Aaron Gloskowski, D.O.; Decision and Order, 66969-66972 [2011-28011]

Download as PDF Federal Register / Vol. 76, No. 209 / Friday, October 28, 2011 / Notices contained in the Order to Show Cause. See 21 CFR 1301.46; 1316.49. I make the following findings of fact. Findings Respondent previously held a DEA registration as a practitioner. However, on September 19, 2005, Respondent was issued an Order to Show Cause and Immediate Suspension of Registration based on allegations that he had issued controlled-substance prescriptions over the internet to persons he neither saw nor physically examined and with whom ‘‘he had no prior doctor-patient relationship,’’ and on whom he did not maintain patient records. GX 3, at 5. The 2005 Show Cause Order thus alleged that Respondent acted outside of the usual course of professional practice and lacked a legitimate medical purpose in issuing the prescriptions. Id. at 6–7. Thereafter, Respondent and DEA settled the matter by entering into a Memorandum of Agreement (MOA), which became effective on July 11, 2006, and which is to remain in effect for five years. GX 4, at 8. Pursuant to the MOA, Respondent agreed to surrender his registration and the Government agreed that it would approve his application for a new registration ‘‘after the expiration of twenty-four (24) months from service of the’’ 2005 Show Cause Order ‘‘barring any unforeseen or heretofore unknown basis to deny the application,’’ and that ‘‘no act that formed the basis for * * * paragraphs 15–17’’ of the 2005 Show Cause Order ‘‘shall form the sole basis for [the] denial of Registration.’’ 1 Id. at 4–5. On August 21, 2006, Respondent surrendered his registration. GX 5. On May 2, 2007, a Federal grand jury sitting in the District of Puerto Rico, issued a superseding indictment, which charged Respondent with conspiring to distribute controlled substances, in violation of 21 U.S.C. 846; unlawfully distributing a controlled substance (hydrocodone), in violation of 21 U.S.C. 841(a)(1); conspiracy to commit wire fraud, in violation of 18 U.S.C. 1349; and conspiracy to commit money laundering, in violation of 18 U.S.C. sroberts on DSK5SPTVN1PROD with NOTICES 1 The MOA also provided that: DEA is not precluded from introducing this Agreement, violations of this Agreement and any other relevant allegations, whether enumerated herein or not, that preceded or may ensue during or after the effective period of this Agreement in any future administrative proceedings. Further, nothing in this Agreement shall be construed as a waiver to use any other grounds for revocation or denial of a DEA registration, including, but not limited to, the admissibility of this Agreement and/ or any violations of this Agreement in the event that future administrative proceedings become necessary. GX 4, at 5–6. VerDate Mar<15>2010 16:56 Oct 27, 2011 Jkt 226001 66969 1956(h) and 1956(a)(1)(A)(i). See GX 7. On January 10, 2008, Respondent pled guilty to one count of Conspiracy to Possess with Intent to Distribute Hydrocodone, in violation of 21 U.S.C. 841(a)(1) and 846; on August 8, 2008, the United States District Court entered its judgment finding him guilty of the offense and sentenced him to three years’ probation and 288 hours of community service. See GX 8. On April 7, 2009, Respondent submitted an online application for a new DEA Certificate of Registration as a Practitioner in schedules II–V. Respondent sought registration at the address of 620 Lady Di Street, Apt. #10, Parque Los Almendros, Ponce, Puerto Rico 00716. GX 1, at 1. On May 26, 2010, the Puerto Rico Board issued a complaint against Respondent’s license on the ground that he had been convicted of a crime involving moral turpitude. Declaration of Diversion Investigator, at 2. On September 2, 2010, Respondent and the Board’s Investigator agreed to a settlement; on September 22, the Board voted to adopt the settlement. Id. Pursuant to the settlement, Respondent was allowed to continue practicing medicine. Id. at 3. However, Respondent ‘‘[s]urrender[ed] his capacity to prescribe controlled substances for a term of three years.’’ Id. I therefore find that Respondent is currently without authority to handle controlled substances in the Commonwealth of Puerto Rico, the jurisdiction in which he has sought registration. As these provisions make plain, possessing authority under state law (or in the case of Puerto Rico, the law of the Commonwealth) to handle controlled substances is an essential condition for obtaining and maintaining a DEA registration. Steven B. Brown, 75 FR 65660, 65663 (2010) (citing John B. Freitas, 74 FR 17524, 17525 (2009)); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988). It is undisputed that the Puerto Rico Board has suspended Respondent’s authority to dispense controlled substances in the Commonwealth, the jurisdiction in which he practices, for a period of three years, and that he does not satisfy the CSA’s requirement for obtaining a registration. See 21 U.S.C. 802(21) & 823(f). Accordingly, his pending application will be denied.2 Discussion Section 303(f) of the Controlled Substances Act (CSA) provides that ‘‘[t]he Attorney General shall register practitioners * * * to dispense * * * controlled substances * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.’’ 21 U.S.C. 823(f). Moreover, the CSA defines ‘‘[t]he term ‘practitioner’ [to] mean[] a physician * * * licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices * * * to distribute, dispense, * * * [or] administer * * * a controlled substance in the course of professional practice.’’ 