Scott H. Nearing, D.D.S., Grant of Restricted Registration, 33200-33203 [05-11251]
Download as PDF
<![CDATA[
33200
Federal Register / Vol. 70, No. 108 / Tuesday, June 7, 2005 / Notices
On November 29, 2004, Judge Bittner
issued an order affording Respondent an
opportunity to respond to the
Government’s Motion. On December 13
and 14, 2004, Respondent filed his
response, objecting to a summary
disposition of the proceeding and
requesting an indefinite stay. In it, he
argued that his state criminal
convictions and the Medical Board’s
revocation order were then-pending
appear and they should not be used as
a basis for adverse action on his DEA
registration. However, Respondent did
not deny that as of December 17, 2004,
he was no longer licensed to practice
medicine in Massachusetts.
On December 27, 2004, Judge Bittner
issued her Opinion and Recommended
Decision of the Administrative Law
Judge (Opinion and Recommended
Decision). In it, she granted the
Government’s Motion, finding
Respondent lacked authorization to
handle controlled substances in his state
of DEA registration and she
recommended that his registration be
revoked.
No exceptions were filed by either
party to the Opinion and Recommended
Decision and on February 2, 2005, the
record of these proceedings was
transmitted to the Office of the DEA
Deputy Administrator.
The Deputy Administrator has
considered the record in its entirety and
pursuant to 21 CFR 1316.67, hereby
issues her final order, based upon
findings of fact and conclusions of law
as hereinafter set forth. The Deputy
Administrator adopts, in full, the
Opinion and Recommended Decision of
the Administrative Law Judge.
The Deputy Administrator finds
Respondent currently holds DEA
Certificate of Registration AK8615013 as
a practitioner and that on November 17,
2004, the Massachusetts Medical Board
revoked his license to practice medicine
in that state, effective as of December
17, 2004. That action was predicated on
Respondent’s criminal convictions
which under Massachusetts law, either
undermined the public’s confidence in
the integrity of the medical profession
or showed Respondent’s lack of moral
character.
The Deputy Administrator therefore
finds Respondent is not currently
licensed to practice medicine in
Massachusetts and lacks authorization
to handle controlled substances in that
state.
DEA does not have statutory authority
under the Controlled Substances Act to
issue or maintain a registration if the
applicant or registrant is without state
authority to handle controlled
substances in the state in which he
VerDate jul<14>2003
20:54 Jun 06, 2005
Jkt 205001
conducts business. See 21 U.S.C.
802(21), 823(f) and 824(a)(3). This
prerequisite has been consistently
upheld. See Stephen J. Graham, M.D.,
69 FR 11,661 (2004), Dominick A. Ricci,
M.D., 58 FR 51,104 (1993); Bobby Watts,
M.D., 53 FR 11,919 (1998).
Here, it is clear Respondent is not
currently licensed to handle controlled
substances in Massachusetts, the
jurisdiction in which he holds a DEA
registration. Therefore, he is not entitled
to registration in that state.
Accordingly, the Deputy
Administrator of the Drug Enforcement
Administration, pursuant to the
authority vested in her by 21 U.S.C. 823
and 824 and 28 CFR 0.100(b) and 0.104,
hereby orders that DEA Certificate of
Registration AK8615013, issued to
Kennard Kobrin, M.D., be, and it hereby
is, revoked. The Deputy Administrator
further orders that any pending
applications for renewal or modification
of such registration be, and they hereby
are, denied. This order is effective July
7, 2005.
Dated: May 25, 2005
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05–11246 Filed 6–6–05; 8:45 am]
BILLING CODE 4410–09–M
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Scott H. Nearing, D.D.S., Grant of
Restricted Registration
On January 27, 2003, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration (DEA) issued an Order
to Show Cause to Scott H. Nearing,
D.D.S. (Dr. Nearing/Respondent) of
Wichita, Kansas. Dr. Nearing was
notified of an opportunity to show cause
as to why DEA should not deny this
application for a DEA Certificate of
Registration as a practitioner on the
grounds that his registration would be
inconsistent with the public interest, as
that term is used in 21 U.S.C. 823(f).
The Order to Show Cause alleged in
sum, that between April 1989 and May
1993 Dr. Nearing wrote and presented
more than 100 fictitious prescriptions to
local pharmacies for controlled
substances and ordered narcotic and
benzodiazepine controlled substances
from a wholesale drug company, all for
his personal use and not for legitimate
medical purposes. As a result of these
actions, he surrendered his DEA
Certificate of Registration on June 23,
1993, and on July 11, 1994, pled guilty
to one count of violating 21 U.S.C.
PO 00000
Frm 00146
Fmt 4703
Sfmt 4703
843(a)(3) and was sentenced to four
months home confinement and placed
on probation for four years. It was
further alleged that between 1994 and
2000, the Kansas State Dental Board
(Dental Board) took several disciplinary
actions against Respondent, ranging
from license suspensions in 1994 and
1998 to discipline imposed in 2000 for
practicing without a license.
Respondent, acting pro se, requested
a hearing and the matter was docketed
before Administrative Law Judge Mary
Ellen Bittner. Following pre-hearing
procedures, a hearing was held in
Topeka, Kansas, on July 15, 2004. At the
hearing, both parties called witnesses to
testify and introduced documentary
evidence. Subsequently, both parties
filed Proposed Findings of Fact,
Conclusions of Law, and Argument.
