[Federal Register Volume 63, Number 34 (Friday, February 20, 1998)]
[Notices]
[Pages 8687-8688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4359]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 96-8]
Samuel Arnold, D.D.S.; Reprimand and Continuation of Registration
On November 1, 1995, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Samuel Arnold, D.D.S. (Respondent) of Fairborn,
Ohio, notifying him of an opportunity to show cause as to why DEA
should not revoke his DEA Certificate of Registration, BA4089620,
pursuant to 21 U.S.C. 824(a)(1), and deny any pending applications for
renewal of such registration as a practitioner under 21 U.S.C. 823(f).
The Order to Show Cause alleged that Respondent materially falsified
his July 7, 1994 application for registration with DEA.
By letter dated November 24, 1995, Respondent filed a timely
request for a hearing, and following prehearing procedures, a hearing
was held in Dayton, Ohio on October 22, 1996, before Administrative Law
Judge Mary Ellen Bittner. At the hearing, both parties called witnesses
to testify and the Government introduced documentary evidence. After
the hearing, Government counsel submitted proposed findings of fact,
conclusions of law and argument. Respondent did not submit any
posthearing filing. On November 25, 1997, Judge Bittner issued her
Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law
and Decision, recommending that Respondent's registration not be
revoked, but that Respondent be issued a reprimand. Neither party filed
exceptions to Judge Bittner's Opinion and Recommended Ruling, and on
January 9, 1998, the record was transmitted to the Acting 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, in full, the Opinion and
Recommended Ruling of the Administrative Law Judge. 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 the Ohio State Dental
Board (Board) issued a Notice of Opportunity for Hearing to Respondent
on June 20, 1991, alleging that Respondent had charged the Ohio
Department of Human Services for services to 29 nursing home patients
that he did not actually perform in violation of state law. As a
result, Respondent and the Board entered into a Consent Agreement that
was fully executed on November 21, 1991, in which Respondent admitted
the allegations in the Notice of Opportunity for Hearing, his license
to practice dentistry was suspended for one year effective January 1,
1992, with 60 days stayed, and he was placed on probation for two years
effective January 1, 1992. Respondent was permitted to resume the
practice of dentistry on November 1, 1992.
Upon learning of his state suspension, DEA contacted Respondent on
January 10, 1992, and requested that he voluntarily surrender his DEA
registration. Respondent agreed to surrender his registration, but did
not in fact do so. Instead, Respondent's previous registration was
ultimately retired, since he did not submit an application for renewal
of the registration.
On July 7, 1994, Respondent executed an application for a new DEA
Certificate of Registration. One question on the application,
hereinafter referred to as ``the liability question,'' asks, ``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?'' Respondent answered ``no'' to this
question. Respondent's application was approved by the registration
unit in the DEA Detroit Field Division, and Respondent was issued the
DEA Certificate of Registration that is the subject of these
proceedings.
A DEA investigator testified at the hearing before Judge Bittner
that had Respondent answered ``yes'' to the liability question his
application would have been referred to the local DEA office in
Columbus, Ohio for investigation. The investigator further testified on
cross-examination however, that had Respondent answered ``yes'' to the
liability question, his application would ``more than likely'' have
been granted. The investigator further testified that there was nothing
that would lead him to believe Respondent intentionally tried to
circumvent DEA procedures to acquire a DEA registration, and that there
had never been any charges or allegations relating to Respondent's
handling of controlled substances.
Two individuals testified on behalf of Respondent, his office
manager and the dental technician who owns and operates the dental
laboratory that is located in Respondent's office. Both testified that
they overhead a conversation between Respondent and an unidentified DEA
employee which was conducted using a speaker telephone so they were
able to hear both parties to the conversation. The office manager
testified that the conversation occurred sometime ``in July'' and that
Respondent asked how he should respond to the liability question in
light of the Ohio Board's action. The office manager could not
specifically identify who Respondent talked to, but testified that the
DEA employee told Respondent that because his Ohio dental license was
no longer suspended, he should answer the liability question in the
negative. The dental technician was also unable to specifically
identify the DEA employee, but testified that the DEA employee
instructed Respondent to answer the liability questions in the negative
after ascertaining that Respondent's suspension was unrelated to his
handling of controlled substances. Both testified that Respondent is
very cautious in his prescribing of controlled substances.
