer several prescriptions for 
Schedule III and IV controlled substances in exchange for meat and 
liquor. In January and February 1983, both undercover operatives were 
able to continue to acquire prescriptions for controlled substances, 
including a Schedule II narcotic controlled substance, from Respondent 
in exchange for merchandise. At the hearing, the undercover officer 
testified that Respondent never performed any physical examination 
during any visit.
    The administrative law judge found that on November 21, 1983, 
Respondent was convicted in the United States District Court for the 
Northern District of Indiana of fourteen felony counts of dispensing 
controlled substances not in the course of professional practice and 
not for a medical purpose. Respondent was sentenced to three years 
imprisonment suspended to thirty days in jail and three years 
probation. As a result of this conviction, the Medical Licensing Board 
of Indiana summarily suspended Respondent's medical license. After a 
hearing in April 1984, that Board reinstated Respondent's medical 
license upon probationary terms.
    Judge Bittner found that after Respondent had submitted his current 
pending application for DEA registration in 1991, he told DEA 
investigators that he had been set up and had never written any 
prescriptions for controlled substances that were illegitimate.
    Respondent testified that since his State medical license were 
restored he has never been accused of violating any rules or 
regulations. He stated that he has been limited to a part-time medical 
practice because of illness.
    During his testimony, Respondent admitted meeting both undercover 
operatives. However, he denied that he ever gave either one a 
prescription in exchange for meat or liquor. Respondent testified that 
any prescription he may have given these individuals was for a 
legitimate medical purpose.
    Respondent submitted documentary evidence on his behalf and several 
character witnesses also testified. The administrative law judge found 
that one psychiatrist reported that Respondent's judgment had been 
impaired at the time of these incidents, and another had found that an 
automobile accident had resulted in a brain injury to Respondent that 
had caused deficits in judgment. Both physicians reported this 
condition as now resolved. Other health professionals offered testimony 
that Respondent was a competent, compassionate, well qualified 
physician who posed no threat to the community.
    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) sets forth the following factors to be considered in 
determining the public interest:
    (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.
    It is well established that these factors are to be considered in 
the disjunctive, i.e., the Deputy Administrator may properly rely on 
any one or a combination of factors, and give each factor the weight he 
deems appropriate. Henry J. Schwarz, Jr., M.D., 54 FR 16422 (1989).
    Of the stated factors, the administrative law judge found that all 
five factors were relevant. Judge Bittner determined that the record 
established that Respondent blatantly and unabashedly abused his 
privilege as a registrant by issuing controlled substance prescriptions 
in return for his own gain in the form of goods and 
[[Page 15588]] merchandise. The administrative law judge considered the 
fact that this conduct occurred more than ten years before, but found 
that Respondent had not acknowledged wrongdoing or expressed any 
remorse for his misconduct. Judge Bittner concluded that Respondent is 
unable or unwilling to discharge the responsibilities inherent in a DEA 
registration, and recommended that his application for registration be 
denied.
    The Deputy Administrator adopts the opinion and recommended ruling, 
findings of fact, conclusions of law and decision of the administrative 
law judge in its entirety. Based on the foregoing, the Deputy 
Administrator concludes that Respondent's registration is inconsistent 
with the public interest. 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 of James C. Graham, M.D., be and it hereby 
is, denied. This order is effective March 24, 1995.
    Dated: March 20, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-7317 Filed 3-23-95; 8:45 am]
BILLING CODE 4410-09-M