[Federal Register Volume 61, Number 57 (Friday, March 22, 1996)]
[Notices]
[Pages 11867-11871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6979]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 94-42]
William P. Jerome, M.D.; Grant of Restricted Registration
On March 29, 1994, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to William P. Jerome, M.D., (Respondent) of
Davenport, Iowa, notifying him of an opportunity to show cause as to
why DEA should not deny his application for registration as a
practitioner under 21 U.S.C. 823(f), as being inconsistent with the
public interest. Specifically, the Order to Show Cause alleged in
substance that the Respondent (1) between December 1988 and February
1990, prescribed and dispensed controlled substances to individuals in
exchange for money, cocaine and/or sexual favors; (2) allowed an
individual to grow marijuana on his property; (3) falsified the names
of individuals on prescriptions that he issued for controlled
substances; (4) on February 7 and 8, 1990, dispensed 316 dosage units
of controlled substances to an undercover officer for no legitimate
medical reason; (5) on February 22, 1990, was indicted in the U.S.
District Court for the Southern District of Iowa on nine felony counts
related to the unlawful distribution and prescription of controlled
substances; (6) pled guilty on April 26, 1990, to one count of
conspiracy to distribute controlled substances, and as a condition of
the plea agreement, voluntarily surrendered his DEA registration, was
sentenced to twelve months imprisonment with a five year term of
supervised release probation, and fined $15,000.00; and (7) on November
29, 1990, as a result of the criminal conviction, the Iowa Board of
Medical Examiners (Medical Board) revoked his medical license, which
was subsequently reinstated on October 13, 1992, subject to certain
terms and conditions.
On April 21, 1994, the Respondent, through counsel, filed a timely
request for a hearing, and following prehearing procedures, a hearing
was held in Des Moines, Iowa, on February 8 and 9, 1995, before
Administrative Law Judge Mary Ellen Bittner. 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 August
22, 1995, Judge Bittner issued her Opinion and Recommended Ruling,
recommending that the Respondent's application be granted with
specified restrictions. Neither party filed exceptions to her decision,
and on September 25, 1995, Judge Bittner transmitted the record of
these proceedings to the Deputy Administrator.
The 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 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 Deputy Administrator finds that in November of 1989, a DEA
diversion investigator (Investigator) received information from a
special agent of the Iowa Division of Narcotics Enforcement (Special
Agent) that the Respondent gave prescription drugs and prescriptions
written under fictitious names to a Ms. M. in exchange for sexual
favors. On January 16, 1990, the Investigator interviewed Ms. M., and
she stated that she had received controlled substance samples and
prescriptions from the Respondent in exchange for sexual favors, that
the Respondent had written prescriptions for her, using about twenty
names other than her own, and that she had taken the prescriptions to a
number of different pharmacies to be filled. The Investigator testified
before Judge Bittner, stating that Ms. M. also had provided the name of
another individual (Mr. S.) who had received prescriptions from the
Respondent for controlled substances intended for her use, and that
this individual had filled the prescriptions and had given the
substances to her in exchange for sexual favors, all with the
Respondent's knowledge. Further, Ms. M. provided the name of an
individual (Mr. D.) who had supplied cocaine to the Respondent. Ms. M.
also told the Investigator that the respondent had provided her with
cocaine, and that she had witnessed him use cocaine.
Ms. M. testified before a grand jury the same day that the
Investigator
[[Page 11868]]
interviewed her, and the grand jury testimony basically corroborated
the information she had provided to the Investigator. Ms. M. also
testified that she was a drug addict and had used cocaine and narcotic
pain medication.
The Investigator testified that, at the end of January and the
beginning of February of 1990, she, another DEA diversion investigator,
and an investigator from the Iowa Board of Pharmacy Examiners, had
conducted a survey of approximately 15 to 20 area pharmacies to obtain
prescriptions issued by the Respondent. The prescription survey showed
that (1) between March 11 and September 28, 1989, Ms. M. had received
16 prescriptions totaling 450 dosage units of drugs containing
propoxyphene, a Schedule IV controlled substance, which she had filled
at nine different pharmacies; (2) between November 1, 1988, and April
14, 1989, the Respondent had issued Mr. S. 15 prescriptions totaling
500 dosage units of drugs containing propoxyphene, which Mr. S. had
filled at three different pharmacies; (3) on December 3, 1988, and May
19, 1989, the Respondent had issued prescriptions to Mr. D. for 30
Ativan, a brand name for a drug containing lorazepam, a Schedule IV
controlled substance, and for 30 Percocet, a brand name for a drug
containing oxycodone, a Schedule II controlled substance; and (4) on
February 15, 1989, the Respondent had issued a prescription for 20
Darvocet-N, a brand name for a drug containing propoxyphene, to Ms.
