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
2842 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Notices

fact, the Jay Hospital, located in Jay[,]

Florida, terminated [his] staff privileges at

that facility based upon [his] excessive use of

drugs, narcotics, alcohol, chemicals or other

substances which rendered [him] unable to

practice medicine with reasonable skill and

safety to patients. Shortly thereafter [he]

entered a drug treatment program for

impaired physicians in the State of Florida

and [he was] diagnosed as being in the early

stages of substance abuse.

2. [The Respondent] materially falsified an

application for a DEA Certificate of

Registration, submitted by [him] on

December 27, 1990, by indicating on such

application that [he] had never had a State

professional license or controlled substance

registration suspended, denied, restricted or

placed on probation, when, in fact, the

Alabama Board suspended [his] medical

license and placed [his] license on indefinite

probation thereafter, effective October 26,

1988. 21 U.S.C. 824(a)(1).

On December 28, 1993, the

Respondent, through counsel, filed a

timely request for a hearing, and

following prehearing procedures, a

hearing was held in Tulsa, Oklahoma,

on November 1–2, 1994, 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

March 2, 1995, Judge Tenney issued his

Findings of Fact, Conclusions of Law,

and Recommended Ruling,

recommending that the Deputy

Administrator permit the Respondent to

retain his DEA Certificate of Registration

in spite of the violation of 21 U.S.C.

824(a)(1), but that he issue a formal

reprimand. Both parties filed exceptions

to Judge Tenney’s decision, and on

April 11, 1995, Judge Tenney

transmitted the record of these

proceedings to the Deputy

Administrator.

The Deputy Administrator has

considered the record in its entirety and

the filings of the parties, 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,

except to the extent noted below, the

Findings of Fact, Conclusions of Law

and Recommended Ruling of the

Administrative Law Judge, 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

the parties stipulated that the

Respondent is a physician who

possesses an unrestricted license to

practice medicine in the State of

Oklahoma. Further, as of the time of the

hearing before Judge Tenney, the

Oklahoma Board of Medical Licensure

(Oklahoma Board) did not have any

disciplinary proceedings pending

against the Respondent, had not

recommended that any action be taken

against the Respondent’s registrations

by the DEA or the Oklahoma Bureau of

Narcotics and Dangerous drugs, and

neither party has filed any information

indicating that such proceedings or

recommendations have been

subsequently made by the Oklahoma

Board.

In the mid-1980’s, the Respondent

moved to Alabama and obtained an

Alabama medical license. However, in

July 1987, the Respondent moved to Jay,

Florida, where he became licensed and

practiced medicine until December

1987, when his staff privileges at the Jay

Hospital were revoked. Conflicting

evidence was admitted concerning

allegations that the Respondent abused

substances while practicing medicine at

the Jay Hospital. The Respondent

testified that, in an attempt to clear up

these allegations, he had admitted

himself into the Friary on the Shore

(Friary), a substance abuse treatment

center. He stayed there from January 18–

20, 1988, but left despite the

recommendation for inpatient

treatment. According to Friary medical

records, the Respondent had admitted to

occasional alcohol use, use of Lorcet for

neck pain, use of marijuana while in

college, and occasional use of cocaine

during his medical residency. The

records further indicated that the

Respondent’s wife believed he took

antidepressants and benzodiazepines. A

psychologist at the Friary had

concluded that the Respondent

appeared to have

many of the compulsive, stressful, addictive

personality traits that are often present

among individuals who are prone to

medicating psychological problems with

psychoactive substances. He is likely to be a

very unreliable reporter regarding addictive

behavior, as are most individuals with the

disease of chemical dependency. This

complicates his current diagnosis with regard

to addictive illness. However, on the basis of

his life history and his denial of his

responsibility for the situation in which he

finds himself, intensive psychotherapy is

recommended.

The psychologist gave the diagnostic

impression of ‘‘[p]sychoactive substance

abuse, including cannabis, cocaine,

amphetamines, and possible other

substances.’’ However, Dr. Perillo, to

whom the Respondent was referred by

the Friary on January 19, 1988, had

concluded that there was ‘‘[p]ossible

chemical dependency and abuse, by

history,’’ and that he could not ‘‘say

with any certainty that this person has

a definite substance abuse problem.’’

On October 11, 1988, the Respondent

and the Alabama State Board of Medical

Examiners (Alabama Board) entered into

a stipulation in which the Respondent

agreed, inter alia, that he had prescribed

controlled substances to various

individuals identified in an

administrative complaint, but he denied

that any of these prescriptions were for

anything other than a legitimate medical

purpose. However, he neither admitted

nor denied the allegations set forth in

the administrative complaint as follows:

32. Knowingly permitting the dispensation

of controlled substances to multiple patients

from his medical office while he was absent

from the State of Alabama.

33. Failure to appear before the Board of

Medical Examiners for an interview per the

Board’s request.