On January 3, 2005, Judge Bittner
issued her Opinion and Recommended
Ruling, Findings of Fact, Conclusions of
Law, and Decision of the Administrative
Law Judge (Opinion and Recommended
Ruling), recommending that
Respondent’s application for
registration as a practitioner be granted,
with the following restrictions: (1)
Respondent shall not write any
prescriptions for himself, and shall not
obtain or possess for his use any
controlled substance except upon the
written prescription of another licensed
medical professional, and (2) for at least
two years from the date of the entry of
a final order in this proceeding,
Respondent shall continue to attend
Caduceus meetings on a monthly basis.
No Exceptions to the Opinion and
Recommended Ruling were filed and on
February 2, 2005, Judge Bittner
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 her final order based upon
findings of fact and conclusions of law
hereinafter set forth. The Deputy
Administrator adopts in full, the
recommended ruling, findings of fact
and conclusions of law of the
Administrative Law Judge and agrees
Respondent’s application should be
approved, with restrictions.
The record before the Deputy
Administrator shows Dr. Nearing
graduated from the University of
Missouri, Kansas City Dental School in
1983. In March 1984, he purchased a
small dental practice from the widow of
another dentist located in Overland
Park, Kansas and nine years later, DEA
began investigating Respondent after
local pharmacies began questioning
prescriptions he had written.
E:\FR\FM\07JNN1.SGM
07JNN1
Federal Register / Vol. 70, No. 108 / Tuesday, June 7, 2005 / Notices
Based on records from approximately
30 Kansas City pharmacies, DEA
Diversion Investigators determined that
between 1989 and 1993, Respondent
presented multiple fictitious
prescriptions for narcotic controlled
substances, using false names of
patients. Most were for drugs containing
hydrocodone, a Schedule III controlled
substance, but some were for
oxycodone, a Schedule II controlled
substance. It was also determined
Respondent had ordered narcotic and
benzodiazepine controlled substances
for his personal use from a wholesale
drug company.
On June 22, 1993, Diversion
Investigators went to Respondent’s
office and confronted him about the
fictitious prescriptions. After initial
denials, he cooperated and admitting
writing the fraudulent prescriptions to
feed his drug abuse problem. Dr.
Nearing also executed a DEA Form
1204, voluntarily surrendered his DEA
Certificate of Registration and agreed to
not reapply for registration for a
minimum of two years.
Records introduced at the hearing
showed that between May 1, 1989 and
April 27, 1993, Respondent issued
approximately 188 fraudulent
prescriptions for Schedule II and III
controlled substances, most of which
were for 16 or 20 dosage units. Further
documentary evidence showed that
between March 27 and June 10, 1993,
Dr. Nearing ordered approximately 1700
dosage units of Vicodin, Darvocet N–
100 and Valium from two drug
wholesalers. Vicodin is the brand name
for a product containing hydrocodone,
Valium is the brand name of a product
containing diazepam, a Schedule IV
controlled substance and Darvocet N–
100 is the brand name for a product
containing propoxyphene, also a
Schedule IV controlled substance. Dr.
Nearing testified at the hearing that
while most of the Valium was provided
to patients, he probably personally used
the other drugs. There is no evidence
that Dr. Nearing ever diverted any of
these controlled substances to others or
that any patient was harmed as a result
of his personal abuse problems.
As a result of this investigation, on
June 8, 1994, Respondent was charged
in a one-count information in the
United States District Court for the
District of Kansas, with violating 21
U.S.C. 843(a)(3) by fraudulently
obtaining a Schedule III narcotic
controlled substance. Dr. Nearing pled
guilty to that offense and on September
19, 1994, was placed on probation for
four years, sentenced to four months
home confinement, ordered to
participate in a substance abuse
VerDate jul<14>2003
20:54 Jun 06, 2005
Jkt 205001
treatment program and required to pay
a $1,000.00 fine.
On March 22, 1994, the Dental Board
entered into a stipulation with
Respondent under which his license to
practice dentistry was suspended for
one year. However, the suspension was
stayed so long as he met certain
conditions, including complying with a
rehabilitation program and refraining
from any use of alcohol or controlled
substances. This program included
attendance at twelve-step meetings,
personal counseling, working with a
sponsor, participation in an aftercare
group and drug testing upon demand.
The administrator of the Impaired
Provider Program (IPP) later advised the
Dental Board that Respondent was not
complying with the program’s
requirements because he had refused
therapy. As a result, Respondent entered
into a Stipulation Agreement and
Enforcement Order with the Dental
Board in December 1996. Under that
Order, his license would be suspended
for twelve months; however, this
suspension was also not put into effect,
as long as Respondent re-enrolled in IPP
and adhered with its requirements.
Respondent did reenter IPP, however,
as a result of a second refusal to undergo
therapy, the administrator again advised
the Dental Board that he was not in
compliance with the program. As a
consequence, in a Final Order dated
January 16, 1998, Respondent’s dental
license was suspended for twelve
months. During this period, Respondent
failed to renew his license and it was
cancelled, effective March 1, 1999. In
late 1999, after his suspension period
had run, Respondent was seen
practicing dentistry by a state
investigator and because he had not
renewed his license, Respondent was
then practicing without a license.
