Robert A. Smith, M.D., Revocation of Registration, 33207-33209 [05-11250]
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Federal Register / Vol. 70, No. 108 / Tuesday, June 7, 2005 / Notices
where he was applying for registration.
Judge Bittner recommended that
Respondent’s application for a DEA
Certificate of Registration be denied.
No exceptions were filed by either
party to Judge Bittner’s Opinion and
Recommended Decision and on March
22, 2005, the record of these
proceedings was transmitted to the
Office of the DEA Deputy
Administrator.
The Deputy Administrator has
considered the record in its entirety and
pursuant to 21 CFR 1316.67, hereby
issues her final order based upon
findings of fact and conclusions of law
as hereinafter set forth. The Deputy
Administrator adopts, in full, the
Opinion and Recommended Decision of
the Administrative Law Judge.
The Deputy Administrator finds that
Respondent previously held DEA
Certificate of Registration BR4105032,
which he surrendered on June 19, 2003,
while a Federal Search Warrant was
being executed upon his medical office.
Three weeks later, Respondent filed the
application for DEA registration which
is the subject of these proceedings.
The Deputy Administrator further
finds that, effective December 20, 2004,
Respondent’s license to practice
medicine in Illinois and his Illinois
Controlled Substances Registration were
temporarily suspended, pending further
proceedings, after the Illinois Board
found ‘‘the public interest, safety, and
welfare imperatively require emergency
action to prevent the continued practice
of the Respondent, in that Respondent’s
actions constitute an immediate danger
to the public.’’ The Illinois Board’s
action was based primarily on the facts
alleged in DEA’s Order to Show Cause,
coupled with Respondent’s violation of
an Agreement of Care, Counseling and
Treatment, which he had entered into
with state authorities.
The Deputy Administrator therefore
finds Respondent is currently not
licensed to practice medicine in Illinois
and lacks authorization to handle
controlled substances in that state.
DEA does not have statutory authority
under the Controlled Substances Act to
issue or maintain a registration if the
applicant or registrant is without state
authority to handle controlled
substances in the state in which he
conducts business. See 21 U.S.C.
802(21), 823(f) and 824(a)(3). This
prerequisite has been consistently
upheld. See Stephen J. Graham, M.D.,
69 FR 11,661 (2004), Dominick A. Ricci,
M.D., 58 FR 51,104 (1993); Bobby Watts,
M.D., 53 FR 11,919 (1988). Denial or
revocation is also appropriate when a
state license has been suspended, but
with the possibility of future
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20:54 Jun 06, 2005
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reinstatement. See Paramabaloth Edwin,
M.D., 69 FR 58,540 (2004); Alton E.
Ingram, Jr., M.D., 69 FR 22,562 (2004);
Anne Lazar Thorn, M.D., 62 FR 847
(1997).
Here, it is clear Respondent is not
currently licensed to handle controlled
substances in Illinois, the jurisdiction in
which he has applied for a DEA
registration. Therefore, he is not entitled
to registration in that state.
Accordingly, the Deputy
Administrator of the Drug Enforcement
Administration, pursuant to the
authority vested in her by 21 U.S.C. 823
and 824 and 28 CFR 0.100(b) and 0.104,
hereby orders that the application for a
DEA Certificate of Registration
submitted by Roger A. Rodriguez, M.D.,
be, and it hereby is, denied. This order
is effective July 7, 2005.
Dated: May 25, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05–11243 Filed 6–6–05; 8:45 am]
BILLING CODE 4410–09–M
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Robert A. Smith, M.D., Revocation of
Registration
This order serves as a correction of
the final order previously issued in this
matter and published on May 10, 2005.
On September 29, 2004, the Deputy
Administrator, Drug Enforcement
Administration (DEA), issued an Order
to Show Cause/Immediate Suspension
of Registration to Robert A. Smith, M.D.
