[Federal Register Volume 64, Number 115 (Wednesday, June 16, 1999)]
[Notices]
[Pages 32271-32274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15189]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 98-13]
Jimmy H. Conway, Jr., M.D.; Grant of Restricted Registration
On January 28, 1998, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Jimmy Harold Conway, Jr., M.D. (Respondent) of
Oklahoma City, Oklahoma, notifying him of an opportunity to show cause
as to why DEA should not deny his application for registration as a
practitioner pursuant to 21 U.S.C. 823(f) and 824(a)(2) and (a)(4), for
reason that he was convicted of a felony relating to controlled
substances and that his registration would be inconsistent with the
public interest.
By letter dated February 23, 1998, Respondent, through counsel,
requested a hearing on the issues raised by the Order to Show Cause.
Following prehearing procedures, a hearing was held in Oklahoma City,
Oklahoma on July 14 and 15, 1998, before Administrative Law Judge Gail
A. Randall. At the hearing, both parties called witnesses to testify
and introduced documentary evidence. After the hearing, both parties
submitted proposed findings of fact, conclusions of law and argument.
On December 21, 1998, Judge Randall issued her Recommended Rulings,
Findings of Fact, Conclusions of Law and Decision, recommending that
Respondent's application for registration be granted without
restrictions. Neither party filed exceptions to Judge Randall's
opinion, and on January 26, 1999, Judge Randall 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 recommended rulings,
findings of fact and conclusions of law of the Administrative Law
Judge, and adopts in part Judge Randall's recommended decision in this
matter. 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 Respondent graduated from
medical school in 1983, and has been in private practice since 1989. He
is an orthopedic surgeon specializing primarily in the treatment of
shoulder and knee juries, general orthopedics, and sports medicine.
On February 27, 1996, an agent with the Oklahoma Bureau of
Narcotics and Dangerous Drugs Control (OBN) received a complaint from a
pharmacist concerning Respondent. The pharmacist had become suspicious
of several prescriptions filled at the pharmacy for patient ``Jim
Conway'' for Lorcet, a Schedule III control substance, and Soma, a non-
controlled substance
[[Page 32272]]
Federally but a Schedule IV controlled substance in Oklahoma. The
pharmacist was having trouble verifying the prescriptions with the
alleged prescribing physician, and indicated that she had learned that
``Jim Conway'' was a physician in the Oklahoma City area. A printout
from the pharmacy revealed that between June 1, 1995 and February 26,
1996, ``Jim Conway'' had 13 prescriptions filled at the pharmacy. It
was later discovered that the address listed on these prescriptions was
the same as Respondent's residence.
Subsequently, the OBN agent visited a number of pharmacies in the
Oklahoma City area and seized prescriptions allegedly issued to
Respondent by various physicians for approximately 5,973 dosage units
of controlled substances.
On March 4, 1996, the OBN agent met with a physician whose name
appeared as the prescribing physician on a number of the prescriptions.
This physician had been a medical partner with Respondent at
Respondent's then-current practice, and had known Respondent socially
and professionally since 1979. After reviewing the prescriptions he
alleged wrote for Respondent, the physician indicated that he did not
write or authorize any of the prescriptions.
That same day, the OBN agent met with another physician whose name
appeared as the prescribing physician on a number of the prescriptions.
This physician was a then-current partner at Respondent's practice.
After reviewing the prescriptions he allegedly wrote for Respondent,
the physician also indicated that he did not write or authorize any of
the prescriptions. This physician further indicated to the agent that
in approximately March 1995, he was told by a pharmacist that
Respondent was using his prescription pad to acquire controlled
substances. The physician confronted Respondent who admitted forging
prescriptions, but told the physician that it was poor judgment on his
part; that it was a ``one-time'' occurrence; and that he would never
forge prescriptions again. The physician never reported this incident
to any law enforcement authorities.
Also on March 4, 1996, the OBN agent met with Respondent at which
time Respondent candidly admitted to the agent that he had forged the
prescriptions by using the names and DEA registration numbers of his
partners without their knowledge. Respondent attributed his addiction
to ``frustration over his practice and workload.'' At that time
Respondent was dissatisfied with his medical practice which according
to him was mainly a group of doctors that associated with each other
professionally, but practiced as individuals. This dissatisfaction
caused his stress level to increase.
