Patrick K. Chau, M.D.; Decision and Order, 36003-36008 [2012-14653]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 77, Number 116 (Friday, June 15, 2012)]
[Notices]
[Pages 36003-36008]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14653]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Patrick K. Chau, M.D.; Decision and Order

    On August 8, 2011, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Patrick K. Chau, M.D. (Registrant), of Vancouver, 
Washington. The Show Cause Order proposed the revocation of 
Registrant's DEA Certificate of Registration BC1983659, which 
authorizes him to dispense controlled substances as a practitioner,

[[Page 36004]]

and the denial of any pending application to renew or modify his 
registration, on the ground that his ``continued registration is 
inconsistent with the public interest.'' GX 3, at 1 (citing 21 U.S.C. 
823(f) & 824(a)(4)).
    More specifically, the Show Cause Order alleged that between 
February 20 and March 27, 2009, Registrant had issued prescriptions for 
alprazolam, a schedule IV controlled substance, to two undercover 
officers, without a legitimate medical purpose and outside the usual 
course of professional practice, in violation of 21 CFR 1306.04(a) and 
Wash. Rev. Code Sec.  18.130.180(4). Id. at 1-2. The Show Cause Order 
further alleged that on October 15, 2009, the State of Washington's 
Medical Quality Assurance Commission issued an order prohibiting 
Registrant from prescribing controlled substances and that Registrant 
is therefore without authority to prescribe controlled substances in 
the State in which he is registered with DEA. Id. at 2. Finally, the 
Show Cause Order notified Registrant of his right to request a hearing 
on the allegations or to submit a written statement regarding the 
matters of fact and law raised in the Order in lieu of a hearing, the 
procedures for doing either, and the consequences for failing to do 
either. Id. (citing 21 CFR 1301.43(a), (c), (d), & (e)).
    As evidenced by the signed return receipt card, the Government 
accomplished service on or about August 11, 2011. GX 4. Since the date 
of service of the Show Cause Order, more than thirty days have now 
passed and neither Registrant, nor anyone purporting to represent him, 
has either filed a request for a hearing or submitted a written 
statement in lieu thereof. Accordingly, I find that Registrant has 
waived both his right to a hearing and his right to submit a written 
statement in lieu of a hearing. 21 CFR 1301.43(e). I therefore issue 
this Decision and Order based on relevant evidence contained in the 
Investigative Record submitted by the Government. I make the following 
findings.

Findings

    Registrant is the holder of DEA Certificate of Registration 
BC1983659, which authorizes him to dispense controlled substances in 
schedules II through V as a practitioner at the registered location of 
6816 NE Highway 99, Suite 108, Vancouver, Washington. GX 1. While this 
registration was due to expire on August 31, 2010, on August 30, 2010, 
Registrant submitted a renewal application. GX 2. Accordingly, I find 
that Registrant's registration has remained in effect pending the 
issuance of the Final Order in this matter. 5 U.S.C. 558(c).
    Registrant, who is a board-certified psychiatrist, is also the 
holder of a license to practice as a physician and surgeon issued by 
the State of Washington. GX 6, at 2. On October 1, 2009, Registrant 
entered into a Stipulated Findings of Fact, Conclusions of Law and 
Agreed Order with the State's Medical Quality Assurance Commission 
(hereinafter, MQAC or Commission); the MQAC accepted the Order on 
October 15, 2009. Id. at 24.
    The MQAC's Order contained extensive findings regarding 
Registrant's prescribing of controlled substances to numerous patients. 
See id. at 3-17. For example, the MQAC found that Registrant had 
``violated the standard of care in the following ways'' in treating 
Patient B, noting that:

    Patient B was on addicting doses of benzodiazepines and opioids 
when he started seeing [Registrant]. At that point, [Registrant] 
should have had Patient B detoxified rather than continue to support 
his treatment, and over time, increased the prescribed amounts of 
addictive medications.
    [Registrant] increased Patient B's already addictive and 
dangerous doses of opioids and benzodiazepines. In addition, there 
is no evidence of much, if any, resulting improvement to the 
patient's condition.
    [Registrant's] prescriptions of large amounts of opioids likely 
caused Patient B to become addicted to narcotics. [Registrant] 
failed to consider and try Patient B on non-addictive alternatives 
to treat his headaches.