21 U.S.C. 802(21). See also id. § 824(a)(3) (authorizing revocation of a registration ‘‘upon a finding that the registrant * * * has had his State license or registration suspended [or] revoked * * * and is no longer authorized by State law to engage in the * * * distribution [or] dispensing of controlled substances’’). Drug Enforcement Administration PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 Order Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well as 28 CFR 0.100(b) and 0.104, I order that the pending application by Abelardo E. Lecompte-Torres, M.D., for DEA Certificate of Registration as a practitioner, be, and it hereby is, denied. This Order is effective immediately. Dated: October 17, 2011. Michele M. Leonhart, Administrator. [FR Doc. 2011–27929 Filed 10–27–11; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Aaron Gloskowski, D.O.; Decision and Order On March 17, 2011, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Aaron Gloskowski, D.O. (Registrant), of Kearny, Arizona. The Show Cause Order proposed the revocation of Registrant’s DEA Certificate of Registration BG6908757, as a practitioner in Schedules II through V, and the denial of any pending applications to renew or modify his registration, pursuant to 21 U.S.C. 824(a)(3) & (4) and 823(f). Show Cause Order at 1. 2 While the Government contends that Respondent’s application should also be denied based on his involvement in an additional internet prescribing scheme and his felony conviction for participating in this scheme, see Request for Final Agency Action, at 7–9; for the reason stated above, I conclude that it is unnecessary to address whether this conduct provides a further ground for denying his application. E:\FR\FM\28OCN1.SGM 28OCN1 sroberts on DSK5SPTVN1PROD with NOTICES 66970 Federal Register / Vol. 76, No. 209 / Friday, October 28, 2011 / Notices More specifically, the Show Cause Order alleged that as a result of action by the Arizona Board of Osteopathic Examiners in Medicine and Surgery (hereinafter, the Board), Registrant is without authority to practice medicine or handle controlled substances in the State of Arizona, the State in which he is registered with DEA, and therefore is not entitled to hold a DEA registration. Id. at 1–2. The Show Cause Order also alleged that pursuant to Registrant’s consent agreements with the Board, on two occasions, Registrant provided urine samples for drug testing, which tested positive for methamphetamine, a Schedule I 1 controlled substance. Id. at 2. The Order further alleged that Registrant has a history of drug abuse dating to at least November 2008, when he entered into a Rehabilitation Agreement with the Board, and that his self-abuse of a controlled substance is also a ground for revocation of his DEA registration. Id. The Order also notified Registrant of his right to request a hearing on the allegations or to submit a written statement in lieu of a hearing, the procedure for doing either, and the consequence for failing to do either. Id. at 2. (citing 21 CFR 1301.43). The Government initially attempted to serve the Show Cause Order by certified mail addressed to Registrant at his registered address. However, the mailing was returned to the Government marked: ‘‘Moved, Left no Address’’ and ‘‘Unable to Forward.’’ Government Request for Final Agency Action (Request), at 1. Registrant was then located by a DEA Diversion Investigator (DI), who then resent the Show Cause Order to him by certified mail; according to a certified mail receipt, on April 4, 2011, Registrant was served with the Order. Request at 1–2. On March 21, 2011, the Government also emailed the Order to Registrant; the DI confirmed that Registrant had received the email and had opened the attachment containing the Order. Id. at 2. Since the date of service of the Show Cause Order, thirty days have now passed and neither Registrant, nor anyone purporting to represent him, has requested a hearing or submitted a written statement in lieu of a hearing. I therefore find that Registrant has waived his right to a hearing or to submit a written statement in lieu of a hearing, and issue this Decision and Final Order based on relevant evidence contained in the record submitted by the 1 In fact, methamphetamine is a schedule II controlled substance. See 21 CFR 1308.l2(d). VerDate Mar<15>2010 16:56 Oct 27, 2011 Jkt 226001 Government. 21 CFR 1301.43(d) & (e). I make the following findings of fact. Findings Registrant is the holder of DEA Certificate of Registration BG6908757, which authorizes him to handle controlled substances in Schedules II through V as a practitioner, at the registered address of 100 Tilbury Drive, Kearny, Arizona. His registration does not expire until September 30, 2012. Registrant was formerly licensed as an osteopathic physician in Arizona. On November 21, 2008, Registrant entered into a Stipulated Rehabilitation Agreement with the Arizona Board of Osteopathic Examiners in Medicine and Surgery, under which he was allowed to participate in the Board’s confidential program for the treatment and rehabilitation of doctors of medicine who are impaired by alcohol or drug abuse, pursuant to A.R.S. § 32–1861. See GX E, at 1 (Stipulated Rehabilitation Agreement). The Rehabilitation Agreement was to remain in effect for 5 years. Id. at 3. The Rehabilitation Agreement stipulated that any violation of its terms constituted unprofessional conduct as defined in A.R.S. § 32–1854,2 and may have resulted in disciplinary action pursuant to A.R.S. § 32–1855. Id. at 1. Therein, Registrant agreed to various conditions, including that he take only those medications prescribed to him by his primary care physician; that he submit to biological fluid collection for testing, id. at 4–5; and that in the event of a relapse, he would enter into an Interim Consent Agreement for Practice Restriction that required, among other things, that he not practice medicine until such time as he successfully completed a long-term inpatient or residential treatment program designated by the Board. Id. at 7. On February 25, 2009, the Board was