William R. Lockridge, M.D. Affirmance of Immediate Suspension of Registration, 77791-77800 [E6-22105]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 71, Number 248 (Wednesday, December 27, 2006)]
[Notices]
[Pages 77791-77800]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-22105]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 04-48]


William R. Lockridge, M.D. Affirmance of Immediate Suspension of 
Registration

Introduction and Procedural History

    On May 17, 2004, I, the Deputy Administrator of the Drug 
Enforcement Administration, issued an Order to Show Cause and Notice of 
Immediate Suspension of the practitioner's Certificate of Registration, 
BL6779005, held by William R. Lockridge, M.D. (Respondent), of Wayne, 
N.J. The Notice of Immediate Suspension was based upon my preliminary 
finding that Respondent was ``responsible for the diversion of large 
quantities of controlled substances'' by writing prescriptions for 
controlled substances that were issued on behalf of persons he never 
physically examined and which thus lacked a ``legitimate medical 
purpose.'' Order to Show Cause at 9. Based on this finding, I concluded 
that Respondent's continued registration ``constitute[d] an imminent 
danger to the public health and safety because of

[[Page 77792]]

the substantial likelihood that [he] would continue to divert 
controlled substances.'' Id. at 10.
    More specifically, the Show Cause Order alleged that a Pennsylvania 
State Pharmacy Inspector had conducted an inspection of an Internet 
pharmacy, CMC Pharmacy (CMC), and determined that a ``significant 
portion of'' the controlled substances prescriptions dispensed by CMC 
were issued by Respondent. Id. at 5. The Show Cause Order alleged that 
a DEA Diversion Investigator (DI) had interviewed a drug-dependent 
person who informed the DI that he had obtained prescriptions for 
Schedule III and IV controlled substances such as Lortab and Xanax from 
Respondent based on a telephone interview and a falsified medical 
record. See id. at 5-6. The Order further alleged that this person told 
the DI that several of his acquaintances had also obtained 
prescriptions for controlled substances from Respondent and CMC 
although they had no legitimate medical need for the drugs. See id. at 
6.
    The Show Cause Order also alleged that the DI subsequently 
contacted CMC regarding the purchase of controlled substances from it, 
and was told that in order to do so, he was required to register as a 
patient of the Southwest Medical Group (SMG). See id. The Show Cause 
Order alleged that the DI, using an undercover persona, registered as a 
patient with SMG and faxed to it a fabricated medical record which 
stated that he had shoulder pain but did not indicate that he had ever 
been prescribed controlled substances for the condition. See id. at 7.
    The Show Cause Order next alleged that the DI subsequently 
completed an online questionnaire and obtained an appointment for a 
telephonic consultation with Respondent. See id. at 8. The Show Cause 
Order alleged that the DI called Respondent and that during the 
conversation Respondent asked him why he was requesting Vicodin. See 
id. The Show Cause Order alleged that the DI told Respondent that he 
had bought the drug from a friend and that he needed it because he was 
a truck driver and had to turn his truck's steering wheel. See id. The 
Show Cause Order alleged that Respondent then suggested a prescription 
for 120 ten mg. tablets of Vicodin with two refills, and ultimately 
prescribed the drug. See id.
    The Show Cause Order further alleged that Respondent then asked the 
DI whether there was anything else he could do for him. See id. 
According to the Show Cause Order, after the DI informed Respondent 
that he was nervous because he had just been given a contract to haul 
dynamite, Respondent prescribed 120 two mg. tablets of alprazolam with 
two refills. See id. The Show Cause Order thus alleged that both 
prescriptions were issued without a legitimate medical purpose and 
without a legitimate medical examination. See id. at 8-9.
    Next, the Show Cause Order alleged that Respondent told the DI that 
the prescription had been forwarded to CMC. See id. at 9. The Show 
Cause Order also alleged that the DI was charged $ 115 for Respondent's 
services, which was payable to SMG. See id. The Show Cause Order 
alleged that the DI subsequently received 120 tablets of 10 mg. 
hydrocodone and 120 tablets of 2 mg. alprazolam, for which he paid $ 
261. See id.
    Finally, the Show Cause Order alleged that ``nearly all'' of the 
controlled substance prescriptions that were filled by CMC were issued 
by Respondent through the SMG. See id. The Show Cause further alleged 
that over a one year period, Respondent was responsible for dispensing 
more than 2,316,300 dosage units of hydrocodone-based drugs ``via the 
Internet, for no legitimate medical purpose and without the benefit of 
a * * * legitimate medical examination.'' See id.
    DEA DIs initially attempted to serve the Show Cause Order and 
Immediate Suspension on Respondent at his registered location of 1777 
Hamburg Turnpike, Suite 202, Wayne, N.J. However, upon their arrival at 
this address, the DIs were told that Respondent had not practiced there 
for the past four years. See ALJ at 4. Thereafter, DI Conlon, who had 
conducted the investigation, contacted Respondent using a phone number 
from SMG's Web site which was for a Florida address. See id. The DI 
instructed Respondent that his registration had been immediately 
suspended and subsequently, DIs from Florida served Respondent with the 
Order to Show Cause and Immediate Suspension. See id.
    Thereafter, Respondent timely requested a hearing. The matter was 
assigned to Administrative Law Judge (ALJ) Gail Randall, who conducted 
a hearing in Pittsburgh, Pa., on October 26 and 27, 2004. At the 
hearing, the Government elicited the testimony of six witnesses and 
introduced numerous exhibits. Respondent rested without putting on a 
case. Thereafter, both parties submitted post-hearing briefs.
    On November 18, 2005, the ALJ issued her decision. The ALJ 
concluded that the Government had proved by a preponderance of the 
evidence that the revocation of Respondent's registration was in the 
public interest and recommended that I revoke Respondent's 
registration. See ALJ at 42-43. Neither party filed exceptions.
    Having carefully reviewed the record as a whole, I hereby issue 
this decision and final order. I adopt the ALJ's findings of fact and 
conclusions of law in their entirety. Because Respondent's registration 
has since expired and Respondent did not submit a renewal application, 
I do not adopt the ALJ's recommendation that Respondent's registration 
be revoked. I do, however, affirm the immediate suspension of 
Respondent's registration and make the following findings.

Findings of Fact

    Respondent is a medical doctor who at the time of the hearing held 
medical licenses in the States of New Jersey and New York. See ALJ at 
4. Respondent did not, however, hold a medical license in the State of 
Florida. See id.
    At the time of the hearing, Respondent held DEA Certificate of 
Registration, BL6779005, with an expiration date of March 31, 2006. I 
take official notice of the fact that Respondent has not submitted an 
application to renew his Certificate of Registration.
    Respondent's registered location was: Associates in Women's Health, 
1777 Hamburg Turnpike, Suite 202, Wayne, N.J. See Gov. Ex. 1. 
Respondent had not, however, practiced at this location for at least 
four years prior to the May 2004 service of the Order to Show Cause. 
ALJ at 4. Moreover, pursuant to 5 U.S.C. 557(e), I take official notice 
of the records of the New Jersey Division of Consumer Affairs, which 
indicate that Respondent's N.J. medical license expired on June 30, 
2005.\1\
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    \1\ Under the Administrative Procedure Act (APA), an agency 
``may take official notice of facts at any stage in a proceeding-
even in the final decision.'' U.S. Dept. of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and 
DEA's regulations, Respondent is ``entitled on timely request, to an 
opportunity to show to the contrary.'' 5 U.S.C. 556(e); see also 21 
CFR 1316.59(e). To allow Respondent the opportunity to refute the 
facts of which I am taking official notice, publication of this 
final order shall be withheld for fifteen days, which shall begin on 
the date of service by placing this order in the mail.
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    Respondent did not hold a DEA Certificate of Registration for 
either of the two Florida addresses he used during the 2003 through 
2004 time frame. See Tr. 236; Gov. Ex. 2 (printout of registration 
status); Gov. Ex. 8 (N.J. and N.Y. medical licenses listing 
Respondent's address as 2555 PGA Blvd.,  157, Palm Beach 
Gardens, Fl. 33410); Gov. Ex. 10 (Letter of June 28, 2003, from 
Respondent to Mr. Dave

