Mark William Andrew Holder, M.D.; Decision and Order, 71617-71647 [2015-28928]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 80, Number 220 (Monday, November 16, 2015)]
[Notices]
[Pages 71617-71647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28928]



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Vol. 80

Monday,

No. 220

November 16, 2015

Part IV





Department of Justice





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Drug Enforcement Administration





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 Mark William Andrew Holder, M.D.; Decision and Order; Notice

Federal Register / Vol. 80, No. 220 / Monday, November 16, 2015 / 
Notices

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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 14-13]


Mark William Andrew Holder, M.D.; Decision and Order

    On October 9, 2014, Administrative Law Judge Christopher B. McNeil 
(hereinafter, ALJ) issued the attached Recommended Decision 
(hereinafter, cited as R.D.). On October 31, 2014, one day after the 
due date, see 21 CFR 1316.66, Respondent filed Exceptions to the 
Decision.
    According to Respondent's counsel, on the day on which his 
Exceptions were due, her word processing program shut down and while 
she was able to find a recovered document, ``it was not the most recent 
version and did not include the final arguments or footnotes.'' Resp. 
Mot. for the Administrator to Accept and Review the Updated Version of 
Respondent's Exceptions to the ALJ's Recommendations, at 1. 
Respondent's counsel represents that she immediately contacted the 
ALJ's law clerk to request an extension; according to Respondent's 
counsel, she spoke with the ALJ who stated that she could either submit 
the document ``as is'' or ``send a motion to the [A]dministrator 
requesting an extension.'' Id. at 1-2.
    Respondent's counsel chose to file his Exceptions ``as is.'' Id. at 
2. However, according to Respondent's counsel, the document contained 
``many errors and . . . was incomplete.'' Id. Respondent's counsel also 
represented that on the day before the Exceptions were due, she had to 
deal with a family medical emergency. Id. Accordingly, on November 5, 
2015, Respondent's counsel filed the above-referenced motion along with 
a revised version of his Exceptions. Id. at 1. Having considered 
Respondent's motion, I find that good cause exists to excuse the 
untimely filing of his Exceptions and consider them in my review of the 
record.
    Having considered the record in its entirety,\1\ I adopt the ALJ's 
findings of facts and conclusions of law except as discussed throughout 
this decision. I agree with the ALJ's findings that Respondent (1) 
unlawfully prescribed controlled substances (Percocet and Xanax) to 
S.S., see R.D. at 59; (2) unlawfully obtained and self-administered 
Adderall, see id. at 59; (3) provided inconsistent and misleading 
accounts of his drug use to DEA Investigators, see id. at 61-62, 65-66; 
(4) materially falsified his application for a DEA registration; see 
id. at 62-63; and (5) failed to unequivocally acknowledge his 
misconduct in issuing unlawful prescriptions to S.S., see id. at 41-42, 
as well as in materially falsifying his DEA application, id. at 66; and 
(6) failed to produce sufficient evidence of remediation. Id. at 66-67. 
Accordingly, I adopt the ALJ's ultimate conclusions of law that 
Respondent has materially falsified his application for a DEA 
registration and committed acts which render his registration 
inconsistent with the public interest, and that he has failed to rebut 
the Government's prima facie case. See id. at 67. I therefore adopt the 
ALJ's recommendation that I deny Respondent's application. A discussion 
of Respondent's Exceptions follows.
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    \1\ On November 3, 2014 (which was after the record had closed), 
Respondent filed a request for me to review an additional document, 
this being a chemical assessment performed on October 9, 2013 by Ms. 
Joan Hasper. Resp. Req. for Administrator to Review an Additional 
Document. Respondent argues that I should review this document 
because ``[t]here is no way that [he] can prove that he gave [the 
DI] a copy of the HPSP file without access to the Government's file 
which would document receipt of the HPSP file,'' and that ``it is 
necessary in the interest of justice to review the additional 
assessment which [the DI] testified that she did in fact receive.'' 
Id. at 3. Given that Ms. Hasper did not perform her assessments as 
part of the HPSP program, it is not clear why this document 
impeaches the DI's testimony that Respondent refused to provide 
releases for the records of his treatment which were maintained by 
the Florida PRN and the HPSP programs.
     However, Respondent furthers argues that ``this document shows 
that [the DI] received diagnosis, prognosis, and treatment 
[information], it further shows that Dr. Holder provided the 
necessary release which allowed [the DI] to meet with Ms. Hasper and 
discuss the process of the evaluation and its contents.'' Id. 
Respondent then acknowledges that ``this document probably should 
have been included in the evidence introduced at the hearing.'' Id.
     I agree. This document does not constitute newly discovered 
evidence and was obviously available to Respondent at the time of 
the hearing. I therefore decline to consider it. See Richard A. 
Herbert, 76 FR 53942, 53944 (2011); see also ICC v. Brotherhood of 
Locomotive Engineers, 482 U.S. 270, 286 (1987).
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Respondent's Exceptions

    Respondent takes exception to three of the ALJ's enumerated factual 
findings (numbers 12, 13, and 14) asserting that they are not supported 
by the record. He also takes exception to five of the ALJ's conclusions 
of law (numbers 2, 5, 6, 9, and 13).

Exception to Finding of Fact 12

    In Finding of Fact number 12, the ALJ found:

    In the course of investigating the circumstances surrounding 
state medical board action pertaining to Respondent's medical 
licenses in Florida and Minnesota, DEA Diversion Investigator 
Virginia McKenna met with or spoke with Respondent on several 
occasions between July 19, 2012 and August 23, 2013. Throughout this 
period, Investigator McKenna made repeated requests for Respondent 
to provide the DEA with copies of monitoring and treatment records 
reflecting action by the medical boards in Florida and Minnesota. 
Initially, and for a period extending more than six months, 
Respondent deferred complying with these requests while assuring 
Investigator McKenna he would comply. By April 2013, when the 
records still had not been produced, Investigator McKenna presented 
Respondent with release forms that would authorize the DEA to 
receive copies of these reports. Respondent refused to sign the 
releases, and advised Investigator McKenna that he would not permit 
the DEA access to the PRN report from Florida, and gave her what 
appears to be an incomplete set of records reflecting the report 
from Minnesota.

R.D. at 61.

    Respondent asserts that this finding is not supported by the 
record, because the Diversion Investigator acknowledged in her 
testimony that she had received duplicate copies of a physician's 
report prior to obtaining some 82 pages of documents from Respondent, 
and that ``[i]n order to receive a duplicate copy she must have 
received a previous copy of the report.'' Exceptions at 2. Respondent 
argues that the DI's statement that she did not receive `` `much, if 
anything' is contradicted by the fact that she acknowledged receipt of 
82 pages of information,'' which included ``copies of notes [prepared 
by his case manager at the Minnesota Health Professionals Services 
Program (HPSP)], the quarterly reports[,] as well as a toxicology 
report provided to'' the DI. Id. at 2-3.
    Respondent also asserts that he provided the results of a chemical 
assessment, which included the diagnosis, prognosis and recommended 
treatment, by Ms. Hasper (who he saw outside of the HPSP program), as 
well as reports from Dr. Albert, a psychologist he saw some fifteen 
times as part of the HPSP program. Id. at 3 (citing Tr. 481). 
Respondent then argues that the DI ``intentionally mislead [sic] the 
court when she stated that she did not receive any documentation of 
diagnosis, treatment and prognosis'' and this calls ``into question the 
credibility of the rest of her testimony.'' Id. at 4.
    While Respondent acknowledges that he did not provide his Florida 
PRN file to the DI, he argues that he ``provide[d] a copy of his HPSP 
information which reflected the most recent analysis of his treatment, 
diagnosis and prognosis'' to the DI and that she did not ``articulate 
what information she was missing from