He applied for a new license and in
a Stipulation and Final Agency Order
dated May 20, 2000, the Dental Board
granted his application. However, as a
sanction, it suspended his license to
practice while he underwent additional
rehabilitation. Respondent then entered
a program run by the Professional
Renewal Center (Center) of Lawrence,
Kansas. This included intensive
psychotherapy and treatment for a
previously undiagnosed problem, which
the Center had discovered.
In January 2001, the Center’s thenDirector wrote the Dental Board
supporting Respondent’s request to
return to practice, noting Dr. Nearing’s
significant progress, the support of his
family and his significant motivation for
change. The Director supported Dr.
Nearing’s resumption of practice under
enumerated conditions, which included
PO 00000
Frm 00147
Fmt 4703
Sfmt 4703
33201
continued participation in Caduceus, a
support group for health professionals
patterned after Alcoholics Anonymous
and Narcotics Anonymous. The Director
further recommended that Dr. Nearing
not engage in a solo practice, as the
strains of running such a business had
contributed to his original abuse
problems.
Based on this recommendation, in an
Order dated January 30, 2001, the
Dental Board lifted Dr. Nearing’s license
suspension and as of the date of the
DEA hearing, he is fully licensed to
practice dentistry in Kansas.
Respondent testified at the hearing,
describing his history of violations and
rehabilitative efforts. Immediately after
the June 1993 interview, where he was
apprised that authorities were aware of
his activities, he entered his first inpatient treatment program. From 1994 to
1997 he underwent rehabilitative
treatment as recommended by the
Dental Board. However, he did stop
seeing the therapist which the program’s
director had recommended. Dr. Nearing
attributed this to confusion over
whether seeing the therapist was
mandatory and his then-belief the
therapy was not helping him. This
resulted in the first letter to the Dental
Board that he was not in compliance
with the program. Although he
discontinued therapy, his urine screens
were all negative and he attended
Alcoholics Anonymous meetings. Dr.
Nearing was reinstated into the program
but in 1998 was dropped once more,
again apparently for not seeing a
therapist as directed.
On the recommendation of the Dental
Board, he finally entered the Center’s
program in Lawrence, which addressed
problems that had previously gone
undiagnosed and this led eventually to
full reinstatement of his license to
practice dentistry. Respondent testified
that he has not used drugs since August
18, 1994, and has not consumed alcohol
since at least August 1999.
At the time of the hearing, Dr. Nearing
was the supervising dentist in a clinic
owned by another dentist. He oversees
the professional practice of several other
dentists, but does not have the business
responsibilities which contributed to his
abuse problems while operating a solo
practice. He described his current
situation as a ‘‘wonderful practice’’ and
there is no evidence he has relapsed or
abused any drugs since 1994. Dr.
Nearing continues to attend Caduceus
meetings and testified that he would not
object to having conditions placed on
his registration if the application was
granted.
The current director of the Center and
Respondent’s monitoring physician
E:\FR\FM\07JNN1.SGM
07JNN1
33202
Federal Register / Vol. 70, No. 108 / Tuesday, June 7, 2005 / Notices
jointly wrote DEA in support of his
application for registration. They
reported Dr. Nearing was in sustained
full remission and characterized his
dependence recovery as being
‘‘remarkable.’’
Pursuant to 21 U.S.C. 823(f), the
Deputy Administrator may deny any
pending application for registration if
she determines that 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 or 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 she deems
appropriate in determining whether a
registration should be revoked or an
application for registration denied. See
Henry J. Schwartz, Jr., M.D., 54 FR
16,422 (1989).
With regard to factor one, the
recommendation of the appropriate state
licensing board or professional
disciplinary authority, Judge Bittner
found Respondent is now fully licensed
by the State of Kansas to practice
dentistry and has authority to handle
controlled substances in that state. She
therefore found this factor weighed in
favor of registration. Nevertheless, as
noted by the Administrative Law Judge,
state licensure is a necessary, but not
sufficient condition for registration, and
therefore this factor is not dispositive.
See e.g., Wesley G. Harline, M.D., 65 FR
5,665–01 (2000); James C. LaJevic,
D.M.D., 64 FR 55,962 (1999). The
Deputy Administrator agrees.
With regard to factor two,
Respondent’s experience in handling
controlled substances, he abused
controlled substances after obtaining
them through fictitious prescriptions
and ordering them from wholesalers.
Judge Bittner concluded that even
though Respondent never
inappropriately prescribed,
administered or otherwise dispensed
controlled substances to any patient,
this factor weighed in favor of a finding
VerDate jul<14>2003
20:54 Jun 06, 2005
Jkt 205001
that Respondent’s registration would be
inconsistent with the public interest.
The Deputy Administrator concurs.
The record also establishes
Respondent entered a guilty plea to a
charge of violating federal law by
fraudulently obtaining a Schedule III
narcotic controlled substance. Thus, as
also found by Judge Bittner, factor three
weighs in favor of a finding that
Respondent’s registration would be
inconsistent with the public interest.
