[Federal Register Volume 59, Number 119 (Wednesday, June 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15089]


[[Page Unknown]]

[Federal Register: June 22, 1994]


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DEPARTMENT OF JUSTICE
[Docket No. 93-35]

 

Linwood T. Townsend, D.D.S.; Denial of Application

    On March 12, 1993, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Linwood Thomas Townsend, D.D.S., Respondent, at 
1285 N.E. 148th Street, North Miami, Florida. The Order to Show Cause 
proposed to deny his application for registration executed on November 
8, 1991, and filed with the DEA pursuant to 21 U.S.C. 823(f). The Order 
alleged that Respondent's registration with DEA would be inconsistent 
with the public interest, as that term is used in 21 U.S.C. 823 and 
824.
    Respondent requested a hearing and the matter was docketed before 
Administrative Law Judge Paul A. Tenney. Following prehearing 
procedures, a hearing was held in Miami, Florida on October 13, 1993. 
On January 18, 1994, Judge Tenney issued his Findings of Fact, 
Conclusions of Law, and Recommended Ruling. Neither party filed 
exceptions to the administrative law judge's opinion and recommended 
decision and, on February 18, 1994, the administrative law judge 
transmitted the record to the Acting Administrator. The Deputy 
Administrator has considered the record in its entirety and, pursuant 
to 21 CFR Sec. 1316.67, hereby enters his final order in this matter.
    The administrative law judge found that in 1977 Respondent obtained 
a license to practice dentistry in Florida. On May 30, 1980, Respondent 
was issued DEA Registration, AT9228708. On November 17, 1980, 
Respondent was issued a second Certificate of Registration. On November 
30, 1981, Respondent's DEA registration expired, and was never renewed.
    From November 1981 through November 1991, Respondent issued 
prescriptions for controlled substances with the expired registration 
number. A DEA Investigator conducted a survey of 11 pharmacies in the 
Miami area for prescriptions for controlled substances issued by the 
Respondent. The survey included prescriptions issued between January 
1989 and November 1991. The Investigator recovered approximately 575 
prescriptions for controlled substances issued by the Respondent during 
that period. Respondent did not possess a valid DEA registration during 
that time.
    At the DEA administrative hearing, Respondent testified that he 
thought his registration was transferable and that at that time he did 
not know that he was doing anything wrong. Respondent further testified 
that once he became aware of the need for a new DEA registration, he 
immediately submitted an application to DEA. Additionally, the 
Respondent said that he had not prescribed controlled substances since 
that time.
    Respondent also represented that during the period in question, he 
was employed by institutions which were part of the public health 
service, and was therefore exempt from DEA registration under 21 CFR 
Sec. 1301.25. The administrative law judge found that Respondent's 
claim was without any factual foundation. The Deputy Administrator 
agrees. The term ``public health service'' as set forth in 
Sec. 1301.25, refers to the United States Public Health Service. None 
of the institutions at which Respondent was employed was part of the 
Public Health Service as contemplated by Sec. 1301.25.
    The administrative law judge additionally found that on February 4, 
1988, in the Circuit Court of the Eleventh Judicial Circuit in Dade 
County, Florida, Respondent was convicted upon his plea of nolo 
contendere to filing false Medicaid claims. He was placed on eighteen 
months probation and ordered to pay restitution.
    Additionally, as a result of the conviction, on May 13, 1988, the 
Florida Department of Health and Rehabilitative Services terminated 
Respondent from further participation in the Florida Medicaid program. 
By letter dated June 24, 1988, the United States Department of Health 
and Human Services excluded Respondent from participation in the 
Medicare program pursuant to 42 U.S.C. 1320a-7(a), for a period of five 
years.
    The administrative law judge further found that on November 3, 
1988, the Department of Professional Regulation, Board of Dentistry 
(Board), filed an 18 count administrative complaint against Respondent. 
The complaint alleged that from March 1985 to May 1987, Respondent 
billed the Florida Medicaid Department for services that he did not 
render and filed false documents pertaining to the billing of these 
services to patients. With the exception of two counts, Respondent did 
