Alan H. Olefsky, M.D.; Denial of Application, 20025-20032 [2011-8543]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 76, Number 69 (Monday, April 11, 2011)]
[Notices]
[Pages 20025-20032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-8543]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 09-2]


Alan H. Olefsky, M.D.; Denial of Application

    On August 22, 2008, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Alan H. Olefsky, M.D. (Respondent), of Chicago, Illinois. 
The Show Cause Order proposed the denial of Respondent's application 
for a DEA Certificate of Registration as a practitioner, ``for reason 
that [Respondent's] registration would be inconsistent with the public 
interest, as that term is used in 21 U.S.C. 823(f).'' ALJ Ex. 1, at 1 
(citing 21 U.S.C. 823(f) & 824(a)(4)).
    The Show Cause Order specifically alleged that in 1989, Respondent 
issued ``two false prescriptions for [the] controlled substances 
[Percocet and Halcion (triazolam), schedule II and schedule IV drugs, 
respectively] in the names of others and attempted to have them filled 
at a pharmacy in Florida.'' Id. The Show Cause Order alleged that on 
January 9, 1992, and after a hearing, the Administrator revoked 
Respondent's then-existing DEA registration having found the 
allegations proved and that Respondent had lied during the hearing 
regarding ``the circumstances surrounding [his] misconduct.'' Id.
    Next, the Show Cause Order alleged that ``[f]rom at least December 
2002, through October 2004,'' Respondent ``again issued false 
prescriptions for various controlled substances in the names of [M.G., 
V.G., and T.C.]'' and that ``[t]hese prescriptions were for 
[Respondent's] personal use.'' Id. The Show Cause Order then alleged 
that on May 25, 2005, ``DEA issued an Order proposing to revoke 
[Respondent's] DEA registration * * * based upon [his] issuing false 
prescriptions,'' and that on July 20, 2007, the Deputy Administrator 
issued a final order denying Respondent's application (his registration 
having expired), having found that he ``had issued the prescriptions 
for [his] personal use and that such conduct violated federal law.'' 
Id. at 1-2 (citing 21 U.S.C. 843(a)(3)). Finally, the Order alleged 
that Respondent has ``also exhibited a pattern of abusing alcohol'' 
that includes a June 2004 arrest for driving under the influence and a 
January 2007 hospitalization ``with a blood alcohol level of .327,'' 
and that his ``history of abusing controlled substances and alcohol 
shows that granting [his] application for a DEA registration would be 
inconsistent with the public interest.'' Id. at 2.
    By letter of October 6, 2008, counsel for Respondent requested a 
hearing on the allegations, ALJ Ex. 2, and the matter was placed on the 
docket of the Agency's Administrative Law Judges (ALJs). Following 
prehearing procedures, an ALJ conducted a hearing on June 2-3, 2009, in 
Chicago, Illinois. Both parties called witnesses to testify and 
introduced documentary evidence. After the hearing, both parties filed 
proposed findings of fact, conclusions of law, and argument.
    On February 22, 2010, the ALJ issued her Opinion and Recommended 
Ruling, Findings of Fact, Conclusions of Law and Decision (also ALJ or 
Recommended Decision). Therein, the ALJ considered the evidence 
pertinent to the five public interest factors and concluded that 
granting Respondent's application ``would be inconsistent with the 
public interest.'' ALJ at 43.
    As to the first factor--the recommendation of the appropriate State 
licensing board--the ALJ noted that Respondent's State licenses as a 
physician and as a handler of controlled substances ``remain on 
indefinite probation and are subject to the restrictions stated in the 
May 22, 2007, consent order.'' ALJ at 35. Noting that Respondent is 
``currently authorized to handle controlled substances in Illinois,'' 
the ALJ concluded that ``this factor weighs in favor of a finding that 
Respondent's registration would not be inconsistent with the public 
interest.'' Id. at 35-36. However, because ``state licensure is a 
necessary but not sufficient condition for DEA registration,'' the ALJ 
concluded that ``this factor is not dispositive.'' Id. at 36.
    As to the second and fourth factors--Respondent's experience in 
handling controlled substances and his compliance with applicable 
Federal, State or local laws--the ALJ first noted that Respondent 
testified ``in the instant proceeding that the explanation he offered 
in the 1991 hearing'' about the Halcion and Percocet prescriptions 
``was true.'' Id. The ALJ did not, however, find his ``explanation 
credible.'' Id.

[[Page 20026]]

    Next, the ALJ found that ``on numerous occasions between 2002 and 
2004, Respondent issued prescriptions for alprazolam in other persons' 
names, had the prescriptions filled, and kept the drugs for his own 
use.'' Id. While the ALJ recognized that both Respondent and a 
psychiatrist who was involved in his treatment maintained that his 
``abuse of alprazolam was limited to the manner of acquiring it,'' she 
nonetheless concluded that his ``fraudulent prescriptions for 
alprazolam indicate his willingness to misuse a DEA registration.'' Id.
    The ALJ thus found that Respondent's conduct in both 1989 and from 
2002 to 2004 violated 21 U.S.C. 843(a)(3), which prohibits acquiring a 
controlled substance by misrepresentation or fraud. Id. at 38. She also 
found that the 2002 to 2004 alprazolam prescriptions violated 21 U.S.C. 
829 and 21 CFR 1306.04, because Respondent was not ``acting in the 
usual course of professional practice'' when he ``appropriated to his 
own use the drugs he ostensibly prescribed to others.'' Id. Moreover, 
the ALJ found that Respondent violated 21 U.S.C. 841(a)(1) in that 
Respondent distributed controlled substances without a valid 
prescription. Id. Finally, the ALJ concluded that ``[b]ecause 
Respondent issued controlled substance `prescriptions' knowing that the 
person other than the one named on the prescription was the intended 
recipient of the controlled substances,'' he violated 21 CFR 1306.05, 
which requires that a prescription ``bear the full name and address of 
the patient.'' Id. The ALJ thus concluded that ``Respondent's handling 
of controlled substances and lack of compliance with law and 
regulations weigh[] in favor of a finding that his registration would 
not be consistent with the public interest.'' Id. at 39.
    As to the third factor--Respondent's conviction record for offenses 
related to the distribution or dispensing of controlled substances--the 
ALJ noted that in 1989, Respondent had been charged with two state law 
counts of obtaining controlled substances by fraud but that ``no 
conviction resulted from those proceedings.'' Id. The ALJ likewise 
noted that Respondent had not been convicted of a controlled substance 
offense based on his conduct during the 2002 to 2004 period. Id. The 
ALJ thus concluded that ``this factor, although not dispositive, weighs 
against a finding that Respondent's registration would be inconsistent 
with the public interest.'' Id.
    With respect to the fifth factor--other conduct which may threaten 
the public health and safety--the ALJ reviewed Respondent's history of 
arrests for various offenses, his history of alcohol abuse, as well as 
the evidence pertaining to his recovery and acceptance of 
responsibility. Id. at 39-41. The ALJ specifically found that 
``Respondent's criminal history advises against granting him a 
registration.'' Id. at 41. Based on his having misrepresented to a law 
firm that he held an unrestricted medical license when he did not and 
his testimony that he could not recall the circumstances surrounding 
various arrests which appeared on his criminal record, the ALJ also 
found that Respondent had ``willing[ly] misrepresent[ed] the truth,'' 
and that this ``extends beyond his handling of controlled substances.'' 
Id.
    While the ALJ further noted that ``Respondent has demonstrated that 
he is committed to his recovery from alcoholism [and] has taken steps 
to ensure that he remains sober,'' she nonetheless found that ``his 
past behavior poses serious questions as to whether he is capable of 
handling controlled substances responsibly and is willing and able to 
adhere to all applicable laws and regulations by which DEA registrants 
must abide.'' Id. at 42. Also noting that Respondent ``has [not] fully 
addressed other behavioral issues, nor does he seem fully to recognize 
the extent of his misconduct in falsifying prescriptions,'' id. at 43, 
the ALJ thus concluded that this factor supports ``a finding that 
granting Respondent's application would not be consistent with the 
public interest'' and recommended ``that his pending application for 
registration be denied.'' Id.
    Thereafter, Respondent filed Exceptions to the ALJ's Recommended 
Decision. On March 23, 2010, the ALJ forwarded the record to me for 
final agency action.
    Having considered the record as a whole, I agree with the ALJ's 
ultimate conclusion that granting Respondent's application ``would be 
inconsistent with the public interest'' and her recommendation that his 
application be denied.\1\ As the ultimate fact finder, 5 U.S.C. 557(b), 
I make the following findings.
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    \1\ For reasons explained throughout this decision, I reject the 
various arguments raised by Respondent in his exceptions.
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Findings

