[Federal Register Volume 63, Number 203 (Wednesday, October 21, 1998)]
[Notices]
[Pages 56220-56223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28175]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 97-30]
Robert D. Iver, D.D.S. Continuation of Registration With
Restrictions
On August 8, 1997, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Robert D. Iver, D.D.S. (Respondent) of Miami
Beach, Florida, notifying him of an opportunity to show cause as to why
DEA should not revoke his DEA Certificate of Registration AI5413404,
and deny any pending applications for renewal of such registration,
pursuant to 21 U.S.C. 823(f), 824(a)(2) and 824(a)(4).
By letter dated August 21, 1997, Respondent, through counsel, filed
a timely request for a hearing, and following prehearing procedures, a
hearing was held in Fort Lauderdale, Florida on February 3, 1998,
before Administrative Law Judge Paul A. Tenney. At the hearing, both
parties called witnesses to testify and the Government introduced
documentary evidence. After the hearing, only the Government submitted
proposed findings of fact, conclusions of law and argument. On April 7,
1998, Judge Tenney issued his Opinion and Recommended Ruling, Findings
of Fact, Conclusions of Law and Decision, recommending that the Order
to Show Cause be vacated. On April 20, 1998, the Government filed
Exceptions to the Opinion and Recommended Ruling of the Administrative
Law Judge, and on May 11, 1998, Judge Tenney transmitted the record of
these proceedings to the Acting Deputy Administrator.
The Acting Deputy Administrator has considered the record in its
entirety, and pursuant to 21 C.F.R. 1316.67, hereby issues his final
order based upon findings of fact and conclusions of law as hereinafter
set forth.
The Acting Deputy Administrator finds that Respondent graduated
from
[[Page 56221]]
dental school in 1972 and has been in private practice since 1974.
Sometime in 1984 or 1985, Respondent began abusing cocaine and became
addicted. According to Respondent he used cocaine approximately every
six months.
In March 1998, Respondent was arrested as a result of a shooting
incident involving his wife. Respondent testified that he was free-
basing cocaine at the time of his arrest. Respondent underwent
inpatient evaluation and treatment, during which he admitted to prior
sporadic use of cocaine. On or about May 23, 1998, Respondent entered
into a contract with Florida's Physicians Recovery Network (PRN) which
he completed in June 1993. PRN is a program that monitors impaired
professionals and requires that individuals be evaluated and possibly
enter drug treatment. The program's monitoring includes random drug
screens.
On September 21, 1993, the PRN received a number of calls from
Respondent's wife indicating that Respondent was free-basing cocaine.
Also on this date, the local police were called to Respondent's
residence regarding a domestic violence complaint by Respondent's wife
who indicated that she and Respondent had been arguing over
Respondent's drug use.
At the hearing in this matter, Respondent's wife testified that
Respondent had been drug free since 1988, but she told police that
Respondent was using drugs because, ``[t]here's nothing worse for an
addict * * * to be using alone * * * and when one party is not using
and the other party is, there is a constant battle going on. And this
was my battle that evening, as I recall. He wouldn't use with me so I
implicated him as using. * * *''
The PRN ordered Respondent to submit to a professional evaluation,
and on September 24, 1993, he was admitted to a local hospital for an
inpatient evaluation. During that evaluation, Respondent tested
positive for cocaine and benzodiazepines. Respondent insisted that he
had not ingested any drugs, and later his wife admitted that she had
covertly added drugs to his food and drink.
The evaluating physician opined that Respondent was in relapse and
recommended that Respondent enter into another contract with the PRN.
Respondent began attending Alcoholics Anonymous or Narcotics Anonymous
meetings and professional support group meetings, but he refused to
enter into another contract with the PRN. According to the medical
director of the addiction treatment program at the hospital where
Respondent was evaluated, Respondent's refusal to sign a new contract
with the PRN was based upon the advice of Respondent's attorney.
On August 2, 1995, local police went to Respondent's residence
after receiving a call from Respondent's wife that he had suffered a
cocaine overdose. According to an incident report in evidence in this
proceeding, Respondent's wife told the officers that Respondent has
``gone crazy.'' The officers discovered Respondent naked and covered in
blood. In addition, the officers discovered a cocaine pipe, torch and
glass beaker, items that are commonly associated with free-basing
cocaine. Respondent was arrested and charged with two counts of
misdemeanor battery and one count of misdemeanor possession of drug
paraphernalia. On October 17, 1995, Respondent was found guilty in the
Dade County Court, Florida, of one count of use, possession,
manufacture, delivery, or advertisement of drug paraphernalia and one
count of battery following his nolo contendere plea. Adjudication was
deferred and he was sentenced to 12 months probation. As part of his
probation, Respondent was required to continue to participate in the
PRN.
