[Federal Register: June 20, 2002 (Volume 67, Number 119)]
[Notices]               
[Page 42060-42066]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jn02-116]                         

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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 01-6]

 
Vincent J. Scolaro, D.O.; Grant of Restricted Registration

    By order dated October 23, 2000, the Deputy Assistant 
Administrator, Office of Diversion Control, Drug Enforcement 
Administration (DEA), issued an Order to Show Cause to Vincent J. 
Scolaro, D.O. (Respondent), seeking to deny his application for a DEA 
Certificate of Registration as a practitioner, pursuant to 21 U.S.C. 
823(f), because granting the application would be inconsistent with the 
public interest.
    The Respondent, through counsel, timely filed a request for a 
hearing on the allegations raised by the Order to Show Cause. The 
requested hearing was held in Jacksonville, Florida, on February 27, 
2001. At the hearing, both

[[Page 42061]]

parties called witnesses to testify and introduced documentary 
evidence. After the hearing, both parties submitted Proposed Findings 
of Fact, Conclusions of Law and Argument. Neither party filed 
exceptions to Judge Randall's opinion, and on September 7, 2001, Judge 
Randall transmitted the record of these proceedings to the Deputy 
Administrator for his final decision.
    The Deputy Administrator has considered the record in its entirety, 
and pursuant to 21 C.F.R. 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, conclusions of law, and decision of the 
Administrative Law Judge. His adoption is in no way diminished by any 
recitation of facts, issues, or conclusions herein, or of any failure 
to mention a matter of fact or law.
    Prior to medical school, the Respondent received a Bachelors degree 
in chemistry from Eckerd College in St. Petersburg, Florida, in 1984. 
The Respondent received his Doctorate in Osteopathic Medicine from 
Southeastern College in North Miami Beach, Florida, in 1988. The 
Respondent's medical education included training in the use and 
prescribing of controlled substances. Subsequent to medical school, the 
Respondent completed an internship in Family Medicine and a residency 
through Southeastern College of Osteopathic Medicine. After his 
residency, the Respondent relocated, started practicing with another 
physician, and then entered solo practice.
    Currently, the Respondent is board certified in Family Medicine. 
For board certification, the Respondent was required to complete a 
family practice residency and to pass oral and written examination. 
Board certified physicians also face higher requirements for continuing 
medical education and must reapply every three years.
    By DEA Form 224, dated March 6, 2000, the Respondent applied for a 
DEA registration as a practitioner to handle controlled substances in 
schedules II through V. On his application, the Respondent answered 
that he had been convicted of a crime in connection with controlled 
substances under state or federal law. He also disclosed that he had 
surrendered or had a federal controlled substance registration revoked, 
suspended, restricted, or denied. Furthermore, the Respondent indicated 
that he had had a state professional license or a controlled substance 
registration revoked, suspended, denied, restricted, or placed on 
probation.
    In the Respondent's written application, he succinctly and 
accurately described the dates and circumstances that surrounded the 
judgment against him and the surrender of his DEA registration and of 
his state license.
    The Respondent was investigated by a DEA Diversion Investigator (D/
I) and by a Special Agent (S/A) of the Florida Department of Law 
Enforcement. The record shows both individuals have various training, 
education, and experience relating to drug law enforcement, and were 
competent to testify as to the investigation of the Respondent.
    In January 1998, a pharmacist working for Walgreen's in Deltona, 
Florida, contacted the D/I. The pharmacist told the D/I that the 
