[Federal Register Volume 60, Number 57 (Friday, March 24, 1995)]
[Notices]
[Pages 15587-15588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7317]
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DEPARTMENT OF JUSTICE
[Docket No. 93-60]
James C. Graham, M.D.; Denial of Application
On June 7, 1993, the Deputy Assistant Administrator, Office of
Division Control, Drug Enforcement Administration (DEA), directed an
Order to Show Cause to James C. Graham, M.D. (Respondent), proposing to
deny his pending application for registration as a practitioner under
21 U.S.C. 823(f). The Order to Show Cause alleged that Respondent's
registration would be inconsistent with the public interest.
Respondent, through counsel, requested a hearing on the issues
raised in the Order to Show Cause. The matter was docketed before
Administrative Law Judge Mary Ellen Bittner. Following prehearing
procedures, a hearing was held in Fort Wayne, Indiana, on January 26,
1994.
On October 11, 1994, Judge Bittner issued her opinion and
recommended ruling, findings of fact, conclusions of law, and decision
in which she recommended that the Respondent's application for
registration be denied. Neither party filed exceptions to this opinion,
and on November 14, 1994, the administrative law judge transmitted the
record of the proceedings to the Deputy Administrator.
The Deputy Administrator has considered the record in its entirety
and, pursuant to 21 CFR 1316.67, enters his final order in this matter,
based on findings of fact and conclusions of law as hereinafter set
forth.
The administrative law judge found that Respondent received a
medical degree from Indiana University, and practiced medicine in Fort
Wayne continuously from 1958 to 1983. Respondent stated that he
sometimes saw as many as one hundred patients a day, often worked up to
18 hours a day, performed multiple surgeries and delivered two to three
hundred babies each year. Respondent also testified that many of his
patients were on welfare or Medicaid, and that he treated about thirty
percent of his patients without compensation. Respondent stated that
because of a busy schedule he was unable to keep appropriate
documentation on all of his patients.
Judge Bittner found that in 1982, the Allen County Police
Department received information that Respondent was writing
prescriptions in exchange for merchandise. Subsequently, a cooperating
individual and an undercover Indiana State police officer arranged
meetings with Respondent in a local restaurant.
Judge Bittner found that in October through December 1982,
Respondent provided the cooperating individual several prescriptions
for a Schedule IV controlled substance in exchange for liquor and meat,
and on one occasion issuing the prescription to the confidential
informant in another's name. Subsequently, in November and December
1982, Respondent gave the undercover officer several prescriptions for
Schedule III and IV controlled substances in exchange for meat and
liquor. In January and February 1983, both undercover operatives were
able to continue to acquire prescriptions for controlled substances,
including a Schedule II narcotic controlled substance, from Respondent
in exchange for merchandise. At the hearing, the undercover officer
testified that Respondent never performed any physical examination
during any visit.
The administrative law judge found that on November 21, 1983,
Respondent was convicted in the United States District Court for the
Northern District of Indiana of fourteen felony counts of dispensing
controlled substances not in the course of professional practice and
not for a medical purpose. Respondent was sentenced to three years
imprisonment suspended to thirty days in jail and three years
probation. As a result of this conviction, the Medical Licensing Board
of Indiana summarily suspended Respondent's medical license. After a
hearing in April 1984, that Board reinstated Respondent's medical
license upon probationary terms.
Judge Bittner found that after Respondent had submitted his current
pending application for DEA registration in 1991, he told DEA
investigators that he had been set up and had never written any
prescriptions for controlled substances that were illegitimate.
Respondent testified that since his State medical license were
restored he has never been accused of violating any rules or
regulations. He stated that he has been limited to a part-time medical
practice because of illness.
During his testimony, Respondent admitted meeting both undercover
operatives. However, he denied that he ever gave either one a
prescription in exchange for meat or liquor. Respondent testified that
any prescription he may have given these individuals was for a
legitimate medical purpose.
Respondent submitted documentary evidence on his behalf and several
character witnesses also testified. The administrative law judge found
that one psychiatrist reported that Respondent's judgment had been
impaired at the time of these incidents, and another had found that an
automobile accident had resulted in a brain injury to Respondent that
had caused deficits in judgment. Both physicians reported this
condition as now resolved. Other health professionals offered testimony
that Respondent was a competent, compassionate, well qualified
physician who posed no threat to the community.
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) sets forth the following factors to 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.
It is well established that these factors are to be considered in
the disjunctive, i.e., the Deputy Administrator may properly rely on
any one or a combination of factors, and give each factor the weight he
deems appropriate. Henry J. Schwarz, Jr., M.D., 54 FR 16422 (1989).
Of the stated factors, the administrative law judge found that all
five factors were relevant. Judge Bittner determined that the record
established that Respondent blatantly and unabashedly abused his
privilege as a registrant by issuing controlled substance prescriptions
in return for his own gain in the form of goods and
[[Page 15588]] merchandise. The administrative law judge considered the
fact that this conduct occurred more than ten years before, but found
that Respondent had not acknowledged wrongdoing or expressed any
remorse for his misconduct. Judge Bittner concluded that Respondent is
unable or unwilling to discharge the responsibilities inherent in a DEA
registration, and recommended that his application for registration be
denied.
The Deputy Administrator adopts the opinion and recommended ruling,
findings of fact, conclusions of law and decision of the administrative
law judge in its entirety. Based on the foregoing, the Deputy
Administrator concludes that Respondent's registration is inconsistent
with the public interest. 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 of James C. Graham, M.D., be and it hereby
is, denied. This order is effective March 24, 1995.
Dated: March 20, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-7317 Filed 3-23-95; 8:45 am]
BILLING CODE 4410-09-M