Id. at 5-6. The MQAC thus found that ``[a]s a result, [Registrant] 
harmed, or created an unreasonable risk of harm, to Patient B.'' Id. at 
6.
    The MQAC further found that Registrant ``has engaged in a pattern 
of prescribing high doses and large amounts of addicting medication, 
particularly benzodiazepines, to new patients who claimed to need 
ongoing treatment at such doses, but who also provided rationales for 
transferring their care to [Registrant], such as that they recently 
moved from another state or part of this state, or that they changed or 
lost their insurance.'' Id. at 7. The Commission then found that in 
numerous instances Registrant ``did not obtain any records or otherwise 
verify [a patient's] treatment history.'' See id. at 7-13 (Patients D, 
E, F, G, H, I, J, K, L, M, N, O, P, Q, & R). Moreover, with respect to 
Patients D through R, the MQAC found that Registration violated the 
standard of care by:

    Failing to recognize that the patients were on addicting doses 
of medication and refer them to an appropriate detoxification 
facility.
    Repeatedly providing new patients with three-month supplies of 
high doses of addictive medications without planning to see the 
patients for three months.
    Ignoring possible drug-seeking and diversion behaviors, and not 
requesting medical records from other providers or otherwise 
substantiating the patients' reported treatment and prescription 
histories. As a result, [Registrant] placed these patients at an 
unreasonable risk of harm.

    Id. at 13.
    The MQAC catalogued additional violations by Registrant of the 
standard of care with respect to several of the patients. With respect 
to Patient K, the MQAC found that Registrant ``violated the standard of 
care * * * by prescribing two benzodiazepines, both at addicting 
doses.'' Id. Next, the MQAC found that Registrant ``violated the 
standard of care in prescribing OxyContin to Patient M and Norco to 
Patient N because he did not document that they suffered from current 
pain complaints.'' Id. at 14.
    With respect to Patient S, the MQAC found that he had told 
Registrant ``that his symptoms improved when he tried two milligrams of 
Xanax supplied by `other people.''' Id. Registrant ``prescribed a daily 
regimen of eight milligrams of Xanax, wrote for a three-month supply, 
and asked the patient to return in three months. The patient returned 
one month early * * * at which time [Registrant] increased the 
prescription to ten milligrams per day and again wrote for a three-
month supply.'' Id. The Commission also found that approximately two 
months later, ``Patient S told [Registrant] that he was leaving the 
area for a summer job in Alaska and that he needed a 90-day supply of 
Xanax to last him for that period. [Registrant] provided the requested 
prescription.'' Id.
    Regarding his prescribing to Patient S, the MQAC found that 
Registrant violated the standard of care, explaining that:

    He started the patient on an unduly high and addictive dose of 
Xanax instead of starting at a safer, lower dose and titrating up if 
warranted. He also disregarded signs that the patient was drug-
seeking and possibly diverting. In accepting the patient's claim 
that he needed a 90-day supply of Xanax because he was going to work 
in Alaska for the summer, [Registrant] accepted at face value a 
brief note to that effect that the patient provided. The note was 
purportedly written by another of [Registrant's] patients.

Id.

    Based on these and other findings, the MQAC concluded that 
Registrant had ``committed unprofessional conduct'' in violation of RCW 
18.130.180(4), (8)(a), and (9). Id. at 18. The Commission placed 
Registrant's medical license on probation and prohibited him from

