Beau Boshers, M.D.; Decision and Order, 19401-19419 [2011-8344]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 76, Number 67 (Thursday, April 7, 2011)]
[Notices]
[Pages 19401-19419]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-8344]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 10-35]


Beau Boshers, M.D.; Decision and Order

    On August 10, 2010, Administrative Law Judge (ALJ) John J. 
Mulrooney, II, issued the attached recommended decision.\1\ Thereafter, 
Respondent filed exceptions to the decision.
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    \1\ All citations to the ALJ's Decision (ALJ) are to the slip 
opinion as issued on August 10, 2010, and not to the attached 
decision which had been reformatted.
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    Having reviewed the record in its entirety including Respondent's 
exceptions, I have decided to adopt, except as explained below, the 
ALJ's

[[Page 19402]]

rulings, findings of fact, conclusions of law, and recommended Order.
    Respondent raises two exceptions to the ALJ's recommended decision. 
First, he argues that ``he was denied the ability to present his 
positive experience in dispensing controlled substances.'' Resp. Exc. 
at 1. More specifically, he argues that he was denied ``access to files 
seized'' by the Government which show that he discharged patients, and 
that ``[w]ithout access to those files,'' he was left ``with his hands 
tied behind his back and [was] unable to demonstrate his successful 
treatment of patients with controlled substances.'' Id. at 1-2. 
Respondent contends that this ``effectively crippl[ed] his ability to 
present any evidence of his positive, or successful, experience in 
dispensing and treating patients with controlled substances.'' Id. at 
1.
    As support for his contention that he is entitled to present 
evidence of his ``positive experience,'' Respondent cites the Agency's 
decision on remand in Jayam Krishna-Iyer, 74 FR 459 (2009). That 
decision addressed an unpublished decision of the United States Court 
of Appeals for the Eleventh Circuit, which vacated the Agency's Order 
revoking a practitioner's registration on the ground that it failed to 
consider the practitioner's ``experience with twelve patients whose 
medical charts were seized by the DEA, or with thousands of other 
patients. In short, the DEA did not consider any of the Petitioner's 
positive experience in dispensing controlled substances.'' Id. (quoting 
Krishna-Iyer v. DEA, 249 Fed. Appx. 159, 160 (11th Cir. 2007)).
    While this Agency complied with the Eleventh Circuit's order, 
unpublished decisions are ``not precedential.'' United States v. Shaw, 
560 F.3d 1230, 1241 (11th Cir. 2009). Moreover, as I noted in Krishna-
Iyer, ``[t]he Court of Appeals did not cite to any decision of either 
this Agency or another court defining the term `positive experience.' 
Nor did the Court offer any guidance as to the meaning of this term, 
which is not to be found in the'' Controlled Substances Act. 74 FR at 
460.
    I thus assumed--even though there was no evidence (except for 
twelve patient files) in the record regarding the legitimacy of the 
practitioner's prescribing of controlled substances to the ``thousands 
of other patients'' she had treated--that her prescribings to these 
patients constituted ``positive experience.'' Id. at 460-61. However, 
the practitioner's ``prescribings to thousands of other patients [did] 
not * * * render her prescribings to the undercover officers any less 
unlawful, or any less acts which `are inconsistent with the public 
interest.''' Id. at 463 (quoting 21 U.S.C. 823(f)).\2\
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    \2\ As I also explained in Krishna-Iyer, while Congress directed 
the Agency to consider all of the section 823(f) factors, I am 
entitled to give each factor the weight I deem appropriate and the 
courts of appeals have recognized that findings under a single 
factor are sufficient to support the revocation of a registration. 
74 FR at 462 (citing Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 
2005); Morall v. DEA, 412 F.3d 165, 173-174 (DC Cir. 2005). As I 
further explained, ``this is not a contest in which score is kept; 
the Agency is not required to mechanically count up the factors and 
determine how many favor the Government and how many favor the 
registrant. Rather, it is an inquiry which focuses on protecting the 
public interest; what matters is the seriousness of the registrant's 
misconduct.'' Id. at 462.
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    As Krishna-Iyer explained, because the CSA limits registration as a 
practitioner ``to those who have authority to dispense controlled 
substances in the course of professional practice, and patients with 
legitimate medical conditions routinely seek treatment from licensed 
medical professionals, every registrant can undoubtedly point to an 
extensive body of legitimate prescribing over the course of her 
professional career.'' Id.; see also 21 U.S.C. 823(f) (registration 
limited to a practitioner ``authorized to dispense * * * controlled 
substances under the laws of the State in which he practices''). I 
further noted that ``in past cases, [DEA] has given no more than 
nominal weight to a practitioner's evidence that he has dispensed 
controlled substances to thousands of patients in circumstances which 
did not involve diversion.'' Id. (quoting Paul J. Caragine, Jr., 63 FR 
51592, 51599 (1998) (``[T]he Government does not dispute that during 
Respondent's 20 years in practice he has seen over 15,000 patients. At 
issue in this proceeding is Respondent's controlled substance 
prescribing to 18 patients.''); id. at 51600 (``[E]ven though the 
patients at issue are only a small portion of Respondent's patient 
population, his prescribing of controlled substances to these 
individuals raises serious concerns regarding [his] ability to 
responsibly handle controlled substances in the future.''); Medicine 
Shoppe-Jonesborough, 73 FR 364, 386 & n.56 (2008) (noting that pharmacy 
``had 17,000 patients,'' but that ``[n]o amount of legitimate 
dispensings can render * * * flagrant violations [acts which are] 
`consistent with the public interest.'''), aff'd, Medicine Shoppe-
Jonesborough v. DEA, 300 Fed. Appx. 409 (6th Cir. 2008)).
    DEA has thus revoked a practitioner's registration based on a 
single act of presenting two fraudulent prescriptions to a pharmacy for 
filling; see Alan H. Olefsky, 57 FR 928, 928-29 (1992), and DEA can 
revoke based on a single act of diversion. Dewey C. MacKay, 75 FR 
49956, 49977 (2010). See also Sokoloff v. Saxbe, 501 F.2d 571, 576 (2d 
Cir. 1974) (upholding revocation of practitioner's registration based 
on nolo contendre plea to three counts of unlawful distribution). 
Undoubtedly, each of these practitioners could have pointed to evidence 
of having treated a large number of patients in circumstances in which 
he did not divert controlled substances to drug abusers or drug 
dealers.
    Consistent with these precedents, I held in Krishna-Iyer that 
``evidence that a practitioner has treated thousands of patients in 
circumstances which do not constitute diversion,'' and has even refused 
to prescribe to certain patients,\3\ ``does not negate a prima facie 
showing that the practitioner has committed acts inconsistent with the 
public interest.'' \4\

[[Page 19403]]

