Federal
Register Notices > Registrant
Actions - 2008 >
Janet L. Thornton, D.O.; Dismissal of Proceeding
FR Doc E8-19763[Federal Register: August 26, 2008 (Volume 73, Number 166)]
[ Notices] [Page 50354-50356] From the Federal Register Online via GPO Access
[wais.access.gpo.gov] [DOCID:fr26au08-91]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Janet L. Thornton, D.O.; Dismissal of Proceeding
On December 17, 2007, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to Show
Cause to Janet L. Thornton, D.O. (Respondent), of Monument, Colorado. The Show
Cause Order sought the revocation of Respondent's DEA Certificate of
Registration, AT2730984, as a practitioner, and the denial of any pending
applications to renew or modify her registration, on two separate grounds.
First, it alleged that Respondent had entered into a series of stipulations
with the Colorado Board of Medical Examiners under which she agreed that she "will
not practice medicine in the State of Colorado.'' Show Cause Order at 2.
Relatedly, the Show Cause Order alleged that Respondent's "Colorado medical
license expired on May 31, 2007, and has not been renewed,'' and that
therefore Respondent lacks state authority to handle controlled substances,
which is a prerequisite for holding a DEA registration. Id.
Second, the Show Cause Order alleged that on December 3, 2005, the Colorado
Board suspended Respondent's state medical license thus resulting in her
lacking authority to handle controlled substances. Id. at 1. The Show Cause
Order alleged that while her state license was suspended, Respondent issued
two prescriptions to her neighbors: one in January 2006, for Tussionex, a
schedule III controlled substance, and one in June 2006, for a schedule III
drug containing hydrocodone. Id. at 1-2. Relatedly, the Show Cause Order also
alleged that in 2005, Respondent issued a prescription for morphine to B.V.,
and that B.V. had "later informed investigators that he had no knowledge of
the * * * prescription and was never dispensed the drug.'' Id. at 2.
On February 12, 2008, the Show Cause Order was served on Respondent by
First Class Mail at her registered location. On March 3, 2008, Respondent
filed a written statement in lieu of a request for a hearing and expressly
waived her right to a hearing. See 21 CFR 1301.43(c). Thereafter, the
investigative file was forwarded to me for final agency action.
Having considered the entire record in this matter, including Respondent's
statement, I hereby issue this Decision and Final Order. I conclude that the
Government has not proved by substantial evidence the allegations regarding
the prescriptions to B.V. or that Respondent currently lacks state authority
to handle controlled substances. While I find that Respondent violated the
Controlled Substances Act by issuing prescriptions for controlled substances
following the suspension of her Colorado license, I further conclude that
because the violations were limited to two instances and there is no evidence
establishing that Respondent had not previously entered into a doctor-patient
relationship with the two persons who received the prescriptions, the
Government's proposed sanction of revocation would be excessive. Because the
Government has not proposed an alternative sanction, the Show Cause Order will
be dismissed.
Findings of Fact
Respondent holds DEA Certificate of Registration, AT2730984, which
authorizes her to handle controlled substances as a practitioner at her
registered location in Monument, Colorado. Respondent's registration was last
renewed on October 18, 2005, and does not expire until November 30, 2008.
In May 2005, an Inquiry Panel of the Colorado State Board of Medical
Examiners ordered that Respondent be evaluated by the Colorado Physician
Health Program. In re Janet L. Thornton, Stipulation and Final Agency Order
(Col. St. Bd. Med. Exam'rs 2007). Thereafter, on December 15, 2005, the Board
suspended Respondent's state medical license. Respondent's state license
remained suspended until May 17, 2007, the date when Respondent entered into a
stipulation for the interim cessation of practice, under which she agreed to
cease the practice of medicine. Respondent subsequently agreed to two
additional amendments of the stipulation which extended the initial
stipulation.