Respondent was picking up prescriptions, using fraudulent names. In 
light of DEA intelligence that the Respondent was getting fraudulent 
prescriptions, the D/I visited the Walgreen's pharmacy and obtained a 
pharmacy trace. A pharmacy trace, according to the D/I, comes from 
records that pharmacies are required to keep regarding prescriptions 
filled at the pharmacy. The DEA can ask a pharmacy for patient's names 
and the prescriptions actually filled at the pharmacy for that patient. 
The pharmacist can then search the database by patient name. The 
Walgreen's pharmacist also provided the D/I with the Respondent's 
vehicle license plate number and described the Respondent's vehicle as 
a white mini-van. Once the D/I had that information, the D/I contacted 
the S/A at the Belushi County Sheriff's Office. The investigators ran 
the license plate number given by the Walgreen's pharmacist and found 
that the vehicle was registered to the Respondent. The investigators 
together returned to the Walgreen's in Deltona to collect any 
prescriptions that were written by the Respondent for three 
individuals. As the Walgreen's pharmacist described to the 
investigators, the Respondent would either call in the prescription and 
pick it up through the pharmacy's drive-through, or he would drop off a 
prescription at the pharmacy and come back in one to three days. The 
prescriptions had the patient's name and the Respondent's signature. 
The Respondent would sign the patient's name on the claim log.
    Upon further investigation of the three alleged patients, the D/I 
and S/A discovered that one of the patients was, in fact, the 
Respondent's wife. The Walgreen's pharmacist was able to identify her 
from a photograph because she had picked up numerous prescriptions. 
Investigators did not talk to her in their investigation, however, 
because of her perceived conflict of interest.
    Investigators found another alleged patient in Hollywood, Florida, 
and spoke to him. He told the investigators that he had never been seen 
by the Respondent, but did state his brother was a good friend of the 
Respondent. The Walgreen's Prescription Claim Logs did not indicate any 
insurance involvement for the prescriptions filled under this alleged 
patient's name.
    When investigators talked with the third alleged patient, she was 
discovered to be the Respondent's eighty-four-year-old neighbor. When 
the investigators showed her the prescriptions attributed to her, this 
alleged patient stated that these prescriptions were not for her, 
although her late husband was a patient of the Respondent. This alleged 
patient stated that she had received prescriptions from another 
physician, but not the Respondent.
    On May 15, 1998, pursuant to the issuance of an arrest warrant, the 
D/I and S/A arrested the Respondent at home. At the time of the arrest, 
the investigators searched the Respondent's vehicle and found 
prescription drugs. They also brought the Respondent to his offices and 
attempted to obtain his records on the three above-mentioned 
individuals; however, the Respondent had no such records. After the 
Respondent's arrest, and with his consent, the investigators had the 
Respondent tested for drug use. The Respondent tested positive for 
barbiturates, diazepam, and opiates.
    After the Respondent's arrest, the investigators took him to the 
local DEA District office for an interview. At the interview, the 
Respondent signed a waiver of his rights. The Respondent confirmed that 
he did not have medical files or other records for the three alleged 
patients mentioned above.
    All of the prescriptions in evidence were obtained from no more 
than five pharmacies. In May 1998, the DEA was contacted by another 
pharmacist at Target Pharmacy, regarding prescriptions written by the 
Respondent for one of the previously mentioned alleged patients. The 
pharmacist recognized the Respondent's name from a DEA press release. 
The DEA actually obtained the prescriptions from the pharmacy and found 
that they corresponded to the same period as the other prescriptions 
found at other pharmacies. All of the prescriptions