74 FR at 463. I further held that while such evidence may be entitled 
to some weight in assessing ``whether a practitioner has credibly shown 
that she has reformed her practices, where a practitioner commits 
intentional acts of diversion and insists she did nothing wrong, such 
evidence is entitled to no weight.'' Id.
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    \3\ In Krishna-Iyer, I noted that the practitioner had 
discharged several patients. 74 FR at 462. However, I held that this 
evidence was not probative of the practitioner's intent in 
prescribing to the other patients who were focus of the proceeding. 
Id. & n.6.
    \4\ I do not adopt the ALJ's discussion of the standards applied 
by the Agency in assessing a practitioner's experience in dispensing 
controlled substances, which cites primarily to cases involving list 
chemical I distributors, a different category of registrant. See ALJ 
Dec. at 25-26. As one example as to why, DEA routinely issues 
registrations to newly-licensed practitioners even though they 
cannot point to any experience in dispensing controlled substances 
(provided they have not previously violated controlled substance 
laws.). Conversely, DEA has never held that a practitioner's lengthy 
experience in dispensing controlled substances without diverting 
precludes a finding (where supported by substantial evidence showing 
that he did divert) that a practitioner has committed acts which 
render his registration ``inconsistent with the public interest.'' 
21 U.S.C. 824(a)(4).
    In any event, as discussed above, Respondent offered no evidence 
on the issue of his experience in dispensing controlled substances 
and the ALJ's ultimate conclusion that Respondent violated the CSA's 
prescription requirement because he dispensed controlled substance 
prescriptions that were not ``within'' `usual course of [his] 
professional practice,'' ALJ at 41 (quoting 21 CFR 1306.04(a)), and 
that ``the evidence under the [experience] * * * factor[] 
support[s]'' the revocation of his registration, is consistent with 
Agency precedent. Id.
    With respect to factor five, ``[s]uch other conduct which may 
threaten public health and safety,'' 21 U.S.C. 823(f)(5), the ALJ 
opined that ``an adverse finding under this factor requires some 
showing that the relevant conduct actuallys constituted a threat to 
public safety.'' ALJ at 41 (emphasis added and citation omitted.) 
Contrary to the ALJ's reasoning, Congress, by inserting the word 
``may'' in factor five, clearly manifested its intent to grant the 
Agency authority to consider conduct which creates a probable or 
possible threat (and not only an actual) threat to public health and 
safety. See Webster's Third New Int'l Dictionary 1396 (1976) 
(defining ``may'' in relevant part as to ``be in some degree likely 
to''); see also The Random House Dictionary of the English Language 
1189 (1987) (defining ``may'' in relevant part as ``used to express 
possibility''). While the ALJ misstated the applicable standard, his 
conclusion that Respondent repeatedly ignored ``red flags'' 
indicative of likely diversion and thus ``created a significant 
potential conduit for the unchecked diversion of controlled 
substances'' is clearly support by substantial evidence and warrants 
an adverse finding under factor five. ALJ at 42.
    The ALJ also opined that ``[i]t is clear that in assessing 
whether the controlled substance prescribing practices of a Florida 
practitioner fall within the acceptable range of what constitutes 
being within the bounds of being `issued for a legitimate medical 
purpose by an individual practitioner acting in the usual course of 
his professional practice,' resort must be had to an expert.'' ALJ 
at 37 (quoting 21 CFR 1306.04(a)). While the ALJ properly noted the 
importance of expert testimony in this case, in which the Government 
primarily relied on a review of the medical charts, whether expert 
testimony is needed is necessarily dependent on the nature of the 
allegations and the other evidence in the case. Where, for example, 
the Government produces evidence of undercover visits showing that a 
physician knowingly engaged in outright drug deals, expert testimony 
adds little to the proof necessary to establish a violation of 
Federal law.
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    Respondent's exception is neither factually nor legally well taken. 
Contrary to his assertion that his hands were ``tie[d] behind his 
back'' and that he was ``effectively cripple[ed]'' from ``present[ing] 
any evidence of'' what he terms ``his positive * * * experience,'' \5\ 
Respondent could have testified about his dispensing practices and 
addressed those instances in which he refused to prescribe controlled 
substances; his decision to not put on evidence on this issue was not a 
matter ``of impossibility,'' but of ``choice.'' Resp. Exc. at 1.
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    \5\ Nor is it clear what Respondent means by ``positive 
experience.'' Resp. Exc. at 1. While at various points Respondent 
refers to files which he asserts show that he discharged patients, 
he then maintains that his lack of access to the files prevent him 
from presenting ``any evidence of his positive, or successful, 
experience in dispensing and treating patients with controlled 
substances.'' Id. (emphasis added). He likewise contends that he was 
``unable to demonstrate his successful treatment of patients with 
controlled substances.'' Id. at 2 (emphasis added). However, it is 
not DEA's role to assess whether a practitioner has successfully 
treated patients, but rather, to determine whether a practitioner is 
either diverting drugs or engaging in practices (whether intentional 
or not) that create a substantial risk of diversion. See Caragine, 
63 FR at 51601 (``Careless or negligent handling of controlled 
substances creates the opportunity for diversion and [can] justify 
revocation [or a registration] or denial'' of an application).
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    Most significantly, Respondent could have testified regarding his 
prescribing practices with respect to the patients whose files were 
reviewed by the Government's Expert and which formed the basis for the 
latter's (and the ALJ's) conclusion that Respondent acted outside of 
the usual course of professional practice and lacked a legitimate 
medical purpose in prescribing controlled substances to them. See ALJ 
Dec. at 41 (citing 21 CFR 1306.04(a)). Alternatively, he could have 
retained his own expert to review the files and called the expert to 
testify. Notably, Respondent makes no claim that the files, which were 
reviewed by the Government's Expert, were not timely provided to 
him.\6\
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    \6\ Indeed, it appears that the patient files (which the expert 
reviewed) were provided to Respondent nearly two months before the 
hearing.
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    Respondent also takes exception to the ALJ's finding that he was 
not prejudiced by the Government's failure to turn over ``the 
discharged patient files,'' as well as evidence pertaining to a second 
undercover officer to whom he refused to prescribe. Resp. Exc. at 2. 
Respondent asserts that his right to Due Process was violated because 
this evidence ``could have exonerated'' him, ``or at the very least, 
given him an opportunity to meaningfully defend against the 
Government's allegations,'' and that prejudice ``must [be] assume[d] * 
* * because neither he nor the Court were ever given access to it.'' 
Id.
    As an initial matter, while there is evidence that Respondent 
refused to prescribe to a second undercover officer, there is no 
evidence establishing that there were, in fact, ``discharged patient 
files.'' Respondent neither testified, nor offered any other evidence 
such as an affidavit establishing, that such files exist. Most 
significantly, in his Exceptions, Respondent does not cite any 
authority for the proposition that the Agency is required to provide 
broad discovery in a proceeding under sections 303 and 304 of the CSA. 
See generally Resp. Exc. Indeed, Respondent's contention far exceeds 
what the Supreme Court has held that an agency must do to comply with 
the Due Process Clause. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 270 
(1970).
    In Goldberg, the Supreme Court held that `` `where governmental 
action seriously injures an individual, and the reasonableness of the 
action depends on fact findings, the evidence used to prove the 
Government's case must be disclosed to the individual so that he has an 
opportunity to show that it is untrue.' '' 397 U.S. at 270 (quoting 
Greene v. McElroy, 360 U.S. 474, 496 (1959) (emphasis added)). The 
Court has further explained that ``[a] party is entitled * * * to know 
the issues on which [the] decision will turn and to be apprised of the 
factual material on which the agency relies for decision so that he may 
rebut it. Indeed, the Due Process Clause forbids an agency to use 
evidence in a way that forecloses an opportunity to offer a contrary 
presentation.'' Bowman Transp., Inc., v. Arkansas-Best Freight System, 
Inc., 419 U.S. 281, 288 n.4 (1974).
    It is well settled, however, that neither the Due Process Clause, 
nor the Administrative Procedure Act (nor DEA's rules of procedure) 
require the Agency to provide a general right of discovery in 
administrative proceedings. See Echostar Comm. Corp. v. FCC, 292 F.3d 
749, 756 (DC Cir. 2002); Mister Discount Stockbrokers, Inc., v. SEC, 
768 F.2d 875, 878 (7th Cir. 1985); Nicholas A. Sychak, d/b/a/Medicap 
Pharmacy, 65 FR 75959, 75961 (2000). While ``discovery must be granted 
if in the particular situation a refusal to do so would so prejudice a 
party as to deny him due process,'' McClelland v. Andrus, 606 F.2d 
1278, 1285-86 (DC Cir. 1979), the party seeking discovery must rely on 
more than speculation and must show that the evidence is relevant, 
material, and that the denial of access to the documents is 
prejudicial. See Echostar, 292 F.3d at 756; Silverman v. CFTC, 549 F.2d 
28, 34 (7th Cir. 1977).
    In this case, the ALJ based his conclusion that Respondent issued 
numerous prescriptions outside of the usual course of professional 
practice in violation of both Federal and State laws and thus had 
committed acts which render his registration inconsistent with the 
public interest, see ALJ Dec. at 39-42, on the Expert's testimony and 
report regarding the various patients files the latter reviewed, each 
of which was provided to Respondent. Accordingly, the evidence which 
was the basis of the decision was disclosed to him, and contrary to his 
contention, see Resp. Exc. at 2, Respondent had a meaningful 
``opportunity to show that it is untrue.'' \7\ Goldberg, 397 U.S. at 
270. Respondent offers no explanation as to why other patient files 
would have ``exonerated'' him from the allegations that his 
prescriptions to the patients, whose files were reviewed by the Expert, 
were issued outside of the usual course of professional practice and 
lacked a legitimate medical purpose. Nor does Respondent offer any 
legal authority for his contention that prejudice--which he cannot 
show--

