Robert Raymond Reppy, D.O.; Decision and Order, 61154-61181 [2011-25229]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 76, Number 191 (Monday, October 3, 2011)]
[Notices]
[Pages 61154-61181]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25229]



[[Page 61153]]

Vol. 76

Monday,

No. 191

October 3, 2011

Part II





Department of Justice





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Drug Enforcement Administration





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Robert Raymond Reppy, D.O.; Decision and Order; Notice

Federal Register / Vol. 76, No. 191 / Monday, October 3, 2011 / 
Notices

[[Page 61154]]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 09-50]


Robert Raymond Reppy, D.O.; Decision and Order

    On March 31, 2011, Administrative Law Judge (ALJ) Timothy D. Wing 
issued the attached recommended decision. Neither party filed 
exceptions to the decision.
    Having reviewed the entire record including the parties' briefs, I 
have decided to adopt the ALJ's recommended ruling, findings of fact, 
conclusions of law, and recommended order. Accordingly, I will order 
that Respondent's DEA Certificate of Registration be revoked and that 
any pending applications be denied.
    As the ALJ found, between 2002 and 2006, Respondent wrote thousands 
of controlled- substance prescriptions (approximately 5000 each year) 
to patients who sought such drugs as hydrocodone and alprazolam through 
the internet, most of whom (at least 90 percent) he never physically 
examined, let alone met. ALJ at 12, 20-21.\1\ Respondent wrote the 
prescriptions based on medical records which were sent to him not by 
the patients' doctors, but by the patients themselves, and a telephone 
consultation with the patients. Id. at 20-21. As the ALJ found, 
``Respondent rarely contacted a patient's primary care physician whose 
records he was reviewing'' and had no way of verifying whether the 
person he prescribed to was the actual person whose record he was 
reviewing. Id. at 21.
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    \1\ All citations to the ALJ's decision are to the slip opinion 
as originally issued.
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    Respondent maintains that in 2002, when he agreed to write the 
prescriptions, the legality of prescribing controlled substances via 
the internet was ``a gray area'' and that the standards were not the 
same ``as are agreed upon now.'' Tr. 64. Respondent further claims that 
he did his ``due diligence,'' which included doing ``a little research 
on [his] own,'' with the result being that he ``couldn't find anybody 
saying * * * for definite that you cannot do this'' and that he was 
even shown a letter from ``DEA giving permission to do it.'' Id. at 60. 
Respondent was shown this letter by an attorney, Mr. Robert Carr, who 
happened to be the founder and President of United Prescription 
Services, a Tampa, Florida-based pharmacy which was to fill most of the 
prescriptions Respondent issued; Respondent knew that Carr had a 
financial interest in United Prescription Services. Id. at 60-61, 151.
    As for Respondent's assertion that he was unable to find 
``anybody'' definitely saying that it was illegal to prescribe 
controlled substances over the internet to persons he never examined, 
this may be consistent with his claim that he did ``little research.'' 
However, it clearly was not the case, as even by 2002, multiple States 
had enacted statutes, promulgated rules, or published policy statements 
to the effect that prescribing drugs in this manner was illegal. 
Moreover, as explained below, it was clearly unreasonable for 
Respondent to rely on Carr's purported advice.
    In 2000, California enacted a provision which prohibits the 
prescribing or dispensing of a dangerous drug ``on the Internet for 
delivery to any person in this state, without an appropriate prior 
examination and medical indication therefore.'' Cal. Bus. & Prof. Code 
Sec.  2242.1. Moreover, as early as November 2001, the Medical Board of 
California (MBC) issued a citation order to an out-of-state physician 
for prescribing over the Internet to California residents. See Citation 
Order, Carlos Gustav Levy (Nov. 30, 2001). The MBC cited both the 
physician's failure to conduct ``a good faith prior examination,'' as 
well as his lack of ``a valid California Physician and Surgeon's 
License to practice medicine in California.'' Id. at 1. The Board 
further ordered Doctor Levy ``to cease and desist from Internet 
prescribing to individuals in California without first performing a 
good faith prior examination, without having medical indication to 
prescribe such medication and without having a California Physician and 
Surgeon's License,'' and fined him $25,000. Id. at 1-2. See also 
Citation Order, Martin P. Feldman (Aug. 15, 2003); see also Citation 
Order, Harry Hoff (June 17, 2003); Citation Order, Carlos Gustavo Levy 
(Jan. 28, 2003).
    In addition, in January 2003 (and prior to much of Respondent's 
prescribing activity which continued until October 2006), the MBC 
revoked a physician's medical license when he engaged in practices 
similar to those of Respondent. See In re Steven Opsahl, M.D., Decision 
and Order, at 3 (Med. Bd. Cal. 2003) (available by query at https://publicdocs.mbc.ca.gov/pdl/mbc.aspx).
    In Opsahl, the MBC held that ``[b]efore prescribing a dangerous 
drug, a physical examination must be performed'' and that a physician 
``cannot do a good faith prior examination based on a history, a review 
of medical records, responses to a questionnaire, and a telephone 
consultation with the patient, without a physical examination of the 
patient.'' Id. The MBC also held that a ``medical indication'' is 
determined only after the taking of a history, the conducting of a 
physical examination, and an assessment of ``the patient's condition.'' 
Id. The MBC further explained that ``[a] physician cannot determine 
whether there is a medical indication for prescription of a dangerous 
drug without performing a physical examination.'' Id.
    In April 2001, Ohio enacted a statute which defines 
``telemedicine'' as ``the practice of medicine in this state through 
the use of any communication, including oral, written, or electronic 
communication, by a physician outside th[e] state'' and also requires 
that a physician obtain a ``telemedicine certificate'' to lawfully 
prescribe within the State, id. Sec.  4731.296 (effective 4-10-01), and 
a ``special activity certificate.'' Id. Sec.  4731.294 (effective 4-10-
01). Moreover, in 2002, Ohio adopted a regulation which, except for in 
circumstances not at issue here, prohibits the dispensing of controlled 
substances ``to a person who the physician has never personally 
examined and diagnosed.'' Ohio Admin. Code Sec.  4731-11-09(A).
    In 2002, Tennessee law prohibited (as it still does) the practice 
of medicine within the State without a license issued by the State. 
Tenn. Code Ann. Sec.  63-6-201(a) (2002); see also id. Sec.  63-6-204 
(2002) (defining ``a person [who is] regarded as practicing medicine'' 
as one ``who treats, or professes to diagnose, treat, operate[] on or 
prescribes for any physical ailment or any physical injury to or 
deformity of another''). Like Ohio, Tennessee also provides for 
``restricted licenses and special licenses based upon licensure to 
another state for the limited purpose of authorizing the practice of 
telemedicine.'' Id. Sec.  63-6-209(b) (1996). See also Tennessee Board 
of Medical Examiners, Position Statement: Prerequisites to Prescribing 
or Dispensing Drugs-In Person, Electronically or Over the Internet 
(Sept. 2000) (``[I]t shall be a prima facie violation of [State law] 
for a physician to prescribe or dispense any drug to any individual, 
whether in person or by electronic means or over the Internet or over 
telephone lines, unless the physician has first done and appropriately 
documents, for the person to whom a prescription is to be issued or 
drugs dispensed, all of the following: (a) Performed an appropriate 
history and physical examination * * * '').\2\
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    \2\ This statement likewise recognizes three situations in which 
a drug may be prescribed without the physician having performed a 
physical examination of the patient: (1) In admission orders for new 
admitted hospital patients, (2) when covering for another physician, 
and (3) on a short-term basis for a new patients prior to the 
patient's first appointment. None of these applied to Respondent's 
internet practice.