[[Page 42062]]

were issued prior to the Respondent's conviction.
    Dr. Raymond Pomm is Medical Director for the Impaired 
Practitioners' Program for the State of Florida, also known as the 
Physician's Recovery Network (PRN), and is an expert in psychiatry and 
addiction medicine for professionals, including health care 
professionals. As Director, Dr. Pomm is directly responsible to the 
Department of Health for Florida and oversees interventions, 
evaluations, treatments, and the monitoring of impaired professionals. 
As Director of the PRN, Dr. Pomm has the authority to request an 
emergency suspension of license from a state agency if he knows a 
practitioner from the PRN has problems and if he believes that the 
practitioner cannot practice with the requisite skill and efficiency. 
The PRN had approximately 1100 professionals in treatment at the time 
of the hearing.
    Dr. Pomm first came in contact with the Respondent's case when a 
representative from Florida's Agency for Health Care Administration 
called Dr. Pomm, seeking an evaluation of the Respondent. Dr. Kenneth 
W. Thompson conducted an inpatient evaluation of the Respondent on May 
28, 1998. Dr. Pomm and Dr. Thompson found that the Respondent was not 
able to practice medicine with reasonable skill and safety. In addition 
to the inpatient evaluation, the Respondent also received psychiatric 
treatment. The Respondent's diagnosis was psychotic disorder.
    Based on Dr. Pomm's and Dr. Thompson's recommendations, the 
Respondent voluntarily withdrew from practice immediately. Eventually, 
the Respondent officially entered a voluntary withdrawal from practice 
with the Agency of Healthcare Administration. On July 12, 1999, the 
Respondent also voluntarily surrendered his DEA registration. The 
Respondent entered treatment and evaluation.
    Mr. Meagher is a certified addictions professional and is employed 
by Turning Point of Central Florida. Since 1979, he has worked in 
various counselor and managerial positions in the field of addiction. 
Specifically, Mr. Meagher has been with the PRN since 1987 or 1988. Mr. 
Meagher's role is to get involved should a PRN participant violate his 
or her PRN contract. Mr. Meagher also monitored and facilitated the 
Respondent's group therapy sessions. Mr. Meagher remembered the 
Respondent as entering the PRN in 1998. At first, Mr. Meagher believed 
that the Respondent seemed secretive, paranoid, and unsure whether 
people were trying to help or hinder him. Slowly, however, the 
Respondent began to recognize that he was no different from anyone else 
in the group therapy sessions run by Mr. Meagher. Over time, the 
Respondent learned to trust others in the group, and recently had been 
able to assist others who have had difficult situations or problems. 
Respondent had become more willing to participate and speak about 
issues surrounding, inter alia, the DEA, the Florida Board of 
Osteopathic Medicine (State Board) and his family.
    The Respondent underwent outpatient treatment for mental health and 
substance abuse at Turning Point. He initially saw a therapist every 
week and a psychiatrist every two weeks. Besides his two week inpatient 
evaluation, the Respondent did no other inpatient care. As of the date 
of the hearing, Mr. Meagher believed that the Respondent had been in 
total compliance with his PRN contract. If Mr. Meagher believed that 
the Respondent was not in compliance with his contract, he would notify 
Dr. Pomm and advise him to seek a second evaluation of the Respondent. 
Mr. Meagher also testified that the Respondent ``would be an asset in 
the community [if he were able] to practice medicine to the full 
extent.'' He also stated that it would be a benefit to the Respondent's 
patients if the Respondent were granted a DEA registration.
    The Respondent entered into a written contract with PRN. The 
contract details the type of treatment and monitoring recommended for 
the Respondent. A typical PRN contract lasts for five years. A contract 
generally stays in effect after an individual resumes his or her 
medical practice, to ensure continued progress. The program entails a 
high standard for urine screening that tests for a wider range of drugs 
than other screening processes used in similar programs in many other 
regions of the country. The standard is high in light of stringent 
observation and chain of custody rules and computer randomization. A 
participant must attend weekly support group sessions with other 
impaired professionals. Judge Randall found the Respondent thus far has 
been very compliant with the terms of his PRN contract.
    The Respondent recalls that he last used drugs on May 15, 1998, his 
sobriety date. He characterized his drug use at the time of the 
intervention to be light to moderate. Pursuant to his contract, the 
Respondent's frequency of random substance abuse tests is, on average, 
every two weeks or twice a month. The Respondent must call a toll-free 
number every day to see if he must provide a urine sample for testing. 
If the Respondent fails to so provide a requested urine sample, the PRN 
assumes that the failure is deliberate because the program participant 
knows that his or her test results would be positive if taken on that 
date. The Respondent also has urine testing twice a month pursuant to 
the terms of his probation. There is no evidence in the record that 
Respondent has ever had a positive result reported from PRN or his 
court-directed urinalysis.
    Also, a PRN participant typically must attend a twelve-step program 
for recovery. At the Respondent's stage, Dr. Pomm believes that a 
person should be attending two to three times per week. Dr. Pomm 
testified that a participant should never attend less than one meeting 
a week after hitting the five-year mark.
    The Respondent is not allowed to take mood altering drugs at all, 
even by prescription, without first informing the PRN. Thus, the 
Respondent has a primary care physician with knowledge of the 
Respondent's PRN contract and his chemical dependency diagnosis and 
treatment. The Respondent is also required to see a psychiatrist for 
ongoing medication of his condition. The Respondent participates in a 
weekly support group for the PRN, specifically for issues facing 
professionals. The Respondent attends group meetings in Orlando, 
Florida, monitored and facilitated by Mr. Meagher. As facilitator, Mr. 
Meagher reports problems whenever seen, and also gives a quarterly 
report to PRN about the Respondent's participation. The report contains 
the patient's attitudes, behaviors, attendance at group therapy, and 
signs or symptoms of relapse. Such signs might be the lack of attending 
meetings, avoidance of interaction with others in the group, and 
solitude or not participating in the group. The Respondent has missed 
group meetings five times, and each occasion was considered a justified 
absence. The Respondent reported his proposed absence before the 
meeting, rather than his missing a meeting and then offering an 
explanation.
    The Respondent reports to the State board on a regular basis. The 
Respondent also signed a release, so the PRN can have access to records 
of his medical activities. The Respondent agreed that he would withdraw 
from practice immediately, if Dr. Pomm so instructed. Thereafter, Dr. 
Pomm would notify the State Board immediately, and investigators from 
PRN and the State Board would be looking for the Respondent, if 
necessary.