[[Page 36005]]

prescribing controlled substances, explaining that it ``will not lift 
this restriction unless the Center for Personalized Education for 
Physicians in Denver, Colorado * * * determined that [Registrant] can 
prescribe safely and with reasonable skill and without posing an 
unreasonable risk of harm to the public.'' Id.
    On February 20, 2009, a DEA Special Agent (S/A) made an undercover 
visit to Registrant. During the visit, which was recorded, Registrant 
explained that he is a psychiatrist and asked the S/A if he was looking 
for psychiatric services and that his fee was $140, which the S/A paid 
in cash. GXs 8 & 9. The S/A told Registrant that he had a friend in 
Seattle who was giving him Xanax and that his girlfriend had also given 
him some of the drug. GX 9. Registrant asked the S/A to tell him about 
his symptoms; the SA replied that he had a friend who gave him a couple 
of pills, stated that he was really relaxed and ``just more relaxed 
after'' taking the drug, that ``I feel better after I take the pill,'' 
and ``I definitely feel better after than before.'' Id. Registrant than 
asked the S/A whether anyone in his family had anxiety; the S/A denied 
that anyone in his family had ``an anxiety problem.'' Id. Registrant 
then reviewed some type of agreement with the S/A, and after completing 
this, Registrant stated that ``my diagnosis for you is some sort of 
general anxiety problem.'' Id.
    However, at no point during the visit, did the S/A state that he 
felt anxious. Registrant nonetheless gave the S/A a prescription for 90 
tablets of Xanax 1mg. GX 10.
    The Government also submitted a recording of a second undercover 
visit, which was conducted on March 27, 2009 by a different S/A. In his 
affidavit, the S/A stated that he had paid $140 cash; that he told 
Registrant that he had been referred by the S/A, who had performed the 
previous visit; and that Registrant gave him a prescription for 73 
tablets of Xanax 1mg. GX 11, at 1-2; see also GX 13 (copy of Rx).
    During the visit, the S/A told Registrant that he had not seen a 
doctor in a long time, and after confirming that he lived in Seattle, 
the S/A denied having a doctor in Seattle, stating that he was 
``actually pretty healthy to be honest with you.'' After discussing the 
S/A's purported job, Registrant asked the S/A to ``tell me about what 
kind of symptoms you would like me to help you with?'' The S/A 
answered: ``Well actually * * * I'm not doing bad, I'm doing very 
good.'' Registrant replied: ``OK,'' and asked the S/A why he wanted to 
see him. The S/A explained he wanted to get some Xanax and when asked 
to explain why, stated that ``the only reason I can think of is it 
makes me feel good when I take it. Can't think of anything else to be 
honest with you.''
    Registrant then asked the SA if he had previously taken Xanax; the 
S/A replied that he had taken it about two years ago. Registrant asked 
the S/A why he had then taken Xanax; the S/A stated: ``the same reason 
really.'' After Registrant asked: ``You feel relaxed''?; the S/A said: 
``It makes me feel good,'' and that he had bought it on the street 
then, but that it was too expensive. After discussing the price the S/A 
had paid on the street, Registrant asked: ``Can you tell me the benefit 
when you taking it? Like when you're on it compared to when you're not 
on it? And the difference to justify the benefit, the reason you pay 
money to take it?'' The S/A answered: ``It just makes me feel good. I 
mean in general.''
    Registrant then asked if a doctor had ``ever formally 
prescribe[d]'' the drug; the S/A stated ``No, No, I'll be honest with 
you.'' Next, Registrant asked if the Xanax helped him sleep; the S/A 
denied having any problem sleeping. Registrant then asked: ``And in the 
way you feel good that means you're relaxed? Able to do your job 
better? Is that right?'' The SA responded: ``I don't know if I could 
say that. I'm trying to be honest with you. I'm not trying to lie to 
you.'' Registrant then told the SA to ``try to justify the reason you 
come to visit me and to get the medication and so there's a reason. It 
just feels good. If you don't take it, if you feel good also, that 
might not be really reasonable right?'' The S/A replied ``right,'' and 
Registrant continued, stating: ``So in order for you to pay that much 
money and to come all the way to see me you must have some reason you 
want to do so.'' The S/A stated: ``right, right, right. It just makes 
me feel better in general.'' Registrant remarked: ``General well-being. 
So I suppose it takes away some kind of a tense, some kind of anxiety 
feeling.'' The S/A replied: ``well if we've * * * if that. If we've 
gotta say that, yes we can say that if we've gotta say that, yes.''
    Registrant responded that ``anxiety is not like a panic that comes 
and goes and for some kind of anxiety that is pervasive always there, 
and that if the anxiety is being resolved and the people feel liberated 
from those feelings, that's how you feel better or general sense of 
well-being.'' The S/A replied: ``I mean if we have to say that, general 
well-being then you know, let's say that. I thank God I'm doing very 
good in everything, really, you know.'' Registrant then stated:

    So what I would do since there's not a very severe degree of 
symptom and may not be as drastic as other people I've had and 
there's also a considerable benefit like that you tell me that makes 
you come all the way. So what I would call a middle of the road 
approach, ok? Of course I believe you are not selling drugs either 
and not trying to take the medicine from me to go to the streets 
sell eighty bucks a pill. So I have to trust the best of you. You go 
to a lawyer, the lawyer have to trust you instead of think that 
you're bad. Otherwise, won't be a client relationship.

Continuing, Registrant said that in ``this good willing or good faith, 
I would give you a try, ok, a preliminary trial of medication,'' but 
that it wouldn't be ``what you get from the street but according to our 
standard of trial I will start you on a very preliminary dose.'' 
Registrant then explained his dosing regimen and that he would not give 
the S/A more than a one-month prescription for a patient that had not 
been receiving the medication on an ongoing basis from another doctor.

    Registrant further said that he was ``fighting the State of 
Washington over the controversial [sic] of prescribing Xanax and 
Klonopin because some people doesn't want to, some people says it's 
excess, but for me its justified for the patient's presentation. Except 
in your case, we are ambiguous, ambiguity. So I want the patient to use 
only one pharmacy.'' Registrant then told the S/A that he would have to 
use a local WalMart pharmacy and required him to sign an agreement for 
their ``mutual protection,'' which required that he use only one 
pharmacy, that he was not on methadone or heroin, that he would not 
divert or sell the controlled substance to others, and that he would 
not have more than one doctor prescribe the same class of controlled 
substances.
    Subsequently, in between small talk, Registrant asked the S/A 
whether he had ``any other physical illness'' and whether family 
members ``have any anxiety problem''; the S/A answered: ``No, they're 
doing great.'' Registrant then calculated the number of tablets he was 
prescribing per his dosing regimen and wrote out the prescription, 
which he then gave to the S/A.

Discussion

    Section 304(a) of the Controlled Substances Act (CSA) 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

[[Page 36006]]

section.'' 21 U.S.C. 824(a)(4). In making the public interest 
determination in the case of a practitioner, Congress directed that the 
following factors be considered:

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

21 U.S.C. 823(f).

    ``[T]hese factors are considered in the disjunctive.'' Robert A. 
Leslie, 68 FR 15227, 15230 (2003). I may rely on any one or a 
combination of factors and may give each factor the weight I deem 
appropriate in determining whether to revoke an existing registration 
or to deny an application. Id. Moreover, while I ``must consider each 
of these factors, [I] `need not make explicit findings as to each 
one.''' MacKay v. DEA, 664 F.3d 808, 816 (10th Cir. 2011) (quoting 
Volkman v. DEA, 567 F.3d 215, 222 (6th Cir. 2009)); see also Hoxie v. 
DEA, 419 F.3d 477, 482 (6th Cir. 2005) (citing Morall v. DEA, 412 F.3d 
165, 173-74 (DC Cir. 2005)).
    With respect to a practitioner's registration, the Government bears 
the burden of proving by substantial evidence that the continuation of 
a registration would be inconsistent with the public interest. Cf. 21 
CFR 1301.44(d).\1\ In this matter, I have considered all of the factors 
and conclude that the evidence with respect to factors one, two, and 
four supports a finding that Registrant's continued registration would 
be inconsistent with the public interest.
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    \1\ As found above, Registrant neither requested a hearing nor 
submitted a written statement explaining his position on the matters 
of fact and law asserted. By contrast, in a contested case, where 
the Government satisfies its prima facie burden, as for example, by 
showing that a registrant has committed acts which are inconsistent 
with the public interest, the burden then shifts to the registrant 
to demonstrate why he can be entrusted with a registration. Medicine 
Shoppe-Jonesborough, 73 FR 363, 380 (2008).
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Factor One--The Recommendation of the State Licensing Board