34. In January 1988, summary suspension

of medical staff privileges at a Florida

hospital based for, inter alia, failure to

maintain adequate medical standards, for

engaging in disruptive behavior, for ‘‘the

reasonable belief of physical impairment

which may adversely affect patient care’’, for

using inappropriate clinical judgment, and

for patient and staff loss of confidence.

35. Substance abuse.

36(b). Intentional avoidance of service of

an order for blood and urine samples for a

drug screen.

36(c). From February to May, 1988, writing

prescriptions for ‘‘office use’’ in violation of

federal regulations.

37. Continuation in practice of the

Respondent would constitute an immediate

danger to [the Respondent’s] patients and to

the public.

In the stipulation, the Alabama Board

agreed to a disposition of the allegations

‘‘without the necessity of making any

further findings of fact or adjudications

of fact with respect to these allegations,’’

and the Respondent agreed to submit to

blood and urine sampling for a drug

screen, which tested negative. Although

the Alabama administrative complaint

contained allegations of substance abuse

by the Respondent, he neither denied

nor admitted the allegations, and they

were never formally adjudicated.

On October 26, 1988, by which time

the Respondent had ceased practicing

medicine in Alabama, a consent order

was entered, in which the Chairman of

the Medical Licensure Commission of

Alabama found that sanctions were

authorized against the Respondent

because he had ‘‘committed multiple

violations of § 34–24–360(8), Code of

Alabama, 1975’’ (prescribing,

dispensing, furnishing or supplying

controlled substances to persons for

other than a legitimate medical

purpose). Further, the order provided

that the Respondent’s license to practice

medicine was suspended for one year,
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Notices 2843

after which the license would be on

indefinite probation, and the

Respondent would need express,

written permission from the Medical

Licensure Commission to re-engage in

the practice of medicine in Alabama. As

a condition precedent to re-entering

medical practice in Alabama, the

Respondent also had to voluntarily

admit himself to a substance abuse

program approved in advance in writing

by the State Board of Medical

Examiners, and successfully complete

all inpatient or residential treatment

recommended by the supervising

physician. Even if the Respondent

became authorized to re-enter medical

practice in Alabama, ‘‘the Alabama

Controlled Substances Registration

Certificate of the Respondent shall be

limited to Schedules IV and V.’’ Also,

the Respondent was ordered to pay a

$500.00 fine. In 1989, the Respondent

requested the termination of his

probation in Alabama, but on March 19,

1990, the Licensure Commission denied

his request, finding that there had been

‘‘insufficient objective evidence

submitted to reasonably satisfy the

Commission that [the Respondent] has

complied with the Consent Order.’’

Further, after an administration

proceeding was held by the Florida

Department of Professional Regulation,

a final order dated February 12, 1991,

was issued by the Florida Board of

Medicine, finding that the Respondent

had violated a Florida statute by having

his license to practice medicine

revoked, suspended, or otherwise acted

against by the Alabama licensing

authority, and ordered the Respondent

to pay a $500.00 fine and, if the

Respondent sought reactivation of his

Florida license, ordering it to be placed

on probation with the terms and

conditions to be set by the Board.

On October 24, 1988, the Respondent

voluntarily submitted to the jurisdiction

of the Oklahoma Board, and he agreed

to a five-year probation on an Oklahoma

Supervised Medical Doctor Certificate

with numerous terms and conditions,

including inter alia that during the

probational period: (1) He would not

‘‘prescribe, administer or dispense any

medications for his personal use, to

specifically include controlled

dangerous substances’’; (2) he would

‘‘take no medication except that which

is authorized by a physician treating

him for a legitimate medical need’’ and

that he would ‘‘inform any physician

treating him of allegations made

concerning [his] previous use of

controlled dangerous substances’’; (3) he

would ‘‘submit biological fluid

specimens * * * for analysis’’; (4) he

would ‘‘continue under psychiatric care

and shall authorize said treating

physician to report to the Board

quarterly on [his] progress, and [he]

shall continue all supportive programs

and therapy recommended thereby’’; (5)

he would ‘‘not prescribe, administer or

dispense any Schedule drugs or

controlled dangerous substances, until

authorized by the Board.’’ The

Respondent, however, made clear that

his agreement was not ‘‘to be construed

as an admission * * * of any

allegations made against him by

licensing authorities in any other State,

all material allegations of which are

expressly denied.’’ On January 13, 1990,

the Respondent’s application for

reinstatement with the Oklahoma Board

as a licensed physician and surgeon was

granted and he was placed on probation

for a period of three years.