With regard to factor four, compliance
with applicable laws relating to
controlled substances, Respondent’s use
of purported prescriptions with
fictitious names violated statutory and
regulatory requirements that
prescriptions be issued only for
legitimate medical purposes and must
bear the full name and address of the
patient. As found by Judge Bittner, this
factor also weighs against registration.
Finally, with regard to factor five,
beyond the violations addressed above,
the Deputy Administrator agrees with
Judge Bittner that Respondent has not
engaged in other conduct that may
threaten the public health or safety.
Applying the above factors, Judge
Bittner concluded the record clearly
establishes grounds for finding that
Respondent’s registration would be
inconsistent with the public interest.
However, she recommended that the
Deputy Administrator, in the exercise of
her discretion, grant Respondent’s
application, with restrictions.
Judge Bittner noted Respondent
cooperated with DEA investigators
when he was first confronted with his
misconduct in 1994. He admitted his
abuse of controlled substances and the
fraudulent means used to acquire them.
He immediately sought treatment and
there is no evidence that Dr. Nearing has
abused any controlled substances for
almost 11 years. While terminated from
his initial rehabilitation program over
the therapy issue, he did not return to
drug use and eventually Dr. Nearing
successfully completed an intensive
program for impaired professionals.
The Administrative Law Judge, who
observed Respondent’s demeanor
during the hearing, credited his
testimony that he has continued
rehabilitation and concluded that Dr.
Nearing is unlikely to repeat his past
misconduct. She therefore found that
granting Respondent’s application
would not be inconsistent with the
public interest, subject to the
enumerated restrictions.
The Deputy Administrator also finds
that adequate grounds exist for denying
Respondent’s application for DEA
registration. Having concluded that
there is a lawful basis upon which to
PO 00000
Frm 00148
Fmt 4703
Sfmt 4703
deny Respondent’s application, the
question remains as to whether the
Deputy Administrator should, in the
exercise of her discretion, grant or deny
the application. Like Judge Bittner, the
Deputy Administrator concludes that it
would not be inconsistent with the
public interest to grant Respondent’s
pending application. See Karen A.
Kreuger, M.D., 69 FR 7,016 (2004) [grant
of restricted registration]; Jeffrey Martin
Ford, D.D.S., 68 FR 10,750 (2003)
[same].
The Deputy Administrator finds
significant Respondent’s willingness to
cooperate with investigators and accept
responsibility, both administratively
and criminally. Upon discovery of his
activities he immediately entered
rehabilitation and most recently
completed an intensive program for
health professionals tailored to a
diagnosis made only upon Dr. Nearing’s
admission to that program.
Most importantly, there is no
evidence he has misused any controlled
substances for almost eleven years now
and he is in a responsible professional
situation that is conducive to his
continued compliance with the laws
and regulations governing controlled
substances. In sum, it appears from
these positive developments that
Respondent has acknowledged his past
problems and taken steps to ensure
continued recovery.
However, given the concerns about
Respondent’s past mishandling of
controlled substances, a restricted
registration is warranted. Accordingly,
the Deputy Administrator adopts the
following restrictions upon the
Respondent’s DEA registration, as
recommended by Judge Bittner:
1. Respondent shall not write any
prescriptions for himself, and shall not
obtain or possess for his use any
controlled substance except upon the
written prescription of another licensed
medical professional.
2. For at least two years from the date
of the entry of a final order in this
proceeding, Respondent shall continue
to attend Caduceus meetings on a
monthly basis.
Additionally,
3. Respondent’s controlled substance
handling authority shall be limited to
the administering of controlled
substances in his office and the writing
of prescriptions only.
4. Respondent shall inform the DEA,
within 30 days of the event, of any
adverse action taken by any state upon
his license to practice dentistry or upon
his authorization to handle controlled
substances within that state.
Accordingly, the Deputy
Administrator of the Drug Enforcement
E:\FR\FM\07JNN1.SGM
07JNN1
Federal Register / Vol. 70, No. 108 / Tuesday, June 7, 2005 / Notices
Administration, pursuant to the
authority vested in her by 21 U.S.C. 823
and 824 and 28 CFR 0.100(b) and 0.104,
hereby orders that the application for
DEA Certificate of Registration
submitted by Scott H. Nearing, D.D.S.
be, and it hereby is, granted, subject to
the above described restrictions. This
order is effective July 7, 2005.
Dated: May 25, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05–11251 Filed 6–6–05; 8:45 am]
BILLING CODE 4410–09–M
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 02–28]
Felix K. Prakasam, M.D. Revocation of
Registration
On February 6, 2002, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration (DEA), issued an Order
to Show Cause to Felix K. Prakasam,
M.D. (Respondent) notifying
Respondent of an opportunity to show
cause as to why DEA should not revoke
his DEA Certificates of Registration
BP3420344 and BP44160029, pursuant
to 21 U.S.C. 824(a)(1) and (a)(4) on the
grounds he had materially falsified four
DEA renewal applications and that his
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). The Order to Show Cause also
proposed that any pending applications
for renewal should be denied under 21
U.S.C. 823(f).