notified that Registrant had provided a biological fluid sample which tested positive for methamphetamine. GX F, at 3 (Consent Agreement and Order For Probation, June 29, 2009). Upon notice 2 Under Arizona law, ‘‘unprofessional conduct’’ includes, inter alia: ‘‘[p]racticing medicine while under the influence of alcohol, narcotic or hypnotic drugs or any substance that impairs or may impair the licensee’s ability to safely and skillfully practice medicine’’; ‘‘[e]ngaging in the practice of medicine in a manner that harms or may harm a patient or that the Board determines falls below the community standard’’; ‘‘[v]iolating a formal order, probation or a stipulation issued by the Board under this chapter;’’ ‘‘[a]ny conduct or practice that endangers a patient’s or the public’s health or may reasonably be expected to do so’’; and ‘‘[a]ny conduct or practice that impairs the licensee’s ability to safely and skillfully practice medicine or that may reasonably be expected to do so.’’ Ariz. Rev. Stat. § 32–1854 (3), (6), (25), (38), and (39). PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 from the Executive Director of the Board, Registrant voluntarily refrained from practicing medicine, successfully completed an inpatient treatment program, and entered an outpatient program. Id. at 3. On June 29, 2009, the Board issued an Interim Order placing Registrant on probation for five years. The Board imposed extensive conditions on Registrant, including that he participate in the Board’s monitored aftercare program and participate in the intensive outpatient program until the program’s medical director approved his discharge from it. Id. at 4. The Board also ordered that he attend a 12-step program or selfhelp group; obtain psychological counseling; take no medication unless prescribed by his primary care physician or in an emergency; consume no alcohol or poppy seeds; and submit biological fluid samples upon the Board’s request with the further provision that his failure to cooperate in the collection of such samples ‘‘may be considered [a] failure to comply with th[e] Order.’’ Id. at 4–7. Finally, the Order provided that ‘‘the positive finding in [Registrant’s] biological fluid of a drug or medication not prescribed to [him] in accordance with this Order shall be considered proof of a relapse,’’ and that in the event of a relapse, his ‘‘license to practice medicine shall be summarily suspended pending a formal administrative hearing for revocation.’’ Id. at 7–8. On June 9, 2010, Registrant submitted a biological fluid sample for testing pursuant to the 2009 Order. GX H, at 5–6. As a result of irregularities found in the sample, Registrant was directed by the Board to submit an observed urine test and hair test for sampling. Id. at 6. Registrant submitted the biological fluid testing sample; however, the collected sample had not been ‘‘observed’’ and the chain of custody form did not indicate ‘‘observed’’ but ‘‘monitored.’’ Id. at 7. The Board then informed Registrant by letter that all future biological testing fluid samples must be observed. Id. at 8. On July 27, 2010, the day after meeting with Board staff to discuss his compliance with the 2009 Order, Registrant submitted to another urine test, which tested positive for amphetamines and methamphetamine. Based in part on this test result, the Board summarily suspended Registrant’s license to practice osteopathic medicine. GX G, at 3–4. Following a hearing before a State Administrative Law Judge (ALJ), the Board made extensive findings regarding Registrant’s compliance with the Consent Order. GX H. Regarding E:\FR\FM\28OCN1.SGM 28OCN1 Federal Register / Vol. 76, No. 209 / Friday, October 28, 2011 / Notices Registrant’s July 27, 2010 drug test, the Board found that while the positive result for amphetamines could be explained by a legitimate prescription Registrant had for Vyvanse, the methamphetamine result revealed a high concentration of an isomer which ‘‘marks the biologically active ingredient in the street drug methamphetamine that is not normally prescribed.’’ Id. at 9. While Respondent argued that he was also taking ClaritinD at the time of the test, the director of the laboratory that performs biological fluid testing for the Board, and who holds a Ph.D. in toxicology, id. at 4, ‘‘testified that he had no doubt whatsoever that [Registrant’s] July 27, 2010 specimen tested positive for methamphetamine.’’ Id. at 9, 12. The Board thus found that Registrant had ‘‘relapsed to substance abuse and violated the Consent Agreement’’ and that ‘‘[t]hese acts constitute unprofessional conduct as defined by’’ Arizona law. Id. at 12 (citing Ariz. Rev. Stat. § 32–1854(25), (38), and (39)). The Board further found that Registrant had failed to accept responsibility ‘‘for his repeated failures to comply with the Consent Agreement and his relapse,’’ and revoked his state osteopathic license. Id. at 12–13. I therefore find that Registrant is currently without authority to handle controlled substances under the laws of the State of Arizona, the State in which he is registered with DEA. sroberts on DSK5SPTVN1PROD with NOTICES Discussion The Loss of State Authority Ground Under the Controlled Substances Act (CSA), a practitioner must be currently authorized to handle controlled substances in the ‘‘jurisdiction in which he practices’’ in order to maintain a DEA registration. See 21 U.S.C. 802(21) (‘‘[t]he term ‘practitioner’ means a physician * * * licensed, registered, or otherwise permitted, by * * * the jurisdiction in which he practices * * * to distribute, dispense, [or] administer * * * a controlled substance in the course of professional practice’’). See also id. § 823(f) (‘‘The Attorney General shall register practitioners * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.’’). As these provisions make plain, possessing