M.'s husband, in the name of ``Mike Barnes.'' However, the Investigator
also testified that these prescriptions probably constituted no more
than five percent of the Respondent's total number of prescriptions
reviewed. The survey also showed that Ms. M. had received numerous
prescriptions for controlled substances in false names between March of
1989 and September of 1989.
In February of 1990, the Special Agent arranged a controlled
substance buy from the Respondent, and the Respondent, seeking cocaine,
provided the Special Agent, among other substances, 60 Xanax .5 mg.
tablets, 30 Xanax 1 mg. tablets, and 39 Vicodin tablets. Vicodin is a
brand name product containing hydrocodone and is listed in Schedule
III, and Xanax is a brand name drug containing the Schedule IV
substance alprazolam. The Special Agent gave the Respondent $300.00 in
cash and promised to bring cocaine the next day. The Special Agent also
testified before Judge Bittner that during this transaction the
Respondent was intoxicated.
The next evening the Special Agent again met with the Respondent,
and prior to the meeting he had agreed to provide the Respondent with
cocaine in return for double the quantity of pharmaceutical controlled
substances he had received the previous night. According to the Special
Agent's testimony, the Respondent appeared completely sober, and he
tried to return the $300.00 received from the Special Agent the
previous night, but the Special Agent told him to keep the money. The
Special Agent asked the Respondent if he could obtain Percodan or
Dilantin, but the Respondent had refused, stating that acquiring
Schedule II drugs would be too difficult to make the effort worthwhile.
Dilantin is not a controlled substance, but Percodan contains
oxycodone, a Schedule II controlled substance. Ultimately, the
Respondent gave the Special Agent three envelopes, each containing 25
Vicodin, and he again asked for the cocaine. However, he was then
arrested.
After his arrest, the Investigator interviewed the Respondent, who
stated that he thought controlled substance samples were his to use as
he pleased and that he was not required to keep any records of them.
The Respondent also told the Investigator that he had given away drugs,
but that he had not sold them. He also admitted that on two occasions
he had traded controlled substance samples for cocaine. With the
Respondent's consent, the Investigator searched his office, where she
found patient records for Ms. M. and Mr. S., but not for Mr. D.
Subsequently, in February of 1990, the Investigator interviewed Mr.
D., who stated that the Respondent had obtained cocaine from him once
or twice a month, that the Respondent sometimes had provided him with
unused syringes, and that he had grown marijuana on the Respondent's
property. Further, Mr. D. testified before the grand jury on February
20, 1990, stating that for approximately two years beginning in October
of 1987, he had provided at least one and three-quarters grams of
cocaine per week to the Respondent, and that the Respondent never had
written him prescriptions for controlled substances. Rather, the
Respondent had traded controlled substances such as Xanax, Valium
Librium, Vicodin, or Lortab, for the cocaine. Mr. D. also testified
that he had grown marijuana on the Respondent's property with his
knowledge and consent.
On February 22, 1990, an indictment against the Respondent was
filed in the United States District Court for the Southern District of
Iowa, and on April 26, 1990, the Respondent entered into a plea
agreement, specifying that he would plead guilty to one count of
conspiracy to distribute controlled substances in violation of 21
U.S.C. 846, and that he would surrender his DEA registration. In
exchange, the government agreed to dismiss the other counts, to include
six counts of unlawful distribution of controlled substances, and one
count of unlawful prescribing. On July 31, 1990, the court accepted the
Respondent's guilty plea and sentenced him to twelve months
incarceration to be followed by five years supervised probation, to
include a program of testing and treatment for drug and alcohol abuse,
and a fine of $15,000.00.
On September 13, 1990, the Medical Board filed a complaint, seeking
action against the Respondent's medical license based on his felony
conviction ``for a crime related to his profession.'' On December 31,
1990, the Medical Board issued an Order revoking the Respondent's
license to practice medicine.
Testifying before Judge Bittner, the Respondent denied ever trading
prescriptions for sexual favors, and stated that he had terminated his
client and prostitute relationship with Ms. M. after she had discovered
that he was a physician. The Respondent also asserted that he had
issued some prescriptions to Ms. M. in an attempt to help her, and that
other call-in prescriptions were written in different names, but that
he had assumed he had patients with those names, or that when he was
covering for other physicians, that they had patients with those names.