[[Page 77793]]

Schwartzenberger of SMG, using 2555 PGA Blvd. address); Gov. Ex. 24 (Rx 
forms listing Respondent's address as 461 Surfside Lane, Juno, Fl.). 
Respondent was living in Juno Beach, Florida, when he was finally 
served with the Order to Show Cause and Immediate Suspension. See Gov. 
Ex. 6 (Return Receipt Card signed by Respondent on June 2, 2004, using 
Juno Beach address).
    In October 2003, a DI assigned to the Pittsburgh field office 
received information that CMC and Respondent were using the Internet to 
distribute controlled substances. ALJ at 5. While CMC was the initial 
focus of the investigation, at some point thereafter, a Pennsylvania 
State Pharmacy Inspector informed the DI that a high volume of CMC's 
prescriptions were for hydrocodone combination drugs (which are 
Schedule III controlled substances, see 21 CFR 1308.13(e)), and various 
benzodiazepines such as diazepam and alprazolam (which are Schedule IV 
controlled substances, see 21 CFR 1308.14(c)), and that ``the vast 
majority of the prescriptions'' filled by CMC were written by 
Respondent. Tr. 343, 359.
    On March 25, 2004, the DI phoned CMC to find out how the ``scheme 
worked.'' Tr. 238. During that conversation, the DI was told by an 
unidentified person at CMC that the pharmacy worked with SMG and that 
SMG ``set up the doctor consults.'' Tr. 240; see also Gov. Ex. 3. The 
DI was then given SMG's phone number. See Tr. 240.
    Later that day, the DI called SMG and spoke with a person named Sam 
about obtaining prescriptions from CMC. Id. at 241. Sam told the DI to 
go to SMG's Web site and follow the posted instructions to register 
with it. Id. at 241-42.
    Thereafter, the DI, using the undercover persona of John Dearing, 
went to SMG's ``New Patient Registration'' webpage and completed the 
form. On the form, the DI gave both e-mail and street addresses, his 
date of birth, phone number and indicated that his medical condition 
was a ``problem with shoulder.'' Gov. Ex. 12. The webpage stated: 
``Before completing this form please make sure you have your medical 
records or release form and a legible copy of your government issued 
identification ready to fax upon completion of this registration 
form.'' Id.
    To comply with this requirement, the DI created a false medical 
record which indicated that he had been treated for neck pain and flu-
like symptoms with over-the-counter drugs such as Tylenol and Motrin 
during several office visits. See Gov. Ex. 14; Tr. 246. The document 
also contained a reference to spasms and exterior and lateral 
extension. See Gov. Ex. 14; Tr. 246. Finally, the document did not 
include the name, address and phone number of a physician. See Gov. 
Exh. 14. The DI also created a fictitious photo identification by 
altering his driver's license. Tr. 243. The DI subsequently faxed both 
items to SMG. See Gov. Ex. 16.
    Several hours later, the DI received an e-mail from SMG which 
congratulated him on his registration and provided him with a patient 
identification number. See Gov. Ex. 17. The e-mail also instructed the 
DI to visit the southwestmedicalgroup.com webpage to ``to secure an 
appointment for a physician consultation.'' Id.
    Thereafter, on April 7, 2004, the DI returned to the SMG Web site 
and completed a ``repeat patient medical history form'' even though 
``he was a new customer.'' ALJ at 8, Gov. Ex. 18, at 50. On this form, 
the DI was asked whether he was ``requesting a specific 
Medication(s)?.'' Gov. Ex. 18, at 50. The DI indicated ``yes,'' and 
that he was requesting ``Vicodin 10 mg'' for a ``shoulder'' condition. 
See id. The DI further indicated that he had ``taken Vikes before with 
no side effects.'' Id. Vikes is a street name for Vicodin. ALJ at 8.
    The DI also selected a time for a ``consultation'' with Respondent; 
the DI was subsequently instructed to call Respondent at 11:10 AM the 
next day and was given Respondent's name and a Florida phone number. 
See Gov. Ex. 18, at 60.
    At the appointed time, the DI called Respondent. During this 
conversation, Respondent asked the DI what he wanted; the DI told 
Respondent that he wanted Vicodin. While Respondent was aware that the 
DI had indicated that he had a shoulder problem, he did not ask the DI 
whether he was in pain and the DI did not say that he ``had any pain.'' 
Tr. 255-56. The DI also told Respondent that he had been getting 
Vicodin from friends but had just found out that it was illegal to do 
so. Gov. Ex. 4. Respondent replied that it was illegal to obtain the 
drug from friends and that a doctor had to prescribe it. See Tr. 300. 
Respondent then asked the DI ``how many [he] wish[ed] to purchase?''; 
the DI replied ``120.'' Id. Respondent then agreed to prescribe 120 
Vicodin tablets with two refills. See id.
    Respondent then asked whether there was ``anything else [he] could 
do'' for the DI. Id. at 301. The DI told Respondent that he was 
``nervous'' because he was going through a divorce and had just gotten 
a contract to haul dynamite. Id. Respondent then asked the DI ``[w]hat 
would you like for your nerves?,'' and offered to prescribe ``either 
Xanax or Valium.'' Id. The DI eventually asked for Valium and requested 
that the prescription coincide with the Vicodin so that they would 
``run out at the same time.'' Id. at 302. Respondent then told the DI 
that he would authorize a prescription for 120 Valium tablets with two 
refills. Id.\2\
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    \2\ The DI attempted to record this conversation, but the 
recording device did not pick up Respondent's voice. The DI 
subsequently called Respondent again to recapture the substance of 
the first conversation. See Tr. 303. The transcript of that 
conversation confirms that Respondent prescribed 120 tablets of both 
Vicodin and diazepam, with two refills for each drug, for the DI. 
See Gov. Ex. 4, at 9-10. In that conversation, Respondent also told 
the DI that the fee for the consultation (which was $ 115) should be 
paid to SMG. Id. at 9. The DI subsequently sent a postal money order 
to SMG. See Gov. Ex. 20, at 66 & 68. Respondent also informed the DI 
that CMC would bill him separately for the drugs. Tr. 302.
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    Respondent did not take a complete medical history from the DI, and 
obviously did not perform a physical exam. See ALJ at 12 (citing Tr. 
256-58). He did not order medical testing, and did not discuss with the 
DI either the risks and benefits of taking the drugs he prescribed or 
the availability of alternative treatments. See id. Moreover, 
Respondent did not ask the DI whether he was seeing other physicians or 
using other online pharmacies. See id. Finally, Respondent did not 
discuss the contents of the ``medical record'' the DI had submitted and 
did not establish a treatment plan or a timetable for taking the drugs. 
See id.
    On April 22, 2004, the DI faxed to SMG a copy of the postal money 
order paying for the consultation. See Gov. Ex. 20. Later that day, SMG 
sent an e-mail to the DI providing him with a United Parcel Service 
tracking number and instructing him that the drugs were being shipped 
COD and that the ``total for all pharmacy services (medication, 
shipping and handling) [was] $ 261.'' See Gov. Ex. 21. The e-mail also 
gave instructions for ordering refills and stated that: ``You will NOT 
be able to refill your prescription at any local pharmacy. You must 
order your refill through the Southwest Medical Group Web site only.'' 
Id. The ALJ also found that CMC ``did not accept any form of insurance 
as payment for medications.'' ALJ at 9 (citing Tr. 335).
    Thereafter, the DI obtained both drugs from CMC along with an 
invoice that indicated the details of each prescription and listed 
Respondent as the prescribing physician. See Gov. Ex. 22. Moreover, on 
May 19, 2004, during the execution of a search warrant at CMC, copies 
of the prescriptions which Respondent wrote for the DI were retrieved. 
See Gov. Ex. 24; Tr. 325. The