[[Page 19404]]

must be assumed. See Mister Discount Stockbrokers, 768 F.2d at 878 
(rejecting challenge to discovery procedures in administrative 
proceeding noting that party failed ``to demonstrate any prejudice * * 
* let alone prejudice to a significant degree so as to result in a 
denial of due process'').
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    \7\ The Government also attempted to introduce evidence that 
Respondent prescribed to a member of a Boston-based drug trafficking 
organization, who had been arrested with 3,000 oxycodone tablets in 
his possession, and who stated that he did not have a legitimate 
medical need for the drugs he obtained from Respondent. Tr. 829-32. 
For the reasons stated in his decision, the ALJ properly gave this 
testimony no weight. See ALJ Dec. at 10 n.23.
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    There is likewise no merit to Respondent's contention that he was 
prejudiced by the Government's failure to turn over the patient file of 
the undercover officer to whom he refused to prescribe. A Special Agent 
testified that Respondent had refused to prescribe to a second 
undercover officer and the Government failed to put forward any 
evidence regarding the circumstances of this visit (such as what the 
officer said to Respondent). For this reason alone, it was proper for 
the ALJ to draw an inference adverse to the Government and conclude 
that Respondent properly complied with the rules of the Florida Board 
of Medicine in evaluating the undercover officer. See ALJ at 32 (citing 
UAW v. NLRB, 459 F.2d 1329, 1335-39 (D.C. Cir. 1972)).\8\ However, as 
the ALJ held, that Respondent refused to prescribe controlled 
substances in this single instance does not refute the Government's 
prima facie showing that Respondent repeatedly violated the 
prescription requirement of Federal law as established by the Expert's 
review of eighteen patient files. See id. at 41 (quoting 21 CFR 
1306.04(a)) (``after carefully balancing the admitted evidence, [and] 
even applying an adverse inference that permits the assumption that the 
Respondent was approached by an undercover agent and acted 
appropriately, the evidence establishes, by a preponderance, that the 
prescriptions the Respondent issued * * * were not issued within `the 
usual course of [the Respondent's] professional practice' '').
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    \8\ The ALJ explained that drawing an adverse inference was 
``appropriate under the circumstances of this case where the 
evidence of the unsuccessful US was clearly within the Government's 
control and should, to maintain the integrity of the proceedings, 
have been disclosed if not produced.'' ALJ at 32. It is unclear 
whether the ALJ believed that disclosure of this evidence was 
required as a matter of Due Process as the ALJ did not cite any 
authority for his reasoning and numerous courts (as well as this 
Agency) have held that Brady v. Maryland, 373 U.S. 83 (1963), does 
not apply to administrative proceedings. See Mister Discount 
Stockbrokers, 768 F.2d at 878; NLRB v. Nueva Engineering, Inc., 761 
F.2d 961, 969 (4th Cir. 1985); Nicholas A. Sychak, 65 FR 75,959, 
75960-61 (2000). Even if this evidence is of the type which a 
refusal to disclose ``would so prejudice a party as to deny him due 
process,'' McClelland v. Andrus, 606 F.2d at 1286, the evidence was 
disclosed through the testimony of the Special Agent. Respondent 
thus cannot show prejudice.
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    As noted above, Respondent did not testify. Nor did he offer the 
testimony of an expert. Thus, Respondent did not refute the opinion 
testimony of the Government's Expert that he repeatedly violated the 
prescription requirement of Federal law. Because Respondent failed ``to 
testify in response to [the] probative evidence offered against'' him, 
I conclude (as did the ALJ) that it is appropriate to draw an adverse 
inference against him and hold that he knowingly issued prescriptions 
in violation of 21 CFR 1306.04(a). Baxter v. Palmigiano, 425 U.S. 308, 
316 (1976); see also The Lawsons, Inc., 72 FR 74334, 74339 (2007). 
Because Respondent failed to testify, I also conclude that he has not 
accepted responsibility for his misconduct nor demonstrated that he 
will not engage in future misconduct, and therefore, he has not 
rebutted the Government's prima facie showing that his continued 
registration is inconsistent with the public interest.\9\ See Medicine 
Shoppe-Jonesborough, 73 FR at 387; Samuel S. Jackson, 72 FR 23848, 
23853 (2007). I thus reject Respondent's Exceptions and adopt the ALJ's 
recommended Order.
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    \9\ A registrant's obligation to accept responsibility and 
demonstrate that he will not engage in future misconduct applies 
even where the Government's evidence does not establish that a 
registrant has committed intentional acts. See Krishna-Iyer, 74 FR 
at 464 n.9; Caragine, 63 FR at 51601 (granting restricted 
registration where physician showed that he underwent remedial 
``training to become better educated in controlled substances and 
how to deal with drug-seeking patients''). Thus, even if I had 
concluded that the evidence did not establish that Respondent 
knowingly diverted controlled substances, I would still revoke his 
registration because he failed to rebut the Government's prima facie 
case.
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 21 CFR 0.100(b) and 0.104, I order that DEA 
Certificate of Registration, FB0254918, issued to Beau Boshers, M.D., 
be, and it hereby is revoked. I further order that any pending 
application of Beau Boshers, M.D., to renew or modify his registration, 
be, and it hereby is, denied.
    This Order is effective immediately.

