[Federal Register: June 7, 2005 (Volume 70, Number 108)]
[Notices]
[Page 33200-33203]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jn05-86]
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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]
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