[[Page 42063]]

    Dr. Pomm testified the PRN's primary goal is to protect the public, 
so that rehabilitation of an impaired physician is secondary to the 
public's protection. From 1995-2000, however, less than 10% of 
participants relapsed at all after having completed the five-year PRN 
program. The PRN has an 80% success rate, within the first two years of 
treatment. The rates of relapse in the Florida program are similar to 
the rates in other states' programs nationally. A relapse within the 
two-to-five-year mark is often due to a person's not practicing a 
recovery program.
    He further stated that the type of drug is a factor for relapse in 
early recovery, but is not so significant once a person has hit the 5 
year mark. Notably, the rate of relapse among pharmacists is the same 
as physicians, despite the former's contact with controlled substances 
on a regular basis. According to Dr. Pomm, the abuser does not stop 
abusing a controlled substance because of lack of access, but rather 
because he or she participates in a recovery and monitoring program. 
``[S]o, preventing [the Respondent's] impairment * * * is not done by 
preventing his prescribing.''
    Since April 21, 1999, Dr. Pomm has found the Respondent safe to 
return to the practice of medicine. Dr. Pomm's opinion is based on 
another evaluation and a University of Florida Cares assessment, done 
on February 10 and 11, 1999. The University of Florida Cares assessment 
is an intense two-day evaluation of a practitioner's competence to 
practice. The program's recommendations for the Respondent were 
indirect supervision, chart audits, and Continuing Medical Education. 
Dr. Pomm testified that it is safe for the Respondent to prescribe 
controlled substances because the Respondent's disease is in remission, 
Respondent is maintaining recovery, Respondent is being monitored 
satisfactorily, and Respondent has confidence in his own skills, as 
evidenced by his passage of the University of Florida Cares course.
    Dr. Pomm recommended that the Respondent be allowed to practice 
medicine with certain conditions. He suggested that the Respondent's 
prescribing needed to be monitored, though such monitoring would stem 
from the disciplinary process rather than any recovery process. But, 
Dr. Pomm does believe that monitoring would be needed for the safety of 
the public. Dr. Pomm's recommendation comes from this level of comfort 
that the Respondent would fit into normal statistics of success for PRN 
participants. He believes that the Respondent has successful in the PRN 
program and that there is no ``medical contraindication'' to the 
Respondent's having a DEA registration. On the contrary, Dr. Pomm 
suggests that lacking a DEA registration has a negative impact on the 
Respondent's practice. Dr. Pomm testified to his belief that it is 
important for a doctor's recovery to engage in the full practice of 
medicine.
    Additionally, Dr. Pomm noted that continuity of care is critical to 
a patient's well-being. Furthermore, he believes the Respondent is safe 
to practice medicine, under the same restrictions and protections for 
the public that exist under the State Board's probation. Dr. Pomm 
concluded that the Respondent should get a DEA registration with the 
same restrictions as are in the State Board's Order.
    Mr. Meagher also testified that the Respondent would be an asset to 
the community as a physician and has no qualms about the Respondent's 
current safety in working with the public. Mr. Meagher stated his 
belief that a DEA registration would be a benefit to the Respondent's 
patients.
    The Respondent voluntarily withdrew from the practice of medicine 
on July 9, 1998. The Respondent agreed to abstain from the practice of 
medicine until the State Board issued a final order in his case. The 
