[Federal Register Volume 64, Number 151 (Friday, August 6, 1999)]
[Notices]
[Pages 42977-42981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20232]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No 98-8]
Mark Binette, M.D., Grant of Restricted Registration
On September 19, 1997, the Deputy Assistant Administrator, Office
of Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Mark J. Binette, M.D. (Respondent) of Mesa,
Arizona, 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), for reason that his registration would be
inconsistent with the public interest.
By letter dated January 22, 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 Phoenix, Arizona
on August 4 and 5, 1998, before Administrative Law Judge Mary Ellen
Bittner. 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 January 20, 1999, Judge Bittner issued her Opinion and Recommended
Ruling, 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 Bittner's
opinion, and on February 22, 1999, Judge Bittner
[[Page 42978]]
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 the Opinion and Recommended Ruling,
Findings of Fact, Conclusions of Law and Decision of the Administrative
Law Judge, except as specifically noted below. 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 1989. He previously possessed DEA Certificate of
Registration BM3082283, however he let it expire on January 31, 1995,
since he did not have an active state license at that time.
According to Respondent, he first smoked marijuana in the 1970s
when he was a teenager. He was arrested in 1977 for selling marijuana
to an undercover police officer for $25. A search of Respondent's home
incident to the arrest revealed lysergic acid diethylamide (LSD);
however Respondent testified that the LSD was not his but had been left
at his home after a party several weeks earlier. It appears that
Respondent was convicted of charges relating to these events, that he
was sentenced to a period of probation, and that the record of the
conviction was expunged in 1984. Respondent further testified that he
occasionally used marijuana between 1977 and 1992, but that he did not
believe that he had an addiction problem at that time.
In 1992, Respondent began an extramarital affair with a fellow
resident who introduced him to methamphetamine, and who provided him
with pharmaceutical methamphetamine. According to Respondent, his
fellowship stipend was insufficient to make school loan payments and to
support his wife and children, so he worked extra hours at several jobs
and used the methamphetamine to help him stay awake. In early 1993,
Respondent's relationship with the fellow resident ended when she
tested positive for methamphetamine use and was forced to enter a drug
treatment program. Respondent then began obtaining street
methamphetamine from his cousin, and ultimately smoked methamphetamine
several times a day.
On April 10, 1993, while working an overnight shift in an emergency
room at an air force base, Respondent was followed to his car by base
officers who discovered methamphetamine in Respondent's car. Respondent
was not arrested at that time, but blood and urine samples were
collected which ultimately tested positive for methamphetamine use.
Respondent was subsequently charged with possession of a controlled
substance and released on his own recognizance.
In November 1993, Respondent met informally with the executive
director of the State of Arizona Board of Medical Examiners (Medical
Board) and the co-director of the Medical Board's Monitored Aftercare
Program. According to Respondent, he gave assurances that he no longer
used amphetamines, and the Medical Board allowed Respondent to retain
his medical license.
However, Respondent tested positive for methamphetamine use several
times between August 1993 and January 1994. In February 1994,
Respondent's recognizance release was revoked due to his continued
methamphetamine use and he was incarcerated. Several days later he was
released from jail and he went to a drug treatment center in Georgia,
which is tailored to health care professionals. Respondent left this
facility before completing his treatment because he could not afford
the cost of the treatment.
Respondent met with the Medical Board again on April 15, and May 9,
1994, and was told that he could not practice medicine in Arizona until
he completed his treatment at the facility in Georgia. On May 13, 1994,
the Medical Board issued an order which, among other things, prohibited
Respondent from using controlled substances that were not obtained
pursuant to a valid prescription of a treating physician.
On May 17, 1994, a postal inspector was conducting a random profile
of packages and identified a package that she suspected contained
controlled substances. The package was opened pursuant to a search
warrant and it contained a half ounce of methamphetamine with a street
value of approximately $2,800. The package was then resealed and
forwarded to Ohio for a controlled delivery. Law enforcement officers
contacted a local prosecutor to review an affidavit for a search
warrant to be executed after the controlled delivery of the package.
During his conversation with the law enforcement officers, the
prosecutor became suspicious because his brother had a friend with the
same name as that of the addressee on the package. The prosecutor then
learned that his brother's wife, from whom he was separated, lived in
an apartment complex at the same address as the return address on the
package. Later when the prosecutor saw the package, he recognized the
handwriting on the package as his brother's and so informed the
officers.