However, on May 24, 1990, the

Oklahoma Board issued an order

restoring an unrestricted medical

license to the Respondent. The Board

found that the Respondent had fulfilled

the terms and conditions of his

probation, and that he ‘‘could function

as a medical doctor with an unmodified

license without endangering public

health, safety, or welfare.’’ Yet the Order

also stated: ‘‘In the event Dr. Murphy

returns to active practice in Oklahoma,

he will appear before the Oklahoma

Board and comply with any terms and

conditions imposed at that time, if any,

and will submit to the normal postprobation visit by the Board staff,’’

including the requirement that the

Respondent submit to random blood

and urine analysis. From August 3,

1988, until June 1989, the Respondent

submitted random blood and urine

samples for analysis to Gary K. Borrell,

M.D., a physician appointed by the

Oklahoma Board, with all test results

being negative. Further, the Respondent

submitted into evidence an affidavit

from Dr. Borrell, attesting that he had

never ‘‘observed any of the physical

symptoms that [he] would identify as

indicative of an abstinence syndrome or

of drug withdrawal[, nor any]

indications that [he] would interpret as

acute toxicity from a substance of

abuse.’’ Dr. Borrell also opined that the

Respondent was not ‘‘physiologically

addicted’’ to any substance.

On June 11, 1990, the Respondent

executed an application for registration

with the Oklahoma State Bureau of

Narcotics and Dangerous Drugs Control

(Oklahoma Bureau) for authorization to

handle controlled substances. Questions

seven and eight of that application state:

7. Has a previous registration held by the

applicant under any name or corporate or

legal entity, been surrendered, revoked,

suspended, denied or is such action pending?

8. Have you ever been physiologically or

psychologically addicted to controlled

dangerous substances?

The Respondent had answered ‘‘No’’ to

both questions. At the hearing before

Judge Tenney, the Respondent

explained that he had provided the

negative response because he read the

question as distinguishing between

‘‘license’’ and ‘‘registration’’, and since

his Oklahoma Bureau registration had

not been suspended, he thought the

correct answer was ‘‘No.’’ The

Respondent denied any drug use

without a prescription since his

‘‘college’’ days.

On August 10, 1990, the Oklahoma

Bureau issued an order to show cause to

the Respondent, referencing his answers

to questions seven and eight, and on

September 12, 1990, the Oklahoma

Bureau and the Respondent entered into

a stipulation. The Stipulation listed as

findings of fact the Oklahoma Board’s

actions against the Respondent’s

medical license, and concluded as a

matter of law that ‘‘by virtue of the

action of the Oklahoma State Board of

Medical Licensure and Supervision, [the

Respondent] has had a restriction or

limitation placed upon his professional

license’’, and that ‘‘upon such a finding,

the Director of the Oklahoma State

Bureau of Narcotics and Dangerous

Drugs Control shall deny a request for

registration. * * *’’ The stipulation

then recommended that the

Respondent’s request for registration be

denied until September 15, 1990, ‘‘after

which time he may be registered.’’ The

Oklahoma Bureau then issued an order

reflecting the terms of the stipulation.

On October 3, 1984, DEA Certificate

of Registration AM2822876 was

assigned to the Respondent. The

Respondent executed a renewal

application for this registration on

December 27, 1990, in which he

answered ‘‘No’’ to the following

question:

2b. Has the applicant ever been convicted

of a crime in connection with controlled

substances under State or Federal law, or

ever surrendered or had a Federal controlled

substance registration revoked, suspended,

restricted or denied, or ever had a State

professional license or controlled substance

registration revoked, suspended, denied,

restricted or placed on probation?

On January 11, 1991, the DEA renewed

the Respondent’s Certificate of

Registration AM2822876, for a period of

three years.

At the hearing before Judge Tenney,

the Respondent’s mother testified that

when the Respondent had received the

renewal application, the deadline was

imminent, so he signed the blank form

and she then filled in the application
2844 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Notices

and mailed it. Further, she stated she

knew that her son had had problems

with his medical license but not with

‘‘his drug licensing,’’ which was the

subject of the application. She also

testified that she never intended to

deceive the DEA by responding ‘‘No’’ to

the question on the form now in

dispute.

The Respondent testified before Judge

Tenney, explaining that his mother’s

recollection of events was consistent

with his memory of how the December

1990 DEA renewal application had been

completed. He stated he still found

question 2(b) to be confusing, but that

he had not intended to deceive the DEA

about his licensing problems in

Alabama and Florida. The Respondent

further testified that he had signed the

form before his mother had prepared it,

and that he had not discussed the

application with his mother. ‘‘I don’t

discuss these things hardly at all. I go

to work. I work seven days a week as a

doctor. I work 100 hours a week. I don’t

sit around worrying about these

applications.’’ However, when

examined concerning the specific

question, the Respondent testified that

he did not remember telling the DEA

Investigator that he had thought

question 2(b) only applied to a

conviction. He stated, ‘‘Now, I don’t

have a transcript of what I said to [the

DEA Investigator], and I don’t remember

if I said that or not, I can just remember

that—you know, that was 1990; it is

1994 now * * *. I can just remember

the general gist of it. I didn’t think I

filled it out wrong, and I didn’t intend

to fill it out wrong.’’ When asked: ‘‘Well,

if [the DEA Investigator], then, indicates

that you told her that it only applies to

a conviction, would you challenge her

assertion? The Respondent stated: ‘‘I

would challenge anybody’s memory

four years later. Yes, I would.’’