    Respondent is a physician licensed to practice medicine in Illinois 
and Indiana. RX 1, at 5 & 7. Respondent, however, has been no stranger 
to disciplinary proceedings brought by both this Agency and state 
licensing authorities. This matter is the third time he has been the 
subject of a DEA proceeding. See GX 3 (2007 Final Order denying 
Application), GX 4 (1992 Final Order revoking registration). Moreover, 
he has been subject to multiple proceedings brought by the Illinois 
Department of Financial and Professional Regulation including a 1995 
proceeding (which was based on the first DEA proceeding), GX 1, at 7; a 
2005 proceeding in which the State imposed a suspension because his 
``actions constitute[d] an immediate danger to the public,'' GX 10, at 
1, a March 2007 suspension based on Respondent's having violated a 
November 2006 consent order which had restored his medical license, GX 
12, at 1-2, GX 13; and a December 2007 consent order which, while 
restoring his Illinois Physician and Surgeon License and Controlled 
Substance License, placed him on probation for a minimum of five 
years.\2\ GX 1, at 9-10, 13.
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    \2\ Based on the Illinois proceeding, Medical Licensing Board of 
Indiana brought a proceeding against Respondent; the Indiana Board 
placed Respondent's license on ``indefinite probation.'' RX 6, at 1 
& 5.
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    On February 24, 2005, Respondent submitted an untimely renewal 
application, his previous registration having expired on December 31, 
2004. GX 3, at 3. Thereafter, based on Respondent's loss of his state 
authority and evidence that he had obtained controlled substances by 
calling in fraudulent prescriptions, the Deputy Assistant Administrator 
issued an Order to Show Cause to him which proposed the denial of any 
pending applications. Id. at 2. Respondent did not timely request a 
hearing. Id. at 2-3. While Respondent's application was treated as an 
application for a new registration, I found the allegations proved and 
issued a Final Order denying Respondent's application for a DEA 
registration. Id. at 9. On January 21, 2008, Respondent submitted a new 
application for registration; it is this application which is the 
subject of this proceeding. GX 1.

The 1989 Incident

    On January 4, 1989, Respondent was arrested at Huntington Drug 
Depot, a pharmacy in Fort Lauderdale, Florida, after he presented two 
forged prescriptions for controlled substances: one for 60 dosage units 
of Percocet, a schedule II narcotic controlled substance which contains 
oxycodone, the other for 30 dosage units of Halcion .25 mg. 
(triazolam), a schedule IV controlled substance. GX 4, at 1. Both 
prescriptions were written on pre-printed forms of an HMO named

[[Page 20027]]