authority under state law to handle controlled substances is an essential condition for obtaining and maintaining a DEA registration. Accordingly, DEA has held that revocation of a registration is warranted whenever a practitioner’s state authority to dispense controlled substances has VerDate Mar<15>2010 16:56 Oct 27, 2011 Jkt 226001 been suspended or revoked. David W. Wang, 72 FR 54297, 54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988). See also 21 U.S.C. 824(a)(3) (authorizing revocation of a registration ‘‘upon a finding that the registrant * * * has had his State license or registration suspended [or] revoked * * * and is no longer authorized by State law to engage in the * * * distribution [or] dispensing of controlled substances’’). As found above, on March 22, 2011, the Arizona Board revoked Registrant’s state osteopathic medicine license. Accordingly, Registrant is without authority to dispense controlled substances in the State where he practices medicine and holds his DEA registration, and is therefore no longer entitled to hold his registration. See 21 U.S.C. 802 (21), 823(f), 824(a)(3). Therefore, pursuant to the authority granted under 21 U.S.C. 824(a)(3), his registration will be revoked. 66971 (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. 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 (DC Cir. 2005). In this matter, while I have considered all of the factors, I conclude that it is not necessary to make findings with respect to factors one 3 through four. However, I conclude that factor five, which authorizes the Agency to consider ‘‘other such conduct which may threaten public health and safety,’’ 21 U.S.C. 823(f)(5), supports a finding that Respondent has committed acts which render his continued ‘‘registration inconsistent with the public interest.’’ 21 U.S.C. 824(a)(4). Under longstanding Agency precedent, factor five encompasses ‘‘wrongful acts relating to controlled substances committed by a registrant outside of his professional practice but which relate to controlled substances.’’ David E. Trawick, 53 FR 5326, 5327 (1988). More recently, I explained that ‘‘DEA has long held that a practitioner’s self-abuse of a controlled substance is a relevant consideration under factor five and has done so even when there is no evidence that the registrant abused his prescription writing authority. Moreover, DEA has revoked registrations and/or denied applications for a registration even where there is no evidence that the practitioner committed acts involving unlawful distribution to others.’’ Tony T. Bui, M.D., 75 FR 49979, 49989 (2010) (citations omitted.) As found above, in 2008, Registrant self-reported to the Arizona Board that he was beginning in-patient treatment for substance abuse. GX H, at 3. Moreover, on two subsequent occasions (February 25, 2009 and July 27, 2010), Registrant provided biological specimens which tested positive for methamphetamine, in violation of his agreements with the Board. Of further significance, the Board found that Registrant’s July 2010 test sample had a 90% concentration of an isomer which is the biologically active ingredient in methamphetamine which is sold on the street. Id. at 9. Thus, substantial evidence supports the conclusion that Registrant has 21 U.S.C. 823(f). The public interest factors are considered in the disjunctive. Robert A. 3 For the same reason that supports revocation under 21 U.S.C. 824(a)(3), factor one would also support revocation. The Public Interest Ground The Government further argues that Registrant’s abuse of methamphetamine is an additional ground for revoking his registration because he has committed acts that render his registration inconsistent with the public interest. Request for Final Agency Action, at 3 (citing 21 U.S.C. 824(a)(4)). I agree. Section 304(a) of the Controlled Substances Act provides that a ‘‘registration pursuant to section 823 of this title to * * * dispense a controlled substance * * * may be suspended or revoked by the Attorney General upon a finding that the registrant * * * has committed such acts as would render his registration under section 823 of this title inconsistent with the public interest as determined under such section.’’ 21 U.S.C. 824(a)(4). With respect to a practitioner, the Act requires the consideration of the following factors in making the public interest determination: PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 E:\FR\FM\28OCN1.SGM 28OCN1 66972 Federal Register / Vol. 76, No. 209 / Friday, October 28, 2011 / Notices repeatedly engaged in the self–abuse of a Schedule II controlled substance, and done so notwithstanding the attempts by the Arizona Board to assist Registrant to rehabilitate himself. I therefore hold that Registrant has engaged in ‘‘such other conduct which may threaten public health or safety,’’ 21 U.S.C. 823(f)(5), and that he has committed acts which render his registration ‘‘inconsistent with the public interest.’’ Id. § 824(a)(4). This conclusion provides a further reason to revoke Registrant’s registration and to deny any pending applications. Order Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration BG6908757, issued to Aaron Gloskowski, D.O., be, and it hereby is, revoked. I further order that any pending application of Aaron Gloskowski, D.O., to renew or modify his registration, be, and it hereby is, denied. This Order is effective immediately. Dated: October 7, 2011. Michele M. Leonhart, Administrator. [FR Doc. 2011–28011 Filed 10–27–11; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 10–55] sroberts on DSK5SPTVN1PROD with NOTICES Linda Sue Cheek, M.D., Decision and Order On December 30, 2010, Administrative Law Judge (ALJ) Timothy D. Wing issued the attached recommended decision. Thereafter, Respondent filed exceptions to the decision. Having reviewed the entire