State Board's Order Reinstating License and Setting Terms of Probation 
was signed on December 15, 1999, and runs concurrently with the 
Respondent's contract with the PRN. The Order placed restrictions on 
the Respondent's medical practice. Among those restrictions are: (a) 
The Respondent shall issue no controlled substance prescriptions to 
family members, immediate or otherwise; (b) the Respondent shall keep a 
log of all Schedule II and III controlled substances that he 
prescribes, including the date prescribed, the patient's name, the drug 
name and quantity, and a brief description of reason for the 
prescription; (c) the log shall be made available for review by an 
investigator for Florida's Agency for Health Care Administration or by 
Florida's Department of Health at reasonable times and without prior 
notice; (d) the Respondent shall use sequentially numbered, triplicate 
prescriptions for all prescriptions of schedule II and III controlled 
substances, and the Respondents shall distribute a copy to his monitor, 
place a copy in the patient's file, and maintain a copy in his office 
for inspection; (e) if the Respondent leaves the State of Florida for 
thirty days or more, or if he does not actively engage in the practice 
of medicine in the State of Florida, certain provisions of his 
probation are tolled until his return to active practice in Florida. 
The tolled provisions include the time period of the probation, 
provisions regarding supervision by a monitoring physician, and 
provisions regarding the reports that must be filed. If the Respondent 
leaves the active practice of medicine in the State of Florida for a 
year or more, the Board may require a demonstration that the Respondent 
is still qualified to practice with reasonable skill and safety before 
the Respondent resumes practice. The Board also requires the Respondent 
to comply with all terms and conditions of his criminal probation, and 
imposes various costs upon him for the administration of the agreement 
and for drug testing.
    On April 28, 1999, the Circuit Court for the Seventh Judicial 
Circuit in Volusia County, Florida, entered an Order of Drug Offender 
Probation in State of Florida v. Vincent J. Scolaro, Case No. 97-
2146CFAWS and 98-0739CFAWS. The Respondent pleaded nolo contendere to 
Resisting Arrest with Violence and to Unlawfully Obtaining/Attempting 
to Obtain a Controlled Substance. Both offenses are third degree 
felonies in Florida.
    Pursuant to the conditions of the court's Order, the Respondent 
served a ninety-day jail term with credit for two days of time served. 
Having pleaded guilty to felonies, the Respondent was required to 
register at the Sheriff's Office in the County where he resides. The 
Order withholds adjudication and imposes a five-year Drug Offender 
Probation upon the Respondent under the supervision of the Florida 
Department of corrections. The Respondent must report monthly to his 
probation officer, and procure his officer's consent before changing 
his residence or employment, or before leaving the county. 
Additionally, the Respondent must totally abstain from consuming excess 
amounts of alcohol, or any drugs or controlled substances, unless they 
are prescribed by a physician.
    The Order prohibits the Respondent from going to business 
establishments whose primary purpose is to sell or to encourage the 
consumption of alcohol, and from going to areas in the community where 
illegal drugs are bought,sold, or used. He must submit to alcohol and 
drug testing at any time that his probation officer requests. 
Generally, the Respondent is tested once or twice a month as part of 
his criminal probation, in addition to the two to three times a month 
he is tested as part of his PRN contract.
    In addition to the PRN contract requirements, the Respondent had to