The Order to Show Cause alleged, in
sum, that during 1995–1996,
Respondent failed to maintain complete
and accurate records of controlled
substances dispensed at this medical
offices located in Redlands and Salinas,
California, and accountability audits
during this period revealed overages
and shortages of controlled substances
at both registered locations. As a result,
on March 10, 1997, after an informal
administrative hearing at the DEA San
Francisco office, Respondent entered
into a Memorandum of Understanding
with DEA in which he agreed to address
the record-keeping violations and
provide effective controls against theft
and diversion of controlled substances.
The Order to Show Cause further
alleged that on April 30, 1997, the
California Medical Board (California
Board) brought on Accusation against
Respondent’s California medical
license. As a result, on February 11,
VerDate jul<14>2003
20:54 Jun 06, 2005
Jkt 205001
1998, the California Board revoked
Respondent’s medical license, effective
March 13, 1998. However, the Board
stayed the revocation, placing
Respondent’s license on probation for
three years, with conditions. On March
20, 2001, as a result of the California
action, Respondent entered into a
Consent Order with the Louisiana State
Board of Medical Examiners (Louisiana
Board) in which he agreed to an
indefinite suspension of his Louisiana
medical license.
Finally, it was alleged that in
February 1998 and February 2001,
Respondent materially falsified a total of
four applications for renewal of his DEA
registrations by failing to disclose the
California Board’s action placing his
medical license in a probationary status.
Respondent requested a hearing on
the issues raised by the Order to Show
Cause and following pre-hearing
procedures, a hearing was held in San
Francisco, California, on March 12 and
13, 2003. 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 30, 2004, Presiding
Administrative Law Judge Mary Ellen
Bittner (Judge Bittner/ALJ) issued her
Opinion and Recommended Ruling,
Findings of Fact, Conclusions of Law
and Decision of the Administrative Law
Judge (Opinion and Recommended
Ruling) in which she recommended that
Respondent’s two DEA registrations be
revoked and any pending applications
for renewal denied. No exceptions were
submitted by the parties, and on March
2, 2004, Judge Bittner transmitted the
record of these proceedings to the thenActing Deputy Administrator of DEA.
The Deputy Administrator has
considered the record in its entirety and
pursuant to 21 CFR 1316.67, hereby
issues her final order based upon
finding of fact and conclusions of law as
hereinafter set forth.
The Deputy Administrator adopts the
findings of fact and recommendation of
the Administrative Law Judge that
Respondent’s DEA Certificates of
Registration be revoked.1
1 In an evidentiary/discovery ruling which did
not impact relevant findings of fact or her
recommendation for revocation, the ALJ concluded
the Government should have provided Respondent
copies of several DEA–6 Reports of Investigation
which had been prepared by a DEA Diversion
Investigator while investigating the allegations,
several years before the hearing. Before testifying
for the Government, the Diversion Investigator had
used the reports to refresh his memory and
Respondent’s request for the documents was made
after the Diversion Investigator completed testifying
on direct examination. Notwithstanding the ALJ’s
PO 00000
Frm 00149
Fmt 4703
Sfmt 4703
33203
The record before the Deputy
Administrator shows Respondent
received his medical degree in 1971
from Christian Medical College in
Vellore, India. He interned and
completed a residency in Maryland and
in 1981 was licensed to practice in
California. He also practiced medicine
in Louisiana from an undetermined date
until 1992, when he moved to California
and opened a practice in Redlands. He
eventually began working in the Salinas
office of Rinaldo Fong, M.D. and took
over that practice when Dr. Fong was
deported. Respondent has held DEA
Certificate of Registration BP3420344 for
the Redlands location since November
18, 1992, and DEA resignation
BP4416029 for the Salinas office since
May 8, 1995. While Respondent is
Board eligible in anesthesiology, his
specialty at all relevant times has been
bariatric medicine i.e., weight control.
In July 1996, after reports were
received of Respondent’s possible
purchase of excessive quantities of
controlled substances, DEA Diversion
Investigators, accompanied by an
investigator from the California Board,
conducted an inspection and
accountability audit at Respondent’s
Salinas office. The inspection revealed
Respondent had not complied with
multiple regulatory requirements,
including failures: (1) Maintain an
inventory of controlled substances as of
a specific date and as of the opening or
closing of business; (2) maintain
ruling, the Government declined to provide
Respondent the reports, contending they were not
releasable under the rules and statutes governing
DEA administrative hearings. Transcript, pages
168–169; Opinion and Recommended Ruling, page
5, fn. 1.
The reports appear to be Jencks Act material (18
U.S.C. 3500) and the Deputy Administrator has
previously ruled that ‘‘pursuant to applicable law
and regulations governing DEA administrative
hearings, neither the principles of the Jencks
decision nor the Jencks Act are applicable to these
proceedings.’’ See e.g., Branex Inc., 69 FR 8,682,
8,685 (2004) (Emphasis added) [Confirming
predecessor Deputy Administrator’s interlocutory
decision that the Government is not required to
supply a respondent at an administrative hearing,
statements made and adopted by Government
witnesses during their direct testimony.]
Applying the principles of Branex and its
predecessors, which addressed evidentiary/
discovery standards applicable to DEA
administrative hearing and detailed the
Government’s limited obligations to provide
discovery before and during the course of hearings
under the Administrative Procedures Act (5 U.S.C.
