[Federal Register Volume 60, Number 57 (Friday, March 24, 1995)]
[Notices]
[Pages 15585-15587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7316]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Henry M. Goshen, M.D.; Denial of Application
On February 14, 1994, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Henry M. Goshen, M.D. (Dr. Goshen), of Chicago,
Illinois, proposing to deny his application for a DEA Certificate of
Registration, as a practitioner, under 21 U.S.C. 823(f). The Order to
Show Cause alleged that Dr. Goshen's registration would be inconsistent
with the public interest, as that term is used in 21 U.S.C. 823(f).
The Order to Show Cause was served on Dr. Goshen by registered
mail. More than thirty days have passed since the Order to Show Cause
was received by Dr. Goshen and the DEA has received no response
thereto. Pursuant to 21 CFR 1301.54(a) and 1301.54(d), Henry M. Goshen,
M.D., is deemed to have waived his opportunity for a hearing.
Accordingly, the Deputy Administrator now enters his final order in
this matter without a hearing and based on the investigative file. 21
CFR 1301.57.
The Deputy Administrator finds that the Illinois State Police
initiated an undercover investigation of Dr. Goshen's medical practice.
On October 24, 1985, an undercover police officer met Dr. Goshen at his
office to request diet pills. Notwithstanding that Dr. Goshen
determined that this person was not overweight, he dispensed to the
undercover officer 14 dosage unites of phentermine, a Schedule IV
controlled substance, which he indicated was a two week supply.
On October 29, 1985, the undercover officer returned to Dr.
Goshen's office and asked for additional diet pills, explaining that
she had given some of her phentermine to a girl friend. Dr. Goshen then
dispensed more phentermine to the undercover officer. The undercover
officer returned to Dr. Goshen's office, on November 5, 1985 and, once
again, Dr. Goshen dispensed phentermine tablets. The undercover officer
paid Dr. Goshen $20 for each visit.
Based upon excessive purchase reports for controlled substances and
complaints about Dr. Goshen's controlled substance dispensing
practices, a Chicago DEA task force initiated an undercover operation
in 1989. On October 5, 1989, an undercover police officer visited Dr.
Goshen's office, seeking controlled substances. When she encountered
Dr. Goshen, she requested phentermine using the street name for this
controlled substance. Dr. Goshen, without seeking any medical
information from her or performing any medical examinations, dispensed
28 dosage units of phentermine in exchange for $40.
This undercover officer returned to Dr. Goshen's office on October
17, 1989, again requesting more phentermine and using the drug's street
name. On this occasion, she asked for double the amount she received on
the prior visit. In response, Dr. Goshen dispensed two envelopes, each
containing 28 phentermine capsules. When Dr. Goshen gave her the drugs,
he asked her who would receive the pills. The officer gave him three
names. She then paid Dr. Goshen $80 for the phentermine.
On November 3, 1989, Dr. Goshen was arrested and charged with one
count of illegal distribution of controlled substances in violation of
21 U.S.C. 841(a)(1). At the time of his arrest, a search warrant was
executed at Dr. Goshen's office and during the search approximately
42,000 dosage units of controlled substances were seized. Further
investigation revealed that Dr. Goshen had no dispensing
[[Page 15586]] records for any controlled substances, as required by 21
U.S.C. 827.
DEA investigators discovered that Dr. Goshen ordered 6,250 dosage
units of controlled substances on November 6, 1989, shortly after he
was released following his arrest. The investigation revealed that Dr.
Goshen explained to the distributor that the drug order was necessary
to replenish his stock because his office had recently been
burglarized.
On November 15, 1989, DEA issued an Order to Show Cause/Immediate
Suspension of Dr. Goshen's previous DEA Certificate of Registration.
The Order to Show Cause/Immediate Suspension was based upon the
undercover buys of phentermine; the search of Dr. Goshen's office and
discovery of 42,000 dosage units of controlled substances along with no
dispensing records; and the order of controlled substances that Dr.
Goshen made, shortly after his arrest, under the pretext that his
office had been burglarized.
On February 15, 1990, in the United States District Court, Northern
District of Illinois, Dr. Goshen pled guilty to one felony count of
knowingly and intentionally omitting material information from reports,
records and other documents required to be made, kept or filed, in
violation of 21 U.S.C. 843(a)(4)(A). Specifically, Dr. Goshen failed to
keep records of receipt or disposition of approximately 19,950 dosage
units of phentermine. On June 5, 1990, Dr. Goshen was sentenced to five
years probation, 200 hours of community service and a $10,000 fine. As
a result of the conviction, on February 25, 1990, Dr. Goshen
surrendered his previous DEA Certificate of Registration.
