24808 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Notices

membership. The notifications were

filed for the purpose of extending the

Act’s provisions limiting the recovery of

antitrust plaintiffs to actual damages

under specified circumstances.

Specifically, the following additional

parties have become new non-voting

members of POSC: Information

Dimensions (France), Puteaux,

FRANCE; Codd and Date Ltd., Cheshan,

Bucks, UNITED KINGDOM; Pt.

ELNUSA Geosains, Jakarta,

INDONESIA.

No other changes have been made in

either the membership or planned

activity of POSC.

On January 14, 1991, POSC filed its

original notifications pursuant to

Section 6(a) of the Act. The Department

of Justice published a notice in the

Federal Register pursuant to Section

6(b) of the Act on February 7, 1991, (56

FR 5021).

The last notification was filed with

the Department on January 24, 1996. A

notice was published in the Federal

Register pursuant to Section 6(b) of the

Act on April 3, 1996, (61 FR 14817).

Constance K. Robinson,

Director of Operations, Antitrust Division.

[FR Doc. 96–12323 Filed 5–15–96; 8:45 am]

BILLING CODE 4410–01–M

Drug Enforcement Administration

[Docket No. 94–59]

Robert M. Golden, M.D.; Revocation of

Registration

On May 25, 1994, the Deputy

Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration (DEA), issued an Order

to Show Cause to Robert M. Golden,

M.D., (Respondent) of Roswell, Georgia,

notifying him of an opportunity to show

cause as to why DEA should not revoke

his Certification of Registration,

AG6243125, under 21 U.S.C. 824(a), and

deny any pending applications for

renewal of such registration as a

practitioner under 21 U.S.C. 823(f), for

the reason that his continued

registration would be inconsistent with

the public interest.

On July 18, 1994, the Respondent,

through counsel, filed a timely request

for a hearing, and following prehearing

procedures, a hearing was held in

Atlanta, Georgia, on April 4–6, 1995,

before Administrative Law Judge Paul

A. Tenney. At the hearing, both parties

called witnesses to testify and

introduced documentary evidence, and

after the hearing, counsel for both sides

submitted proposed findings of fact,

conclusions of law and argument. On

August 4, 1995, Judge Tenney issued his

Findings of Fact, Conclusions of Law,

and Recommended Ruling,

recommending that the Respondent’s

registration be suspended for one year,

and after the one-year period of

suspension, that the registration be

limited to prescribing Schedules IV and

V controlled substances only, ‘‘perhaps

in an institutional setting.’’ Both parties

filed exceptions to his decision, and on

September 13, 1995, the record of these

proceedings and Judge Tenney’s

opinion were transmitted to the Deputy

Administrator. On February 26, 1996,

the Respondent filed with the Deputy

Administrator a Motion to Reopen

Evidence. By letter dated February 27,

1996, the Deputy Administrator

afforded the Government an opportunity

to respond to the Respondent’s motion,

and on March 27, 1996, the Government

filed a response to the motion.

The Deputy Administrator has fully

considered the record, to include the

Respondent’s Motion to Reopen, 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 Deputy Administrator adopts

the Findings of Fact, Conclusions of

Law, and Recommended Ruling of the

Administrative Law Judge, with

specifically noted exceptions, and his

adoption is in no manner diminished by

any recitation of facts, issues and

conclusions herein, or of any failure to

mention a matter of fact or law.

The Deputy Administrator finds that

on September 6, 1990, the Respondent

was issued a DEA Certificate of

Registration, number AG6243125,

authorizing him to handle controlled

substances in Schedules IV and V as a

practitioner. This registration was due

to expire on September 30, 1993, and on

August 17, 1993, the Respondent filed

an application to renew his registration.

In block 2b of that application, the

Respondent wrote that in 1986 his

Georgia license had been acted upon

concerning his handling of Schedules II

and III controlled substances, but that

he was ‘‘currently off probation.’’

Further investigation disclosed that

disciplinary action was taken against

the Respondent by the Georgia State

Board of Medical Examiners (Board)

pursuant to a Consent Order dated April

1, 1987. Although the order noted that

‘‘[t]his agreement is not an admission of

wrongdoing for any purpose other than

resolving the matters pending before the

Board,’’ and noted that the ‘‘Respondent

waives any further findings of fact,’’ the

matters resolved included, among other

things, allegations of recordkeeping

violations, the prescribing or dispensing

of controlled substances while not

acting in the usual course of

professional practice, and the

prescribing or ordering of controlled

substances for an illegitimate medical

purpose. As a result of the consent

order, the Respondent’s medical license

was placed on probation for a period

totalling four years, with terms and

conditions of probation to include: (1)

That the Respondent would not

prescribe, administer, or dispense, in

the course of his office practice, any

Schedule II, IIN, III, or IIIN controlled

substances; (2) that the Respondent

would personally maintain a daily log of

all Schedule IV controlled substances

prescribed, administered, or dispensed

in his office for at least one year; (3) that

the Respondent participate in a program

of continuing education with at least

100 hours focusing on drug abuse and/

or pharmacology; (4) that the

Respondent abide by all State and

Federal laws relating to drugs with the

Respondent’s license subject to

revocation; and (5) that the Respondent

pay a fine of $5,000.00.

