Laurence T. McKinney; Revocation of Registration, 43260-43269 [E8-16948]
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and testing of the company’s physical
security systems, verification of the
company’s compliance with state and
local laws, and a review of the
company’s background and history.
Therefore, pursuant to 21 U.S.C. 823,
and in accordance with 21 CFR 1301.33,
the above named company is granted
registration as a bulk manufacturer of
the basic class of controlled substance
listed.
Dated: July 15, 2008.
Joseph T. Rannazzisi,
Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration.
[FR Doc. E8–16905 Filed 7–23–08; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 08–29]
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Laurence T. McKinney; Revocation of
Registration
On February 5, 2008, I, the Deputy
Administrator of the Drug Enforcement
Administration, issued an Order to
Show Cause and Immediate Suspension
of Registration to Laurence T.
McKinney, M.D. (Respondent), of
Philadelphia, Pennsylvania. The Order
immediately suspended and proposed
the revocation of Respondent’s DEA
Certificate of Registration, BM7201267,
as a practitioner, on the grounds that his
continued registration was ‘‘inconsistent
with the public interest’’ and
‘‘constitute[d] an imminent danger to
public health and safety.’’ Show Cause
Order at 1 (citing 21 U.S.C. 824(a)(4) &
824(d)).
More specifically, the Show Cause
Order alleged that Respondent was ‘‘one
of the largest prescribers of schedule II
controlled substances in the
Philadelphia area[,]’’ and that ‘‘[f]rom
October 5, 2004 to November 30, 2007
[had written] 3,101 prescriptions for
schedule II narcotics.’’ Id. Next, the
Show Cause Order alleged that
Respondent sold prescriptions for
narcotics for $100 per prescription, that
he had issued prescriptions to
undercover law enforcement officers on
five separate dates between December
14, 2007, and January 30, 2008, that he
had either failed to perform a physical
examination or had conducted only a
‘‘cursory physical examination’’ on the
Officers, and that he had also written a
prescription for one of the undercover
Officer’s fictitious wife. Id. at 1–2. The
Show Cause Order further alleged that
these ‘‘prescriptions were not issued for
a legitimate medical purpose or in the
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normal course of professional practice’’
and thus violated both Federal and state
laws and regulations. Id. at 2 (citing 21
U.S.C. 841(a); 21 CFR 1306.04(a)).
Based on the above, I also made the
preliminary finding that Respondent
had ‘‘deliberately diverted controlled
substances’’ and that his ‘‘continued
registration during the pendency of
these proceedings would constitute an
imminent danger to the public health or
safety because of the substantial
likelihood that [he would] continue to
divert controlled substances.’’ Id. at 2. I
therefore also ordered the immediate
suspension of Respondent’s registration.
Id.
On February 15, 2008, Respondent,
through his counsel, requested a hearing
on the allegations. ALJ Ex. 2. The matter
was assigned to Administrative Law
Judge (ALJ) Mary Ellen Bittner.
Following pre-hearing procedures, a
hearing was held on April 7, 2008 in
Arlington, Virginia, at which both
parties introduced testimonial and
documentary evidence.1 Upon
conclusion of the hearing, both parties
submitted briefs containing their
proposed findings, conclusions of law
and argument.
On May 5, 2008, the ALJ issued her
recommended decision (ALJ). In her
decision, the ALJ specifically rejected
Respondent’s testimony regarding his
prescribing to the undercover patients
finding that he was not credible. ALJ at
29. With respect to factor two
(Respondent’s experience in dispensing
controlled substances), the ALJ
concluded that ‘‘the record establishes
* * * that Respondent issued
prescriptions to the undercover Officers
for controlled substances without any
meaningful physical examination or
gathering sufficient information from
the patients to arrive at a reasoned
diagnosis or * * * to determine
whether they had any condition at all
warranting treatment with the drugs he
prescribed to them.’’ Id. at 29–30. The
ALJ thus found ‘‘that all the
prescriptions Respondent issued to the
undercover officers were not issued for
a legitimate medical purpose.’’ Id. at 30.
The ALJ further noted that various
patient files introduced into evidence by
the Government demonstrated that
Respondent had not provided
‘‘individualized attention’’ to other
patients. Id. Relatedly, while noting that
Respondent had ‘‘introduced into
evidence patient files containing
considerably more detailed information
than those the Government offered,’’ the
ALJ reasoned that even if these files
1 The Government also introduced recordings of
several undercover visits.
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showed that Respondent had
‘‘legitimately treated’’ some patients, the
files predated November 26, 2007, the
date on which the Philadelphia Police
Department had received a complaint
about Respondent and did not
‘‘diminish the weight of the evidence
that he improperly prescribed
controlled substances after it.’’ Id.
With respect to factor four
(Respondent’s compliance with
applicable laws), the ALJ concluded that
Respondent had failed to comply with
Pennsylvania law because he had issued
prescriptions for controlled substances
without doing proper physical
examinations, taking adequate medical
histories, documenting the patient’s
symptoms, his diagnosis and treatment
recommendations, and that he had
failed to counsel his patients regarding
how the drugs should be taken, the
appropriate dosage, and their side
effects. Id. at 31. The ALJ thus
concluded that ‘‘Respondent violated
applicable Pennsylvania law and also
violated 21 CFR 1306.04, and thereby 21
U.S.C. 829(b).’’ Id.
With respect to factor five (other
conduct), the ALJ rejected Respondent’s
contention that he had prescribed
pursuant to a good-faith belief that the
undercover patients were in pain. Id.
More specifically, the ALJ expressed her
disbelief ‘‘that Respondent did not
know that the undercover Officers were
not in pain but were trying to obtain
controlled substances for other than a
legitimate medical reason.’’ Id. at 31.
The ALJ further found that Respondent
had ‘‘refus[ed] to acknowledge his
wrongdoing,’’ and that there was ‘‘little
hope’’ that ‘‘he will act more
responsibly in the future.’’ Id.2
Based on her findings with respect to
three of the factors, the ALJ concluded
‘‘that Respondent is unwilling or unable
to accept the responsibilities inherent in
a DEA registration.’’ Id. at 32. The ALJ
thus recommended the revocation of
Respondent’s registration and the denial
of any pending applications. Id.
Respondent filed exceptions to the
ALJ’s recommended decision. In this
filing, Respondent raised thirty-three
exceptions to the ALJ’s decision.3
2 The ALJ also found that Respondent had
retained his state medical license and that this
factor supported a finding ‘‘that his continued
registration would be in the public interest.’’ ALJ
at 29. The ALJ explained, however, that this factor
was not dispositive because ‘‘state licensure is a
necessary but not sufficient condition for DEA
registration.’’ Id. The ALJ further found that while
Respondent had been convicted of a felony, his
offense did not involve an offense related to
controlled substances. Id. at 30–31. The ALJ thus
found that this factor supported his continued
registration although it too was not dispositive.
3 Respondent’s Exceptions did not, however,
comply with DEA’s regulation which requires
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Thereafter, the record was forwarded to
me for final agency action.
Having considered the record as a
whole, as well as Respondent’s
exceptions, I hereby issue this Decision
and Final Order. While I do not adopt
the ALJ’s factual findings in their
entirety, I adopt the ALJ’s ultimate
conclusions of law with respect to each
of the statutory factors and her
recommended sanction. I make the
following findings of fact.
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Findings
Respondent is a medical doctor who
treats injury and trauma patients, as
well as weight loss patients, at a clinic
he operates in Philadelphia,
Pennsylvania. Tr. 19–21. While
Respondent previously held board
certification in obstetrics and
gynecology, he is no longer ‘‘board
certified in anything.’’ Id. at 21.
In February 1998, Respondent pled
guilty in Federal Court to two counts of
mail fraud based on fraudulent billing
practices. Id. at 48. Respondent was
sentenced to a term of imprisonment of
twelve months and one day which he
served at the Federal Correctional
Institution at Loretto, Pennsylvania, and
in a halfway house.4 Id. at 48–49; 266–
67.
Respondent currently holds DEA
Certificate of Registration, BM7201267,
which before I suspended it, authorized
him to handle controlled substances in
schedules II through V as a practitioner
at his registered location of 7514
Frankford Avenue, Philadelphia, Pa. GX
1, at 1. Respondent’s registration does
not expire until January 31, 2010. Id.
On November 26, 2007, the
Philadelphia Police Department
received a citizen’s complaint which
alleged that Respondent was prescribing
controlled substances such as Xanax
(alprazolam), and Percocet, a drug
which contains oxycodone and
acetaminophen.5 GX 48. More
specifically, the caller alleged that ‘‘all
the neighborhood kids know about’’
Respondent, that all one had to do to get
an appointment was to call his office
and possibly tell him that ‘‘you were
referred by a neighbor,’’ that ‘‘the Doctor
will tell you to come in and tell you to
citation to evidence of record which supports the
exception. 21 CFR 1316.66(a).
4 In March 2000, the State of Pennsylvania
suspended Respondent’s medical license for a
period of four years based on his mail fraud
convictions. Tr. 267. The State, however, stayed the
suspension after nine months. Id. Shortly thereafter,
Respondent was granted a new DEA registration.
GX 1, at 2.
5 Oxycodone is a schedule II controlled substance
and derivative of opium. 21 CFR 1308.12(b)(1).
Xanax is the brand name of alprazolam, a schedule
IV controlled substance. See id. § 1308.14(c).
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bring $100,’’ and that ‘‘[t]ell the doctor
you have some type of aliment [sic] and
he will write you a prescription for
Xanax, Percocet, Oxycodone etc.’’ Id.
Upon receipt of this tip, the
Philadelphia Police Department’s
Intensive Drug Investigation Squad
(IDIS) contacted DEA’s Philadelphia
Diversion Group, which had also
received complaints about Respondent
from local pharmacists. Tr. 154. As part
of their investigation, the decision was
made to have several IDIS members
attempt to obtain prescriptions from
Respondent. Id. at 83–84.
The First Undercover Visit
On December 6, 2007, an undercover
Officer using the name of Nicole Hodge
went to Respondent’s office. Id. at 130.
The Officer paid Respondent $100 in
cash and told him that she had not been
in an accident and did not have an
injury but wanted a prescription for
Percocet. Id. Respondent attempted to
get the Officer to talk about an injury
but she refused to. Id. Respondent
refused to issue the prescription and
told her to leave his office. Id. at 131.
Respondent subsequently noted in
Nicole Hodge’s patient file that ‘‘Pt. lied,
Ask for Percocet. Patient is not injured.’’
GX 23.
The Second Undercover Visit
On December 14, 2007, another IDIS
Officer, who used the named Anthony
Wilson, visited Respondent. After
paying $100 in cash, Respondent asked
the Officer whether he had been in an
accident.6 Tr. 86. The Officer stated that
he had been. Id. Respondent then asked
the Officer some unspecified question
about pain; the latter answered that he
‘‘hurt all over.’’ Id. at 86–87. Moreover,
the evidence includes a medical history
form on which the Officer indicated as
his complaint: ‘‘Hurt All Over,’’ that the
location of his condition was ‘‘all over,’’
and that its severity was ‘‘bad pain.’’ GX
22, at 7.
According to the DEA Special Agent
who debriefed the Officer, the latter did
not exhibit any signs of injury and
Respondent did not ask him to rate his
pain level on a scale of one to ten. Tr.
87. The Officer reported that
Respondent’s physical examination was
limited to touching him lightly on the
shoulder and back; moreover,
Respondent did not listen to his heart
and lungs, and no one took his blood
pressure. Id. at 88.
Respondent did not order any
diagnostic tests such as an x-ray or mri.
6 According to the record, Respondent would
instruct his ‘‘patients’’ when they called for an
appointment that they should have cash. Tr. 92.
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Id. at 198. Respondent nonetheless
diagnosed the Officer as having back
and neck contusions and prescribed to
him 90 Percocet (10 mg.), 60 Xanax (1
mg.), and 60 Cataflam, a non-controlled
substance. Id. at 89; GX 16. The
prescription indicated that the Percocet
should be taken every eight hours as
needed for pain and that the Xanax
should be taken every twelve hours as
need for muscle spasms or anxiety. GX
16, at 2. Respondent did not, however,
counsel the Officer regarding the dosing
and frequency of taking the drugs, the
drug’s potential side effects and its
interactions with other drugs. Tr. at 92.
Another form in the patient file
indicates that the Officer’s blood
pressure was 120/82, as well as a height
and weight. GX 22, at 5. Under the
heading of ‘‘history of pertinent facts,’’
the form appears to state: ‘‘Passenger in
MVA driver side’’ and ‘‘8⁄10 pain scale.’’
Id. Finally, another form entitled
‘‘ROM—AMA Guides’’ has a notation of
‘‘+2’’ in the blocks for ‘‘Cervical Spine,’’
‘‘Dorsal Spine’’ and Lumbar/Sacral.’’ Id.
at 6.
While Respondent testified that either
he or a nurse had taken the Officer’s
blood pressure, Tr. 312–13, the ALJ
specifically credited the testimony of
the DEA agent 7 regarding the various
undercover visits and rejected
Respondent’s testimony pertaining to
them. More specifically, the ALJ found
that ‘‘Respondent did not impress [her]
as credible and appeared to try to tailor
his testimony to suit his own purposes,
particularly with respect to his
insistence that he complied with
Pennsylvania’s requirements for
prescribing controlled substances.’’ ALJ
at 29. I adopt the ALJ’s credibility
findings noting that she was in the best
position to observe the demeanor of the
respective witnesses. I therefore find
that neither Respondent nor a nurse
took the Officer’s blood pressure during
the visit. I further find that the history
form for this visit contains no notation
in the blocks for the patient’s ‘‘heart’’
and ‘‘lungs’’ (nor in any of the other
blocks save one in which findings
pertaining to various bodily functions
are recorded). I therefore further find
that Respondent did not listen to
Respondent’s heart or lungs on this
date.
The Third Undercover Visit
On January 3, 2008, the Officer
returned to Respondent’s office and
again presented himself as Anthony
Wilson and paid $100 for the visit. Tr.
7 As the ALJ explained, the Agent, in contrast to
Respondent, ‘‘appeared to be straightforward and
candid.’’ ALJ at 29.
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97, 103. The same DEA Special Agent
conducted surveillance of the visit. ALJ
at 12.
Apparently while the Officer was in
the waiting room, Respondent started
calling out the names of patients. When
Respondent called the Officer’s
undercover name, he asked him
whether he was there for physical
therapy. GX 3, at 2. At some point, the
Officer was taken back to an exam room
and was told by Respondent to take off
his jacket. Id. The Officer stated to
Respondent: ‘‘last time you said I had
neck and back contusions.’’ Id.
Respondent told the Officer to have a
seat and asked him his first name. Id.
The Officer answered: ‘‘Anthony.’’ Id.
Following an unintelligible statement
of Respondent, the Officer offered to
come back for physical therapy. Id.
After Respondent was interrupted by
several phone calls, the Officer offered
to come back on Sunday for therapy and
Respondent agreed. Id. The Officer then
stated that the ‘‘the first time I was here
you didn’t have therapy,’’ and asked
whether he had ‘‘to fill out the
paperwork again, or did she find my
file?’’ Id. Respondent answered: ‘‘No
that’s all right, I saw it the other day,
that’s alright.’’ Id. The Officer then
asked whether if ‘‘when I have the
therapy and the medicine it’s the same
price or is it?’’ Id. Respondent answered
that it was the ‘‘[s]ame price if you come
in for just the prescription its 100
dollars, if you come in for the
prescription and exam and therapy its
100 dollars, if you come in for just
therapy its 100 dollars, o.k.’’ Id.
