[Federal Register Volume 63, Number 27 (Tuesday, February 10, 1998)]
[Notices]
[Pages 6771-6774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3217]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 96-26]
Richard S. Wagner, M.D.; Revocation of Registration; Denial of
Request to Modify Registration
On February 8, 1996, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, (DEA), issued an
Order to Show Cause to Richard S. Wagner, M.D., (Respondent) of Fresno,
California and Hanover, Pennsylvania, notifying him of an opportunity
to show cause as to why DEA should not revoke his DEA Certificate of
Registration, AW8019033, under 21 U.S.C. 824(a), and deny any pending
applications for modification of his registration to change his address
from California to Pennsylvania, under 21 U.S.C. 823(f). The Order to
Show Cause alleged that Respondent materially falsified two
applications for the renewal of his DEA Certificate of Registration and
that he was not currently authorized to handle controlled substances in
the Commonwealth of Pennsylvania.
Respondent, proceeding pro se, filed a request for a hearing, and
following prehearing procedures, a hearing was held in Arlington,
Virginia on August 27, 1996, before Administrative Law Judge Mary Ellen
Bittner. At the hearing, both parties called witnesses to testify and
introduced documentary evidence. Ultimately, the alleged lack of
authorization to handle controlled substances in the Commonwealth of
Pennsylvania was not pursued as an independent basis for revocation.
After the hearing, counsel for the Government submitted proposed
findings of fact, conclusions of law and argument. However, Respondent
only filed a motion to expedite the matter, which was denied by Judge
Bittner because Respondent did not provide any compelling reason to
decide this matter before other pending cases. On October 20, 1997,
Judge Bittner issued her Opinion and Recommended Ruling, Findings of
Fact, Conclusions of Law and Decision, recommending that Respondent's
DEA Certificate of Registration be revoked, his request for
modification be denied, and any pending applications for registration
be denied.
On November 26, 1997, Respondent filed a response to Judge
Bittner's decision, which reiterated the arguments Respondent raised at
the hearing and also sought to introduce evidence not presented at the
hearing. On November 28, 1997, Government counsel filed a motion to
strike Respondent's exceptions or, in the alternative, to seek leave to
file a response to Respondent's exceptions. The Government argued that
Respondent's exceptions were not timely filed. Judge Bittner denied the
Government's motion to strike Respondent's exceptions, finding that
they were filed within the time period that she had authorized for the
filing of exceptions, however, Judge Bittner provided the Government
the opportunity to file a response to Respondent's exceptions. On
December 17, 1997, the Government filed its response and also a motion
to strike Respondent's additional exhibits arguing that the record is
closed and Respondent could have introduced the exhibits at the
hearing, but did not do so. Thereafter, on December 18, 1998, Judge
Bittner denied the Government's motion to strike the additional
exhibits, finding the ``[p]ursuant to 21 C.F.R. Sec. 1316.66(b) (1997),
exceptions filed pursuant to 21 C.F.R. Sec. 1316.66(a) are to become
part of the record of the proceeding.'' However, Judge Bittner
recommended that ``the Deputy Administrator not consider these
documents in rendering his final order.'' On December 18, 1997, Judge
Bittner transmitted the record of these proceedings to the Acting
Deputy Administrator.
The Acting Deputy Administrator, pursuant to 21 C.F.R. 1316.67,
hereby issued his final order based upon findings of fact and
conclusions of law as hereinafter set forth. In rendering his decision
in this matter, the Acting Deputy Administrator has not considered
Respondent's exceptions, including the attached additional documents,
to the extent that they seek to introduce evidence not submitted at the
hearing in this matter, since Respondent did not offer any explanation
as to why this information was not presented at the hearing. After
careful consideration of the record, the Acting Deputy Administrator
adopts, in full, the Opinion and Recommended Ruling, Findings of Fact,
Conclusions of Law and Decision 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 Acting Deputy Administrator finds that Respondent is a
psychiatrist who received his medical degree from a school in
Guadalajara, Mexico, and became board certified in psychiatry in April
1981. In October 1981, Respondent moved to Warren, Pennsylvania where
he established a private practice and also became the medical director
of the psychiatric unit of Warren General Hospital. In 1982, the
hospital suspended Respondent's hospital staff privileges, and in 1985,
his hospital privileges were permanently revoked. According to
Respondent, this action was taken by the hospital as a result of a
scheme by county officials to take a piece of Respondent's property
that was in a desirable location, and to force Respondent to become a
county employee. In addition, Respondent testified that county
officials made false accusations about his professional competence and
tried to force him into selling his property to the county at a loss.
