[Federal Register: March 20, 1998 (Volume 63, Number 54)]
[Notices]               
[Page 13687-13689]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20mr98-137]

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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 96-27]

 
Anant N. Mauskar, M.D.; Grant of Restricted Registration

    On March 27, 1996, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Anant N. Mauskar, M.D. (Respondent), of Houston, 
Texas, notifying him of an opportunity to show cause as to why DEA 
should not deny his application for registration as a practitioner 
under 21 U.S.C. 823(f), for reason that he is without authority to 
handle controlled substances in the State of Texas, and that his 
registration would be inconsistent with the public interest.
    By letter dated April 15, 1996, Respondent, through counsel, filed 
a request for a hearing, and the matter was docketed before 
Administrative Law Judge Mary Ellen Bittner. During prehearing 
procedures, the Government filed a Motion for Summary Disposition 
alleging that Respondent was not entitled to a DEA registration in the 
State of Texas since he was without authority to handle controlled 
substances in the State. However, on May 29, 1996, the Texas Department 
of Public Safety reissued Respondent's Department of Public Safety 
Registration Certificate enabling him to handle controlled substances 
in Texas. As a result, Judge Bittner denied the Government's Motion for 
Summary Disposition on July 25, 1996.
    A hearing was then held on November 13, 1996, in San Antonio, Texas 
on the remaining issue raised in the Order to Show Cause. At the 
hearing, Respondent testified on his own behalf and both parties 
introduced documentary evidence. After the hearing, the Government 
submitted proposed findings of fact, conclusions of law and argument. 
Respondent did not submit a posthearing filing. On January 13, 1998, 
Judge Bittner issued her Opinion and Recommended Ruling, Findings of 
Fact, Conclusions of Law and Decision, recommending that Respondent's 
application for a DEA Certificate of Registration should be granted in 
Schedules II through V, excluding Schedule II narcotic controlled 
substances, subject to the maintenance of a log of his handling of 
controlled substances. Neither party filed exceptions to the Opinion 
and Recommended Ruling of Judge Bittner, and on February 17, 1998, 
Judge Bittner transmitted the record of these proceedings to the Acting 
Deputy Administrator.
    The Acting 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 Acting Deputy Administrator adopts, in full, the Opinion and 
Recommended Ruling, Findings of Fact, Conclusions of Law and Decision 
of the Administrative Law Judge. 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 of law.
    The Acting Deputy Administrator finds that Respondent attended 
medical school in Pune, India, and as of the date of the hearing had 
been practicing family medicine in Harris County, Texas for 16 years. 
Respondent previously possessed DEA Certificate of Registration 
AM9760338.
    On June 18, 1992, an Order to Show Cause was issued to Respondent 
proposing to revoke his previous DEA Certificate of Registration, 
alleging that his continued registration would be inconsistent with the 
public interest. Following a hearing before Administrative Law Judge 
Paul A. Tenney, the then-Administrator revoked Respondent's DEA 
registration effective November 1, 1993. See, Anant N. Mauskar, M.D., 
58 FR 51,385 (October 1, 1993).

[[Page 13688]]