During the visit, Respondent gave the
Officer prescriptions for 90 Percocet
(10/325 mg.) and 60 Xanax (1 mg.). Id.
at 3; GX 17. While Respondent asked
the Officer how he had been doing,
Respondent limited his physical exam
to pressing on the Officer’s back and
shoulder and did not listen to the
Officer’s heart and lungs or take his
blood pressure. Tr. 99–100. Moreover,
while it was less than three weeks since
the Officer’s previous visit (at which
Respondent had also given him
prescriptions for 90 Percocet and 60
Xanax, each of which should have
lasted thirty days), Respondent did not
question him about why he needed new
prescriptions so soon. Id. at 102.
Furthermore, once again, Respondent
did not counsel the Officer about the
two drugs. Id. Finally, the patient file
for ‘‘Anthony Wilson’’ contains no
documentation of this visit. See GX 22.
The Fourth and Fifth Undercover Visits
On January 18, at approximately 4:10
p.m., the Officer returned to
Respondent’s office and was
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accompanied by another Officer who
used the name of Richard Johnson. Tr.
104. Respondent called for Johnson first,
and asked him if it was his first visit.
GX 5, at 1. Although the Officer had not
previously been to Respondent’s office,
the Officer responded: ‘‘No, I was here
December 14th.’’ 8 Id. Respondent then
collected $100 from the Officer. Id.
About twenty minutes later,
Respondent again asked the Officer his
name. Upon being told ‘‘Richard
Johnson,’’ Respondent asked the Officer:
‘‘You said you been here before * * *
you do construction right?’’ Id. The
Officer answered: ‘‘Yes, sir.’’ Id. After
discussing the Officer’s age and taking
a phone call, Respondent asked the
Officer: ‘‘How you been doing since you
[were] put on pain medication?’’ Id. at
2. The Officer answered: ‘‘pretty good.’’
Id. When Respondent asked: ‘‘Did it
work real well?’’; the Officer answered:
‘‘Yes.’’
Respondent next asked: ‘‘you[’ve]
been taking the yellow ones three times
a day?’’ Id.9 The Officer answered:
‘‘Yes.’’ Id. Respondent then stated: ‘‘I
had you on the blue ones at night’’; the
Officer commented: ‘‘Yeah, at night.’’ Id.
Respondent then asked the Officer to
‘‘stand up,’’ and stated: ‘‘7:05 p.m. Ok,
what I’m going to do is refill your
medication * * * we can finally get you
out of here.’’ Id. After taking a phone
call, and commenting about people
stealing pens from his office,
Respondent noted that it was ‘‘7:08
p.m.’’ and stated: ‘‘60 of the Xanax, 90
of the Percocet.’’ Id. As evidenced by
the actual prescriptions, Respondent
prescribed 90 Percocet (10/325), which
was to be taken every eight hours, and
60 Xanax 1 mg., which was to be taken
every 12 hours. GX 18, at 2.
Respondent’s physical exam was
limited to tapping the Officer lightly on
the back and shoulder. Tr. 112
Moreover, Respondent did not order any
diagnostic tests. Id. at 113. During a
subsequent search of Respondent’s
office, no patient file was found for
Richard Johnson. Id. at 215.
8 The DEA Agent testified that Respondent
attempted to find the Officer’s patient file. Tr. 110–
11.
9 I take official notice of the Product Identification
Guide found in the Physician’s Desk Reference
(2005). According to the Guide, Percocet 10/325 mg.
tablets are yellow, id. at 311, and Xanax 1 mg.
tablets are blue. Id. at 330. Based on this and the
prescriptions Respondent wrote, I conclude that
Respondent’s references to the yellows ones and the
blue ones were references to Percocet and Xanax
respectively. In accordance with the Administrative
Procedure Act and DEA regulations, Respondent is
entitled to an opportunity to refute the facts which
I have taken official notice by filing a motion for
reconsideration within fifteen days of service of this
Order, which shall begin on the date of mailing. See
5 U.S.C. 556(e); 21 CFR 1316.59(e).
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Approximately 45 minutes later,
Respondent saw the other Officer
(Anthony Wilson) who was waiting in
an exam room. GX 5, at 4. Respondent
asked him ‘‘how are you doing?,’’ to
which the Officer responded: ‘‘I’ll pay
you now.’’ 10 Id. About a minute later,
Respondent entered the exam room and
stated: ‘‘I am going crazy right now, turn
around this way.’’ Id. In response, the
Officer stated: ‘‘I know it’s been a long
day.’’ Id.
Respondent replied: ‘‘You have no
idea.’’ Id. Respondent then stated:
‘‘stand up facing me, try to bend down
knees and touch your toes, come back
up, alright, have a seat, look[s] like your
doing a little better.’’ Id. The Officer
replied: ‘‘Yes sir, yes sir.’’ Id.
Respondent then stated: ‘‘Last time I
gave you Percocet 10’s and Xanax
right?’’ Id. The Officer responded: ‘‘Yes
sir.’’ Id. Respondent then stated: ‘‘So
that seems it gotta be working.’’ Id. The
Officer agreed, and added that ‘‘the last
time I didn’t have any problems cashing
the [unintelligible].’’ Id. Respondent
then stated ‘‘script.’’ Id. The Officer
again commented to the effect that he
had not had any problems filling his
prescriptions. Id. at 5.11 Respondent did
not ask Wilson why he had returned
only fifteen days after the previous visit.
See generally GX 5, at 4–5.
During the visit, Respondent issued
the Officer additional prescriptions for
90 Percocet (10/325 mg.) and 60 Xanax
(1 mg.). GX 18, at 1. The prescriptions
called for the Percocet to be taken every
eight hours and for the Xanax to be
taken every twelve hours. Id.
The Sixth and Seventh Undercover
Visits
On the night of January 22, 2008, at
8:07 p.m., the Officer who had
previously presented herself as Nicole
Hodge went back to Respondent’s office.
Tr. 131. The Officer was accompanied
by another Officer, who used the name
‘‘John Rio,’’ and apparently posed as her
boyfriend. See GX 6, at 1.12
Shortly after her arrival, Respondent
called her name and asked: ‘‘Why are
you here dear?’’ GX 6, at 1. The Officer
stated that she had been in an accident
two days earlier. Id. Respondent asked:
‘‘Nicole the last time you were here you
10 It is unclear whether Respondent had actually
entered the exam room at this point or just stuck
his head in it.
11 Most of the remaining conversation between
Respondent and the Officer centered on the
Officer’s problems with his ex-wife, although at one
point the Officer stated: ‘‘You said lower back and
neck,’’ and Respondent agreed. GX 5, at 5.
12 According to GX 6, the Officers entered
Respondent’s office together. GX 6, at 1. It is
unclear, however, whether they arrived in the same
vehicle.
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didn’t have an injury remember?’’ Id.
The Officer answered: ‘‘I know.’’ Id.
Respondent then asked the Officer
whether she swore that she was injured
this time. Id. The Officer answered that
she had been ‘‘out with my boyfriend
and got hit by a car the other day.’’ Id.
The Officer then explained that ‘‘I ran
out before him * * * he pisses me off
a lot.’’ Id. Respondent laughed and
asked: ‘‘Well I’m sure you don’t have
anything to do with that at all, right?’’
Id. The Officer then asked the Officer
posing as her boyfriend: ‘‘Did you push
me in front of that car?’’; the latter
answered: ‘‘No.’’ Id.
Respondent then told ‘‘John Rio’’ to
have a seat in an exam room and asked
him: ‘‘You been here before right?’’ Id.
The Officer answered ‘‘Yeah,’’ Id.
although he had not been. Tr. 123. The
female Officer then stated: ‘‘I can hear
you.’’ GX 6, at 1. Respondent replied:
‘‘I’m sure you can hear us, that’s the
point, we want you to hear us’’; the
female Officer responded: ‘‘Oh.’’ Id.
Respondent then asked the male
Officer if he was having back pain. Id.
The Officer answered affirmatively. Id.
at 2. After some extraneous comments
about his ex-wife, either Respondent or
an assistant hooked the male Officer up
to a physical therapy machine,
recommended twenty minutes of
treatment and started the machine. Tr.
126. The Officer then complained that
the treatment ‘‘hurts too much, man.’’
GX 6, at 2. Respondent then told an
assistant to ‘‘cut it back to the minimum
level’’; the assistant acknowledged
Respondent’s order. Id. Several minutes
later, the Officer disconnected himself
from the machine and told Respondent’s
staff that he was doing so. Tr. 126–27.
The record does not, however, establish
whether Respondent was advised that
the Officer had disconnected the
machine.13 Id. at 127.
At some point during the visit,
Respondent issued to the Officer
prescriptions for 90 Percocet (5/325
mg.); 30 Xanax (1 mg); and for Flexeril,
a non-controlled muscle relaxant. GX
19, at 1–2. During the visit, while
Respondent put two fingers on the
Officer’s back, he did not check the
Officer’s heart or lungs. Tr. 125. Nor did
he counsel the Officer regarding the
controlled substances he prescribed. Id.
at 128–29. Moreover, during the
subsequent search of Respondent’s
office, the authorities did not find a
patient file for the Officer. Id. at 125. In
his testimony, Respondent asserted that
he maintained a file on the Officer and
that this visit was probably the Officer’s
third visit with him. Id. at 313. I find,
however, that it was the first visit.
Respondent then turned his attention
to the female Officer and asked her if
she had been driving. GX 6, at 2. The
Officer answered: ‘‘No, we were
walking.’’ Id. Respondent then asked
her if she had gone to the hospital;
Respondent answered: ‘‘No.’’
Respondent then asked her: ‘‘What
areas are hurting?’’ Id. The video
indicates that the Officer answered that
her knee, left hip, and lower back were.
GX 14. Next, Respondent asked her to
numerically rank her pain level with
one ‘‘being no pain and ten being the
worst possible pain.’’ GX 6, at 2. The
Officer stated that her pain level was ‘‘a
six.’’ Id. Respondent then told her to
‘‘let me take your pulse.’’ Id.14
Following this, Respondent told the
Officer: ‘‘turn towards me, no turn, turn
back and back up, back up, back up,
that’s good * * * within your comfort
zone, if I ask you to do anything that
causes severe pain don’t do it.’’ Id. The
Officer acknowledged this by stating:
‘‘OK.’’ Id. at 3.
Respondent then directed the Officer
to ‘‘Put your head back, down to your
chest, back to normal position, ok head
to the side, the other side, back to
normal position, rotate, to the right,
back to normal position, bring your
shoulders up.’’ Id. The Officer then
stated: ‘‘like that hurts, down the center
of my back.’’ Id. Continuing,
Respondent stated to the Officer: ‘‘Side,
other side, back to the normal position,
backward and now touch your toes, turn
around, relax your arms,’’ and asked if
there was ‘‘no pain where [he was]
pressing.’’ Id. In response, the Officer
answered: ‘‘naw.’’ Id.
Next, Respondent told the Officer to
‘‘bring [your] right leg up as high as you
can.’’ Id. The Officer laughed.
Respondent then told the Officer to
‘‘bring [your] left leg up as high as you
can.’’ Id. He then told the Officer to
‘‘have a seat up here’’; the Officer
responded: ‘‘OK.’’ Id.
Continuing, Respondent instructed
the Officer to ‘‘hold your hands together
for me, relax, unpress them,’’ and
remarked ‘‘that’s tender.’’ Id. Next, he
told the Officer to ‘‘lay on your back,
cross your legs, raise your legs up,’’ and
then asked ‘‘where’s the pain?’’ Id. The
Officer answered: ‘‘my lower back.’’
Respondent then told the Officer to ‘‘sit
up,’’ and asked her several questions
regarding whether she had filed a report
with her insurance company, and
13 The ALJ further found that during the visit,
Respondent did not take a medical history or order
any diagnostic tests. Tr. 126.
14 In his testimony, Respondent maintained that
he listened to the Officer’s heart and lungs and that
a nurse took her blood pressure. Tr. 310, 312, 334.
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whether she was planning any legal
action. Id.
Respondent then left the room to get
another form. Id. When he returned,
Respondent explained to the Officer that
she had mild sprains of her neck,
middle lower back, left hip and both
knees. Id. He further noted that her
injuries would take four to six weeks to
heal and asked if she was paying cash
for her prescription. Id. After the Officer
stated ‘‘Yep,’’ Respondent told her that
he was going to prescribe a drug that
was a mild anti-inflammatory and pain
medication, as well as a mild muscle
relaxant to help her sleep. Id. With
respect to the first drug, Respondent
told the officer to ‘‘only take one twice
a day.’’ Id. Respondent also told the
Officer to take the muscle relaxant
‘‘every 12 hours if you have [a] muscle
spasm,’’ and to ice her knees three times
a day for fifteen minutes. Id. at 4.
Respondent further told the Officer to
come back ‘‘in a few weeks’’ and that
she could come back without making an
appointment. Id. Respondent prescribed
sixty tablets of Vicoprofen, a schedule
III controlled substance which contains
hydrocodone and ibuprofen, and Soma
(carisoprodol), a non-controlled
substance. GX 19, at 3.
The Eighth and Ninth Undercover Visits
On January 30, 2008, at 6:45 p.m., the
Officers who had previously posed as
Anthony Wilson and Richard Johnson
returned to Respondent’s office. GX 7, at
1. At 7:49 p.m., Respondent asked:
‘‘Who’s for prescription refills?’’ GX 7,
at 1. The Officer posing as Anthony
Wilson answered: ‘‘Right here.’’ Id.
Seven minutes later, the Officer told
Respondent that the ‘‘last time I have
my wife with me, but she couldn’t make
it today, can I pick up her script for
her?’’ Id. Respondent replied: ‘‘your
wife, yeah, you can do that one time.’’
Id. The Officer then stated: ‘‘thank you,
that’s for her and that’s for me.’’ Id.
Respondent then said: ‘‘OK, you gotta
tell me who the wife is.’’ Id. The Officer
stated that his wife’s name was ‘‘Shania
Wilson.’’ 15 Id. Respondent subsequently
gave the Officer prescriptions issued in
the name of T. Wilson for 60 Xanax (1
mg.), and 90 Percocet (5/325 mg.). See
GX 20, at 1–2; GX 7, at 2.16
Shortly thereafter, Respondent asked
the Officer: ‘‘Which Percocet are you
getting—either yellow or the greens
15 As was the Officer’s undercover identity,
Shania Wilson was also a fictitious name.
16 While Shania Wilson was not a real person, the
DEA Agent testified that he believed that
Respondent had a patient with the name that
Respondent used on the prescriptions. Tr. 144, 229.
To protect her privacy, her first name will not be
used.
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ones?’’ GX 7, at 2. The Officer answered:
‘‘the yellow.’’ Id. Respondent then gave
the Officer prescriptions issued in the
name of Anthony Wilson for 60 Xanax
(1 mg.) and 90 Percocet (10/325 mg.). Id.
Respondent also issued to the Officer
posing as Richard Johnson prescriptions
for 90 Percocet (10/325 mg.) and 60
Xanax (1 mg.). GX 20, at 3. During these
visits, Respondent did not perform any
type of examination on either of the
Officers and did not even discuss with
them their conditions. Tr. 144–45.