(Dr. Smith) who was notified of an
opportunity to show cause as to why
DEA should not revoke his DEA
Certificate of Registration AS6932669
under 21 U.S.C. 824(a)(4) and deny any
pending applications for renewal or
modification of that registration under
21 U.S.C. 823(f). Dr. Smith was further
notified that his registration was being
immediately suspended under 21 U.S.C.
824(d) as an imminent danger to the
public health and safety.
The Order to Show Cause alleged in
relevant part, that Dr. Smith diverted
controlled substances for a substantial
time by knowingly issuing fraudulent
prescriptions to individuals, without a
bona fide doctor-patient relationship or
legitimate medical purpose. The Order
to Show Cause also notified Dr. Smith
that should no request for a hearing be
filed within 30 days, his hearing right
would be deemed waived.
On October 20, 2004, a DEA
investigator personally served the Order
to Show Cause/Immediate Suspension
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33207
of Registration on Dr. Smith’s attorney
at Respondent’s medical office in
Philadelphia, Pennsylvania. Since that
date, DEA has not received a request for
a hearing or any other reply from Dr.
Smith or anyone purporting to represent
him in this matter.
Therefore, the Deputy Administrator
of DEA, finding that (1) thirty days
having passed since personal delivery of
the Order to Show Cause/Immediate
Suspension of Registration to the
registrant and (2) no request for hearing
having been received, concludes that Dr.
Smith is deemed to have waived his
hearing right. See David W. Linder, 67
FR 12,579 (2002). After considering
material from the investigative file in
this matter, the Deputy Administrator
now enters her final order without a
hearing pursuant to 21 CFR 1301.43(d)
and (e) and 1301.46.
The Deputy Administrator finds that
Dr. Smith is registered with DEA as a
practitioner under Certificate of
Registration AS6932669 with a
registered location at 1420 Locust Street,
Suite 200, Philadelphia, Pennsylvania.
In May 2003, DEA began investigating
Dr. Smith as a result of complaints from
area pharmacies that were encountering
large numbers of young, seemingly
healthy individuals, filling prescriptions
issued by Dr. Smith for OxyContin and
Percocet, both schedule II controlled
substances. These individuals paid cash
for their prescriptions and appeared to
be traveling long distances to have them
prescribed and filled.
On June 27, 2003, Independence Blue
Cross (IBC) insurance investigators
interviewed IBC beneficiary ‘‘H.B.’’
regarding prescriptions for OxyContin,
Percocet and Methadone which had
been issued by Dr. Smith under her
name and insurance data. H.B. had
never seen or heard of Dr. Smith and
had no medical conditions warranting
the prescriptions. It was also established
that H.B.’s son’s father, ‘‘M.P.,’’ was a
heroin addict and that M.P.’s sister,
‘‘L.P.,’’ who also had a history of
narcotic’s abuse, worked for Dr. Smith
as his office assistant.
On July 9, 2003, NBC investigators
interviewed ‘‘C.P.,’’ who was L.P.’s
sister. IBC’s records reflected that on
May 10, 2003, Dr. Smith issued
prescriptions for Percocet and
Alprazolam (Xanax), a schedule IV
controlled substance, using C.P.’s name
and policy, which were then paid for by
insurance company. Investigators
determined C.P. had never met or been
examined by Dr. Smith, that she did not
receive the prescriptions written in her
name and had no medical conditions
warranting them.
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Federal Register / Vol. 70, No. 108 / Tuesday, June 7, 2005 / Notices
On November 6, 2003, DEA Diversion
Investigators responded to the Lombard
Apothecary in Philadelphia to interview
‘‘D.N.,’’ who had attempted to fill a
prescription for OxyContin issued by
Dr. Smith using D.N.’s mother’s name
and insurance. D.N. admitted that her
mother had no knowledge of the
prescription and was not a patient of Dr.
Smith. D.N. had asked Dr. Smith to
issue her fraudulent prescriptions, as
she had no medical insurance of her
own. He also had written her a
prescription for OxyContin, using her
brother’s name and insurance data. D.N.
then used the OxyContin to feed her
personal narcotics addiction.