[[Page 77794]]

heading of the forms gave Respondent's name and his address as his 
Juno, Florida residence. See Gov. Ex. 24. The forms also listed 
Respondent's New Jersey medical license number and the DEA number for 
his former office in Wayne, N.J. See id., see also Gov. Ex. 8.
    During the search of CMC, the Government seized the pharmacy's 
computer database and retrieved from it patient and prescription 
information. Tr. 328-29; Gov. Exs. 25-30. The ALJ specifically found 
that Respondent wrote ``the vast majority of [the] prescriptions filled 
by CMC.'' See ALJ at 10. This finding is supported by substantial 
evidence. See Tr. 328; Gov. Exs. 27-30.
    Moreover, the Government compiled a list of CMC's customers by 
their State. CMC filled prescriptions for customers located ``in 
virtually every [S]tate.'' ALJ at 11, see also Gov. Ex. 25. Indeed, CMC 
filled prescriptions for customers in such far-off places as Alaska, 
Hawaii and Washington State. See id. The Government also compiled a 467 
page list of the prescriptions filled by CMC between July 1, 2003, and 
May 11, 2004, which includes the patient's name, the prescribing 
physician's name, the drug, and the quantity. See Gov. Exhs. 28 & 30; 
see also Gov. Exhs. 27 & 29. Based on this evidence, I further find 
that the overwhelming majority of the prescriptions Respondent issued 
(and CMC dispensed) were for controlled substances.
    The Government also submitted into evidence an analysis of the 
prescriptions Respondent wrote and CMC dispensed for the drugs 
alprazolam, diazepam, hydrocodone and Lortab (a branded drug that 
combines acetaminophen and hydrocodone). See Gov. Ex. 65. During the 
last six months of 2003, Respondent wrote 1,207 prescriptions for 
alprazolam (for a total of 115,400 dosage units) and 1,140 
prescriptions for diazepam (for a total of 71,811 dosage units). See 
id. During the portion of 2004 in which CMC remained in business,\3\ 
Respondent wrote 2,519 prescriptions for alprazolam (for a total of 
245,130 dosage units) and 1,806 prescriptions for diazepam (for a total 
of 126,925 dosage units). See id.
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    \3\ While the document states that the data covered the 
``[f]irst 5 months of 2004,'' in fact, the last date that the data 
was available for was May 11, 2004. See Gov. Ex. 65. CMC was shut 
down following the execution of the search warrant.
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    During the last six months of 2003, Respondent wrote 7,939 
prescriptions for hydrocodone (for a total of 1,021,146 dosage units) 
and 44 prescriptions for Lortab (for a total of 5,730 dosage units). 
See id. During the period of 2004 in which CMC remained in business, 
Respondent wrote 14,129 prescriptions for hydrocodone (for a total of 
1,840,355 dosage units) and 97 prescriptions for Lortab (for a total of 
12,330 dosage units). See id. Finally, the analysis found that on May 
10, 2004, and May 11, 2004 (the last two days for which there was 
data), CMC filled respectively 358 and 242 prescriptions for controlled 
substances that were written by Respondent. Id.
    On October 15, 2004, the Government also executed a search warrant 
at Respondent's residence. The only documents found were scheduling 
charts. No patient records were found. Tr. 407.
    The Government also called three other persons who testified as to 
the circumstances surrounding their obtaining prescriptions for 
controlled substances from Respondent. Mr. A.W. testified that he 
submitted a medical record, on which he altered the date; the record 
had been prepared by a physician, who had since died, and contained the 
physician's name, address and phone number. Id. at 24-26. A.W. gave 
testimony consistent with that of the DI as to the process required to 
register with SMG. Id. at 28-33. A.W. further testified that upon 
receiving his identification number and password, he went to the 
``repeat patient medical history form'' and requested a prescription 
for Xanax (alprazolam) and Norco, a product containing hydrocodone and 
acetaminophen. Id. at 33-34.
    A.W. obtained a time for a phone consultation with Respondent and 
called him. Id. at 40. As a result of the consultation, which lasted 
``no more than four or five minutes,'' Respondent prescribed for A.W. a 
month's supply of both hydrocodone and Xanax with two refills. Id. at 
33-34, 41.
    A.W. had several additional ``consultations'' with Respondent at 
three month intervals, each of which lasted approximately four to five 
minutes. Id. at 41. The conversations typically involved Respondent 
asking A.W. how he was feeling, whether everything was o.k., whether he 
wanted the same drugs, and if there was anything else Respondent could 
do for him. Id. at 42. Respondent never required A.W. to submit any 
other medical records to him. Id.
    Moreover, Respondent never asked A.W. if he had previously been 
addicted to drugs, never took a medical history, and never asked what 
drugs he had previously taken or what other drugs he was then taking. 
See ALJ at 23 (citing Tr. 42-43). Most significantly, Respondent never 
performed a physical exam on A.W. and did not require that he obtain a 
physical exam from another physician. Tr. 43. Furthermore, A.W. never 
saw Respondent ``in person.'' Id. at 43. Respondent also never 
suggested alternative treatments for A.W.'s condition, and other than 
to mention that the drugs he prescribed could be addictive, never 
discussed the benefits and risks of taking controlled substances. Id. 
at 44.
    A.W. further testified that all of the prescriptions written for 
him by Respondent were filled by CMC, id. at 52, that he was not 
allowed to have the prescriptions filled at another pharmacy, and that 
he could not use his insurance to pay for the drugs and instead had to 
pay with cash. Id. at 97-98. According to the data obtained during the 
search of CMC, A.W. received from CMC prescriptions for 140 hydrocodone 
tablets and 60 alprazolam tablets, which were authorized by Respondent 
on a monthly basis from October 2003 through April 2004. See Govt. Ex. 
27, at 5-6. A.W. further testified that the 140 hydrocodone tablets he 
received each month ``was more than any doctor ever gave'' him in his 
entire life. Tr. 44. A.W. also testified that he was addicted to drugs 
when he became a ``patient'' of SMG. Id. at 84. I credit A.W.'s 
testimony.
    The Government also called as a witness Ms. B.B. I, like the ALJ, 
credit her testimony.
    Consistent with the testimony of the DI and A.W., B.B. testified 
that she registered with SMG by going to its Web site and completing 
its new patient registration form and submitting a copy of her driver's 
license and medical records. See ALJ at 25-26. B.B.'s medical record 
indicated that she had been treated by a chiropractor for ``tennis 
elbow'' with heat therapy and ``electrolysis.'' Tr. 123, 132. The 
medical record did not indicate that B.B. had been treated with 
controlled substances, and the chiropractor had not prescribed 
controlled substances for her condition. See ALJ at 26 (citing Tr. 131-
32).
    In completing SMG's ``repeat patient medical history form,'' B.B. 
requested a prescription for hydrocodone 10/500 to treat her condition. 
See id. (citing Tr. 135-36). B.B. then selected a time for her 
consultation with Respondent. See id. (citing Tr. 137). After the first 
consultation, Respondent prescribed 90 hydrocodone tablets for B.B. See 
id. at 27 (citing Tr. 140 & 142).\4\ B.B. had three