On May 19, 1994, there was a controlled delivery of the package and
the recipient was arrested and interviewed. During the interview, he
mentioned an individual named ``Russ,'' but eventually told the
officers that Respondent had mailed him the package. The individual
also stated that Respondent had sent him a package of methamphetamine
in April 1994, and that he had written Respondent a check for $500 as
payment for the methamphetamine.
On several occasions, Respondent contacted his brother who advised
him to cooperate with the authorities. Eventually, on May 27, 1994,
Respondent did have a conversation with local law enforcement officers
during which he indicated that his cousin was the source of the
methamphetamine and that he was willing to cooperate in an
investigation of his cousin. He indicated that his cousin had asked him
to review a recipe for methamphetamine, and that his cousin moved about
40 pounds of methamphetamine per week.
At the hearing, Respondent testified that he had loaned his cousin
approximately $20,000 for a business venture, that by April 1994, his
cousin had repaid all but $7,000 or $8,000 of the loan, and that he
received methamphetamine from his cousin in lieu of interest payments
on the loan. Respondent further testified that in April 1994,
Respondent went to his cousin's apartment on several occasions and
collected $500 on each of two visits. On the third visit, his cousin
paid him another $500 and convinced Respondent to mail a package of
methamphetamine to a mutual friend and in return, the friend would send
payment for the methamphetamine directly to Respondent. According to
Respondent he mailed one package of methamphetamine to the mutual
friend in late April 1994 and another package on May 17, 1994.
Respondent had another positive urine and was jailed for several
days following his arrest on June 15, 1994. He was then released to go
to Valley Hope Treatment Center where he stayed for thirty days.
Thereafter, he was transferred to the House of Acceptance, Inc. (the
House), a substance abuse treatment center.
[[Page 42979]]
On August 11, 1994, Respondent was indicted in the United States
District Court for the District of Arizona on one count of conspiracy
to distribute a controlled substance in violation of 21 U.S.C. 846,
three counts of distribution and possession with intent to distribute a
controlled substance in violation of 21 U.S.C. 841(a)(1), three counts
of using a communication facility to facilitate the distribution of a
controlled substance in violation of 21 U.S.C. 843(b), and one count of
establishment of a distribution operation in violation of 21 U.S.C.
856(a)(2). On August 12, 1994, an Amended Information charged
Respondent with one count of simple possession of a controlled
substance in violation of 21 U.S.C. 844(a).
On October 31, 1994, Respondent pled guilty to one felony count of
using a communication facility to facilitate the distribution of a
controlled substance on May 19, 1994, and to one misdemeanor count of
simple possession of a controlled substance. On February 6, 1995,
Respondent was convicted of these offenses in the United States
District Court for the District of Arizona and sentenced to 15 months
incarceration to be served at a drug rehabilitation center, followed by
probation for one year.
As part of the plea agreement, Respondent agreed to cooperate in
the investigation and prosecution of others. However, Respondent
testified that he was never asked to make any monitored telephone
calls, asked to provide any additional documentation, or used in any
manner in an investigation of his cousin.
On October 20, 1994, the Medical Board placed Respondent's license
to practice medicine in Arizona on inactive status after Respondent
admitted that he violated the Medical Board's May 1994 Order by
continuing to use methamphetamine.
Respondent participated in in-patient treatment at the House from
July 1994 until March 10, 1995. Thereafter, in August 1995, Respondent
requested that his medical license be reactivated, and on January 18,
1996, the Medical Board reinstated Respondent's medical license and
placed it on probation for five years under the condition that he
perform at least 150 hours of community service each year. On February
13, 1996, the Medical Board issued a Rehabilitation Stipulation and
Order that added conditions to its January 1996 order, including
participation in the Medical Board's Monitored Aftercare Program;
participation in a 12-step recovery program; obtaining a sole treating
physician who was aware of his addiction; not consuming alcohol, poppy
seeds, or controlled substances not prescribed by his treating
physician; submission to random drug screening; maintenance of a log of
all controlled substances prescribed by his treating physician;
submission to periodic Medical Board ordered mental, physical, and
medical competency examinations; participation in mental health
treatment; attending meetings with the Medical Board; and participation
in a treatment program in the event of a relapse.
On March 28, 1997, the Medical Board issued an Order terminating
the January 1996 Order of Probation, and on April 9, 1997, the Medical
Board issued a Stipulation and Order. The April 1997 action is
considered a slightly lesser sanction against Respondent's medical
license than probation, but it did not change the substantive
requirements of the Medical Board's January and February 1996 Orders.