On November 26, 2003, ‘‘J. S.’’ was
interviewed by local law enforcement
authorities, with DEA Diversion
Investigators present. She admitted
receiving seven to ten prescriptions for
OxyContin from Dr. Smith, per visit, on
a weekly basis. These prescriptions
would be written in J.S.’s name, as well
as her father’s and fiancée’s names. She
paid $65.00 per visit and an additional
$100.00, each time, to ensure Dr. Smith
would continue providing her
fraudulent prescriptions. Additionally,
Dr. Smith would ask J.S. for sexual
favors during her office visits. While she
personally declined to fulfill his
requests, as a substitute, she paid
another woman $100.00 to perform a
sexual act upon Dr. Smith. J.S. also
reported that Dr. Smith’s office
assistant, L.P., had provided her blank
prescriptions in return for $40.00 and
OxyContin pills.
Dr. Smith also wrote prescriptions for
‘‘A.D.,’’ who had heard of Respondent’s
‘‘street’’ reputation for providing
controlled substance prescriptions. A.D.
was first seen by Dr. Smith in February
2003 and the only examination involved
measuring A.D.’s blood pressure. In
March and April 2003, Dr. Smith issued
prescriptions for OxyContin and
Percocet, using both A.D.’s and his
wife’s names. In February 2004, Dr.
Smith also wrote ten prescriptions for
A.D. using A.D.’s name, his wife’s name
and a friend’s name.
On February 22, 2004, ‘‘S.K.’’ was
found, apparently unresponsive, by her
mother-in-law, who called 911. S.K.
died of a drug overdose and a few weeks
later S.K.’s mother-in-law contacted
DEA Diversion Investigators and
advised that S.K. had been addicted to
narcotics and Dr. Smith was the source
of her prescriptions. The Philadelphia
Medical Examiner’s Office provided
DEA investigators 31 prescription
bottles recovered from S.K.’s residence.
All of their labels indicated they were
prescribed by Dr. Smith and the
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majority was for schedule II and IV
controlled substances.
On May 20, 2004, a Confidential
Source (CS) was provided $400.00 to
purchase fraudulent prescriptions
written by Dr. Smith. The CS used that
money to obtain twelve separate
prescriptions from an individual who,
in turn, had received them from Dr.
Smith.
On May 27, 2004, Diversion
Investigators interviewed ‘‘J.G.’’ who,
for six or eight months, had been seeing
Dr. Smith on a weekly basis. J.G. would
give Dr. Smith a list of fictitious names
and types of controlled substances he
desired and Dr. Smith would issue three
prescriptions under each name, usually
for Percocet, OxyContin and Xanax. Dr.
Smith issued between nine and fifteen
fraudulent prescriptions for controlled
substances per visit and received
$100.00 for each set of three
prescriptions. J.G. then sold the
prescriptions to a third party who, in
turn, sold the drugs on the street. Dr.
Smith was aware of and knowingly
participated in this scheme.
On June 1, 17 and 19, 2004, a CS
visited Dr. Smith’s medical office. On
each occasion, he obtained fraudulent
prescriptions for Xanax, OxyContin and
Percocet, paying Dr. Smith $500.00 for
fifteen prescriptions, written under five
different fraudulent identities.
On June 29, 2004, Diversion
Investigators were contacted by Family
Meds, a mail order pharmacy in
Connecticut. On June 22, 2004, the
pharmacy received five prescriptions for
controlled substances written by Dr.
Smith for ‘‘M.B.’’ Family Meds had
contacted Dr. Smith, who verified
issuing the prescriptions. However, the
pharmacy ultimately refused to fill them
and verified that on June 6, 2004, M.B.
had filled identical prescriptions issued
by Dr. Smith at another pharmacy.
