[Federal Register: March 15, 2005 (Volume 70, Number 49)]
[Notices]
[Page 12725-12727]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15mr05-125]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 04-65]
Glenn Anthony Routhouska, D.O.; Denial of Registration
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
[[Page 12726]]
substances. 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
[[Page 12727]]
for 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.
Dated: February 14, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05-5071 Filed 3-14-05; 8:45 am]
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