Regarding his issuance of the
prescription to the first Officer’s
fictitious wife, Respondent testified that
he told the Officer that he normally did
not do this but that the Officer had
stated that his wife ‘‘was in such severe
pain that she couldn’t get out of bed,
and she really needed a refill.’’ Id. at
317. Respondent further asserted that
the Officer had given him the name ‘‘T
------,’’ so he ‘‘pulled her chart,’’ and
‘‘verified that,’’ and ‘‘wrote the
prescription.’’ Id. at 318. Respondent
further maintained that he based his
decision on when Ms. Wilson ‘‘had her
last refill.’’ Id. Respondent, however,
produced no evidence from this
patient’s chart establishing that he had
previously diagnosed her with a
condition that warranted the prescribing
of Percocet and Xanax. Moreover, the
only evidence on this issue indicated
that the real Ms. Wilson had last been
prescribed Percocet more than four
months earlier. See GX 45, at 95.
The ALJ specifically found incredible
Respondent’s testimony regard his
filling of the prescription for the
fictional Ms. Wilson. ALJ at 18. While
Respondent may have pulled a chart for
the real Ms. Wilson, see GX 7, at 2
(Officer stating ‘‘that’s my wife there’’);
neither the transcript nor the video
contain any evidence that the Officer
had represented that his wife was in
such severe pain that she could not get
out of bed. Accordingly, I adopt the
ALJ’s credibility finding to the extent
she rejected Respondent’s testimony
that the Officer represented that his wife
was in severe pain and could not get out
of bed and his testimony that he based
his decision on when Ms. Wilson had
her last refill.17
Respondent also testified regarding
his having issued prescriptions before
previous prescriptions which were for a
thirty-day supply should have run out.
As found above, Respondent issued
prescriptions for both 60 Xanax and 90
Percocet to the Officer who posed as
17 In his testimony, Respondent did not identify
when he had last seen the patient or the medical
condition which justified the prescribing of
Percocet and Xanax.
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Anthony Wilson on December 14, 2007,
and on January 3, 18, and 30, 2008.
Moreover, Respondent issued
prescriptions for Xanax and Percocet to
Richard Johnson on both January 18 and
30, 2008.
Regarding these prescriptions,
Respondent testified that ‘‘[i]n one case
the person indicated that they were
going to be away during that particular
week, and [asked] could they get their
prescriptions a week early.’’ Tr. 318–19.
Respondent further explained that with
respect to the other patient, ‘‘it was a
matter of not being able to locate that
individual’s chart, and because I
couldn’t locate the chart, at that
particular time, which was I think the
18th of January or so, I took him at his
word and good faith.’’ Id. at 319.
Continuing, Respondent testified: ‘‘I
asked him, I said, ‘Are you sure that it
has been 30 days since you had your
last prescription?’ And he said, ‘Yes, it
was.’ So, then, I wrote out his
prescription.’’ Id. Respondent also
maintained that ‘‘what happened was
that [the] copy that was made did not
get back into his chart, so when he came
back on the 30th, it looked as though
* * * he was * * * last here on around
the 30th of December, so he was issued
another prescription.’’ Id.
Respondent further attempted to
justify his issuance of early
prescriptions by contending that there
were ‘‘safeguards’’ in place against the
early filling of his prescriptions. Id.
More specifically, Respondent testified
that if the patient ‘‘either takes it to the
same pharmacy or tries to use his
insurance, they will notify me that the
prescription has been filled less than 30
days, and then I can reject it.’’ Id.
It is unclear whether the ALJ credited
Respondent’s testimony regarding his
issuance of the early prescriptions to
Anthony Wilson and Richard Johnson.
See ALJ at 17–18.18 In any event, as
ultimate factfinder, I reject Respondent’s
testimony. Respondent’s testimony was
vague in that he did not identify which
of the two undercover Officers had
stated that he was going to be away and
needed the new prescription/early
refill.19 Moreover, there is no credible
evidence to support Respondent’s claim
that either Officer (Anthony Wilson or
Richard Johnson) had ever represented
that they were going to be away when
their prescriptions ran out. As for
18 In contrast to the testimony regarding
Respondent’s issuance of a prescription to Ms.
Wilson which she specifically rejected, the ALJ did
not expressly address whether she found this
testimony credible. ALJ at 17–18.
19 Under Federal law, a prescription for a
schedule II controlled substance cannot be refilled.
21 U.S.C. § 829(a).
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Respondent’s assertion that he asked the
other patient whether it had been thirty
days since the last prescription, there is
likewise no credible evidence of his
having done so.
I also reject Respondent’s testimony
regarding the safeguards to protect
against the early filling of prescriptions.
As for his contention that an insurance
company would notify him if a patient
attempted an early refill, notably the
undercover officers did not use
insurance, but rather, paid cash for their
visits. As for Respondent’s contention
that the pharmacy would notify him
that a patient was attempting an early
refill, this would be true only if the
patient used the same pharmacy. Drug
abusers typically know better than to
take an early refill to the same pharmacy
(unless the pharmacy is in cahoots with
the prescriber).
Other Evidence
Both parties also submitted into
evidence additional patient records. The
Government introduced sixteen patient
files; nearly all of the patients received
prescriptions for Percocet and Xanax.
See GXs 24–39. Moreover, some of the
files lack documentation of a physical
exam and/or a medical history. See GX
25 (J.L.); GX 26 (E.L.); GX 27 (J.L.); GX
31 (A.L.); GX 32 (B.L.); GX 33 (O.G.); GX
34 (B.G.); GX 35 (J.L.); GX 36 (M.K.); GX
38 (R.K.); GX 39 (M.G.).
Respondent submitted four patient
files into evidence. Notably, and in
contrast to the patient files cited above,
three of these files contain extensive
documentation of the findings of an
initial physical exam, Respondent’s
assessment/diagnosis, and his treatment
recommendations. See RX 13A, at 670–
72; RX 13B, at 764; RX 13D, at 4740–
42. Moreover, each of the files contains
documentation of the physical exams
performed, the assessments made, and
treatment recommendations given on
followup visits. See RX 13A, at 677–78,
681–82, 694; 702, 703; RX 13B, at 774,
781, 788, 814; RX 13C, at 4024, 4035;
RX 13D, at 4727–28, 4731, 4746, 4753,
4754, 4757, 4759–61, 4762, 4775.
Respondent also introduced into
evidence copies of four different notices
he had posted in his office. Two of these
warned his patients that it was a felony
offense to obtain prescription drugs by
fraud or ‘‘for other than prescribed
reasons,’’ as well as to resell them. RXs
1 & 2. Another notice listed numerous
excuses used by drug-abusing patients
to obtain early refills and which
Respondent deemed to be
‘‘unacceptable.’’ RX 3.
In the fourth of the notices,
Respondent stated that it had recently
come to his attention that several of his
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v. DEA, 412 F.3d 165, 173–74 (D.C. Cir.
2005).
Having considered all of the statutory
factors, I conclude that on balance, the
evidence pertaining to Respondent’s
experience in dispensing controlled
substances (factor two) and his record of
compliance with applicable laws related
to the prescribing of controlled
substances (factor four) establish that
his continued registration would be
‘‘inconsistent with the public
interest.’’ 21 21 U.S.C. 823(f). Moreover,
while I do not find that all of the
prescriptions he issued were illegal
under Federal law, I agree with the
ALJ’s finding under factor five that
Respondent has failed acknowledge his
wrongdoing and therefore cannot be
entrusted with a registration.
Discussion
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patients were ‘‘faking their illnesses,
injuring themselves intentionally an
[sic] lying to [him] for the purpose of
obtained controlled III prescriptions
(I.E. Perococet [sic]) and controlled II
prescriptions (Xanax).’’ RX 4.
Respondent further asserted that ‘‘I am
sickened by you individuals,’’ and that
‘‘I am not a ‘dirty doctor.’ ’’ Id.
Respondent then maintained that he
was going to discharge ‘‘[a]ll patient
[sic] referred by the individual who
have not been in auto accidents who are
not treating three times per week.’’ Id.
Respondent further stated that he would
‘‘no longer prescribe Controlled III [and]
Controlled II medications to anyone,’’
and while he would continue to treat all
of his legitimate patients, he would so
‘‘without Controlled II or III
medications.’’ Id.20
Factor Two and Four—Respondent’s
Experience in Dispensing Controlled
Substances and Record of Compliance
With Applicable Controlled Substance
Laws
Section 304(a) of the Controlled
Substances Act (CSA) 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). With
respect to a practitioner, the Act
requires the consideration of the
following factors in making the public
interest determination:
(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, 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
20 Respondent also introduced into evidence
copies of various prescriptions which he
maintained had been written by patients who had
stolen his prescription pads. See RXs 5–10.
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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. See also 21 U.S.C.
802(10) (defining the term ‘‘dispense’’ as
meaning ‘‘to deliver a controlled
substance to an ultimate user * * *
pursuant to the lawful order of * * * a
practitioner, including the prescribing
and administering of a controlled
substance’’) (emphasis added).
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, 546 U.S. 243, 274
21 I acknowledge that there is no evidence that the
Pennsylvania Board has taken action against
Respondent’s medical license (factor one). There is
also no evidence that Respondent has been
convicted of an offense related to controlled
substances under Federal or State law (factor three).
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43265
(2006) (citing Moore, 423 U.S. 122, 135
(1975)).22
Consistent with the standards of
Federal law, Pennsylvania law prohibits
‘‘[t]he * * * prescription of any
controlled substance by any practitioner
* * * unless done (i) in good faith in
the course of his professional practice;
(ii) within the scope of the patient
relationship; (iii) in accordance with
treatment principles accepted by a
responsible segment of the medical
profession.’’ 35 Pa. Stat. § 780–
113(a)(14). Moreover, under the
Pennsylvania Administrative Code, a
practitioner must meet certain
‘‘minimum standards’’ 23 before
prescribing a controlled substance
including taking an initial medical
history and conducting ‘‘an initial
physical examination * * * unless
emergency circumstances justify
otherwise.’’ 24 49 Pa. Code § 16.92(a)(1).
Furthermore, ‘‘[t]he physical
examination shall include an evaluation
of the heart, lungs, blood pressure and
body functions that relate to the
patient’s specific complaint.’’ Id.
(emphasis added).
This regulation also requires that a
physician provide ‘‘[a]ppropriate
counseling * * * to the patient
regarding the condition diagnosed and
the controlled substance prescribed.’’ Id.
§ 16.92(a)(3). Furthermore, ‘‘[u]nless the
patient is in an inpatient care setting,
the patient shall be specifically
counseled about dosage levels,
instructions for use, frequency and
duration of use and possible side
effects.’’ Id.
Finally, the regulation requires that
the physician record ‘‘certain
information * * * in the patient’s
medical record on each occasion when
a controlled substance is prescribed,’’
which ‘‘shall include the name of the
controlled substance, its strength, the
22 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.’’ 21 CFR
1306.04(a); see also United States v. Moore, 423
U.S. 122, 142–43 (1975). The CSA, however,
generally looks to state law to determine whether
a doctor and patient have established a bonafide
doctor-patient relationship. See Kamir GarcesMejias, 72 FR 54931, 54935 (2007); United
Prescription Services, Inc., 72 FR 50397, 50407–08
(2007); Dispensing and Purchasing Controlled
Substances Over the Internet, 66 FR 21181, 21182–
83 (2001).
23 The regulation further states that it ‘‘establishes
minimum standards for the prescription,
administration and dispensation of controlled
substances by persons licensed to practice medicine
and surgery in’’ Pennsylvania. 49 Pa. Code
§ 16.92(b).
24 Respondent does not contend that any of the
undercover patients presented a medical
emergency.
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quantity and the date it was
prescribed.’’ Id. § 16.92(a)(4). The
regulation further mandates that ‘‘[o]n
the initial occasion when a controlled
substance is prescribed * * * to a
patient, the medical record shall * * *
include a specification of the symptoms
observed and reported, the diagnosis of
the condition for which the controlled
substance is being given and the
directions given to the patient for the
use of the controlled substance.’’ Id.
Applying these standards, I do not
find that the Government has proved
that each of the prescriptions issued to
the undercover officers violated Federal
law. The evidence nonetheless
establishes that on several occasions,
Respondent issued prescriptions to the
undercover officers for Percocet and
Xanax—both of which are highly abused
drugs—that did not comply with
Federal law. I further find—based on the
lack of any supporting documentation of
a physical exam in various files—that
Respondent issued numerous other
prescriptions for controlled substances
in violation of Pennsylvania’s
regulation.
The Visits of Nicole Hodge
At the outset, I note that Respondent
did not commit any illegal acts when he
was first approached by ‘‘Nicole
Hodge.’’ Rather, when the Officer asked
for Percocet and made clear that she was
not injured, Respondent told her to
leave his office, and did not issue her
any prescription.
Respondent’s interaction with ‘‘Nicole
Hodge’’ during the second visit is more
problematic. The evidence shows that
Respondent specifically questioned her
about what areas were hurting and
asked her to rank her pain level. The
Officer unambiguously presented a
medical complaint by stating that her
‘‘lower back’’ was hurting and that her
pain level was ‘‘six’’ on a scale of one
to ten. Respondent then put the Officer
through several different range-ofmotion tests. Moreover, Respondent
took her pulse. Finally, Respondent
diagnosed her injuries, explained his
diagnosis and treatment
recommendations, and provided the
Officer with instructions on how to take
the medicines he prescribed.
The ALJ did not credit Respondent’s
testimony that he listened to the
Officer’s heart and lungs and had a
nurse take her blood pressure. Tr. 310
& 312. Moreover, there is no
documentation in the patient file that he
did so. See GX 23, at 7. That being said,
as the Supreme Court explained in
Gonzalez, ‘‘the [CSA] and our case law
amply support the conclusion that
Congress regulates medical practice
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Jkt 214001
insofar as it bars doctors from using
their prescription-writing powers as a
means to engage in illicit drug dealing
and trafficking as conventionally
understood.’’ 546 U.S. at 270.
Likewise, numerous court decisions
make plain that the offense of unlawful
distribution requires proof that the
practitioner’s conduct went ‘‘beyond the
bounds of any legitimate medical
practice, including that which would
constitute civil negligence.’’ United
States v. McIver, 470 F.3d 550, 559 (4th
Cir. 2006); see also United States v.
Feingold, 454 F.3d 1001, 1010 (9th Cir.
2006) (‘‘[T]he Moore Court based its
decision not merely on the fact that the
doctor had committed malpractice, or
even intentional malpractice, but rather
on the fact that his actions completely
betrayed any semblance of legitimate
medical treatment.’’). As the Fourth
Circuit has further explained, ‘‘the
scope of unlawful conduct under
§ 841(a)(1) [requires proof that a
physician] used his authority to
prescribe controlled substances * * *
not for treatment of a patient, but for the
purpose of assisting another in the
maintenance of a drug habit or some
other illegitimate purposes, such as his
own personal profit.’’ 470 F.3d at 559
(int. quotations and citation omitted).
Accordingly, while Respondent’s
failure to listen to the Officer’s heart and
lungs and take her blood pressure
violated Pennsylvania’s regulation, the
totality of the evidence surrounding this
visit does not establish that he, in
issuing the Vicoprofen prescription to
Ms. Hodge, lacked a legitimate medical
purpose and acted outside of the course
of professional practice. The Officer
presented a medical complaint,
identified specific areas of her body as
the cause of her pain, and complained
of a relatively high pain level. Moreover,
at no point did the Officer convey to
Respondent that she was not in pain.
Notwithstanding that Respondent failed
to perform several steps required by
Pennsylvania law, the physical exam he
conducted cannot be characterized as
deficient or cursory in the absence of
expert testimony establishing as much.