[[Page 42064]]

complete the Department of Corrections' Drug Offender Program. during 
this program he also had to attend at least two recovery meeting per 
week in either Narcotics Anonymous or AA, and to provide documentary 
evidence of his participation to his probation officer. Pursuant to the 
court's Order, the Respondent also had to complete outpatient and/or 
inpatient mental health counseling as directed by the PRN program.
    The court order also requires that the Respondent not violate the 
law or associate with a person who is engaged in any criminal activity. 
A conviction is not necessary for the Respondent to have violated this 
term of his probation. Also,he must maintain or actively seek 
employment and pay a number of fees for such things as the cost of his 
supervision and of the investigation and prosecution of his case by the 
state.
    The Respondent's Probation Officer, Ronald Murray, has worked for 
the Probation and Parole services, Florida Department of Corrections, 
Seventh Judicial Circuit, Deland, Florida, for nine years. As of the 
date of the hearing, he was serving in the position of Correctional 
Probation Senior Officer. Mr. Murray served as the Respondent's 
probation officer from April 28, 1999, to January 16, 201. As a 
probation officer, Mr. Murray visited periodically with the Respondent 
in his office an din the Respondent's home. Additionally, Mr. Murray 
was responsible for monitoring the Respondent's compliance with random 
urine tests and the substance abuse treatment program, as ordered by 
the court.
    Mr. Murray testified that the Respondent, in a consistently timely 
manner, has been totally compliant with everything required or 
requested of him. Mr. Murray believes that the Respondent is sincere in 
his desire to comply with his probation and the law.
    The Respondent has a monitoring doctor at the medical center, Dr. 
Mark Webster. Dr. Webster is a Board Certified Family Physician who 
acts as the supervisory physician for the Respondent pursuant to the 
terms of the Respondent's probation from the Department of Health. He 
works in the same office as the Respondent, and, since April 1, 2000, 
they have seen each other regularly throughout the eight to ten hour 
work day. Dr. Webster also believes that the Respondent is doing well 
in his rehabilitation and is in full compliance with his PRN contract. 
Dr. Webster testified that the Respondent ``is sincere about his 
recovery and has an excellent attitude towards recovery.'' Dr. Webster 
agrees that the Respondent can safely practice medicine and responsibly 
exercise DEA prescribing privileges.
    Judge Randall found that the Respondent's care for his patients is 
hampered by his lack of a DEA registration. For example, the 
Respondent, without a DEA certificate, cannot receive hospital 
privileges in Florida. Additionally, certain insurance carriers will 
not approve prescriptions for non-controlled substances, such as 
antibiotics, because the Respondent lacks a DEA number.
    The Respondent acknowledged that he fraudulently wrote, for his own 
use, the prescriptions dated from November of 1994 through May 8, 1998, 
contained in the Government's exhibits. He further acknowledged that he 
was addicted to hydrocodone products at the time he wrote the 
prescriptions offered by the Government. The Respondent credibly 
described his past history of denial of his substance abuse problem and 
his withdrawal from other people around him. He contrasted that past 
with his current ``normal life'' and ``normal interactions.'' 
Specifically, since the intervention, the Respondent has changed his 
life by exercising more, socializing more, and experiencing better 
personal relationships with his wife, his brothers, and his parents.
    The Respondent and his wife previously had lost a baby. At the time 
of the hearing, however, the Respondent and his wife had a four-month 
old baby. The Respondent's 36-year old brother, Timothy Scolaro, lives 
in Coconut Creek, Florida, is married, and has a three-year-old 
daughter. The Respondent and his brother share a good relationship, 
talking approximately twice a month and seeing each other three to four 
times a year. Regarding the Respondent's rehabilitation, Timothy 
Scolaro also reports that the Respondent seems to be doing fine, 
appears to be much happier, is much more open and willing to talk, and 
is taking better care of himself. The Respondent's 37-year-old brother, 
Dan Scolaro, lives in Broward County, Florida. Dan Scolaro talks to the 
Respondent weekly on the phone and sees him around eight times a year. 
Dan Scolaro wrote that since undergoing his recovery, the Respondent 
has lost 40 pounds and exercises every day. He describes the change in 
the Respondent's attitude as being remarkable. He too finds that the 
Respondent is doing well in his rehabilitation, and that he is ``open 
and communicative.''
    Currently, the Respondent is happy about being a new father. The 
Respondent is confident that, as long as he keeps doing fine, there 
would not be a problem if he were again given a DEA registration. He 
continues to go to Narcotics Anonymous meetings two to three times a 
week and acknowledges that he will always consider himself an addict.
    Pursuant to 21 U.S.C. 823(f), and subdelegations of authority 
thereunder found at 28 C.F.R. 0.100(b) and 0.104, the Deputy 
Administrator may deny an application for registration as a 
practitioner, if he determines that the issuance of such a registration 
would be inconsistent with the public interest. Section 823(f) requires 
that the following factors be considered in evaluating 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 properly rely on any one or any combination of these 
factors, and may give each factor the weight he deems appropriate in 
determining whether an application for registration should be denied. 
See Henry J. Schwarz, Jr., M.D., 54 FR 16,422 (1989). As an initial 
matter, the Government bears the burden of providing that registration 
of the Respondent is not in the public interest. See Shatz v. United 
States Dep't of Justice, 873 F.2d 1089, 1091 (8th Cir. 1989).
    Regarding factor one, the recommendation of the State licensing 
board, Judge Randall found the State Board has not made any official 
recommendation regarding this proceeding's outcome. Judge Randall 
further noted, however, that the Deputy Administrator has considered 
facts surrounding state licensure under this factor, See In the Matter 
of David M. Headley, M.D., 61 FR 39,469, 39,470-71 (1996).
    In Headley, the ten-Deputy Administrator approved a physician's 
application for a DEA registration, subject to conditions. Id. at 
39,471. There, the Deputy Administrator noted that the state board 
quickly responded to the situation after discovering the applicant's 
drug abuse, acknowledged the applicant's recovery, reinstated the 
applicant's license, and allowed the

[[Page 42065]]

