Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Notices 28895

each new AFPRD member no later than

ten (10) days after it is admitted to

membership, and thereafter annually

until five (5) years after the date of entry

of the Final Judgment. Section V(D)

requires the AFPRD to distribute within

sixty (60) days from the entry of the

Final Judgment, a copy of the Final

Judgment and this Competitive Impact

Statement to all directors and officers of

defendant, and Section V(E) requires

defendant to distribute in a timely

manner a copy of the Final Judgment

and Competitive Impact Statement to

any successor directors and officers in

the future.

Under Section V(F), the defendant

must brief annually in writing or orally

its directors and officers or their

successors on the meaning and

requirements of this final Judgment and

the antitrust laws, including penalties

for violating them, and under Section

V(G), obtain from those persons annual

written certifications that they (1) have

read, understand, and agree to abide by

this Final Judgment, (2) understand that

their noncompliance with this final

Judgment may result in conviction for

criminal contempt of court and

imprisonment and/or fine, and (3) have

reported all violations of this Final

Judgment of which they are aware to

counsel for defendant. Section V(H)

requires defendant to maintain for

inspection by plaintiff a record of

recipients to whom the Final Judgment

and Competitive Impact Statement have

been distributed and from whom annual

written certifications regarding the Final

Judgment have been received.

Section VI of the proposed Final

Judgment requires the defendant to

certify its compliance with specified

obligations of Section V(A) and (B).

Section VII sets forth procedures by

which plaintiff may obtain access to

information needed to determine or

secure defendant’s compliance with the

proposed Final Judgment. Finally,

Section IX provides that the Judgment

will expire ten (10) years after the date

of its entry.

C. Effect of the Proposed Final Judgment

on Competition

The relief in the proposed Final

Judgment is designed to remedy the

violation alleged in the Complaint and

prevent its recurrence. The Complaint

alleges that the AFPRD violated Section

1 of the Sherman Act by agreeing upon

and establishing guidelines to govern

resident recruiting that restrained

competition among family practice

residency programs to employ family

practice residents.

The proposed Final Judgment

eliminates the restraint on competition

among family practice residency

programs by enjoining the AFPRD from

prohibiting its members from engaging

in these competitive recruiting

practices, and from adopting any

guidelines, code of ethics, or other rules

which prohibit these practices or which

state or imply that they are unethical.

The proposed Final Judgment also

requires the AFPRD to withdraw the

provisions from its current Guidelines

that prohibit these resident recruiting

practices and to notify its members that

it has done so.

The proposed Final Judgment

contains provisions adequate to prevent

further violations of the type upon

which the Complaint is based and to

remedy the effects of the alleged

conspiracy. The proposed Final

Judgment’s injunctions will restore the

benefits of free and open competition to

the market for the services of family

practice residents.

IV

Alternative to the Proposed Final

Judgment

The alternative to the proposed Final

Judgment would be a full trial on the

merits of the case. In the view of the

Department of Justice, such a trial

would involve substantial costs to the

United States and defendant and is not

warranted because the proposed Final

Judgment provides all of the relief

necessary to remedy the violation of the

Sherman Act alleged in the Complaint.

V

Remedies Available To Private Litigants

Section 4 of the Clayton Act, 15

U.S.C. 15, provides that any person who

has been injured as a result of conduct

prohibited by the antitrust laws may

bring suit in federal court to recover

three times the damages suffered, as

well as costs and a reasonable attorney’s

fee. Entry of the proposed Final

Judgment will neither impair nor assist

in the bringing of such actions. Under

the provisions of Section 5(a) of the

Clayton Act, 15 U.S.C. 16(a), the

proposed Final Judgment has no prima

facie effect in any subsequent lawsuit

that may be brought against the

defendant in this matter.

VI

Procedures Available for Modification of

the Proposed Final Judgment

As provided by Sections 2 (b) and (d)

of the APPA, 15 U.S.C. 16(b) and (d),

any person believing that the proposed

Final judgment should be modified may

submit written comments to Gail Kursh,

Chief; Health Care Task Force; United

States Department of Justice; Antitrust

Division; 325 Seventh Street, NW; Room

400; Washington, DC 20530, within the

60-day period provided by the Act. All

comments received, and the

Government’s responses to them, will be

filed with the Court and published in

the Federal Register. All comments will

be given due consideration by the

Department of Justice, which remains

free, pursuant to Paragraph 2 of the

Stipulation, to withdraw its consent to

the proposed Final Judgment at any

time before its entry, if the Department

should determine that some

modification of the Final Judgment is

necessary to protect the public interest.

