Jimmy H. Conway, Jr., M.D.; Grant of Restricted Registration

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 98-13]

Jimmy H. Conway, Jr., M.D.; Grant of Restricted Registration

On January 28, 1998, the Deputy Assistant Administrator, Office of

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

Order to Show Cause to Jimmy Harold Conway, Jr., M.D. (Respondent) of

Oklahoma City, Oklahoma, notifying him of an opportunity to show cause

as to why DEA should not deny his application for registration as a

practitioner pursuant to 21 U.S.C. 823(f) and 824(a)(2) and (a)(4), for

reason that he was convicted of a felony relating to controlled

substances and that his registration would be inconsistent with the

public interest.

By letter dated February 23, 1998, Respondent, through counsel,

requested a hearing on the issues raised by the Order to Show Cause.

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

Oklahoma on July 14 and 15, 1998, before Administrative Law Judge Gail

A. Randall. At the hearing, both parties called witnesses to testify

and introduced documentary evidence. After the hearing, both parties

submitted proposed findings of fact, conclusions of law and argument.

On December 21, 1998, Judge Randall issued her Recommended Rulings,

Findings of Fact, Conclusions of Law and Decision, recommending that

Respondent's application for registration be granted without

restrictions. Neither party filed exceptions to Judge Randall's

opinion, and on January 26, 1999, Judge Randall 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 his final order based

upon findings of fact and conclusions of law as hereinafter set forth.

The Deputy Administrator adopts in full the recommended rulings,

findings of fact and conclusions of law of the Administrative Law

Judge, and adopts in part Judge Randall's recommended decision in this

matter. His adoption is in no manner diminished by any recitation of

facts, issues and conclusions herein, or of any failure to mention a

matter of fact or law.

The Deputy Administrator finds that Respondent graduated from

medical school in 1983, and has been in private practice since 1989. He

is an orthopedic surgeon specializing primarily in the treatment of

shoulder and knee juries, general orthopedics, and sports medicine.

On February 27, 1996, an agent with the Oklahoma Bureau of

Narcotics and Dangerous Drugs Control (OBN) received a complaint from a

pharmacist concerning Respondent. The pharmacist had become suspicious

of several prescriptions filled at the pharmacy for patient ``Jim

Conway'' for Lorcet, a Schedule III control substance, and Soma, a non-

controlled substance

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Federally but a Schedule IV controlled substance in Oklahoma. The

pharmacist was having trouble verifying the prescriptions with the

alleged prescribing physician, and indicated that she had learned that

``Jim Conway'' was a physician in the Oklahoma City area. A printout

from the pharmacy revealed that between June 1, 1995 and February 26,

1996, ``Jim Conway'' had 13 prescriptions filled at the pharmacy. It

was later discovered that the address listed on these prescriptions was

the same as Respondent's residence.

Subsequently, the OBN agent visited a number of pharmacies in the

Oklahoma City area and seized prescriptions allegedly issued to

Respondent by various physicians for approximately 5,973 dosage units

of controlled substances.

On March 4, 1996, the OBN agent met with a physician whose name

appeared as the prescribing physician on a number of the prescriptions.

This physician had been a medical partner with Respondent at

Respondent's then-current practice, and had known Respondent socially

and professionally since 1979. After reviewing the prescriptions he

alleged wrote for Respondent, the physician indicated that he did not

write or authorize any of the prescriptions.

That same day, the OBN agent met with another physician whose name

appeared as the prescribing physician on a number of the prescriptions.

This physician was a then-current partner at Respondent's practice.

After reviewing the prescriptions he allegedly wrote for Respondent,

the physician also indicated that he did not write or authorize any of

the prescriptions. This physician further indicated to the agent that

in approximately March 1995, he was told by a pharmacist that

Respondent was using his prescription pad to acquire controlled

substances. The physician confronted Respondent who admitted forging

prescriptions, but told the physician that it was poor judgment on his

part; that it was a ``one-time'' occurrence; and that he would never

forge prescriptions again. The physician never reported this incident

to any law enforcement authorities.

Also on March 4, 1996, the OBN agent met with Respondent at which

time Respondent candidly admitted to the agent that he had forged the

prescriptions by using the names and DEA registration numbers of his

partners without their knowledge. Respondent attributed his addiction

to ``frustration over his practice and workload.'' At that time

Respondent was dissatisfied with his medical practice which according

to him was mainly a group of doctors that associated with each other

professionally, but practiced as individuals. This dissatisfaction

caused his stress level to increase.