According to Respondent, he was told by hospital officials that if
he resigned from the hospital, his employment record would not reflect
the suspension and revocation of his staff privileges. Thereafter,
Respondent resigned from the hospital. Subsequently, Respondent had a
job offer in Ohio and he applied for an Ohio medical license. This
application was denied by the Ohio licensing agency (Ohio Board)
because he did not disclose on the application that he had lost his
hospital privileges in Pennsylvania. Respondent testified that he did
not disclose the hospital's action because he relied upon the promises
of the hospital officials that his employment record would not reflect
such action. Other than his own assertions, Respondent did not offer
any evidence to corroborate that such an agreement with the hospital
existed.
As a result of the Ohio Board's action, the New York licensing
agency (New York Board) suspended Respondent's license to practice
medicine in that state because of his misrepresentations on the Ohio
application for licensure. It appears that the New York Board stayed
the suspension. Subsequently, in 1987, the Pennsylvania State Board of
Medicine (Pennsylvania Board) suspended his Pennsylvania medical
license for two years based on his misrepresentations to Ohio, stayed
the suspension, and placed Respondent on probation.
In 1989, Respondent filed a civil action in the United States
District Court for the Western District of Pennsylvania against Warren
General
[[Page 6772]]
Hospital and various county officials, claiming that their actions
violated both his constitutional rights and antitrust laws. The Acting
Deputy Administrator finds it significant to note that Respondent did
not mention in his civil suit the purported promises made by the
hospital officials that his employment records would not reflect the
suspension and revocation of his hospital privileges if Respondent
resigned from the hospital. The court granted summary judgement for the
hospital and county officials, finding that Respondent presented
neither direct nor circumstantial evidence sufficient to establish the
existence of a conspiracy and Respondent's case was based on ``little
more than his own suspicions and beliefs.'' At the hearing before Judge
Bittner, Respondent contended that the lawyer representing him in the
civil suit had many personal problems and therefore was ineffective in
her representation of Respondent.
On May 25, 1994, Respondent was involuntarily committed to the
psychiatric unit of a local Pennsylvania hospital after a mental health
review officer found that he posed a danger to others. Respondent was
released after 20 days and on June 13, 1994, Respondent's Pennsylvania
medical license was automatically suspended. Respondent testified that
his involuntary commitment was a result of untrue accusations made by
his wife. Following an evaluation and report by an independent
psychiatrist who ``did not find any psychiatric impairment which would
prevent [Respondent] from making adequate medical judgements in the
practice of medicine,'' the Pennsylvania Board reinstated Respondent's
medical license on March 28, 1995.
Regarding the DEA applications that are the subject of these
proceedings, the Acting Deputy Administrator finds that in 1992,
Respondent submitted an application for renewal of his DEA Certificate
of Registration issued to him in Pennsylvania. On this application,
Respondent answered ``no'' to the liability question which asks: ``Has
the applicant ever been convicted in connection with controlled
substances under State or Federal law or surrendered or had a Federal
controlled substance registration revoked, suspended, restricted or
denied or ever had a professional license or controlled substance
registration revoked, suspended, denied, restricted or placed on
probation?'' In 1994, Respondent's registration was transferred from
Pennsylvania to California. Thereafter, on May 24, 1995, Respondent
executed another renewal application for his DEA registration.
Respondent answered the same liability question in the negative as he
had done on his 1992 renewal application. On the 1995 renewal
application, Respondent crossed out the pre-printed California address
and wrote in an address in Pennsylvania. DEA interpreted this
alteration on the application to be a request by Respondent to modify
his DEA registration by changing the address.
After receiving the 1995 renewal application, DEA sent a letter to
Respondent dated August 16, 1995, offering Respondent the opportunity
to voluntarily surrender his DEA registration in lieu of the initiation
of proceedings to revoke his registration, in light of his failure to
disclose on the renewal applications actions taken by state licensing
agencies. In addition, Respondent was informed that because revocation
proceedings would be initiated should Respondent not surrender his
registration, Respondent's request to modify his registration from
California to Pennsylvania would not be approved at that time.
Respondent was further advised in the letter that as a result, he was
not authorized to handle controlled substance in Pennsylvania.