He testified that ``[s]ome of those prescriptions I wrote under duress,
with the threats of extortion, under the circumstances of my
addiction.'' However, the Respondent also testified that he had
falsified prescriptions for Ms. M. ``[o]n one or two occasions * * * at
her request.'' He also stated that Ms. M. had continued to demand drugs
from him, that she had called him at night, and that she had demanded
money and had threatened to expose him to his family and the medical
community. The Respondent testified that in May or June of 1989, he
told Ms. M. that he would no longer see or speak with her.
The Respondent also testified about the undercover operation,
stating, ``I was a desperate man trying to score my fix, and I was
desperately trying to negotiate a deal. And at the time I would have
done whatever it took to get it.'' The Respondent also stated that he
did not use marijuana, that he had nothing to do with the marijuana
grown on his property, that when he found out about it, he ``repeatedly
asked that it be
[[Page 11869]]
removed,'' and that ultimately it was removed.
A United States Probation Officer (Officer) testified that,
following the Respondent's incarceration, he was placed on supervised
release on August 5, 1991, for a term of five years. The Officer
testified that she had been the Respondent's probation officer since
December of 1991, and she was responsible for monitoring his compliance
with the terms of his supervised release. She stated that the
Respondent had accomplished everything she asked of him, had arrived
promptly for meetings with her, and submitted required monthly reports
in a timely manner, and ``has done his best to comply with all the
conditions.'' The Officer also testified that the Respondent was
eligible for early parole and that, conditioned upon the Respondent's
paying his fine, she planned to recommend early termination to the
court.
On March 9, 1992, the Respondent petitioned the Medical Board for
reinstatement of his Iowa medical license. On August 19, 1992, the
Medical Board held a hearing on that petition, and on October 13, 1992,
the Medical Board issued an Order adopting the recommendation of a
panel and reinstating the Respondent's license, subject to a five-year
probation. The terms of probation included, among other things, that
the Respondent (1) abstain from the use of alcohol and illicit drugs,
(2) obtain psychiatric counseling and attend meetings of Alcoholics
Anonymous or a similar organization twice weekly, (3) submit quarterly
reports of his controlled substance prescriptions to the Medical Board,
and (4) associate with at least one other physician in his practice. A
Medical Board Investigator testified that he was responsible for
monitoring the Respondent on behalf of the Medical Board, and that to
the best of his knowledge, the Respondent was in complete compliance
with the terms of his probation.
By letter dated November 19, 1992, the Respondent's eligibility to
participate in Medicare was reinstated. On February 22, 1993, the
Respondent applied for a DEA Certificate of Registration as a
practitioner, disclosing information about his prior conviction and
subsequent surrender of his prior DEA registration. Also, by letter
dated September 22, 1993, the Iowa Board of Pharmacy Examiners notified
counsel for the Respondent that the Respondent's application for a
state controlled substance registration was approved.
The Program Manager of the Start InPatient Program for the Center
for Alcohol and Drug Services (Center) in Davenport, testified that the
Respondent had been evaluated at the Center in July of 1991, and that a
treatment program had been established for him. The Program Manager
testified that the Respondent had undergone urinalysis examinations at
frequencies ranging from once to six times per month between August of
1991 and June of 1993, and that none of the tests were positive.
Beginning again in September of 1994, through January of 1995, the
Respondent was tested from one to three times per month, with no
adverse test results. The Program Manager also stated that, had the
Respondent been using cocaine, these urinalysis tests would have
detected it.
The Program Manager also testified that he had been in both
individual and group counseling sessions with the Respondent from 1991
until 1993, and that the Respondent had expressed remorse about the
effects of his chemical abuse on his family, other physicians in the
area, and about the loss of his medical practice. The Program Manager
also stated that he believed that:
[A]t this point in time * * * Mr. Jerome has successfully
completed the process that's been required in terms of treatment for
rehabilitation for his chemical dependency. I think that he has
worked under some supervision of numerous qualified other physicians
who have maintained contact with him on a regular basis. My
understanding is that he has contact in terms of support units with
other physicians who are recovering in Iowa, * * *. I think that Mr.
Jerome has gained enough skills during treatment and recovery to be
able to seek help if he has urges, * * *. Those are specifically
what he's been trained to react to in different fashion than he has
in the past.