[[Page 71619]]

the HPSP file.'' Id. at 4. He then asserts that the DI, ``[a]fter 
having [his] HPSP file for months, . . . returned to his place of work 
to request that he sign a release.'' Id. Respondent asserts that he 
``requested his entire file from HPSP and provided that file to [the 
DI] in January, four months before her visit to his office.'' Id. He 
then argues that ``[t]here was no reason for him to believe that HPSP 
records beyond what he provided existed or that signing the release 
would have provided any additional information than what he had already 
provided to'' the DI and that ``[t]here was also no reason to believe 
that providing PRN information would lead to an outcome.'' Id.
    I do not find Respondent's Exception to establish sufficient reason 
to reject the ALJ's finding, which was based largely on his assessment 
of the credibility of the DI and Respondent. As for Respondent's 
contention that because the DI testified that she received duplicate 
copies of a physician's report, she must have received the report 
previously, I do not agree. The DI testified that notwithstanding 
numerous requests she made of Respondent to provide his HPSP records, 
including on July 19, 2012 and August 25, 2012, as well as on an 
unspecified date in November 2012, he did not provide the aforesaid 82 
pages, which he represented as being the HPSP records, until the 
January 4, 2013 meeting. Tr. 464, 469-70, 472-73. Notably, before 
Government counsel even broached the subject of the January 4, 2013 
meeting the DI had with Respondent, Government Counsel asked the DI: 
``and did you get the records?'' to which the DI answered: ``I did 
not.'' Id. at 473. Moreover, Respondent did not cross-examine the DI 
regarding her testimony that she received ``a duplicate copy'' of a 
quarterly report by Dr. Albert. Id. at 488-98. Indeed, the DI's 
testimony does not suggest that she had previously received the 
documents but that she received duplicate copies of various documents 
when on January 4, 2013, Respondent provided these documents to her. 
Id. at 474-75 (testimony of DI that after noting ``three or four pages 
of notes from'' his case manager, ``the remainder of the information 
were [sic] duplicate copies of his agreement to work with HPSP, faxes 
going back and forth showing people submitting quarterly reports but 
the quarterly reports didn't have a lot of detail. There was a 
duplicate copy from Dr. Albert on a quarterly report and the third page 
of that was from a second quarterly report which was almost identical 
to the first one and then there were a whole bunch of releases that he 
signed for different entities to receive some of these records'').\2\
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    \2\ As the 82 pages Respondent provided the DI were not 
submitted as a discrete exhibit (some of the documents may have been 
submitted as other exhibits), I have no basis to conclude whether 
the records were complete. However, the quarterly reports submitted 
as Respondent's Exhibit M (which covered the quarters ending on 
April 15, 2012 and July 15, 2012) were essentially three page 
documents, one page being the ``Participant Update,'' the second 
page being the ``Treatment Provider Report Form,'' and the third 
page being a letter from the Executive Director of Physicians 
Serving Physicians attesting to his attendance at various meetings. 
RX M. As for the Treatment Provider Report Forms, they list the 
primary and secondary treatment foci, Respondent's symptoms, and 
then provide a ``diagnostic impression,'' a ``Treatment Plan,'' 
``Client/Patient Insight,'' and ``Medications.'' See RX M. While it 
is certainly true that these forms listed Dr. Albert's diagnosis and 
recommended treatment, given the brevity of the notes, which did not 
include a discussion of Respondent's history (including his history 
of substance abuse) and Dr. Albert's initial evaluation of him, it 
is understandable that the DI did not believe that Respondent had 
provided his complete HPSP file.
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    As for Respondent's contention that in January 2013, he provided 
his complete HPSP file, the evidence nonetheless establishes that in 
August 2013,\3\ the DI, who still believed that Respondent had not 
provided the full file (indeed, he had not provided any material from 
the Florida PRN program), went to his place of employment and requested 
that he provide releases so that the DI could directly obtain his 
records from the HPSP and PRN programs. Tr. 478. Respondent again 
asserted that he had provided the DI with ``everything.'' Id. at 479. 
However, even after the DI told Respondent that she ``needed to obtain 
[the records] for [her]self in order to be sure that [she] had 
everything,'' Respondent declined to execute the releases saying that 
he wanted to talk to his attorney. Id. However, when the DI called him 
ten days later and asked whether ``he was willing to sign the 
releases,'' Respondent stated ``that he had already given me all of 
HPSP's records, that PRN's records were full of inaccuracies, and that 
it would be inappropriate for me to have that information and to use it 
at this point.'' Id.
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    \3\ While the record establishes that in April 2013, the DI had 
a further conversation with Respondent about obtaining his records, 
including those from the Florida PRN program (which she ``hadn't 
received anything about''), the record does not establish the 
precise scope of this conversation. Tr. 478.
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    It is true that during this phone call, Respondent told the DI that 
he was going to undergo a chemical assessment by Ms. Hasper, which he 
did outside of the HSPS, as he had already completed the program. Id. 
at 480-81. Respondent also apparently agreed to release the contents of 
his file with Dr. Hasper to the DI. Id. at 480. However, upon reviewing 
the file, the DI found that it contained notes from Dr. Albert (the 
psychologist who treated him under the HPSP program) for Respondent's 
first two visits (when generally a history and evaluation are 
completed). Id. at 481. According to the DI, she had not previously 
seen these notes in the documents Respondent submitted. Id. at 482.
    Thus, contrary to Respondent's Exception that the DI did not 
``articulate what she was missing from the HPSP file,'' Exceptions at 
4, the DI did identify information that was likely in his HPSP file.\4\ 
And even if this information was not in the file, I find that the rest 
of the ALJ's factual finding is supported by a preponderance of the 
evidence. I therefore reject this exception.
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    \4\ As the DI testified, the notes showed that Respondent told 
Dr. Albert that he had ``used Adderall one time in residency and a 
total of perhaps five times outside of residency.'' Tr. 482.
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Exception to Finding of Fact 13

    In Finding of Fact Number 13, the ALJ found:

    In meetings and conversations conducted by DEA Diversion 
Investigator McKenna . . . Henderson, and . . . Capello, Respondent 
gave evasive and conflicting answers to questions regarding his 
history of drug abuse, his use and abuse of marijuana and Adderall, 
the sources supplying him with controlled substances, his ability to 
recall the events immediately prior to and after the June 13, 2008 
crash, the nature and severity of injuries he and his passenger 
sustained due to the crash, his use of controlled substances while 
working at MD Now, and his reasons for answering registration 
application Question Three in the negative. He provided similarly 
evasive and conflicting answers to questions presented to him by the 
medical boards in Florida and Minnesota, particularly minimizing the 
severity of injuries he and his passenger sustained in the June 13, 
2008 crash. Respondent continued providing evasive, inconsistent, 
and deflecting responses during the evidentiary hearing he requested 
upon his receipt of the pending DEA Order to Show Cause.

R.D. at 61-62.

    In excepting to this finding, Respondent takes issue with the ALJ's 
credibility findings with respect to multiple witnesses for the 
Government. These include: (1) The DI whose testimony is discussed 
above; (2) S.S., who testified, inter alia, that Respondent wrote a 
fraudulent prescription for Adderall in S.S.'s name, which S.S. filled, 
and after taking some of the pills, then provided to Respondent, as 
well as that he provided other drugs such as cocaine and marijuana to 
Respondent; (3) a

[[Page 71620]]

paramedic who responded to the scene after Respondent crashed his 
vehicle; and (4) N.P., a passenger in Respondent's vehicle, who was 
injured in the crash. Exceptions at 5-14.
    As for the DI, Respondent raises a further challenge to her 
credibility. He notes that during her testimony regarding a meeting (on 
July 19, 2012) with Respondent and his attorney, during which the 
allegation that he materially falsified Question Three on his 
application was raised, the DI testified that:

    He answered on the application no. When I asked him about that, 
he said that he didn't understand the question, that he wasn't 
intending to lie, at which time Mr. Harbison interjected, why would 
he lie when he knew it was public record, but I had no, I don't know 
why he would or wouldn't do such a thing, so I showed him the 
application. And then he said that he didn't read the question 
thoroughly, and that's when I showed him a sample application that I 
had.

    Tr. 463. According to Respondent, the DI later admitted that 
Respondent's ``application was not presented to him at the meeting.'' 
Exceptions at 6. Respondent based this on the following colloquy during 
cross examination:

    Resp. Counsel: And concerning the application, when Mr. Harbison 
first requested the application, wasn't he told that you all were 
not able to provide him an application because it was done on the 
internet?
    DI: Yes, ma'am. That was my error. I spoke with . . . the 
section chief for Registration, and I misunderstood what he said. 
And I relayed that, my misunderstanding. And that's when they went 
further and were able to produce it.

Id. at 495.