    Dated: March 31, 2011.
Michele M. Leonhart,
Administrator.
Larry P. Cote, Esq., for the Government
Jose M. Quinon, Esq., for the Respondent

Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision 
of the Administrative Law Judge

    John J. Mulrooney, II, Administrative Law Judge. On February 25, 
2010, the Deputy Administrator, Drug Enforcement Administration (DEA 
or Government), issued an Order to Show Cause and Immediate 
Suspension of Registration (OSC/ISO), immediately suspending the DEA 
Certificate of Registration (COR), Number FB02549187, of Beau 
Boshers, M.D. (Respondent), as a practitioner, pursuant to 21 U.S.C. 
824(d), alleging that such registration constitutes an imminent 
danger to the public health and safety. The OSC/ISO also sought 
revocation of the Respondent's registration, pursuant to 21 U.S.C. 
824(a)(4), and denial of any pending applications for renewal \10\ 
or modification of such registration, pursuant to 21 U.S.C. 823(f), 
alleging that the Respondent's continued registration is 
inconsistent with the public interest, as that term is used in 21 
U.S.C. 823(f). On March 22, 2010, the Respondent timely requested a 
hearing, which, pursuant to a change of venue granted at his 
request, was conducted in Miami, Florida, on July 7, 2010 through 
July 9, 2010.\11\ The immediate suspension of the Respondent's COR 
has remained in effect throughout these proceedings.
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    \10\ Although the Respondent's COR expired on July 31, 2010, the 
parties stipulated that a timely renewal application has been 
submitted by the Respondent. ALJ Ex. 40.
    \11\ Pursuant to an order issued on April 15, 2010, the hearing 
in this matter was consolidated with the cases of four other 
registrants who were working at the same clinic as the Respondent 
and who were also issued OSC/ISOs on February 25, 2010, alleging 
similar and related conduct.
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    The issue ultimately to be adjudicated by the Deputy 
Administrator, with the assistance of this recommended decision, is 
whether the record as a whole establishes by substantial evidence 
that Respondent's registration with the DEA should be revoked as 
inconsistent with the public interest as that term is used in 21 
U.S.C. 823(f) and 824(a)(4).
    After carefully considering the testimony elicited at the 
hearing, the admitted exhibits, the arguments of counsel, and the 
record as a whole, I have set forth my recommended findings of fact 
and conclusions below.

The Evidence

    The OSC/ISO issued by the Government alleges that the 
Respondent, through the medical practice he participated in at 
American Pain, LLC (American Pain), prescribed and dispensed 
inordinate amounts of controlled substances, primarily 
oxycodone,\12\ under circumstances where he knew, or should have 
known, that the prescriptions were not dispensed for a legitimate 
medical purpose. ALJ Ex. 1. The OSC/ISO further charges that these 
prescriptions were issued outside the usual course of professional 
practice based on a variety of circumstances \13\ surrounding the 
manner in which American Pain is operated and the manner in which 
its physicians, including the Respondent, engaged in the practice of 
medicine. Id. The Respondent is also alleged, on several occasions, 
to have provided undercover law enforcement personnel with 
controlled substances, including, inter alia, oxycodone and

[[Page 19405]]

alprazolam,\14\ after cursory or no medical examinations, and 
therefore without a legitimate medical purpose. Id. The Government's 
OSC/ISO also alleges that the Respondent's former patients apprised 
law enforcement personnel that ``they were able to obtain 
prescriptions for controlled substances from [the Respondent] for 
other than a legitimate medical purpose and with little or no 
medical examination.'' Id. Lastly, as an additional ground for the 
OSC/ISO, the Government cites the death of one of the Respondent's 
patients from an overdose of controlled substances one day after 
obtaining prescriptions for some of those same controlled substances 
during a visit to the Respondent at American Pain, and that the 
investigation determined the deceased patient and two companions 
obtained those substances ``for other than a legitimate medical 
purpose with the intention of selling the controlled substances in 
Kentucky.'' Id.
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    \12\ A schedule II controlled substance.
    \13\ The majority of which are supported by no evidence 
introduced by the Government during the course of these proceedings.
    \14\ A schedule IC controlled substance.
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    At the hearing, the Government presented the testimony of three 
witnesses, DEA Miami Field Division (MFD) Group Supervisor (GS) 
Susan Langston, DEA Special Agent (SA) Michael Burt, and L. Douglas 
Kennedy, M.D., D.A.B.P.M., Affiliate Clinical Assistant Professor at 
the University of Miami, Miller School of Medicine.
    GS Langston testified that the investigation of the American 
Pain Clinic had its origins on November 30, 2009, during a routine 
inspection that she and a subordinate diversion investigator 
conducted at Appurtenance Biotechnology, LLC, a pharmacy doing 
business under the name Boca Drugs (Boca Drugs), and located a few 
blocks away from one of the former locations of American Pain. Tr. 
at 713, 717-20. According to Langston, an examination of the 
prescriptions seized from Boca Drugs revealed that the majority of 
those prescriptions were for oxycodone and alprazolam authorized 
over the signature of physicians associated with American Pain.\15\ 
Id. at 721. Under Langston's supervision, DEA diversion 
investigators catalogued the prescriptions seized at Boca Drugs 
(Boca Drugs Prescription Log). Govt. Ex. 118. A review of the data 
relative to the Respondent on the Boca Drug Prescription Log reveals 
that from November 2, 2009 through November 25, 2009, 166 controlled 
substance prescriptions issued over the Respondent's signature, to 
seventy-five patients, only six of whom resided in Florida. The 
remainder of the patients had listed addresses in Kentucky, 
Tennessee, Ohio, Georgia, Indiana, Alabama and West Virginia. The 
data in the log further reflected that the Respondent issued three 
prescriptions for non-controlled substances during that time period.
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    \15\ Although GS Langston testified that DEA immediately 
suspended the COR that had been issued to Boca Drugs, Tr. at 715, 
and that aq voluntary surrender by that registrant followed a day 
later, id., at 776, no evidence has been presented that would lend 
that fact any particular significance related to any issue that must 
or should be found regarding the disposition of the present case.
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    GS Langston also testified that, on March 3, 2010, a criminal 
search warrant was executed on the American Pain Clinic 
simultaneously with the OSC/ISO that initiated the present case. Tr. 
at 735. According to Langston, the items seized from American Pain 
included a sign that had been posted in what she believes to have 
served as the urinalysis waiting room. Id. at 735-37. The seized 
sign set forth the following guidance:

ATTENTION PATIENTS

    Due to increased fraudulent prescriptions, [i]t's best if you 
fill your medication in Florida or your regular pharmacy. Don't go 
to a pharmacy in Ohio when you live in Kentucky and had the scripts 
written in Florida. The police will confiscate your scripts and hold 
them while they investigate. This will take up to 6 months. So only 
fill your meds in Florida or a pharmacy that you have been using for 
at least 3 months or more.