In the past, Respondent relieved stress by drinking alcohol. In

late 1992 or 1993, Respondent began using controlled substances first

on the weekends and then also at night. Initially he consumed samples

of Lortab and Soma taken from his medical practice. Respondent then

began forging prescriptions for drugs such as Lorcet, Ambien, Soma,

Xanax and Restoril, by signing the names of his medical partners on the

prescriptions. Ultimately, Respondent became addicted to these

substances.

While he was addicted to these drugs, Respondent was physically and

emotionally withdrawn from the people around him. Although Respondent

admitted his addiction to the OBN agent, he stated that ``he did not

feel the addiction had impaired him in any way during surgery.'' A

colleague testified at the hearing that he did not feel that Respondent

was impaired when they would perform surgery together.

At the conclusion of the meeting with the OBN agent on March 4,

1996, Respondent surrendered his state and DEA controlled substance

registrations. On March 8, 1996, the Oklahoma Board of State Medical

Licensure and Supervision (Board) held an emergency hearing, and on

March 29, 1996, issued an Emergency Order immediately suspending

Respondent's medical license.

According to Respondent, he felt relieved when confronted by the

OBN agent because he knew that at that point he would be able to

receive help for his addiction. Within two hours of meeting the OBN

agent on March 4, 1996, Respondent admitted himself to a local hospital

for detoxification. Respondent readily admitted his addiction to his

doctor at the hospital. After five days at the local hospital,

Respondent entered a treatment center in a suburb of Chicago. Most

patients spend about 12 weeks at the treatment center, however

Respondent was released from in-patient treatment after only 8\1/2\

weeks. Respondent's success at the treatment center is attributable to

the fact that he had already admitted his drug addiction and had

accepted that he had a problem before he entered the center.

While at the treatment center, Respondent learned about what

constitutes an addiction; how to control and treat his dependence; what

causes relapse; and how to prevent it from happening to him. Respondent

credibly testified at the hearing that ``I have absolutely no desire to

return to that lifestyle.''

Respondent left the treatment center in May 1996. The treatment

center requires program participants to undergo further drug treatment

monitoring for at least two years following release from in-patient

treatment, since the likelihood of relapse is extremely low after two

years. Therefore, Respondent committed to a two-year ``contract'' with

the treatment center which required Respondent to attend Alcoholics

Anonymous (AA) meetings and to participate in the Oklahoma Physicians

Recovery Program (PRP). This contract expired in May 1998.

After returning to Oklahoma from the treatment center, Respondent

entered into a five-year contract with the PRP, which is aimed at

supporting the recovery of physicians with addictions. This contract

required drug screening two times a week for the first six months, and

then weekly random testing for up to two years. After two years, drug

screening is completely at random, but once a person is called for a

test, he must give a urine sample within four hours. In addition,

participants must attend at least three weekly twelve-step meetings,

such as AA, and must have a physician to monitor their physical well-

being, and a different physician sponsor to help them overcome their

addiction. Respondent has compiled with the program requirements and is

committed to continuing his participation in the PRP and AA.

In late September 1996, the Board issued an order granting

Respondent a medical license subject a five-year probationary term

beginning on March 8, 1996. Respondent is required to maintain

duplicate, serially numbered controlled substance prescriptions and to

make them available to the Board upon request. He is prohibited from

authorizing any personnel under his supervisor to issue a prescription,

and he may not handle any amphetamines, amphetamine-like substances,

aneroxic drugs and/or anabolic steroids. During his probation with the

Board, Respondent is required to submit biological fluid specimens upon

request, and he is prohibited from prescribing, administering or

dispensing any medications for personal use. Respondent is further

prohibited from taking any medication unless it is authorized by a

physician treating him for a legitimate medical need. Finally, he is

required to continue his contract with the treatment center in Chicago.

Subsequently, on October 31, 1996, Respondent pled guilty to two

counts of

[[Page 32273]]

an eleven-count criminal information charging him with obtaining

controlled substances by forged or altered prescriptions, with the

remaining counts dismissed pursuant to a plea agreement. Respondent

received a four-year deferred sentence and as part of the sentence,

Respondent agreed to participate in ``drug testing [and] treatment as

required by [the] Medical Board,'' and to participate in 120 hours of

community service programs with Alcoholics Anonymous and/or the

Fellowship of Christian Athletes.

In November 1996, the OBN granted Respondent a state controlled

substance license which was also placed on probation for five years,

effective March 8, 1996. The OBN license is subject to the same terms

as those imposed by the Board on Respondent's medical license.

