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Scott H. Nearing, D.D.S., Grant of Restricted Registration
FR Doc 05-11251 [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]
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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