On July 11, 1990, the Illinois Department of Professional
Regulation (Department of Regulation) filed a complaint, seeking to
revoke Dr. Goshen's medical license based upon his felony conviction.
Dr. Goshen entered into a stipulation and recommendation for settlement
with the Illinois Medical Disciplinary Board and Controlled Substance
Hearing Officer. Dr. Goshen agreed that: His medical license be
suspended for three months and thereafter be placed on probation for
five years; his state controlled substance license be suspended for
five years; he complete 50 hours of continuing medical education
courses on the use of controlled substances; he complete 50 additional
hours of continuing medical education for each year of his five year
probation; and he pay a $5,000 fine. The stipulation and recommendation
was adopted by the Department of Regulation on June 3, 1991.
On March 3, 1992, the Bureau of Medical Quality Assurance of the
Illinois Department of Public Aid (Department of Public Aid) served Dr.
Goshen with a complaint seeking to terminate his right to participate
in the Medical Assistance Program. The complaint was predicated on his
felony conviction and the action taken against Dr. Goshen's medical
license. During an administrative hearing regarding this complaint, Dr.
Goshen testified that phentermine is non-addicting and had a street
value far less than other controlled substances. During cross-
examination, he admitted, however, that other medical authorities
considered phentermine to be a drug that posed a substantial risk of
dependency with repeated use. Dr. Goshen also admitted that he had
always known that records for phentermine were required to be kept.
Following the hearing, the hearing officer recommended that Dr.
Goshen's participation in the Medical Assistance Program be revoked.
The Director of the Department of Public Aid adopted the recommendation
and terminated Dr. Goshen's right to participate in the Medical
Assistance Program, effective November 10, 1992.
Dr. Goshen then sought to have the Department of Regulation
reinstate his controlled substance privileges before the five year term
expired. Based upon a stipulated agreement, effective January 11, 1993,
the Department of Regulation agreed to restore Dr. Goshen's Illinois
controlled substance privileges, on a four year probationary status.
Pursuant to the order, Dr. Goshen was limited to prescribing, but not
dispensing, controlled substances.
In evaluating whether Respondent's registration by the Drug
Enforcement Administration would be inconsistent with the public
interest, as that term is used in 21 U.S.C. 823(f), the Deputy
Administrator considers the factors enumerated in 21 U.S.C. 823(f).
They are as follows:
(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.
In determining whether an applicant's registration is inconsistent
with the public interest, the Deputy Administrator is not required to
make findings with respect to each of the factors listed above.
Instead, the Deputy Administrator has the discretion to give each
factor the weight he deems appropriate, depending upon the facts and
circumstances of each case. See David E. Trawick, D.D.S., Docket No.
88-69, 53 FR 5326 (1988).
Factor one is applicable based upon the Department of Regulation's
action against Dr. Goshen's medical license which initially resulted,
inter alia, in a five year suspension of his state controlled
substances privileges in June 1991. Although the Department of
Regulation lifted the five year suspension in 1993, Dr. Goshen's
controlled substance privileges were still placed on probation for four
years and limited to the prescribing of controlled substances only.
Factor one is also applicable based upon the Illinois Department of
Public Aid's action which terminated Dr. Goshen's right to participate
in the Medical Assistance Program in November 1992.
Factor two is applicable based upon Dr. Goshen's dispensing of
phentermine to two undercover agents on five separate occasions in 1985
and 1989. The transcripts reveal that there was not even a pretense of
a medical justification for Dr. Goshen's actions. During the 1989
visit, the undercover officer requested the drugs by using street names
and telling Dr. Goshen that the drugs were for herself as well as
others.
Factor three is applicable based upon Dr. Goshen's conviction for
knowingly and intentionally failing to keep required records for the
massive amount of phentermine that he ordered.
Factor four is relevant in light of the undercover buys of
phentermine as noted under factor two. The blatant sale of the
phentermine in no way complies with Federal or State laws.
Factor five is relevant based upon the conduct of Dr. Goshen
shortly after his arrest. Notwithstanding his arrest and the fact that
large quantities of phentermine were removed from Dr. Goshen's office,
Dr. Goshen almost immediately ordered large quantities of phentermine,
explaining to the distributor that he needed the drugs because his
office had been burglarized.
No evidence of explanation or mitigating circumstances has been
offered by Dr. Goshen. Therefore, the Deputy Administrator concludes
that Dr. Goshen's application for a DEA Certificate of Registration
must be denied. [[Page 15587]]
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, executed by Henry M. Goshen, M.D., on February 9, 1993,
for a DEA Certificate of Registration as a practitioner, be, and it
hereby is, denied. This order is effective April 24, 1995.
Dated: March 20, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-7316 Filed 3-23-95; 8:45 am]
BILLING CODE 4410-09-M