Before Judge Tenney, the Respondent

testified that his state probation ended

in 1990 or 1991, but that he had never

requested reinstatement of his

authorization to handle Schedule II or

III controlled substances. No evidence to

the contrary was presented by the

Government. Therefore, the Deputy

Administrator finds that the Respondent

is currently authorized by the State of

Georgia to handle only controlled

substances in Schedules IV and V.

A Special Agent (Agent) for the DEA

testified before Judge Tenney

concerning an undercover operation he

conducted involving the Respondent in

1985. Specifically, the Agent described

three visits he made to the Respondent’s

office between April 9, 1985, and May

7, 1985. The parties do not dispute that

the Respondent refused to prescribe

Percodan for the Agent during the first

visit. However, during the second visit

the Respondent prescribed Halcion 0.5

mg, and during the third visit the

Respondent prescribed Valium, 10 mg,

with one refill. Both Halcion and

Valium are Schedule IV controlled

substances. The Government asserted

that the Respondent issued these

prescriptions to the Agent without a

legitimate medical purpose.

In the Fall of 1992, a Roswell Police

Department Detective contacted a DEA

Division Investigator (Investigator) and

requested assistance in investigating the

Respondent’s prescribing activities. The

Investigator testified before Judge

Tenney that he was asked to interview

a cooperating individual (CI), and he

participated in a telephone conversation
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Notices 24809

with this individual on November 3,

1992. The CI told the Investigator that

she was obtaining Xanax prescriptions

from the Respondent, but that he would

write these prescriptions in the names

of other people ‘‘so he wouldn’t create

suspicion as to over prescribing.’’ The

parties stipulated that Xanax is a

Schedule IV controlled substance. In a

subsequent conversation with the CI,

she told the Investigator that the

prescriptions were issued in the names

of two individuals, DT and AP.

Subsequently, a search warrant was

obtained, and the patient records of,

among others, the CI, AP, DT, and a

Roswell Police Officer (Officer), who

also participated in the investigation,

were obtained from the Responsdent’s

office. Also, the Investigator visited

local pharmacies and obtained

prescriptions from them. Specifically,

the Investigator testified that he did not

locate any prescriptions for Xanax

written in the CI’s name during the

relevant time period. However, he did

obtain prescriptions in the name of AP

dated in May of 1992, June 2, 1992, June

15, 1992, and September 17, 1992, (this

date was stipulated to by the parties

before Judge Tenney, for the

prescription in question appears to be

dated 7–17–92), for 2 mg Xanax, in an

amount totalling 180 dosage units. The

Investigator also retrieved prescriptions

in the name of DT, one dated April 27,

1992, for 30 dosage units of Xanax 1 mg,

and three others dated July 21, 1992,

July 31, 1992, and August 20, 1992, for

a total of 150 dosage units of Xanax, 2

mg.

The Investigator also testified that in

March of 1993, he telephonically

interviewed DT. DT told the Investigator

that he had visited the Respondent one

time in April of 1992, and that the CI

was with him during that visit. DT

stated that his purpose in seeing the

Respondent in April of 1992 was to

receive a prescription for the CI written

in DT’s name. He further stated that he

had not seen the Respondent since that

April 1992 visit to this office. DT told

the Investigator that the Respondent

‘‘delivered, hand delivered, [subsequent

prescriptions] in his name to [the CI]

down at Kroger parking lot.’’ DT then

told Investigator that the CI would pick

him up, ‘‘and they would go get the

prescription filled for the [Xanax].’’

However, the Investigator testified that

he did not ask DT what happened to the

pills after the prescriptions were filled,

although the Investigator testified that

since DT told him the purpose of his

visit with the Respondent was to obtain

prescriptions for the CI, he assumed the

pills were also for the CI. The

Investigator was also aware that DT

worked for the CI’s husband.

The CI testified consistently with DT’s

testimony concerning this practice.

Furthermore, a Roswell Police Officer

(Officer) also testified before Judge

Tenney, stating that in November of

1992, she had interviewed DT. DT had

told her that, after his initial visit,

accompanied by the CI, with the

Respondent, the CI would hen ‘‘just

have to call [the Respondent,] and he

would write a prescription in [DT’s]

name and [the CI] would meet [DT] and

they would get the prescriptions filled

together.’’ DT also told the Officer that

after the prescriptions were filled, he

‘‘would take a portion of the

prescription, 8 to 10 tablets, and then

[the CI] would get the rest of them.’’

Further, DT’s patient chart obtained

from the Respondent’s office consisted

of a medical history form dated April

27, 1992, on which was noted that the

reason for the visit was ‘‘anxiety.’’