Respondent to apply for a DEA registration. Id. at 39,470-71.
    Similarly to Headley, in the instant case the appropriate state 
health care authority also acted quickly following the Respondent's 
arrest. The Respondent entered the PRN program and is following through 
with treatment, according to the PRN staff, the Respondent's monitoring 
physician, and his family who offered testimony. The individuals who 
are vested by the State Board with the Respondent's treatment all agree 
that he is safe to return to practice in light of the ongoing treatment 
and monitoring that is maintained pursuant to the State Board's Order. 
Furthermore, the Respondent is in compliance with his responsibilities 
to keep the State Board appraised of his progress. Judge Randall noted 
that the Respondent's steady progress was not disputed by the 
Government. Rather, the Government draws attention to the Respondent's 
voluntary withdrawal from practice and the State Board's decision to 
place the Respondent on probation. The Deputy Administrator concurs 
with Judge Randall's finding that while those facts are relevant and 
undisputed, also relevant is the Florida State Board's decision that 
currently authorizes the Respondent to prescribe Schedule II and III 
controlled substances, with restrictions and monitoring during the 
probationary period. Similarly to the state board in Headley, the 
Florida State Board has acknowledged the Respondent's continued 
recovery in the PRN and reinstated his license to practice medicine. 
While the State Board did not affirmatively state that the Respondent 
could apply for a DEA registration, Judge Randall found that the State 
Board by implication acquiesced to the Respondent's application because 
the State Board has given state authority to the Respondent to 
prescribe controlled substances. Such authority would be meaningless if 
the State Board did not believe that the Respondent should be granted a 
DEA registration.
    In light of the State Board's quick response to the Respondent's 
situation and its decision to reinstate the Respondent's license to 
practice with restrictions, the Deputy Administrator concurs with Judge 
Randall's conclusion that the Florida State Board implicitly agrees 
that the Respondent is ready to maintain a DEA registration upon the 
terms set forth in the State Board's December 15, 1999 Order.
    Regarding factors two and four, experience in dispensing controlled 
substances, and compliance with laws related to controlled substances, 
the Deputy Administrator concurs with Judge Randall's finding that when 
looking at the Respondent's past experiences in handling controlled 
substances, one must consider his undisputed record of substance abuse 
and egregious misconduct in issuing fraudulent prescriptions, a record 
of numerous violations extending over a number of years. The Government 
asserts that the Respondent's conduct was proscribed by 21 U.S.C. 829 
and 841(a)(1) and 21 C.F.R. 1306.04. Judge Randall concurred, and 
further concluded that the Respondent's conduct also violated Florida 
State law. Clearly, the Respondent's conduct was in direct violation of 
the State and Federal law relating to the handling of controlled 
substances, as well as in violation of DEA regulations. His multiple 
breaches of the law, brought on by his personal addiction to controlled 
substances, are no less serious merely because the Respondent did not 
unlawfully provide controlled substances to others. The Deputy 
Administrator concurs with Judge Randall's finding that Respondent's 
repeated violations were intolerable and would provide more than 
sufficient reason, if not addressed, to deny the Respondent's 
application for a DEA registration.
    The Respondent's conduct has gone through a dramatic change since 
he entered the PRN program, however. The State Board's monitoring, the 
frequent and random drug testing, and the Respondent's consistent 
record of compliance with all terms of probation and PRN contract 
together constitute strong evidence that the Respondent is well on the 
way to rehabilitation, and does not pose a threat to the public 
interest. The Respondent did not gain any further experience in 
dispensing controlled substances since his arrest, but he did 
demonstrate that he no longer illegally obtains controlled substances, 
and that he actively manages his addiction. The Deputy Administrator 
further concurs with Judge Randall's significant that the State Board 
decided to reinstate the Respondent's state authorization to handle 
controlled substances, subject to the restrictions set out in its 
December 15, 1999 Order.
    Regarding factor three, convictions under Federal or State laws 
relating to controlled substances, the Deputy Administrator finds the 
Respondent entered a plea of nolo contendere in the Circuit Court for 
the Seventh Judicial Circuit in Volusia County for Unlawfully 
Obtaining/Attempting to Obtain a Controlled Substance. The offense is a 
third degree felony in Florida, and imposed jail time, probation, and 
the costs inherent in the management of the Respondent's probation. The 
Respondent's probation officer also attested to the Respondent's 
progress and compliance with the Court's probation. Although the 
Court's order withheld adjudication of guilt during the Respondent's 
participation in five years of probation, the Deputy Administrator 
concurs with Judge Randall's finding that the DEA has found such a 
judicial action satisfies the ``conviction'' component of this factor. 
See, e.g., Yu-To Hsu, M.D., 62 FR 12,840 (1997) (``DEA has consistently 
held that a deferred adjudication of guilt following a plea of guilty 
is a conviction within the meaning of the Controlled Substances Act.'') 
(quoting Harlan J. Borcherding, D.O., 60 FR 28,796 (1995)).
    Regarding factor five, other conduct which they may threaten the 
public health or safety, the Government notes the Respondent's past 
abuse of controlled substances, prior to his entry into rehabilitation. 
The Government admits, however, that the Respondent's agreement with 
the Florida State Board to monitor his recovery provides mitigating 
circumstances. Despite the Respondent's evidence of his continuing 
strong recovery, the Government concludes that the Respondent is in the 
early stages of rehabilitation, and that he has not shown that he is 
ready for the responsibilities of a DEA registration. Considering all 
of the facts and circumstances in evidence, Judge Randall did not 
concur with the Government's assessment.
    Judge Randall found the Respondent began his career with excellent 
prospects, as evidenced by his board certification, which he has 
maintained. It is true that the Respondent's conduct during his 
addiction included unlawful prescribing of controlled substances, 
unlawful consumption of controlled substances, and deception of his 
colleagues, family, and friends. Such behavior, absent rehabilitation, 
would support a decision to deny his pending application. The Deputy 
Administrator concurs with Judge Randall's finding that the Respondent 
has succeeded outstandingly in a well established, aggressive 
rehabilitation program, however. The program's treatment and 
assessments are rigorous, yet all of the Respondent's evaluators agree 
that he is performing with excellent results. The Deputy Administrator 
concurs with Judge Randall's conclusion that the Respondent has 
returned to a safe and healthy practice of medicine, due to the initial 
intervention of the State Board and the PRN, the monitoring he has 
received through the PRN, has new