Govt. Ex. 119 at 1. This sign is attached, apparently by some sort of 
tape, to the top portion of two other signs, posted at the same 
location, the first of which reads:

ATTENTION

Patients

    Please do NOT fill your prescriptions at any WALGREENS PHARMACY 
\16\ or OUTSIDE the STATE OF FLORIDA.
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    \16\ GS Langston testified that she was unaware of the location 
of the closest Walgreens to American Pain's offices. Tr. at 779. No 
evidence was presented that would tend to establish that any 
Walgreens or any other pharmacy has taken a position regarding its 
willingness to fill prescriptions authorized by American Pain.

    Id. The final attachment to the composite sign bears the words ``24 
Hour Camera Surveillance.''
    Id. A photograph of the composite sign was admitted into evidence.
    Langston also testified that while she was present in the American 
Pain offices, she noticed that each physician's desk was equipped with 
a group of stamps, each of which depicted a controlled substance 
medication with a corresponding medication usage instruction (sig). Tr. 
at 738-39. A photograph of one set of prescription script stamps was 
admitted as an exhibit.\17\ Govt. Ex. 119 at 2.
---------------------------------------------------------------------------

    \17\ Although GS Langston testified that she did not actually 
take the photographs during the search warrant execution at American 
Pain, she did provide sufficient, competent evidence to support the 
admission of the photographs that were ultimately received into 
evidence. Tr. at 737, 739-41.
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    GS Langston also testified that a great number of medical charts 
were seized from the American Pain offices, and that she and her staff 
selected a number of these files to be analyzed by an medical expert 
procured by the Government. Tr. at 762. According to GS Langston, after 
the execution of the warrant, the charts from the entire office were 
placed into piles in alphabetical order, and not separated by 
physician. Langston testified that she and three of her diversion 
investigators reviewed the seized files with a view towards choosing 
approximately fifteen files for each doctor with the aspirational 
criteria that each would reflect at least three to four visits by that 
doctor with a patient. Each investigator was empowered to place a chart 
on the selected pile, and when the target number (or about that number) 
was reached for each physician, the selection effort relative to that 
physician was deemed accomplished. Id. at 765. Langston credibly 
testified that there was no effort to specially select files under some 
prosecution-enhancement or ``cherry picking'' purpose.\18\ Id. at 768.
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    \18\ In his Discussion and Proposed Findings of Fact and 
Conclusions of Law (Respondent's Brief), the Respondent argues that 
the selection criteria employed by Langston deprived him of due 
process and somehow created an inaccurate portrayal of his practice. 
Respt's Br. at 4. However, the Respondent never explains the casual 
connection between the manner in which the files were selected, 
which was not based on any manner of targeting derogatory 
information regarding his patient care and why any due process right 
was compromised.
---------------------------------------------------------------------------

    Langston also explained DEA's Automated Record Consolidated 
Ordering System (ARCOS) \19\ and testified that she generated an ARCOS 
report relative to the Respondent's ordering of controlled substances 
from January 2009 through February 2010. Govt. Ex. 23.
---------------------------------------------------------------------------

    \19\ Langston explained that through the ARCOS system, ``[d]rug 
manufacturers and distributors are required to report the sale of 
certain controlled substances to DEA,'' and the system ``shows the 
history of a drug from the point of manufacture through the 
distribution chain to the retail dispensing level.'' Tr. at 685-86.
---------------------------------------------------------------------------

    In the same fashion, Langston explained the purposes of and 
circumstances behind the generation of state prescription monitoring 
reports (PMPs) relative to the Respondent maintained by West Virginia, 
Kentucky and Ohio. Govt. Exs. 24-26. Review of the PMP report data 
reflects that during the time period of February 1, 2006 through 
February 11, 2010, pharmacies filled 259 controlled substance 
prescriptions issued over the Respondent's signature to sixty-eight 
patients located in West Virginia, 173 similar prescriptions provided 
to seventy-nine Kentucky-based patients were filled between January 1, 
2009 and April 4, 2010, and ninety such prescriptions pertaining to 
sixty-one patients located in Ohio were filled between April 1, 2008 
and April 19, 2010. Id.
    No evidence was introduced at the hearing that would provide any 
reliable level of context regarding the raw data

[[Page 19406]]

set forth in the databases received into evidence at the Government's 
request. Other than the observations noted above, no witness who 
testified at the hearing ever explained the significance of the data 
set forth in any of these databases to any issue that must or should be 
considered in deciding the present case.
    GS Langston provided evidence that was sufficiently detailed, 
consistent and plausible to be deemed credible in this recommended 
decision.
    SA Michael Burt testified that he has been employed by DEA since 
March 2004 and has been stationed with the Miami Field Division (MFD) 
since September 2004. Tr. at 813-14. Burt testified that he is the lead 
case agent for DEA in the investigation of American Pain Clinic and has 
participated in the investigation since the latter part of 2008. 
According to Burt, American Pain, which was previously known by the 
name South Florida Pain, has conducted business at four different 
locations, and he surveilled the Boca Raton and Lake Worth locations 
both in person and by periodic live review of video captured via pole 
cameras \20\ set up outside the clinic. Id. at 815-17. These pole 
cameras, which were in operation during a three week period from 
January to February 2010, were initially in operation on a 24-hour 
basis, but Burt testified that they were later activated only between 
the hours of 7 a.m. through 6 p.m. due to an observed lack of activity 
at the clinic outside of that time period. Id. at 820-21. The pole 
camera recordings were not offered into evidence at the hearing or made 
available to opposing counsel.
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    \20\ SA Burt described the pole cameras as ``covert cameras that 
are installed to observe the activity in the clinic.'' Tr. 816. Burt 
testified that he was able to use a laptop to access the live video 
feed from the cameras after inputting a username and password. The 
camera video was also recirded to DVR. Id. at 821.
---------------------------------------------------------------------------

