On April 29, 2004, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Glenn Anthony Routhouska, D.O. (Respondent), proposing to deny his application for a DEA Certificate of Registration as a practitioner pursuant to 21 U.S.C. 823(f) as being inconsistent with public interest. The Order to Show Cause also notified Respondent that should no request for a hearing be filed within 30 days, his hearing right would be waived.
The Order to Show Cause was sent by certified mail to Respondent at his address of record at 106 North Keech, Fairfield, Texas 75840. According to the return receipt, it was received on Respondent's behalf on May 5, 2004. After more than 30 days had passed without a request for a hearing or other response from Respondent or anyone acting on his behalf, the investigative file was forwarded to the DEA Deputy Administrator for final agency action pursuant to 21 CFR 1301.43(d) and (e).
Prior to final action being completed, Respondent, unrepresented by counsel, filed a belated request for a hearing in a letter which was received by the DEA Office of Administrative Law Judges on August 20, 2004. In it he stated he was on probation with the Texas State Board of Medical Examiners and that upon initially reading the Order to Show Cause, he thought “that a hearing was useless until I was off probation.” On September 8, 2004, at the Government's request, the investigative file was returned to the Office of Chief Counsel for further action.
On August 30, 2004, because Respondent's request for a hearing was filed nearly four months after the Order to Show Cause had been issued, Administrative Law Judge Mary Ellen Bittner issued a Memorandum to the Parties affording the Government an opportunity to object to Respondent's request for a hearing.
On September 9, 2004, the Government filed a motion to deny Respondent request for a hearing and on September 24, 2004, Judge Bittner issued her Memorandum to the Parties, Ruling, and Order Terminating the Proceedings. In that Order, she concluded Respondent had failed to show good cause for the belated filing and granted the Government's motion, terminating proceedings before the Administrative Law Judge and ordering the matter transmitted to the Deputy Administrator for issuance of a final order pursuant to 21 CFR 1316.67. On January 10, 2005, the investigative file and related documents were returned by the Chief Counsel to the Deputy Administrator for final agency action.
The Deputy Administrator finds as follows: (1) Respondent was properly served with the Order to Show Cause and notified that if no request for a hearing was filed within 30 days of its receipt, his hearing right would be deemed waived and a final order entered, without a hearing, based upon the investigative file and record as it then appeared; (2) respondent's request for a hearing was not filed until August 20, 2004, almost two and one-half months after expiration of the 30 day filing deadline; and (3) the Administrative Law Judge granted the Government's motion to deny a hearing and ordered the proceeding terminated. The Deputy Administrator therefore concludes Respondent is deemed to have waived his hearing right and after considering material from the investigative file and record in this matter, now enters her final order without a hearing, pursuant to 21 CFR 1301.43(d) and (e) and 1316.67.
According to information in the investigative file, Respondent, who practiced family medicine out of his office in Fairfield, Texas, was previously registered with DEA as a practitioner under Certificate of Registration BR206348, authorized to handle Schedule II through V controlled Start Printed Page 12726substances. On February 21, 2002, he surrendered that registration, for cause. Less than a year later, on January 27, 2003, Respondent submitted the application which is the subject of these proceedings.
In February 2002, based on information provided by a local pharmacy that was suspicious of his activities, the Texas Department of Public Safety (DPS) and DEA began investigating Respondent for diverting hydrocodone, a Schedule III controlled narcotic substance. The inquiry uncovered the following facts.
On an undetermined date prior to February 14, 2002, Respondent prescribed Vicodin, a form of hydrocodone, to patient M.H. After the Vicodin was dispensed, Respondent asked the patient to bring the prescription to his office, which she did. Asking to “see” the prescription, he took the vial out of the examining room and replaced the Vicodin with a non-controlled medication without telling the patient what he had done.
On February 14, 2002, Respondent prescribed Vicodin to patient T.S., who was 89 years old. After the Vicodin had been dispensed by a local pharmacy, Respondent visited the patient at his home, ostensibly to check on the medication. He then surreptiously replaced the Vicodin in the vial with Tylenol, non-controlled generic acetaminophen caplets, diverting the Vicodin for his own unauthorized use.
On February 20, 2002, Respondent was interviewed by a DEA diversion investigator and a DPS officer about the incident at patient T.S.'s home. During the interview Respondent falsely told investigators the patient's wife and daughter had asked him to switch the hydrocodone to Tylenol because they feared T.S. was taking too much hydrocodone. Respondent also falsely told officers that he had disposed of the hydrocodone by flushing it down a toilet in his medical office.