On October 25, 2007, Respondent and the Board entered into a
Stipulation and Final Agency Order, which became effective on November 16,
2007, upon the Board's approval. Id. at 7. According to the Board's Final
Order, Respondent has "continuously'' held her state license since April 10,
1986. Id. at 1.
In the Order, the Board imposed certain practice restrictions on
Respondent. The first of these was that "Respondent shall not engage in any
act constituting the practice of medicine in the state of Colorado unless such
practice occurs within a clinical setting approved
in advance by the Panel or unless such practice occurs in a hospital.'' Id.
at 5. The second restriction was that "Respondent shall order, dispense,
administer or prescribe any controlled substance or other prescription
medications only for persons with whom Respondent has a bona fide
physician-patient relationship and only within the context of Respondent's
practice in a clinical setting approved in advance by the Panel or a
hospital.'' Id. Based on the above, I find that contrary to the Government's
contention, Respondent retains authority to handle controlled substances in
Colorado.
As relevant to the Show Cause Order's allegations regarding her improper
prescribing, Respondent admitted in the stipulation that she: issued
prescriptions and ordered medications while her license was suspended.
Respondent had consulted with an out-of-state attorney who stated that he
consulted Colorado attorneys and advised her that she was authorized to issue
prescriptions and order medications in the state of Colorado while her
Colorado license was suspended under the authority of out-of-state licenses.
The Panel finds that the out-
[[Page 50355]]
of-state attorney's interpretation of Colorado's Medical Practice Act was
erroneous.
Id. at 3.
The record establishes that on January 23, 2006, while her Colorado license
was suspended, Respondent issued a prescription with one refill to D.V., her
neighbor in Colorado, for Tussionex Extended Release, a schedule III
controlled substance which contains hydrocodone. On June 6, 2006, Respondent
issued an additional prescription to B.V., who was also her neighbor, for
thirty tablets of hydrocodone/apap (10/500mg.) which was to last five days.\1\
At the time she issued both prescriptions, Respondent was practicing in Texas,
where she also holds a medical license. While DEA Investigators interviewed
both D.V. and B.V., there is no evidence establishing that Respondent had not
previously entered into a legitimate doctor-patient relationship with either
person or that the prescriptions were issued for other than a legitimate
medical purpose.
---------------------------------------------------------------------------
\1\ While the record shows that Respondent issued several other
prescriptions to B.V. and D.V., none of these were for controlled substances.
These prescribings are not the concern of DEA.
---------------------------------------------------------------------------
In support of her Response to the Show Cause Order, Respondent submitted a
copy of a February 20, 2007 letter from Jeff Martin, a lawyer in Tulsa,
Oklahoma. This letter states that Respondent: asked me about writing
occasional prescriptions infrequently for Colorado residents who were her
neighbors using her Texas and/or Oklahoma license even though her Colorado
license was summarily suspended. I told her, as long as her Texas and/or
Oklahoma licenses were still valid that she could still occasionally consult
with her neighbors and prescribe medicine. I still believe this is
accurate.
Later when I tried to help her find a lawyer in Colorado, I asked two
Colorado lawyers who are knowledgeable in this area about this and they
believed she could continue occasionally prescribing medicine also. I'm sorry,
but I no longer have the names and phone numbers of the lawyers I spoke
to.
Exhibit C to Respondent's Response To Order To Show Cause.
Respondent also attached to her Response a copy of Col. Stat. Sec.
12-36-106, which defines the practice of medicine under Colorado law and
provides for certain exemptions from the licensing requirements.
This statute states that:
Nothing in this section shall be construed to prohibit, or to
require a license * * * under this article with respect to, any of
the following acts:
* * *
(b) The rendering of services in this state by a physician lawfully
practicing medicine in another state or territory, whether or not such
physician is in Colorado, but if any such physician does not limit such
services to an occasional consultation or cases * * * such physician shall
possess a license to practice medicine in this state.
Colo. Stat. Sec. 12-36-106(3)(b).