record including Respondent’s exceptions, I have decided to adopt the ALJ’s rulings, findings of fact, conclusions of law, and recommended order, except as discussed below. Accordingly, I will order that Respondent’s application be denied. Before proceeding to discuss Respondent’s exceptions, a discussion of the ALJ’s consideration of ‘‘community impact’’ evidence is warranted. See ALJ at 33–35.1 Therein, the ALJ acknowledged the recent decision in Gregory Owens, D.D.S., 74 FR 36751 (2009). In Owens, I explicitly declined to extend the holding of 1 All citations to the ALJ’s decision are to the slip opinion as issued by him. VerDate Mar<15>2010 16:56 Oct 27, 2011 Jkt 226001 Pettigrew Rexall Drugs, 64 FR 8855, 8859–60 (1999), which cited evidence that a pharmacy was ‘‘one of two pharmacies in a relatively poor, medically underserved community’’ as ground for staying a revocation order, to the case of a prescribing practitioner. 74 FR at 36757. As Owens explained, ‘‘consideration of the socioeconomic status of a practitioner’s patient population is not mandated by the text of either 21 U.S.C. 823(f) or 824(a)(4).’’ Id. Owens further explained that such a rule is ‘‘unworkable’’ and ‘‘would inject a new level of complexity into already complex proceedings and take the Agency far afield of the purpose of the CSA’s registration provisions, which is to prevent diversion.’’ Id. The ALJ further noted, however, that in Imran I. Chaudry, M.D., 69 FR 62081, 62083–84 (2004), the Agency had ‘‘considered and given weight to community impact evidence, without specifically citing Pettigrew.’’ ALJ at 34. Notwithstanding the lengthy explanation Owens provided as to why community impact evidence is irrelevant in a proceeding involving a prescribing practitioner, the ALJ reasoned that in ‘‘[i]n light of [Chaudry], I find that community impact evidence as a threshold matter is not entirely irrelevant.’’ Id. While in Chaudry, the Agency noted that evidence that the respondent, who was a cardiologist, practiced in a medically underserved community ‘‘provide[d] some support for maintaining [his] registration,’’ the Agency further held that this evidence ‘‘also has a negative implication for continued registration’’ because Respondent placed the community at risk by abusing methamphetamine and distributing it to another physician. 69 FR at 62084. Thus, in Chaudry, while the registrant was the only cardiologist in ‘‘a town of approximately 4,000 people,’’ the Agency actually relied on this evidence to revoke the practitioner’s registration. The decision in Chaudry did not, however, explain to what factor this evidence—whether cited in mitigation by the registrant or cited in aggravation by the final decision—was relevant. While it is possible to view such evidence as relevant (at least when offered as evidence of an aggravating circumstance) in determining whether a registrant has engaged in ‘‘such other conduct as may threaten public health and safety,’’ 21 U.S.C. 823(f)(5), a practitioner’s self-abuse of a controlled substance ‘‘threaten[s] public health and safety’’ without regard to the socioeconomic characteristics of the PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 community in which he or she practices.2 Moreover, my review of Chaudry reinforces the correctness of my conclusion in Owens. As I explained in Owens, ‘‘[t]he public interest standard of 21 U.S.C. § 823(f) is not a freewheeling inquiry but is guided by the five specific factors which Congress directed the Attorney General to consider; consideration of the socioeconomic status of a practitioner’s patient population is not mandated by the text of either 21 U.S.C. §§ 823(f) or 824(a)(4), which focus primarily on the acts committed by a practitioner.’’ 74 FR at 36757. As I further explained in Owens (as well as in numerous other cases), ‘‘where the Government has made out a prima facie case that a practitioner has committed acts which render [her] registration inconsistent with the public interest, the relevant inquiry is * * * whether the practitioner has put forward ‘sufficient mitigating evidence to assure the Administrator that he can be entrusted with the responsibility carried by such a registration.’ ’’ Id. (quoting Medicine ShoppeJonesborough, 73 FR 364, 387 (2008)). Moreover, in numerous decisions, I have made clear that ‘‘this inquiry looks to whether the registrant has accepted responsibility for [her] misconduct and undertaken corrective measures to prevent the re-occurrence of similar acts.’’ Id. As explained in Owens, ‘‘[w]hether a practitioner treats patients who come from a medically underserved community or who have limited incomes has no bearing on whether [she] has accepted responsibility and undertaken adequate corrective measures.3’’ Id. In Owens, I also noted that the diversion of prescription controlled substances ‘‘has become an increasingly serious societal problem, which is particularly significant in poorer communities whether they are located in rural or urban areas.’’ Id. (citing George C. Aycock, 74 FR 17529, 17544 n.33 (2009); Laurence T. McKinney, 73 FR 43260 (2008); Paul H. Volkman, 73 2 While the decision noted that the registrant had also distributed methamphetamine to another physician, this conduct would clearly fall within factor four, ‘‘[c]ompliance with applicable State, Federal, or local laws relating to controlled substances.’’ 21 U.S.C. 823(f)(4). 3 Of course, in determining the appropriate sanction, DEA also considers the extent and egregiousness of a registrant’s misconduct, the degree of the registrant’s candor, as well as the Agency’s interest in deterring others from engaging in similar acts. See Owens, 74 FR at 36757; Paul Weir Battershell, 76 FR 44359 (2010); Joseph Gaudio, 74 FR 10083, 10095 (2009); Janet Thornton, 73 FR 50354 (2008). E:\FR\FM\28OCN1.SGM 28OCN1

