[Federal Register Volume 64, Number 250 (Thursday, December 30, 1999)]
[Notices]
[Pages 73587-73591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33979]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 99-1]
Michael Alan Patterson, M.D., Grant of Restricted Registration
On September 23, 1998, the Deputy Assistant Administrator, Office
of Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Michael Alan Patterson, M.D. (Respondent) of
Memphis, Tennessee, notifying him of an opportunity to show cause as to
why DEA should not deny his application for registration as a
practitioner pursuant to 21 U.S.C. 823(f), for reason that his
registration would be inconsistent with the public interest.
By letter dated October 22, 1998, Respondent, through counsel,
requested a hearing on the issues raised by the Order to Show Cause.
Following prehearing procedures, a hearing was held in Nashville,
Tennessee on March 10, 1999, before Administrative Law Judge Gail A.
Randall. At the hearing, both parties called witnesses to testify and
introduced documentary evidence. After the hearing, both parties
submitted proposed findings of fact, conclusions of law and argument.
On August 11, 1999, Judge Randall issued her Recommended Rulings,
Findings of Fact, Conclusions of Law, and Decision (Opinion),
recommending that Respondent's application for registration be granted
subject to various conditions. Neither party filed exceptions to Judge
Randall's Opinion, and on September 15, 1999, Judge Randall transmitted
the record of these proceedings to the Deputy Administrator.
The Acting Deputy Administrator has considered the record in its
entirety, and pursuant to 21 CFR 1316.67, hereby issues his final order
based upon findings of fact and conclusions of law as hereinafter set
forth. The Acting Deputy Administrator adopts, with specifically noted
exceptions, the Recommended Rulings, Findings of Fact, Conclusions of
Law, and Decision of the Administrative Law Judge. His adoption is in
no manner diminished by any recitation of facts, issues or conclusions
herein, or of any failure to mention a matter of fact or law.
The Acting Deputy Administrator finds that Respondent admits to a
history of drug and alcohol abuse, beginning with marijuana and beer on
the weekends as a teenager. When Respondent entered college in 1980, he
used cocaine sporadically after being introduced to the drug by one of
his brothers.
Respondent received his medical degree in 1983, and from July 1983
through June 1986, Respondent was a resident in family practice in
Florida. During his residency Respondent used a DEA Certificate of
Registration issued to him in Florida that expired on March 31, 1987.
As a resident, his drug use remained sporadic but became more frequent.
In 1986, Respondent moved to Mississippi to fulfill an obligation
to the National Health Service Corps. Respondent obtained medical
licenses in both Mississippi and Tennessee. Ultimately, Respondent was
issued DEA Certificates of Registration in both states.
In order to earn additional income, Respondent also worked for an
emergency room service and for a freestanding urgent care center from
1986 through 1989. During this time he worked approximately 80 to 100
hours per week. According to Respondent, in 1986 his drug use
``progress[ed] to heavy,'' and the use of cocaine helped him stay awake
so he could continue working.
Respondent testified that financial, marital, and work-related
stress contributed to his drug use. He further testified that he began
staying out late at night, if he returned home at all, and he
frequented topless clubs. He failed to show up for work, and if he did
show up, he was too ``crashed out'' to be productive. Eventually,
Respondent's former wife notified his employer that Respondent had a
cocaine problem.
As a result, the then-medical director of the Tennessee Medical
Foundation, Physicians Health Program, (PHP), set
[[Page 73588]]
up an intervention with Respondent, and Respondent entered treatment on
March 16, 1990. According to Respondent he was very resistant to
treatment at that time and fought it ``tooth and nail.'' Respondent
completed the four-month treatment program in July or August 1990,
however he did not enter into an ongoing contract with the treatment
center at that time.
After his treatment, Respondent returned to work part-time at the
freestanding urgent care center, and later in 1990, be began a second
job working full-time at a 24-hour minor medical emergency center.
Additionally, in November or December 1991, Respondent began working at
a hospital center. Respondent's employers were aware of his drug abuse
problems and treatment.