Attached to the medical history form

was a medical evaluation form, also

dated April 27, 1992, which noted a

medical treatment plan of prescribing

Xanax, 1 mg, without refill. The third

page of DT’s chart contains annotations

dated August 20, 1992, and September

23, 1992, noting ‘‘recurrent anxiety.’’ On

August 20, 1992, a prescription for 30

dosage units of Xanax, 2 mg with one

refill was authorized, and on September

23, 1992, the chart notes that a

prescription for 30 dosage units of

Xanax, 2 mg with one refill was also

issued. The August entry also contains

a notation of ‘‘130/80.’’ However, there

are no chart entries dated July 21 or 31,

1992. When asked if he saw DT on those

dates, the Respondent answered, ‘‘if I

wrote the prescriptions, handwritten,

then I did see him.’’ However, Judge

Tenney noted that ‘‘[t]he testimony of

the Respondent concerning [DT’s]

anxiety is sketchy, and his statement

was said with little sincerity.’’ The

Deputy Administrator agrees that the

record supports Judge Tenney’s

credibility finding on this point. Finally,

the Deputy Administrator notes that DT

was present and available at the hearing

before Judge Tenney, but that neither

party called him to be a witness.

The CI testified before Judge Tenney,

stating that she had been a patient of the

Respondent’s since approximately 1986

or 1987. Sometime prior to 1992, she

entered a drug rehabilitation program,

and she testified that her husband had

informed the Respondent that she ‘‘was

a drug addict and told him not to ever

see [her] again.’’ However, the CI

testified that she resumed seeing the

Respondent, and in April of 1992, she

asked the Respondent to write

prescriptions for her in the name of

other people in order to avoid problems

with her husband. Specifically, she

asked him to write Xanax prescriptions

in DT’s name, and later, in AP’s name.

The CI testified that the Respondent did

not maintain a patient chart for her

during this time, and he did not do any

medical examinations or tests. The CI’s

patient chart obtained from the

Respondent’s office contains no entries

dated later than July 2, 1991. However

she stated that she was present when

the Respondent gave her prescriptions

in the name of other people, and that

the Respondent had written her

prescriptions in the name of DT

approximately four or five times.

Further, the CI testified about contacts

she had made with the Respondent

under surveillance by the police on

October 1, 1992, and on October 20,

1992. As to the visit on October 20,

1992, the CI testified that she

accompanied AP into the Respondent’s

office, that she wore a concealed

transmitter, that a tape and transcript

were made of the meeting, and that the

transcript offered into evidence was an

accurate version of the transaction. The

Respondent had no objection to the

admission into evidence of the

transcript.

Further, a detective with the Roswell

Police Department (Detective) testified

before Judge Tenney that on October 20,

1992, he monitored through the

concealed transmitter AP and the CI

enter the Respondent’s office. During

the course of this visit, the CI remained

in the treatment room with AP and the

Respondent, and the CI told the

Respondent ‘‘I brought [AP] so we could

get a script.’’ The Respondent asked ‘‘

* * * uh, so you need like Xanax?’’

Then AP stated ‘‘[t]hat would be cool,’’

and the CI added ‘‘[y]ea.’’ During the

course of the conversation AP informed

the Respondent, ‘‘I don’t have any cash

on me today,’’ and the CI told the

Respondent, ‘‘Umm, well I’m pay’in ya.

* * *.’’ The CI stated, ‘‘[n]ow you won’t

have to see [AP] again if you want to

give another refill?’’ The Respondent

replied, ‘‘Well I put a refill on it so

you[’re] all good with that,’’ to which

the CI replied, ‘‘OK OK but, alright how

much is that[?]’’. The Respondent

replied, ‘‘uh, thirty.’’ The CI asked

again, ‘‘[s]o what do I owe you?’’ The

Respondent then said ‘‘Uh, one hundred

even.’’ The transaction took

approximately 15 minutes, and a

prescription for 30 dosage units of

Xanax, 2 mg, with one refill authorized,

was written in AP’s name. The

prescription was recorded in AP’s

patient chart with a notation of

‘‘recurrent anxiety.’’ However, the
24810 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Notices

Detective testified that, after the CI and

AP left the Respondent’s office, the CI

actually gave the Xanax prescription to

the police. The CI’s testimony

concerning these events was consistent

with the Detective’s testimony. The CI

also testified that the Respondent had

handed the prescription to her.

On cross-examination, the CI

reviewed prescription survey materials

presented by the Respondent, including

a summary of prescriptions which the

CI had received from other physicians

or dentists between January of 1991 and

October 28, 1992. The CI testified that

she had filled these prescriptions and

had consumed the medications, denying

that she had sold any of the substances.

The CI also stated that the prescribing

physicians had conducted physical

examinations prior to issuing the listed

prescriptions, and that the dentists had

prescribed the medication because of

numerous root canal procedures she had

undergone. Finally, she testified that

‘‘[t]he only doctor I ever used was [the

Respondent] because he made it easy.’’

As to the October 1, 1992 incident,

the Detective testified that the CI,

wearing a transmitter, met with the

Respondent in the parking lot of a

Dunkin’ Dounuts, as had been

prearranged. Although a tape recording

was made of this visit, the Detective

testified that the tape recording was

misplaced. However, the Detective

testified that the CI was trying to obtain

a prescription for Xanax from the

Respondent, and that he had refused to

give her such a prescription. The CI’s

testimony agreed with the Detective’s

version of these events.