However, the DEA Investigator

testified that when she questioned the

Respondent concerning question 2(b),

he had first argued with her concerning

the actual content of the question. After

the Investigator had another investigator

read the question from the application

to him, then the Respondent stated that

‘‘it hadn’t been his intent to defraud or

to lie, falsify his application * * * he

basically said he thought the question

had said convictions.’’

Regarding the Respondent’s

application before the Oklahoma Bureau

and the resulting show cause order, the

Investigator testified that the

Respondent had informed her that he

had never had any problems with the

Oklahoma Bureau. However, when

questioned further, the Respondent had

told the Investigator that his attorney

had taken care of any problems relating

to that application.

Between July 26 and August 3, 1992,

the Respondent began working at the

Physicians Injury Clinic (Clinic), located

at 3015 East Skelly Drive, Tulsa,

Oklahoma. Prior to that date, the

Respondent had worked at a medical

facility located at 1412 North Robinson

Road, Oklahoma City, Oklahoma. On

August 6, 1992, personnel from the

Clinic’s corporate headquarters, located

in Oklahoma City, placed an order for

controlled substances with a

pharmaceutical distributor using the

Respondent’s DEA number. The order

was to be delivered to the Skelly Drive

clinic, where the Respondent was then

the only physician. However, the

address listed on the Respondent’s DEA

Certificate of Registration was the

Robinson Road address.

At the request of the distributor,

personnel at the Clinic’s headquarters

sent a facsimile of the Respondent’s

DEA registration and a copy of a letter

dated July 22, 1992, from the Clinic to

the DEA, requesting that the

Respondent’s registration be changed to

the Skelly Drive location. On August 11,

1992, a representative of the distributor

telephoned a DEA Diversion

Investigator to verify whether the

change of address had been approved,

and that Investigator informed the

representative that the Respondent was

still registered at Robinson Road and

that the shipment could not be sent to

the unregistered location. Subsequently,

on August 25, 1992, DEA investigators

took a notice of inspection to the Clinic,

and the Clinic’s office manager

consented to an inspection, which was

supervised by the Diversion

Investigator. The office manager, in

response to questions asked by the DEA

investigators, took the investigators to

‘‘a locked cabinet in a locked room,’’

which contained various Schedules III

and IV controlled substances. At the

time of the search, the office manager

explained to the Investigator that the

substances ‘‘belonged to the clinic,’’ and

no evidence was produced to indicate

when the substances had been placed in

the cabinet. The Clinic is not registered

by the DEA or the Oklahoma Bureau to

handle controlled substances. An

inventory was conducted, and the

controlled substances were sealed until

the Respondent’s registration change of

address was approved by the DEA on

October 9, 1992. After such approval,

DEA representatives returned to the

clinic, unsealed the controlled

substances, found no signs of tampering

and, after conducting another inventory,

found that all of the substances were

still there.

At the hearing before Judge Tenney,

the Diversion Investigator testified that

in approximately ten to twenty percent

of the cases where a distributor calls to

verify a potential purchaser’s address,

the DEA registration contains an

outdated address. He then stated that he

had never recommended revocation of a

DEA Certificate of Registration on that

basis alone. Another Investigator

testified that personnel at the Clinic had

placed the order, and that she had not

discovered any evidence to indicate that

the Respondent had personally placed

such an order.

On January 12, 1994, the Respondent

executed a subsequent DEA renewal

application to keep his registration

active during the course of these

proceedings. In filling out the

application, the Respondent testified

that he had sought the advice of counsel

to ensure that all responses were

correct. In response to question 2(b),

which was answered incorrectly on the

previous renewal application, the

Respondent now correctly answered

‘‘Yes.’’ In a comment block, the

Respondent wrote, inter alia: ‘‘In

summary, I hold a license to practice in

Oklahoma. I have appeared before the

Oklahoma State Bureau of Narcotics and

Dangerous Drugs Control, who

thoroughly investigated all of the

previous allegations of Florida and

Alabama and dismissed the Show Cause

Order prior to the hearing. I have been

found eligible for licensing in Oklahoma

for the past six years.’’ On this

application, the Respondent did

indicate his new address in Hartshorne,

Oklahoma, although the Respondent

had been living in Hartshorne since

November 1993.