    I do not find this testimony sufficient to support Respondent's 
contention that the DI gave false testimony in the proceeding. The DI's 
testimony is simply insufficient to establish that at the July 2012 
meeting, she showed the actual application filed by Respondent as 
opposed to the sample application she referred to in the next sentence. 
Notably, the DI's testimony that ``so I showed him the application'' 
does not specify that it was Respondent's actual application which she 
showed him, and her continuing testimony supports the inference that it 
was only a sample application.\5\ Accordingly, I reject Respondent's 
challenge to the DI's credibility.
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    \5\ Indeed, if the DI had Respondent's actual application 
available to her at the time of the meeting, there would have been 
no need to then show him a sample application, as the actual 
application would have included the same question. Also, regarding 
her testimony at Tr. 463, it is not unusual for a witness to offer 
an answer, which she subsequently clarifies while reflecting on the 
question.
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    Respondent further argues that the ALJ gave inappropriate weight to 
the testimony of S.S., who, in Respondent's words, ``was willing to 
make many exaggerations/false statements against [him] for a get out of 
jail card.'' Exception at 7. Respondent contends that S.S. gave 
``internally conflicting testimony that he provided cocaine 
`sporadically' and marijuana `relatively regularly to Dr. Holder,' '' 
and ``he used these drugs with Dr. Holder.'' Id. at 7-8. According to 
Respondent, this is so because at the time of his drug use with 
Respondent, ``he was on probation'' and subject to drug testing, and 
yet testified that he did not fail any drug tests when he was living in 
Palm Beach County. Id. at 8. Respondent argues that this establishes 
that S.S.'s testimony is not credible because ``how could he use 
marijuana and cocaine with [Respondent] and evidence of this drug use 
never reveal itself on any of his drug tests?'' Id.
    While S.S. testified that he was on probation during the same time-
period in which he testified that he ``used cocaine and marijuana 
with'' Respondent, id. at 198, there is no evidence in the record as to 
how frequently S.S., who had been on probation for more than two years 
at this point, id. at 212, was subject to drug testing during this 
period. Moreover, evidence in the record establishes that following the 
accident, the Palm Beach County Sheriff's office obtained a blood 
specimen from Respondent which tested positive for Delta-9-Carboxy THC, 
see GX 13, a metabolite of THC, thus establishing that Respondent had 
used marijuana.
    S.S. further testified that in June 2008, he was smoking marijuana 
with Respondent at the latter's residence, when Respondent told him 
that he needed a favor--this being for S.S. to come by the office and 
fill a prescription for Adderall, which S.S. was to then return to 
Respondent. Tr. 208. On June 11, 2008, Respondent either called or 
texted S.S., who went to Respondent's clinic, picked up a prescription 
for 60 tablets of Adderall 30 mg which was written by Respondent and 
listed S.S. as the patient. Id. at 208-09. S.S. then went to a 
Walgreens pharmacy located next to the clinic, filled the prescription, 
and after taking some pills for himself, gave the rest of the pills to 
Respondent. Id. at 209-11; see also GX 6.
    To be sure, as Respondent argues, S.S. gave conflicting testimony 
as to how many of the Adderall pills he took from the prescription, 
initially stating that he took one or two pills, which was his ``best 
recollection,'' before adding that ``[i]t could have been three or 
four.'' Tr. 213-14. While Respondent argues that S.S. was ``willing to 
say just about anything,'' Exceptions at 9, the evidence shows that 
following the accident, the police found in Respondent's car the 
prescription vial bearing S.S.'s name as the patient and listing the 
contents as amphetamine 30 mg, along with 41 pink tablets. GX 11, at 1. 
Moreover, the blood specimen obtained from Respondent following the 
accident showed that he had ingested amphetamines. GXs 13, 14. Thus, I 
find no reason to reject the ALJ's finding that S.S. gave credible 
testimony.\6\
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    \6\ As for the discrepancy between the Palm Beach County EMS 
report which documented that Respondent had a seizure and the 
testimony of the paramedic that he did not witness Respondent having 
a seizure upon arriving at the accident scene or while transporting 
him to the hospital and that the paramedics ``were just following 
our protocols [by administering Valium] in case he ha[d] a 
history,'' Tr. 258, it is unclear why this fact is material in 
assessing the ALJ's finding that Respondent gave inconsistent 
testimony regarding the circumstances surrounding the accident. 
However, even if it is material, I do not find adequate 
justification to reject the ALJ's credibility determination as to 
the paramedic's testimony.
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    As for N.P.'s testimony, which primarily focused on the scope of 
the injuries she suffered in the accident, whether she had only minor 
injuries as Respondent suggests or more serious injuries to include a 
dislocated elbow, shattered cervical disc, a broken back, and 
neurologic damage, is of only nominal relevance in resolving whether 
granting Respondent's application is consistent with the public 
interest. 21 U.S.C. 823(f). In any event, given that the Government 
disclosed to Respondent that it intended to elicit testimony from N.P. 
regarding the injuries she sustained and that the ALJ found her 
testimony credible, in the absence of medical records refuting her 
testimony, I find no reason to reject the ALJ's credibility 
determination.
    Finally, Respondent takes exception to the ALJ's factual finding 
that ``[h]e provided similarly evasive and conflicting answers to 
questions presented to him by the medical boards in Florida and 
Minnesota, particularly minimizing the severity of injuries he and his 
passenger sustained in the June 13, 2008 crash.'' R.D. at 62. As 
evidence for his finding that Respondent provided evasive and 
conflicting answers to the questions presented by the Florida Board, 
the ALJ did not cite any evidence in the record.\7\ Moreover,

[[Page 71621]]