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[[Page 61155]]

    Prior to Respondent's prescribing activity, Tennessee had also 
promulgated a regulation which provided clear notice that, before 
issuing a prescription for a controlled substance ``by electronic means 
or over the Internet or over telephone lines,'' a physician must 
``[p]erform[] an appropriate history and medical examination,'' 
``[m]a[k]e a diagnosis based upon the examinations and all diagnostic 
and laboratory tests consistent with good medical care,'' 
``[f]ormulate[] a therapeutic plan,'' and ``[i]nsure[] availability of 
the physician or coverage for the patient for appropriate follow-up 
care.'' Tenn. Comp. R. & Regs. 0880-2-14.(7)(a) (2002).
    In April 2000, the Alabama State Board of Medical Examiners 
promulgated its ``Contact with Patients before Prescribing'' rule. The 
rule states the Board's position:

that prescribing drugs to an individual the prescriber has not 
personally examined is usually inappropriate. Before prescribing a 
drug, the physician should make an informed medical judgment based 
on the circumstances of the situation and on his or her training and 
experience. Ordinarily, this will require that the physician perform 
an appropriate history and physical examination, make a diagnosis, 
and formulate a therapeutic plan, a part of which might be a 
prescription.

Ala. Admin Code r.540-X-9.11(1). While the Alabama rule also recognizes 
that in certain situations a prescribing physician is not required to 
have performed a physical exam of the patient (such as admission orders 
for a newly admitted patient, where the prescriber is taking call for 
another physician, and where the prescriber continues medication ``on a 
short-term basis for a new patient prior to the patient's first 
appointment''), none of these exceptions applied to Respondent's 
internet prescribing. Id. r.540-X-9.11(2).
    In February 2002, the Georgia Composite State Board of Medical 
Examiners amended its regulation defining ``Unprofessional Conduct'' to 
include ``[p]roviding treatment and/or consultation recommendations via 
electronic or other means unless the licensee has performed a history 
and physical examination of the patient adequate to establish 
differential diagnoses and identify underlying conditions and/or 
contra-indications to the treatment recommended.'' Ga. Comp. R. & Regs. 
360-3-.02 (2002). While the regulation provided an exception in the 
case of a licensee who is on call or covering for another doctor, the 
exception did not apply to Respondent's internet prescribing. See also 
S.C. Code Reg. 81-28(A) (effective May 25, 2001) (requiring prescribing 
physician to ``[p]ersonally perform an appropriate history and physical 
examination'').
    In addition, prior to Respondent's commencement of internet 
prescribing, numerous state boards had issued policy statements which 
made clear that this activity was unprofessional conduct and illegal. 
For example, in November 1999, the North Carolina Medical Board issued 
a position statement entitled ``Contact With Patients Before 
Prescribing'' (available at https://www.ncmedboard.org/position_statements/detail/contact_with_patients_before_prescribing/). 
Therein, the Board stated ``that prescribing drugs to an individual the 
prescriber has not personally examined is inappropriate'' except in the 
case of admission orders for newly hospitalized patients, taking call 
for another physician, and on short-term basis prior to a patient's 
first appointment. The Board further explained that ``[o]rdinarily, 
this will require that the physician perform an appropriate history and 
physical examination, make a diagnosis, and formulate a therapeutic 
plan, part of which might be a prescription.''
    In December 1999, the Texas State Board of Medical Examiners issued 
its Internet Prescribing Policy. This Policy stated that ``[i]t is 
unprofessional conduct for a physician to initially prescribe any 
dangerous drugs or controlled substances without first establishing a 
proper physician-patient relationship.'' Texas State Board of Medical 
Examiners, Internet Prescribing Policy (available at https://www.tmb.state.tx.us/rules/guidelines/ipp.php). The Policy further 
explained that ``at a minimum,'' this requires, inter alia, ``verifying 
that the person requesting the medication is in fact who they claim to 
be,'' and ``establishing a diagnosis through the use of accepted 
medical practices such as a patient history, mental status exam, 
physical examination and appropriate diagnostic and laboratory 
testing.'' Id.
    In May 2000, the Louisiana State Board of Medical Examiners issued 
a Statement of Position on Internet/Telephonic Prescribing, which 
stated ``the Board's view, [that] it is unlawful for a physician to 
prescribe medication, treatment or a plan of care generally if the 
physician has not examined the patient and established a diagnostic 
basis for such therapy.'' Louisiana State Board of Medical Examiners, 
Statement of Position on Internet/Telephonic Prescribing, at 2 
(available at https://www.lsbme.la.gov/Statements%20of%20position.html). 
The Board further explained that:
    A physician establishes a physician-patient relationship by:
     Verifying that the person requesting the medication is in 
fact who they claim to be;
     Conducting an appropriate examination of the patient;
     Establishing a diagnosis through the use of accepted 
medical practices, i.e., a patient history, mental status, examination, 
physical examination and appropriate diagnostic and laboratory testing;
     Discussing with the patient the diagnosis, risks and 
benefits of various treatment options; and
     Insuring the availability for appropriate follow-up care.
Id. at 2. The Louisiana Board further stated that ``[a]s a matter of 
law, to be valid, effective and lawful, each prescription or order for 
medication must be issued or given by an authorized practitioner (i.e., 
a Louisiana licensed physician) with respect to an individually 
identified patient, based on the practitioner's examination and 
diagnosis of the patient.'' Id. at 3. Finally, the Board explained 
that:

because the [State's] Medical Practice Act restricts the practice of 
medicine to persons possessing a license issued by [it,] [a]n 
individual who issues a prescription or orders medication for an 
individual who is a resident of or located in Louisiana, who does 
not possess a Louisiana medical license or other authorization to 
practice medicine in this state, is necessarily engaged in the 
unauthorized practice of medicine in contravention of the Medical 
Practice Act.

Id.

    Moreover, in November 2000, the Oklahoma State Board of Medical 
Licensure and Supervision adopted its Policy on Internet Prescribing. 
The Oklahoma Board adopted most of the same standards as the Louisiana 
statement, including that ``at a minimum,'' a physician must verify the 
identity of a patient requesting medication and ``establish[] a 
diagnosis through the use of accepted medical practices such as a 
patient history, mental status exam, physical examinations and 
appropriate diagnostic and laboratory testing by the prescribing 
physician.'' Oklahoma State Board of Medical Licensure and Supervision, 
Policy on Internet Prescribing (available at https://www.