Agencies

[Federal Register Volume 76, Number 209 (Friday, October 28, 2011)]
[Notices]
[Pages 66969-66972]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28011]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Aaron Gloskowski, D.O.; Decision and Order

    On March 17, 2011, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Aaron Gloskowski, D.O. (Registrant), of Kearny, Arizona. 
The Show Cause Order proposed the revocation of Registrant's DEA 
Certificate of Registration BG6908757, as a practitioner in Schedules 
II through V, and the denial of any pending applications to renew or 
modify his registration, pursuant to 21 U.S.C. 824(a)(3) & (4) and 
823(f). Show Cause Order at 1.

[[Page 66970]]

    More specifically, the Show Cause Order alleged that as a result of 
action by the Arizona Board of Osteopathic Examiners in Medicine and 
Surgery (hereinafter, the Board), Registrant is without authority to 
practice medicine or handle controlled substances in the State of 
Arizona, the State in which he is registered with DEA, and therefore is 
not entitled to hold a DEA registration. Id. at 1-2.
    The Show Cause Order also alleged that pursuant to Registrant's 
consent agreements with the Board, on two occasions, Registrant 
provided urine samples for drug testing, which tested positive for 
methamphetamine, a Schedule I \1\ controlled substance. Id. at 2. The 
Order further alleged that Registrant has a history of drug abuse 
dating to at least November 2008, when he entered into a Rehabilitation 
Agreement with the Board, and that his self-abuse of a controlled 
substance is also a ground for revocation of his DEA registration. Id. 
The Order also notified Registrant of his right to request a hearing on 
the allegations or to submit a written statement in lieu of a hearing, 
the procedure for doing either, and the consequence for failing to do 
either. Id. at 2. (citing 21 CFR 1301.43).
---------------------------------------------------------------------------

    \1\ In fact, methamphetamine is a schedule II controlled 
substance. See 21 CFR 1308.l2(d).
---------------------------------------------------------------------------

    The Government initially attempted to serve the Show Cause Order by 
certified mail addressed to Registrant at his registered address. 
However, the mailing was returned to the Government marked: ``Moved, 
Left no Address'' and ``Unable to Forward.'' Government Request for 
Final Agency Action (Request), at 1.
    Registrant was then located by a DEA Diversion Investigator (DI), 
who then resent the Show Cause Order to him by certified mail; 
according to a certified mail receipt, on April 4, 2011, Registrant was 
served with the Order. Request at 1-2. On March 21, 2011, the 
Government also emailed the Order to Registrant; the DI confirmed that 
Registrant had received the email and had opened the attachment 
containing the Order. Id. at 2.
    Since the date of service of the Show Cause Order, thirty days have 
now passed and neither Registrant, nor anyone purporting to represent 
him, has requested a hearing or submitted a written statement in lieu 
of a hearing. I therefore find that Registrant has waived his right to 
a hearing or to submit a written statement in lieu of a hearing, and 
issue this Decision and Final Order based on relevant evidence 
contained in the record submitted by the Government. 21 CFR 1301.43(d) 
& (e). I make the following findings of fact.

Findings

    Registrant is the holder of DEA Certificate of Registration 
BG6908757, which authorizes him to handle controlled substances in 
Schedules II through V as a practitioner, at the registered address of 
100 Tilbury Drive, Kearny, Arizona. His registration does not expire 
until September 30, 2012.
    Registrant was formerly licensed as an osteopathic physician in 
Arizona. On November 21, 2008, Registrant entered into a Stipulated 
Rehabilitation Agreement with the Arizona Board of Osteopathic 
Examiners in Medicine and Surgery, under which he was allowed to 
participate in the Board's confidential program for the treatment and 
rehabilitation of doctors of medicine who are impaired by alcohol or 
drug abuse, pursuant to A.R.S. Sec.  32-1861. See GX E, at 1 
(Stipulated Rehabilitation Agreement). The Rehabilitation Agreement was 
to remain in effect for 5 years. Id. at 3.
    The Rehabilitation Agreement stipulated that any violation of its 
terms constituted unprofessional conduct as defined in A.R.S. Sec.  32-
1854,\2\ and may have resulted in disciplinary action pursuant to 
A.R.S. Sec.  32-1855. Id. at 1. Therein, Registrant agreed to various 
conditions, including that he take only those medications prescribed to 
him by his primary care physician; that he submit to biological fluid 
collection for testing, id. at 4-5; and that in the event of a relapse, 
he would enter into an Interim Consent Agreement for Practice 
Restriction that required, among other things, that he not practice 
medicine until such time as he successfully completed a long-term 
inpatient or residential treatment program designated by the Board. Id. 
at 7.
---------------------------------------------------------------------------