Pursuant to 21 U.S.C. 824(a)(1), ``A registration pursuant to
section 823 of
[[Page 8688]]
this title to * * * dispense a controlled substance * * * may be
suspended or revoked by the Attorney General upon a finding that the
registration--(1) has materially falsified any application filed
pursuant to or required by this subchapter or subchapter II of this
chapter.'' DEA has previously held that in finding that there has been
a material falsification for purposes of 21 U.S.C. 824(a)(1), it must
be determined that the applicant knew or should have known that the
response given to the liability question was false. See, Martha
Hernandez, M.D., 62 FR 61,145 (1997); Bobby Watts, M.D., 58 FR 4699
(1993); Herbert J. Robinson, M.D., 59 FR 6304 (1994).
Here, it is undisputed that Respondent's Ohio dental license had
been suspended and placed on probation, yet Respondent answered ``no''
to the question asking whether he had ``ever had a state professional
license or controlled substance registration revoked, suspended,
denied, restricted or placed on probation.'' It is also undisputed that
Respondent knew that his Ohio dental license had previously been
suspended. Therefore, the Acting Deputy Administrator concurs with
Judge Bittner's conclusion ``that Respondent materially falsified his
application, and that therefore there are grounds to revoke
Respondent's DEA registration.''
The question then becomes whether revocation is the appropriate
sanction in light of the facts and circumstances of this case.
Respondent argues that although he was aware that his Ohio dental
license had been suspended, he did not understand the liability
question. However, DEA has previously held that such an explanation
does not relieve the applicant of the ``responsibility to carefully
read the question and to honestly answer all parts of the question.''
Martha Hernandez, M.D., 62 FR 61,145, 61,147 (1997).
Nevertheless, in exercising his discretion in determining the
appropriate remedy in this case, the Acting Deputy Administrator finds
it significant that Respondent presented the testimony of two
individuals who overheard Respondent telephoning someone before
executing the application. The Acting Deputy Administrator concurs with
Judge Bittner's finding ``that the telephone call indicates that
Respondent attempted to comply with the applicable laws and regulations
related to maintaining a DEA registration.'' While this telephone call
does not relieve Respondent of the responsibility for falsifying his
application, it does indicate an effort on his part to answer the
question correctly.
Also, in considering the appropriate remedy in this matter, the
Acting Deputy Administrator has considered that the suspension of
Respondent's Ohio dental license did not relate to his handling of
controlled substances. While DEA has revoked registrations in the past
based upon the material falsification of an application that was not
related to the mishandling of controlled substances, the Acting Deputy
Administrator has previously concluded that he must consider all of the
facts and circumstances of a particular case. See Id. at 61,148. Here,
Respondent apparently attempted to get guidance on the appropriate
response to the liability question, the office manager and dental
technician both testified that Respondent was very cautious in his
prescribing of controlled substances, and Judge Bittner was favorably
impressed with ``the manner in which (Respondent) conducted himself at
the hearing.'' Therefore, the Acting Deputy Administrator agrees with
Judge Bittner's conclusion that revocation would be too severe a
sanction given the facts and circumstances of this case.
However, the Acting Deputy Administrator is troubled by
Respondent's failure to correctly answer the liability question on the
application. DEA relies on the truthfulness of the responses to the
questions on the application. Therefore, the Acting Deputy
Administrator finds that it is appropriate to reprimand Respondent for
his failure to accurately respond to the liability question on his
application for a DEA Certificate of Registration.
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 reprimands
Samuel Arnold, D.D.S., for failing to properly complete his DEA
registration application. The Acting Deputy Administrator further
orders that DEA Certificate of Registration BA4089620, issued to Samuel
Arnold, D.D.S., be continued, and any pending applications be granted.
This order is effective February 20, 1998.
Dated: February 12, 1998.
[FR Doc. 98-4359 Filed 2-19-98; 8:45 am]
BILLING CODE 4410-09-M
