2840 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Notices

hours, Monday through Friday within

30 days following the meeting.

Dated: January 19, 1996.

Gary Edwards,

Assistant Director—Fisheries; Co-Chair,

Atlantic Coastal Fisheries Cooperative

Management Act Coordination Committee.

[FR Doc. 96–1126 Filed 1–26–96; 8:45 am]

BILLING CODE 4310–55–M

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

Earl A. Humphreys, M.D.; Revocation

of Registration

On April 12, 1995, the Deputy

Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration (DEA), issued an Order

to Show Cause to Earl A. Humphreys,

M.D., (Respondent) of Pittsburgh,

Pennsylvania, notifying him of an

opportunity to show cause as to why

DEA should not revoke his DEA

Certificate of Registration, AH1675252,

under 21 U.S.C. 824(a)(4), and deny any

pending application under 21 U.S.C.

823(f), as being inconsistent with the

public interest. Specifically, the Order

to Show Cause alleged that ‘‘from the

early 1980s to mid-1993, [the

Respondent] prescribed controlled

substances to at least four individuals

without a legitimate medical need and

with knowledge that these individuals

were not the ultimate recipients of the

controlled substances.’’

On May 1, 1995, the Respondent,

through counsel, filed a reply to the

show cause order (Reply), waiving his

hearing right and providing a factual

response to the allegations in the show

cause order. Accordingly, the Deputy

Administrator now enters his final order

in this matter pursuant to 21 C.F.R.

1301.54(e), 1301.57, without a hearing

and based on the investigative file and

the written Reply submitted by the

Respondent.

The Deputy Administrator finds that

the Respondent is licensed to practice

medicine and surgery in the

Commonwealth of Pennsylvania,

specializing in gastroenterology and

internal medicine. He is registered as a

practitioner with the DEA, AH1675252,

to handle Schedules II through V

controlled substances. In his Reply, the

Respondent wrote that he had been in

practice for thirty-five years, and ‘‘I have

not had a mark against my record.’’

The Respondent was the personal

physician and friend of Justice Rolf

Larsen of the Pennsylvania Supreme

Court. Justice Larsen was charged with

27 state felony counts for obtaining

controlled substances by fraud, deceit,

and subterfuge. At a pre-trial hearing,

the Respondent had testified that

beginning in 1981 and continuing until

1993, he had issued prescriptions for

Schedule IV controlled substances

intended for Justice Larsen’s use, but he

had issued the prescriptions in the

name of third-parties. Specifically,

during this time he wrote approximately

34 prescriptions for Valium, diazepam,

Ativan, and Serax in the names of two

of Justice Larsen’s secretaries and one

law clerk. The Respondent had never

met these individuals, and they were

not his patients. The three named

individuals testified at the pre-trial

hearing that in each instance they had

picked up the filled prescription at a

local pharmacy, had delivered the

medication to Justice Larsen, and in no

case had they taken the prescribed

medications themselves. The

Respondent was not paid for issuing

these prescriptions.

During this time, Justice Larsen was

being treated by either a psychologist or

a psychiatrist, but the Respondent was

his family physician. The Respondent

testified that he examined Justice Larsen

about every six months, but not

necessarily prior to issuing each of the

prescriptions. Rather, Justice Larsen

would telephone the Respondent and

tell him what substances he wanted and

in whose name to issue the prescription.

The Respondent would then comply

with his patient’s request. The

Respondent also testified that he was

aware of Justice Larsen’s diagnosed

condition, to include clinical depression

and anxiety, and that it was the

Respondent’s belief that every

medication he prescribed for Justice

Larsen was for a legitimate medical

purpose. The Respondent testified that

he had prescribed the substances in

legitimate medical dosage amounts and

at appropriate time intervals. He stated

that he prescribed these controlled

substances in this manner in order to

preserve his patient’s privacy, for ‘‘[t]he

public doesn’t have to know what

medications he’s taking. That’s my job

to provide privacy for him.’’ However,

the Respondent was not aware of any

prescriptions issued to Justice Larsen by

his treating psychiatrist or psychologist,

and he had not coordinated his

prescribing with any of his patient’s

other care providers.