not dispute the allegations in the complaint. Consequently, on February 
27, 1989, the Board entered its final order in which it adopted the 
allegations in the administrative complaint as findings of fact. The 
order placed Respondent's state dental license on suspension for three 
months, two months stayed. Following the suspension, Respondent's 
license was placed on five years probation and Respondent was ordered 
to take 24 hours of instruction in ethics and perform 500 hours of 
community service.
    The Board filed an administrative complaint and an amended 
administrative complaint against the Respondent on March 14, 1990 and 
December 19, 1990, respectively. The amended complaint alleged that the 
Respondent failed to meet the minimum standard of care in diagnosis and 
treatment of his patients and failed to keep records which justified 
his course of treatment. A stipulation entered into by the parties was 
approved and adopted by Final Order dated August 13, 1991. As part of 
the order, Respondent was required to pay $1,000 and his license to 
practice dentistry was placed on probation for two years.
    The administrative law judge further found that Respondent filed a 
DEA application for registration, dated November 8, 1991, and indicated 
that he never had a state professional license or controlled substance 
registration revoked, suspended, denied, restricted, or placed on 
probation. In fact, Respondent knew that his dental license had twice 
been disciplined and placed on suspension and probation by the Board. 
Since DEA must rely on the truthfulness of information supplied by 
applicants in registering them to handle controlled substances, 
falsification cannot be tolerated. Any material falsification of any 
application for registration is an independent statutory basis for the 
denial of an application. Herbert J. Robinson, M.D., 59 FR 6304 (1994); 
John W. Wang, M.D., 57 FR 47869 (1992); Ronald H. Futch, M.D., 53 FR 
38990 (1988).
    The administrative law judge recommended that the Administrator 
deny Respondent's application for registration at this time. The 
administrative law judge further found that the circumstances are 
sufficient to support a recommendation to the Administrator that an 
application be looked on favorably after the passage of one year. The 
Deputy Administrator adopts the findings of fact, conclusions of law 
and recommended ruling of the administrative law judge in its entirety.
    Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an 
application for DEA registration if he determines that the registration 
would be inconsistent with the public interest. Section 823(f) requires 
that the following factors be considered:
    (1) The recommendation of the appropriate State licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing, or conducting 
research with respect to controlled substances.
    (3) The applicant's conviction record under Federal or State laws 
relating to the manufacture, distribution, or dispensing of controlled 
substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.
    These factors are to be considered in the disjunctive. That is, the 
Deputy Administrator may properly rely on any one or a combination of 
those factors, giving each the weight he deems appropriate in 
determining whether a registration should be revoked, or an application 
denied. See David W. Warren, M.D., 55 FR 40017 (1990); Henry J. 
Schwarz, Jr., M.D., 54 FR 16422 (1989); England Pharmacy, 52 FR 1674 
(1987); and Felix Seisin, M.D., 51 FR 3863 (1986).
    The Deputy Administrator finds that the fourth and fifth factors 
are relevant to the adjudication of this matter. The record clearly 
establishes that the Respondent issued approximately 575 prescriptions 
for controlled substances without a valid DEA registration. Further, 
Respondent had been excluded from the Medicare program and had 
disciplinary action taken against him by the Florida Dental Board based 
upon Medicaid fraud and unprofessional conduct. Additionally, 
Respondent falsified his DEA application. The administrative law judge 
concluded that the record warrants denial of Respondent's application 
for registration at this time. The Deputy Administrator concurs in this 
evaluation.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 824 and 28 CFR Secs. 0.100(b) and 0.104 [59 FR 23637 (1994)], 
hereby orders that the application for a DEA Certificate of 
Registration submitted by Linwood Thomas Townsend, D.D.S., dated 
November 8, 1991, be, and it hereby is, denied. This order is effective 
July 22, 1994.

    Dated June 15, 1994.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 94-15089 Filed 6-21-94; 8:45 am]
BILLING CODE 4410-09-M