A psychiatrist (Psychiatrist), testified that he had known the
Respondent since 1980, and that in November of 1989, the Respondent
became his patient. He testified that, as of the date of the hearing
before Judge Bittner, he saw the Respondent monthly, that the
Respondent had shown remorse for his actions, and that he has had to
deal with the consequences of his misconduct. The Psychiatrist
testified that the Respondent had become more mature and better able to
see how his behavior affected others.
The Psychiatrist further testified that there was a shortage of
internists in Davenport, and that the Respondent's lack of a DEA
registration hampered his ability to treat his patients. He also stated
that the Respondent was a competent physician, and that he would not
hesitate to refer a patient to the Respondent for treatment.
The Respondent testified before Judge Bittner concerning his
personal rehabilitation, stating that, while he was in prison, he
thought about the people he had hurt, including his patients, his
friends, his family, and himself. Also while he was incarcerated, the
Respondent enrolled in a chemical dependency program and ``learned
through treatment that about all I can do is try to make my amends to
the people that I have hurt, to do the best job I can to move forward,
and to make sure it doesn't happen again.'' The Respondent stated that
he felt tremendous regret for his past actions, and that as of the
hearing, he felt that he was a ``more caring, []calm[er], a little more
rational individual who doesn't use drugs or alcohol.''
The Respondent testified that after he was transferred to a halfway
house, he continued outpatient treatment, with individual counseling
sessions once or twice per week, that he also attended Narcotics
Anonymous and Alcoholics Anonymous meetings twice per week, and that in
June of 1991, he was transferred to a work release program in
Davenport, where he resumed seeing a psychiatrist he had seen there
prior to his arrest. According to the Respondent, he has learned how to
prevent relapse, has continued to regularly attend twelve-step
meetings, and has developed some insight into his own behavior. The
Respondent also testified that he did not want to put either himself or
his family ``through this again.''
The Director of the Iowa Department of Public Health (Director)
testified that studies have indicated that the Iowa Medical Board is
the second strictest in the United States in terms of penalties imposed
on physicians who have been disciplined. He also testified that he was
familiar with the disciplinary proceedings involving the Respondent,
and that to the best of his knowledge, the Respondent had satisfied the
conditions imposed upon him. The Director also testified that he
believed that reinstatement of the Respondent's DEA registration would
be in the public interest, for the Medical Board had also considered
the best interest of the public, as well as the Respondent's
professional credentials and compliance with the requirements it
imposed, in deciding to restore his license to practice medicine.
The Respondent also offered into evidence letters from various
physicians, one of whom was a patient of his, attesting to the
Respondent's expertise, compassion, and concern for
[[Page 11870]]
his patients. The Respondent also submitted letters from physicians to
United States Senator Charles E. Grassley, seeking his support for the
Respondent's application, and letters to the Medical Board from various
patients, colleagues, and friends, all supporting reinstatement of the
Respondent's medical license. Also, the Respondent submitted letters
written to the Administrator of DEA from Governor Branstad of Iowa, and
from United States Representative James A. Leach of Iowa.
It is undisputed that the United States Department of Health and
Human Services has designated Scott County, Iowa, which includes
Davenport, as an area with a shortage of primary care physicians
willing and able to treat Medicaid patients. The Respondent testified
that as of the date of the hearing, he was practicing in a clinic in
the inner city of Davenport, and that his patients were older, sicker,
had less access to medical care, and were more likely to be on Medicaid
than those he treated prior to the revocation of his medical license.
The Respondent stated that he believed that granting his application
for a DEA registration would be in the public interest, because he felt
that the lack of authority to handle controlled substances severely
handicapped his ability to treat his patients. Without such a
registration, he had had great difficulty obtaining either hospital
staff privileges or professional liability insurance, and he was
ineligible to participate in several managed care plans, In addition,
the Respondent testified that he had been offered a position as
assistant director for the Center of Alcohol and Drug Services, but
that the offer was contingent on having a DEA registration.
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 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 FR 16422
(1989).
In this case, all five factors are relevant in determining whether
the Respondent's registration would be inconsistent with the public
interest. As to factor one, ``recommendation of the appropriate State
licensing board * * *'', as a result of the Respondent's misconduct
resulting in a felony conviction, the Medical Board revoked his medical
license on December 31, 1990. Although his license was reinstated on
October 13, 1992, it was subject to five-year's probation with
significant conditions to be met.