Moreover, Section VIII of the proposed

Final Judgment provides that the Court

will retain jurisdiction over this action,

and that the parties may apply to the

Court for such orders as may be

necessary or appropriate for the

modification, interpretation, or

enforcement of the proposed Final

Judgment.

VII

Determinative Documents

No materials and documents of the

type described in Section 2(b) of the

APPA, 15 U.S.C. 16(b), were considered

in formulating the proposed Final

Judgment. Consequently, none are filed

herewith.

Respectfully submitted,

Mark J. Botti,

Attorney.

William E. Berlin,

Attorneys, Antitrust Division, U.S. Dept. of

Justice, 325 Seventh Street, N.W., Room 450,

Washington, D.C. 20530, (202) 307–0827.

Alleen S. Venbebber,

Deputy U.S. Attorney, Missouri Bar No.

41460, 1201 Walnut St., Suite 2300, Kansas

City, Missouri 64106, (816) 426–3130.

[FR Doc. 96–14075 Filed 6–5–96; 8:45 am]

BILLING CODE 4410–01–M

Drug Enforcement Administration

Jerry Neil Rand, M.D.; Denial of

Registration

On September 5, 1995, the Deputy

Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration (DEA), issued an Order

to Show Cause to Jerry Neil Rand, M.D.,

(Respondent) of San Diego, California,

notifying him of an opportunity to show

cause as to why DEA should not deny

his application for a DEA Certificate of

Registration, under 21 U.S.C. 823(f), as

being inconsistent with the public

interest. Specifically, the Order to Show

Cause alleged, in relevant part, that in
28896 Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Notices

January of 1995, an investigation by

DEA revealed that on numerous

occasions the Respondent used

prescription blanks presigned by other

physicians to treat his patients, falsified

patient charts in which he had

prescribed controlled substances, and

stored controlled substances

surrendered by his patients in his desk

drawer.

The Order was mailed in the U.S.

Mail, one copy to the Respondent and

one copy to his attorney, and a signed

receipt dated September 15, 1995, was

returned from the Respondent, and a

second receipt dated September 11,

1995, was returned from the

Respondent’s attorney to DEA.

However, neither the Respondent nor

anyone purporting to represent him has

replied to the Order to Show Cause.

More than thirty days have passed since

the Order was served upon the

Respondent. Therefore, pursuant to 21

CFR 1301.54(d), the Deputy

Administrator finds that the Respondent

has waived his opportunity for a hearing

on the issues raised by the Order to

Show Cause, and, after considering the

investigative file, enters his final order

in this matter without a hearing

pursuant to 21 CFR 1301.54(e) and

1301.57.

The Deputy Administrator finds that

by order dated February 4, 1994, the

Acting Administrator of DEA had

previously denied the Respondent’s

application for registration after finding

that the Respondent had engaged in

conduct inconsistent with the public

interest. Jerry Neil Rand, M.D., 59 FR

6302 (1994). Specifically, by a jointlystipulated decision and order of the

Medical Board of California, dated

September 25, 1989, the Respondent

substantially admitted that he had been

diagnosed as drug dependent; that as a

result of his usage of controlled

substances or dangerous drugs, he had

‘‘become a danger to himself, other

persons or the public, or has impaired

his ability to practice his profession

safely’’; that he had treated a patient

while intoxicated; that he had failed to

adequately supervise physician

assistants by signing blank prescription

forms; and that between 1985 and 1986

he had provided incompetent and

grossly negligent medical care to five

patients. As a result of the Medical

Board’s decision, the Respondent’s

medical license was revoked, but the

revocation was stayed, and his license

was placed on probation for five years.

Conditions of probation included

requirements that the Respondent (1)

enter into a drug rehabilitation program,

(2) abstain from the personal use or

possession of controlled substances

unless such substances were lawfully

prescribed to him for a bona fide illness

by another practitioner, and (3) obey all

Federal, State, and local laws. Finally,

the DEA’s final order noted that:

Judge Bittner further found that as a result

of his personal abuse of controlled

substances, the Respondent abrogated his

professional responsibilities as a physician

and his responsibilities as a DEA registrant;

that he was hospitalized three times for

substance abuse; voluntarily surrendered his

previous DEA registration; and had his State

medical license placed on probation for a

period of five years. The administrative law

judge concluded that there is a lawful basis

for denying the Respondent’s application.