Between May 15, 2000, and July 10, 2000, Respondent purchased at least 1,000 dosage units of hydrocodone. When questioned, he initially told investigators they were provided as samples but later admitted buying them. He could only provide investigators an incomplete dispensing log and was unable to account for about half of the total dosage units. Respondent claimed that some had been stolen, but conceded not reporting the purported thefts. He also did not have purchase receipts for the hydrocodone, nor did he conduct a required a biennial inventory of controlled substances.
On February 21, 2002, as a result of the foregoing, Respondent surrendered his DEA registration and his Texas DPS controlled substance registration.
Two weeks later, on March 8, 2002, Respondent advised an elderly patient that he needed to stop by her home, ostensibly to check on some hydrocodone he had prescribed before surrendering his DEA and State registrations. However, the patient had become suspicious of Respondent because when he made house calls, large amounts of her prescribed pain medications would disappear. On one occasion her daughter saw him transferring Vicodin from its prescription vial to some sample bottles he brought to the home and took with him.
Officers were contacted and they set up an operation to monitor the visit. Respondent arrived at the patient's home and while there, he surreptitiously removed 32 of the 92 dosage units of hydrocodone which were in her prescription vial. He was then arrested by State authorities shortly after leaving the residence with the 32 units in his possession. During questioning, Respondent admitted stealing the drugs and divulged being addicted to hydrocodone. He was initially charged in State court with a felony count of obtaining a controlled substance by fraud.
On March 24, 2002, while awaiting disposition of his case, Respondent entered a one-month residential drug treatment program. He was discharged on April 24, 2002, and the program's discharge summary indicated Respondent's treatment was “satisfactory” and his prognosis “fair.”
On July 3, 2002, Respondent entered a plea agreement in the 87th District Court of Freestone County, Texas, in which he pled guilty to one count of unlawful possession of a controlled substance, a Class A misdemeanor. He was eventually sentenced to three years probation and fined $4,000.
On August 15, 2003, Respondent entered into an Agreed Order with the Texas State Board of Medical Examiners which publicly reprimanded him for unprofessional conduct and placed him on probation. However, the Board did not suspend or revoke his license to practice medicine. On July 2, 2003, Texas DPS reissued Respondent a State controlled substance registration for Schedules IIN, IIIN, IV and V.
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an application for a DEA Certificate of Registration if she determines that registration would be inconsistent with the public interest. Section 823(f) requires 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 the 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 relay 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).
In this case, the Deputy Administrator finds factors two, three, four and five relevant in determining whether or not granting Respondent's application would be consistent with the public interest.
As to factor one, the recommendation of the appropriate State licensing board or professional disciplinary authority, there is evidence in the investigative file of adverse action being taken against respondent's professional license and at one point he surrendered his State controlled substances registration. However, he is currently licensed to practice medicine in Texas and his registration to handle controlled substances under State law was reinstated, which weight in favor of registration. However, inasmuch as State license is a necessary but not sufficient condition for DEA registration, this factor is not determinative. See Dan E. Hale, D.O., 69 FR 69402 (2004); Edson W. Redard, M.D., 65 FR 30616, 30619 (2000); James C. LaJevic, D.M.D., 64 FR 55962, 55964 (1999).
With respect to factors two, three, four and five, the Deputy Administrator finds respondent flagrantly abused his responsibilities as a registrant and physician. On multiple occasions he prescribed controlled substances to his elderly patients and used his position of trust and authority to gain physical access to their medications after they were dispensed by local pharmacies. He would steal his patients' controlled substances, often by leaving non-controlled caplets in their prescription bottles and would use the stolen drugs Start Printed Page 12727for self-abuse. On multiple occasions, Respondent gained access to patients' homes in order to accomplish the thefts, a particularly heinous modus operandi for a trusted family physician.
Respondent also failed to maintain adequate records of controlled substances as required by DEA regulations and finally, was convicted pursuant to his plea agreement of a State misdemeanor involving controlled substances.
While the investigative file reflects Respondent sought treatment for his addiction, albeit while criminal charges were pending, and he has undergone successful follow-up random drug testing, the egregious nature of his misconduct bears directly upon his fitness to posses a DEA registration. In sum, applying factors two through five above, Respondent's abandonment of his patients' medical interests and flaunting of their personal trust to divert controlled substances to his personal use, coupled with his flagrant violations of law and regulation, all lead to the inevitable conclusion that granting this application would be inconsistent with the public interest.
Accordingly, the Deputy Administrator of the Drug Enforcement Administration, pursuant to the authority vested in her by 21 U.S.C. 823 and 28 CFR 0.100(b) and 0.104, hereby orders that the application of Glenn Anthony Routhouska, D.O., for a DEA Certificate of Registration, be, and it hereby is denied. This order is effective April 14, 2005.Start Signature
Dated: February 14, 2005.
Michele M. Leonhart,
[FR Doc. 05-5071 Filed 3-14-05; 8:45 am]
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