In the past, Respondent relieved stress by drinking alcohol. In
late 1992 or 1993, Respondent began using controlled substances first
on the weekends and then also at night. Initially he consumed samples
of Lortab and Soma taken from his medical practice. Respondent then
began forging prescriptions for drugs such as Lorcet, Ambien, Soma,
Xanax and Restoril, by signing the names of his medical partners on the
prescriptions. Ultimately, Respondent became addicted to these
substances.
While he was addicted to these drugs, Respondent was physically and
emotionally withdrawn from the people around him. Although Respondent
admitted his addiction to the OBN agent, he stated that ``he did not
feel the addiction had impaired him in any way during surgery.'' A
colleague testified at the hearing that he did not feel that Respondent
was impaired when they would perform surgery together.
At the conclusion of the meeting with the OBN agent on March 4,
1996, Respondent surrendered his state and DEA controlled substance
registrations. On March 8, 1996, the Oklahoma Board of State Medical
Licensure and Supervision (Board) held an emergency hearing, and on
March 29, 1996, issued an Emergency Order immediately suspending
Respondent's medical license.
According to Respondent, he felt relieved when confronted by the
OBN agent because he knew that at that point he would be able to
receive help for his addiction. Within two hours of meeting the OBN
agent on March 4, 1996, Respondent admitted himself to a local hospital
for detoxification. Respondent readily admitted his addiction to his
doctor at the hospital. After five days at the local hospital,
Respondent entered a treatment center in a suburb of Chicago. Most
patients spend about 12 weeks at the treatment center, however
Respondent was released from in-patient treatment after only 8\1/2\
weeks. Respondent's success at the treatment center is attributable to
the fact that he had already admitted his drug addiction and had
accepted that he had a problem before he entered the center.
While at the treatment center, Respondent learned about what
constitutes an addiction; how to control and treat his dependence; what
causes relapse; and how to prevent it from happening to him. Respondent
credibly testified at the hearing that ``I have absolutely no desire to
return to that lifestyle.''
Respondent left the treatment center in May 1996. The treatment
center requires program participants to undergo further drug treatment
monitoring for at least two years following release from in-patient
treatment, since the likelihood of relapse is extremely low after two
years. Therefore, Respondent committed to a two-year ``contract'' with
the treatment center which required Respondent to attend Alcoholics
Anonymous (AA) meetings and to participate in the Oklahoma Physicians
Recovery Program (PRP). This contract expired in May 1998.
After returning to Oklahoma from the treatment center, Respondent
entered into a five-year contract with the PRP, which is aimed at
supporting the recovery of physicians with addictions. This contract
required drug screening two times a week for the first six months, and
then weekly random testing for up to two years. After two years, drug
screening is completely at random, but once a person is called for a
test, he must give a urine sample within four hours. In addition,
participants must attend at least three weekly twelve-step meetings,
such as AA, and must have a physician to monitor their physical well-
being, and a different physician sponsor to help them overcome their
addiction. Respondent has compiled with the program requirements and is
committed to continuing his participation in the PRP and AA.
In late September 1996, the Board issued an order granting
Respondent a medical license subject a five-year probationary term
beginning on March 8, 1996. Respondent is required to maintain
duplicate, serially numbered controlled substance prescriptions and to
make them available to the Board upon request. He is prohibited from
authorizing any personnel under his supervisor to issue a prescription,
and he may not handle any amphetamines, amphetamine-like substances,
aneroxic drugs and/or anabolic steroids. During his probation with the
Board, Respondent is required to submit biological fluid specimens upon
request, and he is prohibited from prescribing, administering or
dispensing any medications for personal use. Respondent is further
prohibited from taking any medication unless it is authorized by a
physician treating him for a legitimate medical need. Finally, he is
required to continue his contract with the treatment center in Chicago.
Subsequently, on October 31, 1996, Respondent pled guilty to two
counts of
[[Page 32273]]
an eleven-count criminal information charging him with obtaining
controlled substances by forged or altered prescriptions, with the
remaining counts dismissed pursuant to a plea agreement. Respondent
received a four-year deferred sentence and as part of the sentence,
Respondent agreed to participate in ``drug testing [and] treatment as
required by [the] Medical Board,'' and to participate in 120 hours of
community service programs with Alcoholics Anonymous and/or the
Fellowship of Christian Athletes.
In November 1996, the OBN granted Respondent a state controlled
substance license which was also placed on probation for five years,
effective March 8, 1996. The OBN license is subject to the same terms
as those imposed by the Board on Respondent's medical license.