``Health America''; the prescriptions were dated January 3, 1989, 
listed the patient as ``Chris Pulin,'' and bore the DEA registration 
number and purported signature of Evan K. Newman, M.D. Id.; see also GX 
14, at 3-4. Respondent had previously worked at Health America but had 
resigned his position in November 1988. Id. at 3.
    Upon reviewing the prescriptions, a pharmacist became suspicious 
because they were ``too legible,'' and having been written on the HMO's 
forms, could have been filled for a fraction of the price at one of the 
HMO's participating pharmacies. GX 14, at 4-5. His suspicions aroused, 
the pharmacist called Dr. Newman, who told him that he did not have a 
patient named ``Chris Pulin'' and that he did not recall issuing the 
prescriptions. Id. at 5 n.6. The pharmacist then called the police; 
upon their arrival, both the owner of the store and his son, who was 
working as a pharmacy clerk, identified Respondent as the person who 
had presented the prescriptions and Respondent was arrested. Id. at 4-
5. Moreover, a subsequent ``search of Broward County and Fort 
Lauderdale records failed to disclose any record regarding a Chris 
Pulin.'' Id. at 9.
    Respondent was then taken to the police station and interviewed. GX 
4, at 1. There, he refused to give his name or date of birth, stated 
that the incident could jeopardize his life and career, and insisted 
that someone else had presented the prescriptions and that the police 
had arrested the wrong person.\3\ Id. Respondent had no response when 
the officer told him that both pharmacists had identified him as the 
individual who had presented the prescriptions.\4\ GX 15, at 20.
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    \3\ At the time of his arrest, Respondent was wearing sunglasses 
and a hat which was ``pulled down over his head.'' GX 14, at 4. When 
the police attempted to interview him at the station, Respondent 
refused to take off his sunglasses claiming he had glaucoma; he also 
initially refused to take off his hat claiming he was bald. Id. at 
6. However, when Respondent eventually took off his hat for a brief 
moment, he was not bald. Id.
    \4\ Respondent was charged with attempting to obtain a 
controlled substance by fraud in violation of state statute, but the 
charges were dismissed because ``the information was filed 
incorrectly as to the charge.'' GX 14, at 6-7.
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    At his hearing, Respondent testified that he had received a phone 
call from a Ms. Schwartz, whom he did not know, and that she had asked 
him if he could help out an elderly friend of hers who had sustained a 
fall and lacked health insurance. GX 4, at 2; GX 15, at 100, 148. 
Respondent claimed that he told Ms. Schwartz to take her friend to 
Health America, where he could be examined. GX 4, at 2; GX 15, at 101.
    According to Respondent, several days later, Ms. Schwartz called 
again stating that her friend had received a couple of prescriptions 
and asked Respondent if he could ``have them filled at a reduced 
price.'' GX 15, at 102. In his testimony, Respondent claimed that later 
that day, an envelope was slipped under his door which contained a note 
with Chris Pulin's name and address and the two prescriptions. Id. at 
103-04. In his testimony, Respondent maintained that he went to the 
pharmacy intending to have the prescriptions filled and handed the 
piece of paper and the prescriptions to the pharmacist who was working 
as the clerk. Id. at 108. Respondent testified that he did not 
intentionally or knowingly take the two prescriptions for Halcion and 
Percocet to the pharmacy knowing that they were forged. Id. at 113. In 
the instant matter, he also testified that he had never taken Halcion, 
Percocet, or generic oxycodone. Tr. 18.
    In her 1991 Recommended Ruling, the ALJ found that Respondent was 
``a less than candid witness'' and was not ``generally credible.'' GX 
14, at 12. She further explained that ``Respondent's explanation of his 
conduct is most charitably described as inherently implausible,'' as a 
physician agreeing ``to obtain a highly abused medication such as 
Percocet for a total stranger is * * * totally at odds with any 
rational notion of professional responsibility.'' Id.
    On January 2, 1992, the Honorable Robert C. Bonner, DEA 
Administrator, himself no stranger to tall tales having previously 
served as a United States District Judge, adopted the ALJ's findings of 
fact and legal conclusions in their entirety and revoked Respondent's 
registration. GX 4, at 3 (57 FR 928 (1992)). The Administrator 
expressly found ``that Respondent refuses to accept responsibility for 
his actions and does not even acknowledge the criminality of his 
behavior.'' Id. at 2. The Administrator further found that 
``Respondent's version of the incident is simply unworthy of belief.'' 
Id. He then noted that, although the state charges against Respondent 
had been dismissed, ``Respondent's conduct demonstrates an absolute 
disregard for Federal and state law and nothing presented during 
Respondent's case persuades the Administrator that the Respondent is 
now willing to carefully abide by the laws and regulations relating to 
controlled substances.'' \5\ Id. at 3.
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    \5\ DEA granted Respondent a new registration in July 1993.
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    On both his recent application for a new DEA registration and in 
his testimony in the instant proceeding, Respondent maintained that his 
1991 story was true. For example, on his application, Respondent wrote: 
``From February 10, 1992 until February 10, 1993, my DEA registration 
was revoked based on allegations that in 1989, in Florida, I attempted 
to fill two prescriptions, which were allegedly forged to try to help a 
person who did not have insurance.'' GX 1, at 7 (emphasis added).
    Moreover, in his testimony in the instant proceeding, Respondent 
told the exact same story of having been called ``out of the blue'' by 
Ms. Schwartz, whom he did not know and had never spoken to before, and 
was asked by her to help her elderly friend who had fallen down some 
stairs; how several days later, Ms. Schwartz had called him back and 
stated that her friend had obtained two prescriptions and asked if he 
would get them filled for her friend; how the prescriptions were 
slipped under his door; and how he had not forged the prescriptions and 
that the only thing he had done wrong was to ``not look[] more into the 
authenticity of the prescriptions and doing what I did.'' Tr. 25-32. 
While the Administrator's (and ALJ's) findings that Respondent's story 
was not credible are res judicata, the ALJ explained that she did not 
find his story any more credible now than she had in 1991. ALJ at 36.

The 2002--2004 Incidents

    In October 2004, an Investigator with the Illinois Department of 
Financial and Professional Regulation (IDFPR), Division of Professional 
Regulation (DPR), received an anonymous complaint, which alleged that 
Respondent was calling in to pharmacies false prescriptions for Xanax 
(alprazolam), Dilaudid (hydromorphone) and Viagra (a non-controlled 
prescription drug), under the names of M.G., V.G., and T.C., and that 
Respondent was going to the pharmacies and picking up the prescriptions 
for his personal use. GX 5, at 1. The informant further stated that 
Respondent paid cash for the drugs to avoid them being traced to him 
and identified three Chicago pharmacies where the prescriptions were 
being filled.\6\ Id. The informant also reported

[[Page 20028]]