[[Page 61156]]

okmedicalboard.org/download/308/precribing+on+the+Internet.htm). The 
Oklahoma Board also stated that ``[c]omplete management of a patient by 
Internet, e-mail, or other forms of electronic communications is 
inappropriate.'' Id.; see also Washington Medical Quality Assurance 
Commission, Position on Internet Prescribing (Winter 2001) (available 
at https://www.doh.wa.gov/hsqa/mqac/policies.htm) (``The standard of 
medical practice in the state of Washington requires a physician, when 
prescribing medication to [inter alia,] verify that the person 
requesting the medication is in fact who he or she claims to be,'' and 
``establish a diagnosis through the use of accepted medical practices 
such as a patient interview, physical examination, and appropriate 
ancillary testing.'').
    To similar effect, in May 2000, the Mississippi State Board of 
Medical Licensure issued a policy statement on Internet Prescribing. 
The Mississippi policy stated that the ``[e]ssential components of 
proper prescribing and legitimate medical practice require that the 
physician obtains a thorough medical history and conducts an 
appropriate physical examination before prescribing any medication for 
the first time.'' Mississippi State Board of Medical Licensure, 
Internet Prescribing (available at https://www.msbml.state.ms.us/regulations/2004%20policy%20book.pdf). While the Mississippi Board 
recognized exceptions for admission orders for newly hospitalized 
patients, cross-coverage situations, and for short-term prescribing 
prior to a new patient's first appointment, as noted previously, none 
of these situations applied to Respondent's internet prescribing.
    In December 2001, the Massachusetts State Board of Registration in 
Medicine amended its Prescribing Practices Policy and Guidelines to 
address the subject of Internet Prescriptions. The Board stated that 
``a prescription to be legally valid must be issued within the context 
of a physician-patient relationship under circumstances in which the 
physician has conformed to certain minimum norms and standards for the 
care of patients, such as taking an adequate medical history and 
conducting an appropriate physical examination.'' Massachusetts State 
Board of Registration in Medicine, Prescribing Practices Policy and 
Guidelines, Internet Prescriptions (available at https://www.mass.gov/Eeohhs2/docs/borim/policies_guidelines/policy_03_06.pdf).\3\ The 
Board further advised that ``[p]rescribing over the internet while 
deviating from these requirements is therefore unlawful.'' \4\
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    \3\ The Board subsequently amended its policy on December 17, 
2003; the amended policy did not change the requirement that the 
prescribing physician must ``conduct[] an appropriate physical'' 
examination. It further stated that ``[i]ssuance of a prescription, 
by any means, including the Internet or other electronic process, 
that does not meet these requirements is therefore unlawful.''
    \4\ Other States adopted similar statutes, rules and/or policy 
statements on Internet prescribing within the next several years and 
well before Respondent ceased his internet prescribing. See Colorado 
Board of Medical Examiners, Policy 40-9: Guidelines Regarding 
Prescribing for Unknown Patients (Nov. 16, 2003) (available at 
https://www.dora.state.co.us/medical/policies/40-09.pdf) ; Ind. Admin 
Code 5-41 (Oct. 2003) (``Except in institutional settings, on-call 
situations, cross-coverage situations, and situations involving 
advanced practice nurses with prescriptive authority * * * a 
physician shall not prescribe, dispense, or otherwise provide, or 
cause to be provided, any controlled substance to a person who the 
physician has never personally physically examined and 
diagnosed.''); New York State Board for Professional Medical 
Conduct, Statements on Telemedicine (Dec. 24, 2003) (available at 
https://www.health.ny.gov/professionals/doctors/conduct/telemedicine.htm.) (``All the current standards of care regarding 
the practice of medicine apply. The fact that an electronic medium 
is utilized for contact between parties or as a substitute for face-
to-face consultation does not change the standards of care.''). 
While these provisions were adopted after Respondent commenced his 
Internet prescribing, Respondent had a continuing obligation to keep 
track of the law as it changed.
    In addition, as early as June 2001, DEA had revoked the 
registration of a physician whose state controlled substance 
registration and medical licenses had been suspended for prescribing 
over the Internet. See Rick Joe Nelson, 66 FR 30752 (2001). This 
same physician was ultimately indicted for conspiracy to distribute 
controlled substances outside of the usual course of professional 
practice, 21 U.S.C. 846, and convicted. See United States v. Nelson, 
383 F.3d 1227 (10th Cir. 2004). Of note, his conviction was affirmed 
(in a published decision) on September 20, 2004, more than two years 
before Respondent left the clinic. See also Mark Wade, 69 FR 7018, 
7021 (Feb. 12, 2004) (revoking registration of Internet prescriber 
and noting physician had pled guilty to violation of 21 U.S.C. 846).
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    At the instant hearing, Respondent did not testify as to any state 
laws or Board positions (with the exception of Florida) he found which 
authorized prescribing to patients he would not meet, based on a review 
of records and a telephone consultation. Instead, he maintained that 
``as part of [his] due diligence'' in deciding whether to engage in 
Internet prescribing, he reviewed the Model Guidelines for the 
Appropriate Use of the Internet in Medical Practice (RX 9), a policy 
document issued by the Federation of State Medical Boards of the United 
States (FSMB). Tr. 76-77. Respondent testified that this document gave 
him the impression that Attorney Carr's advice that Internet 
prescribing was legal was accurate ``because it specifically says the 
physician/patient relationships exists whether or not there has been a 
personal encounter between the physician and the patient,'' and that 
this was ``[b]lack and white.''
    The fact that a physician-relationship ``is clearly established 
when a physician agrees to undertake diagnosis and treatment,'' RX 9, 
at 7, however, does not mean that a physician has established an 
adequate physician-patient relationship sufficient to support the 
diagnosis of a patient and the issuance of a prescription. Indeed, the 
Guidelines further state that ``[t]reatment and consultation 
recommendations made in an online setting, including issuing a 
prescription via electronic means, will be held to the same standards 
of appropriate practice as those in traditional (face-to-face) 
settings.'' Id. at 8. At the hearing, Respondent offered no explanation 
as to what he thought this statement meant.
    Just one page later, the Guidelines further state that 
``[p]hysicians who treat or prescribe through Internet Web sites are 
practicing medicine and must possess appropriate licensure in all 
jurisdictions where patients reside.'' Id. at 9. Respondent admitted 
that during the period of his internet prescribing, he was licensed 
only in the State of Florida. Respondent thus engaged in the 
unauthorized practice of medicine in numerous States. As the California 
Court of Appeals has explained, the ``proscription of the unlicensed 
practice of medicine is neither an obscure nor an unusual state 
prohibition of which ignorance can reasonably be claimed, and certainly 
not by persons * * * who are licensed health care providers. Nor can 
such persons reasonably claim ignorance of the fact that authorization 
of a prescription pharmaceutical constitutes the practice of 
medicine.'' Hageseth v. Superior Court, 59 Cal. Rptr.3d 385, 403 (Ct. 
App. 2007).
    Respondent's assertion that he relied on the FSMB Guidelines and 
yet ``couldn't find anybody saying * * * for definite that you cannot 
do this,'' Tr. 60, is especially remarkable given that the Guidelines 
included a list of References. RX 9, at 11. Among the authorities cited 
therein are the position/policy statements of the Boards of Louisiana, 
New York, North Carolina, Oklahoma, South Carolina, Texas and 
Washington State, each of which--as discussed above--provided ample 
notice that each of these Board's considered internet prescribing to 
violate the accepted standards of professional practice.\5\ In