    As found above, on October 15, 2009, the MQAC adopted the Agreed 
Order which Registrant has previously entered into, pursuant to which 
Registrant is prohibited from prescribing controlled substances under 
Washington law. See Rev. Code Wash. Sec.  18.130.160(3) (authorizing a 
``[r]estriction or limitation of [license's holder's] practice''); id. 
Sec.  18.130.180(9) (providing that ``[f]ailure to comply with an order 
issued by the disciplining authority or a stipulation for informal 
disposition entered into with the disciplining authority'' is 
unprofessional conduct).
    The CSA defines ``the term `practitioner' [to] mean [] a * * * 
physician * * * or other person 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.'' 21 U.S.C. 802(21). Consistent 
with this definition, Congress, in setting the requirements for 
obtaining a practitioner's registration, provided that ``[t]he Attorney 
General shall register practitioners * * * 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).
    Accordingly, because one cannot obtain a practitioner's 
registration unless one holds authority under state law to dispense 
controlled substances, and because where a registered practitioner's 
state authority has been revoked or suspended, the practitioner no 
longer meets the statutory definition of a practitioner, DEA has 
repeatedly held that the possession of authority to dispense controlled 
substances under the laws of the State in which a practitioner engages 
in professional practice is a fundamental condition for both obtaining 
and maintaining a practitioner's registration.\2\ See, e.g., Calvin 
Ramsey, 76 FR 20034, 20036 (2011); Dominick A. Ricci, 58 FR 51104, 
51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988). Because the CSA 
expressly conditions the holding of a practitioner's registration on 
the practitioner's being ``authorized to dispense controlled substances 
under the laws of the State in which he practices,'' id., and also 
limits the definition of the term ``practitioner'' to a physician who 
is licensed, registered or otherwise permitted to dispense a controlled 
substance in the course of professional practice, id. Sec.  802(21), 
and Registrant, by virtue of the Agreed Order, is no longer authorized 
under his license to dispense a controlled substance, this factor 
provides reason alone to revoke his registration.
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    \2\ To effectuate this requirement, in 21 U.S.C. 843(a)(3), 
Congress also granted the Attorney General authority to revoke a 
registration ``upon a finding'' that a registrant ``has had his 
State license or registration suspended, revoked, or denied by 
competent State authority and is no longer authorized by State law 
to engage in the * * * dispensing of controlled substances.''
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Factors Two and Four--Registrant's Experience in Dispensing Controlled 
Substances and Record of Compliance With Applicable Laws Related to 
Controlled Substances

The MQAC Findings

    As found above, the MQAC found that Registrant had repeatedly 
violated the standard of care and committed unprofessional conduct in 
prescribing controlled substances to numerous patients. More 
specifically, the MQAC found that Registrant had committed 
``[i]ncompetence, negligence, or malpractice which results in injury to 
a patient or which creates an unreasonable risk that a patient may be 
harmed.'' GX 6, at 18 (citing Rev. Code Wash. Sec.  18.130.180(4)). The 
MQAC also found that Registrant committed unprofessional conduct by 
``[f]ail[ing] to cooperate with the disciplinary authority,'' as well 
as by ``[f]ail[ing] to comply with an order issued by the disciplinary 
authority,'' id. (citing Rev. Code Wash. Sec.  18.130.180(8) & (9)). 
However, the MQAC did not find that Registrant had prescribed 
controlled substances ``other than for legitimate or therapeutic 
purpose'' or that he diverted controlled substances, in violation of 
Rev. Code Wash. Sec.  18.130.180(6)).\3\ Id.
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    \3\ Under a longstanding DEA regulation, a prescription for a 
controlled substance is not ``effective'' unless it is ``issued for 
a legitimate medical purpose by an individual practitioner acting in 
the usual course of his professional practice.'' 21 CFR 1306.04(a). 
This regulation further provides that ``[a]n order purporting to be 
a prescription issued not in the usual course of professional 
treatment * * * is not a prescription within the meaning and intent 
of [21 U.S.C. 829] and * * * the person issuing it, shall be subject 
to the penalties provided for violations of the provisions of law 
relating to controlled substances.'' Id.
     As the Supreme Court has explained, ``the prescription 
requirement * * * ensures patients use controlled substances under 
the supervision of a doctor so as to prevent addiction and 
recreational abuse. As a corollary, [it] also bars doctors from 
peddling to patients who crave the drugs for those prohibited 
uses.'' Gonzales v. Oregon, 546 U.S. 243, 274 (2006) (citing United 
States v. Moore, 423 U.S. 122, 135 (1975)).
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    As I have previously acknowledged,\4\ numerous federal courts of 
appeal have held ``the offense of unlawful