In the spring or summer of 1991, Respondent began drinking again,
and allowed his DEA registrations to expire. Although he had been sent
notices to renew his registrations, Respondent testified that he
``avoid[ed] the mail'' during this time because he owed debts to
several bill collectors. By January 1992, Respondent began using
cocaine and crack cocaine again. As a result of his relapse, Respondent
was fired from the 24-hour minor medical emergency center in March
1992.
Respondent was not aware that he had let his DEA registrations
lapse until the hospital where he was working requested a copy of his
current DEA registration. Respondent attempted to renew his
registration in Tennessee, but he inadvertently sent the wrong form to
DEA with the fee. When the incorrect form and money was returned to
Respondent, he spent the money on cocaine and failed to renew his
registration. Since he still needed to have a current registration to
submit to the hospital, Respondent's then girlfriend altered his
expired DEA Certificate of Registration to reflect a 1995 expiration
date instead of the actual 1991 expiration date. This forgery resulted
in the hospital terminating Respondent's employment on September 15,
1992. At the hearing Respondent testified that he was abusing drugs and
alcohol at the time of the alteration of his Certificate of
Registration, and that ``there's no real justification to give you,
other than I was sick and irresponsible.''
Respondent's substance abuse worsened, and during this time he was
arrested and charged with the misdemeanors of drunk driving, reckless
driving, public intoxication and possession of drug paraphernalia.
Respondent pled guilty to two of the charged. In addition, from the
summer of 1991 to November 1992, Respondent prescribed controlled
substances without a valid registration and exchanged prescriptions for
discounts on the cost of cocaine.
An investigation of Respondent began in 1992 based upon information
from a confidential informant that she received controlled substance
prescriptions from Respondent for no legitimate medical reason. On
February 16, 1993, Respondent voluntarily met with law enforcement
personnel. At this time, Respondent was currently undergoing inpatient
treatment at a halfway house for his addiction. Respondent cooperated
and provided full disclosure during this meeting, as well as subsequent
meeting.
This investigation of Respondent, as well as his own admissions,
revealed that Respondent has written controlled substance prescriptions
to a number of individuals for no legitimate medical reason. He
exchanged these prescriptions for services to include topless or
private dances. He traded cocaine for sex and private dances, and he
used cocaine and marijuana with these dancers.
Respondent acknowledged his prior behavior, his activity regarding
his relationships with these individuals, and his unlawful prescribing
of controlled substances. Respondent has accepted responsibility for
his actions.
Subsequently, Respondent agreed to cooperate with the local police
department. He provided a list of people that he had written controlled
substance prescriptions to for no legitimate medical purpose. He also
provided the names of individuals from whom he had purchased drugs from
in the past and indicated from whom he thought he could buy drugs from
in the future. Respondent agreed to work with the local police
department to make telephone calls and contacts in an effort to set up
undercover buys of drugs. Respondent was not very successful in gaining
evidence against others since it was known that Respondent was in
trouble. Respondent's cooperation with the local police department
continued until August 1993.
Respondent entered treatment for a second time in November 1992,
this time voluntarily. Respondent testified that he realized that his
first attempt at treatment was ``a half-hearted effort'' and that at
that time he was in denial of his addiction. By the time of his second
attempt at treatment he had essentially lost everything. He testified,
``if I didn't get into treatment at that time, I really didn't think I
would be here much longer.'' Respondent was in impatient treatment for
three weeks and then continued to undergo inpatient treatment at a
halfway house for impaired professional until June 1993.
While in treatment, Respondent's Tennessee medical license expired
on December 31, 1992. Respondent did not submit a renewal application
for this license until March 23, 1993 and did not pay the license fee
until May 11, 1993. Respondent continued to practice medicine even
though his license had not been renewed. Respondent explained that when
he returned to work in 1993, he thought his medical license was in a
``grace period.''