Id. at 6303. The Acting Administrator

substantially concurred with Judge

Bittner’s findings of fact and

conclusions of law, but disagreed with

her finding that the Respondent was

unlikely to abuse controlled substances

or the privileges of a registrant in the

future. The Acting Administrator

concluded that the Respondent’s

rehabilitative efforts at that time were

not sufficiently complete to ensure that

he would not succumb to the pressures

of abusing controlled substances, and he

denied the Respondent’s application.

Ibid. The Respondent appealed the

Acting Administrator’s final decision to

the Ninth Circuit Court of Appeals.

While the appeal was still pending,

the Respondent again applied for a DEA

Certificate of Registration. In response to

his application, the local DEA office

conducted an inquiry, and a Diversion

Investigator served a Notice of

Inspection upon a local pharmacy. This

inspection and subsequent investigation

revealed that from January of 1994

through January of 1995, the

Respondent had prescribed Schedule III

and Schedule IV controlled substances

by using presigned prescription forms

belonging to a Dr. S. When interviewed,

Dr. S. admitted that he did not see

patients at the Respondent’s clinic. He

stated that he did go there occasionally

to review medical charts of the

Respondent’s patients, noting that these

patients had received prescriptions for

controlled substances reflecting Dr. S’s

DEA number. Dr. S. also admitted that

he had prescription pads printed up

with his name, his DEA Certificate of

Registration Number, and the

Respondent’s clinic’s address. He then

presigned these prescriptions for the

Respondent’s use. He also stated that

the Respondent would use his DEA

registration number for call-in

prescriptions as well, but that he

believed the Respondent called him

every time he used his registration

number and told him what he was

prescribing. However, Dr. S. admitted

that he did not examine or otherwise

meet or interact with the Respondent’s

patients receiving controlled substances

in this matter. Further, prescriptions

retrieved from two local pharmacies,

dated between January 10, 1994, and

January 4, 1995, revealed that the

Respondent prescribed 570 dosage units

of Schedule III controlled substances

and 220 dosage units of Schedule IV

controlled substances using Dr. S’s

registration number.

DEA investigators also received

information from a former employee of

the Respondent’s, who stated that some

of the Respondent’s patients had

surrendered controlled substances to the

Respondent as part of their treatment,

and that the Respondent had stored

those substances in his desk drawer.

Further, the former employee stated that

he/she witnessed the Respondent and

his brother alter patients’ charts so that

both the Respondent’s and Dr. S’s

initials appeared in the chart.

Specifically, the employee observed the

Respondent and his brother (1) copy Dr.

S’s initials, (2) cut and paste the copied

initials into the charts for patients who

had been prescribed controlled

substances, (3) recopy the affected

pages, and (4) reinsert the copied pages

into the chart to replace the original

chart page.

When DEA investigators contacted the

Respondent’s brother, he confirmed that

he worked with the Respondent. He also

stated that he was aware of the

Respondent’s use of Dr. S’s presigned

prescription pads.

The investigative file also contained

documentation showing that the

Respondent’s medical license had been

cleared of all restrictions as of

September 25, 1994. Further, letters

from colleagues demonstrated that the

Respondent has continued to

successfully recover from his drug

addiction problem, and that he has

successfully returned to the practice of

medicine, with an emphasis on treating

patients with addictive disorders and

problems. One colleague wrote on June

6, 1995, that, while working in a

psychiatric hospital, the Respondent

followed all regulations and standards

that apply to his privileges, and that he

did not prescribe or order controlled

substances at that institution, ‘‘as this is

currently a restriction upon his practice

of medicine.’’ He also wrote that he has

‘‘the utmost respect for Dr. Rand as a

caring, extremely knowledgeable and

competent physician, as well as an

individual successfully recovering from

the disease of addiction himself.’’‘

Pursuant to 21 U.S.C. 823(f), the

Deputy Administrator may deny an

application for registration if he
Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Notices 28897

determines that such registration would

be inconsistent with the public interest.

In determining 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.

(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., 54 FR 16422

(1989).

In this case, factors one, two, four,

and five are relevant in determining

whether the Respondent’s registration

would be inconsistent with the public

interest. As to factor one,

‘‘recommendation of the appropriate

State licensing board,’’ the file does not

contain a response from the Medical

Board relevant to the Respondent’s

latest conduct. The file does reflect that

the Medical Board reinstated the

Respondent’s medical license without

restrictions on September 25, 1994.

However, the Deputy Administrator

also finds it significant that the recent

DEA investigation revealed that the

Respondent actually violated the terms

of the Medical Board’s order in 1994.