Initially, 21 U.S.C. 824(a)(1) states:

(a) A registration pursuant to section 823

of this title to * * * distribute, or dispense

a controlled substance may be suspended or

revoked * * * upon a finding that the

registrant—

(1) has materially falsified any application

filed pursuant to or required by this

subchapter * * *

Thus, as Judge Tenney noted, the

Deputy Administrator may revoke or

suspend the Respondent’s registration

upon a showing that he ‘‘materially

falsified’’ any application filed pursuant

to the applicable Controlled Substances

Act provisions. Here, the Deputy

Administrator concurs with Judge

Tenney’s finding that the Government

did establish a prima facie case under

21 U.S.C. 824(a)(1). Specifically, the

appropriate test in determining whether

the Respondent materially falsified any

application is whether the Respondent

‘‘knew or should have known’’ that he

submitted a false application. See Bobby
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Notices 2845

Watts, M.D., 58 Fed. Reg. 46,995 (1993);

accord Herbert J. Robinson, M.D., 59

Fed Reg. 6,304 (1994).

Here, written on the Respondent’s

1990 DEA renewal application was a

false answer to question 2(b), for the

answer failed to acknowledge the

adverse actions taken in Alabama and

Florida against his professional license.

In determining that such a false answer

was also materially false, Judge Tenney

wrote in his opinion at 29–30:

The incorrect response to question 2(b) is

clearly ‘‘material.’’ As noted by counsel for

the Respondent in his closing argument, if

the Respondent correctly had checked ‘‘YES’’

to the question, that would have been a red

flag to [the] DEA to go check with the [State]

licensing authorities. . . . Cf. . . . Gonzales

v. United States, 286 F.2d 118, 120 (10th Cir.

1960) (addressing a statute concerning

‘‘material false statements. . . ., i.e.,

statements that could affect or influence the

exercise of a government function’’), cert.

denied, 365 U.S. 878, 81 S. Ct. 1028, 6 L.Ed.

2d 190 (1961).

The Respondent attempted to mitigate

this falsification by presenting evidence

that his mother had completed the

application after he had signed it, and

she had mailed it without his reviewing

the completed form. However, the

Deputy Administrator agrees with Judge

Tenney’s conclusion: ‘‘This lack of

attention, or inattention, was the

predominant reason for the wrong

statement, and the Respondent ‘should

have known’ of the inaccuracy.’’

Further, in an analogous case in which

a practitioner blamed an application

falsification upon a dental nurse who

had assisted him in filling out the

application, the Administrator of the

DEA had held the practitioner

responsible, finding it noteworthy that

the practitioner signed his name to the

application. Robert L. Vogler, D.D.S., 58

Fed. Reg. 51,385 (1993).

Next, the Respondent argued that the

DEA had failed to comply fully with the

licensing requirements of the

Administrative Procedure Act (APA)

before initiating this administrative

proceeding, and thus the DEA would be

precluded from acting upon his

registration. Specifically, the

Respondent argued that 5 U.S.C.

§ 558(c) requires DEA to provide him

with prior written notice and an

opportunity to correct his application

errors, and that the DEA had failed to

meet these requirements.

Section 558(c) provides in relevant

part:

Except in cases of willfulness or those in

which public health, interest, or safety

requires otherwise, the . . . suspension, [or]

revocation . . . of a license is lawful only if,

before the institution of agency proceedings

therefor, the licensee has been given—

(1) Notice by the agency in writing of the

facts or conduct which may warrant the

action; and

(2) Opportunity to demonstrate or achieve

compliance with all lawful requirements.

However, on this issue, the Deputy

Administrator concurs with Judge

Tenney’s analysis and conclusion:

To the extent that 5 U.S.C. § 558 applies to

the instant proceeding, the Respondent

overlooks the ‘‘willfulness’’ exception to

section 558’s requirement of written notice

and an opportunity to achieve compliance. In

cases of ‘‘willfulness,’’ the registrant is not

given ‘‘another chance’’ to achieve

compliance. . . . It is concluded that the

material falsification in the instant case,

which resulted because the Respondent

grossly neglected his obligation to be

truthful, is tantamount to ‘‘willfulness’’

under 5 U.S.C. § 558(c). The DEA, therefore,

was not required to give the Respondent

written notice and an opportunity to correct

the renewal application before initiating this

proceeding.

Further, the Respondent argued in his

response to the Government’s

exceptions, that ‘‘ ‘Willfulness’ means a

voluntary, intentional violation of a

known legal duty,’’ requiring actual

knowledge, and not the lesser standard

of ‘‘should have known.’’ However,

cases interpreting the meaning of

‘‘willful’’ as used in the APA have noted

that the term is often used ‘‘to

characterize conduct marked by careless

disregard’’ of statutory requirements.

Eastman Produce Co. v. Benson, 278

F.2d 606, 609 (3d Cir. 1960); see, e.g.,

Biological Resources, Inc., 55 Fed. Reg.

30,752 (Health and Human Services

1990) (noting that a ‘‘number of cases

that have considered the meaning of

willfulness in license revocation

proceedings have noted that willful

conduct can be found either when a

person intentionally does a prohibited

act or when a person acts with careless

disregard of statutory requirements’’).