At most, the evidence suggests that
Respondent committed malpractice. It
does not, however, support the
conclusion that Respondent used his
prescription writing authority to engage
in illicit drug dealing when he issued
the Vicoprofen prescription to Ms.
Hodge.25 See McIver, 470 F.3d at 559.
25 The Government does not cite to any decision
in which the Pennsylvania Courts or Medical Board
have held that a physician’s failure to comply with
this regulation in all respects establishes a violation
of the Pennsylvania Controlled Substances Act.
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The Visits of Anthony Wilson
At his first visit, Anthony Wilson
presented as his medical complaint that
he ‘‘Hurt All Over,’’ that the location of
his condition was ‘‘all over,’’ and its
severity was ‘‘bad pain.’’ While
Respondent did not ask the Officer to
rate his pain level on a numerical scale,
the Government offered no evidence to
show that a practitioner must do so
when the patient has already indicated
that he has ‘‘bad pain.’’
The evidence further establishes that
Respondent’s physical exam was
limited to touching him lightly on the
shoulder and back, that Respondent did
not listen to his heart and lungs, and
that neither Respondent nor anyone else
took his blood pressure. Based on this
physical exam, and without ordering
any diagnostic testing, Respondent
diagnosed the Officer as having back
and neck contusions and issued him
prescriptions for 90 Percocet (10 mg.),
60 Xanax (1 mg.), as well as Cataflam,
a non-controlled drug.26 Respondent
did not, however, counsel the patient
regarding the taking of the drugs. At a
minimum, Respondent’s conduct
violated Pennsylvania’s Administrative
Regulation pertaining to the prescribing
of controlled substances.27
On January 3, 2008—less than three
weeks later—the Officer returned. While
Respondent asked the Officer how he
was doing and pressed on his back and
26 Based on the dosing instructions, both the
Percocet and Xanax should have lasted thirty days.
27 Respondent’s conduct creates a strong
suspicion that his prescribing exceeded the course
of professional practice as this term is used in
Federal law and was also not ‘‘in accordance with
treatment principles accepted by a responsible
segment of the medical profession’’ as required by
Pennsylvania law. 35 P.S. § 780–113(a)(14). But
while the Government cited several cases which
upheld the convictions of physicians who engaged
in similar conduct to Respondent, in all but one of
the cases there was expert testimony establishing
that the physician’s conduct exceeded the bounds
of professional practice. See United States v. Bek,
493 F.3d 790, 799–800 (7th Cir. 790); McIver, 470
F.3d at 556; Feingold, 454 F.3d at 1005; United
States v. Alerre, 430 F.3d 681, 686 (4th Cir. 2005).
Moreover, in the only case cited by the
Government in which there was no expert
testimony, the undercover officer made clear that he
was seeking Percocet to party and would share the
drugs with others. United States v. Celio, 230 Fed.
Appx. 818, 822 (10th Cir. 2007). By contrast, in this
case, with the exception of the first visit of Nicole
Hodge, the undercover officers frequently
complained of pain and made no statements which
indicated that they were seeking the drugs for nonmedical purposes.
The Government also cites a state case to contend
that ‘‘expert testimony is not always necessary to
determine whether a practitioner may be convicted
under’’ the Pennsylvania statute. Gov. Prop.
Findings at 11 n.2 (citing Commonwealth v.
Manuel, 844 A.2d 1 (Pa. Super. Ct. 2004).
Notwithstanding the court’s statement in Manuel,
there, the State presented expert testimony as to the
appropriateness of the physician’s prescribing
practices. See 844 A.2d at 11.
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Federal Register / Vol. 73, No. 143 / Thursday, July 24, 2008 / Notices
shoulder, he proceeded to issue him
more prescriptions for 90 Percocet and
60 Xanax even though the prescription
he had previously issued should not
have been exhausted. Respondent did
not ask the Officer why he needed his
prescription refilled ten days early.
Furthermore, the Respondent did not
document the prescribing in the
Officer’s patient file as required by the
Pennsylvania regulation.
On January 18, 2008—only fifteen
days after the previous visit—the Officer
saw Respondent again. Respondent
asked the Officer how we was doing,
and performed a physical exam which
was limited to having the Officer
attempt to bend his knees and try to
touch his toes. While Respondent asked
whether he had previously given the
Officer Percocet 10s and Xanax, once
again he did not question the Officer as
to why he had returned when the
second prescription should have lasted
another fifteen days. Respondent
nonetheless gave the Officer another
prescription for 90 Percocet (10/325)
and 60 Xanax (1 mg.).
On January 30, 2008—which was only
twelve days since the previous visit—
the Officer returned to Respondent’s
clinic for a fourth time. Approximately
one hour after his arrival, Respondent
appeared in the waiting area and asked:
‘‘Who’s for prescription refills?,’’ to
which the Officer said: ‘‘right here.’’
A few minutes later, the Officer told
Respondent that the ‘‘last time I have
my wife with me, but she couldn’t make
it today, can I pick up her script for
her?’’ Respondent replied that the
Officer could ‘‘do that one time.’’ The
Officer subsequently told Respondent
that his wife’s name was ‘‘Shania
Wilson.’’ Subsequently, Respondent
issued prescriptions to Anthony Wilson
for 90 Percocet (10/325 mg.) and 60
Xanax (1 mg.). He also issued
prescriptions for a T. Wilson for 90
Percocet (5/325 mg.) and 60 Xanax (1
mg.), which he gave to the Officer.
Notably, Respondent did not even ask
the Officer how he was doing and
issued the prescriptions to him without
even the pretense of conducting a
physical exam. Indeed, the only
question he asked the Officer was which
color Percocet tablet he was getting,
thus giving the ‘‘patient’’ the right to
decide what strength of drug he wanted.
Moreover, it was the third time in less
than a month that the Officer had sought
prescriptions for these drugs well before
the previously issued prescriptions
should have run out. Yet again,
Respondent did not question the Officer
as to why he had returned so soon.
Given these circumstances, expert
testimony is not required to conclude
VerDate Aug<31>2005
15:14 Jul 23, 2008
Jkt 214001
that in issuing these prescriptions,
Respondent exceeded the bounds of
professional practice and that the
prescriptions lacked a legitimate
medical purpose because Respondent
failed to take any steps to determine
whether there was a continuing medical
need for the prescriptions. See 21 CFR
1306.04. Beyond that, he issued the
prescriptions notwithstanding that even
a cursory review of the Officer’s file
would have indicated that he had issued
prescriptions to the Officer only twelve
days earlier. Likewise, the decision as to
what strength of drug a patient should
take is the physician’s responsibility
and is not the province of the patient.
In short, Respondent’s issuance of the
prescriptions on this date does not
remotely resemble the legitimate
practice of medicine or even the
negligent practice of legitimate
medicine. Rather, it is out-and-out drug
pushing.
Likewise, expert testimony is not
required to conclude that Respondent
lacked a legitimate medical purpose and
exceeded the bounds of professional
practice in issuing the prescriptions for
the Officer’s fictitious wife. Notably, the
Officer had repeatedly sought and
obtained new prescriptions well before
previous prescriptions would have run
out and had thus demonstrated a clear
and obvious pattern of drug-seeking
behavior. Moreover, Respondent issued
the prescriptions to a patient who was
not physically present and thus could
neither be questioned as to whether she
had a medical condition that required
controlled substances nor physically
examined. And he did so
notwithstanding that the Officer made
no representation that his ‘‘wife’’ had a
medical need for the prescriptions.
Furthermore, Respondent did not
even attempt to contact ‘‘her’’ to
determine whether there was a medical
justification for the prescriptions. Cf. 49
Pa. Code § 16.92(a)(5) (authorizing the
issuance of a ‘‘a prudent, short-term
prescription’’ based on ‘‘an emergency
phone call by a known patient’’).
Finally, both the Percocet and Xanax
prescriptions were for a thirty-day
supply and appear to be well beyond
what Pennsylvania authorizes on an
emergency basis.28
I thus conclude that Respondent
exceeded the bound of professional
if the Officer pointed to the patient file
for a real Ms. Wilson, the fact remains that the
Officer did not identify any medical reason for why
his ‘‘wife’’ needed a prescription. Moreover,
Respondent made no attempt to contact Ms. Wilson
to determine whether she had a continuing medical
need for the prescription and whether the
requirements were met for issuing an emergency
prescription under Pennsylvania’s regulation.
PO 00000
28 Even
Frm 00067
Fmt 4703
Sfmt 4703
43267
practice in issuing the prescriptions to
Ms. Wilson and that these prescriptions
were not supported by a legitimate
medical purpose. 21 CFR 1306.04. In
short, Respondent’s issuance of these
prescriptions was not simply the
negligent practice of medicine but rather
drug pushing.
The Visits of Richard Johnson
On January 18, 2008, another
undercover officer, who used the name
Richard Johnson, visited Respondent.
When asked by Respondent whether it
was his first visit, the Officer
represented that he had previously seen
Respondent on December 14th although
he had not. Later, and apparently while
in the exam room, Respondent asked the
Officer how he had been doing since he
was put on pain medication; the Officer
answered ‘‘pretty good.’’ Respondent
asked a followup question as to whether
the medication worked well; the Officer
answered ‘‘yes.’’
The evidence establishes that
Respondent performed a limited
physical examination by lightly tapping
the Officer on the back and shoulder.
Moreover, Respondent acknowledged
that he had been taking the yellow ones
(a reference to Percocet) and the blue
ones (a reference to Xanax). Respondent
then stated that he was going to refill
the Officer’s prescriptions and issued
him prescriptions for 90 Percocet and 60
Xanax. During the subsequent search of
Respondent’s office, no file was found
for Richard Johnson.
While it is clear that the Officer
misrepresented his status as a prior
patient, there is no evidence
establishing that Respondent knew this
to be false. Moreover, the Government
produced no evidence regarding the
proper course of professional practice
when a patient represents that he has
recently been treated and the physician
cannot find the patient’s medical
records. At most then, the evidence
establishes that Respondent violated
Pennsylvania’s regulation because he
failed to document the issuance of the
prescriptions.29 See 49 Pa. Code
§ 16.92(a)(4).
Twelve days later, Richard Johnson
returned to Respondent’s office.
Respondent issued him prescriptions for
90 Percocet (10/325 mg.) and 60 Xanax
(1mg.) without even asking him about
29 While the Pennsylvania regulation clearly
requires that a practitioner perform a physical
examination (or that one has been performed by
another practitioner within the ‘‘immediately
preceding 30 days,’’ 49 Pa. Code § 16.92(a)(1)),
before commencing treatment with a controlled
substance, the Government produced no evidence
establishing that a physical examination is required
at every follow-up visit at which a controlled
substance is prescribed.
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43268
Federal Register / Vol. 73, No. 143 / Thursday, July 24, 2008 / Notices
his condition. Moreover, Respondent
did not ask the Officer as to why he
needed new prescriptions after only
twelve days. Given the circumstances of
this visit, it is clear that there was no
legitimate medical purpose for the
prescriptions and that Respondent
exceeded the bounds of professional
practice in issuing them. See 21 CFR
1306.04(a). As was the case with the
prescriptions issued to the Officer on
January 18, Respondent did not
document the prescriptions and violated
the Pennsylvania regulation for this
reason as well. 49 Pa. Code § 16.92(a)(4).
The Visit of John Rio
ebenthall on PRODPC60 with NOTICES
On the night that ‘‘Nicole Hodge’’
made her second visit, an Officer posing
as ‘‘John Rio’’ accompanied her.
Although the Officer had not previously
been to Respondent’s office, he told
Respondent that he had been. Moreover,
when asked by Respondent if he had
back pain, the Officer answered
affirmatively. Respondent then
recommended that the Officer receive
twenty minutes of physical therapy and
either Respondent or an assistant
proceeded to set up the machine and
started the treatment. After the Officer
complained that the treatment hurt too
much, Respondent told an assistant to
cut back the level of the treatment.
While the Officer subsequently
disconnected the machine and told
Respondent’s staff that he was doing so,
there is no evidence that Respondent
was advised of this. During the visit,
Respondent gave the Officer
prescriptions for 90 Percocet, 30 Xanax,
and a muscle relaxant which is not
controlled. Moreover, during the
subsequent search of Respondent’s
office, the authorities did not find a
patient file for him.
As was the case with the first visit of
‘‘Richard Johnson,’’ the evidence does
not establish that Respondent violated
Federal law in issuing the prescriptions.
Here again, there is no evidence as to
the proper course of professional
practice when a patient represents that
he has previously been treated by a
physician. At most, the evidence
establishes a violation of the
Pennsylvania regulation requiring that
each issuance of a controlled-substance
prescription be documented in the
patient’s medical record. See 49 Pa.
Code § 16.92(a)(4).
Other Violations
As found above, the record includes
numerous patient files which show that
Respondent prescribed controlled
substances and yet lack any
documentation that he (or another
VerDate Aug<31>2005
15:14 Jul 23, 2008
Jkt 214001
physician 30) took a medical history,
performed a physical examination and
diagnosed a medical condition which
warranted the various prescribings.
Indeed, the documentation contained in
these files is charitably described as
threadbare and stands in stark contrast
to the level of thoroughness and detail
found in the four patient files which
Respondent submitted as evidence of
the appropriateness of his
recordkeeping practices. Compare, e.g.,
GXs 25–27, 31–36, 38–39, with RXs
13A–D; see also Tr. 302–306
(Respondent’s testimony that RXs 13A–
D were ‘‘representative of how [he]
maintained a patient file’’). At a
minimum, this evidence establishes
numerous additional instances in which
Respondent violated the Pennsylvania
regulation.
In any event, while the Government’s
proof does not establish that each of
Respondent’s prescribings to the
undercover officers violated the
prescription requirement of Federal law
and were thus unlawful distributions
under 21 U.S.C. 841(a), it has shown
that several of them did. See 21 CFR
1306.04(a).31 Moreover, the record
clearly establishes that Respondent
49 Pa. Code § 16.92(a)(1).
have also considered the evidence regarding
the first undercover visit during which the Officer
told Respondent that she was not injured and
brazenly asked for a prescription for Percocet.
While I acknowledge that Respondent threw the
Officer out of his office, the mitigating character of
this evidence is outweighed by the incidents in
which Respondent wrote prescriptions without
inquiring as to why the Officers were prematurely
seeking new prescriptions, the incident in which
Respondent provided the Officers with the
prescriptions without even inquiring as to whether
there was a continuing medical need for them, and
the issuance of the prescriptions to the Officer’s
fictitious wife. Indeed, it may well be that
Respondent believed the first incident to be a setup or that he would only issue prescriptions to
those who claimed to be injured as alleged by the
caller who reported him to the police.
I further conclude that the various signs
Respondent posted in his office are entitled to no
weight in determining whether he is a responsible
dispenser of controlled substances. See Resp. Ex. 2
(‘‘Obtaining controlled prescriptions (Percocet and
or Xanax) by deception (faking injuries or lying
about pain) is a Class B Felony.’’); Resp. Ex. 4
(noting that patients were intentionally lying to
Respondent ‘‘about the nature of their injuries for
the purpose of obtaining’’ Percocet and Xanax).
Indeed, it is strange that Respondent would
expressly refer to Percocet and Xanax in the notices
as if these are the only drugs available to treat pain
and other medical conditions. I further note that
with the exception of Ms. Hodge, each of the
Officers was prescribed the same drugs—Percocet
and Xanax.