The Government also alleged that Respondent had issued a prescription to
B.V. for morphine, but that B.V. denied ever receiving the prescription. This
allegation is not, however, supported by substantial evidence as there is no
evidence that Respondent ever issued a morphine prescription to an individual
with these initials.\2\
---------------------------------------------------------------------------
\2\ While there is evidence that Respondent issued a morphine prescription
to D.H., even if this incident had been properly alleged, I would still reject
it as unsupported by substantial evidence. While the record contains a summary
of an interview in which D.H. stated that he did not recall receiving the
morphine prescriptions, D.H. subsequently prepared a letter in which he
retracted his earlier statement and acknowledged he "had completely forgotten
about the lower back and hip pain that prompted me to ask for pain
medication.'' Exh. E to Respondent's Resp. to Order to Show Cause. The
Government, which has the burden of proof even when a case does not go to a
hearing, has not pointed to any additional evidence to support the conclusion
that D.H.'s initial story to investigators is the more accurate version.
---------------------------------------------------------------------------
Discussion
Under Section 304(a) of the Controlled Substances Act (CSA), the Attorney
General may revoke or suspend a registration to dispense a controlled
substance "upon a finding that the registrant * * * has had [her] State
license or registration suspended, revoked, or denied by competent State
authority and is no longer authorized by State law to engage in the * * *
dispensing of controlled substances.'' 21 U.S.C. 824(a)(3). Section 304(a)
further authorizes the Attorney General to suspend or revoke a registration "upon
a finding that the registrant * * * has committed such acts as would render
his registration under section 823 of this title inconsistent with the public
interest as determined under such section.'' Id. Sec. 824(a)(4).
In section 303(f) of the CSA, Congress directed that the Attorney
General consider five factors "[i]n determining the public
interest.''
21 U.S.C. 823(f). The factors are:
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing * * * 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.
Id.
"[T]hese factors are * * * considered in the disjunctive.'' Robert A.
Leslie, M.D., 68 FR 15227, 15230 (2003). I "may rely on any one or a
combination of factors, and may give each factor the weight [I] deem[]
appropriate in determining whether a registration should be revoked.'' Id.
Moreover, I am "not required to make findings as to all of the factors.''
Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see also Morall v. DEA, 412
F.3d 165, 173-74 (D.C. Cir. 2005). Having set forth the applicable law, I
address each of the Government's contentions.
The Lack of State Authority
As found above, Respondent's Colorado medical license was suspended on
December 15, 2005. Effective November 16, 2007--one month before the Show
Cause Order was issued--the Colorado Board restored Respondent's license to
practice medicine and her authority to prescribe controlled substances. While
Respondent's authority to handle controlled substances limits her practice to
a board-approved clinical setting or a hospital, the Board's Order make plain
that Respondent currently has authority to handle controlled substances in
Colorado. The Government's contention to the contrary is therefore rejected.
The Public Interest Allegations
In United Prescription Services, Inc., 72 FR 50397, 50407 (2007), I held
that "a physician who engages in the unauthorized practice of medicine under
state laws is not a "practitioner acting in the usual course of * * *
professional practice'' under the CSA. 21 CFR 1306.04(a).\3\ As explained
therein, this rule is supported by the plain meaning of the Act, which defines
the "[t]he term `practitioner' [to] mean[] a physician * * * licensed,
registered, or otherwise permitted, by the United States or the jurisdiction
in which he practices * * * to * * * dispense * * * a controlled substance,''
21 U.S.C. 802(21), and "[t]he term `dispense' [to] mean[] to deliver a
controlled substance to an ultimate user * * * by, or pursuant to the lawful
order of, a practitioner.'' Id. Sec. 802(10). See also id. Sec. 823(f) ("The
Attorney General shall register practitioners * * * to dispense * * * if the
applicant is authorized to dispense * * *
[[Page 50356]]
controlled substances under the laws of the State in which he
practices.'').
---------------------------------------------------------------------------
\3\ Under 21 CFR 1306.04(a), "[a] prescription for a controlled substance
to be effective must be issued for a legitimate medical purpose by an
individual practitioner acting in the usual course of his professional
practice.''