Respondent cooperated with authorities throughout the investigation
and the subsequent criminal and regulatory proceedings. As of the date
of the hearing, Respondent has willingly compiled with all of the terms
of his probation and his contracts with the PRP and the treatment
center. Respondent's urine screens have all been negative, and he has
been ``clean'' since March 4, 1996.
Respondent is currently a member of a different group medical
practice than he was during his addiction. In this practice, Respondent
has supportive relationships with the other partners in the practice.
The physicians in this practice attend regular ``accountability
meetings'' and the partners are vigilant in monitoring Respondent's
behavior. According to Respondent, his stress level is reduced and his
job satisfaction is higher, due in part, to his professional support
system.
The physician who treated Respondent at the local hospital and is
now the medical director of the PRP, testified that a person's active
involvement in the recovery process is the best predicator of future
performance. Specifically he testified that, ``[a]s long as that person
is actively involved in an ongoing recovery process, relapse is
seldom.'' According to this physician, the recovery rate for physicians
participating in the PRP is approximately 90-95%.
Respondent's wife, the Chief Executive Operating officer of his
current practice, and several of his colleagues and friends all
testified that if Respondent were to begin abusing controlled
substances again, they would recognize the abuse.
At some point during his addiction recovery period, Respondent
legitimately ingested narcotics following knee surgery. According to
Respondent he had no desire to use additional medication, and he did
not relapse as a result of the lawfully prescribed use of this
medication.
Respondent's current and potential patients are inconvenienced
because Respondent does not have a DEA registration. Patients must wait
until another physician is available to prescribe them narcotics to
control their pain. Respondent is unable to obtain privileges at a
number of hospitals and he cannot participate in many insurance plans
without a DEA registration. According to one of the physicians whose
name was used by Respondent to forge prescriptions, without a DEA
Certificate of Registration, Respondent's ``talents * * * cannot be
adequately utilized.''
As Respondent pointed out, the lack of a DEA registration does not
affect his ability to abuse controlled substances, if he chooses to do
so. Respondent candidly acknowledged that ``[m]y ability to prescribe
medicine in no way affects my recovery from addiction in terms of me
actually writing a prescription. The way I obtained the medication
prior to my treatment was by forgery and I could do that regardless of
whether or not I had a DEA number.''
Judge Randall found that Respondent exhibited genuine remorse for
his actions and has accepted responsibility for his prior conduct.
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) requires that the following factors 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. 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., 54 FR 16422
(1989).
Both parties argue that all five factors are relevant in this case
in determining the public interest. The Government contends that
Respondent's application should be denied in light of the actions by
the Board and OBN; Respondent's forging of controlled substance
prescriptions for several years; his conviction of two felonies
relating to controlled substances; and his untruthful behavior.
Respondent, on the other hand, argues that despite his unlawful
conduct, he should be granted a DEA Certificate of Registration. In
support of his contention, Respondent points out that he is currently
authorized to practice medicine and handle controlled substances in
Oklahoma; he did not illegally dispense controlled substances to anyone
but himself; his deferred sentence is not considered a conviction under
state law; he has complied with applicable laws except regarding his
own addition; and those in regular contact with him have indicated that
he is not a threat to the public health and safety.
As to factor one, it is undisputed that in March 1996, Respondent
voluntarily surrendered his state controlled substance license and his
medical license was suspended. However it is also undisputed that in
September 1996, the Board reinstated Respondent's medical license and
in November 1996, the OBN granted Respondent a license to handle
controlled substances. Both of these licenses were granted subject to a
five-year probationary period and Respondent is therefore still on
probation with the Board and OBN. Although state licensure is a
prerequisite for a DEA registration, it is not the only factor to be
considered.
Factors two and four, Respondent's experience in dispensing
controlled substances and his compliance with laws related to
controlled substances, are clearly relevant in determining the public
interest in this matter. While it is true that Respondent did not
illegally dispense controlled substances to anyone but himself, his
conduct was nonetheless egregious. He abused his position as a
physician beginning in 1992 or 1993 by taking samples of controlled
substances from his medical office for his own personal use. When that
was no longer effective, he began forging his medical partners'
signatures, and thereby using their DEA registrations, to issue
unauthorized prescriptions for his own personal use. There is no
question that Respondent violated 21 U.S.C. 843(a)(2) and (a)(3).
However, it is also undisputed that Respondent's illegal actions were
caused by his addiction to controlled
[[Page 32274]]
substances for which he has received extensive treatment.