other than Respondent's Petition for Reinstatement, the Record does not 
include any other evidence establishing what statements Respondent made 
to the Florida Board. Therefore, I do not find this portion of the 
ALJ's finding to be supported by substantial evidence.
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    \7\ Later in his decision, the ALJ quoted the following 
statement in Respondent's Petition for Reinstatement:
    The related criminal matter has been referred for pre-trial 
intervention and Respondent is currently complying with the 
requirements for successfully completing the Circuit Court's 
requirements to avoid prosecution for those criminal charges. These 
requirements include successful completion of the Comprehensive 
Alcoholism Rehabilitation Program (CARP) as ordered by the Court. 
This is a program providing a continuum of care to individuals 
affected by alcoholism, drug dependency and co-occurring disorders 
and PRN is monitoring Respondent's participation in the CARP.
    R.D. at 37 (quoting GX 30, at 12). While the record establishes 
that Respondent did not complete the program because, in his words, 
the program was taking too long, there is no evidence that 
Respondent was not ``currently complying'' with the Drug Court 
program at the time of his petition. The ALJ did not cite this 
passage as support for his conclusion that Respondent gave evasive 
and conflicting answers to the questions of the Florida Board, but 
rather, only as support for his conclusion that although Respondent 
``participated in monitoring by PRN and the CARP program . . . [he] 
has effectively withheld from the Administrator records showing his 
treatment in Florida for these disorders.'' R.D. at 37.
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    There is, however, substantial evidence that Respondent provided 
false information on his Minnesota application. Respondent provided a 
yes answer with the notation to ``Please View Addendum'' to questions 
regarding: (1) Whether his license to practice medicine in any state 
had been revoked, suspended, restricted or conditioned; (2) whether he 
had been notified of any investigation by any state board regarding the 
practice of medicine; (3) whether any criminal charges had ever been 
filed against him, regardless of whether they had been expunged; and 
(4) whether he had ever been charged with DWI or DUI. GX 34, at 6.
    In the addendum, Respondent wrote that: ``I had a seizure while 
driving on June 1, 2008. A collision with a sign post followed. Both 
the passenger and I were in seatbelts and only suffered minor injuries 
form [sic] airbag deployment.'' Id. at 9. Respondent stated that while 
he had ``walked out of the car,'' he refused both a neck collar and to 
lie on a stretcher, after which he was restrained by the police. Id. 
Respondent then asserted that ``[d]uring this restraining process I was 
tazed 14 times, and received multiple blows to my face, head and back'' 
and that he was diagnosed with a ``traumatic head injury (bleeding in 
three distinct lobes of my brain), multiple contusions in lungs 
bilaterally, 4 fractured bones in [the] maxillary region of face, 
complete nasal fracture with deviation of the septum, facial 
lacerations, lacerations in all extremities, right sides [sic] rotator 
cuff injury and respiratory failure.'' Id.
    Respondent represented to the Board that ``[n]o controlled 
substances were found in my possession or in [the] vehicle (via police 
report).'' Id. And he further asserted that ``[n]o charges were filed'' 
until approximately three months after the incident when he was charged 
with ``possession of a controlled substance without a prescription 
(Adderall), fraud to acquire a controlled substance, and driving under 
the influence (sub therapeutic levels of Adderall in blood).'' Id.
    The evidence also shows that the Minnesota application's question 
number 12 specifically included charges of disorderly conduct and 
required that he disclose any charge regardless of whether it had had 
been expunged or removed from his record by executive pardon. GX 34, at 
6. In his testimony, Respondent admitted that that he had been charged 
with disorderly conduct on another occasion. Tr. 151-52. Yet he failed 
to disclose this charge on the Minnesota application. GX 34, at 9. 
Respondent explained the omission, asserting that while his answer to 
the application question ``may not have been complete . . . it was 
truthful,'' and that he was truthful about ``the charges that I thought 
were actually most important'' and that ``the charges were dismissed.'' 
Tr. 151-52.
    Respondent did acknowledge that the Florida Board of Medicine 
suspended his license, but that it had been reinstated. GX 34, at 10. 
He then wrote: ``Admittedly, I did use Adderall as used for ADHD 
without a prescription while working long hours. I acquired from a 
colleague who worked in the Urgent Care where I worked.'' Id.
    As the record shows, several of these statements were false. These 
include Respondent's statement that no controlled substances were found 
in his possession or vehicle,\8\ as well as that he acquired the 
Adderall from a colleague.\9\
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    \8\ As for Respondent's assertion that this was per the police 
report, the Offense Report filed by the Sheriff's Office included 
the Supplemental Report of a crash scene investigator. See GX 46. In 
his report, the Investigator documented that another Investigator 
had conducted an inventory search of Respondent's car and found the 
aforementioned vial of 41 tablets of Adderall bearing a label which 
listed the patient as S.S. Id. at 6. So too, a further supplemental 
report prepared by a Detective stated that he learned ``during the 
at[-]scene investigation,'' that the vial of 41 Adderall tablets was 
found in Respondent's car and that it listed S.S. as the patient and 
had been prescribed by Respondent. RX D, at 37 (page 36 of the 
report).
    \9\ The record includes the results of a blood test which shows 
that Respondent's level of amphetamine was 76 ng/ml. GX 14. While 
there is also testimony by the DI that she read the deposition of 
the toxicologist who certified the test results taken in the 
criminal case brought against Respondent, the deposition was not 
entered into evidence and the DI's testimony does not establish what 
constitutes a therapeutic level. Tr. 468-69. Of note, the DI 
testified that Respondent initially claimed that he had taken only 
one Adderall pill on the night of the accident. Id. at 469. The DI 
testified that based on her reading of the deposition, it was her 
``understanding that a therapeutic level is usually obtained from 
the regular maintenance on a medication'' and that taking one ``pill 
on the night of the crash would not be sufficient to provide a 
therapeutic level.'' Id. When, in a subsequent interview, the DI 
raised the issue, Respondent stated that he ``might have taken two 
that night.'' Id.
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    After the Minnesota Board's Licensure Committee denied his 
application, see GX 35, Respondent sought reconsideration of its 
decision. In his letter to the Board, Respondent's counsel again 
asserted that ``[o]ne of the possible reasons that the prosecution 
decided to dismiss the case was that the original police report showed 
that there were no drugs or alcohol found in the vehicle'' and ``[t]his 
obviously negated the charges of DWI and illegal possession of drugs.'' 
GX 37, at 2 (citing Respondent's Affidavit, at ] 5). Respondent's 
lawyer also asserted that ``[t]he prosecution's dismissal also means 
that it did not have enough confidence in the charges even to pursue 
the claim that Dr. Holder somehow had a trace of marijuana in his 
blood.'' Id. Still later in his letter, Respondent's counsel wrote that 
``[h]e certainly acknowledges his bad judgment in obtaining the 
Adderall tablets, but that was an isolated instance of a questionable 
thought process.'' Id. at 5.
    In support of his request for reconsideration by the licensure 
committee, Respondent submitted an affidavit. Therein, Respondent again 
asserted that ``[t]he original police report showed that no alcohol or 
illegal drugs were found in my vehicle.'' Id. at 11 (] 5). He further 
asserted that he ``definitely did not use or have marijuana as charged 
in the criminal case'' and ``ha[d] no idea where that claim comes 
from.'' Id.at 12 (] 8). While Respondent admitted to having used 
Adderall the day before the accident, he maintained that this was 
``because of a stupid error of judgment'' and that he had obtained the 
drug ``inappropriately from a friend.'' Id. Respondent then asserted 
that:

     I obtained the Adderall only for the purpose of helping me stay 
alert during a period when I was working hard for many hours. I 
definitely do not have a ``drug problem,'' and have never had a 
history of anything even close to that. I realize and agree that 
what I did in obtaining the Adderall was wrong. I had never done 
that before and will never do it again.


[[Page 71622]]


Id. at 12 (] 10).

    However, even if it is true that the ``original'' police report did 
not state that illegal drugs were found in his vehicle, several of the 
supplemental police reports establish that the Adderall vial was found 
in his car. Thus, his statement is nonetheless misleading. Moreover, 
his statement that he did not use marijuana is refuted by the blood 
test results. As for his statement as to how he obtained the Adderall, 
while S.S. may have arguably been ``a friend,'' the statement is 
nonetheless misleading in that Respondent attempted to minimize his 
culpability as he actually obtained the drug by writing a fraudulent 
prescription in S.S.'s name. Finally, Respondent's assertion that he 
did not have a drug problem is amply refuted by the record, which 
includes the blood test results following the accident, see GXs 13 & 
14, the testimony of S.S. regarding Respondent's use of marijuana and 
cocaine, see Tr. 196, 198, as well as the evidence showing that while 
he was subject to the Florida Drug Court program, he tested positive 
for opiates, missed a drug test, and provided a diluted sample. See GX 
18, 19, 20. Thus, there is substantial evidence that Respondent made 
multiple false statements to the Minnesota Board.
    In his decision, the ALJ expressed the view ``that Respondent's 
misrepresentations to these boards calls into question whether the 
actions taken by these regulators would be the same had they been told 
the same things [Respondent] reported as true during this 
administrative process.'' R.D. at 48. Continuing, the ALJ explained 
that ``[t]he Government's identification of the nature of these 
misrepresentations accurately reflects the many ways in which the two 
state medical boards were acting with less than a complete and accurate 
record due to [Respondent's] duplicity.'' Id.
    Respondent argues, however, that the Minnesota Board ``had complete 
information'' and that the Minnesota Board ``conducted [a] hearing[ ] 
were [sic] [he] was vigorously questioned about his explanation of 
events.'' \10\ Exceptions at 14-15. Respondent argues that while he was 
granted a restricted license by the Minnesota Board, ``[a] review of 
those restrictions suggest that they were in response to improprieties 
with documenting medical visits or charting and drug use.'' Id. at 15. 
Respondent thus contends that ``[t]he fact that [he] was granted a 
conditional license does not indicate that he was dishonest in these 
meetings, it simply indicates that he communicated his improprieties to 
both boards and they were willing to give him a chance to prove his 
trustworthiness.'' Id.
---------------------------------------------------------------------------

    \10\ While Respondent argues that both the Florida and Minnesota 
Boards ``had complete information'' and ``conducted hearings'' 
during which he ``was vigorously questioned about his explanation of 
events,'' because I do not find that there is substantial evidence 
to support the ALJ's finding with respect to the Florida Board, I 
address this argument only with respect to the Minnesota Board 
proceeding.
---------------------------------------------------------------------------