After completing his treatment in June 1993, Respondent returned to
work at the 24-hour minor medical emergency center and for the
emergency room service, both of which were aware of Respondent's prior
drug treatments. On his application for employment with the emergency
room service submitted on September 29, 1993, Respondent indicated that
his privileges or professional services at any hospital had never been
revoked, event though his privileges at the hospital center had been
revoked in September 1992. At the hearing, Respondent admitted that
this mistake was an oversight and that ``[he] had no reason to
intentionally try and mislead or lie on that application.''
Respondent has maintained a contract with the PHP since March 3,
1993. After treatment, the PHP coordinates and monitors physician's
recovery process for a minimum of two years. As part of the contract
with the PHP physicians agree to attend weekly peer group meetings and
monthly meetings with PHP personnel, to undergo random drug testing, to
attend Alcoholics Anonymous or Narcotics Anonymous meetings, and to
participate in individualized therapy.
After fulfilling the terms of his initial two-year contract with
the PHP, Respondent has continued to renew his contract. Respondent has
complied with the terms of this contract.
As a result of Respondent's past behavior, the Tennessee Board of
Medical Examiners (Board) sought to take action against Respondent's
Tennessee medical license. Respondent failed to appear for a scheduled
hearing before the Board on June 21, 1994. According to Respondent he
never received notice from the Board that the hearing was going to take
place. As a result, on June 22, 1994, the board entered a Default Order
revoking Respondent's Tennessee medical license and assessing a $4,300
civil penalty. The Board found among other things that Respondent had
lied on his Tennessee medical license renewal form and on his
employment application
[[Page 73589]]
dated September 29, 1993, that he engaged in unprofessional,
dishonorable or unethical conduct, that he was habitually intoxicated
which affected his ability to practice medicine, and that he dispensed
controlled substances not in the course of professional practice.
Respondent stopped practicing medicine when he received written
notification in July 1994 of the Board's action.
Based upon his conduct in 1991 and 1992, Respondent was indicted on
July 19, 1995, in the United States District Court for the Western
District of Tennessee, and charged with 387 felony counts related to
his handling of controlled substances. On November 18, 1996, Respondent
pled guilty to 17 counts of the unlawful distribution of controlled
substances in violation of 21 U.S.C. 841(a)(1). On March 27, 1997,
Respondent was sentenced to three years probation, 2,000 hours of
community service, and assessed a fine of $850. As conditions of his
probation, Respondent is required to submit to random drug screens and
to meet monthly with his probation officer. As of the date of the
hearing Respondent had completed 1,500 to 1,600 hours of his community
service obligation and has complied with all of the conditions of his
probation.
On July 1, 1995, Respondent began a three-year psychiatry residency
program at the University of Tennessee. He was selected for the
position of Chief Resident in psychiatry by his fellow residents and
faculty. During his residency, Respondent used the institutional DEA
numbers of the institutions where he worked as a resident. No questions
were ever raised by any official or representative at the University of
Tennessee regarding the Respondent's handling of controlled substances.
After his indictment and while in his residency program, Respondent
assisted DEA in undercover activities for close to a year. Respondent's
assistance produced four controlled substance buys, two of which
resulted in convictions.
Effective October 6, 1997, the Board reinstated Respondent's
medical license, finding that ``[t]he [Respondent] has been monitored
by the Tennessee Medical Foundation's Physician Health Program and is
currently in good standing with the program. He presented evidence of
five (5) years of sobriety.'' The Board placed several restrictions on
Respondent's medical license including that he maintain an affiliation
with the PHP for five years to include at least five unannounced drug
screens per year; that he only apply for a DEA registration in
Schedules III, IV and V; and that he only practice in a supervised
setting under a licensed physician acceptable to the Board until his
criminal probation is lifted, but for not less than two years.
Respondent has been in compliance with the Board's restrictions. On
average, Respondent is tested for drugs eight to ten times per year.
According to Respondent, he plans to maintain a lifetime relationship
with the PHP, not just the five years imposed by the Board.