However, the Detective also testified

that on that date the CI did obtain a

bottle of a non-controlled substance,

Fioricet, which she turned over to the

Detective’s assistant just after the

meeting with the Respondent. However,

this bottle of pills was also misplaced by

the Roswell Police Department. Further,

the Respondent testified concerning the

Fioricet, denying that he had given the

CI this bottle of pills. Unlike Judge

Tenney’s finding on this point, the

Deputy Administrator finds the

evidence concerning the Fioricet

inconclusive.

The Detective also testified that he

had interviewed AP, and that she had

agreed to assist the Roswell Police with

their investigation. The Detective

testified that he was aware that AP was

a ‘‘drug dealer’’ or ‘‘drug user,’’ or ‘‘drug

abuser,’’ prior to using her in an

undercover capacity in this

investigation. The Detective also

testified that he was aware that AP ‘‘had

a previous criminal history.’’

The record revealed that AP prepared

a patient history form for the

Respondent dated May 19, 1992, and

that she had received prescriptions for

Xanax from the Respondent during the

course of her treatment in May, June,

and September of 1992. AP’s patient

chart contains an entry dated September

17, 1992, noting a Xanax prescription

and ‘‘anxiety recurrent,’’ and an entry

dated October 20, 1992, noting a Xanax

prescription, and also noting ‘‘recurrent

anxiety.’’

Further, a Roswell Police Officer

(Officer) testified before Judge Tenney,

stating that on September 23, 1992, she

accompanied AP into the Respondent’s

office for the purpose of obtaining a

prescription for Xanax. AP wore a

transmitter during this visit. The Officer

testified, and the Respondent’s counsel

stipulated to, the accuracy of the

transcription made of the tape recording

of this visit.

Further, although the Officer did not

wear a transmitter, she testified

concerning her transaction with the

Respondent, stating that the Respondent

did not ask her questions about her

medical condition or history, although

this was her first visit to the

Respondent’s office. The Officer

testified that she had told the

Respondent that she was ‘‘adjusting to

moving back in with [her] parents,’’ but

that she did not discuss any

psychological problems. The Officer

also testified that she did not exhibit

any behavior such as trembling or

shaking, restlessness, or shortness of

breath, but rather maintained a calm

demeanor. Her blood pressure was

taken, and the Respondent told her ‘‘it

was good.’’ The entire transaction took

‘‘no more than five to ten minutes.’’ The

Respondent gave the Officer a

prescription for Xanax. 1 mg, 30 dosage

units, without a refill. The Officer also

testified that she paid forty dollars for

this visit.

Next, the Officer testified that on

October 15, 1992, she returned to the

Respondent’s office wearing a

transmitter. Her transaction with the

Respondent was recorded, and a

transcription of the recording was

entered into the record without

objection and stipulated to by the

Respondent’s counsel. The Officer

testified that during this transaction, in

which she spent five to seven minutes

with the Respondent, she was not

exhibiting any signs of nervousness, but

rather maintained a calm and relaxed

demeanor. The Officer told the

Respondent that she was feeling fine.

However, she asked that the Xanax

dosage be increased to the 2 milligram

strength. Without conducting any form

of medical examination or test, or

without discussing the medical basis for

the Officer’s request for a stronger

dosage (i.e. change in physical or

psychological condition that might

justify the new dosage), the Respondent

gave her a prescription for 30 Xanax, 2

mg. However, when he was asked to put

a refill on the prescription, he stated

‘‘um, on this type of drug I generally

don’t like to because it’s a controlled

drug. * * * And because you’re getting

the two, that’s like double strength.

* * * If you got the one, I would

probably refill it. * * * What you could

do is just split them in half (inaudible).’’

The Officer paid the Respondent forty

dollars at the conclusion of this

transaction.

The Officer’s medical chart retrieved

from the Respondent’s office showed an

entry dated September 23, 1992, noting

that the Officer had a history of personal

problems, and the Xanax prescription

was entered. Further, a second entry for

October 15, 1992, noted that she was

‘‘doing well on meds.’’, and the Xanax

prescription was noted.

The Respondent testified before Judge

Tenney. First, as to his treatment of AP,

he stated that he had diagnosed AP as

being moderately obese and with

‘‘generalized anxiety disorder.’’ He also

stated that he had no information, when

he began treating her, that she might be

deceiving him. Rather, he testified that

he prescribed Xanax for AP for ‘‘[i]t is

clearly the drug of choice for any

anxiety.’’ He also testified that the

prescriptions he gave AP for Xanax were

medically necessary, and he denied

having any arrangements to give her

prescriptions for substances ‘‘without

any medical necessity.’’ For example, he

testified that during the September 23,

1992 visit, AP had described herself as

‘‘a nervous wreck,’’ consistent with

previous expressions of her condition.