On August 25, 1995, Respondent responded by filing a civil action
in the United States District Court for the Eastern District of
Pennsylvania against two DEA employees, claiming both a violation of
his civil rights and defamation. A hearing was held by the court on
August 28, 1995, to determine whether DEA should be temporarily
restrained from taking action against Respondent's DEA Certificate of
Registration. At his hearing, Respondent argued that all state
disciplinary action against him stemmed from his problems at Warren
General Hospital and from his reliance on the promises made by hospital
officials that his loss of hospital privileges would not be reflected
in his employment records if he resigned from the hospital. Respondent
also argued that the liability question on the DEA applications was
ambiguous, and that he had at some point contacted DEA headquarters in
order to clarify the meaning of the question on the applications.
Respondent asserted that some DEA employee told him to answer the
question in the negative since the actions taken by the state boards
did not pertain to his handling of controlled substances. The court
denied Respondent's request for a temporary restraining order against
the DEA finding that Respondent, instead of accepting responsibility
for answering the liability question on the applications incorrectly,
tried to blame an unidentified DEA employee. The court ultimately
dismissed Respondent's civil complaint against the two DEA employees on
March 1, 1996, on the grounds that Respondent failed to effect proper
service on the defendants.
At the hearing before Judge Bittner, Respondent reiterated his
contention that in answering the liability question on his application
for Ohio licensure, he relied upon the representations made by Warren
General Hospital officials that his employment record would not reflect
that he had lost his hospital privileges. However, the Acting Deputy
Administrator finds that Respondent did not present evidence to
corroborate this contention. In addition, Respondent testified at the
hearing before Judge Bittner that in answering the liability question
on the DEA renewal applications regarding whether any action had been
taken against a state professional license, he relied upon the advice
of an unidentified DEA employee. Respondent was not able to remember
the name of the person with whom he spoke, nor the position of the
individual. Again, Respondent did not offer any evidence to corroborate
his assertion.
The Deputy Administrator, in his discretion, may revoke a DEA
Certificate of Registration and deny any renewal applications if the
registrant ``has materially falsified any application filed pursuant to
or required by this subchapter. * * *'' 21 U.S.C. 824(a)(1). In
addition, the Deputy Administrator may also revoke a DEA Certificate of
Registration and deny any pending applications for registration ``if he
determines that the issuance of such registration would be inconsistent
with the public interest.'' 21 U.S.C. 823(f) and 824(a)(4). A request
for modification of registration is considered an application for
registration pursuant to 21 CFR 1301.51.
In determining whether or not a registration would be inconsistent
with the public interest, the Deputy Administrator is to consider the
following factors set forth in 21 U.S.C. 823(f):
(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.
[[Page 6773]]
In considering whether revocation of Respondent's DEA Certificate
of Registration is appropriate under 21 U.S.C. 824(a)(1), the Acting
Deputy Administration finds that it is undisputed that Ohio denied
Respondent's application for a license to practice medicine; that New
York suspended Respondent's medical license; that in 1987, Pennsylvania
suspended Respondent's medical license and then placed it on probation;
and that beginning in June 1994, Respondent's Pennsylvania medical
license was suspended for nine and one half-months. It is also
undisputed that Respondent answered a question on both his 1992 and
1995 applications for renewal of this DEA registration indicating that
no action had ever been taken against any of his professional licenses.
DEA has previously held that in finding that there has been a
material falsification of an application, it must be determined that
the applicant knew or should have known that the response given to the
liability question was false. See Bobby Watts, M.D., 58 FR 4699 (1993);
Hebert J. Robinson, M.D., 59 FR 6304 (1994).
Like Judge Bittner, the Acting Deputy Administrator does not find
credible Respondent's explanation for why he did not disclose the loss
of his hospital privileges in Pennsylvania on his application for an
Ohio medical license which resulted in the denial of the application
and the subsequent actions taken against his New York and Pennsylvania
medical licenses. Respondent did not provide any corroborating evidence
that the hospital staff in Pennsylvania agreed to remove any reference
to Respondent's loss off staff privileges if he resigned. In addition,
the Acting Deputy Administrator does not find credible Respondent's
assertion that he incorrectly answered the liability question on his
DEA renewal applications because some unidentified DEA employee told
him to do so. Therefore, the Acting Deputy Administrator concludes that
Respondent knew or should have known that his response to the liability
question was false and consequently, grounds exist to revoke
Respondent's DEA Certificate of Registration pursuant to 21 U.S.C.
824(a)(1). The question now becomes whether the Acting Deputy
Administrator, in exercising his discretion, believes that revocation
is the appropriate sanction in light of the facts and circumstances of
this case. See, Martha Herandez, M.D., 62 FR 61,145 (1997).
The Acting Deputy Administrator concludes that revocation is
warranted in this case. Respondent has repeatedly failed to acknowledge
and accept responsibility for his falsifications of his applications.