that Respondent had been arrested for DUI on June 22, 2004 and was 
driving ``on a suspended license while under the influence of 
alcohol.'' Id. at 6.
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    \6\ The informant also reported that Respondent had been 
arrested for DUI on June 22, 2004 and was driving ``on a suspended 
license while under the influence of alcohol.'' GX 5, at 6. At the 
hearing, Respondent admitted that he had been convicted of the DUI 
charge. Tr. 95. According to the report of a psychiatrist who 
evaluated him for the IDPFR, Respondent told her that the police 
officer thought he was drunk because he had difficulty walking due 
to a sprained ankle. Tr. 116-17. At the hearing, however, Respondent 
acknowledged that he had failed a breathalyzer test. Id. at 117.
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    Upon receipt of this information, the DPR Investigator and a DEA 
Diversion Investigator (DI) went to the pharmacies and obtained at each 
of them, a profile which listed the prescriptions Respondent had 
written in the names of M.G., V.G. and T.C. GX 7. Subsequently, the DPR 
Investigator prepared a spreadsheet of the prescriptions. Id. The 
Investigators confirmed the informant's report that Respondent had 
issued prescriptions for alprazolam .5 mg. in the names of T.C., M.G., 
and V.G.
    More specifically, Respondent issued alprazolam prescriptions in 
V.G.'s name for 60 tablets on April 4, May 17, and June 8, 2004. Id. 4. 
He issued prescriptions in T.C.'s name for 30 tablets on April 21 and 
May 7, 2004, as well as 60 tablets on September 8 and October 7, 2004. 
Id. at 3. Finally, he issued prescriptions in M.G.'s name for 60 
tablets on July 8 and July 28, 2004. Id. at 4. Thus, between April 4 
and October 7, 2004, Respondent called in prescriptions for a total of 
480 tablets of alprazolam.
    Moreover, in the order Respondent entered into with the Medical 
Licensing Board of Indiana, Respondent admitted that ``from December 
2002 to October 2004, [he] prescribed Xanax, Dilaudid, and Viagra using 
other individuals' names'' and he ``subsequently admitted that he 
consumed these drugs himself.'' RX 6, at 2.
    Thereafter, the Chief of Medical Prosecutions for the IDFPR filed a 
complaint and a petition for temporary suspension of his medical 
license on the ground that Respondent's continued practice of medicine 
was ``a danger to the public interest, safety and welfare.'' GX 9, at 
1. The petition was supported by the affidavit of Larry G. McLain, 
M.D., Chief Medical Coordinator of the IDFPR, which stated that 
Respondent had ``repeatedly issued false prescriptions for Xanax, 
Dilaudid and Viagra,'' that Respondent ``call[ed] in these 
prescriptions in the names of [M.G., V.G., and T.C.],'' and that he 
paid cash for the drugs which he was obtaining for ``personal use.'' GX 
9, at 5. Dr. McClain further noted Respondent's June 2004 DUI arrest 
and that he had an extensive criminal history.
    On February 18, 2005, the DPR's Acting Director ordered that 
Respondent's medical license be suspended pending a hearing. GX 10. 
Thereafter, on May 25, 2005, the Deputy Assistant Administrator of the 
DEA Office of Diversion Control issued an Order to Show Cause to 
Respondent which proposed the revocation of his registration (and the 
denial of any renewal application) based on his having issued false 
controlled-substance prescriptions and his lack of authority under 
State law to dispense controlled substances, the latter being a 
requirement for holding a registration under Federal law. GX 3, at 2.
    Regarding the events of this time period, Respondent testified that 
his drinking first became problematic around 2003 to 2004, when he 
switched from primarily drinking beer to drinking more wine and vodka. 
Tr. 10. Respondent stated that his drinking increased at this stage in 
conjunction with marital troubles, id. at 13, and that at the height of 
his abuse of alcohol, he consumed ``[m]aybe a 750 ml bottle [of vodka] 
a [sic] week, maybe three-quarters of that.'' Id. at 12.
    In the spring of 2006, Respondent underwent treatment at Lutheran 
General Hospital. Tr. 86. In June, Respondent completed inpatient 
treatment and signed an Aftercare Agreement with Illinois Professionals 
Health Program (IPHP).\7\ Id. at 124, 137.
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    \7\ The IPHP is ``a statewide program sponsored by Advocate 
Medical Group, the Illinois State Medical Inter-Insurance Exchange, 
and other health professional organizations.'' RX 1, part 3. It 
``provides support and advocacy for health care professionals who 
have difficulties with stress management, substance abuse, medical 
or psychiatric illness or other issues that may impact the 
professional's health, wellbeing, or ability to practice his or her 
profession.'' Id.
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    In September 2006, Respondent entered into a consent order with the 
IDFPR. The order, which became effective on November 21, 2006, restored 
Respondent's medical license and placed him on ``Indefinite 
Probation.'' Alan H. Olefsky, M.D., 72 FR 42127 (2007) (GX 3B, at 1). 
Among the conditions imposed by the order were that Respondent comply 
with the terms of an Aftercare Agreement and that he abstain from the 
use of alcohol and ``mood altering and/or psychoactive drugs,'' except 
as prescribed by another physician. Id. at 42128. In the meantime, 
Respondent had been ``discharged from Caduceus on [October 5, 2006] due 
to missing five consecutive group sessions,'' had ``discontinued 
individual therapy with'' a psychologist, and had missed five urine 
drug screens between September 20 and December 13, 2006. RX Group 11, 
at 1.
    Within one month of the State's restoration of his license, 
Respondent resumed his drinking.\8\ Tr. 14. In January 2007, Respondent 
was hospitalized with a blood alcohol content of .327. GX 12, at 2. On 
or about March 30, 2007, the IDFPR again petitioned for and obtained a 
temporary suspension of Respondent's medical license.\9\ GXs 3A, at 3; 
12 & 13.
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    \8\ Respondent testified that he relapsed because he didn't 
``have the sponsor set up'' and did not attend Alcoholics Anonymous 
(AA) meetings regularly; the relapse occurred while he was nursing 
his terminally ill mother and experiencing ``licensing issues'' and 
``a sense of isolation living in Des Plaines.'' Tr. 86-87.
    \9\ Following the DPR's March 30, 2007 order which imposed a 
second suspension of Respondent's medical license, the second DEA 
proceeding, which had been held in abeyance (after the DPR's 
November 2006 order restoring Respondent's medical license) was 
forwarded to me for final agency action. GX 3A, at 3. While I found 
that Respondent did not have a current registration, I found that he 
had an application pending before the Agency. Id. I denied the 
application for two independent reasons: (1) That Respondent lacked 
authority under Illinois law to dispense controlled substances, 
which is an essential prerequisite for obtaining a DEA registration, 
and (2) that Respondent had violated Federal law by ``repeatedly 
issu[ing] false prescriptions'' for alprazolam and Dilaudid, which 
he then filled and ``personally abused.'' See 72 FR at 42128 (citing 
21 U.S.C. 802(21), 823(f), and 843(a)(3)).
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    Following his relapse, Respondent entered a treatment program for 
impaired professionals run by Resurrection Behavioral Health. GX 1, at 
18. On April 10, 2007, Respondent ``successfully completed treatment,'' 
id., and the following day, Respondent entered into a second Aftercare 
Agreement. Id. at 25, 27. The Aftercare Agreement, which was in effect 
for a period of twenty-four months, required him to enroll in his 
``state Professional's Assistance Program,'' undergo random toxicology 
screens, attend Caduceus Aftercare meetings following completion of his 
long-term treatment program, attend AA meetings, and abstain from the 
``use of all mood-altering chemicals, except as prescribed by [his] 
primary or treating physicians.'' Id. at 25-26.
    On April 10, 2007, Respondent also entered into a consent order 
with the IDFPR, which the latter approved on May 22, 2007. GX 1, at 16. 
The Consent Order ``indefinitely suspended'' Respondent's medical 
license ``for a minimum of 6 months'' from the March 30, 2007 
suspension order but allowed him to regain his license by providing 
proof to an informal conference of the Medical Disciplinary Board that 
he had ``successfully participated in a substance abuse treatment 
program for a minimum of 6 months.'' Id. at 13.
    The Consent Order also provided that upon the restoration of his 
medical license, Respondent would be placed on probation for a minimum 
of five years subject to various conditions. Id. at 13-14. These 
conditions include that he