[[Page 36007]]

distribution requires proof that the practitioner's conduct went 
`beyond the bounds of any legitimate medical practice, including that 
which would constitute civil negligence.''' Laurence T. McKinney, 73 FR 
43260, 43266 (quoting United States v. McIver, 470 F.3d 550, 559 (4th 
Cir. 2006)). See also United States v. Feingold, 454 F.3d 1001, 1010 
(9th Cir. 2006) (The Supreme Court in United States v. Moore, 423 U.S. 
122 (1975), ``based its decision not merely on the fact that the doctor 
had committed malpractice, or even intentional malpractice, but rather 
on the fact that his actions completely betrayed any semblance of 
legitimate medical treatment.'').
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    \4\ I also assume, without deciding, that the facts as found by 
the MQAC in the Agreed Order do not establish a violation of 21 CFR 
1306.04(a). But see George Mathew, M.D., 75 FR 66138, 66146 (2010) 
(rejecting MQAC's finding that physician had not diverted controlled 
substances when ``[s]everal Federal courts of appeals have held that 
conduct similar to what the MQAC found [the physician] to have 
engaged in by prescribing over the Internet violates the 
prescription requirement of Federal law and constitutes an unlawful 
distribution under 21 U.S.C. 841(a)''), pet. for rev. denied, Mathew 
v. DEA, No. 10-73480, slip op. at 5 (9th Cir. Mar. 16, 2012).
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    However, as the Agency has explained in multiple cases, ``the 
Agency's authority to deny an application [and] to revoke an existing 
registration * * * is not limited to those instances in which a 
practitioner intentionally diverts a controlled substance.'' Bienvenido 
Tan, 76 FR 17673, 17689 (2011) (citing Paul J. Caragine, Jr., 63 FR 
51592, 51601 (1998)); see also Dewey C. MacKay, 75 FR 49956, 49974 
(2010), pet. for rev. denied 664 F.3d 808 (10th Cir. 2011). As Caragine 
explained: ``[j]ust because misconduct is unintentional, innocent, or 
devoid of improper motive, [it] does not preclude revocation or denial. 
Careless or negligent handling of controlled substances creates the 
opportunity for diversion and [can] justify'' the revocation of an 
existing registration or the denial of an application for a 
registration. 63 FR at 51601.
    ``Accordingly, under the public interest standard, DEA has 
authority to consider those prescribing practices of a physician, 
which, while not rising to the level of intentional or knowing 
misconduct, nonetheless create a substantial risk of diversion.'' 
MacKay, 75 FR at 49974. Likewise, ``[a] practitioner who ignores the 
warning signs that [his] patients are either personally abusing or 
diverting controlled substances commits `acts inconsistent with the 
public interest,' 21 U.S.C. 824(a)(4), even if [he] is merely gullible 
or na[iuml]ve.'' Jayam Krishna-Iyer, 74 FR 459, 460 n.3 (2009).
    Here, even if the MQAC's findings do not establish that Registrant 
engaged in intentional or knowing misconduct, they nonetheless 
establish numerous instances in which he recklessly prescribed 
controlled substances and that his prescribing practices created a 
substantial risk of diversion and abuse. More specifically, the MQAC 
found that Patient B was already on addictive doses of benzodiazepines 
and opioids when he/she started seeing Registrant and that he should 
have referred B to detoxification. Yet Registrant increased B's doses, 
failed to try non-addictive alternatives, and as a result, B likely 
became addicted. GX 6, at 5-6.
    The MQAC further identified numerous other practices by Registrant 
which created a substantial risk of diversion and abuse. For example, 
the MQAC found that he ``engaged in a pattern of prescribing high doses 
and large amounts of addicting medication, particularly 
benzodiazepines, to new patients who claimed to need ongoing treatment 
at such doses,'' and who represented that they had either moved or 
changed/lost their insurance, and yet Registrant ``did not obtain any 