    The record thus clearly establishes that Respondent made multiple 
false statements in both his applications to the Minnesota Board and in 
his affidavit in support of his request for reconsideration. The record 
also clearly establishes that on October 20, 2011, Respondent appeared 
before the Board's ``Licensure Committee and discussed his use of 
controlled substances that had not been prescribed for him'' and that 
``[t]he Committee decided to recommend that Applicant be granted 
licensure with conditions and restrictions based upon a report of 
chemical abuse and diversion of controlled substances for his own 
use.'' GX 39, at 4.
    The evidence also includes the minutes of the Licensure Committee 
meeting. See GX 52. However, the minutes are marked as confidential, 
and in any event, do not offer any detail as to what representations 
Respondent made to the Board. Id. Moreover, there is no verbatim record 
of the proceeding and the Government did not call as a witness any 
person (other than Respondent) who either observed or participated in 
the proceeding and who could have testified as to the representations 
made by Respondent.\11\ While the Government questioned Respondent 
about his appearance before the Committee and what it had asked him 
about, the Government did not ask Respondent whether he had made the 
same false statements and failed to disclose various facts to the 
Committee as he had in his prior submissions to the Board.\12\ Tr. 153-
54. The record of this proceeding thus does not establish whether 
Respondent made additional false statements when he appeared before the 
Minnesota Board's Licensure Committee.
---------------------------------------------------------------------------

    \11\ According to a letter from the Board's Complaint Review 
Unit to the DI regarding a subpoena duces tecum which sought ``all 
records, memorandums, notes of Board Members, and audio or video 
recordings of [Respondent's] appearance'' before the Licensure 
Committee, ``Committee meetings are not audio or video-recorded.'' 
GX 52.
    \12\ During the colloquy, Respondent stated the Committee ``had 
a lot of questions,'' but when asked by the Government what the 
Committee had asked about, he initially answered ``I don't know'' 
before stating: ``I mean, they were asking me about incidences of 
the same [as] was described here and much of what was talking about, 
about the issues that happened in Florida. Etcetera. So forth.'' Tr. 
153-54.
---------------------------------------------------------------------------

    Finally, Respondent takes exception to the ALJ's adverse 
credibility finding with respect to his testimony. He maintains, that 
``given his limitations in memory, [he] has made every effort to be 
upfront and honest about his improprieties.'' Exceptions at 9. He 
argues that ``[o]rdinarily, it would be difficult to remember specific 
details of occurrences that occurred over six years ago'' and that he 
``is not only impacted by the `normal memory loss' from the passing of 
time, he experienced a severe brain injury.'' Id. at 10. Respondent 
points to the testimony of a neurologist who treated him after the 
accident that he suffered ```post-traumatic amnesia,' where he was in a 
state of confusion and not able to form new memory.'' Id. (quoting Tr. 
510, 515). He further argues that he ``is trying to understand what 
happened to him'' and that ``[g]iven his prior experiences with law 
enforcement he does not necessarily trust law enforcement's explanation 
of this event'' and ``does not believe that all of his injuries were 
caused by the accident and he has never wavered from this belief.'' 
Exceptions at 10.
    However, Respondent's neurologist testified only that the injury 
affected his ability ``to form new memory'' and that it only ``lasted 
maybe up to, even up to when he left the rehabilitation center.'' Tr. 
510. Respondent's neurologist further explained that:

    [W]ith the extent of the injury he suffered, I would expect that 
he would have trouble recalling events even shortly after, and even 
a while after, because of his problem with what we call encoding. 
When someone says something to you, particularly when it comes 
through what we call short-term memory, there is a spot it goes [to] 
on your brain that allows you to retain it. In his case, he didn't 
have the ability to use that spot on his brain.

Id. at 515.

    Still later, Respondent's neurologist testified that ``there's a 
condition'' that is ``very common in people with traumatic brain injury 
called confabulation.'' Id. at 518. He then explained that ``what 
happens is'' that a person ``pull[s] information from different parts 
of the brain in a disorganized manner, but the patient attempts to 
organize it in a way that makes sense to them, but to other people may 
not be factual.'' Id. at 519.
    While this testimony may establish that Respondent had issues with 
his short-term memory, ultimately, it does not persuade me that 
Respondent's numerous false statements can be explained by his brain 
injury rather than his intent to deceive the Agency's Investigators, 
the ALJ, and this Office.

[[Page 71623]]

Respondent made the false statements to the DIs four years after the 
accident, and he made the false statements in this proceeding six years 
after the accident. At no point, however, did the neurologist offer 
testimony to support the conclusion that Respondent would still be 
suffering from memory loss and the inability to piece together accurate 
information years after the accident.
    Moreover, even if Respondent's brain injury accounts for the 
disparity between his testimony and the testimony of the other 
witnesses (and the various exhibits) regarding the accident, the scope 
of both his and N.P.'s injuries, and the cause of his extensive 
injuries, these issues are of only tangential relevance in assessing 
whether granting his application would be ``consistent with the public 
interest.'' 21 U.S.C. 823(f). What is relevant is that Respondent 
materially falsified his application, made false statements to the 
Agency's Investigators who investigated the application, and gave false 
testimony in this proceeding.
    For example, during the investigation, Respondent provided multiple 
accounts as to how many Adderall tablets he had taken before the crash, 
initially telling a DI that he took only one tablet the day before the 
crash (on July 19, 2012). Tr. 465. However, upon being confronted by 
the DI during a phone call (on August 25, 2012) that one pill would not 
provide a therapeutic level, Respondent then asserted that he might 
have taken two pills. Id. at 469. And yet during a subsequent phone 
conversation (on June 3, 2013) with another Investigator, he then 
claimed that he took ``between four and six dosage units[,] but more 
than likely it was five.'' Id. at 328.
    Likewise, when asked during the July 19, 2012 interview why the 
police found the Adderall in his car, Respondent asserted that he had 
no knowledge as to why the drugs were in his car and asserted that the 
police had planted them. Id. at 461. Still later, in the January 4, 
2013 interview, Respondent again claimed that ``[h]e did not know where 
the pill bottle came from,'' and while he admitted to having ``used 
Adderall on a few different occasions,'' he claimed that ``he obtained 
it from a colleague.'' Id. at 475.
    Moreover, when asked at this interview about the Adderall 
prescription issued in the name of S.S., Respondent initially said that 
he had met with S.S. but did not document the prescription in S.S.'s 
medical record ``because it had already been discussed.'' Id. at 476-
77. Later in the conversation, Respondent then claimed that because 
``he had been in a coma'' he did not recall issuing the prescription, 
only to subsequently revert to his original story that he wrote the 
prescription but did not do an exam or chart the prescription because 
it ``was already in the prior record.'' Id. at 477.
    In the July 19, 2012 interview, Respondent also denied having 
smoked marijuana, claiming that the blood test result was a false 
positive. Id. at 461-62. Also, during a November 2012 phone 
conversation, a DI asked Respondent if he had completed the Florida 
Drug Court Program. Id. at 471. Respondent initially ``said that he had 
completed the program and the charges were dropped.'' Id. at 472. 
However, when confronted by the DI that he had not completed the 
program, Respondent admitted that ``he withdrew from the program 
because it was taking too long.'' Id.
    During the hearing, Respondent testified that the Adderall 
prescription he wrote (which listed S.S. as the patient but was 
actually issued to obtain the drugs for his own use) was a refill of a 
prescription S.S. usually got. R.D. at 28 (quoting Tr. 95). Moreover, 
while in his testimony Respondent admitted to using Adderall on three 
or four occasions during the period in which he was working at MD Now 
(an urgent care clinic), he claimed that he got the drug from a 
colleague at the clinic, who was a physician's assistant (PA). Tr. 114. 
He also later testified that ``took no more than four pills . . . when 
I worked at MD Now,'' and after asserting that this was four pills in 
total, he then testified that he never took more than one pill at a 
time.\13\ Id. at 128. While Respondent testified that the PA's first 
name was William, he maintained that he did not remember William's last 
name. Id. at 114. Moreover, when asked if he had ever gotten Adderall 
from anyone other than William, Respondent answered: ``No. Except for 
when I was in residency.'' Id. at 116-17.
---------------------------------------------------------------------------

    \13\ As found above, during interviews with DEA Investigators, 
Respondent provided three different answers when asked how many 
Adderall pills he took on the night he crashed his car.
---------------------------------------------------------------------------

    Regarding his marijuana use, Respondent admitted that he had used 
marijuana in college and ``on occasion on vacation.'' Id. at 129. When 
asked to explain the positive test for THC, Respondent claimed it was a 
false positive and asserted that he had not used marijuana in the 
period before the accident because he had worked ``twelve days . . . in 
a row'' and that there was ``no time'' to do so. Id. at 131. When then 
asked how many times he had used marijuana in 2008, Respondent 
testified that he could not remember, and when asked from whom he got 
his marijuana, answered: ``I have no idea.'' Id.\14\
---------------------------------------------------------------------------