[[Page 77795]]

consultations with Respondent, each of which lasted for two to ``three 
minutes tops.'' Tr. 139. According to B.B., the consultations involved 
Respondent asking her ``what can I do for you, what do you need?'' Id. 
While Respondent and B.B. did discuss her condition, id. at 144, after 
B.B. told Respondent what she wanted, Respondent ``always ask[ed] is 
there anything else I can do for you or get for you?'' Id. at 139. The 
ALJ further found that ``B.B. credibly testified that every time she 
talked to the Respondent, she got the controlled substances she 
requested.'' ALJ at 27 (citing Tr. 147).
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    \4\ TDI Pharmacy initially filled the prescriptions B.B. 
obtained from Respondent. ALJ at 28 (citing Tr. 147-48). At some 
point thereafter, CMC started filling the prescriptions B.B. 
obtained from Respondent. See id. (citing Tr. 147-48).
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    B.B. testified that following the first consultation she found out 
from an Internet message board that Respondent was giving other persons 
prescriptions for 120 hydrocodone tablets. Id. (citing Tr. 142-43). 
B.B. subsequently asked Respondent to increase her prescription and 
Respondent did so. Id. (citing Tr. 142-43).
    B.B. testified that she never saw Respondent ``face to face,'' that 
Respondent never performed a physical exam on her, and never took a 
complete medical history. Tr. 125. Moreover, Respondent never ordered 
any medical tests (such as an x-ray or mri) or asked her to submit any 
previous test results. Id. at 125-26. Respondent also did not discuss 
with B.B. alternative treatments or the benefits and risks of taking 
controlled substances. Id. at 126. Nor did Respondent discuss with B.B. 
a timetable for her use of controlled substances. Id. Respondent also 
never asked B.B. if she was obtaining prescriptions from another doctor 
or using other Internet pharmacies. Id. at 180. Finally, Respondent 
never asked B.B. whether she had previously been addicted. Id.
    B.B. paid SMG a fee of $ 120.00 for these consultations. Id. at 
133. B.B. further testified that Respondent never gave her a paper 
prescription that she could take to another pharmacy. Id. at 148-49.
    B.B. testified that at the same time that she was obtaining 
prescriptions from Respondent, she was able to obtain hydrocodone from 
ten other Internet pharmacies and was taking ``up to 40'' hydrocodone 
tablets a day. Id. at 145. B.B. became addicted, ``contemplate[ed] 
suicide,'' and could not function without the drug. Id. at 145-46. She 
also lost her house and means of transportation and did not have money 
to care for her children. Id.
    The Government also called as a witness Mr. B.H., who at the time 
was incarcerated for possession of a forged instrument and was about to 
plead guilty to this offense. Tr. 215-16. B.H. also admitted that he 
had been convicted of two misdemeanor theft offenses, one misdemeanor 
drug offense, and one felony drug offense for which he was given 
youthful offender status. Id. at 216-17. Moreover, B.H. testified that 
in exchange for his testimony in this proceeding, local law enforcement 
officials had promised not to prosecute him for conduct related to his 
obtaining controlled substances over the Internet. Id. at 207. B.H. 
also testified that he had been drug dependent since 1998. Id. at 188. 
The ALJ credited B.H.'s testimony and I find no reason to disturb this 
finding. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 494-96 
(1951).
    B.H. testified that in 2002, he found SMG's Web site while 
searching the Internet. Tr. 189. B.H. ``filled out the paperwork'' and 
faxed to SMG a copy of his driver's license and a medical record that 
he had obtained from another person. Id. at 189-90. B.H. altered the 
medical record, which indicated that he had a problem with his L-4 & L-
5 disk and suffered from severe anxiety, by placing his name, date of 
birth and social security number on it. Id. at 190. The record also 
indicated that B.H. had previously been prescribed Lortab and Xanax. 
Id. at 191.
    After obtaining his ``patient ID,'' B.H. logged on to SMG's Web 
site and requested hydrocodone and Xanax. Id. at 191-92. He also 
obtained an appointment for a telephone consultation with Respondent. 
Id. at 192. SMG did not provide B.H. with a choice of physicians, and 
throughout his association with SMG, B.H. always dealt with Respondent. 
Id.
    B.H. testified that all of his consultations with Respondent 
followed the same pattern and took ``about three or four minutes, 
maybe, if that.'' Id. at 194. According to B.H., Respondent would state 
that ``it says here you need hydrocodone and it said here you need 
this. He'd write the prescription and you hang up.'' Id. B.H. further 
testified that ``I would call up at my certain time and tell 
[Respondent] what I wanted, and he would say okay. That would be it.'' 
Id. at 196-97.\5\
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    \5\ B.H. acknowledged on cross-examination that he ``probably'' 
asked Respondent to prescribe Oxycontin and Percodan (which contain 
oxycodone, a Schedule II controlled substance, 21 CFR 1308.12(b)), 
but Respondent told him he could not prescribe these drugs. Tr. 214-
15.
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    Indeed, the ALJ specifically found that ``during the initial call, 
the Respondent and B.H. never discussed B.H.'s medical condition.'' ALJ 
at 31 (citing Tr. 197). During the first consultation, Respondent gave 
B.H. a prescription for 150 hydrocodone tablets and either 120 Xanax or 
its generic equivalent alprazolam; B.H. subsequently received these 
drugs on a monthly basis. Tr. 193.
    Throughout this period, Respondent never took B.H.'s complete 
medical history, never met with B.H. and performed a physical exam, 
never asked B.H. about prior medical tests, and never ordered any 
medical tests. Id. at 194-95. Respondent also never discussed a 
treatment plan or alternative treatments. Id. at 195. Nor did he ever 
discuss with B.H. the benefits and risks of taking controlled 
substances, or a time table for taking the drugs. Id. at 195-96. 
Finally, Respondent never asked B.H. whether he was seeing any other 
doctors, if he was obtaining prescriptions from any other online 
pharmacies, or asked whether he had ever been addicted to controlled 
substances. Id. at 196. Other than when B.H. asked for a Schedule II 
drug, Respondent never refused a request by B.H. for a controlled 
substance. Id. at 195.
    B.H. was obtaining controlled substances from other online 
pharmacies at the same time he was obtaining prescriptions from 
Respondent. Id. at 208. B.H. sold the hydrocodone he received from 
Respondent's prescriptions to buy Oxycontin, but took the Xanax. Id. at 
207.
    B.H. never received from Respondent a prescription form that he 
could take to a pharmacy. Id. at 209. He also showed several other 
persons how to obtain prescriptions from SMG; these individuals then 
obtained controlled substances which were prescribed to them by 
Respondent. Id. at 198-200. B.H. testified that these individuals had 
not previously obtained controlled substances from a physician for a 
medical condition. Id. at 202.
    The Government also called Dr. Richard Weinberg, a physician who is 
board certified in internal medicine, as well as hospice and palliative 
medicine. Tr. at 383. Dr. Weinberg testified as an expert in internal 
medicine. See ALJ at 16. I credit all of his testimony which is 
summarized as follows.
    Dr. Weinberg reviewed a list of the prescriptions Respondent issued 
and that were filled by CMC. See Tr. 386, Gov. Exhs. 28 & 30. He also 
reviewed various documents related to the DEA DI's obtaining controlled 
substances prescriptions from Respondent including transcripts of the 
telephone conversations, the medical ``documentation'' the DI 
submitted, and the various SMG Web pages that the DI filled out in 
order to obtain the prescriptions. Tr. 386.