Respondent cooperated with authorities throughout the investigation

and the subsequent criminal and regulatory proceedings. As of the date

of the hearing, Respondent has willingly compiled with all of the terms

of his probation and his contracts with the PRP and the treatment

center. Respondent's urine screens have all been negative, and he has

been ``clean'' since March 4, 1996.

Respondent is currently a member of a different group medical

practice than he was during his addiction. In this practice, Respondent

has supportive relationships with the other partners in the practice.

The physicians in this practice attend regular ``accountability

meetings'' and the partners are vigilant in monitoring Respondent's

behavior. According to Respondent, his stress level is reduced and his

job satisfaction is higher, due in part, to his professional support

system.

The physician who treated Respondent at the local hospital and is

now the medical director of the PRP, testified that a person's active

involvement in the recovery process is the best predicator of future

performance. Specifically he testified that, ``[a]s long as that person

is actively involved in an ongoing recovery process, relapse is

seldom.'' According to this physician, the recovery rate for physicians

participating in the PRP is approximately 90-95%.

Respondent's wife, the Chief Executive Operating officer of his

current practice, and several of his colleagues and friends all

testified that if Respondent were to begin abusing controlled

substances again, they would recognize the abuse.

At some point during his addiction recovery period, Respondent

legitimately ingested narcotics following knee surgery. According to

Respondent he had no desire to use additional medication, and he did

not relapse as a result of the lawfully prescribed use of this

medication.

Respondent's current and potential patients are inconvenienced

because Respondent does not have a DEA registration. Patients must wait

until another physician is available to prescribe them narcotics to

control their pain. Respondent is unable to obtain privileges at a

number of hospitals and he cannot participate in many insurance plans

without a DEA registration. According to one of the physicians whose

name was used by Respondent to forge prescriptions, without a DEA

Certificate of Registration, Respondent's ``talents * * * cannot be

adequately utilized.''

As Respondent pointed out, the lack of a DEA registration does not

affect his ability to abuse controlled substances, if he chooses to do

so. Respondent candidly acknowledged that ``[m]y ability to prescribe

medicine in no way affects my recovery from addiction in terms of me

actually writing a prescription. The way I obtained the medication

prior to my treatment was by forgery and I could do that regardless of

whether or not I had a DEA number.''

Judge Randall found that Respondent exhibited genuine remorse for

his actions and has accepted responsibility for his prior conduct.

Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an

application for a DEA Certificate of Registration, if he determines

that the 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 and

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 he deems appropriate in determining

whether a registration should be revoked or an application for

registration denied. See Henry J. Schwarz, Jr., M.D., 54 FR 16422

(1989).

Both parties argue that all five factors are relevant in this case

in determining the public interest. The Government contends that

Respondent's application should be denied in light of the actions by

the Board and OBN; Respondent's forging of controlled substance

prescriptions for several years; his conviction of two felonies

relating to controlled substances; and his untruthful behavior.

Respondent, on the other hand, argues that despite his unlawful

conduct, he should be granted a DEA Certificate of Registration. In

support of his contention, Respondent points out that he is currently

authorized to practice medicine and handle controlled substances in

Oklahoma; he did not illegally dispense controlled substances to anyone

but himself; his deferred sentence is not considered a conviction under

state law; he has complied with applicable laws except regarding his

own addition; and those in regular contact with him have indicated that

he is not a threat to the public health and safety.

As to factor one, it is undisputed that in March 1996, Respondent

voluntarily surrendered his state controlled substance license and his

medical license was suspended. However it is also undisputed that in

September 1996, the Board reinstated Respondent's medical license and

in November 1996, the OBN granted Respondent a license to handle

controlled substances. Both of these licenses were granted subject to a

five-year probationary period and Respondent is therefore still on

probation with the Board and OBN. Although state licensure is a

prerequisite for a DEA registration, it is not the only factor to be

considered.

Factors two and four, Respondent's experience in dispensing

controlled substances and his compliance with laws related to

controlled substances, are clearly relevant in determining the public

interest in this matter. While it is true that Respondent did not

illegally dispense controlled substances to anyone but himself, his

conduct was nonetheless egregious. He abused his position as a

physician beginning in 1992 or 1993 by taking samples of controlled

substances from his medical office for his own personal use. When that

was no longer effective, he began forging his medical partners'

signatures, and thereby using their DEA registrations, to issue

unauthorized prescriptions for his own personal use. There is no

question that Respondent violated 21 U.S.C. 843(a)(2) and (a)(3).

However, it is also undisputed that Respondent's illegal actions were

caused by his addiction to controlled

[[Page 32274]]

substances for which he has received extensive treatment.