As to factor two, the Respondent's ``experience in dispensing * * *
controlled substances,'' uncontroverted evidence was presented that, on
two occasions in February of 1990, the Respondent distributed
controlled substances to the Special Agent without a legitimate medical
purpose. The record also contains evidence that the Respondent misused
samples of controlled substances by trading them for cocaine or by
improperly giving them away.
As to factor three, the Respondent's ``conviction record under
Federal * * * laws relating to the * * * distribution, or dispensing of
controlled substances,'' and factor four, the Respondent's [c]ompliance
with applicable State, Federal, or local laws relating to controlled
substances,'' uncontroverted evidence demonstrated that the Respondent
was convicted in Federal court of conspiracy to distribute controlled
substances in violation of 21 U.S.C. 846. Further, the Respondent
admitted he engaged in the unlawful possession and use of cocaine prior
to his conviction.
As to factor five, ``[s]uch other conduct which may threaten the
public health or safety,'' the Deputy Administrator agrees with Judge
Bittner's observations regarding the Respondent's testimony concerning
his writing of prescriptions under duress or as a result of threats of
extortion linked with his drug addiction, referencing his prior
relationship with Ms. M. Specifically, Judge Bittner wrote: ``I also
note, however, that I find disturbing Respondent's contention that he
issued prescriptions in false names either by mistake or under duress.
A physician obviously should not issue a controlled substance
prescription to a patient he is not sure is under his treatment and
care.'' Such prescribing practices are not consistent with the
responsibilities inherent in receiving a DEA Certificate of
Registration. Therefore, the Deputy Administrator agrees with Judge
Bittner, that the Respondent's past misconduct ``constitutes sufficient
grounds to deny his application for DEA registration.''
However, the Respondent has also submitted extensive evidence of
his rehabilitation. Specifically, the Respondent has demonstrated that
his ability to participate in Medicare was reinstated on November 19,
1992, and his application for a state controlled substances
registration was approved on September 22, 1993. Further, as Judge
Bittner noted, the record established that at the time the Respondent
engaged in the misconduct at issue, he was actively addicted to alcohol
and cocaine. Yet, the record also demonstrates that he has actively
participated in, and successfully completed, a rehabilitation program
for his chemical dependency. Although he has submitted to urinalysis
testing periodically since 1991, all results have been negative.
As Judge Bittner noted, ``as of the date of the hearing[,]
Respondent had maintained his sobriety for nearly five years.''
Also, the Respondent submitted extensive favorable evidence from
colleagues and patients, attesting to his professional expertise, as
well as to the community's need for his specialty as a primary care
physician. Finally, the Respondent testified as to his remorse for his
past misconduct and his determination that he will not engage in such
conduct in the future. Although none of his remedial activities
justifies the grievous nature of his past misconduct, the Deputy
Administrator agrees with Judge Bittner's conclusion that, ``on balance
I conclude that the Government has not established by a preponderance
of the credible evidence that [the] Respondent's registration would be
inconsistent with the public interest.'' However, also on balance, the
Deputy Administrator agrees that a registration subject to the
following conditions would best serve the public's interest:
(1) The Respondent's controlled substance handling authority shall
be limited to writing of prescriptions only, and he shall not dispense,
possess, or store any controlled substance, except that the Respondent
may administer controlled substances in a hospital, and may possess
controlled substances which are medically necessary for his own use and
which he has obtained
[[Page 11871]]
pursuant to a written prescription from another licensed practitioner
(unless the substance is legitimately obtainable without a
prescription); and
(2) the Respondent shall submit, every calendar quarter, a log of
all controlled substance prescriptions he has written during the
previous quarter to the Special Agent in Charge of the nearest DEA
office, or his designee. These restrictions will run for a period of
three years from the effective date of the Respondent's registration.
Therefore, the Deputy Administrator finds that the public interest
is best served by granting the Respondent's application with the above
conditions. The Respondent submitted extensive evidence demonstrating
the need for the DEA Certificate of Registration in his current
practice, as well as evidence of the community's need for a physician
of his speciality with full prescribing capabilities. Given these
needs, the Deputy Administrator has determined that the public interest
will be better served in making this final order effective upon
publication, rather than thirty days from the date of publication.
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 CFR 0.100(b) and 0.104, hereby orders that the
application for a DEA Certificate of Registration submitted by William
P. Jerome, M.D., be, and it hereby is, granted, subject to the above
conditions. This order is effective upon publication in the Federal
Register.
Dated: March 18, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-6979 Filed 3-21-96; 8:45 am]
BILLING CODE 4410-09-M