[[Page 77796]]

    Dr. Weinberg testified that based on the above, Respondent did not 
establish a valid doctor-patient relationship with the DI and did not 
conduct an ``adequate assessment'' or ``evaluation'' to justify 
Respondent's prescribing the controlled substances (hydrocodone and 
Valium) which he did for the DI. Tr. 389. Dr. Weinberg further 
testified that to establish a valid doctor-patient relationship, ``[a] 
physician must have a direct and immediate observation of the 
patient,'' which ``should be person-to-person.'' Id. at 393.
    Dr. Weinberg testified that in treating pain, a physician must 
obtain a medical history which includes ``what the origin of the pain 
was, the history of it, previous treatments, attempts at physical 
therapy, and other modalities for treatment of pain.'' Id. The 
physician must further do ``a direct physical exam'' and create ``a 
plan for further evaluation and treatment [with] reassessment at an 
appropriate interval.'' Id. Moreover, a physician must ``inquire as to 
whether there is a risk of chemical dependency before initiating the 
use of drugs that are commonly associated with addiction, including all 
opiates and benzodiazepines.'' Id. at 400.
    As for treating anxiety, Dr. Weinberg testified that the physician 
must take ``an extensive history to understand the appropriate 
background, whether the patient is experiencing any depression, any 
psycho-social stresses, [has] a history of panic disorder, et cetera.'' 
Id. at 393. According to Dr. Weinberg, this ``can only be done on a 
face-to-face basis and, again, requires that a patient be followed over 
time.'' Id.
    Dr. Weinberg further testified that he has ``been involved with 
addiction medicine throughout [his] career,'' id. at 403, that he was 
currently ``the head of the addiction task force'' at a hospital and 
that he is familiar with some of the street terminology used by drug 
dependent persons. Id. at 403-04. More specifically, Dr. Weinberg 
testified that ``Vikes'' is street talk for Vicodin, id. at 402, and 
that if he received a questionnaire which indicated that a patient had 
been taking ``Vikes'' and was told by the patient that he got the drug 
from a friend (as the DI did in obtaining prescriptions from 
Respondent), he would not prescribe the drug. Id. at 404. Dr. Weinberg 
added that ``obtaining controlled substances from acquaintances [or] 
friends [is] a warning sign that this is someone who is chemically 
dependent or certainly involved with illicit use.'' Id. Dr. Weinberg 
further added that a sedating medication such as Valium should not be 
prescribed to a person who reports that he has anxiety from hauling 
dynamite. Id. at 405.
    Dr. Weinberg also reviewed the prescription data seized from CMC. 
While acknowledging that there was ``a scattering of other 
prescriptions,'' Dr. Weinberg noted that ``[i]n every instance in this 
database, patients [were] prescribed substantial quantities of short-
acting opiates * * * and, in most cases, patients are also prescribed 
benzodiazepine[s], either diazepam or alprazolam.'' Id. at 393-94. 
According to Dr. Weinberg, ``[i]t would be a highly unusual 
relationship with a set of patients that every single patient with whom 
you have an encounter would be prescribed these agents.'' Id. at 394. 
Moreover, it would also be ``extraordinary to have up to 120 patients 
receive prescriptions in a single day.'' Id. According to Dr. Weinberg, 
``[i]t's impossible for any clinician to have an appropriate evaluation 
of that volume of patients in any short period of time.'' Id.
    The Government also called as a witness Dr. James M. Tolliver, a 
DEA employee who holds a Ph.D. in Pharmacology. See Gov. Ex. 34. Dr. 
Tolliver has also served as a scientific advisor to the World Health 
Organization (WHO) and has been involved in the preparation of various 
documents used by the WHO in recommending that various drugs of abuse 
be controlled under international conventions. See id. at 2.
    Specific to this case, Dr. Tolliver explained that hydrocodone is 
``a narcotic drug similar to morphine,'' which produces euphoria and 
``has a potency similar to morphine.'' Tr. 275. Hydrocodone is ``a 
substitute for heroin'' and ``heroin users like'' the drug. Id. at 275-
76. Moreover, over time hydrocodone users develop a tolerance to the 
drug and thus require increased doses ``to produce the same effect.'' 
Id. at 277. In 2002, the abuse of hydrocodone combination products 
resulted in ``over 27,000 emergency room episodes.'' Id. at 279. 
Hydrocodone was thus among ``the top six to seven controlled 
substances'' found in persons seeking treatment for drug abuse in 
emergency rooms. Id.
    Dr. Tolliver also testified regarding the abuse of benzodiazepines 
such as alprazolam (Xanax) and diazepam (Valium). According to Dr. 
Tolliver, ``[a]lprazolam is the number one prescription drug that is 
abused by our youth in the United States.'' Id. at 283. Alprazolam was 
number five on the list of drugs most frequently abused by persons who 
require treatment in emergency rooms. Id. at 284. Moreover, other 
benzodiazepines such as diazepam also rank in the top twenty of drugs 
abused by persons requiring treatment in emergency rooms. Id. 
Furthermore, benzodiazepines ``severely impact[]'' a user's psychomotor 
control, thus affecting the ability to drive or operate machinery.\6\ 
Id. at 285.
---------------------------------------------------------------------------

    \6\ Respondent neither testified on his own behalf nor put on 
any witnesses.
---------------------------------------------------------------------------