As to factor three, there is some dispute as to whether Respondent
has been convicted of controlled substance related offenses. Respondent
pled guilty to two felony charges related to the illegal obtaining of
controlled substances, and as a result received a four-year deferred
sentence. Respondent argues that this deferred sentence may not be
considered a conviction under Oklahoma state law, citing White v.
State, 702 P.2d 1058, 1062 (Okla. Crim. App. 1985). However, DEA has
consistently held that a deferred adjudication, following the entry of
a guilty plea, is considered a ``conviction'' for purposes of the
Controlled Substances Act. See Yu-To Hsu, M.D., 62 FR 12840 (1997),
Harlan J. Borcherding, D.O., 60 FR 28796 (1995); Mukand Lal Arora,
M.D., 60 FR 4447 (1995); Clinton D. Nutt, D.O., 55 FR 30992 (1990).
Thus for purposes of this factor, Respondent has been convicted of two
felony counts relating to controlled substances. However, the Deputy
Administrator also recognizes that these convictions were a result of
Respondent's addiction to controlled substances, and that he is in the
midst of successful recovery efforts from this addition. As Judge
Randall noted, ``[at]t the present time, the Respondent is halfway
through the term of his deferred adjudication and has shown no signs of
relapse.''
As to factor five, during his addiction, Respondent lied to his
colleagues and family about his drug abuse. The Deputy Administrator
agrees with Judge Randall that ``[a]bsent rehabilitation, such behavior
supports the Government's position that the Respondent could pose a
threat to the public health and safety of the citizens of Oklahoma.''
Judge Randall concluded that the Government made a prima facie case
for the denial of Respondent's application for registration. However,
she further concluded that it would not be in the public interest to
deny the application. The Deputy Administrator agrees. Respondent has
accepted responsibility for his prior actions and has shown remorse. He
cooperated with law enforcement authorities from the moment he was
questioned about the forged prescriptions. He is no longer affiliated
with the medical practice that caused the stress which led to his
addiction. He has taken affirmative steps toward rehabilitation and is
being closely monitored by the Board, the OBN, the PRP, the treatment
center, his family and his colleagues. As Judge Randall noted. ``the
Respondent lives and works in a community dedicated to his recovery and
personal growth. This external support system ensures to a high
probability that the Respondent will remain free of narcotic and
alcoholic substances.'' Of even greater significance to the Deputy
Administrator than this external support system is Respondent's
apparent commitment to continuing with his rehabilitative efforts and
to living a drug-free life.
Judge Randall recommended that Respondent be granted a DEA
registration without restrictions since ``[t]he State of Oklahoma and
the OBN have implemented substantial and aggressive monitoring
procedures to ensure that the Respondent continues to comply with his
licensing conditions and to ensure that any possible relapse is
immediately detected.'' Judge Randall further recommended that should
the deputy Administrator find that additional monitoring by DEA is
necessary, Respondent should be required to file with DEA duplicate
copies of the documents being filed with the State of Oklahoma.
The Deputy Administrator agrees with Judge Randall that denial of
Respondent's application is not warranted. However, the Deputy
Administrator believes that some restrictions on Respondent's
registration are necessary to protect the public health and safety in
light of Respondent's fairly recent abuse of controlled substances, his
forging of prescriptions and his felony convictions.
Therefore, the Deputy Administrator concludes that Respondent's
application for registration should granted subject to the following
restrictions for three years from the date of issuance of the DEA
Certificate of Registration:
1. Respondent must maintain his contractual relationship with the
Oklahoma Physicians Recovery Program and abide by its recommendations.
2. Respondent shall continue to undergo random urinalysis at his
own expense on at least a monthly basis regardless of whether he is
released from his probation with the Oklahoma Board and the OBN. He
shall forward copies of the results of these tests to the DEA Oklahoma
City office.
3. Respondent shall make copies of his prescriptions available to
DEA personnel upon request for inspection and copying.
4. Respondent shall notify the DEA Oklahoma City office within 30
days of any change in his employment.
5. Respondent shall consent to periodic inspections by DEA
personnel based on a Notice of Inspection rather than an Administrative
Inspection Warrant.
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
November 20, 1996 application for registration submitted by Jimmy
Harold Conway, Jr., M.D., be, and it hereby is, granted subject to the
above described restrictions. This order is effective upon the issuance
of the DEA Certificate of Registration, but no later than July 16,
1999.
Dated: June 7, 1999.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 99-15189 Filed 6-15-99; 8:45 am]
BILLING CODE 4410-09-M