---------------------------------------------------------------------------
As I noted in United Prescription Services, shortly after the CSA's
enactment, the Supreme Court explained that "[i]n the case of a physician [the
Act] contemplates that he is authorized by the State to practice medicine and
to dispense drugs in connection with his professional practice.'' United
States v. Moore, 423 U.S. 122, 140-41 (1975) (emphasis added) (quoted at 72 FR
50407). A controlled-substance prescription issued by a physician who lacks
the license or other authority required to practice medicine within a State is
therefore unlawful under the CSA. See 21 CFR 1306.04(a) ("An order purporting
to be a prescription issued not in the usual course of professional treatment
* * * is not a prescription within the meaning an intent of'' the CSA); Cf. 21
CFR 1306.03(a)(1) ("A prescription for a controlled substance may be issued
only by an individual practitioner who is * * * [a]uthorized to prescribe
controlled substances by the jurisdiction in which he is licensed to practice
his profession[.]'').
In the Stipulation and Final Agency Order, Respondent admitted that the
prescribings to B.V. and D.V. constituted "prescribing * * * other than in the
course of legitimate professional practice'' under Colorado law. See In re
Thornton, Stipulation and Final Agency Order, at 3. Accordingly, I conclude
that the prescriptions Respondent issued to D.V. and B.V. were issued outside
of the course of professional practice and thus also violated Federal law. See
21 CFR 1306.04(a); Moore, 423 U.S. at 140-41; United Prescription Services, 72
FR at 50407. The prescribings thus constituted acts which render her
registration "inconsistent with the public interest.'' 21 U.S.C. 824(a)(4);
see also id. Sec. 823(f)(2) & (4) (directing consideration of registrant's
"experience in dispensing controlled substances'' and compliance with
applicable federal and state laws).
I nonetheless conclude that it would be inappropriate to revoke
Respondent's registration. With respect to the allegations, the record
establishes only two instances in which Respondent unlawfully prescribed
controlled substances. Moreover, while ordinarily a practitioner cannot
credibly claim ignorance of state laws prohibiting the unlicensed practice of
medicine, United Prescription Services, 72 FR at 50407; the Colorado Board's
interpretation that Respondent was not within the exemption provided in Colo.
Stat. Sec. 12-36-106(b)(3), and that she thus violated the State's Medical
Practice Act, appears to have been a case of first impression.\4\
---------------------------------------------------------------------------
\4\ While the Colorado Board found that Respondent's attorney's
interpretation of the Medical Practice Act "was erroneous,'' the Board's Order
did not cite any prior decision holding that Respondent's conduct was illegal.
---------------------------------------------------------------------------
Moreover, the Government has failed to show the absence of a legitimate
doctor-patient relationship between Respondent and either person. Relatedly,
there is no evidence that the prescriptions were written for other than a
legitimate medical purpose. In short, the evidence does not remotely suggest
that Respondent was using her prescription writing authority to deal drugs.
See Gonzales v. Oregon, 546 U.S. 243, 270 (2006).
Furthermore, the Colorado Board has considered Respondent's state law
violations and concluded that they do not warrant the revocation of her
medical license. Under agency precedent, I am not bound by the State Board's
recommendation. Nonetheless, because the only proven violations of the CSA are
based on her having violated the Colorado Medical Practice Act's licensing
provision and were limited to two instances, I conclude that Respondent's
violations do not warrant the revocation or suspension of her
registration.
While in some instances, this Agency has placed restrictions on a
practitioner's registration, such restrictions must be related to what the
Government has alleged and proved in any case. Notably, in this matter the
Government has proposed no alternative sanction to revocation. Accordingly,
the Order to Show Cause will be dismissed.
Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well as 28
CFR 0.100(b) and 0.104, I hereby order that the Order to Show Cause issued to
Janet L. Thornton, D.O., be, and it hereby is, dismissed.
Dated: August 18, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-19763 Filed 8-25-08; 8:45 am]
BILLING CODE 4410-09-P
NOTICE: This is an
unofficial version. An official version of these publications may be obtained
directly from the Government Printing Office (GPO).
|