Discussion

    At the outset, this case presents a substantial question as to 
whether this proceeding is moot. Respondent's registration expired on 
March 31, 2006, after the hearing in this case and the ALJ's issuance 
of her decision. Moreover, Respondent apparently has not submitted a 
renewal application.
    Under DEA precedent, ``[i]f a registrant has not submitted a timely 
renewal application prior to the expiration date, then the registration 
number expires and there is nothing to revoke.'' Ronald J. Riegel, 63 
FR 67132, 67133 (1998). In Riegel, the registrant sought a hearing upon 
being served with a Show Cause Order; his registration, however, 
expired several months before the hearing was held and the registrant 
did not submit a renewal application. Id. at 67132.
    Following the hearing in Riegel, the Government discovered that the 
respondent's registration had expired and moved to either order the 
respondent to submit a renewal application or to terminate the 
proceeding as moot. Id. The respondent did not respond to the motion. 
Id. The ALJ, however, denied the motion concluding that the proceeding 
was not moot under existing agency precedent. Id. While my predecessor 
concluded that the matter was ``moot because there [was] no viable 
registration to revoke,'' he nonetheless reasoned that ``it would be 
unfair to * * * terminate the proceedings without resolution'' because 
the Government's position was based on a ``deviation'' from agency 
precedent and was not raised until after the hearing was held. Id. at 
67133. He thus decided the case on the merits and ordered the 
revocation of the respondent's registration. See id. at 67133-35.
    Having carefully considered this precedent, as well as authorities 
discussing the mootness doctrine in both the judicial and 
administrative settings, I conclude that Riegel is not controlling. `` 
`[A]n administrative agency is not bound by the constitutional 
requirement of a ``case or controversy'' that limits the authority of 
article III courts to rule on moot issues.' '' RT Communications, Inc. 
v.

[[Page 77797]]

FCC, 201 F.3d 1264, 1267 (10th Cir. 2000) (quoting Climax Molybdenum 
Co. v. Secretary of Labor, 703 F.2d 447, 451 (10th Cir. 1983)); see 
also Metropolitan Council of NAACP Branches v.FCC, 46 F.3d 1154, 1161 
(D.C. Cir. 1995) (``case or controversy requirement'' does not apply to 
an agency). As the Tenth Circuit has explained, ``an agency has 
`substantial discretion' to decide whether to hear issues which might 
be precluded by mootness'' if litigated in an Article III court. RT 
Communications, 201 F.3d at 1267 (quoting Climax Molybdenum, 703 F.2d 
at 451).
    Moreover, my decision to issue a final order in this matter finds 
ample support in the mootness doctrine applied by the courts. Under 
long settled principles, `` `a defendant's voluntary cessation of a 
challenged practice does not deprive a federal court of its power to 
determine the legality of the practice,' '' because `` `if it did, the 
courts would be compelled to leave ``[t]he defendant * * * free to 
return to his old ways.' '' Friends of the Earth, Inc., v. Laidlaw Env. 
Servs., Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. 
Aladdin's Castle, Inc., 455 U.S. 283, 289 & n.10 (1982) (quoting United 
States v. W.T. Grant Co., 345 U.S. 629, 632 (1953))). Most 
significantly, the standard ``for determining whether a case has been 
mooted by the defendant's voluntary conduct is stringent: `A case might 
become moot if subsequent events made it absolutely clear that the 
allegedly wrongful behavior could not reasonably be expected to recur.' 
'' Friends of the Earth, 528 U.S. at 189 (quoting United States v. 
Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968)).
    Finally, a case remains a live dispute when ``collateral 
consequences'' attach to a proceeding which otherwise would be moot. In 
re Surrick, 338 F.3d 224, 230 (3d Cir. 2003). As several courts have 
noted in cases involving sanctions against licensed professionals such 
as attorneys, even a temporary suspension followed by a reinstatement 
does not moot a challenge to the initial suspension because the action 
``is harmful to a [professional's] reputation, and `the mere 
possibility of adverse collateral consequences is sufficient to 
preclude a finding of mootness.' '' Id. (quoting Dailey v. Vought 
Aircraft Co., 141 F.3d 224, 228 (5th Cir. 1998)). See also id. (quoting 
Kirklandv. National Mortgage Network, Inc., 884 F.2d 1367, 1370 (11th 
Cir. 1989) (``attorney's appeal of the revocation of his pro hac vice 
status was not moot following dismissal of the underlying case because 
`the brand of disqualification on grounds of dishonesty and bad faith 
could well hang over his name and career for years to come' '').
    Relying on these cases for guidance, I hold that this case is not 
moot. As an initial matter, I note that neither party has moved to 
dismiss the proceeding on mootness grounds. Moreover, while Respondent 
has not submitted a renewal application, he has submitted no evidence 
(such as a declaration) establishing that he intends to permanently 
cease the practice of medicine. Cf. 21 CFR 1301.52(a) (``Any registrant 
who * * * discontinues business or professional practice shall notify 
the Administrator promptly of such fact.''). Indeed, under DEA's 
regulations, Respondent can apply for a new registration at any time 
and could re-engage in the practice at issue here. It is thus not `` 
`absolutely clear that [Respondent's] allegedly wrongful behavior could 
not reasonably be expected to recur.' '' See, e.g., Friends of the 
Earth, 528 U.S. at 189 (quoting Concentrated Phosphate, 393 U.S. at 
203).
    Moreover, the Government (as did Respondent) expended substantial 
resources in litigating this case; the ALJ also committed an extensive 
amount of time to preparing her decision. To dismiss this proceeding 
without making the findings which the evidence in this case compels 
would prejudice the public interest. I thus conclude that Respondent's 
failure to submit a renewal application does not preclude the entry of 
a final order in this matter.
    Furthermore, this case is not moot because of the collateral 
consequences that attach to the immediate suspension of Respondent's 
registration. As explained above, the immediate suspension was imposed 
based on my preliminary finding that Respondent's continued 
registration ``would constitute an imminent danger to the public health 
and safety'' because he was diverting large amounts of controlled 
substances. Show Cause Order at 10. It is indisputable that when the 
Agency is forced to take this extraordinary step to protect public 
health and safety, a registrant's reputation is harmed. Moreover, it is 
likely that Respondent would be required to report the Immediate 
Suspension were he to apply for a renewal of his state medical 
licenses. Finally, were Respondent to apply for a new DEA registration 
at some point in the future, he would be required to disclose the 
suspension that is at issue here. See DEA Form-224, Section 5; DEA 
Form-224A, Section 4.\7\
---------------------------------------------------------------------------

    \7\ Furthermore, pursuant to 21 U.S.C. 824(f), DEA personnel who 
serve an immediate suspension are directed to seize and place under 
seal all controlled substances possessed by a registrant. See, e.g., 
Show Cause Order at 10. Under federal law, title to any such 
property is dependent upon the outcome of the proceeding. 21 U.S.C. 
824(f). Thus, while there is no evidence in the record as to whether 
DEA investigators seized any controlled substances when they served 
the order on Respondent, most cases which begin with the issuance of 
an immediate suspension present this additional collateral 
consequence.
---------------------------------------------------------------------------

    As the forgoing demonstrates, the issuance of an immediate 
suspension creates collateral consequences beyond those that are 
present when the Government serves a Show Cause Order but allows a 
registrant to continue to handle controlled substances throughout the 
litigation. Therefore, I conclude that Riegel is not controlling and 
that this case is not moot. I thus proceed to analyze the merits of 
this case under the standards of section 304.