[[Page 42066]]

employment with monitoring by Dr. Webster, and his probation with the 
Circuit Court.
    The Deputy Administrator finds the Respondent has complied with the 
Court's terms of probation without incident. Unlike the Respondent in 
the Headley case, the Respondent has maintained a change in his 
lifestyle and has encountered no incidences of relapse since his 
reinstatement. See Headly at 39,469 (noting Dr. Headley's relapse). The 
experts agree that the Respondent's current condition indicates that he 
will continue to progress in a positive direction, drug-free and 
committed to his family and profession.
    Further, the Respondent enjoys a support network in addition to the 
PRN, his family. His marriage and relationships with his siblings and 
his parents have changed to become stronger, which is in no small part 
due to the recent birth of his daughter. Judge Randall noted the 
Respondent's demeanor and testimony during the hearing were consistent 
with the remarks of the professionals who monitor him and his family. 
The Deputy Administrator concurs with Judge Randall's conclusion that 
the Respondent understands and has accepted responsibility for his past 
actions and sees his recovery from his addiction as a multifaceted and 
ongoing process. The network of family and interested colleagues, in 
light of the testimony of the Respondent's colleague and PRN staff, 
lends firm support to granting the Respondent's application.
    The Deputy Administrator concurs with Judge Randall's finding that 
the Government has met its burden of proof for denial of the 
Respondent's pending application for registration. As Judge Randall 
correctly notes, however, the Deputy Administrator must consider all of 
the facts and circumstances of a particular case when deciding the 
appropriate remedy. See Martha Hernandez, M.D., 62 FR 61,145, 61,147 
(1997).
    After a review of the totality of the circumstances, the Deputy 
Administrator concurs with Judge Randall's conclusion that it would be 
in the public interest to grant the Respondent's application. The 
Deputy Administrator further concurs with Judge Randall's finding that 
the Respondent has demonstrated sufficient evidence of rehabilitation 
to warrant granting his application. See Jimmy H. Conway, Jr., M.D., 64 
FR 32,271 (1999); see also Robert G. Hallermeier, M.D., 62 FR 26,818 
(1997). The Respondent should be allowed the opportunity to demonstrate 
that he can now handle the responsibilities of a DEA registrant. He has 
accepted responsibility for his past offenses and for his recovery. The 
record amply supports the conclusion that the Respondent will not 
repeat past misconduct. and relapse is extremely unlikely.
    The Deputy Administrator further concurs with Judge Randall's 
conclusion that further monitoring by the DEA is appropriate, however. 
Given the aggressive monitoring by the PRN program, and the continuing 
supervision of the Respondent's conduct by Florida's probation system, 
federal oversight may seem redundant. Yet the DEA is also charged with 
protecting the public interest through its registration process. Here, 
given the evidence of less than five years of recovery time, monitoring 
by the DEA is warranted to protect the public interest. See Roger Lee 
Kinney, M.D., 64 FR 42,983 (1999).
    Accordingly, the Respondent's application for a DEA Certificate of 
Registration in Schedules II through V is hereby granted, subject to 
the following restrictions:
    (1) The Respondent, the PRN monitoring professionals, and the 
Respondent's probation officer shall file with the local DEA office 
copies of the status reports of the Respondent's progress that are 
already being filed with the Florida State Board;
    (2) The Respondent shall agree to random warrantless inspections of 
his office, files, and prescription logs by DEA employees in addition 
to the terms set forth for random inspections under the Florida State 
Board's Order;
    (3) The Respondent shall inform the DEA, within 30 days of the 
event, of any action taken by any state upon his medical license or 
upon his authorization to handle controlled substances within that 
state;
    (4) These conditions shall extend through the three-year 
registration period.
    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 
application for registration submitted by Vincent J. Scolaro, D.O., 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 22, 2002.

    Dated: June 11, 2002.
John B. Brown III,
Deputy Administrator.
[FR Doc. 02-15564 Filed 6-19-02; 8:45 am]
BILLING CODE 4410-09-M