Based upon his observation of her

behavior and her comments, he

prescribed Xanax for her, for it was

medically necessary. He also recalled

that on one occasion AP came into his

office with the CI, but that on that visit,

he had given the Xanax prescription to

AP, and that that prescription was also

medically necessary based on her

condition. He denied having any idea

that AP was going to give that

prescription to the CI or divide the

medications with her.

Concerning the visit of October 20,

1992, the Respondent testified that, at

the time, he did not question the CI’s

statement ‘‘I brought [AP] so we could

get a script,’’ and even though the CI

paid for AP and herself, the Respondent

interpreted that as ‘‘she was paying for

her friend also * * * which is not
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Notices 24811

unusual. I have people paying for other

people all the time.’’ The Respondent

testified that he thought AP was truthful

and genuine.

The Respondent also testified about

his treatment of DT. He stated that DT

had the classic symptoms for

generalized anxiety disorder, which was

consistent with DT’s complaint

recorded on his patient intake form. The

Respondent also stated that he did not

have any knowledge that DT ‘‘was

faking his condition,’’ or that he was

dividing pills with the CI. Rather, the

Respondent found DT to be truthful and

genuine. The Respondent opined that

the prescriptions he had given to DT

were medically necessary. However, the

Respondent acknowledged that the

prescriptions written to DT on July 21,

1992, and July 31, 1992, do not appear

in his patient chart. Further, when

Government counsel asked him if he

could tell whether he actually saw DT

on July 21 and July 31, the Respondent

replied, ‘‘[i]f I wrote the prescriptions,

handwritten, then I did see him.’’

The Respondent testified that he had

reviewed all of the taped transactions

between himself and AP, DT, the CI,

and the Officer. He testified that the

taped transactions showed that he had

not discussed using drugs for

recreational purposes with any of these

individuals.

Next, the Respondent testified about

his treatment of the CI, noting that the

CI first became his patient in

approximately 1985, that he became

aware that the CI had undergone

treatment for drug addiction, and that

from 1991 to the date of the hearing, he

had not written prescriptions for

controlled substances for the CI. He

denied having any arrangement with the

CI or providing her with prescriptions

for controlled substances either directly

or indirectly.

The Respondent also offered into

evidence a prescription profile

pertaining to the CI. After he collected

the survey from local pharmacies, he

contacted two of the doctors concerning

their prescribing practices to the CI. The

Respondent testified that he wanted to

determine whether the doctors were

aware that the CI was obtaining

controlled substances from various

other doctors during this time period.

He testified that, prior to 1993, he had

assumed the CI was not seeing other

doctors. However, other than these two

doctors, the Respondent testified he did

not contact any of the other doctors

listed on the prescription profile.

The Respondent also testified about

treating the Officer. He stated that when

the Officer presented herself as a

patient, he was unaware that she was

not telling him the truth. Rather, she

appeared to be truthful and genuine.

After taking her history and observing

her, he diagnosed her with general

anxiety disorder. Also, he recalled that

she had told him, ‘‘that she either was

unemployed or had lost her job. She had

a lot of stress at home, a lot of family

stress, a lot of job stress. That she was

going to be forced to * * * move back

home because of her lack of

employment. She was very upset, very

nervous.’’

Further, the Respondent testified that

during the visit on October 15, he had

no idea that he was giving the Officer a

prescription for a drug for other than

medical use. The Respondent also

opined that, when the Officer told him

she was feeling fine, she meant that she

was feeling fine on the medication. He

denied that the Officer was exhibiting

drug seeking behavior, and he opined

that her request for a stronger dosage of

Xanax, despite ‘‘feeling fine’’ on the

previous prescription, was not suspect

behavior.

Pursuant to 21 U.S.C. 823(f) and

824(a)(4), the Deputy Administrator may

revoke the Respondent’s DEA Certificate

of Registration, and deny any pending

applications, if he determines that the

continued registration would be

inconsistent with the public interest.

Section 823(f) provides the following

relevant factors for consideration 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 or 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 denied. See

Henry J. Schwarz, Jr., M.D., Docket No.

88–42, 54 FR 16422 (1989).

In this case, all five factors are

relevant. As to factor one,

‘‘recommendation of the appropriate

State licensing board,’’ in 1987, the

Board took disciplinary action in

response to allegations of wrongdoing

by the Respondent related to controlled

substances. However, under the terms of

the consent order between the

Respondent and the Board, the

agreement was not an admission of

wrongdoing, and further fact finding

was waived. The probation period

ordered by the Board expired in

approximately 1991. Further, the

Deputy Administrator notes that there is

no evidence of any recommendation by

the Board responsive to the matters

raised in this proceeding.

As to factor two, the Respondent’s

‘‘experience in dispensing * * *

controlled substances,’’ and factor four,

the Respondent’s ‘‘[c]ompliance with

applicable State, Federal, or local laws

relating to controlled substances,’’ it is

significant that, to be effective, a

prescription for a controlled substance

‘‘must be issued for a legitimate medical

purpose by an individual practitioner

acting in the usual course of his

professional practice.’’ 21 CFR

1306.04(4). Also, a prescription for a

controlled substance ‘‘shall bear the full

name and address of the patient.