The Statutory Factors

    Section 304(a) of the Controlled Substances Act provides that a 
registration to ``dispense a controlled substance * * * may be 
suspended or revoked by the Attorney General upon a finding that the 
registrant * * * has committed such acts as would render his 
registration under section 823 of this title inconsistent with the 
public interest as determined under such section.'' 21 U.S.C. 
824(a)(4). In making the public interest determination, the Act 
requires the consideration of the following factors:
    (1) The recommendation of the appropriate State licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing * * * 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.
Id.
    ``[T]hese factors are * * * considered in the disjunctive.'' Robert 
A. Leslie, M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or 
a combination of factors, and may give each factor the weight [I] 
deem[] appropriate in determining whether a registration should be 
revoked.'' Id. Moreover, case law establishes that I am ``not required 
to make findings as to all of the factors.'' Hoxie v. DEA, 419 F.3d 
477, 482 (6th Cir. 2005); see also Morall v. DEA, 412 F.3d 165, 173-74 
(D.C. Cir. 2005).

[[Page 77798]]

    Finally, section 304(d) provides that ``[t]he Attorney General may, 
in his discretion, suspend any registration simultaneously with the 
institution of proceedings under this section, in cases where he finds 
that there is an imminent danger to the public health or safety.'' 21 
U.S.C. 824(d). In this case I conclude that Factors Two, Four and Five 
establish that allowing Respondent to handle controlled substances 
would be inconsistent with the public interest. Analyzing these 
factors, I also conclude that Respondent's conduct created ``an 
imminent danger to public health or safety,'' id., and thus sustain the 
immediate suspension of his registration.

Factors Two and Four--Respondent's Experience In Dispensing Controlled 
Substances and Respondent's Compliance With Applicable Laws

    As the ALJ noted, the key issue in this case is whether the 
prescriptions Respondent issued to the persons who were referred to him 
through the SMG Web site complied with Federal law. As explained below, 
the evidence conclusively demonstrates that Respondent used his 
prescribing authority to act as a drug pusher; the only difference 
between him and a street dealer was that he did not physically 
distribute the drugs to SMG's clients.
    Under DEA regulations, a prescription for a controlled substance is 
not ``effective'' unless it is ``issued for a legitimate medical 
purpose by an individual practitioner acting in the usual course of his 
professional practice.'' 21 CFR 1306.04(a). This regulation further 
provides that ``an order purporting to be a prescription issued not in 
the usual course of professional treatment * * * is not a prescription 
within the meaning and intent of [21 U.S.C. 829] and * * * the person 
issuing it, shall be subject to the penalties provided for violations 
of the provisions of law related to controlled substances.'' Id. As the 
Supreme Court recently explained, ``the prescription requirement * * * 
ensures patients use controlled substances under the supervision of a 
doctor so as to prevent addiction and recreational abuse. As a 
corollary, [it] also bars doctors from peddling to patients who crave 
the drugs for those prohibited uses.'' Gonzales v. Oregon, 126 S.Ct. 
904, 925 (2006) (citing Moore, 423 U.S. 122, 135 (1975)).
    It is fundamental that a practitioner must establish a bonafide 
doctor-patient relationship in order to be acting ``in the usual course 
of * * * professional practice'' and to issue a prescription for a 
``legitimate medical purpose.'' As Doctor Weinberg, the Government's 
expert explained, existing professional standards require that to 
establish a bonafide doctor-patient relationship, a physician must 
first obtain a medical history which establishes the origin of the 
patient's complaint, its history and previous attempts to treat the 
condition. Tr. 393, 400. Moreover, the physician must conduct a 
physical examination which involves the ``direct and immediate 
observation of the patient'' and should be on an in-person basis. Id. 
at 393. Furthermore, before prescribing controlled substances, the 
physician must determine whether there is a risk of chemical dependency 
or the patient is engaged in the illicit use of drugs. Id. at 400. The 
physician should also develop ``a plan for further evaluation and 
treatment [with] reassessment at an appropriate interval.'' Id. at 393.
    The American Medical Association's Guidance for Physicians on 
Internet Prescribing explains the ``components'' of a bonafide doctor-
patient relationship. Gov. Ex. 48. The AMA instructs that a ``physician 
shall'':

    i. obtain a reliable medical history and perform a physical 
examination of the patient, adequate to establish the diagnosis for 
which the drug is being prescribed and to identify underlying 
conditions and/or contraindications to the treatment recommended/
provided; ii. have sufficient dialogue with the patient regarding 
treatment options and the risks and benefits of treatment(s); iii. 
as appropriate, follow up with the patient to assess the therapeutic 
outcome; iv. maintain a contemporaneous medical record that is 
readily available to the patient and * * * to his * * * other health 
care professionals; and v. include the electronic prescription 
information as part of the patient medical record.

Id .
    To similar effect are the guidelines issued by the Federation of 
State Medical Boards of the United States, Inc. See Gov. Ex. 50 (Model 
Guidelines for the Appropriate use of the Internet in Medical 
Practice). According to the Guidelines, ``[t]reatment and consultation 
recommendations made in an online setting, including issuing a 
prescription via electronic means, will be held to the same standards 
of appropriate practice as those in traditional (face-to-face) 
settings. Treatment, including issuing a prescription, based solely on 
an online questionnaire or consultation does not constitute an 
acceptable standard of care.'' Id. at 4 (emphasis added). Cf. DEA, 
Dispensing and Purchasing Controlled Substances over the Internet, 66 
FR 21181, 21183 (2001) (guidance document) (``Completing a 
questionnaire that is then reviewed by a doctor hired by the Internet 
pharmacy could not be considered the basis for a doctor/patient 
relationship.'').\8\
---------------------------------------------------------------------------

    \8\ The guidance document reflects this Agency's understanding 
of what constitutes a bonafide doctor-patient relationship under 
state laws and existing professional standards. 66 FR 21182-83.
---------------------------------------------------------------------------

    Under the standards of the medical profession, it is clear that 
Respondent did not establish a bonafide doctor-patient relationship 
with any of the four material witnesses in this case and thus, none of 
the prescriptions he issued to them complied with federal law. 
Respondent never obtained a reliable medical history from these 
persons--indeed, in this case there is substantial evidence that he 
simply accepted whatever documents were provided by these individuals 
without verifying their validity. In doing so, he ignored the potential 
for fraud inherent in the scheme, which was obvious in light of the 
fact that SMG allowed its ``patients'' to request a particular drug.
    Most significantly, he did not physically examine any of these four 
persons, direct that they be examined by another physician, or order 
medical testing to verify their reported medical complaints. 
Furthermore, he did not discuss with any of these persons the existence 
of alternative treatments, generally failed to discuss the risks/
benefits of taking the various controlled substances he prescribed, 
never developed a timetable for using controlled substances or a 
treatment plan, and never attempted to determine whether any of these 
persons had a history of addiction to the drugs or were obtaining them 
from other sources. It is thus indisputable that none of the 
prescriptions Respondent issued for these four persons were for a 
legitimate medical purpose.
    Indeed, there is ample evidence suggesting that Respondent knew 
that his ``patients'' were seeking the drugs to abuse them. Several 
witnesses testified that they requested specific drugs. Moreover, at 
least three of the witnesses stated that during their conversations 
with Respondent, he would ask them whether there was anything else he 
could do for them. This is not the type of question that a physician 
normally asks a patient during the course of providing medical 
treatment. Indeed, several of the witnesses testified that they 
interpreted Respondent's question as an offer to supply additional 
controlled substances. See Tr. 301 (testimony of DI); id. at 140 
(testimony of B.B.).
    The evidence in this case further demonstrates the danger to public 
health and safety created by Respondent