As for RX 3, which catalogued a list of
‘‘unacceptable excuses’’ used by persons seeking
early refills, and stated that patients should ‘‘not
ask [him] for anymore medication until it is your
time to get refilled,’’ Respondent did not ask either
of the undercover officers who sought new
prescriptions prematurely why they were doing so.
This suggests that notwithstanding this document,
Respondent’s policy was ‘‘don’t ask, don’t tell.’’
PO 00000
30 See
31 I
Frm 00068
Fmt 4703
Sfmt 4703
repeatedly failed to properly document
the necessity for prescribing controlled
substances to numerous patients and to
properly counsel his patients regarding
the taking of the drugs. See 49 Pa. Code
§ 16.92(a). I thus conclude that
Respondent’s experience in dispensing
controlled substances and his record of
compliance with applicable laws and
regulations amply demonstrates that his
continued registration ‘‘is inconsistent
with the public interest.’’ 21 U.S.C.
823(f).
Factor Five—Such Other Factors
Under Agency precedent, where, as
here, ‘‘the Government has proved that
a registrant has committed acts
inconsistent with the public interest, a
registrant must ‘present sufficient
mitigating evidence to assure the
Administrator that [he] can be entrusted
with the responsibility carried by such
a registration.’ ’’ Medicine ShoppeJonesborough, 73 FR 363, 387 (2008)
(quoting Samuel S. Jackson, 72 FR
23848, 23853 (2007) (quoting Leo R.
Miller, 53 FR 21931, 21932 (1988)).
Moreover, because ‘‘past performance is
the best predictor of future performance,
ALRA Labs, Inc. v. DEA, 54 F.3d 450,
452 (7th Cir. 1995), [DEA] has
repeatedly held that where a registrant
has committed acts inconsistent with
the public interest, the registrant must
accept responsibility for its actions and
demonstrate that it will not engage in
future misconduct.’’ Medicine Shoppe,
73 FR at 387; see also Jackson, 72 FR at
23853; John H. Kennedy, 71 FR 35705,
35709 (2006); Prince George Daniels, 60
FR 62884, 62887 (1995). See also Hoxie
v. DEA, 419 F.3d at 483 (‘‘admitting
fault’’ is ‘‘properly consider[ed]’’ by
DEA to be an ‘‘important factor[]’’ in the
public interest determination).
The record supports the conclusion
that Respondent has not accepted
responsibility for his misconduct. As
found above, Respondent’s testimony
regarding both his issuance of the
prescriptions for the Officer’s fictitious
wife and the early prescriptions was not
credible. Moreover, Respondent’s
testimony that ‘‘it was never my intent
to give more medication’’ than a thirtyday supply, Tr. 322–23, is belied by his
failure to ever ask the two Officers (on
their subsequent visits) why they had
returned so soon and were in need of
additional drugs.
Indeed, when Anthony Wilson
returned for the fourth and final time,
Respondent did not even ask him about
his condition. Respondent nonetheless
failed to offer any explanation as to why
he issued him two more prescriptions
(and did so only twelve days after
having issued other prescriptions).
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Federal Register / Vol. 73, No. 143 / Thursday, July 24, 2008 / Notices
Respondent likewise offered no
explanation as to why he failed to
properly document his prescribings to
the various undercover officers or
counsel his patients regarding the
proper taking of the drugs.
Because Respondent has failed to
acknowledge his wrongdoing, he has
not rebutted the Government’s prima
facie case. I therefore conclude that his
continued registration would be
‘‘inconsistent with the public interest,’’
21 U.S.C. 823(f), and that his
registration should be revoked.32
Regarding Prohibitions Imposed by
Section 205(d) of the Federal Credit
Union Act.
6. Request for Board Authorization to
Seek Approval for a New Agency Seal.
FOR FURTHER INFORMATION CONTACT:
Mary Rupp, Secretary of the Board,
Telephone: 703–518–6304.
Order
Pursuant to the authority vested in me
by 21 U.S.C. 823(f) & 824(a), as well as
28 CFR 0.100(b) & 0.104, I hereby order
that DEA Certificate of Registration,
BM7201267, issued to Laurence T.
McKinney, M.D., be, and it hereby is
revoked. I further order that any
pending application to renew or modify
the registration be, and it hereby is,
denied. This Order is effective August
25, 2008.
NATIONAL SCIENCE FOUNDATION
Dated: July 17, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8–16948 Filed 7–23–08; 8:45 am]
BILLING CODE 4410–09–P
NATIONAL CREDIT UNION
ADMINISTRATION
Sunshine Act; Notice of Agency
Meeting
ebenthall on PRODPC60 with NOTICES
Time and Date: 10 a.m., Thursday,
July 24, 2008.
Place: Board Room, 7th Floor, Room
7047, 1775 Duke Street, Alexandria, VA
22314–3428.
Status: Open.
Matters To Be Considered:
1. Request from Horizon One Federal
Credit Union to Convert to a
Community Charter.
2. Quarterly Insurance Fund Report.
3. Reprogramming of NCUA’s
Operating Budget for 2008.
4. Proposed Rule: Parts 702 and 704
of NCUA’s Rules and Regulations,
Prompt Corrective Action; Amended
Definition of Post-Merger Net Worth.
5. Final Interpretive Ruling and Policy
Statement (IRPS) 08–1, Guidance
32 Respondent argues that the ALJ erred in
recommending revocation rather than a lesser
sanction. DEA has, however, repeatedly held that
revocation is the appropriate sanction in cases in
which it has been shown that a practitioner has
used his prescription-writing authority to deal
drugs. See, e.g., Randi M. Germaine, 72 FR 51665
(2007); Peter A. Ahles, 71 FR 50097 (2006).
Moreover, as explained above, Respondent has
offered no evidence that he acknowledges his
misconduct.
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15:14 Jul 23, 2008
Jkt 214001
Mary Rupp,
Secretary of the Board.
[FR Doc. E8–16810 Filed 7–23–08; 8:45 am]
BILLING CODE 7535–01–M
Notice of permit applications received
Under the Antarctic Conservation Act
of 1978 (Pub. L. 95–541)
National Science Foundation.
Notice of permit applications
received under the Antarctic
Conservation Act of 1978, Pub. L. 95–
541.
AGENCY:
ACTION:
The National Science
Foundation (NSF) is required to publish
notice of permit applications received to
conduct activities regulated under the
Antarctic Conservation Act of 1978.
NSF has published regulations under
the Antarctic Conservation Act at Title
45 Part 670 of the Code of Federal
Regulations. This is the required notice
of permit applications received.
DATES: Interested parties are invited to
submit written data, comments, or
views with respect to this permit
application by August 25, 2008. This
application may be inspected by
interested parties at the Permit Office,
address below.
ADDRESSES: Comments should be
addressed to Permit Office, Room 755,
Office of Polar Programs, National
Science Foundation, 4201 Wilson
Boulevard, Arlington, Virginia 22230.
FOR FURTHER INFORMATION CONTACT:
Nadene G. Kennedy at the above
address or (703) 292–7405.
SUPPLEMENTARY INFORMATION: The
National Science Foundation, as
directed by the Antarctic Conservation
Act of 1978 (Pub. L. 95–541), as
amended by the Antarctic Science,
Tourism and Conservation Act of 1996,
has developed regulations for the
establishment of a permit system for
various activities in Antarctica and
designation of certain animals and
certain geographic areas requiring
special protection. The regulations
establish such a permit system to
designate Antarctic Specially Protected
Areas.
The applications received are as
follows:
43269
1. Applicant: Permit Application No.
2009–015. Ron Naveen, President,
Oceanities, Inc., P.O. Box 15259, Chevy
Chase, MD 20825.
Activity for Which Permit Is
Requested: Take and enter Antarctic
Specially Protected Areas. The
applicant plans to enter various sites,
including ASPA 128—Western Short of
Admiralty Bay and ASPA 149—Cape
Shirreff, to conduct surveys and census
of fauna and flora as a continuation of
the Antarctic Site Inventory Project.
Access to the sites will be by zodiac or
helicopter from various cruise ships
and/or the HMS ENDURANCE.
Location: Antarctic Peninsula, ASPA
128—Western Short of Admiralty Bay
and ASPA 149—Cape Shirreff.
Dates: September 1, 2008 to August
31, 2013.
Nadene G. Kennedy,
Permit Officer, Office of Polar Programs.
[FR Doc. E8–16877 Filed 7–23–08; 8:45 am]
BILLING CODE 7555–01–P
SUMMARY:
PO 00000
Frm 00069
Fmt 4703
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OFFICE OF PERSONNEL
MANAGEMENT
Federal Salary Council
Office of Personnel
Management.
ACTION: Notice of meetings.
AGENCY:
SUMMARY: The Federal Salary Council
will meet on September 5 and
September 30, 2008, at the times and
location shown below. The Council is
an advisory body composed of
representatives of Federal employee
organizations and experts in the fields
of labor relations and pay policy. The
Council makes recommendations to the
President’s Pay Agent (the Secretary of
Labor and the Directors of the Office of
Management and Budget and the Office
of Personnel Management) about the
locality pay program for General
Schedule employees under section 5304
of title 5, United States Code. The
Council’s recommendations cover the
establishment or modification of locality
pay areas, the coverage of salary
surveys, the process of comparing
Federal and non-Federal rates of pay,
and the level of comparability payments
that should be paid.
The September 5 meeting will be
devoted to reviewing information and
hearing testimony about existing
locality pay area boundaries and the
establishment of new locality pay areas.
The Council will conduct its other
business including reviewing the results
of pay comparisons and formulating its
recommendations to the President’s Pay
E:\FR\FM\24JYN1.SGM
24JYN1
Agencies
[Federal Register Volume 73, Number 143 (Thursday, July 24, 2008)]
[Notices]
[Pages 43260-43269]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-16948]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 08-29]
Laurence T. McKinney; Revocation of Registration
On February 5, 2008, I, the Deputy Administrator of the Drug
Enforcement Administration, issued an Order to Show Cause and Immediate
Suspension of Registration to Laurence T. McKinney, M.D. (Respondent),
of Philadelphia, Pennsylvania. The Order immediately suspended and
proposed the revocation of Respondent's DEA Certificate of
Registration, BM7201267, as a practitioner, on the grounds that his
continued registration was ``inconsistent with the public interest''
and ``constitute[d] an imminent danger to public health and safety.''
Show Cause Order at 1 (citing 21 U.S.C. 824(a)(4) & 824(d)).
More specifically, the Show Cause Order alleged that Respondent was
``one of the largest prescribers of schedule II controlled substances
in the Philadelphia area[,]'' and that ``[f]rom October 5, 2004 to
November 30, 2007 [had written] 3,101 prescriptions for schedule II
narcotics.'' Id. Next, the Show Cause Order alleged that Respondent
sold prescriptions for narcotics for $100 per prescription, that he had
issued prescriptions to undercover law enforcement officers on five
separate dates between December 14, 2007, and January 30, 2008, that he
had either failed to perform a physical examination or had conducted
only a ``cursory physical examination'' on the Officers, and that he
had also written a prescription for one of the undercover Officer's
fictitious wife. Id. at 1-2. The Show Cause Order further alleged that
these ``prescriptions were not issued for a legitimate medical purpose
or in the normal course of professional practice'' and thus violated
both Federal and state laws and regulations. Id. at 2 (citing 21 U.S.C.
841(a); 21 CFR 1306.04(a)).
Based on the above, I also made the preliminary finding that
Respondent had ``deliberately diverted controlled substances'' and that
his ``continued registration during the pendency of these proceedings
would constitute an imminent danger to the public health or safety
because of the substantial likelihood that [he would] continue to
divert controlled substances.'' Id. at 2. I therefore also ordered the
immediate suspension of Respondent's registration. Id.
On February 15, 2008, Respondent, through his counsel, requested a
hearing on the allegations. ALJ Ex. 2. The matter was assigned to
Administrative Law Judge (ALJ) Mary Ellen Bittner. Following pre-
hearing procedures, a hearing was held on April 7, 2008 in Arlington,
Virginia, at which both parties introduced testimonial and documentary
evidence.\1\ Upon conclusion of the hearing, both parties submitted
briefs containing their proposed findings, conclusions of law and
argument.
---------------------------------------------------------------------------
\1\ The Government also introduced recordings of several
undercover visits.
---------------------------------------------------------------------------
On May 5, 2008, the ALJ issued her recommended decision (ALJ). In
her decision, the ALJ specifically rejected Respondent's testimony
regarding his prescribing to the undercover patients finding that he
was not credible. ALJ at 29. With respect to factor two (Respondent's
experience in dispensing controlled substances), the ALJ concluded that
``the record establishes * * * that Respondent issued prescriptions to
the undercover Officers for controlled substances without any
meaningful physical examination or gathering sufficient information
from the patients to arrive at a reasoned diagnosis or * * * to
determine whether they had any condition at all warranting treatment
with the drugs he prescribed to them.'' Id. at 29-30. The ALJ thus
found ``that all the prescriptions Respondent issued to the undercover
officers were not issued for a legitimate medical purpose.'' Id. at 30.
The ALJ further noted that various patient files introduced into
evidence by the Government demonstrated that Respondent had not
provided ``individualized attention'' to other patients. Id. Relatedly,
while noting that Respondent had ``introduced into evidence patient
files containing considerably more detailed information than those the
Government offered,'' the ALJ reasoned that even if these files showed
that Respondent had ``legitimately treated'' some patients, the files
predated November 26, 2007, the date on which the Philadelphia Police
Department had received a complaint about Respondent and did not
``diminish the weight of the evidence that he improperly prescribed
controlled substances after it.'' Id.
With respect to factor four (Respondent's compliance with
applicable laws), the ALJ concluded that Respondent had failed to
comply with Pennsylvania law because he had issued prescriptions for
controlled substances without doing proper physical examinations,
taking adequate medical histories, documenting the patient's symptoms,
his diagnosis and treatment recommendations, and that he had failed to
counsel his patients regarding how the drugs should be taken, the
appropriate dosage, and their side effects. Id. at 31. The ALJ thus
concluded that ``Respondent violated applicable Pennsylvania law and
also violated 21 CFR 1306.04, and thereby 21 U.S.C. 829(b).'' Id.
With respect to factor five (other conduct), the ALJ rejected
Respondent's contention that he had prescribed pursuant to a good-faith
belief that the undercover patients were in pain. Id. More
specifically, the ALJ expressed her disbelief ``that Respondent did not
know that the undercover Officers were not in pain but were trying to
obtain controlled substances for other than a legitimate medical
reason.'' Id. at 31. The ALJ further found that Respondent had
``refus[ed] to acknowledge his wrongdoing,'' and that there was
``little hope'' that ``he will act more responsibly in the future.''
Id.\2\
---------------------------------------------------------------------------
\2\ The ALJ also found that Respondent had retained his state
medical license and that this factor supported a finding ``that his
continued registration would be in the public interest.'' ALJ at 29.
The ALJ explained, however, that this factor was not dispositive
because ``state licensure is a necessary but not sufficient
condition for DEA registration.'' Id. The ALJ further found that
while Respondent had been convicted of a felony, his offense did not
involve an offense related to controlled substances. Id. at 30-31.
The ALJ thus found that this factor supported his continued
registration although it too was not dispositive.
---------------------------------------------------------------------------
Based on her findings with respect to three of the factors, the ALJ
concluded ``that Respondent is unwilling or unable to accept the
responsibilities inherent in a DEA registration.'' Id. at 32. The ALJ
thus recommended the revocation of Respondent's registration and the
denial of any pending applications. Id.