In the Reply, the Respondent’s

attorney wrote that ‘‘[t]he facts

developed during [Justice Larsen’s] trial

showed that for a period of many years

a local newspaper * * * had carried

stories relating not just to Justice

Larsen’s judicial conduct, but to his

family and personal matters * * * So

that, it was not simply the normal need

for privacy that all psychiatric patients

have, but the enlarged need caused by

the political nature of these facts.

Testimony at trial showed that

psychiatric patients suffer a stigma in

society, and that public figures bear [an]

even greater burden.’’ The Respondent

also wrote that during the trial, Justice

Larsen’s psychiatrist and neurologist

had testifed that ‘‘they probably would

have done the same thing * * * [that]

it is common practice, especially in

psychiatric patients, to do this. There

have been dire consequences where this

privacy has been broken.’’ However, the

trial transcript from Justice Larsen’s trial

was not a part of the investigative

record, and the Respondent did not

attach a copy of the referenced sections

to his Reply.

On September 14, 1995, the

Pennsylvania Bureau of Professional

and Occupational Affairs (Bureau) filed

formal disciplinary charges and a show

cause order against the Respondent. The

Bureau’s charges focused upon the

Respondent’s prescribing practices to

Justice Larsen between March 1981 and

March 1993, noting that he had

prescribed controlled substances to four

named individuals who were not his

patients and had not received treatment

from him. Further, the Bureau alleged

that the Respondent had failed to

conduct physical examinations and reevaluations concurrent with the issuing

of prescriptions to Justice Larsen, and

that the records the Respondent

maintained pertaining to Justice Larsen

were incomplete and inaccurate. The

order also asserts that the Respondent’s

actions were ‘‘unprofessional’’ and

departed from or failed to conform to

‘‘an ethical or quality standard of the

profession.’’ The order also states that if

found, these violations of Pennsylvania

law and regulations would result in

civil penalties to include fines and the

revocation of his medical license.

However, the results of this proposed

State action are not reflected in the

investigative file or in the Respondent’s

Reply.

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) requires that the

following factors be considered.

(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.
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Notices 2841

(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. Schwartz, Jr., M.D., Docket No.

88–42, 54 FR 16,422 (1989).

In this case, factors one, two, four,

and five are relevant in determining

whether the Respondent’s continued

registration would be inconsistent with

the public interest. As to factor one,

‘‘recommendation of the appropriate

State licensing board,’’ the Pennsylvania

Bureau has issued an extensive and

comprehensive show cause order

alleging that the Respondent has

engaged in a twelve year pattern of

prescribing controlled substances to

individuals who were not his patients.

The Bureau asserted that such conduct,

if found, would violate state law and

regulations, potentially justifying

revocation of his medical license and

imposition of a fine for each instance of

such behavior. However, the result of

this show cause order is not contained

in the record reviewed at this time by

the Deputy Administrator. Therefore,

although relevant that the Bureau, after

investigating the Respondent’s conduct,

initiated disciplinary action, the Deputy

Administrator has weighed the State’s

actions accordingly, remaining aware

that the Bureau has merely asserted

allegations, and that the outcome of the

State’s actions remains unknown.

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,’’ the

investigative file clearly alleges, and the

Respondent has not denied, that he

engaged in a course of conduct over a

twelve year period which clearly

violated federal regulations promulgated

pursuant to the Controlled Substances

Act. Specifically, 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 C.F.R.

1306.04(a); see also Harlan J.