The Deputy Administrator finds that the

Respondent’s conduct was ‘‘willful,’’ for

he acted with ‘‘careless disregard’’ for

the statutory and regulatory

requirements when he submitted his

1990 DEA renewal application with the

incorrect response to question 2(b).

Thus, the Deputy Administrator agrees

with Judge Tenney, that DEA’s

subsequent actions did not violate 5

U.S.C. 558.

Next, pursuant to 21 U.S.C. 823(f) and

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

revoke a DEA Certificate of Registration,

or deny a pending application for

registration, 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.

(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 Fed. Reg. 16,422 (1989).

In this case, factors one, two, four,

and five are relevant in determining

whether the Respondent’s certificate

should be revoked and any pending

application denied as being inconsistent

with the public interest. As to factor

one, ‘‘recommendation of the

appropriate State licensing board,’’ the

Government argued that actions taken

against the Respondent’s medical

licenses in Alabama, Florida, and

Oklahoma, as well as the suspension of

his Oklahoma Bureau registration,

support a finding that State licensing

board’s recommendations lead to a

conclusion adverse to the Respondent’s

retention of his DEA registration. Judge

Tenney disagreed with this proposition,

finding instead that the Alabama and

Florida adverse actions were five years

old, and the factual bases for such

action were ‘‘sketchy at best.’’ Further,

Judge Tenney found more persuasive

the fact that Oklahoma authorities had

granted the Respondent an unrestricted

medical license and an unrestricted

controlled substances registration, and

that since 1990, there have been no

negative allegations nor pending

disciplinary proceedings against the

Respondent. Thus, Judge Tenney

concluded that ‘‘the whole evidence

supports a favorable ‘recommendation

[by] the appropriate State licensing

board or professional disciplinary

authority.’ ’’

Here, although the Deputy

Administrator agrees with Judge

Tenney’s factual findings, he disagrees

with his conclusion. For the Deputy

Administrator also finds significant that

in the 1988 Alabama Consent Order, the

Respondent’s license was placed on

indefinite probation, and that as a
2846 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Notices

condition precedent for his receiving a

medical license, the Respondent had to

voluntarily admit himself to a substance

abuse program and successfully

complete it. Further, even if the

Respondent became authorized to reenter medical practice in Alabama, his

controlled substances registration would

remain limited to Schedules IV and V.

Also, in 1990, the Alabama Licensure

Commission denied the Respondent’s

request for termination of his probation,

noting ‘‘insufficient objective evidence

submitted to reasonably satisfy the

Commission that [the Respondent] has

complied with the Consent Order.’’

Similarly, in 1991, the Florida Board

ordered that, if the Respondent sought

reactivation of his Florida license, such

reinstatement would result in his

receiving a probationary license with

the terms and conditions to be set by the

Board. Therefore, two States

recommend, after investigating

allegations of misconduct, that

probationary requirements be levied

against the Respondent’s medical

license, with stated conditions to be met

in Alabama before even a probationary

license would be issued.

As to factor two, the Respondent’s

‘‘experience in dispening * * *

controlled substances,’’ the Deputy

Administrator agrees with Judge

Tenney’s findings and conclusions. The

Government noted that the Alabama

Medical Board had found that the

Respondent had allowed his staff to

administer and prescribe controlled

substances in his absence, and that the

Respondent had abused drugs. The

Government then argued that such

conduct was adverse to the public

interest.

However, Judge Tenney concluded

that a preponderance of the evidence

failed to support this contention.

Specifically, the evidence of improper

dispensing of controlled substances

merely consisted of a finding in the

Alabama administrative complaint,

which led to a consent order in which

the Respondent ‘‘neither admitted nor

denied’’ the factual allegations. No

further adjudication of the facts was

conducted. Based on this limited

evidence of record, Judge Tenney

concluded that ‘‘I too am unable to find

with any substantiality that the

Respondent allowed his staff to

administer and prescribe controlled

substances in his absence.’’

Furthermore, no other evidence of

record supports a finding that the

Respondent was unlawfully dispensing

controlled substances.

As to the allegation of the

Respondent’s drug abuse, Judge Tenney

found that ‘‘[i]n sum, there was some

evidence of occasional past drug abuse,

but no persuasive evidence indicative of

drug use or abuse during the last decade

that would threaten the current public

interest under 21 U.S.C. 823(f)(2).’’

Although the Deputy Administrator

does not condone the Respondent’s past

conduct of admitted unlawful drug use,

he agrees with Judge Tenney’s

conclusion. For the Respondent’s drug

screenings from August 1988 to May

1990 were negative, and no contrary

evidence was submitted to show drug

abuse from 1990 to 1994.

As to factor four, the Respondent’s

‘‘[c]ompliance with applicable State,

Federal, or local laws relating to

controlled substances,’’ Judge Tenney

found that the Respondent had violated

a Federal regulation related to

controlled substances, 21 C.F.R.