Respondent filed exceptions to the ALJ's recommended decision. In
this filing, Respondent raised thirty-three exceptions to the ALJ's
decision.\3\
[[Page 43261]]
Thereafter, the record was forwarded to me for final agency action.
---------------------------------------------------------------------------
\3\ Respondent's Exceptions did not, however, comply with DEA's
regulation which requires citation to evidence of record which
supports the exception. 21 CFR 1316.66(a).
---------------------------------------------------------------------------
Having considered the record as a whole, as well as Respondent's
exceptions, I hereby issue this Decision and Final Order. While I do
not adopt the ALJ's factual findings in their entirety, I adopt the
ALJ's ultimate conclusions of law with respect to each of the statutory
factors and her recommended sanction. I make the following findings of
fact.
Findings
Respondent is a medical doctor who treats injury and trauma
patients, as well as weight loss patients, at a clinic he operates in
Philadelphia, Pennsylvania. Tr. 19-21. While Respondent previously held
board certification in obstetrics and gynecology, he is no longer
``board certified in anything.'' Id. at 21.
In February 1998, Respondent pled guilty in Federal Court to two
counts of mail fraud based on fraudulent billing practices. Id. at 48.
Respondent was sentenced to a term of imprisonment of twelve months and
one day which he served at the Federal Correctional Institution at
Loretto, Pennsylvania, and in a halfway house.\4\ Id. at 48-49; 266-67.
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\4\ In March 2000, the State of Pennsylvania suspended
Respondent's medical license for a period of four years based on his
mail fraud convictions. Tr. 267. The State, however, stayed the
suspension after nine months. Id. Shortly thereafter, Respondent was
granted a new DEA registration. GX 1, at 2.
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Respondent currently holds DEA Certificate of Registration,
BM7201267, which before I suspended it, authorized him to handle
controlled substances in schedules II through V as a practitioner at
his registered location of 7514 Frankford Avenue, Philadelphia, Pa. GX
1, at 1. Respondent's registration does not expire until January 31,
2010. Id.
On November 26, 2007, the Philadelphia Police Department received a
citizen's complaint which alleged that Respondent was prescribing
controlled substances such as Xanax (alprazolam), and Percocet, a drug
which contains oxycodone and acetaminophen.\5\ GX 48. More
specifically, the caller alleged that ``all the neighborhood kids know
about'' Respondent, that all one had to do to get an appointment was to
call his office and possibly tell him that ``you were referred by a
neighbor,'' that ``the Doctor will tell you to come in and tell you to
bring $100,'' and that ``[t]ell the doctor you have some type of
aliment [sic] and he will write you a prescription for Xanax, Percocet,
Oxycodone etc.'' Id.
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\5\ Oxycodone is a schedule II controlled substance and
derivative of opium. 21 CFR 1308.12(b)(1). Xanax is the brand name
of alprazolam, a schedule IV controlled substance. See id. Sec.
1308.14(c).
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Upon receipt of this tip, the Philadelphia Police Department's
Intensive Drug Investigation Squad (IDIS) contacted DEA's Philadelphia
Diversion Group, which had also received complaints about Respondent
from local pharmacists. Tr. 154. As part of their investigation, the
decision was made to have several IDIS members attempt to obtain
prescriptions from Respondent. Id. at 83-84.
The First Undercover Visit
On December 6, 2007, an undercover Officer using the name of Nicole
Hodge went to Respondent's office. Id. at 130. The Officer paid
Respondent $100 in cash and told him that she had not been in an
accident and did not have an injury but wanted a prescription for
Percocet. Id. Respondent attempted to get the Officer to talk about an
injury but she refused to. Id. Respondent refused to issue the
prescription and told her to leave his office. Id. at 131. Respondent
subsequently noted in Nicole Hodge's patient file that ``Pt. lied, Ask
for Percocet. Patient is not injured.'' GX 23.
The Second Undercover Visit
On December 14, 2007, another IDIS Officer, who used the named
Anthony Wilson, visited Respondent. After paying $100 in cash,
Respondent asked the Officer whether he had been in an accident.\6\ Tr.
86. The Officer stated that he had been. Id. Respondent then asked the
Officer some unspecified question about pain; the latter answered that
he ``hurt all over.'' Id. at 86-87. Moreover, the evidence includes a
medical history form on which the Officer indicated as his complaint:
``Hurt All Over,'' that the location of his condition was ``all over,''
and that its severity was ``bad pain.'' GX 22, at 7.
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\6\ According to the record, Respondent would instruct his
``patients'' when they called for an appointment that they should
have cash. Tr. 92.
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According to the DEA Special Agent who debriefed the Officer, the
latter did not exhibit any signs of injury and Respondent did not ask
him to rate his pain level on a scale of one to ten. Tr. 87. The
Officer reported that Respondent's physical examination was limited to
touching him lightly on the shoulder and back; moreover, Respondent did
not listen to his heart and lungs, and no one took his blood pressure.
Id. at 88.
Respondent did not order any diagnostic tests such as an x-ray or
mri. Id. at 198. Respondent nonetheless diagnosed the Officer as having
back and neck contusions and prescribed to him 90 Percocet (10 mg.), 60
Xanax (1 mg.), and 60 Cataflam, a non-controlled substance. Id. at 89;
GX 16. The prescription indicated that the Percocet should be taken
every eight hours as needed for pain and that the Xanax should be taken
every twelve hours as need for muscle spasms or anxiety. GX 16, at 2.
Respondent did not, however, counsel the Officer regarding the dosing
and frequency of taking the drugs, the drug's potential side effects
and its interactions with other drugs. Tr. at 92.
Another form in the patient file indicates that the Officer's blood
pressure was 120/82, as well as a height and weight. GX 22, at 5. Under
the heading of ``history of pertinent facts,'' the form appears to
state: ``Passenger in MVA driver side'' and ``\8/10\ pain scale.'' Id.
Finally, another form entitled ``ROM--AMA Guides'' has a notation of
``+2'' in the blocks for ``Cervical Spine,'' ``Dorsal Spine'' and
Lumbar/Sacral.'' Id. at 6.
While Respondent testified that either he or a nurse had taken the
Officer's blood pressure, Tr. 312-13, the ALJ specifically credited the
testimony of the DEA agent \7\ regarding the various undercover visits
and rejected Respondent's testimony pertaining to them. More
specifically, the ALJ found that ``Respondent did not impress [her] as
credible and appeared to try to tailor his testimony to suit his own
purposes, particularly with respect to his insistence that he complied
with Pennsylvania's requirements for prescribing controlled
substances.'' ALJ at 29. I adopt the ALJ's credibility findings noting
that she was in the best position to observe the demeanor of the
respective witnesses. I therefore find that neither Respondent nor a
nurse took the Officer's blood pressure during the visit. I further
find that the history form for this visit contains no notation in the
blocks for the patient's ``heart'' and ``lungs'' (nor in any of the
other blocks save one in which findings pertaining to various bodily
functions are recorded). I therefore further find that Respondent did
not listen to Respondent's heart or lungs on this date.
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\7\ As the ALJ explained, the Agent, in contrast to Respondent,
``appeared to be straightforward and candid.'' ALJ at 29.
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The Third Undercover Visit
On January 3, 2008, the Officer returned to Respondent's office and
again presented himself as Anthony Wilson and paid $100 for the visit.
Tr.
[[Page 43262]]
97, 103. The same DEA Special Agent conducted surveillance of the
visit. ALJ at 12.
Apparently while the Officer was in the waiting room, Respondent
started calling out the names of patients. When Respondent called the
Officer's undercover name, he asked him whether he was there for
physical therapy. GX 3, at 2. At some point, the Officer was taken back
to an exam room and was told by Respondent to take off his jacket. Id.
The Officer stated to Respondent: ``last time you said I had neck and
back contusions.'' Id. Respondent told the Officer to have a seat and
asked him his first name. Id. The Officer answered: ``Anthony.'' Id.
Following an unintelligible statement of Respondent, the Officer
offered to come back for physical therapy. Id. After Respondent was
interrupted by several phone calls, the Officer offered to come back on
Sunday for therapy and Respondent agreed. Id. The Officer then stated
that the ``the first time I was here you didn't have therapy,'' and
asked whether he had ``to fill out the paperwork again, or did she find
my file?'' Id. Respondent answered: ``No that's all right, I saw it the
other day, that's alright.'' Id. The Officer then asked whether if
``when I have the therapy and the medicine it's the same price or is
it?'' Id. Respondent answered that it was the ``[s]ame price if you
come in for just the prescription its 100 dollars, if you come in for
the prescription and exam and therapy its 100 dollars, if you come in
for just therapy its 100 dollars, o.k.'' Id.
During the visit, Respondent gave the Officer prescriptions for 90
Percocet (10/325 mg.) and 60 Xanax (1 mg.). Id. at 3; GX 17. While
Respondent asked the Officer how he had been doing, Respondent limited
his physical exam to pressing on the Officer's back and shoulder and
did not listen to the Officer's heart and lungs or take his blood
pressure. Tr. 99-100. Moreover, while it was less than three weeks
since the Officer's previous visit (at which Respondent had also given
him prescriptions for 90 Percocet and 60 Xanax, each of which should
have lasted thirty days), Respondent did not question him about why he
needed new prescriptions so soon. Id. at 102. Furthermore, once again,
Respondent did not counsel the Officer about the two drugs. Id.
Finally, the patient file for ``Anthony Wilson'' contains no
documentation of this visit. See GX 22.
The Fourth and Fifth Undercover Visits
On January 18, at approximately 4:10 p.m., the Officer returned to
Respondent's office and was accompanied by another Officer who used the
name of Richard Johnson. Tr. 104. Respondent called for Johnson first,
and asked him if it was his first visit. GX 5, at 1. Although the
Officer had not previously been to Respondent's office, the Officer
responded: ``No, I was here December 14th.'' \8\ Id. Respondent then
collected $100 from the Officer. Id.
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\8\ The DEA Agent testified that Respondent attempted to find
the Officer's patient file. Tr. 110-11.
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About twenty minutes later, Respondent again asked the Officer his
name. Upon being told ``Richard Johnson,'' Respondent asked the
Officer: ``You said you been here before * * * you do construction
right?'' Id. The Officer answered: ``Yes, sir.'' Id. After discussing
the Officer's age and taking a phone call, Respondent asked the
Officer: ``How you been doing since you [were] put on pain
medication?'' Id. at 2. The Officer answered: ``pretty good.'' Id. When
Respondent asked: ``Did it work real well?''; the Officer answered:
``Yes.''
Respondent next asked: ``you['ve] been taking the yellow ones three
times a day?'' Id.\9\ The Officer answered: ``Yes.'' Id. Respondent
then stated: ``I had you on the blue ones at night''; the Officer
commented: ``Yeah, at night.'' Id. Respondent then asked the Officer to
``stand up,'' and stated: ``7:05 p.m. Ok, what I'm going to do is
refill your medication * * * we can finally get you out of here.'' Id.
After taking a phone call, and commenting about people stealing pens
from his office, Respondent noted that it was ``7:08 p.m.'' and stated:
``60 of the Xanax, 90 of the Percocet.'' Id. As evidenced by the actual
prescriptions, Respondent prescribed 90 Percocet (10/325), which was to
be taken every eight hours, and 60 Xanax 1 mg., which was to be taken
every 12 hours. GX 18, at 2.
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\9\ I take official notice of the Product Identification Guide
found in the Physician's Desk Reference (2005). According to the
Guide, Percocet 10/325 mg. tablets are yellow, id. at 311, and Xanax
1 mg. tablets are blue. Id. at 330. Based on this and the
prescriptions Respondent wrote, I conclude that Respondent's
references to the yellows ones and the blue ones were references to
Percocet and Xanax respectively. In accordance with the
Administrative Procedure Act and DEA regulations, Respondent is
entitled to an opportunity to refute the facts which I have taken
official notice by filing a motion for reconsideration within
fifteen days of service of this Order, which shall begin on the date
of mailing. See 5 U.S.C. 556(e); 21 CFR 1316.59(e).
---------------------------------------------------------------------------
Respondent's physical exam was limited to tapping the Officer
lightly on the back and shoulder. Tr. 112 Moreover, Respondent did not
order any diagnostic tests. Id. at 113. During a subsequent search of
Respondent's office, no patient file was found for Richard Johnson. Id.
at 215.
Approximately 45 minutes later, Respondent saw the other Officer
(Anthony Wilson) who was waiting in an exam room. GX 5, at 4.
Respondent asked him ``how are you doing?,'' to which the Officer
responded: ``I'll pay you now.'' \10\ Id. About a minute later,
Respondent entered the exam room and stated: ``I am going crazy right
now, turn around this way.'' Id. In response, the Officer stated: ``I
know it's been a long day.'' Id.
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\10\ It is unclear whether Respondent had actually entered the
exam room at this point or just stuck his head in it.
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Respondent replied: ``You have no idea.'' Id. Respondent then
stated: ``stand up facing me, try to bend down knees and touch your
toes, come back up, alright, have a seat, look[s] like your doing a
little better.'' Id. The Officer replied: ``Yes sir, yes sir.'' Id.
Respondent then stated: ``Last time I gave you Percocet 10's and
Xanax right?'' Id. The Officer responded: ``Yes sir.'' Id. Respondent
then stated: ``So that seems it gotta be working.'' Id. The Officer
agreed, and added that ``the last time I didn't have any problems
cashing the [unintelligible].'' Id. Respondent then stated ``script.''
Id. The Officer again commented to the effect that he had not had any
problems filling his prescriptions. Id. at 5.\11\ Respondent did not
ask Wilson why he had returned only fifteen days after the previous
visit. See generally GX 5, at 4-5.
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\11\ Most of the remaining conversation between Respondent and
the Officer centered on the Officer's problems with his ex-wife,
although at one point the Officer stated: ``You said lower back and
neck,'' and Respondent agreed. GX 5, at 5.
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During the visit, Respondent issued the Officer additional
prescriptions for 90 Percocet (10/325 mg.) and 60 Xanax (1 mg.). GX 18,
at 1. The prescriptions called for the Percocet to be taken every eight
hours and for the Xanax to be taken every twelve hours. Id.
The Sixth and Seventh Undercover Visits
On the night of January 22, 2008, at 8:07 p.m., the Officer who had
previously presented herself as Nicole Hodge went back to Respondent's
office. Tr. 131. The Officer was accompanied by another Officer, who
used the name ``John Rio,'' and apparently posed as her boyfriend. See
GX 6, at 1.\12\
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\12\ According to GX 6, the Officers entered Respondent's office
together. GX 6, at 1. It is unclear, however, whether they arrived
in the same vehicle.
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Shortly after her arrival, Respondent called her name and asked:
``Why are you here dear?'' GX 6, at 1. The Officer stated that she had
been in an accident two days earlier. Id. Respondent asked: ``Nicole
the last time you were here you
[[Page 43263]]
didn't have an injury remember?'' Id. The Officer answered: ``I know.''
Id. Respondent then asked the Officer whether she swore that she was
injured this time. Id. The Officer answered that she had been ``out
with my boyfriend and got hit by a car the other day.'' Id. The Officer
then explained that ``I ran out before him * * * he pisses me off a
lot.'' Id. Respondent laughed and asked: ``Well I'm sure you don't have
anything to do with that at all, right?'' Id. The Officer then asked
the Officer posing as her boyfriend: ``Did you push me in front of that
car?''; the latter answered: ``No.'' Id.
