[Federal Register Volume 61, Number 19 (Monday, January 29, 1996)]
[Notices]
[Pages 2841-2847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1559]
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DEPARTMENT OF JUSTICE
[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
[[Page 2842]]
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 Sec. 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,
[[Page 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 post-probation 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
[[Page 2844]]
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
[[Page 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. Sec. 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. Sec. 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.
Sec. 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
[[Page 2846]]
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 re-enter 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. Sec. 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
self-admitted 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
[[Page 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