* * * ’’ 21 CFR 1306.05.

Despite the Respondent’s testimony

and arguments to the contrary, Judge

Tenney found that the ‘‘evidence proves

that the Respondent prescribed Xanax

in [AP’s] name on October 20, 1992,

with full knowledge that [the CI] was an

intended recipient of that controlled

substance.’’ Judge Tenney found, and

the Deputy Administrator agrees, that

the transcript of that transaction

revealed the following: (1) That the CI

stated, ‘‘I brought April so we could get

a script’’; (2) that both the CI and AP

affirmatively responded to the

Respondent’s question, ‘‘so you need

like Xanax. (unintell)?’’; (3) that the CI

paid for the Xanax prescription; and (4)

that the CI inquired as to whether AP

would have to be seen again in order for

the Xanax prescription to be refilled,

with the Respondent explaining that he

had put a refill on the prescription ‘‘so

you[’re] all good with that.’’ Further,

both the CI and the Detective testified

that, after the CI and AP left the

Respondent’s office, it was the CI who

handed the Xanax prescription to the

police. Therefore, the Deputy

Administrator agrees with Judge

Tenney’s conclusion that ‘‘[a]ll of these

excerpts indicate knowledge on the part

of the Respondent that [the CI] was to

receive the Xanax,’’ not the patient

actually named on the prescription. The

Deputy Administrator also agrees with

Judge Tenney, that such a prescribing

practice violates DEA regulations.

However, the Deputy Administrator

also finds relevant the Respondent’s

prescribing practices pertaining to DT

and the Officer. The Respondent
24812 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Notices

testified that his prescribing to DT and

the Officer were for legitimate medical

purposes responsive to their medical

conditions. Assuming, arguendo, that

the Respondent prescribed Xanax for

DT’s use and not the CI’s, then the

Deputy Administrator makes the

following findings. First, after the initial

office visit of DT and the Officer, the

Respondent prescribed 30 dosage units

of Xanax, 1 mg strength, without refill.

However, in subsequent instances

involving both individuals, the

Respondent increased the Xanax

strength to the 2 mg strength without

providing a medical purpose other than

the fact that the patient asked for an

increased dosage. Neither patient’s chart

reflects a contemporaneous entry of a

medical indication which would justify

the increased strength of the

medication, either from medical tests

performed, or from a change in medical

history provided by the patient. Also,

DT testified that the Respondent

increased his dosage strength without

DT actually seeing him.

When questioned before Judge

Tenney, the Respondent failed to

provide any medical justification for

such prescribing. Although DT’s

medical chart fails to note any entries

on July 21, 1992, or July 31, 1992, the

Respondent issued prescriptions to DT

on July 21, 1992, July 31, 1992, and

August 20, 1992, which, including

authorized refills, totalled 150 dosage

units of Xanax, 2 mg. Further, the record

contains the following dosage

information about Xanax from the

Physicians’ Desk Reference at page

2370:

Treatment for patients with anxiety should

be initiated with a dose of 0.25 to 0.5 mg

given three times daily. The dose may be

increased to achieve a maximum therapeutic

effect, at intervals of 3 to 4 days, to a

maximum daily dose of 4 mg, given in

divided doses. The lowest possible effective

dose should be employed and the need for

continued treatment reassessed frequently.

The risk of dependence may increase with

dose and duration of treatment.

Yet in this 30 day period of time, the

Respondent provided DT with

prescriptions for 150 dosage units of

Xanax 2 mg., which, if consumed in

‘‘divided doses’’, would equal 10 mg a

day, over twice that recommended.

Although no expert medical evidence

was presented to assist the Deputy

Administrator in reaching a conclusion

concerning the legitimate medical

purpose for such prescribing in either

the case of DT or the Officer, the Deputy

Administrator finds significant that the

Respondent has failed to provide any

medical purpose for increasing the

dosage strength. Thus, the evidence

merely demonstrates that the increase is

a result of his patients’ requests, rather

than the result of the application of the

physician’s medical judgment. Under

these circumstances, the Deputy

Administrator previously has found that

such a prescribing practice, when a

patient’s demands replace the

physician’s judgment, equated to

issuing prescriptions without a

legitimate medical purpose. See Robert

L. Dougherty, Jr., M.D., 60 FR 55047

(1995); Harland J. Borcherding, D.O., 60

FR 28796 (1995).

As to factor three, the Respondent’s

‘‘conviction record under Federal or

State laws relating to the * * *

dispensing of controlled substances,’’

the Deputy Administrator notes that

there is no evidence of any ‘‘conviction

record’’ pertaining to the Respondent.

Finally, as to factor five, ‘‘[s]uch other

conduct which may threaten the public

health or safety,’’ the Deputy

Administrator finds it relevant that the

Respondent, knowing that the CI had

been treated for drug abuse, facilitated

her access to controlled substances.