    Based on these surveillance efforts, SA Burt testified concerning 
various activities he observed occurring outside the Boca and Lake 
Worth clinic locations, which were open to the public from 8 a.m. to 5 
p.m. At the Boca location, Burt stated that on any given day, beginning 
at 7 a.m. in the morning, automobiles could be seen pulling into the 
parking lot and approximately twenty to thirty people were routinely 
lined up outside of the clinic waiting to gain admittance. 
Additionally, there was a steady stream of automobile and foot traffic 
in and out of the clinic throughout the day. Id. at 817, 821. Burt 
testified that in his estimation, approximately 80-90 percent of the 
automobiles had out-of-state tags, predominantly from Kentucky, Ohio, 
West Virginia and Tennessee. Id. at 817-18. Burt also observed security 
personnel with ``staff'' written on their shirts \21\ riding around the 
exterior of the building in golf carts and who, in Burt's assessment, 
appeared to be directing patients into the American Pain facility. Burt 
indicated his surveillance of the Lake Worth location yielded similar 
observations. Id. at 818.
---------------------------------------------------------------------------

    \21\ Tr. at 910.
---------------------------------------------------------------------------

    Based on his review of some (but not all) \22\ of the audio and 
video tapes made by agents and informers sent into the clinic by the 
Government at various times, SA Burt also testified about his 
understanding of the process by which patients obtained controlled 
substance prescriptions at American Pain. According to Burt, after 
entering the clinic, a patient would meet with the receptionist, who 
would determine if the patient had an MRI. If not, the receptionist 
would issue that individual an MRI prescription in exchange for a $50 
cash payment, and the patient ``would be directed to a place to obtain 
an MRI.'' Id. at 822. Burt testified that one such MRI location was 
Faye Imaging, which was a mobile MRI trailer located behind a 
gentlemen's club several miles away from American Pain. Id. at 822-23. 
The cost for the MRI was $250, and the patient could pay an additional 
fee ``to have the MRI expedited and faxed over to American Pain.'' Id. 
at 823-24. Once the MRI was procured and faxed to American Pain, the 
patient would return to the clinic and be seen by a doctor. According 
to Burt, the clinic accepted what he referred to as ``predominantly 
cash only'' \23\ for these office visits, and the six doctors at the 
clinic saw ``anywhere from 200 upward to 375 patients a day'' \24\ in 
this manner.\25\ Id. at 882-83 (emphasis supplied).
---------------------------------------------------------------------------

    \22\ SA Burt conceded that although he is the designated lead 
case agent for DEA, he did not review all the audio and video tapes 
made in the case or even review the transcripts. Tr. at 1002-05.
    \23\ Later on cross-examination, SA Burt admitted that the 
clinic also accepted payment via credit card. Tr. at 916. The 
parameters of what the witness meant by ``predominantly'' was not 
the subject of further explanation.
    \24\ Inasmuch as the Government provided no information from 
which any specific number of patients seen by any given clinic 
doctor on any day could be derived, or any expert testimony 
regarding a reasonable number of pain patients that could or should 
be seen per day, the value of providing the raw number of patients 
walking through the door at the clinic is negligible.
    \25\ Burt further testified that the doctors were paid $75.00 
per patient visit, id. at 884, but because he indicated that he 
could not disclose his basis of knowledge for this information, this 
portion of his testimony can be afforded no weight. See Richardson 
v. Perales, 402 U.S. 389, 402 (1971); J.A.M. Builders v. Herman, 233 
F.3d 1350, 1354 (11th Cir. 2000); Kelly v. Sullivan, 928 F.2d 227, 
230 (7th Cir. 1991); Calhoun v. Bailar, 626 F.2d 145, 149 (9th Cir. 
1980).
---------------------------------------------------------------------------

    SA Burt also testified regarding his review of some \26\ of the 
video and audio recordings made by an undercover agent (UC) who assumed 
the name Luis Lopez capturing activity inside of American Pain.\27\ In 
those recordings, Burt observed who he believed to be an American Pain 
employee inside the facility standing up in a waiting room full of 
patients and directing them ``not to have their prescriptions filled 
out of state, not to go out into the parking lot and snort their 
pills,'' and directing the patients to have their prescriptions filled 
``in house'' (meaning at American Pain), at ``a pharmacy they have in 
Orlando, Florida,'' or at ``a pharmacy they have down the street,'' 
which, in Bart's view, was a reference to Boca Drugs. Id. at 825-26. 
Burt further testified that the purported employee on the recording 
told the patients to ``obey all the traffic laws; do not give the 
police a reason to pull you over.'' Id. Although Burt testified as to 
the contents of these recordings, the physical recordings were not 
offered into evidence by the Government or made available to opposing 
counsel.
---------------------------------------------------------------------------

    \26\ Tr. at 1002-05.
    \27\ The fact that these recordings were made during the course 
of seven different office visits by an undercover agent to both the 
Boca Raton and Lake Worth locations was established on cross-
examination. Tr. at 900, 985.
---------------------------------------------------------------------------

    Although noticed in SA Burt's proposed testimony identified in the 
Government's prehearing statement, testimony regarding the specifics of 
the UC's visits to see the Respondent at American Pain was not elicited 
by the Government during its direct examination, but was brought out on 
cross-examination to meet the Government's admitted evidence consisting 
of a patient file kept by the Respondent relative to the UC and the 
accompanying expert report and testimony concerning that file provided 
by Dr. Kennedy. Id. at 985-86; Govt. Exs. 46 (Patient File for Luis 
Lopez), 131 (Supplemental Expert Report Regarding Undercover Patient 
Luis Lopez). Burt testified that he did not have the UC examined by a 
physician to determine his physical condition prior to going to the 
clinic, he did not ask him whether he had any prior back problems, and 
he did not ask him whether he had any past problems that caused a 
doctor to prescribe him controlled substances; instead, Burt relied 
solely on the UC's representations he was not currently in any pain 
before sending him into the clinic. Tr. at 987-89. According to Burt, 
the only instructions he provided to the

[[Page 19407]]

UC were to be ``very vague regarding the pain,'' to ``point to a 
general area'' when asked about it, and to provide a urine sample if so 
requested by clinic staff. Id. at 989-90, 1001. It was further 
established that an MRI was taken of the UC at Faye Imaging prior to 
his seeing the Respondent. Id. at 990-91. Burt related that the UC's 
first visit to the clinic was approximately an hour and fifteen 
minutes, and his visit with the Respondent was ten to thirteen minutes 
long. Id. at 998-99. Although these encounters between the UC and the 
Respondent were recorded either via audio or video, the Government did 
not offer the recordings as evidentiary exhibits at the hearing, and 
opposing counsel did not have access to them.\28\
---------------------------------------------------------------------------

    \28\ In fact, as addressed infra, SA Burt did not review the 
recordings or read the history and physical examination form 
contained in the UC's patient file with an eye towards determining 
if the audio corroborated the information on the forms. Furthermore, 
Burt admitted these recordings were not provided to Dr. Kennedy for 
his use in formulating his expert testimony and reports. Tr. at 
1007.
---------------------------------------------------------------------------

    More troubling by far is the revelation during SA Burt's cross 
examination that in addition to UC Luis Lopez, a second UC went into 
American Pain during July 2009 and recorded his encounters with the 
Respondent. Those encounters by the second UC did not culminate with 
the Respondent prescribing controlled substances.\29\ Id. at 1027, 
1029.
---------------------------------------------------------------------------