[[Page 20029]]

comply with his Aftercare Agreement; that he abstain from use of 
alcohol and mind altering/psychoactive drugs unless prescribed to him 
by another physician; that he submit to random urine screens; that he 
not prescribe any controlled substances to himself, his family or 
friends; that his primary care physician file quarterly reports with 
the IDFPR regarding his ``condition, prognosis, and any medication 
prescribed''; that he be ``prohibited from ordering or maintain 
inventories of any controlled substance''; that he ``be prohibited from 
administering or writing prescriptions for controlled substances 
outside of his worksite''; and that, if practicing as a physician, he 
do so where he was not ``the only physician actively involved in the 
practice of medicine.'' Id. On December 5, 2007, the IDFPR restored 
Respondent's license to active status and placed it on probation 
subject to the conditions set forth in the May 2007 Consent Order.\10\ 
GX 1, at 9-10.
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    \10\ In addition to the 1989 Florida and 2004 DUI arrests, the 
Government also introduced records showing he had been arrested in 
May 1993 in Chicago for criminal damage to property; in March 1994 
in Galena, Illinois for aggravated battery and criminal damage to 
property; in December 1995 for aggravated assault with a firearm; 
and in both December 1995 and November 2001 in Chicago for violation 
of a protective order. GX 6, at 1-2, 8-9; Tr. 45-46.
     With the exception of the 1989 incident, the 2004 arrest for 
DUI, and one of the charges of having violated a protective order 
(which Respondent admitted having been convicted of, but then 
proceeded to minimize his culpability for, by claiming he had never 
been served with the protective order), the Government did not 
produce evidence apart from the arrest records and testimony based 
on the arrest records establishing that Respondent had committed any 
of these other offenses. As the Supreme Court has long noted, 
``[t]he mere fact that a man has been arrested has very little, if 
any, probative value in showing that he has engaged in any 
misconduct. An arrest shows nothing more than that someone probably 
suspected the person apprehended of an offense.'' Schware v. Board 
of Bar Exam'rs, 353 U.S. 232, 241 (1957). Accordingly, I do not 
consider any of the arrests, by themselves, to establish that 
Respondent committed the underlying conduct.
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Respondent's Evidence Regarding the Post-2002 Incidents

    At the hearing, Respondent testified that while he was an alcoholic 
he had never been addicted to controlled substances and denied that he 
had ever taken a controlled substance for other than a legitimate 
medical purpose. Tr. 16. While Respondent acknowledged that he had 
written between 20 and 50 prescriptions in other persons' names in 
order to obtain alprazolam, id. at 18 & 21, and that he had not 
obtained the drug ``correctly,'' id. at 36, he maintained that he was 
not abusing the drug but ``was using it to sleep'' as he ``was not 
taking it in the amount over the recommended dose to use it for sleep 
purposes.'' Id. Respondent also claimed that he had never had a problem 
with the abuse of controlled substances. Id.
    Subsequently, Respondent testified that he took the alprazolam only 
when he had ``trouble sleeping'' after having worked the night shift in 
the emergency room. Id. at 100. Respondent further explained that there 
``were just four or five shifts in the emergency room for a month. And 
it wasn't all the time, it was occasionally.'' Id. When further 
questioned as to how many tablets he took a day, Respondent testified 
that ``I would take a half of one in the morning when I needed to fall 
asleep.'' Id. at 101.
    Continuing, Respondent contended that ``the amounts were common. A 
lot of the people * * * the person who evaluated me in terms of this 
case * * * found that the amount over the period of time was not a 
matter of abuse, in terms of the number of * * * Xanax.'' Id. 
Respondent then noted that a psychiatrist who had evaluated him for the 
IDFPR had ``made a comment * * * that considering the amount of 
medications in my evaluation I did not suffer from any substance abuse 
problem. I'm just reflecting off of that report. They substantiated 
that, this psychiatrist in that department.'' Id. at 102. See also id. 
at 105 (``Her conclusion * * * was that I did not suffer from a drug 
problem, an addiction to drugs based on her interviewing me and the 
Xanax that was prescribed.'').
    As part of his case, Respondent submitted a copy of the psychiatric 
evaluation done on him for the IDPFR. RX 12. With respect to his use of 
substances, the report noted that Respondent ``stated that over the 
last one and one half years, his consumption [of alcohol] increased to 
one or two ounces every few days. He reported occasional use of 
alprazolam 0.25 mg for sleep for the past two to three years. He denied 
use of any other medications or illicit substances.'' Id. at 3. While 
the psychiatrist also noted that she had reviewed pharmacy records 
(which showed that between April 4 and October 7, 2004, Respondent had 
issued alprazolam prescriptions totaling 180 tablets to T.C., 120 
tablets to M.G., and 180 tablets to V.G.), she noted that the 
prescriptions ``would have provided approximately 1 mg. daily of the 
substances during the time it was prescribed. Use of several milligrams 
at one time, especially if used with alcohol, could be dangerous and 
constitute abusive use. However, this examiner does not know who used 
the substance or how it was used.'' Id. at 6. Noting that no records 
had been submitted to her substantiating the claim that Respondent had 
also prescribed and used Dilaudid, the psychiatrist concluded that 
``[a]side from the allegations of [his] ex-wife, there is no clear 
evidence that [Respondent] demonstrated abuse of or dependence upon 
alcohol, prescription medications, or illicit substances.'' Id.
    Respondent did not call the psychiatrist to testify and I decline 
to give weight to her report (which apparently was based largely on her 
interview of him) for several reasons. First, she concluded that 
Respondent was not even abusing alcohol, yet even Respondent 
acknowledges that he is an alcoholic and was so at the time in 
question. Tr. 111-16; RX Group 11, at 1.
    Second, with respect to whether he was abusing alprazolam, while it 
is true that the total amount of alprazolam prescriptions noted above 
(480 tablets obtained between April 4 and October 7, 2004) would 
provide slightly more than 1 milligram per day, Respondent, during both 
his evaluation by the psychiatrist and in his testimony, claimed that 
he took only .25 mg. of alprazolam and that he did so only 
occasionally. RX 12, at 3; Tr. 100-01. Were Respondent's story true 
that he took half of a tablet five times a month to sleep following the 
night shift, over the approximately six to seven-month period in which 
he wrote the prescriptions,\11\ he would have required no more than 
eighteen tablets in total, an amount 1/26th of the quantity he 
obtained. Notably, in her report, the psychiatrist did not even 
acknowledge the glaring inconsistency between the amount of alprazolam 
Respondent had obtained and his claimed rate of usage.\12\
---------------------------------------------------------------------------