Respondent then told ``John Rio'' to have a seat in an exam room
and asked him: ``You been here before right?'' Id. The Officer answered
``Yeah,'' Id. although he had not been. Tr. 123. The female Officer
then stated: ``I can hear you.'' GX 6, at 1. Respondent replied: ``I'm
sure you can hear us, that's the point, we want you to hear us''; the
female Officer responded: ``Oh.'' Id.
Respondent then asked the male Officer if he was having back pain.
Id. The Officer answered affirmatively. Id. at 2. After some extraneous
comments about his ex-wife, either Respondent or an assistant hooked
the male Officer up to a physical therapy machine, recommended twenty
minutes of treatment and started the machine. Tr. 126. The Officer then
complained that the treatment ``hurts too much, man.'' GX 6, at 2.
Respondent then told an assistant to ``cut it back to the minimum
level''; the assistant acknowledged Respondent's order. Id. Several
minutes later, the Officer disconnected himself from the machine and
told Respondent's staff that he was doing so. Tr. 126-27. The record
does not, however, establish whether Respondent was advised that the
Officer had disconnected the machine.\13\ Id. at 127.
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\13\ The ALJ further found that during the visit, Respondent did
not take a medical history or order any diagnostic tests. Tr. 126.
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At some point during the visit, Respondent issued to the Officer
prescriptions for 90 Percocet (5/325 mg.); 30 Xanax (1 mg); and for
Flexeril, a non-controlled muscle relaxant. GX 19, at 1-2. During the
visit, while Respondent put two fingers on the Officer's back, he did
not check the Officer's heart or lungs. Tr. 125. Nor did he counsel the
Officer regarding the controlled substances he prescribed. Id. at 128-
29. Moreover, during the subsequent search of Respondent's office, the
authorities did not find a patient file for the Officer. Id. at 125. In
his testimony, Respondent asserted that he maintained a file on the
Officer and that this visit was probably the Officer's third visit with
him. Id. at 313. I find, however, that it was the first visit.
Respondent then turned his attention to the female Officer and
asked her if she had been driving. GX 6, at 2. The Officer answered:
``No, we were walking.'' Id. Respondent then asked her if she had gone
to the hospital; Respondent answered: ``No.''
Respondent then asked her: ``What areas are hurting?'' Id. The
video indicates that the Officer answered that her knee, left hip, and
lower back were. GX 14. Next, Respondent asked her to numerically rank
her pain level with one ``being no pain and ten being the worst
possible pain.'' GX 6, at 2. The Officer stated that her pain level was
``a six.'' Id. Respondent then told her to ``let me take your pulse.''
Id.\14\
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\14\ In his testimony, Respondent maintained that he listened to
the Officer's heart and lungs and that a nurse took her blood
pressure. Tr. 310, 312, 334.
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Following this, Respondent told the Officer: ``turn towards me, no
turn, turn back and back up, back up, back up, that's good * * * within
your comfort zone, if I ask you to do anything that causes severe pain
don't do it.'' Id. The Officer acknowledged this by stating: ``OK.''
Id. at 3.
Respondent then directed the Officer to ``Put your head back, down
to your chest, back to normal position, ok head to the side, the other
side, back to normal position, rotate, to the right, back to normal
position, bring your shoulders up.'' Id. The Officer then stated:
``like that hurts, down the center of my back.'' Id. Continuing,
Respondent stated to the Officer: ``Side, other side, back to the
normal position, backward and now touch your toes, turn around, relax
your arms,'' and asked if there was ``no pain where [he was]
pressing.'' Id. In response, the Officer answered: ``naw.'' Id.
Next, Respondent told the Officer to ``bring [your] right leg up as
high as you can.'' Id. The Officer laughed. Respondent then told the
Officer to ``bring [your] left leg up as high as you can.'' Id. He then
told the Officer to ``have a seat up here''; the Officer responded:
``OK.'' Id.
Continuing, Respondent instructed the Officer to ``hold your hands
together for me, relax, unpress them,'' and remarked ``that's tender.''
Id. Next, he told the Officer to ``lay on your back, cross your legs,
raise your legs up,'' and then asked ``where's the pain?'' Id. The
Officer answered: ``my lower back.'' Respondent then told the Officer
to ``sit up,'' and asked her several questions regarding whether she
had filed a report with her insurance company, and whether she was
planning any legal action. Id.
Respondent then left the room to get another form. Id. When he
returned, Respondent explained to the Officer that she had mild sprains
of her neck, middle lower back, left hip and both knees. Id. He further
noted that her injuries would take four to six weeks to heal and asked
if she was paying cash for her prescription. Id. After the Officer
stated ``Yep,'' Respondent told her that he was going to prescribe a
drug that was a mild anti-inflammatory and pain medication, as well as
a mild muscle relaxant to help her sleep. Id. With respect to the first
drug, Respondent told the officer to ``only take one twice a day.'' Id.
Respondent also told the Officer to take the muscle relaxant ``every 12
hours if you have [a] muscle spasm,'' and to ice her knees three times
a day for fifteen minutes. Id. at 4. Respondent further told the
Officer to come back ``in a few weeks'' and that she could come back
without making an appointment. Id. Respondent prescribed sixty tablets
of Vicoprofen, a schedule III controlled substance which contains
hydrocodone and ibuprofen, and Soma (carisoprodol), a non-controlled
substance. GX 19, at 3.
The Eighth and Ninth Undercover Visits
On January 30, 2008, at 6:45 p.m., the Officers who had previously
posed as Anthony Wilson and Richard Johnson returned to Respondent's
office. GX 7, at 1. At 7:49 p.m., Respondent asked: ``Who's for
prescription refills?'' GX 7, at 1. The Officer posing as Anthony
Wilson answered: ``Right here.'' Id.
Seven minutes later, the Officer told Respondent that the ``last
time I have my wife with me, but she couldn't make it today, can I pick
up her script for her?'' Id. Respondent replied: ``your wife, yeah, you
can do that one time.'' Id. The Officer then stated: ``thank you,
that's for her and that's for me.'' Id. Respondent then said: ``OK, you
gotta tell me who the wife is.'' Id. The Officer stated that his wife's
name was ``Shania Wilson.'' \15\ Id. Respondent subsequently gave the
Officer prescriptions issued in the name of T. Wilson for 60 Xanax (1
mg.), and 90 Percocet (5/325 mg.). See GX 20, at 1-2; GX 7, at 2.\16\
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\15\ As was the Officer's undercover identity, Shania Wilson was
also a fictitious name.
\16\ While Shania Wilson was not a real person, the DEA Agent
testified that he believed that Respondent had a patient with the
name that Respondent used on the prescriptions. Tr. 144, 229. To
protect her privacy, her first name will not be used.
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Shortly thereafter, Respondent asked the Officer: ``Which Percocet
are you getting--either yellow or the greens
[[Page 43264]]
ones?'' GX 7, at 2. The Officer answered: ``the yellow.'' Id.
Respondent then gave the Officer prescriptions issued in the name of
Anthony Wilson for 60 Xanax (1 mg.) and 90 Percocet (10/325 mg.). Id.
Respondent also issued to the Officer posing as Richard Johnson
prescriptions for 90 Percocet (10/325 mg.) and 60 Xanax (1 mg.). GX 20,
at 3. During these visits, Respondent did not perform any type of
examination on either of the Officers and did not even discuss with
them their conditions. Tr. 144-45.
Regarding his issuance of the prescription to the first Officer's
fictitious wife, Respondent testified that he told the Officer that he
normally did not do this but that the Officer had stated that his wife
``was in such severe pain that she couldn't get out of bed, and she
really needed a refill.'' Id. at 317. Respondent further asserted that
the Officer had given him the name ``T ------,'' so he ``pulled her
chart,'' and ``verified that,'' and ``wrote the prescription.'' Id. at
318. Respondent further maintained that he based his decision on when
Ms. Wilson ``had her last refill.'' Id. Respondent, however, produced
no evidence from this patient's chart establishing that he had
previously diagnosed her with a condition that warranted the
prescribing of Percocet and Xanax. Moreover, the only evidence on this
issue indicated that the real Ms. Wilson had last been prescribed
Percocet more than four months earlier. See GX 45, at 95.
The ALJ specifically found incredible Respondent's testimony regard
his filling of the prescription for the fictional Ms. Wilson. ALJ at
18. While Respondent may have pulled a chart for the real Ms. Wilson,
see GX 7, at 2 (Officer stating ``that's my wife there''); neither the
transcript nor the video contain any evidence that the Officer had
represented that his wife was in such severe pain that she could not
get out of bed. Accordingly, I adopt the ALJ's credibility finding to
the extent she rejected Respondent's testimony that the Officer
represented that his wife was in severe pain and could not get out of
bed and his testimony that he based his decision on when Ms. Wilson had
her last refill.\17\
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\17\ In his testimony, Respondent did not identify when he had
last seen the patient or the medical condition which justified the
prescribing of Percocet and Xanax.
---------------------------------------------------------------------------
Respondent also testified regarding his having issued prescriptions
before previous prescriptions which were for a thirty-day supply should
have run out. As found above, Respondent issued prescriptions for both
60 Xanax and 90 Percocet to the Officer who posed as Anthony Wilson on
December 14, 2007, and on January 3, 18, and 30, 2008. Moreover,
Respondent issued prescriptions for Xanax and Percocet to Richard
Johnson on both January 18 and 30, 2008.
Regarding these prescriptions, Respondent testified that ``[i]n one
case the person indicated that they were going to be away during that
particular week, and [asked] could they get their prescriptions a week
early.'' Tr. 318-19. Respondent further explained that with respect to
the other patient, ``it was a matter of not being able to locate that
individual's chart, and because I couldn't locate the chart, at that
particular time, which was I think the 18th of January or so, I took
him at his word and good faith.'' Id. at 319.
Continuing, Respondent testified: ``I asked him, I said, `Are you
sure that it has been 30 days since you had your last prescription?'
And he said, `Yes, it was.' So, then, I wrote out his prescription.''
Id. Respondent also maintained that ``what happened was that [the] copy
that was made did not get back into his chart, so when he came back on
the 30th, it looked as though * * * he was * * * last here on around
the 30th of December, so he was issued another prescription.'' Id.
Respondent further attempted to justify his issuance of early
prescriptions by contending that there were ``safeguards'' in place
against the early filling of his prescriptions. Id. More specifically,
Respondent testified that if the patient ``either takes it to the same
pharmacy or tries to use his insurance, they will notify me that the
prescription has been filled less than 30 days, and then I can reject
it.'' Id.
It is unclear whether the ALJ credited Respondent's testimony
regarding his issuance of the early prescriptions to Anthony Wilson and
Richard Johnson. See ALJ at 17-18.\18\ In any event, as ultimate
factfinder, I reject Respondent's testimony. Respondent's testimony was
vague in that he did not identify which of the two undercover Officers
had stated that he was going to be away and needed the new
prescription/early refill.\19\ Moreover, there is no credible evidence
to support Respondent's claim that either Officer (Anthony Wilson or
Richard Johnson) had ever represented that they were going to be away
when their prescriptions ran out. As for Respondent's assertion that he
asked the other patient whether it had been thirty days since the last
prescription, there is likewise no credible evidence of his having done
so.
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\18\ In contrast to the testimony regarding Respondent's
issuance of a prescription to Ms. Wilson which she specifically
rejected, the ALJ did not expressly address whether she found this
testimony credible. ALJ at 17-18.
\19\ Under Federal law, a prescription for a schedule II
controlled substance cannot be refilled. 21 U.S.C. Sec. 829(a).
---------------------------------------------------------------------------
I also reject Respondent's testimony regarding the safeguards to
protect against the early filling of prescriptions. As for his
contention that an insurance company would notify him if a patient
attempted an early refill, notably the undercover officers did not use
insurance, but rather, paid cash for their visits. As for Respondent's
contention that the pharmacy would notify him that a patient was
attempting an early refill, this would be true only if the patient used
the same pharmacy. Drug abusers typically know better than to take an
early refill to the same pharmacy (unless the pharmacy is in cahoots
with the prescriber).
Other Evidence
Both parties also submitted into evidence additional patient
records. The Government introduced sixteen patient files; nearly all of
the patients received prescriptions for Percocet and Xanax. See GXs 24-
39. Moreover, some of the files lack documentation of a physical exam
and/or a medical history. See GX 25 (J.L.); GX 26 (E.L.); GX 27 (J.L.);
GX 31 (A.L.); GX 32 (B.L.); GX 33 (O.G.); GX 34 (B.G.); GX 35 (J.L.);
GX 36 (M.K.); GX 38 (R.K.); GX 39 (M.G.).
Respondent submitted four patient files into evidence. Notably, and
in contrast to the patient files cited above, three of these files
contain extensive documentation of the findings of an initial physical
exam, Respondent's assessment/diagnosis, and his treatment
recommendations. See RX 13A, at 670-72; RX 13B, at 764; RX 13D, at
4740-42. Moreover, each of the files contains documentation of the
physical exams performed, the assessments made, and treatment
recommendations given on followup visits. See RX 13A, at 677-78, 681-
82, 694; 702, 703; RX 13B, at 774, 781, 788, 814; RX 13C, at 4024,
4035; RX 13D, at 4727-28, 4731, 4746, 4753, 4754, 4757, 4759-61, 4762,
4775.
Respondent also introduced into evidence copies of four different
notices he had posted in his office. Two of these warned his patients
that it was a felony offense to obtain prescription drugs by fraud or
``for other than prescribed reasons,'' as well as to resell them. RXs 1
& 2. Another notice listed numerous excuses used by drug-abusing
patients to obtain early refills and which Respondent deemed to be
``unacceptable.'' RX 3.
In the fourth of the notices, Respondent stated that it had
recently come to his attention that several of his
[[Page 43265]]
patients were ``faking their illnesses, injuring themselves
intentionally an [sic] lying to [him] for the purpose of obtained
controlled III prescriptions (I.E. Perococet [sic]) and controlled II
prescriptions (Xanax).'' RX 4. Respondent further asserted that ``I am
sickened by you individuals,'' and that ``I am not a `dirty doctor.' ''
Id. Respondent then maintained that he was going to discharge ``[a]ll
patient [sic] referred by the individual who have not been in auto
accidents who are not treating three times per week.'' Id. Respondent
further stated that he would ``no longer prescribe Controlled III [and]
Controlled II medications to anyone,'' and while he would continue to
treat all of his legitimate patients, he would so ``without Controlled
II or III medications.'' Id.\20\
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\20\ Respondent also introduced into evidence copies of various
prescriptions which he maintained had been written by patients who
had stolen his prescription pads. See RXs 5-10.
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Discussion
Section 304(a) of the Controlled Substances Act (CSA) 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). With respect to a practitioner, the Act requires the
consideration of the following factors in making the public interest
determination:
(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, 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).
Having considered all of the statutory factors, I conclude that on
balance, the evidence pertaining to Respondent's experience in
dispensing controlled substances (factor two) and his record of
compliance with applicable laws related to the prescribing of
controlled substances (factor four) establish that his continued
registration would be ``inconsistent with the public interest.'' \21\
21 U.S.C. 823(f). Moreover, while I do not find that all of the
prescriptions he issued were illegal under Federal law, I agree with
the ALJ's finding under factor five that Respondent has failed
acknowledge his wrongdoing and therefore cannot be entrusted with a
registration.