Respondent presented extensive evidence at the hearing regarding
his treatment and rehabilitation. Respondent testified that he last
used any illegal drug on or about June 10, 1994. As discussed above, he
stayed at the House from July 1994 until March 10, 1995. Among other
things, the House conducts classes addressing relapse prevention, anger
management, life skills, and chemical dependency; requires
participation in group therapy and 12-step programs; and provides
extensive monitoring. In addition, the House performs drug screens on
its participants approximately every four to five days. According to
the director, Respondent's stay and performance at the House was
``[a]bove reproach,'' and all of his urine screens were negative. Since
his release from the House, Respondent has continued to offer his
services there.
Respondent participates in the Medical Board's Monitored Aftercare
Program which requires participation in group therapy, random urine
testing, and regular attendance at 12-step meetings, such as Alcoholics
Anonymous or Narcotics Anonymous. In addition, the medical director of
the program meets with individual participants periodically and a staff
therapist meets with the participants more regularly.
According to the program's medical director, he has collected
between 25 to 30 urine samples from Respondent each year that he has
been participating in the program and that they have all been negative.
The medical director further testified that Respondent has complied
with all of the terms of the program, that the quality of Respondent's
recovery is excellent, that Respondent's prognosis for ongoing recovery
is also excellent, and that he did not believe that any risk would
result from granting Respondent a DEA registration.
Respondent's probation officer testified that Respondent came under
his supervision on May 18, 1995, with standard conditions of release as
well as special conditions tailored to his substance abuse problem.
These special conditions included Respondent's agreement to submit to a
search if requested by the probation officer, to participate in a
substance abuse treatment program, a mental health treatment program
and financial counseling; and to perform 200 hours of community
service. According to the probation officer, Respondent complied with
all of the standard and special conditions required by his supervised
release, and he was released from supervision on May 17, 1996.
Respondent testified at the hearing that he was too proud and
embarrassed to ask anyone for help with his addiction, and that had he
not been arrested, he might not have received the help that he needed.
He testified that upon accepting his addiction, he went to 180
Alcoholics Anonymous meetings in 180 days, followed by five meetings
per week for the next year, then about four meetings per week, and now
he sponsors others in their recovery programs. In addition to his
community service at the House, Respondent testified that he does
volunteer counseling at another treatment center.
Respondent further testified that he intends to continue working on
his recovery after the conclusion of his five-year probationary period
with the Medical Board because ``[addiction]'s a disease that needs to
be treated on a daily basis for the rest of your life, because if not,
if allowed to go uncontrolled, it will kill you.''
As of the date of the hearing, Respondent was working as an
independent contractor for several insurance companies performing
physical examinations. He also helped cover several local nursing
homes, and worked as a physician in the urgent care department of
several medical centers in Tucson, Arizona. Respondent testified that
he hopes to work as an internist at a local hospital beginning in the
fall of 1999, but that this position is contingent upon him receiving a
DEA registration.
Respondent resumed practicing medicine in January 1996, and has
experienced some difficulty as a result of not having a DEA
registration. He has been unable to obtain staff privileges at some
hospitals and to be designated as a provider by insurance companies.
Respondent further testified that his
[[Page 42980]]
lack of a DEA registration has also affected his ability to treat
patients at the urgent care facilities because he cannot prescribe them
controlled substances without involving another physician.
The Government contends that Respondent's application for
registration should be denied based upon his violation of the laws
relating to controlled substances, his criminal convictions, and the
relatively short period of time that he has been in recovery. In
arguing that his application should be granted, Respondent does not
deny that he violated controlled substance laws and that he was
convicted of controlled substance related offenses. Instead, Respondent
contends that he has overcome his substance abuse problem and that
during the course of his controlled substance abuse, he never misused
his former DEA registration to obtain drugs illegally.
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 conjunctive; the Deputy
Administrator may rely on any one or an combination of factors and may
give each factor the weight he deems appropriate in determining whether
a registration should be revoked or an application of registration
denied. See Henry J. Schwarz, Jr., M.D., 54 FR 16422 (1989).
Regarding factor one, it is undisputed that in May 1994, the
Medical Board issued a Rehabilitation Stipulation Order placing a
number of probationary conditions on his license to practice medicine
in Arizona. Thereafter, his medical license was inactivated in October
1994, and when it was reactivated in January 1996, Respondent was
placed on probation for five years. Respondent is currently licensed to
practice medicine in Arizona with no restrictions on his ability to
handle controlled substances. But as Judge Bittner noted, ``inasmuch as
State licensure is a necessary but not sufficient condition for a DEA
registration, * * * this factor is not determinative.''