A review of reports from the
Pennsylvania Attorney General’s Office,
Bureau of Narcotics Investigation and
Drug Control showed that from January
14, 2002, to April 30, 2004, Dr. Smith
issued over 6,500 prescriptions for
schedule II narcotic controlled
substances. These prescriptions
constituted a significant portion of the
total schedule II prescriptions filled in
the Philadelphia and New Jersey area.
Pursuant to 21 U.S.C. 823(f) and
824(a)(4), the Deputy Administrator may
revoke a DEA Certificate of Registration
and deny any pending applications for
renewal of such registration, if she
determines that the continued
registration would be inconsistent with
the public interest. Section 823(f)
requires that the following factors be
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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, and
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 considered in the
disjunctive; the Deputy Administrator
may rely on any one or a combination
of factors and may give each factor the
weight she deems appropriate in
determining whether a registration
should be revoked or an application for
registration denied. See Henry J.
Schwartz, Jr., M.D., 54 FR 16,422 (1989).
As to factor one, the recommendation
of the appropriation state licensing
board or professional disciplinary
authority, there is no evidence in the
investigative file that the State of
Pennsylvania has yet taken adverse
action against Dr. Smith’s medical
license. However, ‘‘inasmuch as State
licensure is a necessary but not
sufficient condition for a DEA
registration* * * this factor is not
dispositive.’’ See Edson W. Redard,
M.D., 65 FR 30,616, 30,619 (2000).
With regard to factors two and four,
Respondent’s experience in handling
controlled substances and his
compliance with applicable controlled
substance laws, the investigative file
contains overwhelming evidence that
Dr. Smith unlawfully prescribed and
diverted controlled substances over an
extensive period of time. He knowingly
prescribed controlled substances to
individuals without bona fide doctorpatient relationships and issued
fraudulent prescriptions destined to
feed the recipient’s personal addiction
or to be sold on the street. He did so in
a calculated manner, for financial gain,
violating multiple state and federal laws
and abysmally failing to meet the
rudimentary responsibilities of a
physician and registrant. Thus, factors
two and four weigh in favor of a finding
that continued registration would be
inconsistent with the public interest.
Factor three, the applicant’s
conviction record under Federal or state
laws relating to the manufacture,
distribution, or dispensing of controlled
substances, is not relevant for
consideration, as there is no evidence
Dr. Smith has yet been convicted of any
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Federal Register / Vol. 70, No. 108 / Tuesday, June 7, 2005 / Notices
crime related to controlled substances.
However, it is noted the investigation
has been provided to Federal authorities
for possible initiation of criminal
charges.
With respect to factor five, other
conduct that may threaten the public
health and safety, Respondent’s actions
discussed above are also relevant under
this factor. The Deputy Administrator is
particularly troubled by Dr. Smith’s
efforts to enrich himself at the expense
of the public health and safety. Not only
has a large quantity of controlled
substances been diverted over an
extensive period of time as a result of
his illegal activities, at least one patient
has died of a drug overdose after taken
medications prescribed by Dr. Smith.
The exact degree of suffering and
costs, both social and economic,
stemming from Dr. Smith’s activities
will never be known. Suffice it to say,
his unprofessional and criminal conduct
has resulted in the diversion of large
quantities of controlled substances in
the Philadelphia area for a lengthy
period of time, with correspondingly
severe consequences for public health
and safety.
In sum, Dr. Smith’s cavalier disregard
for the law and abandonment of his
responsibilities as a physician and
registrant cannot be tolerated. They
weigh, irresistibly, in favor of a finding
that continued registration would not be
in the public interest.
Accordingly, the Deputy
Administrator of the Drug Enforcement
Administration, pursuant to the
authority vested in her by 21 U.S.C. 823
and 28 CFR 0.100(b), and 0.104, hereby
orders that DEA Certificate of
Registration AS6932669, issued to
Robert A. Smith, M.D., be, and it hereby
is, revoked. The Deputy Administrator
further orders that any pending
applications for renewal or modification
of such registration be, and they hereby
are, denied. This order is effective July
7, 2005.