Further, he did not investigate whether

the CI had received other prescriptions

for controlled substances at the same

time that he was providing her access to

such medications until 1993, and

arguably then only out of his own selfinterest. Therefore, the Deputy

Administrator agrees with Judge Tenney

in concluding that the Government has

provided preponderating evidence that

a basis exists to find the Respondent’s

continued registration inconsistent with

the ‘‘public interest.’’

Yet Judge Tenney found that the

Respondent’s violations concerning the

CI involved isolated misconduct, and he

found that the ‘‘limited nature of the

Respondent’s conduct mitigates in his

favor.’’ However, the Deputy

Administrator disagrees with this

conclusion. The Respondent’s conduct

relating to the CI, a known drug abuser,

coupled with his prescribing practices

for DT and the Officer, demonstrate

cavalier behavior regarding controlled

substances. Further, throughout the

proceedings before Judge Tenney, the

Respondent did not acknowledge any

possibility of questionable conduct in

his prescribing practices, to include his

treatment of the CI, DT, or the Officer.

The Deputy Administrator was provided

no basis to conclude that the

Respondent would lawfully handle

controlled substances in the future.

Revocation is the appropriate remedy

under such circumstances. See Leo R.

Miller, M.D., 53 FR 21932 (1988) (noting

that the revocation of a DEA Certificate

of Registration ‘‘is a remedial measure,

based upon the public interest and the

necessity to protect the public from

those individuals who have misused

* * * their DEA Certificate of

Registration and who have not

presented sufficient mitigating evidence

to assure the Administrator that they

can be trusted with the responsibility

carried by such a registration’’); see also

Konstantin v. DEA, 1955 U.S. App.

Lexis 3005 (9th Cir. 1995) (holding that

the Administrator did not abuse his

discretion in increasing the sanction

imposed on Dr. Konstantin); River

Forest Pharmacy, Inc. v. DEA, 501 F.2d

1202 (7th Cir. 1974), (holding that the

Acting Administrator’s increase of

sanction over that recommended by the

Administrative Law Judge was not an

abuse of discretion).

Further, the Deputy Administrator

notes that he has discretionary authority

to request that the Administrative Law

Judge reopen the record to receive

newly discovered evidence on the basis

that a final order must be issued based

upon a full and fair record. See 5 U.S.C.

556; 21 U.S.C. 824(c); 21 CFR 1316.67.

However, to prevail on such a motion,

the moving party must show that the

evidence sought to be introduced (1)

was previously unavailable and (2)

would be material and relevant to the

matters in dispute. See, e.g., I.N.S. v.

Abudu, 485 U.S. 94, 108 S.Ct. 904, 99

L.Ed. 2d 90 (1988) (finding that a

motion to reopen an administrative

record is analogous to ‘‘a motion for a

new trial in a criminal case on the basis

of newly discovered evidence, as to

which courts have uniformly held that

the moving party bears a heavy

burden’’); see generally, Charles H.

Koch, Jr., Administrative Law and

Practice, 6.74 (1995 & Supp. 1996) and

cases cited therein.

Here, the Respondent has requested to

reopen the record so that he can submit

enumerated items of evidence. Yet he

does not assert whether or not any of

this evidence was unavailable to him

prior to the closing of the record, and he

does not provide any assertions as to the

relevancy of the proposed evidence.

However, the Deputy Administrator has

considered these issues and makes the

following findings.

As for the request to reopen the record

so that the Respondent can explore the

credibility of DT and AP, the Deputy

Administrator finds that the Respondent

had adequate notice and opportunity

prehearing to explore their credibility.

DT was even available at the hearing,

but the Respondent did not call him. As

to AP’s criminal record, the Detective

testified that AP had such a record.

Also, the Respondent was notified

prehearing that AP could be contacted

through her probation officer. Given the
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Notices 24813

Respondent’s prehearing opportunities,

the Deputy Administrator finds that the

Respondent has failed to satisfy the

burden necessary to reopen the record

on this basis.

Next, the Respondent seeks to reopen

the evidence in order to cross examine

a witness, HH, concerning her drug

dealing activities during her association

with the Respondent in the summer of

1992. However, the facts concerning her

involvement, and subissues involving

other employees of the Respondent,

were not relied upon by Judge Tenney

nor by the Deputy Administrator in

reaching a determination of this case.

Further, the Respondent does not

provide a basis for asserting that HH’s

credibility would be material in

resolving this matter. Therefore, the

Deputy Administrator concludes that

such impeachment evidence would not

be relevant so as to provide a basis to

reopen the record.

Next, the Respondent seeks to reopen

the evidence in order to present

testimony from other physicians, whom

he claims will testify about being

deceived by the CI when they

prescribed controlled substances to her

during the relevant period of 1992. The

Deputy Administrator notes that the

Respondent had access to this

information prehearing, for he

introduced into the record the

prescription survey which identified the

prescribing physicians, and he testified

concerning his interview of some of

these physicians. Further, the

Respondent did not assert that the

testimony of these physicians was

previously unavailable. Therefore, the

Respondent has failed to meet the

requirements to reopen the record on

this basis.