[[Page 61157]]

short, Respondent's assertion that he did ``a little research'' is an 
accurate statement only to the extent that emphasis is placed on the 
word ``little.''
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    \5\ In April 2001, DEA published a Guidance Document entitled 
Dispensing and Purchasing Controlled Substances over the Internet, 
66 FR 21181 (2001). The Guidance explained that ``[o]nly 
practitioners acting in the usual course of their professional 
practice may prescribe controlled substances. These practitioners 
must be registered with DEA and licensed to prescribe controlled 
substances by the State(s) in which they operate.'' Id. at 21181 
(emphasis added).
    In addition, the Guidance Document specifically stated that 
``Federal law requires that `[a] prescription for a controlled 
substance to be effective must be issued for a legitimate medical 
purpose by an individual practitioner acting in the usual course of 
his professional practice.' '' Id. at 21182 (quoting 21 CFR 
1306.04(a)). The Guidance explained that ``[e]very state separately 
imposes the same requirement under its laws'' and that ``[u]nder 
Federal and state law, for a doctor to be acting in the usual course 
of professional practice, there must be a bona fide doctor/patient 
relationship.'' Id.
    Continuing, the Guidance explained that ``[f]or purposes of 
state law, many state authorities, with the endorsement of medical 
societies, consider the existence of the following four elements as 
an indication that a legitimate doctor/patient relationship has been 
established:
    A patient has a medical complaint;
    A medical history has been taken;
    A physical examination has been performed; and
    Some logical connection exists between the medical complaint, 
the medical history, the physical examination, and the drug 
prescribed.
    Id. at 21182-83.
    The Guidance further stated that ``[c]ompleting a questionnaire 
that is then reviewed by a doctor hired by the internet pharmacy 
could not be considered the basis for a doctor/patient 
relationship.'' Id. at 21183.
    While the DEA Guidance Document does not have the force and 
effect of law, it nonetheless provided an additional source of 
information as to the potential illegality of Respondent's Internet 
prescribing.
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    Respondent also asserts that a February 27, 2002 letter from the 
Chief of the DEA's Office of Diversion Control's Liaison and Policy 
Section to Carr, ``g[ave] permission to do it.'' Tr. 60; see also RX 4. 
According to Respondent, Carr showed him the letter which ``seemed very 
convincing'' and that the letter ``basically said they [DEA] were okay 
with it.'' Tr. 90-91.
    While the letter stated ``[i]t appears that the submitted policies 
and procedures meet the federal requirements regarding controlled 
substances prescriptions,'' it further noted that the pharmacy had 
represented that under its policies, it ``plans to verify the 
authenticity and legal authority to prescribe of each prescriber.'' RX 
4, at 1. More specifically, the letter noted that ``[m]anagement 
personnel will verify several elements including, but not limited to * 
* * [p]rofessional licensure, DEA registration, [l]egitimate patient/
prescriber relationship, [p]rescriptions are issued in the usual course 
of professional practice, and [p]rescriptions are issued for a 
legitimate medical purpose.'' Id. (emphasis added). Continuing, the 
letter noted ``valid controlled substance prescriptions must be issued 
for a legitimate medical purpose,'' and that ``this is usually defined 
and interpreted by the prescriber's respective state professional 
licensing board.'' \6\ Id.
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    \6\ As explained above, this was not an entirely accurate 
statement of the law with regards a physician's prescribing to 
patients who reside in a different State. As the Model Guidelines 
explained, most (if not all) States deem prescribing to a resident 
to be practicing medicine within the State, and thus, a physician 
doing so is subject to both the licensing and medical practice 
standards of the patient's State and the physician's State. See RX 
9, at 9; see also discussion above.
    However, Respondent produced no evidence showing that Carr, in 
requesting DEA's review of its policies, disclosed to the Agency 
that the doctors whose prescriptions it filled would be practicing 
medicine across state lines. See RX 3. Moreover, even if Respondent 
relied on the Florida Telemedicine Regulation, and even conceding 
that the regulation did not clearly state on its face that the 
prescriber (as opposed to another doctor) must perform a physical 
exam, see Fla. Admin. Code r.64B15-14.008(2), having claimed to have 
reviewed the Model Guidelines (and having previously been licensed 
in other States), Respondent cannot credibly claim ignorance of the 
fact that the regulation of the practice of medicine is a state 
function and that each State has its own Board and set of rules with 
which he was required to comply. See, e.g., Hageseth, 59 
Cal.Rptr.3d, at 403.
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    Thus, contrary to Respondent's claim, the DEA letter did nothing 
more than address the lawfulness of the pharmacy's dispensing of 
prescriptions and did so based on Carr's representation that the 
underlying prescriptions would be lawfully issued. The letter thus 
provides no comfort to Respondent.
    As for his reliance on Carr's purported legal advice, Respondent 
stated that he ``assumed the lawyer would give me his honest opinion 
and expertise and I wouldn't have to go around consulting three or four 
of them to get the same thing.'' Tr. 60-61. Yet Respondent acknowledged 
that he knew Carr had a financial interest in the pharmacy. Id. at 61. 
Given Carr's financial interest, and even assuming (without deciding) 
that Carr and Respondent entered into an attorney-client relationship, 
Respondent had ample reason to question whether Carr was capable of 
providing disinterested legal advice. Id. at 60-61. Moreover, Carr's 
advice was fundamentally at odds with various statements contained in 
the Model Guidelines, a document which Respondent purportedly read, 
including the statements that: (1) ``[t]reatment and consultation 
recommendations made in an online setting, including issuing a 
prescription via electronic means, will be held to the same standards 
of appropriate practice as those in traditional (face-to-face) 
settings''; and (2) ``[p]hysicians who treat or prescribe through 
Internet Web sites are practicing medicine and must possess appropriate 
licensure in all jurisdictions where patients reside.'' RX 9, at 8-9. 
Thus, because it is clear that Respondent did not reasonably rely on 
Carr's advice, this is not a mitigating factor.
    Finally, Respondent asserts that his cooperation in the proceeding 
involving United Prescription Services, Inc., 72 FR 50397 (2007), 
should be considered as a factor in mitigation. Resp. Br. 25. The 
Government did not dispute that Respondent provided testimony and an 
affidavit in that matter that was of some benefit to the Government. 
Tr. 78.
    That being said, I conclude that Respondent's cooperation is 
substantially outweighed by the extensive and egregious misconduct he 
committed. As the ALJ found, with the exception of a period of several 
months during which he was on a leave of absence, see GX 10, at 85; for 
more than four years, Respondent wrote thousands of controlled 
substances prescriptions outside of the usual course of professional 
practice and which lacked a legitimate medical purpose. ALJ at 54, 60; 
see also 21 CFR 1306.04(a).
    While this is reason alone to reject's Respondent cooperation as a 
mitigating factor, in addition, the ALJ also found that Respondent 
flagrantly failed to supervise a Physician Assistant, who wrote 
thousands of controlled substance prescriptions under his registration. 
ALJ at 65. As the ALJ found, the PA wrote 14,000 prescriptions, many of 
which were for controlled substances, during the period in which 
Respondent was on leave of absence. Id. Upon his return in March 2004, 
Respondent discovered that the PA had written some controlled substance 
prescriptions in his name, Tr. 38, 139; a violation of both state and 
federal law. See Fla. Sta. Ann. Sec.  459.022(4)(e) (prohibiting PAs 
from prescribing controlled substances); 21 U.S.C. 843(a)(2) 
(prohibiting dispensing of a controlled substance by use of a 
registration number ``issued to another person''); id. Sec.  822(a)(2) 
(requiring ``[e]very person who dispenses'' to obtain a registration).
    The evidence showed that Respondent was upset that the PA was 
writing prescriptions under his registration without complying with his 
instructions and could not be controlled. Tr. 139. Respondent 
complained to the clinic's owner ``about [the PA's] prescribing 
patterns using [his] DEA registration,'' RX 12, at 4; and asked him to 
fire the PA several times; however, the clinic's owner refused to