    \11\ While Respondent actually wrote the prescriptions during 
slightly more than a six month period, I assume that the October 7, 
2004 prescription would have lasted for several weeks.
    \12\ As noted above, the psychiatrist's report noted that 
Respondent ``denied use of any other medications.'' RX 12, at 3. Yet 
in the Indiana Consent Order, he stipulated that he had also 
obtained Dilaudid and that he had ``consumed these drugs himself.'' 
RX 6, at 2.
     The psychiatrist did, however, diagnose Respondent as having 
adult antisocial behavior. Id. at 6. While she concluded that 
Respondent's ``behavior may be deemed inappropriate, illegal, or 
dangerous by the IDFPR,'' and that the IDFPR could ``revoke his 
medical license or place restrictions upon it,'' she concluded that 
his behavior was not ``due to a mental disorder.'' Id. Dr. Angres, a 
psychiatrist and addiction specialist who was involved in treating 
Respondent, explained that while he engaged in antisocial behavior, 
this happened ``historically when [he was] under the influence'' and 
that such behavior ``often occur[s] with alcoholism.'' Tr. 202.
---------------------------------------------------------------------------

    As for his evidence of rehabilitation, Respondent introduced into 
evidence various letters written by Dr. Daniel H. Angres, Director, 
Resurrection Behavioral Health Addiction Services Division, Rush 
University Medical

[[Page 20030]]

Center, and Russell Romano, Jr., Respondent's case manager at IPHP.\13\ 
Respondent also called both Dr. Angres and Mr. Romano to testify.
---------------------------------------------------------------------------

    \13\ Respondent submitted three letters written by Dr. Angres, 
all of which indicated that he had been in compliance with his after 
care program. RXs 1, part 6; 3 and 4. Respondent also submitted two 
letters from Mr. Romano, both of which stated that his ``substance 
use disorder is in sustained, full remission which indicates to us 
that his petition to restore his DEA license is appropriate at this 
time.'' RX 2 (letter of April 8, 2008), RX 11, at 2 (letter of April 
10, 2009).
     Respondent also submitted letters supporting his application 
from an individual attesting to his work for Mobile Doctors, see RX 
5, as well as from the social services directors at two nursing/
rehabilitation centers. RXs 9 and 10.
---------------------------------------------------------------------------

    At the time of the hearing, Dr. Angres, who is board-certified in 
Psychiatry Neurology and Addiction Medicine, served as Medical 
Director, Resurrection Behavioral Health, Addiction Services Division. 
Tr. 179, 181, 187. Respondent was Dr. Angres' patient in the ``partial 
step-down outpatient program,''\14\ and during this portion of 
Respondent's treatment would see him ``several times a week'' both in a 
group setting and individually.\15\ Id. at 200.
---------------------------------------------------------------------------

    \14\ Dr. Angres testified that Resurrection Addiction Services 
Behavioral Health runs a day hospital program and that most patients 
live in an ``independent living setting that [it] supervise[s].'' 
Id. at 189. The day hospital program is a ``form of intensive 
outpatient treatment'' and is followed by an ``intensive outpatient 
step-down program,'' which averages seven weeks in length and is 
then followed by a 20-month to 2-year period of ``weekly aftercare 
monitoring.'' Id. The Caduceus Aftercare Program in which Respondent 
was participating typically lasts for two years, with facilitated 
weekly monitoring groups and random urine sampling by IPHP. Id. at 
191. Aftercare in general usually lasts five years, during which 
time there is an expectation of continued 12-step/AA recovery and 
``appropriate sponsorship.'' Id. at 192.
    \15\ While Dr. Angres testified that he attended some of the 
Caduceus aftercare groups and would have patients come in at 
different intervals, he did not specify the frequency with which he 
was seeing Respondent. Tr. 200-01.
---------------------------------------------------------------------------

    Dr. Angres testified that while Respondent ``would act in ways 
[that] might be described as an anti-social type of way * * * he 
doesn't present with any severe personality disorder.'' Id. at 202. Dr. 
Angres further testified that Respondent was in compliance with his 
Aftercare Agreement, that his urine screens were negative, and that his 
recovery was ``[v]ery solid, it's very solid.'' Id. at 207-08.
    According to Dr. Angres, Respondent's primary problem is alcohol 
dependence and that while Respondent was also diagnosed as having 
abused benzodiazepines (the class of drugs which includes alprazolam), 
the latter was based on the manner in which Respondent had obtained the 
drugs and not on the amount he was using. Id. at 199-200. Dr. Angres 
asserted that Respondent was using alprazolam ``as [a] prescribed 
quantity for sleep,'' and benzodiazepine dependence was ruled out as a 
diagnosis because his ``use was of the level of what's often 
prescribed.'' Id. In Dr. Angres' view, Respondent's issuance of 
fraudulent prescriptions ``sounded like [it] was more a matter of 
convenience.'' Id. at 200. However, on cross-examination, Dr. Angres' 
admitted that his knowledge as to how much alprazolam Respondent was 
using was based on what the latter had told him. Id. at 220.
    Mr. Romano testified that he has known Respondent since the spring 
of 2006, when after the latter's admission to Lutheran General 
Hospital, the Hospital contacted Dr. Doot, the IPHP's medical director, 
to do a substance abuse consultation. Id. at 137. Dr. Doot recommended 
that Respondent undergo some ``treatment for alcohol and chemical 
dependency'' at the Advocate Addiction Treatment Program''; Respondent 
completed treatment and signed an Aftercare Agreement with IPHP. Id.; 
RX Group 11, at 1.
    Mr. Romano testified that he had known Respondent throughout the 
period which included his relapse and admission to the Resurrection 
Behavioral Health treatment program. Id. at 141. Mr. Romano testified 
that since April 2007, when Respondent signed his second Aftercare 
Agreement, he had seen Respondent on a monthly basis. Id. at 140; RX 1, 
parts 4 and 5. Mr. Romano testified that ``since that January 2007 
treatment * * * [t]here's been a remarkable turnaround as far as 
[Respondent's] acceptance and understanding of his addiction'' and that 
Respondent has shown ``commitment'' to his recovery. Id. at 142-43. Mr. 
Romano reported that Respondent's urine tests had been reported as 
negative. Id. at 144.
    Respondent also testified concerning his rehabilitation efforts. At 
the time of hearing, Respondent had been in his current job for a year 
and a half which involves ``doing group therapy and group treatment 
with nursing home patients that have mental illness, and actually also 
substance abuse problems.'' Tr. 79-80. In addition, he was working as a 
``general physician'' in a clinic with other physicians. Id. at 81. 
Respondent was also attending Alcoholics Anonymous (AA) meetings three 
to four times per week, id. at 81-82, talked with his AA sponsor 
between two and four times a week, id. at 83, and on Saturdays, 
attended his Caduceus group. Id. at 84.
    Respondent testified that a DEA registration ``[i]s a privilege'' 
and that he had ``done a lot of wrong things.'' Tr. 94. According to 
Respondent, he was ``totally sorry for the things [he had] done.'' Id. 
Respondent stated that he ``know[s]'' ``what [he has] done'' so that 
he's ``not sure on terms of what level * * * of * * * horrific 
punishment [he] need[s] to go through anymore.'' Id.