The medical director of the PHP testified at the hearing that he
has been in frequent contact with Respondent for over three and a half
years. He believes that Respondent's prognosis for continued recovery
from his drug addiction is excellent. The medical director testified
that he does not have any reservations concerning Respondent's ability
to handle Schedules III, IV and V controlled substances and that he
``fully support[s]'' the granting of Respondent's application. However,
both Respondent and the medical director testified that Respondent may
benefit from a course on the proper handling of controlled substances.
Respondent testified that he has been sober since November 6, 1992.
He further testified that he would pay greater attention to detail
about his registration status, and the proper maintenance and renewal
of his DEA and state registration ``won't be a problem in the future at
any time.'' He feels that he is ``much more responsible'' now.
Respondent is ashamed of his previous conduct. He testified however
that ``today I know that I'm not the same person that I was six, seven,
eight years ago . . . who was sick and addicted.'' Respondent testified
that he understands the consequences of a relapse.
Since 1998, Respondent has been employed at a treatment facility
where, for the most part, he practices addiction medicine. Presently,
if Respondent's treatment of a patient requires the use of controlled
substances, one of Respondent's supervisors writes the prescription.
The Board has approved Respondent's employment at the treatment
facility and any change in employment would require additional Board
approval.
On October 28, 1997, Respondent executed the application for
registration that is the subject of these proceedings. Respondent
applied to be registered in Schedules III, IV and V and provided his
home address as his ``Proposed Business Address.'' Respondent testified
that he does not intend to handle controlled substances at his
residence and that the address on his application should be modified to
reflect the address at the treatment facility where he is currently
employed.
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an
application for a DEA Certificate of Registration, if he determines
that the registration would be inconsistent with the public interest.
Section 823(f) requires that the following factors be considered in
determining the public interest:
(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 and
safety.
These factors are to be considered in the disjunctive; the Deputy
Administrator may rely on any one or a combination of factors and may
give each factor the weight he deems appropriate in determining whether
a registration should be revoked or an application for registration
denied. See Henry J. Schwarz, Jr., M.D., 54 FR 16,422 (1989).
As to factor one, the Board revoked Respondent's Tennessee medical
license in June of 1994. However, three years later the Board
reinstated Respondent's license subject to various restrictions. In
reinstating Respondent's license, the Board recognized that Respondent
had been drug-free for five years and was in good standing with the
PHP. Therefore, it is undisputed that Respondent is currently
authorized to handle controlled substances in Tennessee.
While state licensure is a prerequisite for a DEA registration, it
is not dispositive of whether Respondent's registration would be in the
public interest. However, it is noteworthy that the Board stated that
``[a]ny DEA certificate that the [Respondent] shall apply for shall be
limited to Schedule III, IV and V.'' The Acting Deputy Administrator
agrees with Judge Randall that, ``[a]lthough this restriction is not an
endorsement by the Board for issuing a DEA registration to the
Respondent, at a minimum, this statement expresses the Board's
confidence in the Respondent's ability to handle the responsibilities
of a DEA registrant, particularly regarding the Respondent's
[[Page 73590]]
ability to handle Schedules III, IV and V controlled substances.''
Respondent's experience in dispensing controlled substances and his
compliance with laws related to controlled substances may be considered
under factors two and four. The Acting Deputy administrator finds that
Respondent's handling of controlled substances was abysmal during his
active drug abuse. Respondent violated 21 U.S.C. 843(a)(2) by
prescribing controlled substances without a valid DEA registration. He
caused his expired DEA Certificate of Registration to be altered. In
addition, Respondent violated 21 U.S.C. 841(a)(1) by prescribing
controlled substances to individuals for no legitimate medical purpose.
He wrote these prescriptions in exchange for discounts on his cocaine
and crack purchases and in exchange for topless dances from women.
The Acting Deputy Administrator finds this conduct to be
reprehensible, and certainly could justify denying Respondent's
application for registration. However, all of this conduct occurred
when Respondent was heavily involved in substance abuse. Respondent has
been drug-free since November 1992. He underwent intensive treatment
and is still actively participating in aftercare treatment.
