[Federal Register Volume 59, Number 119 (Wednesday, June 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15089]
[[Page Unknown]]
[Federal Register: June 22, 1994]
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DEPARTMENT OF JUSTICE
[Docket No. 93-35]
Linwood T. Townsend, D.D.S.; Denial of Application
On March 12, 1993, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Linwood Thomas Townsend, D.D.S., Respondent, at
1285 N.E. 148th Street, North Miami, Florida. The Order to Show Cause
proposed to deny his application for registration executed on November
8, 1991, and filed with the DEA pursuant to 21 U.S.C. 823(f). The Order
alleged that Respondent's registration with DEA would be inconsistent
with the public interest, as that term is used in 21 U.S.C. 823 and
824.
Respondent requested a hearing and the matter was docketed before
Administrative Law Judge Paul A. Tenney. Following prehearing
procedures, a hearing was held in Miami, Florida on October 13, 1993.
On January 18, 1994, Judge Tenney issued his Findings of Fact,
Conclusions of Law, and Recommended Ruling. Neither party filed
exceptions to the administrative law judge's opinion and recommended
decision and, on February 18, 1994, the administrative law judge
transmitted the record to the Acting Administrator. The Deputy
Administrator has considered the record in its entirety and, pursuant
to 21 CFR Sec. 1316.67, hereby enters his final order in this matter.
The administrative law judge found that in 1977 Respondent obtained
a license to practice dentistry in Florida. On May 30, 1980, Respondent
was issued DEA Registration, AT9228708. On November 17, 1980,
Respondent was issued a second Certificate of Registration. On November
30, 1981, Respondent's DEA registration expired, and was never renewed.
From November 1981 through November 1991, Respondent issued
prescriptions for controlled substances with the expired registration
number. A DEA Investigator conducted a survey of 11 pharmacies in the
Miami area for prescriptions for controlled substances issued by the
Respondent. The survey included prescriptions issued between January
1989 and November 1991. The Investigator recovered approximately 575
prescriptions for controlled substances issued by the Respondent during
that period. Respondent did not possess a valid DEA registration during
that time.
At the DEA administrative hearing, Respondent testified that he
thought his registration was transferable and that at that time he did
not know that he was doing anything wrong. Respondent further testified
that once he became aware of the need for a new DEA registration, he
immediately submitted an application to DEA. Additionally, the
Respondent said that he had not prescribed controlled substances since
that time.
Respondent also represented that during the period in question, he
was employed by institutions which were part of the public health
service, and was therefore exempt from DEA registration under 21 CFR
Sec. 1301.25. The administrative law judge found that Respondent's
claim was without any factual foundation. The Deputy Administrator
agrees. The term ``public health service'' as set forth in
Sec. 1301.25, refers to the United States Public Health Service. None
of the institutions at which Respondent was employed was part of the
Public Health Service as contemplated by Sec. 1301.25.
The administrative law judge additionally found that on February 4,
1988, in the Circuit Court of the Eleventh Judicial Circuit in Dade
County, Florida, Respondent was convicted upon his plea of nolo
contendere to filing false Medicaid claims. He was placed on eighteen
months probation and ordered to pay restitution.
Additionally, as a result of the conviction, on May 13, 1988, the
Florida Department of Health and Rehabilitative Services terminated
Respondent from further participation in the Florida Medicaid program.
By letter dated June 24, 1988, the United States Department of Health
and Human Services excluded Respondent from participation in the
Medicare program pursuant to 42 U.S.C. 1320a-7(a), for a period of five
years.
The administrative law judge further found that on November 3,
1988, the Department of Professional Regulation, Board of Dentistry
(Board), filed an 18 count administrative complaint against Respondent.
The complaint alleged that from March 1985 to May 1987, Respondent
billed the Florida Medicaid Department for services that he did not
render and filed false documents pertaining to the billing of these
services to patients. With the exception of two counts, Respondent did
not dispute the allegations in the complaint. Consequently, on February
27, 1989, the Board entered its final order in which it adopted the
allegations in the administrative complaint as findings of fact. The
order placed Respondent's state dental license on suspension for three
months, two months stayed. Following the suspension, Respondent's
license was placed on five years probation and Respondent was ordered
to take 24 hours of instruction in ethics and perform 500 hours of
community service.
The Board filed an administrative complaint and an amended
administrative complaint against the Respondent on March 14, 1990 and
December 19, 1990, respectively. The amended complaint alleged that the
Respondent failed to meet the minimum standard of care in diagnosis and
treatment of his patients and failed to keep records which justified
his course of treatment. A stipulation entered into by the parties was
approved and adopted by Final Order dated August 13, 1991. As part of
the order, Respondent was required to pay $1,000 and his license to
practice dentistry was placed on probation for two years.
The administrative law judge further found that Respondent filed a
DEA application for registration, dated November 8, 1991, and indicated
that he never had a state professional license or controlled substance
registration revoked, suspended, denied, restricted, or placed on
probation. In fact, Respondent knew that his dental license had twice
been disciplined and placed on suspension and probation by the Board.
Since DEA must rely on the truthfulness of information supplied by
applicants in registering them to handle controlled substances,
falsification cannot be tolerated. Any material falsification of any
application for registration is an independent statutory basis for the
denial of an application. Herbert J. Robinson, M.D., 59 FR 6304 (1994);
John W. Wang, M.D., 57 FR 47869 (1992); Ronald H. Futch, M.D., 53 FR
38990 (1988).
The administrative law judge recommended that the Administrator
deny Respondent's application for registration at this time. The
administrative law judge further found that the circumstances are
sufficient to support a recommendation to the Administrator that an
application be looked on favorably after the passage of one year. The
Deputy Administrator adopts the findings of fact, conclusions of law
and recommended ruling of the administrative law judge in its entirety.
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an
application for DEA registration if he determines that the 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 and
safety.
These factors are to be considered in the disjunctive. That is, the
Deputy Administrator may properly rely on any one or a combination of
those factors, giving each the weight he deems appropriate in
determining whether a registration should be revoked, or an application
denied. See David W. Warren, M.D., 55 FR 40017 (1990); Henry J.
Schwarz, Jr., M.D., 54 FR 16422 (1989); England Pharmacy, 52 FR 1674
(1987); and Felix Seisin, M.D., 51 FR 3863 (1986).
The Deputy Administrator finds that the fourth and fifth factors
are relevant to the adjudication of this matter. The record clearly
establishes that the Respondent issued approximately 575 prescriptions
for controlled substances without a valid DEA registration. Further,
Respondent had been excluded from the Medicare program and had
disciplinary action taken against him by the Florida Dental Board based
upon Medicaid fraud and unprofessional conduct. Additionally,
Respondent falsified his DEA application. The administrative law judge
concluded that the record warrants denial of Respondent's application
for registration at this time. The Deputy Administrator concurs in this
evaluation.
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 Secs. 0.100(b) and 0.104 [59 FR 23637 (1994)],
hereby orders that the application for a DEA Certificate of
Registration submitted by Linwood Thomas Townsend, D.D.S., dated
November 8, 1991, be, and it hereby is, denied. This order is effective
July 22, 1994.
Dated June 15, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-15089 Filed 6-21-94; 8:45 am]
BILLING CODE 4410-09-M