records or otherwise verify [the patient's] treatment history.'' Id. at 
7. Indeed, the MQAC identified fifteen patients who obtained controlled 
substances from Registrant in this manner. Id. at 7-13. With respect to 
each of these patients, the MQAC found that: (1) Registrant failed to 
recognize that they were on addictive doses and refer them for 
detoxification; (2) he repeatedly prescribed three-month supplies of 
high doses of controlled substances ``without planning to see the 
patients for three months''; (3) he ignored ``drug-seeking and 
diversion behaviors''; and (4) he did not request the patient's medical 
records from other providers and otherwise failed to ``substantiat[e] 
the patients' reported treatment and prescription histories.'' Id.
    With respect to still another patient (K), the MQAC found that he 
``violated the standard of care * * * by prescribing two 
benzodiazepines, both at addicting doses.'' Id. at 13. In addition, the 
MQAC found that Registrant prescribed OxyContin (a schedule II 
controlled substance) to Patient M and Norco (hydrocodone, a schedule 
III controlled substances) to Patient N but ``did not document that 
they suffered from current pain complaints.'' \5\ Id. at 14.
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    \5\ No explanation was provided by the MQAC as to why these two 
instances do not constitute violations of Rev. Code Wash. Sec.  
18.130.180(6).
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    Finally, the MQAC found that Patient S had told Registrant that he 
had obtained Xanax from non-medical sources and yet started him at ``an 
unduly high and addictive dose'' of eight milligrams a day and wrote 
him a prescription for a three-month supply. Id. Yet, Patient S 
returned one month early and at this visit, Registrant wrote him 
another prescription for a three-month supply and increased his daily 
dose to ten milligrams. Id. Moreover, two months later, Patient S 
returned and said that he was going to take a summer job in Alaska and 
needed a 90-day supply, and presented a note to this effect. Id. 
Registrant issued the requested prescription to Patient S. The MQAC 
found that Registrant had accepted at face value Patient S's 
representation and that Registrant ``disregarded signs that [Patient S] 
was drug-seeking and possibly diverting.'' Id. at 14.
    As the forgoing demonstrates, even if Respondent did not 
intentionally divert controlled substances to any of the patients 
identified in the MQAC's Order, the Order identified numerous instances 
in which Respondent recklessly prescribed controlled substances to 
persons who were likely engaged in either self-abuse or diversion. 
Respondent's repeated failure to obtain the medical records for his 
patients, as well as to otherwise verify their treatment histories and 
other claims, created a substantial risk of diversion and abuse. 
MacKay, 75 FR at 49974.
    So too, Respondent's practice of ``[r]epeatedly providing new 
patients with three-month supplies of high doses of addictive 
medications without planning to see the patients for three months,'' 
id. at 13, created a substantial risk that the patients were either 
diverting the drugs or abusing them. As the Supreme Court explained in 
Gonzales, one of the core purposes of the CSA's ``prescription 
requirement [is to] ensure[] [that] patients use controlled substances 
under the supervision of a doctor so as to prevent addiction and 
recreational abuse.'' 546 U.S. at 274 (other citation omitted). The 
MQAC's Order makes clear that Respondent failed to properly monitor 
numerous patients to ensure that they were not abusing or diverting the 
drugs he prescribed to them.
    Accordingly, I hold that the MQAC's findings alone support findings 
under factors two and four that Registrant has committed acts which 
render his registration ``inconsistent with the public interest.'' 21 
U.S.C. 824(a)(4). See also Tan 76 FR at 17689; Krishna-Iyer, 74 FR at 
460 n.3; Caragine, 63 FR at 51601. I further hold that this finding 
supports the revocation of Registrant's registration.