556(d)) and DEA regulations (21 CFR 1316.54–
1316.59), the Deputy Administrator concludes the
Government correctly declined to provide
Respondent the reports in question here. See e.g.,
Nicholas A. Sychak, d.b.a. Medicap Pharmacy, 65
FR 75,959, 75,960–75,961 (2000) [No requirement
for Government to disclose potentially exculpatory
information to respondents in DEA administrative
hearings]; Rosalind A. Cropper, M.D., 66 FR 41,040,
41,041 (2001) [‘‘the Federal Rules of Evidence do
not apply directly to these proceedings’’].
E:\FR\FM\07JNN1.SGM
07JNN1
]]>Agencies
[Federal Register Volume 70, Number 108 (Tuesday, June 7, 2005)]
[Notices]
[Pages 33200-33203]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-11251]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Scott H. Nearing, D.D.S., Grant of Restricted Registration
On January 27, 2003, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA) issued an
Order to Show Cause to Scott H. Nearing, D.D.S. (Dr. Nearing/
Respondent) of Wichita, Kansas. Dr. Nearing was notified of an
opportunity to show cause as to why DEA should not deny this
application for a DEA Certificate of Registration as a practitioner on
the grounds that his registration would be inconsistent with the public
interest, as that term is used in 21 U.S.C. 823(f).
The Order to Show Cause alleged in sum, that between April 1989 and
May 1993 Dr. Nearing wrote and presented more than 100 fictitious
prescriptions to local pharmacies for controlled substances and ordered
narcotic and benzodiazepine controlled substances from a wholesale drug
company, all for his personal use and not for legitimate medical
purposes. As a result of these actions, he surrendered his DEA
Certificate of Registration on June 23, 1993, and on July 11, 1994,
pled guilty to one count of violating 21 U.S.C. 843(a)(3) and was
sentenced to four months home confinement and placed on probation for
four years. It was further alleged that between 1994 and 2000, the
Kansas State Dental Board (Dental Board) took several disciplinary
actions against Respondent, ranging from license suspensions in 1994
and 1998 to discipline imposed in 2000 for practicing without a
license.
Respondent, acting pro se, requested a hearing and the matter was
docketed before Administrative Law Judge Mary Ellen Bittner. Following
pre-hearing procedures, a hearing was held in Topeka, Kansas, on July
15, 2004. At the hearing, both parties called witnesses to testify and
introduced documentary evidence. Subsequently, both parties filed
Proposed Findings of Fact, Conclusions of Law, and Argument.
On January 3, 2005, Judge Bittner issued her Opinion and
Recommended Ruling, Findings of Fact, Conclusions of Law, and Decision
of the Administrative Law Judge (Opinion and Recommended Ruling),
recommending that Respondent's application for registration as a
practitioner be granted, with the following restrictions: (1)
Respondent shall not write any prescriptions for himself, and shall not
obtain or possess for his use any controlled substance except upon the
written prescription of another licensed medical professional, and (2)
for at least two years from the date of the entry of a final order in
this proceeding, Respondent shall continue to attend Caduceus meetings
on a monthly basis. No Exceptions to the Opinion and Recommended Ruling
were filed and on February 2, 2005, Judge Bittner 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 her final order based
upon findings of fact and conclusions of law hereinafter set forth. The
Deputy Administrator adopts in full, the recommended ruling, findings
of fact and conclusions of law of the Administrative Law Judge and
agrees Respondent's application should be approved, with restrictions.
The record before the Deputy Administrator shows Dr. Nearing
graduated from the University of Missouri, Kansas City Dental School in
1983. In March 1984, he purchased a small dental practice from the
widow of another dentist located in Overland Park, Kansas and nine
years later, DEA began investigating Respondent after local pharmacies
began questioning prescriptions he had written.
[[Page 33201]]
Based on records from approximately 30 Kansas City pharmacies, DEA
Diversion Investigators determined that between 1989 and 1993,
Respondent presented multiple fictitious prescriptions for narcotic
controlled substances, using false names of patients. Most were for
drugs containing hydrocodone, a Schedule III controlled substance, but
some were for oxycodone, a Schedule II controlled substance. It was
also determined Respondent had ordered narcotic and benzodiazepine
controlled substances for his personal use from a wholesale drug
company.
On June 22, 1993, Diversion Investigators went to Respondent's
office and confronted him about the fictitious prescriptions. After
initial denials, he cooperated and admitting writing the fraudulent
prescriptions to feed his drug abuse problem. Dr. Nearing also executed
a DEA Form 1204, voluntarily surrendered his DEA Certificate of
Registration and agreed to not reapply for registration for a minimum
of two years.
Records introduced at the hearing showed that between May 1, 1989
and April 27, 1993, Respondent issued approximately 188 fraudulent
prescriptions for Schedule II and III controlled substances, most of
which were for 16 or 20 dosage units. Further documentary evidence
showed that between March 27 and June 10, 1993, Dr. Nearing ordered
approximately 1700 dosage units of Vicodin, Darvocet N-100 and Valium
from two drug wholesalers. Vicodin is the brand name for a product
containing hydrocodone, Valium is the brand name of a product
containing diazepam, a Schedule IV controlled substance and Darvocet N-
100 is the brand name for a product containing propoxyphene, also a
Schedule IV controlled substance. Dr. Nearing testified at the hearing
that while most of the Valium was provided to patients, he probably
personally used the other drugs. There is no evidence that Dr. Nearing
ever diverted any of these controlled substances to others or that any
patient was harmed as a result of his personal abuse problems.
