Abel J. Sands, M.D.; Denial of Application

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 92-56]

Abel J. Sands, M.D.; Denial of Application

On May 14, 1992, the Deputy Assistant Administrator, Office of

Diversion Control, Drug Enforcement Administration (DEA), issued an

Order to Show Cause to Abel J. Sands, M.D. (Respondent) of 316 South

Midwest Boulevard, Midwest City, Oklahoma 73110. The Order to Show

Cause, which proposed to deny Respondent's application for registration

pursuant to 21 U.S.C. 823(f), alleged that Respondent's registration

would be inconsistent with the public interest. The Order to Show Cause

alleged that Respondent issued prescriptions for controlled substances

to undercover agents of the Oklahoma State Bureau of Narcotics and

Dangerous Drugs (OBN) for other than legitimate medical purposes; that

OBN took action against Respondent's state license to handle controlled

substances; and that Respondent failed to keep complete and accurate

records of this purchasing and dispensing of controlled substances.

Respondent, through counsel, requested a hearing and the matter was

placed on the docket of Administrative Law Judge Mary Ellen Bittner.

Following prehearing procedures, a hearing was held in Oklahoma City,

Oklahoma, on December 15, 1992. On September 8, 1993, the

administrative law judge issued her findings of fact, conclusions of

law and recommended ruling. On September 30, 1993, Respondent filed

exceptions to the recommended ruling of the administrative law judge.

On October 12, 1993, the administrative law judge transmitted the

record in this proceeding to the Administrator. Having considered the

record in its entirety, and pursuant to 21 CFR 1316.67, the Acting

Administrator hereby issues his final order in this matter based upon

the findings of fact and conclusions of law set forth below.

It was proven at the hearing that on numerous occasions, Respondent

wrote prescriptions to undercover agents in the absence of a legitimate

medical purpose. OBN first became aware of Respondent's prescribing

practices after Respondent's name arose in the course of an

investigation into the street purchase of cocaine, a Schedule II

controlled substance, Valium and Xanax, both Schedule IV controlled

substances. OBN agents posed as patients and visited Respondent's

office in an attempt to obtain prescriptions for controlled substances

without legitimate medical reason. The OBN agents conducted a total of

seven successful undercover operations at Respondent's office between

December 1988 and April 1989. On each occasion, the OBN agents were

able to obtain prescriptions for Xanax without legitimate medical

purpose. All of these undercover operations were taped and transcribed.

On the first undercover visit on December 14, 1988, the undercover

agent told Respondent that a friend from whom he had been purchasing

Xanax advised him that he could obtain a prescription for Respondent.

The agent told Respondent that the Xanax made him ``feel good.'' After

initially refusing to provide the prescription, Respondent informed the

agent that he would make a patient chart for him, the charge for which

would be $25.00. Respondent proceeded to perform a cursory examination

of the agent, which included taking his weight and blood pressure. The

agent told Respondent that he needed Xanax to ``function'' at work

after he used cocaine. Respondent ultimately provided the agent with a

prescription for 60 Xanax, stating that writing for 100 would get him

(Respondent) in ``trouble.''

OBN agents conducted similar undercover operations on six other

occasions and obtained prescriptions for Xanax each time. The lead

agent testified, and the transcripts provided corroboration, that he

never complained of any medical problem which warranted the use of

Xanax. The administrative law judge determined that Respondent did not

establish a physician-patient relationship with the OBN agents and

concluded that none of the prescriptions at issue was for a legitimate

medical purpose.

The administrative law judge further noted that Respondent's taped

comments to the OBN agents demonstrated that he was aware of the

illegitimacy of the prescriptions and was concerned that his conduct

would become known to law enforcement. As a result, the administrative

law judge concluded that Respondent's contention that he issued the

prescriptions pursuant to a valid physician-patient relationship was

disingenuous and did not ``bode well for the proposition that

[Respondent] is likely in the future to accept and discharge the

responsibilities of a DEA registrant.''

Also proven at the administrative hearing was the fact that

Respondent, after surrendering his DEA Certificate of Registration and

after his state controlled substance license had been suspended, was

found to be in possession of controlled substances. On January 29,

1990, OBN agents and DEA Diversion Investigators delivered to

Respondent an ``imminent danger letter'' from OBN, which suspended

Respondent's state controlled substance registration. The same day,

Respondent signed a DEA Form 104, voluntarily surrendering his DEA

Certificate of Registration. An investigation by Medical Board

investigators revealed that on June 4, 1990, Respondent was in

possession of Equagesic and Halcion, both controlled substances.