[[Page 61158]]

do so.\7\ Tr. 37-38; see GX 10, at 106. Nonetheless, Respondent 
continued to work for the clinic and did so for more than another year. 
Notwithstanding Respondent's professed concern that the PA ``was being 
pretty arrogant [and] doing a lot of things on his own,'' Tr. 121, and 
his awareness of the PA's prescribing irregularities, RX 12, at 4; 
Respondent offered no evidence that he had reported the PA to either 
law enforcement or regulatory authorities. This provides an additional 
reason to reject Respondent's cooperation as a ground for mitigating 
the sanction.
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    \7\ In an affidavit given in the United Prescription Services 
proceeding, Respondent stated that the clinic owner removed the PA 
from the clinic. RX 12, at 4. However, in both the united and 
instant proceedings, Respondent testified that the clinic owner 
``would never fire [the PA], no matter how many times I requested 
it.'' GX 10, at 106; Tr. 37. Respondent also testified the PA ``was 
kept away from me,'' TR.101, and that the PA would frequently work 
from home.
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    In conclusion, the record here establishes that over the course of 
more than four years, Respondent was responsible for the issuance of 
thousands of illegal controlled-substance prescriptions. Respondent's 
misconduct was egregious, and the Agency's interest in deterring 
similar misconduct on the part of others provides ample justification 
to support the ALJ's recommended order. See Joseph Gaudio, 74 FR 10083, 
10094 (2009); Southwood Pharmaceuticals, Inc., 72 FR 36487, 36504 
(2007) (citing Butz v. Glover Livestock Commission Co., Inc., 411 U.S. 
182, 187-88 (1973)).
    Moreover, as the ALJ explained, while at the hearing, Respondent 
occasionally acknowledged some wrongdoing, most of his testimony was 
then spent on blaming others or offering absurd or disingenuous 
justifications for his egregious misconduct. See ALJ at 65 (discussing 
verification of internet customers' identities--``I'm relying on the 
state that issued their driver's license attesting their identity. If 
the state did not adequately check their identity before issuing them a 
driver's license, then * * * I had no way of determining that. * * * I 
used the same method of checking their identity' as I would if they 
were present in front of me.''). See also id. at 66-67 (finding that 
``rather than admit that * * * his telemedicine practices were in clear 
violation of contemporaneous standards * * * Respondent * * * attempted 
to cast doubt on the clarity of the rules.''); id. at 68 (comparing 
Respondent's testimony that he was ``sorry'' for the prescriptions but 
then stating that ``if I thought I was doing anything wrong, I wouldn't 
have done it''); id. (stating that he was remorseful, but adding ``I 
sincerely wish I had never been duped into being any part of their 
operation at all'').
    In sum, as the ALJ found, Respondent ``fail[ed] to sustain his 
burden to credibly accept responsibility for his misconduct and 
demonstrate that he will not engage in future misconduct.'' ALJ at 71. 
Accordingly, I will adopt the ALJ's recommended sanction.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 
824(a)(4), as well as by 28 CFR 0.100(b), I order that DEA Certificate 
of Registration BR5287342, issued to Robert Raymond Reppy, D.O., be, 
and it hereby is, revoked. I further order that any application for 
renewal or modification of such registration be, and it hereby is, 
denied. This Order is effective November 2, 2011.

    Dated: September 19, 2011.
Michele M. Leonhart,
Administrator.

D. Linden Barber, Esq., for the Government.
A.S. Weekley, Jr., M.D., Esq., for Respondent.

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

I. Introduction

    Timothy D. Wing, Administrative Law Judge. This proceeding is an 
adjudication pursuant to the Administrative Procedure Act (APA), 5 
U.S.C. 551 et seq., to determine whether the drug enforcement 
administration (DEA) should revoke a physician's certificate of 
registration (COR) as a practitioner and deny any pending applications 
for renewal or modification of that registration. Without this 
registration the practitioner Robert Raymond Reppy, D.O. (Respondent or 
Dr. Reppy), of Tampa, Florida, will be unable to lawfully prescribe, 
dispense or otherwise handle controlled substances in the course of his 
practice.
    On April 28, 2009, the DEA Deputy Assistant Administrator, Office 
of Diversion Control, issued an Order to Show Cause (OSC) to 
Respondent, giving Respondent notice of an opportunity to show cause 
why the DEA should not revoke Respondent's DEA COR BR5287342 pursuant 
to 21 U.S.C. 824(a)(4), and deny any pending applications for renewal 
or modification pursuant to 21 U.S.C. 823(f), on the grounds that 
Respondent's continued registration would be inconsistent with the 
public interest as that term is used in 21 U.S.C. 824(a)(4) and 823(f).
    In substance, the OSC alleges as follows:
    1. Respondent has a DEA COR scheduled to expire by its own terms on 
April 30, 2009;
    2. Respondent issued prescriptions to Internet customers from early 
2004 until October 2006;
    3. Respondent allowed a physician's assistant (PA) to use 
Respondent's COR to issue purported prescriptions to Internet 
customers, in violation of 21 U.S.C. 846 and Fla. Stat. Ann. Sec.  
458.347 (2008);
    4. The above-referenced prescriptions were issued without a 
legitimate medical purpose and outside the usual course of professional 
practice, in violation of 21 CFR 1306.04(a) and 21 U.S.C. 841(a)(1);
    5. Respondent issued purported prescriptions of controlled 
substances to customers throughout the United States even though 
Respondent is licensed to practice medicine only in Florida;
    6. The above-referenced prescriptions violated state laws 
prohibiting the unauthorized practice of medicine, including 
unlicensed, out-of-state physicians issuing controlled substance 
prescriptions to state residents. See e.g., Miss. Code Ann. Sec.  73-
25-34; Cal. Bus. & Prof. Code Sec.  2052; Ala. Code Sec.  34-24-51; and
    7. Respondent violated Florida law and regulations prohibiting 
licensed physicians from issuing controlled substance prescriptions in 
excessive or inappropriate quantities, from issuing prescriptions via 
the Internet without documented patient evaluation and without 
discussing treatment options with patients. Fla. Stat. Ann. Sec.  
458.331(q); Fla. Admin. Code Ann. r. 64B8-9.014.
    On May 26, 2009, Respondent, through counsel, requested a hearing 
on the allegations in the OSC.\8\ Following prehearing procedures,\9\ a 
hearing was held on November 16, 2010, in Bradenton, Florida, with both 
the Government and Respondent represented by counsel. 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. All of the evidence and post-hearing submissions 
have been considered, and to the extent the parties' proposed findings 
of fact have