    \14\ As for the drug test results during the Florida Drug Court 
matter, Respondent asserted that his positive test for opiates was 
caused by an antibiotic which ``cross react[s] with opiate 
derivatives.'' Tr. 135. The State Judge apparently did not agree, as 
he/she ordered Respondent to write a 500 word essay ``on honesty.'' 
GX 18. As for the diluted drug test, Respondent testified that 
because he ``didn't have a car'' and had to walk ``approximately six 
miles'' in ``Florida's hot sun,'' ``I might have drank too much 
water before I started on my journey.'' Tr. 136. As for the drug 
test he missed, Respondent testified that he ``forgot to call for 
one day and I missed that urine.'' Id. While this may be, the State 
Judge did not find this to be a persuasive excuse and sent him to 
jail for one day. GX 19.
---------------------------------------------------------------------------

    Still later, when testifying on his own behalf, Respondent 
testified that while there are ``a lot of things that I'm very unproud 
of . . . I cannot remember diverting any medications with S.S. I cannot 
remember and I honestly cannot remember how the medication got into the 
car, got into my car, but I do admit completely to using Adderall 
without prescriptions.'' Id. at 590-91.
    Contrary to his contention, the record amply establishes that 
Respondent ``has not made every effort to be upfront and honest about 
his improprieties.'' Exceptions at 9. I thus find Respondent's 
Exception is well taken only with respect to the ALJ's finding that 
``[h]e provided similarly evasive and conflicting answers to questions 
presented to him by the'' Florida Medical Board, and only to the extent 
the ALJ's finding suggests that he gave ``evasive and conflicting 
answers to questions presented to him by the'' Minnesota's Boards 
Licensure Committee during his appearance before the Committee.\15\
---------------------------------------------------------------------------

    \15\ It is also acknowledged that Respondent asserted that he 
had a seizure the day before the hearing. To the extent Respondent's 
argument is that his numerous false statements during this 
proceeding should be excused because the seizure impacted his 
recollection of the various events, Exceptions at 23, I reject it as 
the evidence shows that his false testimony at the hearing was 
generally consistent with other false statements he made to the DIs, 
as well as on his Minnesota application and in the affidavit he 
submitted in support of his request for reconsideration. Notably, 
Respondent does not claim that he had seizures before his various 
interactions with the DIs and before he submitted his application 
and prepared his affidavit.
---------------------------------------------------------------------------

Exception to Finding of Fact #14

    In his Finding of Fact Number 14, the ALJ discussed Respondent's 
evidence of remediation. While the ALJ acknowledged that Respondent 
successfully completed one year of monitoring under the Minnesota 
Health Professionals Services Program, that he produced letters of 
support from patients and professional colleagues, and testified that 
he had changed his lifestyle, learned from his experiences,

[[Page 71624]]

gotten married and had a daughter, the ALJ ultimately found that 
Respondent had not presented sufficient ``evidence of remediation to 
overcome the Government's prima facie case.'' R.D. at 62.
    As for his reasoning, the ALJ explained that he ``question[ned] the 
weight that can be attributed to this evidence,'' noting that the 
monitoring program imposed by the Minnesota Board ``was based on 
Respondent's material misrepresentation of the nature of the injuries 
he and his passenger sustained in the June 2008 crash, and his failure 
to disclose the extent and nature of his history of drug abuse.'' Id. 
As support for his finding, the ALJ also explained that while the 
Florida Board ``ordered Respondent to participate in monitoring and a 
five-year period of probation, which Respondent failed to comply with, 
[he] surrender[ed] his medical license in that state in order to avoid 
these remedial requirements.'' Id.
    With respect to the reasons given by ALJ as to why he gave less 
weight to the Minnesota Board's Order, Respondent argues that the Order 
``specifically states that `. . . Respondent was licensed by the board 
pursuant to a Stipulation . . . based upon his unprofessional conduct, 
diversion of drugs for his own use, and disciplinary action taken 
against his license in another state or jurisdiction.' '' Exceptions at 
16. As explained previously, while the record establishes that 
Respondent made false statements to the Minnesota Board and failed to 
disclose other information in both his application and the affidavit he 
submitted in support of his request for reconsideration, the record 
does not establish whether he made the same false statements, as well 
as withheld material information, when he appeared before the Licensure 
Committee to discuss his unprofessional conduct and diversion of drugs 
for his own use. Of note, while once the Government established its 
prima facie case, Respondent bore the burden of production on the issue 
of whether he had engaged in sufficient remedial measures, the 
Government retained the burden of proof throughout this proceeding. 
Thus, because there is no evidence in the record as to what statements 
Respondent made before the Licensure Committee, the ALJ's conclusion 
that Respondent's compliance with the Minnesota Board's Order is not 
entitled to weight cannot be sustained on the basis that he failed to 
fully and truthfully disclose the nature of his drug abuse and 
misconduct at the Licensure Committee hearing.\16\
---------------------------------------------------------------------------

    \16\ The Application (GX 34) states that the ``[f]ailure to 
answer all questions completely and accurately, omission or 
falsification of material facts . . . may be cause for denial of 
your application, or disciplinary action if you are subsequently 
licensed by the Board.'' GX 34, at 1. The Recommended Decision does 
not, however, cite any authority from Minnesota which discusses the 
materiality standard employed by the State.
---------------------------------------------------------------------------

    Respondent also takes exception to the ALJ's finding that ``the 
record establishes that Respondent surrender[ed] his [Florida] medical 
license . . . in order to avoid the[ ] remedial requirements'' imposed 
by the Florida Board. Exceptions at 17. While I agree with Respondent 
that this finding is not supported by substantial evidence, ultimately 
this finding is of no consequence, because Respondent had the burden of 
production on the issue of whether he has undertaken sufficient 
remedial measures to demonstrate that he can be entrusted with a new 
registration. See Medicine Shoppe Jonesborough, 73 FR 364, 387 (2008) 
(quoting Samuel S. Jackson, 72 FR 23848, 23853 (2007)). The fact 
remains that less than three months after the Florida Board placed him 
on probation, Respondent withdrew from the practice of medicine in 
Florida and did not complete the probation ordered by the Board. 
Regardless of the reason he left the State, I agree with the ALJ that 
Respondent's interaction with the Florida Board does not support a 
finding that he has produced sufficient evidence of remediation to 
rebut the Government's prima facie case.
    In Finding of Fact number 14, the ALJ did not rely on Respondent's 
failure to provide the DI with a release for his HPSP file as one of 
the reasons he discounted the weight to be given to his compliance with 
the HPSP. However, the ALJ did decline to consider the testimony of 
Respondent's case manager as to his ``progress in the HPSP'' because it 
was unclear whether the Government had ever been provided with a 
complete record of his treatment. R.D. at 24 (citing 21 CFR 1301.15 
\17\). Respondent takes exception to the ALJ's reasoning, arguing that 
while he ``did not provide a release . . . he did provide the necessary 
documents,'' and that other evidence in the record, namely the 
Minnesota Board's Order of Unconditional License (GX 40), establishes 
that he ``complied with the Minnesota Medical Board['s] conditions [as] 
well as the terms and conditions of the HPSP monitoring [p]lan.'' Id. 
at 17.
---------------------------------------------------------------------------

    \17\ This regulation provides that:
    [t]he Administrator may require an applicant to submit such 
documents or written statements of fact relevant to the application 
as he/she deems necessary to determine whether the application 
should be granted. The failure of the applicant to provide such 
documents or statements within a reasonable time after being 
requested to do so shall be deemed to be a waiver by the applicant 
of an opportunity to present such documents or facts for 
consideration by the Administrator in granting or denying the 
application.
    21 CFR 1301.15.
---------------------------------------------------------------------------