§ 1301.61. Specifically, the Respondent

‘‘should have determined whether the

July 22, 1992, request by the [Clinic] to

modify his registration address had been

approved by the DEA before operating at

Skelly Drive.’’ The Deputy

Administrator agrees with this finding.

However, Judge Tenney found several

mitigating facts, such as the fact that the

July 22 letter was generated prior to the

Respondent’s first day of work at the

Clinic, that there was no evidence of

diversion of controlled substances from

the unregistered office at Skelly Drive,

and that the DEA Investigator had never

recommended revocation of a DEA

registration on the basis of a failure to

timely update an address.

Although the Deputy Administrator

acknowledges these mitigating facts, he

also finds relevant the fact that the

Alabama Consent Order found sanctions

authorized because, inter alia, the

Respondent had committed multiple

violations of the Code of Alabama

Section 34–24–360(8) pertaining to the

prescribing, dispensing, furnishing or

supplying of controlled substances to

persons for other than a legitimate

medical purpose. Although the facts

presented in the record are inadequate

to determine the specific conduct

underlying such a conclusion, it is still

significant under factor four that a State

licensing board found that the

Respondent’s conduct resulted in

multiple violations of the State’s

controlled substances statute.

As to factor five, ‘‘[s]uch other

conduct which may threaten the public

health or safety,’’ the Government

argued that the Respondent’s lack of

candor raised doubts as to his suitability

for DEA registration. However, the

Deputy Administrator agrees with Judge

Tenney’s finding concerning the

Respondent’s change of address request

to DEA. The Government failed to

present preponderating evidence that

the Respondent was less than candid

when he denied placing the controlled

substances order for the Clinic prior to

receiving the change of address

approval from the DEA. Judge Tenney

found that the Respondent’s testimony

on this point was credible and was

corroborated by the testimony of the

Clinic’s office manager.

Further, Judge Tenney found as

mitigating evidence, the Respondent’s

subsequent DEA renewal application

with the correct answer to question 2(b).

However, it is also significant that in the

comment section of this 1994

application, the Respondent wrote that

he had been ‘‘eligible for licensing in

Oklahoma for the past six years.’’ Yet

the Respondent failed to disclose that

from 1988 to 1990 he had an Oklahoma

Supervised Medical Doctor Certificate

with numerous terms and conditions, to

include that he would ‘‘not prescribe,

administer or dispense any Schedule

drugs or controlled dangerous

substances, until authorized by the

Board.’’ Again, the Respondent has

failed to be candid in his renewal

application by stating he was ‘‘eligible

for’’ his license, when in fact he knew

that for two of the six years he

referenced, his eligibility had relevant

restrictions. Although his response may

not reach the level of ‘‘material

falsification’’, it certainly failed to

disclose significant, relevant

information. As noted by the

Administrator in Bobby Watts, supra:

‘‘Since DEA must rely on the

truthfulness of information supplied by

applicants in registering them to handle

controlled substances, falsification

cannot be tolerated.’’ Here, the

Respondent’s lack of candor makes

questionable his commitment to DEA

regulatory requirements fostered to

protect the public from the diversion of

controlled substances.

Further, the Respondent has failed to

take responsibility for his past conduct.

The Deputy Administrator finds

significant that the Alabama Board

required the Respondent to successfully

complete a substance abuse treatment

program before reinstating his medical

license, even on a probationary basis.

Further, when the respondent selfadmitted himself into the Friary for

evaluation, a psychologist had

concluded that intensive psychotherapy

was recommended based, not only upon

the Respondent’s addictive personality

traits, but also upon the facts that (1) he

was a ‘‘very unreliable reporter

regarding addictive behavior, as are

most individuals with the disease of

chemical dependency,’’ and (2) ‘‘his

denial of his responsibility for the
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Notices 2847

situation in which he finds himself.’’.

However, the record discloses that the

Respondent did not follow this advice

and enter the Friary or any other

treatment program, and the record

contains no evidence that he has since

sought such treatment.

Also significant was the Respondent’s

failure to acknowledge his

responsibility to review his DEA

renewal application before submission,

instead he testified in 1994 that ‘‘I don’t

sit around worrying about these

applications.’’ The Deputy

Administrator agrees with the

Government attorney that such conduct

raises grave doubts as to the

Respondent’s commitment to precise

regulatory compliance in the future, a

commitment needed to meet the

responsibilities of a DEA registration for

the handling of controlled substances.