Dated: May 25, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05–11250 Filed 6–6–05; 8:45 am]
BILLING CODE 4410–09–M
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NUCLEAR REGULATORY
COMMISSION
[Docket No. 030–33656]
Notice of Availability of Environmental
Assessment and Finding of No
Significant Impact for License
Amendment for PPD, Inc.’s (formerly
PPD Development and PPD Pharmaco)
Facility in Richmond, VA
Nuclear Regulatory
Commission.
ACTION: Notice of availability.
AGENCY:
John
Nicholson, Commercial and R&D
Branch, Division of Nuclear Materials
Safety, Region I, 475 Allendale Road,
King of Prussia, Pennsylvania, 19406,
telephone (610) 337–5236, fax (610)
337–5269; or by e-mail: jjn@nrc.gov.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. Introduction
The Nuclear Regulatory Commission
(NRC) is issuing a license amendment to
PPD, Inc. for Materials License No. 45–
25314–01, to authorize release of its
facility in Richmond, Virginia for
unrestricted use. NRC has prepared an
Environmental Assessment (EA) in
support of this action in accordance
with the requirements of 10 CFR part
51. Based on the EA, the NRC has
concluded that a Finding of No
Significant Impact (FONSI) is
appropriate. The amendment will be
issued following the publication of this
notice.
II. EA Summary
The purpose of the action is to
authorize the release of the licensee’s
Richmond, Virginia facility for
unrestricted use. PPD, Inc. was
authorized by NRC from November 23,
1994, to use radioactive materials for
research and development purposes at
the site. On November 18, 1997, PPD,
Inc. requested that NRC release the
facility for unrestricted use. PPD, Inc.
has conducted surveys of the facility
and provided information to the NRC to
demonstrate that the site meets the
license termination criteria in subpart E
of 10 CFR part 20 for unrestricted use.
The NRC staff has prepared an EA in
support of the license amendment. The
facility was remediated and surveyed
prior to the licensee requesting the
license amendment. The NRC staff has
reviewed the information and final
status survey submitted by PPD, Inc.
Based on its review, the staff has
determined that there are no additional
remediation activities necessary to
complete the proposed action.
PO 00000
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Fmt 4703
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33209
Therefore, the staff considered the
impact of the residual radioactivity at
the facility and concluded that since the
residual radioactivity meets the
requirements in subpart E of 10 CFR
part 20, a Finding of No Significant
Impact is appropriate.
III. Finding of No Significant Impact
The staff has prepared the EA
(summarized above) in support of the
license amendment to release the
facility for unrestricted use. The NRC
staff has evaluated PPD, Inc.’s request
and the results of the surveys and has
concluded that the completed action
complies with the criteria in subpart E
of 10 CFR part 20. The staff has found
that the radiological environmental
impacts from the action are bounded by
the impacts evaluated by NUREG–1496,
Volumes 1–3, ‘‘Generic Environmental
Impact Statement in Support of
Rulemaking on Radiological Criteria for
License Termination of NRC-Licensed
Facilities’’ (ML042310492,
ML042320379, and ML042330385). The
staff also found that the non-radiological
impacts are not significant. On the basis
of the EA, the NRC has concluded that
the environmental impacts from the
action are expected to be insignificant
and has determined not to prepare an
environmental impact statement for the
action.
IV. Further Information
Documents related to this action,
including the application for the license
amendment and supporting
documentation, are available
electronically at the NRC’s Electronic
Reading Room at https://www.nrc.gov/
reading-rm/adams.html. From this site,
you can access the NRC’s Agencywide
Document Access and Management
System (ADAMS), which provides text
and image files of NRC’s public
documents. The ADAMS accession
numbers for the documents related to
this notice are: The Environmental
Assessment [ML051510116], NRC
Inspection Report No. 45–25314–01/98–
01 [ML050450536] and Final
Radiological Survey Report for 2246C
Dabney Circle dated October 1997
prepared by RSO, Inc., for PPD
Pharmaco [ML050450524]. Persons who
do not have access to ADAMS or who
encounter problems in accessing the
documents located in ADAMS, should
contact the NRC PDR Reference staff by
telephone at (800) 397–4209 or (301)
415–4737, or by e-mail to pdr@nrc.gov.