The Medical Board investigation also revealed that Respondent had

failed to keep accurate records of his purchase and dispensing of

controlled substances. After a Medical Board hearing was scheduled, but

before the hearing date, the Medical Board proposed and Respondent

accepted a five year probation period during which Respondent was

prohibited from prescribing, administering or dispensing any Schedule

II or III controlled substances. On April 16, 1991, OBN granted

Respondent a state controlled substance registration limited to

Schedules IV and V for the period of his Medical Board probation.

The Acting Administrator also finds that on November 15, 1989,

Respondent was indicted in the United States District Court for the

Western District of Oklahoma on seven counts of violating 21 U.S.C.

842(a)(1). This indictment was based on Respondent's writing of

prescriptions to the undercover OBN agents. Respondent was acquitted of

all charges on February 22, 1990, following a jury trial.

Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Administrator may

revoke a DEA Certificate of Registration or deny an application for

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; and, (5) such other conduct which may threaten

the public health and safety.

The Administrator may rely on any one or any combination of these

factors when determining whether an application should be denied or a

registration revoked. See Neveille H. Williams, D.D.S., 51 FR 17556

(1986); Anne L. Hendricks, M.D., 51 FR 41030 (1986). The administrative

law judge correctly found that all these factors, with the exception of

21 U.S.C. 823(f)(3), were relevant to a determination of whether

Respondent's registration would be in the public interest.

Two Oklahoma authorities which exercise control over the licensing

of physicians, OBN, which issues controlled substances registrations,

and the Oklahoma Medical Board (Medical Board), which issues medical

licenses, have taken action against Respondent. With respect to

Respondent's experience with dispensing controlled substances, the OBN

investigation clearly demonstrates that Respondent cannot be trusted to

fulfill his responsibilities as a DEA registrant. This conduct,

combined with his recordkeeping violations as discovered by the Medical

Board, indicates that Respondent has not complied with Federal and

State regulations relating to controlled substances.

Finally, Respondent's cavalier conduct when issuing prescriptions,

as evidenced by comments made during the undercover operations, is

disturbing. As the Administrative law judge correctly noted, the

transcripts clearly indicate that Respondent was aware of the

illegality of his actions. Respondent's knowledge of the illicit nature

of his conduct demonstrates that Respondent cannot fulfill the

significant responsibilities which come with a DEA registration.

Additionally, it is further evidence that the public health and safety

would be comprised were Respondent given the opportunity to return to

his prior conduct. After considering these elements, the administrative

law judge concluded that Respondent's registration would not be in the

public interest and recommended that Respondent's application be

denied.

On September 30, 1993, Respondent filed exceptions to the

administrative law judge's recommended decision. In these exceptions,

Respondent took issue with the administrative law judge's reliance on

the testimony of the OBN agent and the transcripts of the undercover

operations. Respondent maintained that the agent's credibility was

damaged given the discrepancies between his testimony before the grand

jury and his testimony during the criminal trial. The Acting

Administrator finds, however, that the administrative law judge

carefully considered these issues and concluded that the alleged

inconsistencies in testimonies did not affect the administrative

hearing. The inconsistencies were adequately explained by the agent at

the administrative hearing. Furthermore, as the administrative law

judge correctly noted, some of the agent's statements which Respondent

insisted were contradictory were not necessarily inconsistent. Finally,

and perhaps most importantly, the transcripts of the undercover

operations, the accuracy of which was not challenged by Respondent,

speak for themselves.

Respondent asserts that the administrative law judge did not base

her opinion on all the evidence presented, and instead relied

exclusively on the transcripts of the undercover operations. This

contention, however, is not supported by the detailed opinion and

recommended ruling prepared by the administrative law judge. The Acting

Administrator finds that the administrative law judge properly weighed

the evidence presented by both the Government and Respondent.

The Acting Administrator agrees with the administrative law judge

that, after considering the applicable factors pursuant to 21 U.S.C.

823(f), Respondent's registration would not be in the public interest

and adopts her recommended decision in its entirety. Accordingly, the

Acting Administrator of the Drug Enforcement Administration, pursuant

to the authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR

0.100(b), hereby orders that Abel J. Sands' application for

registration be, and it hereby is, denied. This order is effective

January 6, 1994.

Dated: December 28, 1993.

Stephen H. Greene,

Acting Administrator of Drug Enforcement.

[FR Doc. 94-235 Filed 1-5-94; 8:45 am]

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