As a result of this investigation, on June 8, 1994, Respondent was
charged in a one-count information in the United States District Court
for the District of Kansas, with violating 21 U.S.C. 843(a)(3) by
fraudulently obtaining a Schedule III narcotic controlled substance.
Dr. Nearing pled guilty to that offense and on September 19, 1994, was
placed on probation for four years, sentenced to four months home
confinement, ordered to participate in a substance abuse treatment
program and required to pay a $1,000.00 fine.
On March 22, 1994, the Dental Board entered into a stipulation with
Respondent under which his license to practice dentistry was suspended
for one year. However, the suspension was stayed so long as he met
certain conditions, including complying with a rehabilitation program
and refraining from any use of alcohol or controlled substances. This
program included attendance at twelve-step meetings, personal
counseling, working with a sponsor, participation in an aftercare group
and drug testing upon demand.
The administrator of the Impaired Provider Program (IPP) later
advised the Dental Board that Respondent was not complying with the
program's requirements because he had refused therapy. As a result,
Respondent entered into a Stipulation Agreement and Enforcement Order
with the Dental Board in December 1996. Under that Order, his license
would be suspended for twelve months; however, this suspension was also
not put into effect, as long as Respondent re-enrolled in IPP and
adhered with its requirements.
Respondent did reenter IPP, however, as a result of a second
refusal to undergo therapy, the administrator again advised the Dental
Board that he was not in compliance with the program. As a consequence,
in a Final Order dated January 16, 1998, Respondent's dental license
was suspended for twelve months. During this period, Respondent failed
to renew his license and it was cancelled, effective March 1, 1999. In
late 1999, after his suspension period had run, Respondent was seen
practicing dentistry by a state investigator and because he had not
renewed his license, Respondent was then practicing without a license.
He applied for a new license and in a Stipulation and Final Agency
Order dated May 20, 2000, the Dental Board granted his application.
However, as a sanction, it suspended his license to practice while he
underwent additional rehabilitation. Respondent then entered a program
run by the Professional Renewal Center (Center) of Lawrence, Kansas.
This included intensive psychotherapy and treatment for a previously
undiagnosed problem, which the Center had discovered.
In January 2001, the Center's then-Director wrote the Dental Board
supporting Respondent's request to return to practice, noting Dr.
Nearing's significant progress, the support of his family and his
significant motivation for change. The Director supported Dr. Nearing's
resumption of practice under enumerated conditions, which included
continued participation in Caduceus, a support group for health
professionals patterned after Alcoholics Anonymous and Narcotics
Anonymous. The Director further recommended that Dr. Nearing not engage
in a solo practice, as the strains of running such a business had
contributed to his original abuse problems.
Based on this recommendation, in an Order dated January 30, 2001,
the Dental Board lifted Dr. Nearing's license suspension and as of the
date of the DEA hearing, he is fully licensed to practice dentistry in
Kansas.
Respondent testified at the hearing, describing his history of
violations and rehabilitative efforts. Immediately after the June 1993
interview, where he was apprised that authorities were aware of his
activities, he entered his first in-patient treatment program. From
1994 to 1997 he underwent rehabilitative treatment as recommended by
the Dental Board. However, he did stop seeing the therapist which the
program's director had recommended. Dr. Nearing attributed this to
confusion over whether seeing the therapist was mandatory and his then-
belief the therapy was not helping him. This resulted in the first
letter to the Dental Board that he was not in compliance with the
program. Although he discontinued therapy, his urine screens were all
negative and he attended Alcoholics Anonymous meetings. Dr. Nearing was
reinstated into the program but in 1998 was dropped once more, again
apparently for not seeing a therapist as directed.
On the recommendation of the Dental Board, he finally entered the
Center's program in Lawrence, which addressed problems that had
previously gone undiagnosed and this led eventually to full
reinstatement of his license to practice dentistry. Respondent
testified that he has not used drugs since August 18, 1994, and has not
consumed alcohol since at least August 1999.
At the time of the hearing, Dr. Nearing was the supervising dentist
in a clinic owned by another dentist. He oversees the professional
practice of several other dentists, but does not have the business
responsibilities which contributed to his abuse problems while
operating a solo practice. He described his current situation as a
``wonderful practice'' and there is no evidence he has relapsed or
abused any drugs since 1994. Dr. Nearing continues to attend Caduceus
meetings and testified that he would not object to having conditions
placed on his registration if the application was granted.
The current director of the Center and Respondent's monitoring
physician
[[Page 33202]]
jointly wrote DEA in support of his application for registration. They
reported Dr. Nearing was in sustained full remission and characterized
his dependence recovery as being ``remarkable.''
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny any
pending application for registration if she determines that
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 or
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 she deems appropriate in determining
whether a registration should be revoked or an application for
registration denied. See Henry J. Schwartz, Jr., M.D., 54 FR 16,422
(1989).