Discussion

    Section 303(f) of the Controlled Substances Act (CSA) provides that 
the Attorney General ``may deny an application for such registration if 
he determines that the issuance of such a registration is inconsistent 
with the public interest.'' 21 U.S.C. 823(f). In making the public 
interest determination, the CSA directs that the following factors be 
considered:

    (1) The recommendation of the appropriate State licensing board 
or professional disciplinary authority.
    (2) The applicant's experience in dispensing * * * 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, 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 to revoke an existing registration 
or to deny an application for a registration. 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).
    Where the Government has met its prima facie burden of showing that 
issuing a new registration to the applicant would be inconsistent with 
the public interest, the burden then shifts to the applicant to 
``present sufficient mitigating evidence'' to show why he can be 
entrusted with a new registration. Medicine Shoppe-Jonesborough, 73 FR 
364, 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 
[his] actions and demonstrate that [he]

[[Page 20031]]

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); Cuong Tron Tran, 63 FR 64280, 64283 (1998); Prince George 
Daniels, 60 FR 62884, 62887 (1995). Because of the authority conveyed 
by a registration and the extraordinary potential for harm caused by 
those who misuse their registrations, DEA places significant weight on 
an applicant/registrant's candor in the proceeding. 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).
    Having considered all of the factors, I hold that the Government 
has met its prima facie burden of showing that Respondent has committed 
acts which render his registration inconsistent with the public 
interest. Indeed, the Government satisfied its prima facie burden 
simply by introducing the 1992 and 2007 Agency Orders. While I have 
carefully considered Respondent's evidence as to his rehabilitation, as 
explained below, I hold that Respondent has not rebutted the 
Government's prima facie case because he has failed to accept 
responsibility for his misconduct and gave false testimony in this 
proceeding.

Factor One--The Recommendation of the State Licensing Board

    As an initial matter, while the IDFPR has restored Respondent's 
medical and controlled substances licenses and placed them on active 
but indefinite probation, it has made no recommendation as to whether 
Respondent's application should be granted. While under 21 U.S.C. 
823(f), the possession of authority under state law to dispense 
controlled substances is an essential requirement for obtaining a 
registration, as the ALJ recognized, DEA has long held that a 
practitioner's possession of state authority is not dispositive under 
the public interest standard. ALJ at 36.
    In his Exceptions, Respondent argues that the ALJ ``failed to give 
proper consideration and weight to the circumstances'' which led the 
IDFPR to restore his licenses as well as ``the level of oversight and 
control'' it has placed on his license. Resp. Exceptions at 3-4. DEA 
has long held, however, that it has `` `a separate oversight 
responsibility with respect to the handling of controlled substances 
and has a statutory obligation to make its independent determination as 
to whether the granting of [a registration] would be in the public 
interest.' '' Jeri Hassman, M.D., 75 FR 8194, 8227 (2010) (quoting 
Mortimer B. Levin, 55 FR 8209, 8210 (1990)). See also Alvin Darby, 75 
FR 26993, 27000 n.32 (2010); Edmund Chein, 72 FR 6589, 6590 (2007), 
aff'd Chein v. DEA, 533 F.3d 828 (DC Cir. 2008) (The authority to 
determine whether the issuance of a registration is consistent with the 
public interest has been granted to the Attorney General and 
``delegated solely to the officials of this Agency.'').
    Contrary to Respondent's contention, this case is best decided 
based on the record compiled in this proceeding and not in the IDPFR 
matter. The record in this matter shows that Respondent has violated 
Federal criminal laws related to the dispensing of controlled 
substances (in multiple instances no less) and has now lied about it in 
two separate agency proceedings. ALJ at 36. Moreover, the record 
establishes a glaring inconsistency between Respondent's testimony as 
to his purported rate of alprazolam usage and the quantities of drugs 
he was obtaining. Whatever the IDPFR's reasons were for ignoring this, 
I decline to do so. I thus conclude that while the IDPFR's restoration 
of his state medical and controlled substances licenses renders him 
eligible to hold a DEA registration, it is not dispositive of whether 
his registration would be consistent with the public interest.\16\
---------------------------------------------------------------------------

    \16\ I concur with the ALJ's finding that there is no evidence 
that Respondent has been convicted of crimes related to the 
manufacture, distribution or dispensing of controlled substances. 
However, DEA has held that a finding that an applicant has not been 
convicted of such an offense is not dispositive. See, e.g., Edmund 
Chein, 72 FR 6580, 6593 n.22 (2007).
---------------------------------------------------------------------------

Factors Two, Four, and Five--Respondent's Experience in Dispensing 
Controlled Substances, Compliance With Laws Related to Controlled 
Substances, and Such Other Conduct Which May Threaten Public Health and 
Safety

    As found in two previous Agency Orders, Respondent has on multiple 
occasions either attempted to obtain, or successfully obtained, 
controlled substances ``by misrepresentation, fraud, forgery, 
deception, or subterfuge,'' in violation of 21 U.S.C. 843(a)(3). See 
also 21 U.S.C. 846 (CSA's attempt provision). More specifically, on 
January 4, 1989, Respondent attempted to fill forged prescriptions for 
60 tablets of Percocet, a schedule II narcotic, and 30 tablets of 
Halcion, a schedule IV benzodiazepine, at a Fort Lauderdale pharmacy 
but was arrested. See GX 4.
    When questioned by the police, Respondent lied claiming that 
someone else had presented the prescriptions and that they had arrested 
the wrong person. At the 1991 hearing, however, Respondent changed his 
story claiming that he had been called out of the blue by a person he 
did not know who had asked him to fill the prescriptions for a friend 
and that several days later, the prescriptions were slid under his 
door. Then, as now, the ALJ found the story to be ``inherently 
implausible'' and the then-Administrator found that it was ``simply 
unworthy of belief.'' Notwithstanding that in this proceeding, 
Respondent had a fresh opportunity to acknowledge his criminal behavior 
and accept responsibility for his misconduct, he repeated his lies.
    Moreover, as I found in my 2007 Decision and Order, which denied 
his previous application, on multiple occasions during 2002 through 
2004, Respondent called in fraudulent prescriptions in the names of 
three persons for alprazolam and Dilaudid (hydromorphone, a schedule II 
controlled substance) to obtain drugs for his personal abuse. While in 
this proceeding the Government primarily focused on Respondent's 
prescribing and use of alprazolam, my finding that Respondent issued 
fraudulent prescriptions for both alprazolam and Dilaudid is res 
judicata. See University of Tennessee v. Elliot, 478 U.S. 788, 797-98 
(1986) (``When an administrative agency is acting in a judicial 
capacity and resolves disputed issues of fact properly before it which 
the parties have had an adequate opportunity to litigate, the courts 
have not hesitated to apply res judicata[.]''). While Respondent waived 
his right to contest the allegations, see 72 FR 42127, he nonetheless 
had a full and fair opportunity to litigate these issues in that 
proceeding.\17\
---------------------------------------------------------------------------