    \2\ Under Arizona law, ``unprofessional conduct'' includes, 
inter alia: ``[p]racticing medicine while under the influence of 
alcohol, narcotic or hypnotic drugs or any substance that impairs or 
may impair the licensee's ability to safely and skillfully practice 
medicine''; ``[e]ngaging in the practice of medicine in a manner 
that harms or may harm a patient or that the Board determines falls 
below the community standard''; ``[v]iolating a formal order, 
probation or a stipulation issued by the Board under this chapter;'' 
``[a]ny conduct or practice that endangers a patient's or the 
public's health or may reasonably be expected to do so''; and 
``[a]ny conduct or practice that impairs the licensee's ability to 
safely and skillfully practice medicine or that may reasonably be 
expected to do so.'' Ariz. Rev. Stat. Sec.  32-1854 (3), (6), (25), 
(38), and (39).
---------------------------------------------------------------------------

    On February 25, 2009, the Board was notified that Registrant had 
provided a biological fluid sample which tested positive for 
methamphetamine. GX F, at 3 (Consent Agreement and Order For Probation, 
June 29, 2009). Upon notice from the Executive Director of the Board, 
Registrant voluntarily refrained from practicing medicine, successfully 
completed an inpatient treatment program, and entered an outpatient 
program. Id. at 3.
    On June 29, 2009, the Board issued an Interim Order placing 
Registrant on probation for five years. The Board imposed extensive 
conditions on Registrant, including that he participate in the Board's 
monitored aftercare program and participate in the intensive outpatient 
program until the program's medical director approved his discharge 
from it. Id. at 4. The Board also ordered that he attend a 12-step 
program or self-help group; obtain psychological counseling; take no 
medication unless prescribed by his primary care physician or in an 
emergency; consume no alcohol or poppy seeds; and submit biological 
fluid samples upon the Board's request with the further provision that 
his failure to cooperate in the collection of such samples ``may be 
considered [a] failure to comply with th[e] Order.'' Id. at 4-7. 
Finally, the Order provided that ``the positive finding in 
[Registrant's] biological fluid of a drug or medication not prescribed 
to [him] in accordance with this Order shall be considered proof of a 
relapse,'' and that in the event of a relapse, his ``license to 
practice medicine shall be summarily suspended pending a formal 
administrative hearing for revocation.'' Id. at 7-8.
    On June 9, 2010, Registrant submitted a biological fluid sample for 
testing pursuant to the 2009 Order. GX H, at 5-6. As a result of 
irregularities found in the sample, Registrant was directed by the 
Board to submit an observed urine test and hair test for sampling. Id. 
at 6. Registrant submitted the biological fluid testing sample; 
however, the collected sample had not been ``observed'' and the chain 
of custody form did not indicate ``observed'' but ``monitored.'' Id. at 
7. The Board then informed Registrant by letter that all future 
biological testing fluid samples must be observed. Id. at 8.
    On July 27, 2010, the day after meeting with Board staff to discuss 
his compliance with the 2009 Order, Registrant submitted to another 
urine test, which tested positive for amphetamines and methamphetamine. 
Based in part on this test result, the Board summarily suspended 
Registrant's license to practice osteopathic medicine. GX G, at 3-4.
    Following a hearing before a State Administrative Law Judge (ALJ), 
the Board made extensive findings regarding Registrant's compliance 
with the Consent Order. GX H. Regarding

[[Page 66971]]

Registrant's July 27, 2010 drug test, the Board found that while the 
positive result for amphetamines could be explained by a legitimate 
prescription Registrant had for Vyvanse, the methamphetamine result 
revealed a high concentration of an isomer which ``marks the 
biologically active ingredient in the street drug methamphetamine that 
is not normally prescribed.'' Id. at 9. While Respondent argued that he 
was also taking Claritin-D at the time of the test, the director of the 
laboratory that performs biological fluid testing for the Board, and 
who holds a Ph.D. in toxicology, id. at 4, ``testified that he had no 
doubt whatsoever that [Registrant's] July 27, 2010 specimen tested 
positive for methamphetamine.'' Id. at 9, 12. The Board thus found that 
Registrant had ``relapsed to substance abuse and violated the Consent 
Agreement'' and that ``[t]hese acts constitute unprofessional conduct 
as defined by'' Arizona law. Id. at 12 (citing Ariz. Rev. Stat. Sec.  
32-1854(25), (38), and (39)). The Board further found that Registrant 
had failed to accept responsibility ``for his repeated failures to 
comply with the Consent Agreement and his relapse,'' and revoked his 
state osteopathic license. Id. at 12-13.
    I therefore find that Registrant is currently without authority to 
handle controlled substances under the laws of the State of Arizona, 
the State in which he is registered with DEA.