With regard to factor one, the recommendation of the appropriate
state licensing board or professional disciplinary authority, Judge
Bittner found Respondent is now fully licensed by the State of Kansas
to practice dentistry and has authority to handle controlled substances
in that state. She therefore found this factor weighed in favor of
registration. Nevertheless, as noted by the Administrative Law Judge,
state licensure is a necessary, but not sufficient condition for
registration, and therefore this factor is not dispositive. See e.g.,
Wesley G. Harline, M.D., 65 FR 5,665-01 (2000); James C. LaJevic,
D.M.D., 64 FR 55,962 (1999). The Deputy Administrator agrees.
With regard to factor two, Respondent's experience in handling
controlled substances, he abused controlled substances after obtaining
them through fictitious prescriptions and ordering them from
wholesalers. Judge Bittner concluded that even though Respondent never
inappropriately prescribed, administered or otherwise dispensed
controlled substances to any patient, this factor weighed in favor of a
finding that Respondent's registration would be inconsistent with the
public interest. The Deputy Administrator concurs.
The record also establishes Respondent entered a guilty plea to a
charge of violating federal law by fraudulently obtaining a Schedule
III narcotic controlled substance. Thus, as also found by Judge
Bittner, factor three weighs in favor of a finding that Respondent's
registration would be inconsistent with the public interest.
With regard to factor four, compliance with applicable laws
relating to controlled substances, Respondent's use of purported
prescriptions with fictitious names violated statutory and regulatory
requirements that prescriptions be issued only for legitimate medical
purposes and must bear the full name and address of the patient. As
found by Judge Bittner, this factor also weighs against registration.
Finally, with regard to factor five, beyond the violations
addressed above, the Deputy Administrator agrees with Judge Bittner
that Respondent has not engaged in other conduct that may threaten the
public health or safety.
Applying the above factors, Judge Bittner concluded the record
clearly establishes grounds for finding that Respondent's registration
would be inconsistent with the public interest. However, she
recommended that the Deputy Administrator, in the exercise of her
discretion, grant Respondent's application, with restrictions.
Judge Bittner noted Respondent cooperated with DEA investigators
when he was first confronted with his misconduct in 1994. He admitted
his abuse of controlled substances and the fraudulent means used to
acquire them. He immediately sought treatment and there is no evidence
that Dr. Nearing has abused any controlled substances for almost 11
years. While terminated from his initial rehabilitation program over
the therapy issue, he did not return to drug use and eventually Dr.
Nearing successfully completed an intensive program for impaired
professionals.
The Administrative Law Judge, who observed Respondent's demeanor
during the hearing, credited his testimony that he has continued
rehabilitation and concluded that Dr. Nearing is unlikely to repeat his
past misconduct. She therefore found that granting Respondent's
application would not be inconsistent with the public interest, subject
to the enumerated restrictions.
The Deputy Administrator also finds that adequate grounds exist for
denying Respondent's application for DEA registration. Having concluded
that there is a lawful basis upon which to deny Respondent's
application, the question remains as to whether the Deputy
Administrator should, in the exercise of her discretion, grant or deny
the application. Like Judge Bittner, the Deputy Administrator concludes
that it would not be inconsistent with the public interest to grant
Respondent's pending application. See Karen A. Kreuger, M.D., 69 FR
7,016 (2004) [grant of restricted registration]; Jeffrey Martin Ford,
D.D.S., 68 FR 10,750 (2003) [same].
The Deputy Administrator finds significant Respondent's willingness
to cooperate with investigators and accept responsibility, both
administratively and criminally. Upon discovery of his activities he
immediately entered rehabilitation and most recently completed an
intensive program for health professionals tailored to a diagnosis made
only upon Dr. Nearing's admission to that program.
Most importantly, there is no evidence he has misused any
controlled substances for almost eleven years now and he is in a
responsible professional situation that is conducive to his continued
compliance with the laws and regulations governing controlled
substances. In sum, it appears from these positive developments that
Respondent has acknowledged his past problems and taken steps to ensure
continued recovery.
However, given the concerns about Respondent's past mishandling of
controlled substances, a restricted registration is warranted.
Accordingly, the Deputy Administrator adopts the following restrictions
upon the Respondent's DEA registration, as recommended by Judge
Bittner:
1. Respondent shall not write any prescriptions for himself, and
shall not obtain or possess for his use any controlled substance except
upon the written prescription of another licensed medical professional.
2. For at least two years from the date of the entry of a final
order in this proceeding, Respondent shall continue to attend Caduceus
meetings on a monthly basis.
Additionally,
3. Respondent's controlled substance handling authority shall be
limited to the administering of controlled substances in his office and
the writing of prescriptions only.
4. Respondent shall inform the DEA, within 30 days of the event, of
any adverse action taken by any state upon his license to practice
dentistry or upon his authorization to handle controlled substances
within that state.
Accordingly, the Deputy Administrator of the Drug Enforcement
[[Page 33203]]
Administration, pursuant to the authority vested in her by 21 U.S.C.
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that the
application for DEA Certificate of Registration submitted by Scott H.
Nearing, D.D.S. be, and it hereby is, granted, subject to the above
described restrictions. This order is effective July 7, 2005.
Dated: May 25, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05-11251 Filed 6-6-05; 8:45 am]
BILLING CODE 4410-09-M