Also of concern is that Respondent continued to practice medicine
in 1993 after he failed to timely renew his state medical license.
However, this occurred when Respondent was undergoing substance abuse
treatment and he thought his license was subject to a grace period.
Other than his practice of medicine without a current state
license, there is no evidence that Respondent improperly handled
controlled substances after he entered treatment in November 1992. In
fact, Respondent handled controlled substances without question from
July 1, 1995 to June 30, 1998 when using institutional numbers issued
to him by the University of Tennessee during his residency.
Regarding factor three, it is undisputed that when Respondent was
abusing drugs and alcohol, he was arrested for drunk driving, reckless
driving, public intoxication and possession of drug paraphernalia. He
pled guilty to two of these charges. In addition, on November 18, 1996,
Respondent pled guilty to 17 counts of unlawful distribution of
controlled substances. Respondent was sentenced to three years
probation and 2,000 hours of community service. Evidence in the record
indicates that Respondent has complied with the terms of his probation.
While such convictions clearly could justify denying Respondent's
application for registration, the Acting Deputy Administrator finds it
significant that these convictions resulted from Respondent's behavior
when he was addicted to drugs and alcohol, and as has been previously
discussed, Respondent has been drug-free for seven years and his
prognosis for continued recovery is excellent.
As to factor five, other conduct which may threaten the public
health and safety, it is undisputed that Respondent was previously
addicted to alcohol and drugs, including marijuana, cocaine and crack
cocaine. According to Respondent, his conduct was ``dangerous, illegal,
[and] irresponsible'' when he was addicted. However, Respondent has
undergone intensive treatment for his substance abuse and his treatment
is ongoing.
It is true that Respondent previously had undergone treatment but
had relapsed. However, Respondent admits that he was resistant to
treatment at that time. The second time that Respondent entered
treatment, he did so voluntarily and is committed to such treatment.
The evidence suggests that his chances of repalse are slight. He
understands the consequences of a relapse. He intends to maintain a
lifetime relationship with the PHP and he currently works with others
who are addicted to drugs and alcohol.
Judge Randall also found it significant under this factor that
Respondent incorrectly listed his home address on his application for
registration. However, she further found that it was not so egregious
as to warrant a denial of Respondent's application for registration.
The Acting Deputy Administrator agrees that this incorrect listing of
his business address does not warrant denial of Respondent's
application.
Judge Randall concluded, and the Acting Deputy Administrator
agrees, that the Government has made a prima facie case for denial of
Respondent's application. Respondent unlawfully prescribed controlled
substances, altered his DEA Certificate of Registration, abused alcohol
and drugs, and was convicted of offenses relating to controlled
substances. However, it is not in the public interest to deny
Respondent's application.
Respondent has acknowledged his past unlawful behavior and has
accepted responsibility for his conduct. Respondent has a serious
addiction to drugs and alcohol during his unlawful conduct. He has been
sober since November 1992 and his chances of continued recovery are
excellent. He intends to maintain a lifetime relationship with the PHP
and he is currently still being monitored by the State of Tennessee.
The evidence suggests that Respondent is clearly committed to his
recovery and is seeking to help others with substance abuse problems by
predominantly practicing addiction psychiatry. Judge Randall also found
it significant that Respondent cooperated with law enforcement by fully
disclosing his unlawful conduct, by providing information against
others, and by assisting in undercover buys.