Documents related to operations
conducted under this license not
specifically referenced in this notice
may not be electronically available
and/or may not be publicly available.
E:\FR\FM\07JNN1.SGM
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]]>Agencies
[Federal Register Volume 70, Number 108 (Tuesday, June 7, 2005)]
[Notices]
[Pages 33207-33209]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-11250]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Robert A. Smith, M.D., Revocation of Registration
This order serves as a correction of the final order previously
issued in this matter and published on May 10, 2005. On September 29,
2004, the Deputy Administrator, Drug Enforcement Administration (DEA),
issued an Order to Show Cause/Immediate Suspension of Registration to
Robert A. Smith, M.D. (Dr. Smith) who was notified of an opportunity to
show cause as to why DEA should not revoke his DEA Certificate of
Registration AS6932669 under 21 U.S.C. 824(a)(4) and deny any pending
applications for renewal or modification of that registration under 21
U.S.C. 823(f). Dr. Smith was further notified that his registration was
being immediately suspended under 21 U.S.C. 824(d) as an imminent
danger to the public health and safety.
The Order to Show Cause alleged in relevant part, that Dr. Smith
diverted controlled substances for a substantial time by knowingly
issuing fraudulent prescriptions to individuals, without a bona fide
doctor-patient relationship or legitimate medical purpose. The Order to
Show Cause also notified Dr. Smith that should no request for a hearing
be filed within 30 days, his hearing right would be deemed waived.
On October 20, 2004, a DEA investigator personally served the Order
to Show Cause/Immediate Suspension of Registration on Dr. Smith's
attorney at Respondent's medical office in Philadelphia, Pennsylvania.
Since that date, DEA has not received a request for a hearing or any
other reply from Dr. Smith or anyone purporting to represent him in
this matter.
Therefore, the Deputy Administrator of DEA, finding that (1) thirty
days having passed since personal delivery of the Order to Show Cause/
Immediate Suspension of Registration to the registrant and (2) no
request for hearing having been received, concludes that Dr. Smith is
deemed to have waived his hearing right. See David W. Linder, 67 FR
12,579 (2002). After considering material from the investigative file
in this matter, the Deputy Administrator now enters her final order
without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
The Deputy Administrator finds that Dr. Smith is registered with
DEA as a practitioner under Certificate of Registration AS6932669 with
a registered location at 1420 Locust Street, Suite 200, Philadelphia,
Pennsylvania. In May 2003, DEA began investigating Dr. Smith as a
result of complaints from area pharmacies that were encountering large
numbers of young, seemingly healthy individuals, filling prescriptions
issued by Dr. Smith for OxyContin and Percocet, both schedule II
controlled substances. These individuals paid cash for their
prescriptions and appeared to be traveling long distances to have them
prescribed and filled.
On June 27, 2003, Independence Blue Cross (IBC) insurance
investigators interviewed IBC beneficiary ``H.B.'' regarding
prescriptions for OxyContin, Percocet and Methadone which had been
issued by Dr. Smith under her name and insurance data. H.B. had never
seen or heard of Dr. Smith and had no medical conditions warranting the
prescriptions. It was also established that H.B.'s son's father,
``M.P.,'' was a heroin addict and that M.P.'s sister, ``L.P.,'' who
also had a history of narcotic's abuse, worked for Dr. Smith as his
office assistant.
On July 9, 2003, NBC investigators interviewed ``C.P.,'' who was
L.P.'s sister. IBC's records reflected that on May 10, 2003, Dr. Smith
issued prescriptions for Percocet and Alprazolam (Xanax), a schedule IV
controlled substance, using C.P.'s name and policy, which were then
paid for by insurance company. Investigators determined C.P. had never
met or been examined by Dr. Smith, that she did not receive the
prescriptions written in her name and had no medical conditions
warranting them.
