[Federal Register Volume 60, Number 113 (Tuesday, June 13, 1995)]
[Notices]
[Pages 31166-31167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14369]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 93-74]
Richard C. Matzkin, M.D. Grant of Continued Registration
On July 27, 1993, the Deputy Assistant Administrator (then-
Director), Office of Diversion Control, Drug Enforcement Administration
(DEA), issued an Order to Show Cause to Richard C. Matzkin, M.D. of
Bethesda, Maryland (Respondent), proposing to revoke his DEA
Certificate of Registration, AM2532631, and deny any pending
applications for such registration. The statutory basis for the Order
to Show Cause was that Respondent's continued registration would be
inconsistent with the public interest as that term is used in 21 U.S.C.
823(f) and 824(a)(4).
Respondent, through counsel, requested a hearing on the issues
raised in the Order to Show Cause, and the matter was docketed before
Administrative Law Judge Mary Ellen Bittner. Following prehearing
procedures, a hearing was held in Arlington, Virginia on March 14,
1994.
On November 3, 1994, the administrate law judge issued her opinion
and recommended ruling, findings of fact, conclusions of law and
decision, recommending that Respondent's DEA Certificate of
Registration not be revoked subject to his compliance with several
requirements. No exceptions to Judge Bittner's decision were filed by
either party.
On December 6, 1994, the administrative law judge transmitted the
record of the proceeding to the Deputy Administrator. After careful
consideration of the record in its entirety, the Deputy Administrator
enters his final order in this matter, in accordance with 21 CFR
1316.67, based on findings of fact and conclusions of law as set forth
herein.
The administrative law judge found that Respondent obtained a
license to practice medicine in Maryland in 1984 and maintained a
practice in Bethesda. Respondent subsequently became licensed in
Virginia and the District of Columbia. In the summer of 1989,
Respondent began a general practice in Virginia, but continued to
maintain a practice in Bethesda which, by Respondent's testimony, was
limited to treating members of his immediate family and three close
friends.
The administrative law judge found that, in 1986, a detective from
the Pharmaceutical Unit of the Montgomery County, Maryland, Police
Department was informed by several pharmacists that they had received
prescriptions written by Respondent which they felt were not within a
legitimate prescribing pattern, and that most of the prescriptions were
for Percocet, a Schedule II controlled substance. The detective further
testified that he found approximately 50 prescriptions for Percocet
issued by Respondent at various area pharmacies, and that most of these
prescriptions had been issued for five individuals, several of whom had
been targets of prior investigations and/or had been arrested on drug
charges.
The administrative law judge further found that a former
investigator for the Virginia Department of Health (the Virginia
investigator) investigated a complaint that Respondent was prescribing
controlled substances to persons living outside of the state. The
investigator found that most of these prescriptions were written for
Percocet and that they had been written for Respondent's father,
brother and then-wife, as well as two of the individuals identified by
the Montgomery County, Maryland investigation.
The Virginia investigator testified that Respondent had prescribed
controlled substances, primarily Percocet, to a number of individuals
without a legitimate medical need and without conducting medical
examinations prior to issuing controlled substances prescriptions. In
one such instance, Respondent prescribed controlled substances to an
individual who he knew to be drug and alcohol dependent.
The Virginia investigator further testified that several of the
pharmacists who filled Respondent's prescriptions had complained that
he often picked up the filled prescriptions for his out-of-state
patients, and subsequently mailed the drugs to these patients. The
Virginia investigator acknowledged that this practice was not unlawful.
The Virginia investigator also interviewed Respondent who informed
her that he did not perform physical examinations on these patients
prior to issuing prescriptions for them, and that his mother had
disposed of the medical records that he had maintained on these
patients. She further testified that, although Respondent had stated
that all of the people who received the prescriptions at issue had
complained of some type of pain or medical condition, Respondent's
conduct was in violation of Virginia law because he did not maintain
medical records for these patients, nor conduct physical examinations
prior to prescribing controlled substances.
The administrative law judge found that on March 29, 1991, the
Virginia Board of Medicine notified Respondent that it would conduct an
informal conference on allegations that he had violated provisions of
Virginia law pertaining to the practice of medicine. On June 21, 1991,
Respondent entered into a consent order pursuant to which he
voluntarily surrendered his Virginia license in lieu of further
administrative proceedings.
The administrative law judge further found that, on January 20,
1992, the Montgomery County state's attorney office executed
information charging Respondent with two counts of
[[Page 31167]] unlawfully prescribing Schedule II drugs and that
Respondent was arrested on these charges on January 30, 1992. The
charges against Respondent eventually were nolle-prossed.