The DEA Undercover Visits

    As found above, in February and March 2009, two S/As made 
undercover visits to Registrant and at each visit, obtained Xanax 
prescriptions. At the first visit, the S/A told Registrant that he had 
gotten Xanax from both a friend and his girlfriend, and when Registrant 
asked him to describe his symptoms, the

[[Page 36008]]

S/A reiterated that a friend had given him a couple of pills and that 
he was just more relaxed after taking the drug, and that he felt better 
after taking the drug. Significantly, at no point during the meeting 
did the S/A relate that he had anxiety, and denied that anyone in his 
family had anxiety.
    Registrant then stated that he was diagnosing the S/A with some 
sort of general anxiety problem. However, given that the S/A stated 
that he was getting the pills from non-medical sources, and that when 
asked to relate his symptoms, simply stated that the pills just made 
him relax and that he felt better after taking the drug, I conclude 
that substantial evidence supports a finding that Registrant lacked a 
legitimate medical purpose and violated 21 CFR 1306.04(a) when he 
prescribed Xanax to the first S/A.\6\
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    \6\ While I have considered the audio recordings submitted in 
this matter, in future cases such evidence must be accompanied by a 
transcript.
---------------------------------------------------------------------------

    Likewise, when asked to relate what symptoms he wanted Registrant 
to help him with, the second S/A stated that he wasn't doing badly but 
was doing ``very good'' and that he actually wanted to get some Xanax. 
When asked to explain why, the S/A explained that the drug made him 
feel good when he took it. Subsequently, the second S/A made clear that 
he had gotten Xanax off the street and that the drug had never been 
prescribed to him. Upon further questioning by Registrant, the second 
S/A again said that the drug made him feel good and denied that he had 
any problem sleeping. Moreover, when asked whether taking Xanax helped 
him relax and do his job better, the S/A said that he did not know that 
he ``could say that'' and later added that the drug just made him 
``feel better in general.'' Finally, after Registrant explained that 
the S/A's statement suggested that taking the drug took ``away some 
kind of a tense, some kind of anxiety feeling,'' the S/A replied that 
``if we have to say that, yes we can say that,'' but that he was 
``doing very good in everything.'' Subsequently, Registrant stated that 
the S/A's presentation of his reason for taking Xanax was ambiguous.
    However, I conclude that there was nothing ambiguous in the S/A's 
presentation because he never once acknowledged being anxious, and 
repeatedly denied having symptoms or problems that would provide a 
medical justification for prescribing the drug. Indeed, whenever 
Registrant questioned him, the S/A response was that he took Xanax 
because it just made him feel better. Accordingly, I conclude that 
substantial evidence supports a finding that Registrant lacked a 
legitimate medical purpose and violated 21 CFR 1306.04(a) when he 
prescribed Xanax to the second S/A.
    Registrant's prescribing of Xanax to the two S/As thus provides 
additional support for my conclusion that he has committed acts which 
render his registration ``inconsistent with the public interest.'' 21 
U.S.C. 824(a)(4). However, as explained above, the findings of the MQAC 
are, by themselves, more than adequate to reach this conclusion and to 
support the revocation of his registration.\7\
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    \7\ It is acknowledged that there is no evidence that Registrant 
has been convicted of an offense falling within factor three. 
However, this is not dispositive of the public interest inquiry. See 
MacKay, 664 F.3d at 817-18 (quoting Dewey C. MacKay, 75 FR 49956, 
49973 (2010)). I also deem it unnecessary to make any findings under 
factor five.
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Sanction

    Having found that Registrant lacks state authority to dispense 
controlled substances, and that he has committed numerous acts which 
render his registration inconsistent with the public interest, I 
conclude that the Government has made out a prima facie case for 
revocation. Because Registrant failed to request a hearing or to submit 
a written statement in lieu of a hearing, and has thus offered no 
evidence to rebut the Government's prima facie case, I will order that 
his registration be revoked and that any pending application be denied.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a)(4), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration BC1983659, issued to Patrick K. Chau, M.D., be, and it 
hereby is, revoked. I further order that any pending application of 
Patrick K. Chau, M.D., to renew or modify his registration, be, and it 
hereby is, denied. This Order is effective July 16, 2012.

    Dated: June 5, 2012.
Michele M. Leonhart,
Administrator.
[FR Doc. 2012-14653 Filed 6-14-12; 8:45 am]
BILLING CODE 4410-09-P