[[Page 77799]]

and other Internet prescribers. B.B. testified that while she was 
obtaining controlled substances from Respondent and CMC, she was also 
able to obtain them from ten other Internet pharmacies. B.B. 
acknowledged that she was taking as many as 40 hydrocodone tablets a 
day, that she became addicted, and that she considered suicide. 
Relatedly, B.H. testified that he sold the hydrocodone he obtained from 
Respondent's prescriptions in order to buy Oxycontin, a stronger and 
more addictive controlled substance. He also related that he showed 
several acquaintances how to obtain controlled substances from SMG, 
which were prescribed to them by Respondent. B.H. further testified 
that these persons had not previously been prescribed controlled 
substances for a medical condition. He (along with the DI) also 
testified to the ease of obtaining their prescriptions by submitting 
fraudulent medical records. Obviously, Respondent's prescribing 
practices invited fraud. Cf. 66 FR at 21183 (``A consumer can more 
easily provide false information in a questionnaire than in a face-to-
face meeting with a doctor.'').
    The prescription data further supports the conclusion that 
Respondent was engaged in drug dealing rather than the legitimate 
practice of medicine. Among other things, the evidence suggests that in 
a single day (on or about May 10, 2004), Respondent issued as many as 
358 prescriptions for controlled substances. The assembly line nature 
of this activity refutes any suggestion that Respondent was engaged in 
the legitimate practice of medicine. See Tr. 394 (testimony of 
Dr.Weinberg) (noting that it would be ``extraordinary to have up to 120 
patients receive prescriptions in a single day'').
    The ALJ also reasoned that ``the sheer volume of the Respondent's 
prescriptions also puts into question his medical practices.'' ALJ at 
40-41. As found above, during the first four and half months of 2004 
(before CMC was shut down), Respondent issued and CMC filled 14,219 
prescriptions for hydrocodone, 2,519 prescriptions for alprazolam, and 
1,806 prescriptions for diazepam. According to the ALJ, this Agency has 
previously held ``that the numbers of prescriptions for controlled 
substances, alone, do not create a regulatory violation.'' See ALJ at 
41 (citing Paul W. Saxton, 64 FR 25073 (1999)). I need not decide, 
however, whether Saxton supports this broad proposition. As the ALJ 
also noted, there the respondent justified his prescribing by 
presenting evidence as to the medical needs of his patients. See 64 FR 
25075-76.
    Here, by contrast, Respondent presented no such evidence. Moreover, 
the geographical location of SMG's customers demonstrates the 
substantial likelihood that most, if not all, of the prescriptions were 
issued by Respondent without the establishment of a bonafide doctor-
patient relationship and while acting outside of the usual course of 
professional practice. Indeed, one of the Government's exhibits 
( 25) shows that Respondent prescribed to persons in every 
State as well as the District of Columbia. Perhaps some of these 
patients actually visited Respondent at his Florida residence, but 
given his lack of licensure in that state, as well as the cost and time 
involved for patients to travel there, the nature of SMG's scheme 
(which offered the ability to obtain prescriptions based on a short 
telephone conversation), and the absence of any medical records during 
the search of his residence, it is most improbable that any 
``patients'' did.
    Respondent also violated the CSA for the additional reason that he 
did not possess lawful authority to prescribe controlled substance in 
Florida, the State in which he was practicing medicine. He also did not 
hold a DEA registration authorizing him to dispense from his Florida 
address.
    The CSA defines the term ``practitioner'' as ``a physician . . . 
licensed, registered, or otherwise permitted, by the United States or 
the jurisdiction in which he practices . ., to distribute, dispense . . 
. [or] administer . . . a controlled substance in the course of 
professional practice.'' 21 U.S.C. 802(21) (emphasis added). Under the 
CSA, the term ``dispense'' includes the act of ``prescribing'' a 
controlled substance. Id. Sec.  802(10).
    As the ALJ noted, this Agency has consistently interpreted the CSA 
as prohibiting a practitioner from handling controlled substances 
unless authorized to do so under the law of the state in which he 
engages in professional practice. See ALJ at 37-38 (collecting cases). 
See also Sheran Arden Yeates, 71 FR 39130, 39131 (2006). Also relevant 
to this case is section 302 of the CSA, which expressly provides that 
``[a] separate registration shall be required at each principal place 
of business or professional practice where the applicant . . . 
distributes, or dispenses controlled substances.'' 21 U.S.C. 822(e).
    Here, there is substantial evidence that Respondent issued the 
prescriptions from his residence in Florida. This includes the 
addresses Respondent used in renewing his N.J. and N.Y. medical 
licenses, the address Respondent used in his June 28, 2003 
correspondence to SMG's head, the address used on the Rx forms found 
during the search of CMC, the Florida phone number which the DI used 
for his consultation, and the address at which Respondent was living 
when the Show Cause Order and Immediate Suspension was served on him. 
Finally, there is also the evidence that Respondent had not practiced 
at the address of his DEA registered location for at least four years 
prior to the service of the Show Cause Order. Respondent did not, 
however, hold a Florida medical license and did not possess a DEA 
registration for his Florida address. See Tr. 236; Gov. Ex. 1 & 2. His 
prescribing thus violated the CSA for these reasons as well.
    I thus conclude that Respondent's experience in dispensing 
controlled substances and his history of non-compliance with applicable 
laws amply demonstrate that Respondent could not be entrusted with a 
DEA registration. I further affirm the preliminary finding that 
Respondent's conduct constituted an ``imminent danger to the public 
health or safety,'' 21 U.S.C. 824(d), and justified the immediate 
suspension of his registration.

Factor Five--Other Conduct Which Threatens Public Health and Safety

    The ALJ also found this factor applicable because Respondent 
``failed to maintain adequate patient records.'' ALJ at 41. As the ALJ 
explained, when the Government executed the search warrant at 
Respondent's residence, no patient records were found notwithstanding 
that he issued a substantial number of prescriptions from this address. 
Id. at 42. I agree with the ALJ's conclusion.
    As explained above under Factor Two, under existing professional 
guidelines, a physician should ``maintain a contemporaneous medical 
record.'' Gov. Ex. 48. Documenting the prescribing of controlled 
substances would seem to be essential to a physician's effective 
monitoring of a patient to ensure that the patient is not abusing the 
drugs or has become addicted to them. Furthermore, it seems clear that 
when a patient with a legitimate medical complaint needs to see a 
specialist, the specialist needs accurate information pertaining to the 
patient's use of controlled substances before recommending treatment 
options. Finally, if a person engages in ``doctor shopping,'' accurate 
records could help the new doctor assess the legitimacy of the person's 
medical complaint. I thus conclude that Respondent's failure to 
maintain patient records constitutes conduct that threatens public 
health and

[[Page 77800]]

safety. See James S. Bischoff, 70 FR 12734 (2005).
    It is not surprising that Respondent did not maintain patient 
records because he was not engaged in anything remotely bordering on 
the legitimate practice of medicine. Rather, Respondent was a drug 
dealer. As I have previously noted, ``[l]egally, there is absolutely no 
difference between the sale of an illicit drug on the street and the 
illicit dispensing of a licit drug by means of a physician's 
prescription.'' Mario Avello, M.D., 70 FR 11695, 11697 (2005) (citing 
Floyd A. Santner, M.D., 55 FR 37581 (1990)). The use of a DEA 
registration to engage in such conduct manifestly creates ``an immi