At the hearing before Judge Tenney, Respondent explained that
``[o]n the night of August 2nd, my wife and I had been having a series
of tremendous fights and my wife was actively using drugs * * * I came
out of the shower and I saw her using, I got very, very upset, I ended
up getting severely cut on a mirror, that was blood all over the place.
* * *'' He further testified that his attorney advised him to plead
nolo contendere to the charges against him since, ``my wife was in
treatment for her drug addiction [and] that it would be unwise,, after
consulting with the people in the drug addiction program, to pull her
out, bring her into court. * * *''
On September 15, 1995, the State of Florida, Agency for Health Care
Administration issued an emergency order suspending Respondent's
license to practice dentistry. Thereafter, on October 20, 1995,
Respondent entered into a second PRN contract wherein he agreed that he
would be subject to random unannounced urine or blood screens; that he
would abstain from using all mood altering substances; that he would be
monitored by a physician; that he would attend Alcoholic Anonymous or
Narcotics anonymous meetings and professional support group meetings;
and that his wife would also enter a recovery program.
In January 1996, a hearing was held regarding Respondent's Florida
dental license. At the hearing, the medical director of the addiction
treatment center where Respondent was evaluated and the director of the
PRN both testified that Respondent is safe to practice dentistry as
long as he is monitored by the PRN and that he poses no danger to the
public's health, safety or welfare. On March 13, 1996, the State of
Florida, Agency for Health Care Administration, Board of Dentistry
(Board) issued a final order regarding Respondent's Florida dental
license. The Board reprimanded Respondent; ordered that his dental
license would remain suspended until September 14, 1996; and fined him
$6,000.00. The Board further ordered that upon reinstatement of
Respondent's dental license, his license will be on probation as long
as he practices dentistry in Florida. As a condition of his probation,
Respondent is required to remain under contract with the PRN.
At the hearing in this matter, Respondent's evaluating physician,
who is an expert in the field of additionology, testified that
Respondent did not have a full commitment to recovery from 1988 to
1993, but that now, ``[Respondent's] prognosis is very good. He has
around him a comprehensive support system that he is utilizing.''
According to the physician, Respondent is no longer in denial, he is in
the middle stage of recovery, and he has a 90% chance of not relapsing.
Respondent testified before Judge Tenney that in dealing with his
addition since August 1995, he has ``put my program back into full
swing.'' He attends approximately four to five Alcoholics Anonymous or
Narcotics Anonymous meetings per week, as well as his weekly
professional support group meeting and his PRN meeting. According to
Respondent, ``[b]eing in recovery had just turned my whole life back
around.''
Respondent testified that he needs his DEA registration ``for the
health and well-being of my patients.'' He further testified that he
has become very conservative in his dispensing of controlled substances
as a result of his training through the PRN and his recovery groups,
but that there are times that he needs controlled substances to treat
his patients.
[[Page 56222]]
Pursuant to 21 U.S.C. 823(f) and 824(a)(4),\1\ the Deputy
Administrator may revoke a DEA Certificate of Registration and deny any
pending applications, if he determines that the continued registration
would be inconsistent with the public interest. Section 823(f) requires
that the following factors be considered:
\1\ Both the Order to Show Cause and the issue set forth in the
Prehearing Ruling cited 21 U.S.C. 824(a)(2) as another ground for
revocation in this matter. It appears from testimony at the hearing
and the posthearing filings that the Government is no longer
pursuing revocation under 21 U.S.C. 824(a)(2).
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(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 be
denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 54 FR 16,422
(1989).
As to factor one, it is undisputed that on September 15, 1995, the
State of Florida, Agency for Health Care Administration issued an
emergency order suspending Respondent's license to practice dentistry
as a result of his use of cocaine. Thereafter, the Board issued a final
order on March 13, 1996, regarding Respondent's dental license. The
Board continued the suspension of Respondent's license until September
14, 1996, reprimanded Respondent and fined him $6,000.00. As of
September 14, 1996, Respondent's Florida dental license was reinstated,
but it is on probation as long as he practices in the State of Florida.
As part of his probation, Respondent is required to remain under
contract with the PRN.
Regarding factor two, there is no evidence in the record regarding
Respondent's experience in dispensing or conducting research with
controlled substances.
As to factor three, on October 17, 1995, Respondent was found
guilty in the Dade County Court, following his nolo contendere plea to
one misdemeanor count of use, possession, manufacture, delivery, or
advertisement of drug paraphernalia. While adjudication was deferred,
this is still considered a conviction for purposes of the Controlled
Substances Act. See David D. Miller, M.D., 60 FR 54,511 (1995); David
W. Davis, D.O., 60 FR 45,739 (1995).
Regarding Respondent's compliance with laws relating to controlled
substances, it is undisputed that prior to 1988, Respondent unlawfully
possessed and used cocaine.