Instead, Respondent tries to blame others for his predicament.
Respondent contends that officials of Warren General Hospital and
county officials in Pennsylvania are to blame for the Ohio Board
action; that the fact that Ohio's action was entered in the National
Practitioner Databank is to blame for the New York Board action and the
Pennsylvania Board action in 1987; that his wife is to blame for the
1994 Pennsylvania Board action; and that the ambiguity of the liability
question and an unidentified DEA employee are to blame for his
incorrect answer on the DEA renewal applications. This failure to
accept responsibility raises serious questions as to Respondent's
ability to accept the responsibilities inherent in a DEA registration.
In considering whether grounds exist to deny Respondent's request
to modify his DEA registration and to revoke the registration pursuant
to 21 U.S.C. 823(f) and 824(a)(4), it should be noted that the factors
specified in 21 U.S.C. 823(f) are to be considered in this disjunctive.
The Deputy Administrator may rely on any one or a combination of those
factors, and 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, it is undisputed that Respondent is currently
licensed to practice medicine in Pennsylvania and therefore authorized
to handle controlled substances in that state.
However, as Judge Bittner notes, ``although state authorization to
handle controlled substances is a necessary condition for Respondent's
registration with DEA, it is not dispositive of the question of whether
his continued registration would be in the public interest.'' Regarding
factors two and four, no evidence was placed in the record by either
party regarding Respondent's experience in handling controlled
substances, or his compliance with applicable laws relating to
controlled substances. Likewise there is no evidence in the record that
Respondent has ever been convicted of a controlled substance offense as
referred to in factor three. However, Respondent's material
falsification of his 1992 and 1995 applications for renewal of his DEA
registration are clearly significant under factor five.
The Administrative Law Judge found that Respondent's material
falsification of these applications, as well as his failure to accept
responsibility for his actions support a finding that his continued
registration would be inconsistent with the public interest and
therefore revocation of his DEA registration is appropriate. Judge
Bittner also recommended that denial of Respondent's request for
modification of this registration is appropriate.
Respondent in his exceptions argues that Judge Bittner wrongly
ignored and disallowed some of Respondent's evidence. The Acting Deputy
Administrator has considered all of the evidence presented at the
hearing in this matter and agrees with Judge Bittner's evidentiary
rulings. Also in his exceptions, Respondent contends that there are
witnesses available to corroborate his version of events and attempts
to introduce documents into the record that were not presented at the
hearing. The Acting Deputy Administrator has not considered this
information because Respondent has not offered any explanation as to
why he did not present this evidence at the hearing in this matter. In
addition, Respondent argues that DEA has admitted that the question on
its application is ambiguous because it has since modified the question
on the application. The Acting Deputy Administrator concludes that the
liability question on the applications at issue is not ambiguous. The
fact that DEA has since modified the application does not support a
conclusion that DEA has admitted otherwise. Respondent also asserts
that his registration should not be revoked because ``at no time did I
try to deceive.'' But, as the Acting Deputy Administrator has
previously held, a registration may be revoked whether or not there is
any intent by the applicant to deceive. See, Martha Henandez, M.D., 62
FR 61,145 (1997). Finally, Respondent claims that ``the crime for which
I am accused, condemned and sentenced is this and only this. I checked
the wrong box on a renewal form for a DEA Certificate.'' The Acting
Deputy Administrator finds that Respondent's attempt to minimize his
actions is further support for the revocation of his DEA registration.
Truthful answers to the liability questions on the application are
extremely important, since they alert DEA as to whether further
investigation of the applicant is necessary. See Bobby Watts, M.D., 58
FR 46,995 (1993); Ezzat E. Majd Pour, M.D., 55 FR 47,547 (1990).
The Acting Deputy Administrator concludes that in light of
Respondent's material falsification of his applications
[[Page 6774]]
for renewal of his DEA registration, and his persistent attempts to
blame others for his predicament, Respondent's request to modify his
DEA registration must be denied and his DEA Certificate of Registration
must be revoked.
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 C.F.R. 0.100(b) and 0.104, hereby orders
that DEA Certificate of Registration AW8019033, issued to Richard S.
Wagner, M.D., be and it hereby is, revoked. The Acting Deputy
Administrator further orders that Dr. Wagner's request to modify his
registration, and any pending applications for renewal of such
registration, be, and they hereby are, denied. This order is effective
March 12, 1998.
Dated: February 2, 1998.
Peter F. Gruden,
Acting Deputy Administrator.
[FR Doc. 98-3217 Filed 2-9-98; 8:45 am]
BILLING CODE 4410-09-M