The administrative law judge found that the Maryland State Board of
Physician Quality Assurance (the Board) initiated an investigation of
Respondent in November 1991 after the Maryland Division on Drug Control
notified the Board that Responent had surrendered his Virginia license.
In February 1992, the Board summarily suspended Respondent's medical
license in Maryland based upon the surrender of his Virginia license,
his January 1992 arrest and the charges that he had improperly
prescribed controlled substances. As a result of the criminal case
against Respondent being nolle-prossed, the Board executed a consent
order on June 2, 1992, lifting the summary suspension and placing
Respondent on a three year probationary period with conditions. Judge
Bittner also noted testimony that, at the time of the hearing in this
proceeding, Respondent remained in full compliance with the conditions
of his probation.
The Government argued that Respondent's DEA Certificate of
Registration should be revoked because Respondent: (1) violated 21 CFR
1306.04(b) by prescribing controlled substances to individuals without
first conducting physical examinations; (2) had violated 21 U.S.C.
822(e) and 21 CFR 1301.23 by having prescriptions filled for controlled
substances and mailing them to individuals; (3) prescribed controlled
substances to an individual who was drug and alcohol dependent; and (4)
voluntarily surrendered his Virginia medical license because of his
inappropriate prescribing of controlled substances.
Respondent argued that: (1) he was never convicted of any criminal
activity; (2) he voluntarily surrendered his Virginia license in lieu
of further administrative proceedings; (3) his failure to maintain
adequate medical records for certain patients was not his usual
practice; (4) the patients to whom he mailed controlled substances were
longtime friends or family and he acted with good intentions; (5) he
has been in good standing with the Maryland State Board of Physician
Quality Assurance since he signed the consent order; and (6) he
continues to maintain a medical practice in the State of Maryland.
Pursuant to 21 U.S.C. 824(a)(4) the Deputy Administrator of the DEA
may revoke the registration of a practitioner upon a finding that the
registrant has committed such acts as would render his registration
inconsistent with the public interest as that term is used in 21 U.S.C.
823(f). In determining the public interest, the following factors will
be considered:
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The [registrant]'s experience in dispensing, or conducting
research with respect to controlled substances.
(3) The [registrant]'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 in assessing the public interest. See Mukand Lal
Arora, M.D., 60 FR 4447 (1995); Henry J. Schwartz, Jr., M.D., 54 FR
16422 (1989). The administrative law judge found that factors (1), (2),
(4), and (5) were relevant in considering whether Respondent's DEA
registration should be revoked.
The administrative law judge found that testimony by two patients
that Respondent had used cocaine and traded other controlled substances
for-cocaine, were statements made by acknowledged drug abusers who,
themselves, were under investigation at the time they raised their
allegations against Respondent, and, therefore, their hearsay
statements were not sufficiently reliable to warrant a finding that
Respondent had engaged in the alleged conduct. Judge Bittner further
found that it was not disputed that Respondent had picked up filled
prescriptions and mailed the medication to patients, but that such
conduct was not illegal in Virginia, the jurisdiction in which
Respondent was practicing at that time, and that there was no evidence
of any other state or Federal regulation of such practice. Judge
Bittner found no merit to the Government's contention that Respondent's
practice of retrieving filled prescriptions for certain patients
violated 21 CFR 1306.04(b).
The administrative law judge additionally found that it was not
disputed that Respondent had prescribed medication to certain patients
without first performing a physical examination. It was further
undisputed that Respondent did not keep charts on the patients he
treated out of his Bethesda location after December 1989, when, as
Respondent contended, his mother disposed of his patient records. Judge
Bittner found that Respondent's failure to maintain records on those
patients constitutes grounds for revoking his DEA registration.
However, the administrative law judge found that the evidence did not
establish that revocation of Respondent's registration would be in the
public interest and recommended that Respondent's DEA Certificate of
Registration not be revoked subject to his compliance with the
following conditions for two years from the effective date of the
Deputy Administrator's final order: (1) Respondent shall not dispense
directly or administer any controlled substances except in a hospital
setting; (2) Respondent shall use triplicate forms for all controlled
substance prescriptions and shall maintain at his registered location
one copy of each form and arrange for another copy to be received by
the Special Agent in Charge of DEA's Baltimore District Office or his
designee; and (3) Respondent shall consent to inspections of his
registered premises pursuant to notices of inspection as described in
21 U.S.C. 880.
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. 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 DEA Certificate of Registration, AM2432631, issued to
Richard C. Matzkin, M.D., be, and it hereby is, continued subject to
the conditions enumerated by the administrative law judge. This order
is effective on July 13, 1995.
Dated: June 6, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-14369 Filed 6-12-95; 8:45 am]
BILLING CODE 4410-09-M