    In the prior proceeding, the then-Administrator found that on 
December 5, 1990, July 22, 1991, and August 29, 1991, Respondent issued 
prescriptions for the Schedule III controlled substance Tylenol #4 with 
codeine (Tylenol #4), and the Schedule IV controlled substance Xanax to 
an undercover law enforcement officer for no legitimate medical 
purpose. The undercover officer indicated that the Tylenol #4 made him 
feel good, yet on two occasions, Respondent falsified the patient 
record indicating that the ``patient'' was suffering from pain, even 
though the undercover officer made no such complaint.
    Based upon these findings, the then-Administrator concluded that 
Respondent's continued registration would be inconsistent with the 
public interest, and revoked Respondent's previous DEA Certificate of 
Registration. Id. Subsequently, Respondent filed a petition for review 
of the then-Administrator's final order revoking his DEA registration. 
On August 25, 1994, the United States Court of Appeals for the Fifth 
Circuit found that the then-Administrator's findings of fact were 
supported by substantial evidence and affirmed his final order. Mauskar 
v. Drug Enforcement Administration, No. 93-5437, slip op. (5th Cir. 
Aug. 25, 1994).
    On October 21, 1994, Respondent submitted an application for a new 
DEA registration in Schedules II through V. That application is the 
subject of these proceedings. At the hearing in this matter, Respondent 
argued that he should be allowed to relitigate the underlying facts 
which led to the revocation of his previous DEA registration, since he 
did not testify at the previous proceeding because there were pending 
criminal charges against him. Respondent presented evidence that 
sometime after February 1993, Respondent was found not guilty of some 
unspecified charge following a bench trial in the 183rd District Court 
of Harris County, Texas. Also, in June 1995, Respondent was again found 
not guilty following a July trial on an unspecified charge based on the 
same facts as those which were addressed in the previous administrative 
proceeding.
    The Administrative Law Judge found however, that the then-
Administrator's final order published in the Federal Register on 
October 1, 1993, regarding Respondent is res judicata for purposes of 
this proceeding. See, Liberty Discount Drugs, Inc., 57 FR 2788 (1992) 
(where the findings in a previous revocation proceeding were held to be 
res judicata in a subsequent administrative proceeding.) The Acting 
Deputy Administrator agrees with Judge Bittner. The then-
Administrator's determination of the facts relating to the previous 
revocation of the Respondent's DEA registration is conclusive. 
Accordingly, the Acting Deputy Administrator adopts the then-
Administrator's 1993 final order in its entirety. The Acting Deputy 
Administrator concludes that the critical issue in this proceeding is 
whether the circumstances, which existed at the time of the prior 
proceeding, have changed sufficiently to support a conclusion that 
Respondent's registration would be in the public interest.
    At the hearing before Judge Bittner, Respondent maintained that he 
never prescribed controlled substances for other than legitimate 
medical purposes, including those prescribed for the undercover 
officer. Respondent asserted that he is able to identify persons 
addicted to controlled substances because they ``look different,'' 
usually ask directly for a controlled substance but do not want to 
submit to a physical examination, and appear to be in a hurry.
    Respondent testified that since the previous proceeding, he has 
taken various courses to maintain his continuing medical education 
requirements, including courses in pain management which addressed the 
proper handling of controlled substances. Respondent testified that 
these courses instruct physicians, ``[d]on't be scared of DEA,'' and 
``be very aggressive in treating the pain.'' However, Respondent stated 
that if granted a DEA registration, he does not intend to prescribe 
controlled substances very often, because there are now effective non-
controlled pain relievers.
    The Government argues that it has presented a prima facie case for 
the denial of Respondent's application for registration based upon the 
previous revocation of his DEA registration and the fact that he has 
not taken responsibility for the acts which led to the revocation. 
Nevertheless, the Government notes that Respondent's wrongdoing was 
limited to three instances of misprescribing in 1990 and 1991, and 
therefore, it may be appropriate to grant him a restricted 
registration. Respondent asserts that if granted a DEA registration, he 
would not prescribe controlled substances very often.
    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 
such registration would be inconsistent with the public interest. In 
determining the public interest, the following factors are 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.
    (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 be denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-
42, 54 FR 16,422 (1989).
    Regarding factor one, the Acting Deputy Administrator notes that 
Respondent was without authority to handle controlled substances in the 
State of Texas for a period of time. However, it appears that the state 
took action against Respondent's Texas registration to handle 
controlled substances in light of the revocation of his previous DEA 
registration. On May 29, 1996, the Texas Department of Public Safety 
reissued Respondent his state controlled substance privileges in 
Schedules II nonnarcotic, III, IV and V. However, as Judge Bittner 
noted, ``inasmuch as state licensure is a necessary but not sufficient 
condition for DEA registration, * * * this factor is not dispositive.''
    As to factors two and four, Respondent's experience in dispensing 
controlled substances and his compliance with controlled substance 
laws, it was found in the previous proceeding that Respondent 
prescribed controlled substance on three occasions in 1990 and 1991 to 
an undercover officer for no legitimate medical purpose, and therefore 
violated 21 CFR 1306.04. The Acting Deputy Administrator finds it 
troubling that Respondent continues to maintain that he did nothing 
wrong, and as the Government notes, this ``calls into question his 
commitment to comply with controlled substance laws in the future.'' 
Respondent testified that since the revocation of his previous DEA 
registration, he has taken courses that have dealt with the handling of 
controlled substances. Yet, as Judge Bittner notes, ``(it appears that 
these)