Borcherding, D.O, 60 FR 28,796, 28,798

(1995). The Respondent’s issuing

prescriptions for controlled substances

to individuals unknown to him and not

under his medical care would not meet

this criteria. Further, the Respondent’s

prescribing of controlled substances to

Justice Larsen merely upon his request,

without seeing him, examining him, or

otherwise making a medical evaluation

prior to issuing the prescription,

demonstrated behavior such that the

patient’s demands seemed to replace the

physician’s judgment. The Deputy

Administrator has previously found that

prescriptions issued under such

circumstances were not a legitimate

medical purpose: for example, when an

undercover officer dictated the

controlled substance to be given, ‘‘rather

than Respondent, as a practitioner,

determining the medication appropriate

for the medical condition presented by

the officer.’’ Ibid. Such uncontroverted

actions on the part of the Respondent

are preponderating evidence that he has

dispensed controlled substances in

violation of federal law.

As to factor five, ‘‘[s]uch other

conduct which may threaten the public

health or safety,’’ the Deputy

Administrator finds significant that the

Respondent, in issuing controlled

substance prescriptions for the use of

Justice Larsen, failed to coordinate these

prescriptions with his patient’s other

care providers. Although, in the normal

course of prescribing, safeguards may

exist at pharmacies to prevent overprescribing of controlled substances to a

single patient, in this case, since the

prescriptions were not issued in the

patient’s name, such safeguards would

fail to identify this patient as a recipient

of multiple, controlled substances

prescriptions.

Further, the public was at risk from

the potential for diversion of controlled

substances by both the patient who

could have received, undetected,

multiple prescriptions for controlled

substances, and the named individuals

who were prescribed controlled

substances without a legitimate medical

need. The very safeguards established to

prevent such dangers were

circumvented by the Respondent’s

practice. Although evidence exists to

show that diversion, in this case, did

not occur, the potential remained over

a twelve year period for such abuse, and

this potential created a threat to the

public interest, as well as to the safety

of this individual patient. Therefore, the

Deputy Administrator finds that the

public interest is best served by

revoking the Respondent’s DEA

Certificate of Registration at this time.

The Respondent is certainly free to

reapply for a Certificate of Registration

and to provide information which

would assure the Deputy Administrator

that the Respondent’s future prescribing

practices would not pose a threat to 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 DEA Certificate of

Registration, AH1675252, issued to Earl

A. Humphreys, M.D. be, and it hereby

is, revoked, and any pending

applications for renewal of said

registration are denied. This order is

effective February 28, 1996.

Dated: January 23, 1996.

Stephen H. Greene,

Deputy Administrator.

[FR Doc. 96–1560 Filed 1–26–96; 8:45 am]

BILLING CODE 4410–09–M

[Docket No. 94–19]

Terrence E. Murphy, M.D.; Revocation

of Registration

On November 30, 1993, the Deputy

Assistant Administrator (then Director),

Office of Diversion Control, Drug

Enforcement Administration (DEA),

issued an Order to Show Cause to

Terrence E. Murphy, M.D., (Respondent)

of Tulsa, Oklahoma, notifying him of an

opportunity to show cause as to why

DEA should not revoke his DEA

Certificate of Registration, AM2822876,

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

pending applications for renewal of his

registration as a practitioner under 21

U.S.C. 823(f), as being consistent with

the public interest. Specifically, the

Order to Show Cause alleged that:

1. [The Respondent’s] continued

registration would be inconsistent with the

public interest, as that term is used in 21

U.S.C. 823(f) and 824(a)(4), as evidenced by,

but not limited to, the following:

a. Effective October 26, 1988, the State of

Alabama, Alabama State Board of Medical

Examiners, Medical Licensure Commission

(Alabama Board) suspended [the

Respondent’s] medical license for one year

and, thereafter, placed [his] medical license

on indefinite probation.

b. [The Respondent] materially falsified an

application for a controlled substance license

to the Oklahoma Board of Narcotics and

Dangerous Drugs, submitted by [the

Respondent] on June 20, 1990, by indicating

on such application that [he] never had a

previous registration suspended, when, in

fact, [his] Alabama medical license had been

suspended by the Alabama Board, effective

October 26, 1988. [The Respondent] also

materially falsified such application by

answering that [he] had never been

physiologically or psychologically addicted

to controlled dangerous substances, when, in