    \17\ In addition, in a proceeding brought by the Medical 
Licensing Board of Indiana, Respondent admitted that he had consumed 
Dilaudid (in addition to the Xanax). RX 6, at 2. In the instant 
matter, Respondent offered no explanation as to his use of Dilaudid.
---------------------------------------------------------------------------

    While at the hearing Respondent acknowledged that he had issued at 
least twenty fraudulent prescriptions for alprazolam during the 2002 
through 2004 period, his testimony regarding his rate of usage of the 
drug is glaringly inconsistent with the amount of the drug he obtained. 
As found above, between April 4 and October 7, 2004, Respondent 
obtained a total of 480 tablets of this drug. Yet in his testimony he 
maintained that he used the drug only four to five times a month (to 
help him sleep) and that he cut the tablets in half. Were this true, he 
would have used at most only eighteen tablets. Respondent offered no 
explanation to

[[Page 20032]]

account for the other 460 tablets he obtained during this period. The 
inconsistency between the amounts he obtained and his testimony 
supports the conclusion that Respondent lied about his rate of usage 
and likely did so to portray himself as being only an alcoholic and not 
a drug abuser.\18\
---------------------------------------------------------------------------

    \18\ To make clear, in light of the inconsistency between the 
amount of alprazolam Respondent obtained and his claimed rate of 
usage, I reject the ALJ's conclusion ``that Respondent's abuse of 
alprazolam was limited to his manner of acquiring it.'' ALJ at 36.
---------------------------------------------------------------------------

    Thus, while Respondent produced extensive evidence of his 
rehabilitation from alcohol abuse, there is ample reason to be 
skeptical of his claim that he is not a drug abuser and that he has 
learned from his mistakes. Moreover, even assuming the good faith of 
those who have treated (and/or evaluated) him, and that the treatment 
he received for his alcoholism would be efficacious in treating 
prescription drug abuse notwithstanding his apparent unwillingness to 
acknowledge the extent of his alprazolam misuse, it is nonetheless 
clear that Respondent has a serious aversion to telling the truth. I 
therefore hold that Respondent has failed to accept responsibility for 
his misconduct and has failed to rebut the Government's prima facie 
case.
    In his Exceptions, Respondent contends that he ``cannot eradicate 
his past criminal history'' and that the ALJ's recommendation that his 
application be denied ``is tantamount to a permanent revocation * * * 
especially since the DEA considered most of the same information'' in 
my 2007 order which denied his previous application. Exceptions, at 14. 
Respondent also contends that because the issues litigated in ``the 
1992 hearing before DEA are res judicata [they] should not be 
considered in any determination in this matter.'' Id. at 6. Finally, he 
contends that he has been adequately punished for his past misconduct 
and that the proper focus should have been ``whether the circumstances 
in existence at the time of the prior denial in July 20, 2007 have 
sufficiently changed to warrant the issuance of Respondent's DEA 
registration.'' Exceptions, at 6-12.
    Contrary to Respondent's view, Congress expressly directed the 
Agency to consider an ``applicant's experience in dispensing * * * 
controlled substances.'' 21 U.S.C. 823(f). Respondent's previous 
incidents of presenting fraudulent prescriptions are thus properly 
considered in this proceeding. Moreover, while it is true that 
Respondent ``cannot eradicate his past criminal history,'' he could 
have testified truthfully in this proceeding and accepted 
responsibility for his misconduct.\19\ See Robert Leslie, 68 FR 15227 
(2003) (denying application based on physician's continued 
unwillingness to accept responsibility for criminal conduct he engaged 
in seventeen years earlier). I am therefore wholly unpersuaded by 
Respondent's contention that the circumstances have sufficiently 
changed to warrant granting his application.
---------------------------------------------------------------------------

    \19\ In arguing that he has been adequately punished for his 
past misconduct, Respondent misapprehends the nature of this 
proceeding. This is a remedial proceeding aimed at protecting the 
public interest. See, e.g., Samuel S. Jackson, 72 FR at 23853 
(citing Leo R. Miller, 53 FR 21931, 21932 (1988)). My decision to 
deny Respondent's application is not based on a determination that 
he needs to be punished but on the fact that his unwillingness to 
accept responsibility and testify truthfully establishes that he 
cannot be entrusted with a registration notwithstanding his efforts 
at rehabilitation.
    Respondent also argues that ``it has been over three years since 
[he] engaged in any conduct that would suggest that it would be 
against the public interest to issue'' him a new registration. 
Exceptions at 15. This argument ignores that Respondent's testimony 
at the proceeding is itself conduct which demonstrates that granting 
his application would be inconsistent with the public interest. In 
addition, that three years have passed without further incident is 
hardly impressive given that he has been without a registration 
during this period, thus denying him of the means to issue more 
fraudulent prescriptions.
---------------------------------------------------------------------------

    Respondent cites Azen v. DEA, 76 F.3d 384 (tablet) (9th Cir. 1996), 
an unpublished decision, as support for his contention that in light of 
his evidence of rehabilitation, it would be ``unduly harsh'' to deny 
his application. Putting aside that the Ninth Circuit upheld the 
Agency's decision to revoke Dr. Azen's registration, Respondent ignores 
that in 1993, the Agency previously gave him a second chance to 
demonstrate that he could be entrusted with a registration, yet he 
again breached this trust. Respondent also ignores under the Agency's 
rules, he had a way back to regaining his registration. That he could 
not testify truthfully about either the 1989 episode or his more recent 
criminal behavior and abuse of alprazolam makes clear that, 
notwithstanding his rehabilitation efforts, he cannot be entrusted with 
a new registration.\20\ Accordingly, Respondent's application will be 
denied.
---------------------------------------------------------------------------

    \20\ I find it unnecessary to give any weight to the 2005 
incident in which Respondent represented to a Chicago law firm that 
he had an active and unrestricted medical license when his licensed 
had been suspended. See GX 8. Between his presentation of the two 
fraudulent prescriptions in 1989, his false statement to the police 
following his arrest, his false testimony in the 1991 proceeding, 
and the more recent incidents of his calling in numerous fraudulent 
prescriptions, there is more than ample evidence to question his 
credibility.
---------------------------------------------------------------------------

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well 
as by 28 CFR 0.100(b) and 0.104, I hereby order that the application of 
Alan H. Olefsky, M.D., be, and it hereby is, denied. This Order is 
effective May 11, 2011.

    Dated: April 1, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2011-8543 Filed 4-8-11; 8:45 am]
BILLING CODE 4410-09-P