[[Page 61159]]

been adopted, they are substantively incorporated into those set forth 
below.
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    \8\ Respondent submitted an application to renew his COR on 
April 6, 2009. (ALJ Ex. 3 at 1.)
    \9\ This case was originally assigned to Administrative Law 
Judge Mary Ellen Bittner. (See, e.g., OPHS May 27, 2009.) On January 
15, 2010, Administrative Law Judge Gail A. Randall was assigned to 
the case. (Mem. Jan. 15, 2010.) Judge Randall reassigned the case to 
me on July 19, 2010. (Mem. Jul. 19, 2010.)
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II. Preliminary Evidentiary Issues

    Prior to discussing the evidence and reaching the substantive 
issues in this case, a threshold evidentiary issue is the weight to be 
given, if any, to (1) the Deputy Administrator's conclusions of law 
regarding Dr. Reppy's compliance with state law contained in United 
Prescription Services, Inc., 72 FR 50,397 (DEA 2007), a separate 
proceeding in which Dr. Reppy was a witness but not a party; (2) a 
transcript of Dr. Reppy's sworn testimony in that case, admitted 
without objection as Government Exhibit 10 in the present proceeding; 
and (3) affidavits of Respondent's current employees and patients 
offered as Respondent's Exhibit 19, and an affidavit of Respondent 
offered as Respondent's Exhibit 13.

A. The 2007 Final Order in United Prescription Services, Inc.

    On August 23, 2007, the Federal Register published a final order in 
United Prescription Services, Inc., 72 FR 50,397 (DEA 2007). Therein, 
the then-Deputy Administrator made legal conclusions touching upon the 
conduct of Dr. Reppy, who testified in that case but was not named as a 
party. The Deputy Administrator found that ``Dr. Reppy violated the 
laws of California, Tennessee, Indiana, and Louisiana'' because 
``[e]ven if Dr. Reppy's * * * conduct established a valid doctor-
patient relationship under Florida law (a dubious proposition at that), 
[he] violated the laws of other States which clearly require that the 
prescriber personally perform the physical exam except in limited 
situations not applicable here.'' United Prescription Servs., 72 FR at 
50,408 (internal citations omitted). The Deputy Administrator also 
concluded that Dr. Reppy's PA, Mr. Protheroe, ``used Dr. Reppy's DEA 
registration while Reppy was on leave of absence and not supervising 
him * * *. These prescriptions violated the State of Florida's 
regulations'' regarding Dr. Reppy's delegation of authority to a 
PA.\10\ Id. at 50,409.
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    \10\ Specifically, United Prescription Services cites Fla. 
Admin. Code Ann. r. 64B8-30.008(2). See 72 FR at 50,409. As 
discussed below, that rule is inapplicable to Dr. Reppy because he 
is an osteopathic physician; the applicable rule (which is textually 
identical) is r. 64B15-6.0038. Infra text following note 63.
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    In the ``proposed conclusions of law'' section of the Government's 
post-hearing brief in the present case, the Government cites a number 
of such conclusions by the Deputy Administrator, apparently arguing 
that I should give weight to those conclusions here. (See Gov't Br. 5-6 
(discussing Factors Two and Four of 21 U.S.C. 823(f)).)
    At issue, therefore, is whether legal conclusions from a prior 
proceeding relating to the conduct of a non-party witness should be 
given weight or controlling effect in a subsequent proceeding against 
the witness. I note at the outset that Dr. Reppy was not named as a 
party in United Prescription Services, had not yet had any adverse 
action taken against him by the DEA with respect to his COR (see Gov't 
Ex. 10 at 61), and was apparently unrepresented by counsel at the time.
    The APA provides that ``[t]he transcript of testimony and exhibits, 
together with all papers and requests filed in the proceeding, 
constitutes the exclusive record for decision'' in this administrative 
proceeding. 5 U.S.C. 556(e). The APA further defines ``party'' to 
include a person or agency named or admitted as a party, or properly 
seeking and entitled as of right to be admitted as a party * * *.'' 5 
U.S.C. 551(3), amended by Public Law 111-350, Jan. 4, 2011, 124 Stat. 
3677 (no relevant changes) (``party[] in an agency proceeding''). In 
the instant case, the final Agency decision in United Prescription 
Services cannot serve as substantial evidence because it is not part of 
the ``exclusive record for decision'' to which Dr. Reppy was a 
party.\11\ I therefore find that the APA precludes me from considering 
the individualized legal conclusions on the ultimate issues\12\ 
regarding Dr. Reppy contained in United Prescription Services as a 
potential basis for imposing a sanction in this case.\13\ See id. Sec.  
556(e).
---------------------------------------------------------------------------

    \11\ Although the Government offered the United Prescription 
Services decision as an exhibit in its January 19, 2010 supplemental 
prehearing statement (Gov't Supp. PHS at 5), it withdrew the exhibit 
at hearing (see Tr. 6-7).
    \12\ As used herein, ``ultimate issues,'' also called ``mixed 
questions of law and fact'' and ``deep issues,'' are distinguishable 
from precedential holdings of general applicability.
    \13\ I do not suggest that United Prescription Services is 
without binding effect as Agency precedent with respect to its 
holdings of general applicability. See, e.g., supra Section VI(C)(c) 
(citing United Prescription Services for the proposition that state 
law controls the question of whether a doctor-patient relationship 
exists).
---------------------------------------------------------------------------

    I further find that the doctrine of res judicata, or collateral 
estoppel, provides no basis for adopting without analysis the Deputy 
Administrator's findings in United Prescription Services that Dr. Reppy 
violated state law. Under the doctrine of res judicata, (1) a final 
judgment (2) on the merits (3) between the parties is binding on the 
parties in subsequent litigation. See, e.g., Restatement (Second) of 
Judgments Sec.  24; Black's Law Dictionary (9th Ed.) (res 
judicata).\14\ Agency precedent has acknowledged the Supreme Court's 
recognition of the applicability of the res judicata doctrine in DEA 
administrative proceedings. Christopher Henry Lister, P.A., 75 FR 
28,068, 28,069 (DEA 2010) (citing Univ. of Tenn. 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 * * *'')).
---------------------------------------------------------------------------

    \14\ Accord, e.g., Ritch v. State, 14 So.3d 1104, 1107 n.5 (Fla. 
App. 1 Dist. 2009) (``Collateral estoppel bars relitigation of an 
issue only when (1) an identical issue was presented in the prior 
proceeding; (2) the issue was a critical and necessary part of the 
prior determination; (3) there was a full and fair opportunity to 
litigate that issue; (4) the parties in the two proceedings are 
identical; and (5) the issue was actually litigated.'').
---------------------------------------------------------------------------