As to factor five, the Government contends that Respondent has a
history of chemical dependency and drug abuse, and did not sustain his
earlier recovery, relapsing in 1993. However, the Acting Deputy
Administrator notes that the testimony indicates that Respondent has
been drug-free since 1988, and the 1993 relapse resulted from
Respondent's wife putting drugs in his food and drink. Respondent
himself admits that he suffered an ``emotional relapse'' in 1993, and
``slipped out of [the] program.'' When asked what is different about
his recovery now from his recovery in 1998 to 1993, Respondent
testified that ``I've committed to a lifetime contract with the PRN, no
five years, it goes forever. And it's opened up all new avenues for me
for recovery and I think that the first time around was more of, `Let
me have this goal of five years,' because that's what they had set for
me. Now it's the rest of my life.'' Respondent's evaluating physician
testified that Respondent's prognosis for continued recovery is very
good given his strong support system.
Judge Tenney found that given Respondent's prior drug use, the
Government has presented a prima facie case for revocation of his DEA
registration. However, Judge Tenney found that this case ``is close.''
Judge Tenney noted that Respondent is in the middle of recovery, his
expected chance of recovery is in the 90% range, and he is
participating in the PRN. Judge Tenney relied heavily on the testimony
of Respondent's evaluating physician, who is an expert in the field of
addictionology, and ``concluded that the `public interest' would not be
prejudiced by allowing Respondent to continue in practice.'' Judge
Tenney recommended that the Order to Show Cause be vacated.
The Government filed exceptions to Judge Tenney's recommendation
arguing that ``[i]f the Deputy Administrator decides that the
registration of Respondent would be in the public interest[,] * * *
`conditions' upon such registration would be of benefit to the DEA
regulatory process.'' The Government contends that ``since Respondent
is in the midst of a second recovery, * * * more tangible assurances of
his progress ought to be available to the DEA rather than to simply
issue an unrestricted registration.''
The Acting Deputy Administrator agrees with Judge Tenney that
revocation of Respondent's registration would not be appropriate. But,
the Acting Deputy Administrator does not agree with Judge Tenney that
the Order to Show Cause should be vacated. The Order to Show Cause
notified Respondent of his opportunity to contest the proposed
revocation of his DEA registration. Respondent availed himself of this
opportunity which resulted in the hearing in this matter, and
ultimately this final order. Therefore, since proper administrative
procedures have been followed, there is no basis to vacate the Order to
Show Cause.
However, the Acting Deputy Administrator agrees that it would be in
the public interest to allow Respondent to maintain his DEA
registration. According to Respondent's expert witness, Respondent's
prognosis for continued recovery is ``very good.'' In addition, as long
as he practices in Florida, Respondent will be closely monitored by the
PRN.
But, the Acting Deputy Administrator also agrees with the
Government. Respondent had a serious drug abuse problem, and by his own
admission, will be in recovery for the rest of his life. Subjecting
Respondent's registration to some restrictions ``will allow the
Respondent to demonstrate that he can responsibly handle controlled
substances in his medical practice, yet simultaneously protect the
public by providing a mechanism for rapid detection of any improper
activity related to controlled substances.'' See Michael J. Septer,
D.O. 61 FR 53,762 (1996); Steven M. Gardner, M.D., 51 FR 12,576 (1986).
Therefore, the Acting Deputy Administrator concludes that
Respondent's DEA Certificate of Registration should be continued
subject to the following conditions for three years from the effective
date of this final order.
(1) Respondent shall remain under contract with Florida's
Physicians Recovery Network for at least three years from the effective
date of this final order. Should Respondent seek to transfer his DEA
registration to another state, Respondent shall enter into a similar
contract in that state.
(2) Respondent shall submit or cause to be submitted, copies of the
reports regarding his random urine and/or blood screens to the Special
Agent in
[[Page 56223]]
Charge of the DEA Miami Field Division, or his designee.
(3) Respondent shall not prescribe or otherwise dispense controlled
substances for himself or his immediate family members.
(4) Respondent shall maintain a log of his handling of controlled
substances. At a minimum, the log shall include the date that the
controlled substance is prescribed, administered or dispensed, the name
of the patient, and the name, dosage and quantity of the substance
prescribed, administered or dispensed. The log shall be sent on a
quarterly basis to the Special Agent in Charge of the DEA Miami Field
Division, or his designee.
(5) Respondent shall inform the Special Agent in Charge of the
Miami Field Division, or his designee, of any action taken by any state
regarding his medical license or his authorization to handle controlled
substances. This notification must occur within 30 days of the state
action.
Accordingly, the Acting 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 AI5413404, previously issued to Robert
D. Iver, D.D.S., be renewed and continued subject to the above
described restrictions.
This order is effective November 20, 1998.
Dated: October 14, 1998.
Donnie R. Marshall,
Acting Deputy Administrator.
[FR Doc. 98-28175 Filed 10-20-98; 8:45 am]
BILLING CODE 4410-09-M