    \29\ As discussed in more detail anon, this development was 
particularly troubling in light of the Respondent's prehearing 
motion practice where he sought the disclosure of precisely this 
variety of evidence.
---------------------------------------------------------------------------

    SA Burt also testified that he received information from Dr. Eddie 
Sollie, a former physician employed during the time period American 
Pain was doing business as South Florida Pain, who terminated his 
employment at the Oakland Park clinic location in November or December 
2008 after working there for approximately two and a half to three 
months. Id. at 827, 898. During the course of an interview where Burt 
was present, Dr. Sollie related various ``concerns about how the 
practice was being handled or managed.'' Id. at 827-28. These concerns 
included medical records being, in his opinion, annotated inadequately 
by the doctors, and what he perceived as a lack of supervision during 
patient urinalysis testing, where patients would ``go[] to the 
bathrooms together, bringing items with them to the bathrooms that 
could possibly disguise the urinalysis.'' According to Burt, Sollie 
explained that he perceived that patients were substituting urine 
produced by other persons that contained the metabolites for controlled 
substances that the patients claimed to be legitimately taking, with a 
view towards falsely providing evidence to the American Pain doctors 
showing that they were actually taking prescribed medications and not 
diverting them. Id. at 828-29. During cross-examination, Burt explained 
that Dr. Sollie told him he had raised these concerns with Christopher 
George, the owner of American Pain, and that Burt had no evidence that 
the deficient practices that Sollie had objected to continued through 
2010. Id. at 900, 906. Burt also acknowledged that he was aware Dr. 
Sollie had been involved in litigation with Mr. George and that their 
relationship was strained. Id. at 1009. Dr. Sollie was not called as a 
witness by either party.
    SA Burt also provided testimony concerning three confidential 
sources (only one of whom was seen by the Respondent) and their 
contacts with doctors at American Pain. Relative to the Respondent, the 
first confidential source (CS1) discussed by Burt was arrested in 
Washington, DC after transporting upwards of 3,000 oxycodone pills from 
south Florida to Massachusetts, and at the time of his arrest, Burt 
testified that an empty prescription pill bottle from American Pain 
with the Respondent's name on it was found on his person. Id. at 829. 
Burt relayed that at the time CS1 was searched, he had the 3,000 pills 
secreted in a jock strap strapped to the inside of his leg, and they 
were not in any type of bottle with the Respondent's name on it. The 
individual told Burt during a July 2009 interview \30\ that he was a 
member of a Boston-based drug trafficking organization that would 
obtain oxycodone in southern Florida and transport it back to Boston 
for resale. Id. at 831. CS1 told Burt that he did not have a legitimate 
medical need for drugs when he saw the Respondent at American Pain, and 
that during his office visit, the doctor did not physically touch him, 
but did tell him to bend over and touch his toes. Id. at 832-33. The 
Government did not submit evidence of, or provide opposing counsel 
access to, a patient file reflecting CS1's visit to the Respondent, a 
copy of the prescription allegedly issued, or the empty pill bottle 
described.\31\ Burt's testimony divulged the fact that CS1's 
cooperation with authorities was being provided in relation to his July 
2009 arrest and that a record check revealed CS1 had arrests prior to 
that incident, though Burt was unable to recall information of any 
detail concerning the nature and disposition of those arrests. Id. at 
1018-20. Burt declined to disclose the name of CS1 when queried on 
cross-examination.\32\ Id. at 1017.
---------------------------------------------------------------------------

    \30\ Tr. at 1012.
    \31\ SA Burt testified that he has never actually seen the 
described pill bottle. Tr. at 830. Burt also revealed on cross-
examination that he has never reviewed a patient file relative to 
CS1, and that said patient file was not reviewed by a doctor to 
determine the propriety of the controlled substance prescriptions 
purportedly issued by the Respondent. Id. at 1015.
    \32\ In light of the inability to identify the name of this 
source of information to opposing counsel, and the lack of detail 
and corroborating evidence related to the information derived from 
him, no weight can be assigned to SA Burt's testimony concerning 
information provided by CS1, other than the fact that it may have 
informed DEA's investigation. To proceed otherwise would deny the 
Respondent the ability guaranteed by the APA ``to conduct such 
cross-examination as may be required for a full and true disclosure 
of the facts.'' 5 U.S.C. 556(d); see Richardson v. Perales, 402 U.S. 
389, 402 (1971); J.A.M. Builders v. Herman, 233 F.3d 1350, 1354 
(11th Cir. 2000); Keller v. Sullivan, 928 F.2d 227, 230 (7th Cir. 
1991); Calhoun v. Bailar, 626 F.2d 145, 149 (9th Cir. 1980).
---------------------------------------------------------------------------

    SA Burt also testified regarding the drug overdose deaths of TY and 
SM after obtaining controlled substances from American Pain.\33\ Burt's 
record testimony indicates that DEA Task Force Officer \34\ (TFO) Barry 
Adams informed him that a Kentucky resident named TY overdosed in 
Kentucky from oxycodone intoxication induced by medication procured at 
American Pain. Burt testified that this information was furnished 
pursuant to a working law enforcement relationship between the Kentucky 
State Police, Kentucky FBI, Kentucky DEA and Miami DEA aimed at 
addressing ``the brunt of the pill problem'' centered within the state 
of Kentucky relative to illegal use and resale of prescription pain 
medications. Id. at 833-35. However, in his testimony, Burt was unable 
to recall the name of the doctor from whom TY obtained his pills, and, 
thus, no admissible evidence was presented by the Government with 
respect to TY's death.\35\ Likewise, the record evidence concerning SM 
did not implicate prescribing activity by the Respondent.
---------------------------------------------------------------------------

    \33\ Although similar testimony concerning the overdose death of 
a third individual, OB, was noticed in the Government's prehearing 
statement, it was not offered by the Government at the hearing. ALJ 
Ex. 6 at 8.
    \34\ According to SA Burt, a ``task force officer'' is a local 
police officer or sheriff's deputy that is assigned to work on a DEA 
task force, rather than a sworn DEA criminal investigator. Tr. at 
1031.
    \35\ See Tr. at 836-53 (addressing exclusion of Govt. Ex. 27 and 
associated testimony).
---------------------------------------------------------------------------

    Perhaps among the more striking aspects of SA Burt's performance on 
the witness stand is the anticipated testimony which he did not 
provide. When viewed in its entirety, SA Burt's record testimony was 
stunningly sparse when compared with his proposed

[[Page 19408]]

testimony as noticed in the Government's prehearing statement.\36\ That 
certain information may be unavailable for reasons related to other 
litigation forums or other equally valid reasons are of no moment with 
respect to the evaluation that must be made at this administrative 
forum. Equally important, such considerations do not alter the burdens 
imposed upon the respective parties. Simply put, the admitted evidence 
must succeed or fail on its own merits, irrespective of extraneous 
considerations.
---------------------------------------------------------------------------

    \36\ ALJ Ex. 6.
---------------------------------------------------------------------------