As to Respondent's experience in dispensing controlled substances,
there is no evidence in Respondent ever improperly dispensed controlled
substances to his patients. Concerning his own abuse of
methamphetamine, there is not evidence that Respondent used his DEA
registration to obtain the methamphetamine that he abused.
Regardinig factor three, it is undisputed that Respondent was
convicted in February 1995 for possession of a controlled substance in
violation of 21 U.S.C. 844(a), a misdemeanor, and of the use of
communication facility to facilitate the distribution of a controlled
substance in violation of 21 U.S.C. 843(b), a felony. It also appears
that Respondent was convicted of controlled substance related offenses
in 1977 and that those convictions were later expunged. The Deputy
Administrator agrees with Judge Bittner that as a general rule,
convictions that have subsequently been expunged can be considered
``convictions'' for purposes of these proceedings. As Judge Bittner
noted, ``[a]ny other interpretation would mean that the conviction
could be considered between the date it occurs and date it is expunged,
but no thereafter, which is inconsistent with established rule in these
proceedings that the lapse of time between conduct and the hearing
effects only the weight to be given the evidence'' citing Thomas H.
McCarthy, D.O., 54 FR 20938 (1989), aff'd, No. 89-3496 (6th Cir. Apr.
5, 1990). However, unlike Judge Bittner, the Deputy Administrator finds
that the record is unclear as to exactly what charges Respondent was
convicted of in 1977 and therefore declines to consider these
convictions is rendering his decision in this matter.
But, the Deputy Administrator does agree with Judge Bittner that
convictions for possession of a controlled substance cannot be
considered under this factor. Pursuant to 212 U.S.C. 823(f)(3), the
Deputy Administrator shall consider an ``applicant's conviction record
* * * relating to the manufacture, distribution, or dispensing of
controlled substances.'' Therefore, Respondent's 1995 misdemeanor
conviction for possession of a controlled substance cannot be
considered under this factor. Judge Bittner seems to suggest that this
conviction can be considered under 21 U.S.C. 824(a)(2), however the
Deputy Administrator disagrees since only felony convictions relating
to controlled substances can be considered under 21 U.S.C. 824(a)(2).
However, the Deputy Administrator has considered Respondent's
conviction in 1995 of using a communication facility to facilitate the
distribution of a controlled substance in violation of 21 U.S.C.
843(b).
As to factor four, Respondent's compliance with applicable laws
relating to controlled substances, it is clear that Respondent
illegally possessed controlled substances in 1977 and 1993, and that he
illegally mailed methamphetamine in 1994. Respondent also admitted that
he self-administered methamphetamine between 1992 and 1994 for no
legitimate medical purpose and outside the scope of his medical
practice.
Regarding factor five, the Deputy Administrator agrees with Judge
Bittner that it is significant that Respondent was addicted to
methamphetamine between June 1992 and June 1994, and that he abused
methamphetamine while performing his duties as a physician. However,
the Deputy Administrator also finds it noteworthy that Respondent has
not illegally used controlled substances since June 1994, and that he
has undergone significant treatment for his addiction, and continues
with his recovery efforts.
The Deputy Administrator agrees with Judge Bittner that the
Government has established a prima facie case for the denial of
Respondent's application based upon Respondent's prior addiction to
methamphetamine, his violation of controlled substance laws, his 1995
felony conviction, and his abuse of methamphetamine while performing
the duties of a physician. Nonetheless, the Deputy Administrator
concurs with Judge Bittner's conclusion that ``[t]he record, however,
establishes that Respondent has spent the last four years
rehabilitating himself and has successfully remained sober during that
time.'' In addition, Judge Bittner found Respondent's evidence
regarding this rehabilitation and recovery to be credible. Judge
Bittner found that ``Respondent now understands the gravity of his
actions and is remorseful.'' Judge Bittner concluded ``that a
preponderance of the evidence does not establish that it would be
inconsistent with the public interest to grant Respondent's application
for a new DEA registration,'' and therefore recommended that
Respondent's application be granted.
[[Page 42981]]
The Deputy Administrator agrees with Judge Bittner 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
violation of controlled substance laws and his felony conviction.
Therefore, the Deputy Administrator concludes that Respondent's
application for registration should be granted subject to the following
restrictions for three years from the date of issuance of the DEA
Certificate of Registration.
1. Respondent must continue his involvement with the Medical
Board's Monitored Aftercare Program and abide by its requirements
regardless of whether the Medical Board requires such involvement.
2. 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
February 12, 1996 application for registration submitted by Mark
Binette, 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 September 7,
1999.
Dated: July 27, 1999.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 99-20232 Filed 8-5-99; 8:45 am]
BILLING CODE 4410-09-M