[[Page 33208]]
On November 6, 2003, DEA Diversion Investigators responded to the
Lombard Apothecary in Philadelphia to interview ``D.N.,'' who had
attempted to fill a prescription for OxyContin issued by Dr. Smith
using D.N.'s mother's name and insurance. D.N. admitted that her mother
had no knowledge of the prescription and was not a patient of Dr.
Smith. D.N. had asked Dr. Smith to issue her fraudulent prescriptions,
as she had no medical insurance of her own. He also had written her a
prescription for OxyContin, using her brother's name and insurance
data. D.N. then used the OxyContin to feed her personal narcotics
addiction.
On November 26, 2003, ``J. S.'' was interviewed by local law
enforcement authorities, with DEA Diversion Investigators present. She
admitted receiving seven to ten prescriptions for OxyContin from Dr.
Smith, per visit, on a weekly basis. These prescriptions would be
written in J.S.'s name, as well as her father's and fiancée's names.
She paid $65.00 per visit and an additional $100.00, each time, to
ensure Dr. Smith would continue providing her fraudulent prescriptions.
Additionally, Dr. Smith would ask J.S. for sexual favors during her
office visits. While she personally declined to fulfill his requests,
as a substitute, she paid another woman $100.00 to perform a sexual act
upon Dr. Smith. J.S. also reported that Dr. Smith's office assistant,
L.P., had provided her blank prescriptions in return for $40.00 and
OxyContin pills.
Dr. Smith also wrote prescriptions for ``A.D.,'' who had heard of
Respondent's ``street'' reputation for providing controlled substance
prescriptions. A.D. was first seen by Dr. Smith in February 2003 and
the only examination involved measuring A.D.'s blood pressure. In March
and April 2003, Dr. Smith issued prescriptions for OxyContin and
Percocet, using both A.D.'s and his wife's names. In February 2004, Dr.
Smith also wrote ten prescriptions for A.D. using A.D.'s name, his
wife's name and a friend's name.
On February 22, 2004, ``S.K.'' was found, apparently unresponsive,
by her mother-in-law, who called 911. S.K. died of a drug overdose and
a few weeks later S.K.'s mother-in-law contacted DEA Diversion
Investigators and advised that S.K. had been addicted to narcotics and
Dr. Smith was the source of her prescriptions. The Philadelphia Medical
Examiner's Office provided DEA investigators 31 prescription bottles
recovered from S.K.'s residence. All of their labels indicated they
were prescribed by Dr. Smith and the majority was for schedule II and
IV controlled substances.
On May 20, 2004, a Confidential Source (CS) was provided $400.00 to
purchase fraudulent prescriptions written by Dr. Smith. The CS used
that money to obtain twelve separate prescriptions from an individual
who, in turn, had received them from Dr. Smith.
On May 27, 2004, Diversion Investigators interviewed ``J.G.'' who,
for six or eight months, had been seeing Dr. Smith on a weekly basis.
J.G. would give Dr. Smith a list of fictitious names and types of
controlled substances he desired and Dr. Smith would issue three
prescriptions under each name, usually for Percocet, OxyContin and
Xanax. Dr. Smith issued between nine and fifteen fraudulent
prescriptions for controlled substances per visit and received $100.00
for each set of three prescriptions. J.G. then sold the prescriptions
to a third party who, in turn, sold the drugs on the street. Dr. Smith
was aware of and knowingly participated in this scheme.
On June 1, 17 and 19, 2004, a CS visited Dr. Smith's medical
office. On each occasion, he obtained fraudulent prescriptions for
Xanax, OxyContin and Percocet, paying Dr. Smith $500.00 for fifteen
prescriptions, written under five different fraudulent identities.