As to factor three, there is some dispute as to whether Respondent

has been convicted of controlled substance related offenses. Respondent

pled guilty to two felony charges related to the illegal obtaining of

controlled substances, and as a result received a four-year deferred

sentence. Respondent argues that this deferred sentence may not be

considered a conviction under Oklahoma state law, citing White v.

State, 702 P.2d 1058, 1062 (Okla. Crim. App. 1985). However, DEA has

consistently held that a deferred adjudication, following the entry of

a guilty plea, is considered a ``conviction'' for purposes of the

Controlled Substances Act. See Yu-To Hsu, M.D., 62 FR 12840 (1997),

Harlan J. Borcherding, D.O., 60 FR 28796 (1995); Mukand Lal Arora,

M.D., 60 FR 4447 (1995); Clinton D. Nutt, D.O., 55 FR 30992 (1990).

Thus for purposes of this factor, Respondent has been convicted of two

felony counts relating to controlled substances. However, the Deputy

Administrator also recognizes that these convictions were a result of

Respondent's addiction to controlled substances, and that he is in the

midst of successful recovery efforts from this addition. As Judge

Randall noted, ``[at]t the present time, the Respondent is halfway

through the term of his deferred adjudication and has shown no signs of

relapse.''

As to factor five, during his addiction, Respondent lied to his

colleagues and family about his drug abuse. The Deputy Administrator

agrees with Judge Randall that ``[a]bsent rehabilitation, such behavior

supports the Government's position that the Respondent could pose a

threat to the public health and safety of the citizens of Oklahoma.''

Judge Randall concluded that the Government made a prima facie case

for the denial of Respondent's application for registration. However,

she further concluded that it would not be in the public interest to

deny the application. The Deputy Administrator agrees. Respondent has

accepted responsibility for his prior actions and has shown remorse. He

cooperated with law enforcement authorities from the moment he was

questioned about the forged prescriptions. He is no longer affiliated

with the medical practice that caused the stress which led to his

addiction. He has taken affirmative steps toward rehabilitation and is

being closely monitored by the Board, the OBN, the PRP, the treatment

center, his family and his colleagues. As Judge Randall noted. ``the

Respondent lives and works in a community dedicated to his recovery and

personal growth. This external support system ensures to a high

probability that the Respondent will remain free of narcotic and

alcoholic substances.'' Of even greater significance to the Deputy

Administrator than this external support system is Respondent's

apparent commitment to continuing with his rehabilitative efforts and

to living a drug-free life.

Judge Randall recommended that Respondent be granted a DEA

registration without restrictions since ``[t]he State of Oklahoma and

the OBN have implemented substantial and aggressive monitoring

procedures to ensure that the Respondent continues to comply with his

licensing conditions and to ensure that any possible relapse is

immediately detected.'' Judge Randall further recommended that should

the deputy Administrator find that additional monitoring by DEA is

necessary, Respondent should be required to file with DEA duplicate

copies of the documents being filed with the State of Oklahoma.

The Deputy Administrator agrees with Judge Randall that denial of

Respondent's application is not warranted. However, the Deputy

Administrator believes that some restrictions on Respondent's

registration are necessary to protect the public health and safety in

light of Respondent's fairly recent abuse of controlled substances, his

forging of prescriptions and his felony convictions.

Therefore, the Deputy Administrator concludes that Respondent's

application for registration should granted subject to the following

restrictions for three years from the date of issuance of the DEA

Certificate of Registration:

1. Respondent must maintain his contractual relationship with the

Oklahoma Physicians Recovery Program and abide by its recommendations.

2. Respondent shall continue to undergo random urinalysis at his

own expense on at least a monthly basis regardless of whether he is

released from his probation with the Oklahoma Board and the OBN. He

shall forward copies of the results of these tests to the DEA Oklahoma

City office.

3. Respondent shall make copies of his prescriptions available to

DEA personnel upon request for inspection and copying.

4. Respondent shall notify the DEA Oklahoma City office within 30

days of any change in his employment.

5. Respondent shall consent to periodic inspections by DEA

personnel based on a Notice of Inspection rather than an Administrative

Inspection Warrant.

Accordingly, the Deputy 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) and 0.104, hereby orders that the

November 20, 1996 application for registration submitted by Jimmy

Harold Conway, Jr., M.D., be, and it hereby is, granted subject to the

above described restrictions. This order is effective upon the issuance

of the DEA Certificate of Registration, but no later than July 16,

1999.

Dated: June 7, 1999.

Donnie R. Marshall,

Deputy Administrator.

[FR Doc. 99-15189 Filed 6-15-99; 8:45 am]

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