    It is conceded that the Deputy Administrator's conclusions in 
United Prescription Services concerning Dr. Reppy's compliance with 
state law, including the extent of his supervision of his PA, went to 
the merits of that decision, and that the decision constituted the 
Agency's final order. However, Dr. Reppy was not a party to that 
proceeding. See 5 U.S.C. 551(3), amended by Public Law 111-350, Jan. 4, 
2011, 124 Stat. 3677 (no relevant changes) (the term ```party' includes 
a person or agency named or admitted as a party, or properly seeking 
and entitled as of right to be admitted as a party''). Indeed, as the 
United States Court of Appeals for the Fifth Circuit found before that 
Circuit split into the Fifth and Eleventh Circuits, ``the offensive use 
of collateral estoppel calls for the courts to use special care in 
examining the circumstances to ascertain that the defendant has in fact 
had a full and fair opportunity to litigate and that preclusion will 
not lead to unjust results.'' \15\ Johnson v. United States, 576 F.2d 
606, 614 (5th Cir. 1978). After carefully examining the circumstances, 
I conclude that when the Agency issued the final order in United 
Prescription Services, Dr. Reppy had not been afforded a full and fair 
opportunity to litigate whether he violated the laws of California, 
Tennessee, Indiana, Louisiana and Florida. Res judicata is therefore 
inapplicable. See East Main Street Pharmacy, 75 FR 66,149, 66,154

[[Page 61160]]

n.24 (DEA 2010) (``While I previously found [in a prior decision that a 
patient] had died of multiple drug intoxication and had both oxycodone 
and alprazolam in her system, Respondent was not a party to that 
proceeding. The Government was thus required to prove this fact anew * 
* *.'' (internal citations omitted)).
---------------------------------------------------------------------------

    \15\ In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th 
Cir. 1981) (en banc), the United States Court of Appeals for the 
Eleventh Circuit adopted as binding precedent all decisions of the 
former Fifth Circuit handed down prior to October 1, 1981.
---------------------------------------------------------------------------

    For the foregoing reasons, I find that the Deputy Administrator's 
finding in a prior case to which Dr. Reppy was not a party that ``Dr. 
Reppy violated the laws of California, Tennessee, Indiana, Louisiana'' 
and Florida, 72 FR at 50,408-09 (internal citations omitted), does not 
constitute substantial evidence in the above-captioned proceeding, and 
I give that finding no weight in this Recommended Decision.\16\
---------------------------------------------------------------------------

    \16\ Compare supra note 13.
---------------------------------------------------------------------------

B. Respondent's Prior Testimony

    In its January 19, 2010 supplemental prehearing statement (Gov't 
Supp. PHS at 5), the Government noticed its intention to offer into 
evidence a transcript of Dr. Reppy's testimony in United Prescription 
Services, Inc., 72 FR 50,397 (DEA 2007). Dr. Reppy was not a named 
party in that proceeding, had not yet had any adverse action taken 
against him by the DEA with respect to his COR (see Gov't Ex. 10 at 61) 
and at the time was apparently unrepresented by counsel. In the present 
case, on consent of the parties,\17\ I admitted the transcript of Dr. 
Reppy's former testimony. (Tr. 126-27.) A preliminary issue in this 
Recommended Decision is what weight, if any, to give to that testimony.
---------------------------------------------------------------------------

    \17\ Counsel for Respondent asked Respondent a series of 
questions regarding whether his former testimony included various 
topics and was accurate; Respondent answered in the affirmative. 
(Tr. 78-80.)
---------------------------------------------------------------------------

    The APA provides that final determinations in Agency administrative 
proceedings must be based upon ``reliable, probative and substantial 
evidence.'' 5 U.S.C. 556(d). In addition, I may consider ``evidence 
that is competent, relevant, material and not unduly repetitious.'' 21 
CFR 1316.59(a) (2010). Where prior testimony from a previous proceeding 
is reliable, probative, material and not unduly repetitious, Agency 
precedent supports the admission of such testimony. See United 
Prescription Servs., Inc., 72 FR 50,397, 50,403 (DEA 2007) (crediting 
documentary evidence containing substance of witness's prior testimony 
``[i]n another proceeding''); see also Nestor A. Garcia, M.D., 61 FR 
30,099, 30,100 (DEA 1996) (giving weight to witness's testimony at 
hearing that recounted witness's former testimony before state medical 
board).
    Here, the transcript of Respondent's previous testimony in United 
Prescription Services is reliable insomuch as it contains Respondent's 
sworn testimony at a formal administrative hearing (see Tr.127 
(referring to what Respondent said ``under oath'')) and Respondent 
testified at the present proceeding that his former testimony was 
accurate, true and correct.\18\ (Tr. 80.) Moreover, Respondent gave the 
prior testimony in 2007, closer in time to the events at issue in the 
present case, presenting an increased chance that his memory accurately 
reflected the events.\19\ The transcript of Respondent's prior 
testimony is probative and material to the extent it addresses matters 
at issue in the present proceeding, to include without limitation the 
state(s) in which Respondent held a medical license from 2004 to 2006 
(Gov't Ex. 10 at 69); the relationship between witnesses and between 
the clinic and pharmacy at which Respondent allegedly worked and had 
prescriptions filled, respectively (Gov't Ex. 10 at 10, 42, 55, 65, 74-
77, 82, 89); the evolving ownership and name of the clinic at which 
Respondent allegedly worked (Gov't Ex. 10 at 6, 9, 46); the extent of 
Respondent's supervision of a PA (Gov't Ex. 10 at 84-85, 95-97, 101, 
106); the practices of Respondent with respect to patient evaluation 
and treatment (Gov't Ex. 10 at 12, 25-26, 30, 73-74, 77, 78-80, 93-94); 
and other topics. Finally, although the transcript of Respondent's 
prior testimony covers many of the topics he addressed in his testimony 
at hearing, I find that it is not unduly repetitious and that any 
repetition is offset by its probative value.
---------------------------------------------------------------------------

    \18\ I draw a distinction between reliability, on the one hand, 
and accuracy, on the other. Although I find that Respondent's prior 
testimony in United Prescription Services is reliable, only a 
balancing of the transcript against other evidence in this case can 
shed light on whether it is accurate.
    \19\ As noted throughout this Recommended Decision, I also find 
that statements contained in the transcript of Respondent's prior 
testimony are generally consistent with Respondent's testimony at 
hearing.
---------------------------------------------------------------------------

    For the foregoing reasons, I find it proper to give weight to 
relevant portions of the transcript of Respondent's prior testimony in 
University Prescription Services. (See Gov't Ex. 10.)

C. Affidavits of Respondent's Employees, Respondent's Patients and 
Respondent

    The parties stipulated at hearing to the admission of affidavits of 
Respondent's employees Adele Durina and Janice Viscio and his patients 
``[C.K.]'' \20\ and ``[D.C.],'' who did not testify in person. (Tr. 
166.) In addition, Respondent testified at hearing that, pursuant to 
his prior testimony in United Prescription Services, he provided an 
affidavit beneficial to the Government, which he signed. (Tr. 78.) 
Respondent further testified that Respondent's Exhibit 12 is an 
unsigned copy of that affidavit. (Tr. 78.) By stipulation of the 
parties, I admitted Respondent's affidavit. (Tr. 7-9; see Resp't Ex. 
12.)
---------------------------------------------------------------------------

    \20\ To protect the privacy of Respondent's patients, only 
initials are used.
---------------------------------------------------------------------------

    An issue is what weight, if any, to give these affidavits.
    Because the patient and employee affidavits address Respondent's 
professional conduct since the conduct alleged in the OSC, they are 
relevant to the issue of whether Respondent is currently in compliance 
with state and federal standards for the prescribing and practice of 
controlled substances. Moreover, the contents of Respondent's affidavit 
also bear on matters directly relevant to this case, to include his 
employment and the extent of his supervision of his PA, John Protheroe, 
among other topics. Finally, the Government stipulates and does not 
object to the admission of any of the affidavits. I therefore find it 
proper to give weight to relevant portions of affidavits of Respondent 
and Respondent's employees and patients. See 5 U.S.C. 556(d); 21 CFR 
1316.59(a) (2010).