On June 29, 2004, Diversion Investigators were contacted by Family
Meds, a mail order pharmacy in Connecticut. On June 22, 2004, the
pharmacy received five prescriptions for controlled substances written
by Dr. Smith for ``M.B.'' Family Meds had contacted Dr. Smith, who
verified issuing the prescriptions. However, the pharmacy ultimately
refused to fill them and verified that on June 6, 2004, M.B. had filled
identical prescriptions issued by Dr. Smith at another pharmacy.
A review of reports from the Pennsylvania Attorney General's
Office, Bureau of Narcotics Investigation and Drug Control showed that
from January 14, 2002, to April 30, 2004, Dr. Smith issued over 6,500
prescriptions for schedule II narcotic controlled substances. These
prescriptions constituted a significant portion of the total schedule
II prescriptions filled in the Philadelphia and New Jersey area.
Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy
Administrator may revoke a DEA Certificate of Registration and deny any
pending applications for renewal of such registration, if she
determines that the continued 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, and 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 considered in the disjunctive; the Deputy
Administrator may rely on any one or a combination of factors and may
give each factor the weight she deems appropriate in determining
whether a registration should be revoked or an application for
registration denied. See Henry J. Schwartz, Jr., M.D., 54 FR 16,422
(1989).
As to factor one, the recommendation of the appropriation state
licensing board or professional disciplinary authority, there is no
evidence in the investigative file that the State of Pennsylvania has
yet taken adverse action against Dr. Smith's medical license. However,
``inasmuch as State licensure is a necessary but not sufficient
condition for a DEA registration* * * this factor is not dispositive.''
See Edson W. Redard, M.D., 65 FR 30,616, 30,619 (2000).
With regard to factors two and four, Respondent's experience in
handling controlled substances and his compliance with applicable
controlled substance laws, the investigative file contains overwhelming
evidence that Dr. Smith unlawfully prescribed and diverted controlled
substances over an extensive period of time. He knowingly prescribed
controlled substances to individuals without bona fide doctor-patient
relationships and issued fraudulent prescriptions destined to feed the
recipient's personal addiction or to be sold on the street. He did so
in a calculated manner, for financial gain, violating multiple state
and federal laws and abysmally failing to meet the rudimentary
responsibilities of a physician and registrant. Thus, factors two and
four weigh in favor of a finding that continued registration would be
inconsistent with the public interest.
Factor three, the applicant's conviction record under Federal or
state laws relating to the manufacture, distribution, or dispensing of
controlled substances, is not relevant for consideration, as there is
no evidence Dr. Smith has yet been convicted of any
[[Page 33209]]
crime related to controlled substances. However, it is noted the
investigation has been provided to Federal authorities for possible
initiation of criminal charges.
With respect to factor five, other conduct that may threaten the
public health and safety, Respondent's actions discussed above are also
relevant under this factor. The Deputy Administrator is particularly
troubled by Dr. Smith's efforts to enrich himself at the expense of the
public health and safety. Not only has a large quantity of controlled
substances been diverted over an extensive period of time as a result
of his illegal activities, at least one patient has died of a drug
overdose after taken medications prescribed by Dr. Smith.
The exact degree of suffering and costs, both social and economic,
stemming from Dr. Smith's activities will never be known. Suffice it to
say, his unprofessional and criminal conduct has resulted in the
diversion of large quantities of controlled substances in the
Philadelphia area for a lengthy period of time, with correspondingly
severe consequences for public health and safety.
In sum, Dr. Smith's cavalier disregard for the law and abandonment
of his responsibilities as a physician and registrant cannot be
tolerated. They weigh, irresistibly, in favor of a finding that
continued registration would not be in the public interest.
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in her by 21 U.S.C.
823 and 28 CFR 0.100(b), and 0.104, hereby orders that DEA Certificate
of Registration AS6932669, issued to Robert A. Smith, M.D., be, and it
hereby is, revoked. The Deputy Administrator further orders that any
pending applications for renewal or modification of such registration
be, and they hereby are, denied. This order is effective July 7, 2005.
Dated: May 25, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05-11250 Filed 6-6-05; 8:45 am]
BILLING CODE 4410-09-M