Specifically, the Respondent had agreed

to obey all Federal and State laws, and

he had agreed not to possess controlled

substances unless such substances were

prescribed for his personal use by

another practitioner. Yet as early as

January of 1994, the Respondent

prescribed controlled substances to

patients by using another physician’s

DEA registration number, in violation of

the Controlled Substances Act. Further,

the Respondent took possession of

controlled substances from his patients

and stored them in his desk, all in

violation of the terms of his probation,

which did not end until September of

1994.

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

Deputy Administrator finds it

significant that in 1994 and 1995, the

Respondent engaged in conduct in

violation of the Controlled Substances

Act. Specifically, 21 U.S.C. 843 (a)(2)

provides that ‘‘[i]t shall be unlawful for

any person knowingly or intentionally—

* * * (2) to use in the course of * * *

distribution, or dispensing of a

controlled substance * * * a

registration number which is * * *

issued to another person.’’ Here, the

Respondent used the registration

number of another person, Dr. S., to

prescribe controlled substances to

patients who were not seen or treated by

Dr. S., in violation of the Controlled

Substances Act. See also 21 CFR

1306.03 (‘‘A prescription for a

controlled substance may be issued only

by an individual practitioner who is

* * * either registered or exempted

from registration * * *’’). Further,

when he stored controlled substances in

his desk, the Respondent violated DEA

regulatory provisions governing the

permissible methods of storing

controlled substances in order to

prevent the unlawful diversion of such

drugs. See 21 CFR 1301.75, Physical

Security Controls for Practitioners.

Thus, this unregistered Respondent’s

total disregard for the statutory and

regulatory provisions governing the

handling of controlled substances

indicates that he cannot be entrusted

with a DEA registration. See generally,

Jude R. Hayes, M.D., 59 FR 41785

(1994).

As to factor five, ‘‘[s]uch other

conduct which may threaten the public

health or safety,’’ the Deputy

Administrator finds it significant that

the Respondent falsified patient records

by adding the initials of Dr. S. to the

patients’ charts, when Dr. S. had neither

seen nor treated the patients. Such

falsification of records to conceal the

Respondent’s unlawful prescribing

practices also serves as a basis for the

Deputy Administrator’s conclusion that

the public interest is best served by

denying the Respondent’s application

for a DEA Certificate of Registration.

The Deputy Administrator

acknowledges that the record contains

letters from the Respondent’s

colleagues, noting his continued

sobriety and adherence to his substance

abuse treatment program. Such behavior

is commendable. However, the

Respondent’s recent acts of falsifying

patients’ records and prescribing

controlled substances without a DEA

Certificate of Registration indicate that

the public interest is still better served

by denying the Respondent’s

application for registration at this time.

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 C.F.R. 0.100(b) and

0.104, hereby orders that the application

of Jerry Neil Rand, M.D., be, and it

hereby is, denied. This order is effective

July 8, 1996.

Dated: May 31, 1996.

Stephen H. Greene,

Deputy Administrator.

[FR Doc. 96–14131 Filed 6–5–96; 8:45 am]

BILLING CODE 4410–09–M

Federal Bureau of Investigation

DNA Advisory Board Meeting

Pursuant to the provisions of the

Federal Advisory Committee Act, notice

is hereby given that the DNA Advisory

Board (DAB) will meet on June 20 and

21, 1996, from 9:00 am until 5:00 pm on

June 20, 1996, and from 8:00 am until

1:30 pm on June 21, 1996. The meeting

will be held at the Financial Center

Marriott Hotel, 85 West Street, New

York, NY 10006. All attendees will be

admitted only after displaying personal

identification which bears a photograph

of the attendee.

The DAB’s scope of authority is: To

develop, and if appropriate, periodically

revise, recommended standards for

quality assurance to the Director of the

FBI, including standards for testing the

proficiency of forensic laboratories, and

forensic analysts, in conducting analysis

of DNA; To recommend standards to the

Director of the FBI which specify

criteria for quality assurance and

proficiency tests to be applied to the

various types of DNA analysis used by

forensic laboratories, including

statistical and population genetics

issues affecting the evaluation of the

frequency of occurrence of DNA profiles

calculated from pertinent population

database(s); To recommend standards

for acceptance of DNA profiles in the

FBI’s Combined DNA Index System

(CODIS) which take account of relevant

privacy, law enforcement and technical

issues; and, To make recommendations

for a system for grading proficiency

testing performance to determine

whether a laboratory is performing

acceptably.

The topics to be discussed at this

meeting include: a presentation by the

American Society of Crime Laboratory

Directors’ Laboratory Accreditation

Board; review and discussion of the

National Research Council’s Second

Report on DNA; Forensic DNA Testing