    Even apart from the marked contrast between the Burt testimony as 
proffered and as realized, his testimony was marred by periodic memory 
failures on significant issues and an inability to supply details to an 
extent that it could arguably have diminished the weight that could be 
fairly attached to those aspects of his own investigation that he did 
manage to recollect. During his testimony, SA Burt acknowledged his own 
marked lack of preparation and unfamiliarity with the investigation and 
confessed simply that ``[t]here's no excuse * * *.'' Id. at 1003-05.
    Even acknowledging its obvious suboptimal aspects, SA Burt's 
testimony had no apparent nefarious motivation or indicia of 
intentional deceit. Burt came across as an earnest and believable 
witness, who, regarding the aspects of the case that he did recall, was 
able to impart substantial information about the investigation and 
activities involving American Pain and its doctors. While frequently 
lacking in detail, his testimony was not internally inconsistent or 
facially implausible, and although the legal weight I have assigned to 
certain portions of Burt's testimony varies given the issues described, 
I find his testimony to be credible overall.
    The Government presented the bulk of its case through the report 
and testimony of its expert, L. Douglas Kennedy, M.D., D.A.B.P.M., 
Affiliate Clinical Assistant Professor at the University of Miami, 
Miller School of Medicine.\37\ Dr. Kennedy was offered by the 
Government and accepted as an expert in the field of pain medicine. Id. 
at 39. In Dr. Kennedy's expert opinion, based on a documentary review 
of the patient charts from the Respondent's practice that he reviewed, 
the Respondent's prescribing practices fell below the standards set 
forth by the Florida Medical Board. Id. at 176-77, 365. Dr. Kennedy 
stated that
---------------------------------------------------------------------------

    \37\ Dr. Kennedy's CV was admitted into evidence. Govt. Ex. 117.

there was no true doctor/patient relationship established for the 
prescription of controlled substances at the first or any visit, and [] 
it was grossly deficient and medically dangerous to prescribe in the 
---------------------------------------------------------------------------
fashion it was prescribed for the same reasons.

Id. Furthermore, Dr. Kennedy testified that after reviewing the charts, 
he concluded that the prescribing of controlled substances by the 
Respondent to the patients named in the charts was not for a legitimate 
medical purpose. Id. at 182.

    During the course of his testimony, Dr. Kennedy explained that he 
took professional issue with several aspects of the Respondent's 
patient care as reflected in the charts regarding the prescribing of 
controlled substances. It is apparent from his testimony that Dr. 
Kennedy's analysis is restricted to those matters which can be gleaned 
from an examination of the written word in that subset of the 
Respondent's patient files provided by the Government for his review, 
and that limitation perforce circumscribes the breadth of his 
testimony. That being said, Dr. Kennedy highlighted numerous features 
in the Respondent's chart documentation that he found wanting, or at 
least remarkable.
    While, during his testimony, Dr. Kennedy acknowledged that some 
level of standardization and utilization of forms is not, standing 
alone, improper,\38\ Dr. Kennedy took issue with what he perceived as 
flaws in the forms utilized by the Respondent to document patient care. 
Dr. Kennedy even acknowledged that the Respondent's possession and use 
of stamps to affix prescription descriptions and doses on scripts, was 
not, standing alone, improper. Id. at 178. However, according to Dr. 
Kennedy, the forms employed by the Respondent were ``grossly deficient 
in that [they] didn't really justify why the individual was given the 
high doses of narcotics or controlled substances that they were.'' Id. 
at 177.
---------------------------------------------------------------------------

    \38\ Tr. at 74.
---------------------------------------------------------------------------

    Dr. Kennedy explained that there are basic elements to practicing 
pain medicine. The acquisition of a thorough history and physical 
examination is important. Id. at 41-42. He also stressed the vital 
importance of obtaining past medical records to evaluate what 
treatments, therapies, medications, and dosages have been utilized in 
the past so that correct current treatment decisions can be made. Id. 
at 45-46. Reliance upon the patient's memory of these elements without 
the prior medical records, in Dr. Kennedy's view is not reliable or 
acceptable. Id. at 46-47. Dr. Kennedy acknowledged that physicians 
customarily accept patients at their word, but on the subject of 
verifying a patient's subjective complaint and medication history, Dr. 
Kennedy explained that

[s]ometimes you have to help people understand why they're suffering or 
what their problems are. A person with an addiction or drug abuse 
problem is no worse a human being than me. I'm not any better than 
them. But it's your job as a doctor to sit down and find out what the 
truth is as well as you reasonably can under the circumstances. That 
wasn't done here, in my opinion.

Id. at 357.

    Kennedy also explained the importance of establishing a 
differential or working diagnosis on the first visit, and modifying and 
reviewing that diagnosis as more information and results become 
available. Id. at 49. Similarly, a diagnostic plan is a systematic 
methodology of eliminating possible causes of symptoms to allow the 
treating physician to accurately determine what is causing them so that 
a successful treatment plan can be developed. Id. at 49-50. In other 
words, the diagnostic plan allows the treating doctor to eliminate or 
confirm items on the differential diagnosis. Id. at 50-52.
    Dr. Kennedy testified that in his expert opinion, the Respondent's 
histories and physical examinations were ``grossly deficient in that 
[the documentation] didn't really justify why the [patient] was given 
the high doses of narcotics or controlled substance that they were.'' 
Id. at 177. Kennedy stated that, in his view, the treatment plans 
evident in the charts were also defective because there was no 
individualized consideration apparent, that ``[e]verybody got 
essentially the same thing,'' and that the treatment plans for all 
patients were invariably limited to a single option, i.e., ``the 
treatment plan was to give controlled substances, and that was 
essentially it.'' \39\ Id. at 78.
---------------------------------------------------------------------------

    \39\ At the consolidated hearing in this matter, the Government 
elicited testimony from Dr. Kennedy regarding additional aspects of 
practice that he found deficient regarding the prescribing practices 
of other respondents. For example, Dr. Kennedy opined that the 
prescribing of 30 mg of oxycodone to an opioid na[iuml]ve patient 
would, in his opinion, be dangerous and improper. Similarly, Dr. 
Kennedy provided his opinion that the practice of ordering of an MRI 
prior to a physician meeting with a patient would be improper. 
However, regarding the charts that Dr. Kennedy reviewed relative to 
this Respondent, the government adduced no testimonial evidence 
regarding issues such as opioid na[iuml]vet[eacute] or the timing of 
MRI scripts, and it would be unfair, improper and illogical for an 
Administrative Law Judge to extrapolate the testimony elicited 
relative to the patients of other physician(s) to this Respondent. 
See Gregg & Son Distribs., 74 FR 17517 n.1 (2009) (data should be 
provided while record is open, and ``[t]o make clear, it is the 
Government's obligation as part of its burden of proof and not the 
ALJ's responsibility to sift through the records and highlight that 
information which is probative of the issues in the proceeding'') 
citing Southwood Pharms., Inc., 72 FR 36487, 36503 n.25 (2007). The 
absence of testimonial support by Dr. Kennedy on these