[[Page 13689]]

courses did not emphasize regulatory requirements and how to ensure 
that one's practices comply with them.'' Instead, Respondent testified 
that the courses encouraged doctors to not be scared of DEA and to take 
an aggressive approach to pain management. Nevertheless, Respondent 
testified that if granted a DEA registration, he would not prescribe 
controlled substances very often since safer noncontrolled substances 
are now available.
    The Acting Deputy Administrator finds that there was no evidence 
presented relevant to factor three or factor five.
    The Acting Deputy Administrator concludes that in light of 
Respondent's prescribing of controlled substances for no legitimate 
medical purpose and his failure to accept responsibility for his 
actions, the Government has established a prima facie case for the 
denial of Respondent's application for registration. However, as both 
Government counsel and Judge Bittner note, Respondent's wrongdoing is 
limited to three instances of prescribing controlled substances without 
a valid medical purpose in 1990 and 1991. Therefore, Judge Bittner 
recommended that Respondent be granted a restricted DEA Certificate of 
Registration. But, while Respondent has applied for a DEA registration 
in Schedules II through V, DEA has consistently held that it can only 
register a practitioner to handle controlled substances to the extent 
that he is authorized by the state. See, e.g., Romeo J. Perez. M.D., 62 
FR 16,193 (1997); Demetris A. Green, M.D., 61 FR 60,728 (1996); 
Dominick A. Ricci, M.D. 58 FR 51,104 (1993). Since the record indicates 
that Texas has not issued Respondent privileges in Schedule II 
narcotic, Respondent is not entitled to a DEA registration in Schedule 
II narcotic. Judge Bittner further recommended that Respondent be 
required to ``submit quarterly logs of all his handling of controlled 
substances to the appropriate DEA Special Agent in Charge or his 
designee, for the term of his registration.''
    The Acting Deputy Administrator agrees that a restricted 
registration is appropriate under the facts and circumstances of this 
case. While Respondent's wrongdoing occurred a number of years ago and 
was limited in nature, it is in the public interest to monitor 
Respondent's handling of controlled substances, in light of his failure 
to acknowledge responsibility for his actions. Therefore, the Acting 
Deputy Administrator finds it in the public interest to grant 
Respondent a DEA registration in Schedules II through V, excluding 
Schedule II narcotic, subject to the following condition:

    For three years from the date of issuance of the DEA Certificate 
of Registration, Respondent shall maintain a log of all controlled 
substances that he prescribes, administers or dispenses. At a 
minimum, the log shall indicate the date that the controlled 
substance was prescribed, administered or dispensed, the name of the 
patient, and the name, dosage and quantity of the controlled 
substance prescribed, administered or dispensed. The log shall be 
submitted on a quarterly basis to the Special Agent in Charge of the 
DEA Houston Field Division, or his designee. Should Respondent not 
prescribe, administer or dispense any controlled substances during a 
given quarter, he shall so indicate to the Special Agent in Charge 
of the DEA Houston Field Division, or his designee.

    Accordingly, the Acting 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 application dated October 2, 1994, submitted by Anant N. Mauskar, 
M.D., be, and it hereby is, granted in Schedules II through V, 
excluding Schedule II narcotic, subject to the above described 
restriction. This order is effective April 20, 1998.

    Dated: March 6, 1998.
Donnie R. Marshall,
Acting Deputy Administrator.
[FR Doc. 98-7188 Filed 3-19-98; 8:45 am]
BILLING CODE 4410-09-M