Therefore, after reviewing the entire

record, the Deputy Administrator finds

that the public interest is best served by

revoking the Respondent’s DEA

Certificate of Registration and denying

any pending application. The

Respondent’s violations of statutory and

regulatory provisions, his admitted past

drug abuse and the lack of evidence that

the Respondent completed a substance

abuse treatment program as

recommended by the Alabama Board

and treating physicians at the Friary,

and his continuing failure to take

responsibility for compliance with DEA

regulatory requirements, support a

finding that the public interest is best

served by revoking his registration and

denying any pending applications 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 DEA

Certificate of Registration AM2822876

issued to Terrence E. Murphy, 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. 96–1559 Filed 1–26–96; 8:45 am]

BILLING CODE 4410–09–M

NATIONAL SCIENCE FOUNDATION

Special Emphasis Panel in

Mathematical Sciences; Notice of

Meeting

In accordance with the Federal

Advisory Committee Act (Pub. L. 92–

463, as amended), the National Science

Foundation announces the following

meeting.

Name and Committee Code: Special

Emphasis in Mathematical Sciences (1204).

Date and Time: February 12–13, 1996; 8:30

a.m. until 5:00 p.m.

Place: Room 340, National Science

Foundation, 4201 Wilson Boulevard,

Arlington, VA 22230.

Type of Meeting: Closed.

Contact Person: Dr. Kichoon Yang,

Program Director, National Science

Foundation, 4201 Wilson Boulevard,

Arlington, VA 22230. Telephone: (703) 306–

1881.

Purpose of Meeting: To provide advice and

recommendations concerning proposals

submitted to NSF for financial support.

Agenda: To review and evaluate the

Analysis Program nominations/applications

as part of the selection process for awards.

Reason for Closing: The proposals being

reviewed include information of a

proprietary or confidential nature, including

technical information; financial data, such as

salaries and personal information concerning

individuals associated with the proposals.

These matters are exempt under 5 U.S.C.

552b(c) (4) and (6) of the Government in the

Sunshine Act.

Dated: January 23, 1996.

M. Rebecca Winkler,

Committee Management Officer.

[FR Doc. 96–1450 Filed 1–26–96; 8:45 am]

BILLING CODE 7555–01–M

NUCLEAR REGULATORY

COMMISSION

Availability of the Revision 1 to the

License Application Review Plan for a

Geologic Repository for Spent Nuclear

Fuel and High-Level Radioactive

Waste—Draft Review Plan

AGENCY: Nuclear Regulatory

Commission.

ACTION: Notice of availability.

SUMMARY: The Nuclear Regulatory

Commission is announcing the

availability of Revision 1 to NUREG–

1323, ‘‘The License Application Review

Plan for a Geologic Repository for Spent

Nuclear Fuel and High-Level

Radioactive Waste—Draft Review Plan.’’

ADDRESSES: Copies of NUREG–1323,

Revision 1 can be purchased from the

Superintendent of Documents, U.S.

Government Printing Office, P.O. Box

37082, Washington, D.C. 20402–9328.

Copies are also available from the

National Technical Information Service,

5285 Port Royal Road, Springfield, VA

22161–0002. A copy of NUREG–1323,

Revision 1 is available for public

inspection and/or copying at the NRC

Public Document Room, 2120 L Street

(Lower Level), N.W., Washington, D.C.

20555–0001.

FOR FURTHER INFORMATION CONTACT:

Sandra L. Wastler, High-Level Waste

and Uranium Recovery Projects Branch,

Division of Waste Management, Office

of Nuclear Safety and Safeguards,

Nuclear Regulatory Commission, 11545

Rockville Pike, MD 20852. Telephone:

(301) 415–6724.

SUPPLEMENTARY INFORMATION: The

License Application Review Plan

(LARP) provides guidance to the NRC

staff who will review the U.S.

Department of Energy’s (DOE’s) license

application to construct a mined

geologic repository for the disposal of

spent nuclear fuel and other high-level

radioactive waste at Yucca Mountain,

Nevada. The LARP is intended to ensure

the quality and uniformity of the staff

reviews and establishes the appropriate

review priorities, and presents a welldefined base from which to evaluate

proposed changes in the scope and

requirements of the staff reviews.

Because it is a public document, it will

also make available to DOE and other

interested parties information on the

staff’s review process so that they may

better understand the review strategies,

procedures, and acceptance criteria that

the staff will use.

The LARP, Revision 0 was issued in

September, 1994. Revision 0

represented the staff’s initial efforts in

developing the LARP and was

comprised of both completed and

outlined individual review plans. The

LARP was and continues to be,

however, a work in progress. This draft

version, designated Revision 1,

represents the staff’s latest efforts in the

development of the LARP and includes

12 newly completed review plans.

Appendix D provides a status of the

development of the individual review

plans.

Dated at Rockville, Maryland, this 17th day

of January 1996.

For the Nuclear Regulatory Commission.

Joseph J. Holonich,

Chief, High-Level Waste and Uranium

Recovery Projects Branch, Division of Waste

Management, Office of Nuclear Material

Safety and Safeguard.

[FR Doc. 96–1523 Filed 1–26–96; 8:45 am]

BILLING CODE 7590–01–P