III. Substantive Issue

    Whether a preponderance of the evidence establishes that, pursuant 
to 21 U.S.C. 824(a)(4), Respondent's DEA COR BR5287342 should be 
revoked and any pending applications for renewal or modification 
denied, because Respondent's continued registration would be 
inconsistent with the public interest as that term is used in 21 U.S.C. 
823(f).

IV. Evidence and Incorporated Findings of Fact

    I find, by a preponderance of the evidence, the following facts:

A. The Clinic and the Pharmacy

    Significant testimony at hearing related to Respondent's connection 
with two entities: University Physicians Resources (UPR), a medical 
clinic, and United Prescription Services (UPS), a pharmacy. (See, e.g., 
Tr. 23.)

[[Page 61161]]

B. The Witnesses and Affiants \21\

    Respondent Robert Raymond Reppy, D.O., is licensed as an 
osteopathic physician in the State of Florida pursuant to license 
number OS7246. (Tr. 20; Gov't Ex. 15 at 1.) His licensure status is 
Obligation/Active.\22\ (ALJ Ex. 3 at 1.) Although Respondent was 
previously licensed to practice medicine in Georgia, California and 
Hawaii, since 2000 he has only been licensed in Florida. (Tr. 20-21; 
Gov't Ex. 10 at 69.) Respondent is registered with the DEA as a 
practitioner in Schedules II through V pursuant to DEA COR BR5287342. 
(ALJ Ex. 3 at 1.) Respondent's COR was scheduled to expire by its terms 
on April 30, 2009. On April 6, 2009, DEA received Respondent's 
application for renewal.\23\ (ALJ Ex. 3 at 1.)
---------------------------------------------------------------------------

    \21\ In its prehearing statement and supplements thereto, the 
Government identified Diversion Investigator Peter W. Flagg, Special 
Agent Daniel A. Forde, Diversion Investigator Deborah Y. Butcher, 
and Respondent as witnesses. At hearing, however, the Government 
rested upon the testimony of Respondent alone, along with the 
exhibits it introduced into evidence. Moreover, Respondent's counsel 
did not conduct a separate direct examination of Respondent during 
Respondent's case-in-chief. Instead, I permitted counsel to expand 
the scope of cross examination.
    \22\ Respondent's Curriculum Vitae (CV) facially contradicts 
this stipulation, stating that Respondent's Florida medical license 
expired on March 31, 2008. The CV, however, appears to be outdated, 
notwithstanding Respondent's representation in his post-hearing 
brief that it is ``accurate'' (Resp't Br. at 2) and his argument 
that I accept evidence that is uncontroverted (Resp't Br. at 26-27). 
For instance, the CV indicates that Respondent is presently employed 
at UPR (Resp't Ex. 10 at 4), despite the otherwise uncontroverted 
testimony at hearing that Respondent stopped working at UPR in 2006. 
(Tr. 21-23, 51.) In light of this and other evidence concerning the 
status of Respondent's state medical license, I find that the weight 
of the evidence contradicts any inference that Respondent lacks 
state authority to handle controlled substances in Florida.
    \23\ Pursuant to 5 U.S.C. 558(c), Respondent's COR continues in 
effect until DEA takes final action on the renewal application. 
(See, e.g., ALJ Ex. 3.)
---------------------------------------------------------------------------

    Respondent's witness Robert Arthur Carr, Esq. (Mr. Carr) is an 
attorney who has worked in the area of medical malpractice for twenty 
years. (Tr. 143.) He is not a physician and has no medical training. 
(Tr. 156-57; see also Tr. 61.) Mr. Carr testified that he knew 
Respondent when he worked at UPS. (Tr. 142.) Mr. Carr stated that he 
had no ownership interest in UPR, but at one point he did have a 
financial interest in UPS.\24\ (Tr. 151-52; see Resp't Ex. 5.) Every 
prescription filled by UPS represented revenue for Mr. Carr. (Tr. 152.)
---------------------------------------------------------------------------

    \24\ In his testimony at a prior proceeding, Respondent 
testified that a Mr. Jerome Carr and a Mr. Rob Carr were listed as 
president of UPS in 2003. (Gov't Ex. 10 at 76, 89.) The 
inconsistency was never explained.
---------------------------------------------------------------------------

    Respondent's witness Melissa Messick, also known as Missy Messick 
(see Tr. 67-68) (Ms. Messick), was employed by UPS from 2001 to 2005. 
(Tr. 129, 132.) She testified that she was in a position to observe 
Respondent's work. (Tr. 129.) Ms. Messick is not a medical practitioner 
and lacks legal or medical training. (Tr. 135.) In a prior proceeding, 
Respondent testified that a ``Ms. Messich'' presently owns UPR. (Gov't 
Ex. 10 at 10; see also id. at 76-77.)
    Respondent's affiant Janice Vischio (Ms. Vischio) has been a LPN 
\25\ for twenty years, of which she has spent fifteen years in Florida. 
Her license is in good standing with the Florida Department of Health. 
As of July 15, 2010, she had worked with Respondent for at least 
eighteen months. (See Resp't Ex. 19 at 2.) Ms. Vischio handles 
administrative work for Respondent and does not see patients. (Id. at ] 
3.)
---------------------------------------------------------------------------

    \25\ Although the record in this case is silent, various 
provisions of federal law define the term ``LPN'' as ``licensed 
practical nurse.'' See, e.g., 32 CFR 199.2; 42 CFR 482.51(a)(2).
---------------------------------------------------------------------------

    Respondent's affiant Adele Durina (Ms. Durina) has over twenty 
years of medical office experience and presently works as Respondent's 
Office Manager and Medical Assistant. (Resp't Ex. 19 at 6 ] 2.) As of 
as late as July 15, 2010, Ms. Durina had worked with Respondent since 
he began working at Cosmopolitan Clinic. (Id. at ] 3; see also Tr. 
167.)
    As of July 15, 2010, [C.K.] has been a patient of Respondent since 
Respondent began practicing in the local area and [D.C.] had been a 
patient of Respondent for approximately thirteen to fourteen months for 
the treatment of degenerative spondylosis. (Resp't Ex. 19 at 12 ] 2; 
id. at 9 ]] 1-2.)

C. Respondent, the Clinic and the Pharmacy

    Although he did not remember the precise dates, Respondent 
testified that he was employed at UPR, a medical clinic, for four years 
beginning in 2002 until approximately 2006. (Tr. 21-23, 51.) 
Respondent's salary at UPR was the same as his salary at his previous 
employer; he was paid by the hour or the day rather than by the number 
of prescriptions he wrote.\26\ (Tr. 61, 79.)
-----------------------------------------------------------------------