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\21\ I acknowledge that there is no evidence that the
Pennsylvania Board has taken action against Respondent's medical
license (factor one). There is also no evidence that Respondent has
been convicted of an offense related to controlled substances under
Federal or State law (factor three).
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Factor Two and Four--Respondent's Experience in Dispensing Controlled
Substances and Record of Compliance With Applicable Controlled
Substance Laws
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. Sec. 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. See also 21 U.S.C. 802(10) (defining the term ``dispense'' as
meaning ``to deliver a controlled substance to an ultimate user * * *
pursuant to the lawful order of * * * a practitioner, including the
prescribing and administering of a controlled substance'') (emphasis
added).
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,
546 U.S. 243, 274 (2006) (citing Moore, 423 U.S. 122, 135 (1975)).\22\
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\22\ 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.'' 21 CFR
1306.04(a); see also United States v. Moore, 423 U.S. 122, 142-43
(1975). The CSA, however, generally looks to state law to determine
whether a doctor and patient have established a bonafide doctor-
patient relationship. See Kamir Garces-Mejias, 72 FR 54931, 54935
(2007); United Prescription Services, Inc., 72 FR 50397, 50407-08
(2007); Dispensing and Purchasing Controlled Substances Over the
Internet, 66 FR 21181, 21182-83 (2001).
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Consistent with the standards of Federal law, Pennsylvania law
prohibits ``[t]he * * * prescription of any controlled substance by any
practitioner * * * unless done (i) in good faith in the course of his
professional practice; (ii) within the scope of the patient
relationship; (iii) in accordance with treatment principles accepted by
a responsible segment of the medical profession.'' 35 Pa. Stat. Sec.
780-113(a)(14). Moreover, under the Pennsylvania Administrative Code, a
practitioner must meet certain ``minimum standards'' \23\ before
prescribing a controlled substance including taking an initial medical
history and conducting ``an initial physical examination * * * unless
emergency circumstances justify otherwise.'' \24\ 49 Pa. Code Sec.
16.92(a)(1). Furthermore, ``[t]he physical examination shall include an
evaluation of the heart, lungs, blood pressure and body functions that
relate to the patient's specific complaint.'' Id. (emphasis added).
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\23\ The regulation further states that it ``establishes minimum
standards for the prescription, administration and dispensation of
controlled substances by persons licensed to practice medicine and
surgery in'' Pennsylvania. 49 Pa. Code Sec. 16.92(b).
\24\ Respondent does not contend that any of the undercover
patients presented a medical emergency.
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This regulation also requires that a physician provide
``[a]ppropriate counseling * * * to the patient regarding the condition
diagnosed and the controlled substance prescribed.'' Id. Sec.
16.92(a)(3). Furthermore, ``[u]nless the patient is in an inpatient
care setting, the patient shall be specifically counseled about dosage
levels, instructions for use, frequency and duration of use and
possible side effects.'' Id.
Finally, the regulation requires that the physician record
``certain information * * * in the patient's medical record on each
occasion when a controlled substance is prescribed,'' which ``shall
include the name of the controlled substance, its strength, the
[[Page 43266]]
quantity and the date it was prescribed.'' Id. Sec. 16.92(a)(4). The
regulation further mandates that ``[o]n the initial occasion when a
controlled substance is prescribed * * * to a patient, the medical
record shall * * * include a specification of the symptoms observed and
reported, the diagnosis of the condition for which the controlled
substance is being given and the directions given to the patient for
the use of the controlled substance.'' Id.
Applying these standards, I do not find that the Government has
proved that each of the prescriptions issued to the undercover officers
violated Federal law. The evidence nonetheless establishes that on
several occasions, Respondent issued prescriptions to the undercover
officers for Percocet and Xanax--both of which are highly abused
drugs--that did not comply with Federal law. I further find--based on
the lack of any supporting documentation of a physical exam in various
files--that Respondent issued numerous other prescriptions for
controlled substances in violation of Pennsylvania's regulation.
The Visits of Nicole Hodge
At the outset, I note that Respondent did not commit any illegal
acts when he was first approached by ``Nicole Hodge.'' Rather, when the
Officer asked for Percocet and made clear that she was not injured,
Respondent told her to leave his office, and did not issue her any
prescription.
Respondent's interaction with ``Nicole Hodge'' during the second
visit is more problematic. The evidence shows that Respondent
specifically questioned her about what areas were hurting and asked her
to rank her pain level. The Officer unambiguously presented a medical
complaint by stating that her ``lower back'' was hurting and that her
pain level was ``six'' on a scale of one to ten. Respondent then put
the Officer through several different range-of-motion tests. Moreover,
Respondent took her pulse. Finally, Respondent diagnosed her injuries,
explained his diagnosis and treatment recommendations, and provided the
Officer with instructions on how to take the medicines he prescribed.
The ALJ did not credit Respondent's testimony that he listened to
the Officer's heart and lungs and had a nurse take her blood pressure.
Tr. 310 & 312. Moreover, there is no documentation in the patient file
that he did so. See GX 23, at 7. That being said, as the Supreme Court
explained in Gonzalez, ``the [CSA] and our case law amply support the
conclusion that Congress regulates medical practice insofar as it bars
doctors from using their prescription-writing powers as a means to
engage in illicit drug dealing and trafficking as conventionally
understood.'' 546 U.S. at 270.
Likewise, numerous court decisions make plain that the offense of
unlawful distribution requires proof that the practitioner's conduct
went ``beyond the bounds of any legitimate medical practice, including
that which would constitute civil negligence.'' United States v.
McIver, 470 F.3d 550, 559 (4th Cir. 2006); see also United States v.
Feingold, 454 F.3d 1001, 1010 (9th Cir. 2006) (``[T]he Moore Court
based its decision not merely on the fact that the doctor had committed
malpractice, or even intentional malpractice, but rather on the fact
that his actions completely betrayed any semblance of legitimate
medical treatment.''). As the Fourth Circuit has further explained,
``the scope of unlawful conduct under Sec. 841(a)(1) [requires proof
that a physician] used his authority to prescribe controlled substances
* * * not for treatment of a patient, but for the purpose of assisting
another in the maintenance of a drug habit or some other illegitimate
purposes, such as his own personal profit.'' 470 F.3d at 559 (int.
quotations and citation omitted).
Accordingly, while Respondent's failure to listen to the Officer's
heart and lungs and take her blood pressure violated Pennsylvania's
regulation, the totality of the evidence surrounding this visit does
not establish that he, in issuing the Vicoprofen prescription to Ms.
Hodge, lacked a legitimate medical purpose and acted outside of the
course of professional practice. The Officer presented a medical
complaint, identified specific areas of her body as the cause of her
pain, and complained of a relatively high pain level. Moreover, at no
point did the Officer convey to Respondent that she was not in pain.
Notwithstanding that Respondent failed to perform several steps
required by Pennsylvania law, the physical exam he conducted cannot be
characterized as deficient or cursory in the absence of expert
testimony establishing as much.
At most, the evidence suggests that Respondent committed
malpractice. It does not, however, support the conclusion that
Respondent used his prescription writing authority to engage in illicit
drug dealing when he issued the Vicoprofen prescription to Ms.
Hodge.\25\ See McIver, 470 F.3d at 559.
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\25\ The Government does not cite to any decision in which the
Pennsylvania Courts or Medical Board have held that a physician's
failure to comply with this regulation in all respects establishes a
violation of the Pennsylvania Controlled Substances Act.
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The Visits of Anthony Wilson
At his first visit, Anthony Wilson presented as his medical
complaint that he ``Hurt All Over,'' that the location of his condition
was ``all over,'' and its severity was ``bad pain.'' While Respondent
did not ask the Officer to rate his pain level on a numerical scale,
the Government offered no evidence to show that a practitioner must do
so when the patient has already indicated that he has ``bad pain.''
The evidence further establishes that Respondent's physical exam
was limited to touching him lightly on the shoulder and back, that
Respondent did not listen to his heart and lungs, and that neither
Respondent nor anyone else took his blood pressure. Based on this
physical exam, and without ordering any diagnostic testing, Respondent
diagnosed the Officer as having back and neck contusions and issued him
prescriptions for 90 Percocet (10 mg.), 60 Xanax (1 mg.), as well as
Cataflam, a non-controlled drug.\26\ Respondent did not, however,
counsel the patient regarding the taking of the drugs. At a minimum,
Respondent's conduct violated Pennsylvania's Administrative Regulation
pertaining to the prescribing of controlled substances.\27\
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\26\ Based on the dosing instructions, both the Percocet and
Xanax should have lasted thirty days.
\27\ Respondent's conduct creates a strong suspicion that his
prescribing exceeded the course of professional practice as this
term is used in Federal law and was also not ``in accordance with
treatment principles accepted by a responsible segment of the
medical profession'' as required by Pennsylvania law. 35 P.S. Sec.
780-113(a)(14). But while the Government cited several cases which
upheld the convictions of physicians who engaged in similar conduct
to Respondent, in all but one of the cases there was expert
testimony establishing that the physician's conduct exceeded the
bounds of professional practice. See United States v. Bek, 493 F.3d
790, 799-800 (7th Cir. 790); McIver, 470 F.3d at 556; Feingold, 454
F.3d at 1005; United States v. Alerre, 430 F.3d 681, 686 (4th Cir.
2005).
Moreover, in the only case cited by the Government in which
there was no expert testimony, the undercover officer made clear
that he was seeking Percocet to party and would share the drugs with
others. United States v. Celio, 230 Fed. Appx. 818, 822 (10th Cir.
2007). By contrast, in this case, with the exception of the first
visit of Nicole Hodge, the undercover officers frequently complained
of pain and made no statements which indicated that they were
seeking the drugs for non-medical purposes.
The Government also cites a state case to contend that ``expert
testimony is not always necessary to determine whether a
practitioner may be convicted under'' the Pennsylvania statute. Gov.
Prop. Findings at 11 n.2 (citing Commonwealth v. Manuel, 844 A.2d 1
(Pa. Super. Ct. 2004). Notwithstanding the court's statement in
Manuel, there, the State presented expert testimony as to the
appropriateness of the physician's prescribing practices. See 844
A.2d at 11.
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On January 3, 2008--less than three weeks later--the Officer
returned. While Respondent asked the Officer how he was doing and
pressed on his back and
[[Page 43267]]
shoulder, he proceeded to issue him more prescriptions for 90 Percocet
and 60 Xanax even though the prescription he had previously issued
should not have been exhausted. Respondent did not ask the Officer why
he needed his prescription refilled ten days early. Furthermore, the
Respondent did not document the prescribing in the Officer's patient
file as required by the Pennsylvania regulation.
On January 18, 2008--only fifteen days after the previous visit--
the Officer saw Respondent again. Respondent asked the Officer how we
was doing, and performed a physical exam which was limited to having
the Officer attempt to bend his knees and try to touch his toes. While
Respondent asked whether he had previously given the Officer Percocet
10s and Xanax, once again he did not question the Officer as to why he
had returned when the second prescription should have lasted another
fifteen days. Respondent nonetheless gave the Officer another
prescription for 90 Percocet (10/325) and 60 Xanax (1 mg.).
On January 30, 2008--which was only twelve days since the previous
visit--the Officer returned to Respondent's clinic for a fourth time.
Approximately one hour after his arrival, Respondent appeared in the
waiting area and asked: ``Who's for prescription refills?,'' to which
the Officer said: ``right here.''
A few minutes later, the Officer told Respondent that the ``last
time I have my wife with me, but she couldn't make it today, can I pick
up her script for her?'' Respondent replied that the Officer could ``do
that one time.'' The Officer subsequently told Respondent that his
wife's name was ``Shania Wilson.'' Subsequently, Respondent issued
prescriptions to Anthony Wilson for 90 Percocet (10/325 mg.) and 60
Xanax (1 mg.). He also issued prescriptions for a T. Wilson for 90
Percocet (5/325 mg.) and 60 Xanax (1 mg.), which he gave to the
Officer.
Notably, Respondent did not even ask the Officer how he was doing
and issued the prescriptions to him without even the pretense of
conducting a physical exam. Indeed, the only question he asked the
Officer was which color Percocet tablet he was getting, thus giving the
``patient'' the right to decide what strength of drug he wanted.
Moreover, it was the third time in less than a month that the Officer
had sought prescriptions for these drugs well before the previously
issued prescriptions should have run out. Yet again, Respondent did not
question the Officer as to why he had returned so soon.
Given these circumstances, expert testimony is not required to
conclude that in issuing these prescriptions, Respondent exceeded the
bounds of professional practice and that the prescriptions lacked a
legitimate medical purpose because Respondent failed to take any steps
to determine whether there was a continuing medical need for the
prescriptions. See 21 CFR 1306.04. Beyond that, he issued the
prescriptions notwithstanding that even a cursory review of the
Officer's file would have indicated that he had issued prescriptions to
the Officer only twelve days earlier. Likewise, the decision as to what
strength of drug a patient should take is the physician's
responsibility and is not the province of the patient. In short,
Respondent's issuance of the prescriptions on this date does not
remotely resemble the legitimate practice of medicine or even the
negligent practice of legitimate medicine. Rather, it is out-and-out
drug pushing.
Likewise, expert testimony is not required to conclude that
Respondent lacked a legitimate medical purpose and exceeded the bounds
of professional practice in issuing the prescriptions for the Officer's
fictitious wife. Notably, the Officer had repeatedly sought and
obtained new prescriptions well before previous prescriptions would
have run out and had thus demonstrated a clear and obvious pattern of
drug-seeking behavior. Moreover, Respondent issued the prescriptions to
a patient who was not physically present and thus could neither be
questioned as to whether she had a medical condition that required
controlled substances nor physically examined. And he did so
notwithstanding that the Officer made no representation that his
``wife'' had a medical need for the prescriptions.
Furthermore, Respondent did not even attempt to contact ``her'' to
determine whether there was a medical justification for the
prescriptions. Cf. 49 Pa. Code Sec. 16.92(a)(5) (authorizing the
issuance of a ``a prudent, short-term prescription'' based on ``an
emergency phone call by a known patient''). Finally, both the Percocet
and Xanax prescriptions were for a thirty-day supply and appear to be
well beyond what Pennsylvania authorizes on an emergency basis.\28\
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\28\ Even if the Officer pointed to the patient file for a real
Ms. Wilson, the fact remains that the Officer did not identify any
medical reason for why his ``wife'' needed a prescription. Moreover,
Respondent made no attempt to contact Ms. Wilson to determine
whether she had a continuing medical need for the prescription and
whether the requirements were met for issuing an emergency
prescription under Pennsylvania's regulation.
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I thus conclude that Respondent exceeded the bound of professional
practice in issuing the prescriptions to Ms. Wilson and that these
prescriptions were not supported by a legitimate medical purpose. 21
CFR 1306.04. In short, Respondent's issuance of these prescriptions was
not simply the negligent practice of medicine but rather drug pushing.
The Visits of Richard Johnson
On January 18, 2008, another undercover officer, who used the name
Richard Johnson, visited Respondent. When asked by Respondent whether
it was his first visit, the Officer represented that he had previously
seen Respondent on December 14th although he had not. Later, and
apparently while in the exam room, Respondent asked the Officer how he
had been doing since he was put on pain medication; the Officer
answered ``pretty good.'' Respondent asked a followup question as to
whether the medication worked well; the Officer answered ``yes.''
The evidence establishes that Respondent performed a limited
physical examination by lightly tapping the Officer on the back and
shoulder. Moreover, Respondent acknowledged that he had been taking the
yellow ones (a reference to Percocet) and the blue ones (a referenc