Therefore, the Acting Deputy Administrator agrees with Judge
Randall that it would not be in the public interest to deny
Respondent's application. However given the egregiousness of
Respondent's past behavior, Judge Randall recommended that restrictions
be imposed on Respondent's registration that would ``add a measure of
protection to the public interest, while affording [Respondent] the
opportunity to demonstrate his ability and willingness to handle
controlled substances responsibly in his medical practice.'' Judge
Randall recommended that Respondent's application for registration be
granted subject to the following restrictions:
(1) The Respondent must resubmit a registration application
reflecting his ``Proposed Business Address'' as required by regulation;
(2) The Respondent be granted a Certificate of Registration only
for Schedules III, IV and V;
(3) By not later than two years after the date of the final order,
the Respondent shall submit to the local DEA office evidence of
successful completion, after August of 1999, of formal training in the
proper handling or prescribing of controlled substances. Such training
should be provided by an accredited institution at the Respondent's own
expense;
(4) For three years after the effective date of the final order in
this case, the Respondent shall submit, on a quarterly basis, a log of
all of the controlled substances he has prescribed, administered or
dispensed during the previous quarter, to the Special Agent in Charge
of the nearest DEA office, or his or her designee. The log should
include: the patient's name; the date that the controlled substance was
prescribed, administered or dispensed; and the name, dosage and
quantity of the controlled substance prescribed, administered or
dispensed. If no controlled substances are prescribed, administered or
dispensed during a given quarter, the Respondent shall indicate that
fact in writing, in lieu of
[[Page 73591]]
submission of the log. Review of such a log should provide adequate
assurances for his future responsible conduct as a registrant.
The Acting Deputy Administrator agrees with Judge Randall that
Respondent's application for registration should be granted and that it
is appropriate to impose restrictions on such registration. However,
the Acting Deputy Administrator finds it unnecessary to require
Respondent to resubmit an application listing his proper business
address. At the hearing in this matter, Respondent requested that his
application be modified to reflect the address of his current place of
employment. The Acting Deputy Administrator finds that this request is
sufficient to modify his application and a new application for
registration is not required. However, if Respondent's place of
employment has changed from that represented at the hearing, a new
written request for modification of the address on his application must
be submitted.
In addition, the Acting Deputy Administrator disagrees with Judge
Randall's recommendation that Respondent be given two years to present
evidence of successful completion of formal training in the proper
handling or prescribing of controlled substances. Given the nature of
Respondent's past conduct, the Acting Deputy Administrator finds that
it is in the public interest for such training to be completed within
one year of being issued his DEA registration.
Finally, the Acting Deputy Administrator believes that it is
prudent to require Respondent to continue his affiliation with the PHP
for three years regardless of whether such affiliation is required by
the Board.
Therefore, the Acting Deputy Administrator concludes that
Respondent should be granted a DEA Certificate of Registration in
Schedules III, IV and V subject to the following restrictions:
(1) By not later than one year after the Certificate of
Registration is issued, Respondent shall submit to the DEA office in
Nashville Tennessee evidence of successful completion, after August of
1999, of formal training in the proper handling or prescribing of
controlled substances. Such training should be provided by an
accredited institution at the Respondent's own expense.
(2) For three years after the issuance of the Certificate of
Registration, Respondent shall submit, on a quarterly basis, a log of
all of the controlled substances he has prescribed, administered, or
dispensed during the previous quarter, to the Resident Agent in Charge
of the DEA office in Nashville, Tennessee, or his or her designee. The
log should include: the patient's name; the date that the controlled
substance was prescribed, administered or dispensed; and the name,
dosage and quantity of the controlled substance prescribed,
administered or dispensed. If no controlled substances are prescribed,
administered or dispensed during a given quarter, the Respondent shall
indicate that fact in writing, in lieu of submission of the log.
(3) Respondent shall continue his affiliation with the Tennessee
Medical Foundation's Physicians' Health Program for at least three
years from the issuance of the Certificate of Registration, regardless
of whether such affiliation is required by the Tennessee Board of
Medical Examiners.
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
the application for registration submitted by Michael Alan Patterson,
M.D., be, and it hereby is, granted subject to the above described
restrictions. This order is effective upon the issuance of the DEA
Certificate of Registration, but no later than January 31, 2000.
Dated: December 22, 1999.
Julio F. Mercado,
Acting Deputy Administrator.
[FR Doc. 99-33979 Filed 12-29-99; 8:45 am]
BILLING CODE 4410-09-M