The Respondent also asserted that the

Roswell police intentionally destroyed

or disposed of exculpatory evidence, to

include a tape recording of the CI’s and

the Respondent’s telephone

conversations on September 17, 1992,

and on October 1, 1992, and the

transcript of the transaction that

occurred on October 1, 1992, when the

Respondent refused to provide the CI

with a prescription for Xanax. Yet the

Deputy Administrator notes that there is

no dispute that the Respondent refused

to provide the CI with a Xanax

prescription on October 1, 1992.

Further, the Respondent presented no

evidentiary basis for his belief of

intentional destruction of evidence. He

also failed to demonstrate how the

evidence he now proposes to introduce

into the record on this point would be

material. Therefore, the Respondent

failed to meet his burden in reopening

the record on this basis.

Finally, the Respondent asserts that

the transcripts of the tape recordings

from the September 23, 1992,

transaction were not accurate. Yet the

Respondent had access to the tape

recordings and the transcripts well

before the hearing in this matter. Again,

the Respondent failed to establish the

requisite basis for reopening the record.

Accordingly, the Deputy Administrator

denies the Respondent’s motion to

reopen the record.

Both the Respondent and the

Government filed exceptions to Judge

Tenney’s opinion, and the Deputy

Administrator has considered these

exceptions. The exceptions were

extensive, are a part of the record, and

accordingly shall not be restated at

length herein.

However, the Deputy Administrator

finds no merit in the Respondent’s

exceptions, for the Respondent merely

reargued his case and his interpretation

of the credibility and sufficiency of the

evidence of record. For example, as to

the incident on October 20, 1992,

involving the Respondent, AP, and CI,

the Respondent takes exception to Judge

Tenney’s conclusion that the

Respondent provided a prescription in

the name of AP for the CI’s use. The

Respondent argues that it is significant

that the transcript reflects that all of the

statements relied upon by Judge Tenney

originated from the CI, not the

Respondent. What is significant is the

Respondent’s actions in light of the CI’s

statements, not his dialogue.

Specifically, despite the CI’s language

indicating her intent regarding the

prescription, the Respondent issued the

prescription in AP’s name, thus

providing the CI with the means to

facilitate her intention. As previously

written, the Deputy Administrator has

considered the Respondent’s arguments

and found that they were not

persuasive.

Likewise, the Deputy Administrator

finds that the Government’s exception

to Judge Tenney’s finding concerning

the Agent in 1985 also lacked merit. The

Deputy Administrator notes that the

conversations between the Agent and

the Respondent, and the interpretation

of the meaning of those conversations,

were strongly contested issues. Since

the transactions occurred over ten years

prior to the hearing in this matter, the

Record demonstrates that the Agent’s

recollection and resulting testimony

before Judge Tenney understandably

lacked precision. Although tape

recordings and transcripts were made at

the time, the DEA destroyed them in the

normal course of business. Therefore,

the Deputy Administrator agrees with

Judge Tenney, that ‘‘[a] tape or

transcript of the undercover visits,

revealing the precise language used by

[the Agent] and the Respondent would

be critical in determining whether the

medication was legitimately

prescribed.’’ Given the state of the

record, Judge Tenney concluded, and

the Deputy Administrator concurs, that

‘‘a preponderance of the evidence does

not support a finding that the

medication was prescribed to the Agent

for an illegitimate purpose.’’

Accordingly, the Deputy

Administrator of the Drug Enforcement

Administration, pursuant to the

authority vested in him by 21 U.S.C.

823, and 28 CFR 0.100(b) and 0.104,

hereby orders that DEA Certificate of

Registration, AG6243125, previously

issued to Robert M. Golden, M.D. be,

and it hereby is, revoked, and any

pending applications are hereby denied.

This order is effective June 17, 1996.

Dated: May 10, 1996.

Stephen H. Greene,

Deputy Administrator.

[FR Doc. 96–12231 Filed 5–15–96; 8:45 am]

BILLING CODE 4410–09–M

[DEA # 147F]

Controlled Substances: 1996

Aggregate Production Quotas

AGENCY: Drug Enforcement

Administration (DEA), Justice.

ACTION: Notice of final revised 1996

aggregate production quotas.

SUMMARY: The interim notice (61 FR

14336, April 1, 1996) which established

revised 1996 aggregate production

quotas for amobarbital and

hydromorphone, Schedule II controlled

substances, as required under the

Controlled Substances Act (CSA) (21

U.S.C. 826), is adopted without change.

DATES: This order is effective on May

16, 1996.

FOR FURTHER INFORMATION CONTACT:

Howard McClain, Jr., Chief, Drug and

Chemical Evaluation Section, Drug

Enforcement Administration,

Washington, DC 20537, (202) 307–7183.

SUPPLEMENTARY INFORMATION: Section

306 of the Controlled Substances Act,

(21 U.S.C. 826), requires the Attorney

General to establish aggregate

production quotas for controlled

substances in Schedules I and II each

year. This responsibility has been

delegated to the Administrator of the

DEA pursuant to Section 0.100 of Title

28 of the Code of Federal Regulations.

The Administrator in turn, has

redelegated this function to the Deputy

Administrator of the DEA pursuant to