Discussion

The Loss of State Authority Ground

    Under the Controlled Substances Act (CSA), a practitioner must be 
currently authorized to handle controlled substances in the 
``jurisdiction in which he practices'' in order to maintain a DEA 
registration. See 21 U.S.C. 802(21) (``[t]he term `practitioner' means 
a physician * * * licensed, registered, or otherwise permitted, by * * 
* the jurisdiction in which he practices * * * to distribute, dispense, 
[or] administer * * * a controlled substance in the course of 
professional practice''). See also id. Sec.  823(f) (``The Attorney 
General shall register practitioners * * * if the applicant is 
authorized to dispense * * * controlled substances under the laws of 
the State in which he practices.''). As these provisions make plain, 
possessing authority under state law to handle controlled substances is 
an essential condition for obtaining and maintaining a DEA 
registration.
    Accordingly, DEA has held that revocation of a registration is 
warranted whenever a practitioner's state authority to dispense 
controlled substances has been suspended or revoked. David W. Wang, 72 
FR 54297, 54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); 
Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 
11920 (1988). See also 21 U.S.C. 824(a)(3) (authorizing revocation of a 
registration ``upon a finding that the registrant * * * has had his 
State license or registration suspended [or] revoked * * * and is no 
longer authorized by State law to engage in the * * * distribution [or] 
dispensing of controlled substances'').
    As found above, on March 22, 2011, the Arizona Board revoked 
Registrant's state osteopathic medicine license. Accordingly, 
Registrant is without authority to dispense controlled substances in 
the State where he practices medicine and holds his DEA registration, 
and is therefore no longer entitled to hold his registration. See 21 
U.S.C. 802 (21), 823(f), 824(a)(3). Therefore, pursuant to the 
authority granted under 21 U.S.C. 824(a)(3), his registration will be 
revoked.

The Public Interest Ground

    The Government further argues that Registrant's abuse of 
methamphetamine is an additional ground for revoking his registration 
because he has committed acts that render his registration inconsistent 
with the public interest. Request for Final Agency Action, at 3 (citing 
21 U.S.C. 824(a)(4)). I agree.
    Section 304(a) of the Controlled Substances Act provides that a 
``registration pursuant to section 823 of this title to * * * dispense 
a controlled substance * * * may be suspended or revoked by the 
Attorney General upon a finding that the registrant * * * has committed 
such acts as would render his registration under section 823 of this 
title inconsistent with the public interest as determined under such 
section.'' 21 U.S.C. 824(a)(4). With respect to a practitioner, the Act 
requires the consideration of the following factors in making the 
public interest determination:

    (1) The recommendation of the appropriate State licensing board 
or professional disciplinary authority.
    (2) The applicant's experience in dispensing * * * controlled 
substances.
    (3) The applicant's conviction record under Federal or State 
laws relating to the manufacture, distribution, or dispensing of 
controlled substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.

21 U.S.C. 823(f).
    The public interest 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 (DC Cir. 2005).
    In this matter, while I have considered all of the factors, I 
conclude that it is not necessary to make findings with respect to 
factors one \3\ through four. However, I conclude that factor five, 
which authorizes the Agency to consider ``other such conduct which may 
threaten public health and safety,'' 21 U.S.C. 823(f)(5), supports a 
finding that Respondent has committed acts which render his continued 
``registration inconsistent with the public interest.'' 21 U.S.C. 
824(a)(4).
---------------------------------------------------------------------------

    \3\ For the same reason that supports revocation under 21 U.S.C. 
824(a)(3), factor one would also support revocation.
---------------------------------------------------------------------------

    Under longstanding Agency precedent, factor five encompasses 
``wrongful acts relating to controlled substances committed by a 
registrant outside of his professional practice but which relate to 
controlled substances.'' David E. Trawick, 53 FR 5326, 5327 (1988). 
More recently, I explained that ``DEA has long held that a 
practitioner's self-abuse of a controlled substance is a relevant 
consideration under factor five and has done so even when there is no 
evidence that the registrant abused his prescription writing authority. 
Moreover, DEA has revoked registrations and/or denied applications for 
a registration even where there is no evidence that the practitioner 
committed acts involving unlawful distribution to others.'' Tony T. 
Bui, M.D., 75 FR 49979, 49989 (2010) (citations omitted.)
    As found above, in 2008, Registrant self-reported to the Arizona 
Board that he was beginning in-patient treatment for substance abuse. 
GX H, at 3. Moreover, on two subsequent occasions (February 25, 2009 
and July 27, 2010), Registrant provided biological specimens which 
tested positive for methamphetamine, in violation of his agreements 
with the Board. Of further significance, the Board found that 
Registrant's July 2010 test sample had a 90% concentration of an isomer 
which is the biologically active ingredient in methamphetamine which is 
sold on the street. Id. at 9.
    Thus, substantial evidence supports the conclusion that Registrant 
has

[[Page 66972]]

repeatedly engaged in the self-abuse of a Schedule II controlled 
substance, and done so notwithstanding the attempts by the Arizona 
Board to assist Registrant to rehabilitate himself. I therefore hold 
that Registrant has engaged in ``such other conduct which may threaten 
public health or safety,'' 21 U.S.C. 823(f)(5), and that he has 
committed acts which render his registration ``inconsistent with the 
public interest.'' Id. Sec.  824(a)(4). This conclusion provides a 
further reason to revoke Registrant's registration and to deny any 
pending applications.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration BG6908757, issued to Aaron Gloskowski, D.O., be, and it 
hereby is, revoked. I further order that any pending application of 
Aaron Gloskowski, D.O., to renew or modify his registration, be, and it 
hereby is, denied. This Order is effective immediately.

    Dated: October 7, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2011-28011 Filed 10-27-11; 8:45 am]
BILLING CODE 4410-09-P

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