DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 92Ä56]

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. 94Ä235 Filed 1Ä5Ä94; 8:45 am]

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