    The Order of Unconditional License does constitute some evidence of 
Respondent's having undertaken remedial measures. It is also 
acknowledged that Respondent submitted into evidence various records 
regarding his treatment with the HPSP. While in his testimony 
Respondent maintained that he had provided the Agency with the entirety 
of his HPSP file, even if he had never made a misrepresentation to the 
Agency, the Investigators were under no obligation to take him at his 
word that he had provided the entire file to them given his history of 
abusing controlled substances. As for the records Respondent submitted 
into evidence, the DI's testimony supports a finding that this is not a 
complete set of records as it does not include the treatment notes for 
his first two visits with his psychologist. Tr. 481-82. Absent 
Respondent's consent to the disclosure of his complete HPSP file, there 
is no way to assess the adequacy of his remedial measures, as it is 
unclear what he disclosed to those who evaluated him and whether he 
disclosed the full extent of his substance abuse to those providers who 
created his treatment program.\18\ I thus reject Respondent's exception 
to this factual finding.
---------------------------------------------------------------------------

    \18\ While it may appear that this is inconsistent with the 
discussion of the Government's obligation to show that Respondent 
continued to make the same false statements and failed to disclose 
material information when he appeared before the Licensure 
Committee, the difference is that the Government may have had some 
means of developing evidence as to the statements he made and did 
not make when he appeared before the Committee. Indeed, the 
Government could have questioned Respondent on these issues. 
However, because the Government repeatedly asked Respondent to 
provide the complete file, as well as to sign a release so that the 
Government could obtain the information directly from the HPSP, I 
agree with the ALJ's ruling declining to consider the testimony of 
his HPSP case manager regarding his compliance with the HPSP 
program. R.D. 24-25 (citing 21 CFR 1301.15). Indeed, absent 
provision of the compete file, it is unclear how the Government 
could have effectively cross-examined his case manager.
    Finally, Respondent provided copies of the releases he had given 
to the credentialing departments of various insurers, and a local 
hospital, allowing them to obtain limited information from the HPSP. 
See RXs I, J, K, and L. It is not clear what this proves, and in any 
event, given the Agency's responsibility to ensure that granting 
Respondent's application would be consistent with the public 
interest, 21 U.S.C. 823(f), the Agency was entitled to his complete 
file.

---------------------------------------------------------------------------

[[Page 71625]]

Exception to the ALJ's Conclusion of Law #2

    The ALJ found that the record establishes that Respondent 
materially falsified his application for a DEA registration because he 
denied that his medical license had been suspended or restricted and 
knew this to be a false answer. R.D. at 63. Respondent takes exception 
to this finding, asserting that he ``did not intent [sic] to provide a 
false response'' and ``that any false information was due to the fact 
that he did not read the question correctly.'' Exceptions at 19. 
Continuing, Respondent argues that ``[i]t would be stupid of [him] to 
lie about public information and he is not a stupid person.'' Id.
    The evidence shows that on March 7, 2012, Respondent submitted an 
application for a DEA registration on which he was required to answer 
four questions with either a ``yes'' or ``no.'' GX 2, at 1. Question 
Three asked: ``Has the applicant ever surrendered (for cause) or had a 
state professional license or controlled substance registration 
revoked, suspended, denied, restricted or placed on probation, or is 
any such action pending?'' GX 2, at 3. Respondent answered ``N'' for 
no, notwithstanding that: (1) On January 26, 2009, the Florida 
Department of Health had ordered the emergency suspension of his 
medical license, GX 26, at 10-11; (2) on June 22, 2009, the Florida 
Board of Medicine had ordered that Respondent's medical license ``be 
SUSPENDED until such time as he personally appear[ed] before the Board 
and demonstrate[d] the ability to practice medicine with appropriate 
skill and safety,'' GX 29, at 1-3; (3) on December 17, 2010, the 
Florida Board of Medicine granted his petition for reinstatement while 
placing him on probation for five years, GX 30, at 2-9; and (4) on 
November 12, 2011, the Minnesota Board of Medicine had grant him a 
medical license subject to various restrictions and conditions. GX 39. 
Thus, the evidence clearly shows that Respondent's answer was false.
    At the hearing, Respondent did not testify regarding the 
circumstances surrounding his completion of the application. However, a 
DI testified that during an interview, Respondent asserted that ``he 
didn't read the question thoroughly'' and that when she provided a copy 
of an application to him, ``[h]e went through it and underlined the 
first word, surrender, and stopped.'' Tr. 463. After the DI underlined 
the rest of the application, she asked Respondent if when he sat for 
his Boards, he ``just gloss[ed] over the questions or . . . read them 
thoroughly in order to answer them?'' Id. at 464. Respondent ``said 
that he didn't gloss over'' the questions. Id.
    I reject Respondent's contention that he did not intentionally 
mislead the Agency. Notably, the question is neither lengthy nor 
ambiguous, and thus, I do not believe his contention that he did not 
thoroughly read the question. Indeed, even if he had glossed over the 
question, it is not credible that he did not note that the question 
asked about other types of state board disciplinary actions, and 
certainly Respondent was no stranger to state board disciplinary 
actions.\19\ Moreover, as demonstrated by his experience with his 
Minnesota application, Respondent was obviously aware that providing a 
truthful answer to question three would likely trigger the Agency's 
scrutiny into why both Boards imposed sanctions on his licenses and 
lead to the discovery that he was a drug abuser. Accordingly, I agree 
with the ALJ's finding that Respondent intentionally and materially 
falsified his application. This conclusion provides reason alone to 
deny his application. See 21 U.S.C. 824(a)(1); see also Pamela 
Monterosso, 73 FR 11146, 11148 (2008) (holding that ``the various 
grounds for revocation or suspension of an existing registration that 
Congress enumerated in section 304(a), 21 U.S.C. 824(a), are also 
properly considered in deciding whether to grant or deny an application 
under section 303'') (citations omitted); Jackson, 72 FR 23848, 23852 
(2007).
---------------------------------------------------------------------------

    \19\ In his Exceptions, Respondent does not dispute whether his 
false statement was material. It clearly was because the various 
board orders were imposed based on Respondent's abuse of controlled 
substances and his unlawful obtaining of controlled substances, and 
under the public interest standard, the Agency is directed to 
consider an applicant's compliance with applicable laws related to 
controlled substances and such other conduct which may threaten 
public health and safety. 21 U.S.C. 823(f)(4)-(5). Also, the Agency 
has long held that a practitioner's self-abuse of a controlled 
substance constitutes actionable misconduct under factor five. See 
Tony Bui, 75 FR 49979, 49989 (2010) (citing cases).
    While in his decision, the ALJ correctly noted that ``a false 
statement is material if it has a natural tendency to influence or 
was capable of influencing the decision making body to which it is 
addressed,'' R.D. at 55 (citation omitted), he then explained that 
`` `[a]nswers to the liability question[s] are always material 
because DEA relies on the answers to these questions to determine 
whether it is necessary to conduct an investigation prior to 
granting an application.' '' Id. (quoting Gov. Br. at 29-30 (quoting 
Theodore Neujahr, 65 FR 5680, 5681 (2000))). The latter statement, 
however, is incorrect. See Kungys v. United States, 485 U.S. 759, 
771 (1988) (``It has never been the test of materiality that the 
misrepresentation or concealment would more likely than not have 
produced an erroneous decision, or even that it would more likely 
than not have triggered an investigation.'') (quoted in Hoi Y. Kam, 
78 FR 62694, 62696 (2013)). Instead, the test is ``whether the 
misrepresentation or concealment was predictably capable of 
affecting, i.e., had a natural tendency to affect, the official 
decision.' '' Id. `` `[T]he ultimate finding of materiality turns on 
an interpretation of substantive law.' '' Id. at 772 (int. 
quotations and citations omitted).
---------------------------------------------------------------------------

Exception to the ALJ's Conclusion of Law #5

    In this legal conclusion, the ALJ addressed the application of 
factor one under the public interest analysis, specifically--``[t]he 
recommendation of the appropriate State licensing board or professional 
disciplinary authority.'' 21 U.S.C. 823(f)(1); see also R.D. at 46. The 
ALJ correctly noted that neither the Florida nor Minnesota Board has 
made a recommendation in this matter (whether to support or oppose 
Respondent's application), and that Agency precedent holds that even 
where an applicant possesses the requisite state authority, see 21 
U.S.C. 802(21), ``the Administrator `possesses a separate oversight 
responsibility with respect to the handling of controlled substances' 
and therefore must make an `independent determination as to whether the 
granting of an application would be in the public interest.' '' R.D. at 
46-47 (quoting Mortimer B. Levin, 55 FR 8209 (1990)). While this should 
have been the end of his discussion, with the conclusion that the 
factor neither supported nor refuted a finding that granting his 
application is consistent with the public interest, the ALJ found that 
``the actions of state medical regulators in'' both States ``establish 
a basis for finding that [Respondent's] application should be denied.'' 
R.D. at 46. The ALJ then explained:

    My concern with respect to evidence relating to the licensure 
actions taken by the medical boards in Florida and Minnesota rests 
not so much with their ultimate decisions, but with the process that 
led to those decisions being made. The Government is correct, in my 
view, in proposing that Respondent's misrepresentations to these 
boards call into question whether the actions taken by these 
regulators would be the same had they been told the same things 
[Respondent] reported as true during this administrative process.
    The Government's identification of the nature of these 
misrepresentations accurately reflects the many ways in which the 
two state medical boards were acting with less than a complete and 
accurate record due to [Respondent's] duplicity. Those 
misrepresentations regarding [his] ability to recall what happened 
immediately preceding the June 2008 crash, his description of his 
history of abusing marijuana and Adderall, and his description of 
the nature of his injuries and those of his passenger, all threaten 
the integrity of the administrative process by which the Florida and 
Minnesota boards performed their assessments of [Respondent's] 
fitness to practice medicine in those states. Accordingly, nothing 
in our

[[Page 71626]]

record supports a finding that the elements of Factor One warrant a 
conclusion that granting Respondent's application would be 
consistent with the public interest.

R.D. at 48-49.\20\

    \20\ There is, of course, a difference between stating that 
``the actions of state medical regulators . . . establish a basis 
for finding that [Respondent's] application should be denied,'' R.D. 
at 46, and that ``nothing in our record supports a finding [under 
Factor One] . . . that granting Respondent's application would be 
consistent with the public interest.'' Id. at 49. While the latter 
statement suggests that he gave no weight to factor one either way, 
in his conclusion of law, the ALJ explained that ``the circumstances 
attendant to the action of these boards constitute evidence tending 
to establish that Respondent's DEA registration would be 
inconsistent with the public interest under Factor One.'' Id. at 63-
64.

---------------------------------------------------------------------------

    Respondent takes exception to the ALJ's conclusion, noting that 
``where there is no specific recommendation from the state licensing 
board for or against an applicant's request for a . . . registration, 
the factor may not be considered [to] support the denial of'' an 
application. Exceptions at 20. He then argues that ``the appropriate 
state licensing board is the Minnesota Medical Board, which has not 
provided a specific recommendation for or against [Respondent's] 
request for a DEA registration.'' Id.
    I agree with Respondent that the appropriate board is Minnesota, 
because it is the State where Respondent now seeks registration. With 
respect to the action of the Minnesota Board, I agree that the evidence 
shows that Respondent made multiple false statements to the Minnesota 
Board in both his application and his affidavit in support of his 
request for reconsideration. I also appreciate the ALJ's concern that 
his misrepresentations ``threaten the integrity of the [State Board's] 
administrative process.'' I nonetheless respectfully disagree with the 
ALJ's analysis because it is not supported by the evidence and takes 
the Agency far beyond the appropriate scope of this factor.
    As explained above, the record does not establish whether 
Respondent continued to make the same false statements before the 
Licensure Committee as he did in his application and affidavit. 
However, even if Respondent made the same false statements to the 
Committee, the ALJ's analysis simply assumes--without any evidence--
that the Board would have come to a different result. Notably, it is 
not even clear why Respondent's misrepresentations regarding [his] 
ability to recall what happened immediately preceding the June 2008 
crash and his description of the nature of his injuries and those of 
his passenger would have been material to the Board's decision. I 
therefore conclude that factor one neither supports nor refutes the 
conclusion that granting Respondent's application would be 
``inconsistent with the public interest.'' \21\ 21 U.S.C. 823(f).
---------------------------------------------------------------------------

    \21\ As for the concerns expressed by both the Government and 
the ALJ that Respondent made false statements in obtaining his 
medical licenses which threaten the integrity of the state 
administrative process, nothing prevents the Government from 
providing the evidence it obtained in the course of this 
investigation and proceeding to the respective state boards.
---------------------------------------------------------------------------

Exception to Conclusion of Law 6

    In this legal conclusion, the ALJ summarized his conclusions 
regarding the evidence relevant to factor two--Respondent's experience 
in dispensing controlled substances. Specifically, the ALJ explained 
that:

[w]hile there is some evidence that through the course of his 
education, training, and employment Respondent has acquired 
sufficient experience to appropriately fulfill those 
responsibilities attendant to persons authorized to prescribe 
controlled substances, the preponderant evidence of Respondent's 
experience in procuring controlled substances creates material 
questions regarding the benefit Respondent obtained from his 
positive experiences, where those experiences should have instilled 
in Respondent a greater sense of responsibility when procuring and 
using highly addictive controlled substances. If granted the 
authority to prescribe often-diverted controlled substances, 
Respondent's experience . . . would, in the event of relapse 
constitute a threat to the public interest, particularly where 
Respondent continues to deny having drug abuse problems 
notwithstanding a history of abuse. While this risk is attenuated 
during Respondent's sustained period of stable recovery, it is 
sufficiently present here, given the absence of any on-going 
monitoring or treatment, to warrant a finding that granting this 
application is consistent with the public interest.

R.D. at 64.
    Respondent takes exception to the ALJ's conclusion contending that 
the ALJ ``minimize[d] [his] experience and training in dispensing 
controlled substances and assert[ed] that [he] `entered the world of 
drug dealers, using his association with Patient S.S. to acquire 
cocaine and marijuana on a regular basis.' '' Exceptions at 21 (quoting 
R.D. at 51). Respondent argues that ``many medical doctors apply for 
and are granted a DEA . . . Registration while in the last stages of 
medical residency of [sic] immediately following the completion of 
their medical residency program'' and ``have less experience that [his] 
experience at MD Now [but] that experience is not used against them.'' 
Id.
    It is true that the ALJ engaged in a lengthy discussion of 
Respondent's medical career and his experience in prescribing 
controlled substances therein. For example, the ALJ found that 
``[a]fter successfully completing his residency, [Respondent] continued 
to gain experience in a clinical practice in fields not generally 
associated with dispensing controlled substances'' and then listed 
various activities Respondent engaged in in Liberia which do not appear 
to have involved clinical practice, let alone the dispensing of 
controlled substances. R.D. at 50. The ALJ then noted that Respondent's 
``most significant post-graduate prescribing experience . . . is that 
which he obtained while working at MD Now [an urgent care clinic] for 
seven months and while serving in his family medicine residency at the 
University of Miami from 2004 to 2007.'' Id. at 51. The ALJ explained 
that ``while this experience includes training in critical care and 
emergency medicine (both of which may emphasize the use of controlled 
substances), the residency reflects a curriculum that was not 
concentrated in a practice requiring dispensing of controlled 
substances, including emphases in infectious diseases, pediatrics, 
`wards' medicine, and women's health.'' Id. The ALJ thus opined that 
``while [Respondent's] experiences as an independent contractor at MD 
Now and parts of his residence [sic] do suggest experience in 
dispensing controlled substances, the overall arc of his practice has 
not been one that would support a finding that his experience in 
dispensing controlled substances is substantial.'' Id.
    To be sure, the word ``experience'' connotes that the Agency is 
authorized to conduct an inquiry into the adequacy of a practitioner's 
training in prescribing controlled substances as well as his/her 
``direct observation of or participation in'' prescribing controlled 
substances. See JM Pharmacy Group, d/b/a Farmacia Nueva and Best Pharma 
Corp., 80 FR 28667, 28667 n.2 (2015). However, under 21 U.S.C. 823(f), 
DEA is directed to register an applicant to dispense controlled 
substances ``if the applicant is authorized to dispense . . . 
controlled substances under the laws of the State in which he[/she] 
practices.'' Thus, with the exception of those instances in which a 
practitioner has been shown to have committed violations of the CSA 
(and in which a practitioner must produce evidence of the remedial 
measures he/she has undertaken to rebut the Government's prima facie 
case), in making the public interest determination, DEA does not

[[Page 71627]]

look beyond the State's determination that the practitioner possesses 
adequate training to prescribe controlled substances.\22\
---------------------------------------------------------------------------

    \22\ While under 21 CFR 1301.18 an applicant, who seeks to 
conduct research with respect to a schedule I controlled substance, 
must submit a research protocol which contains his/her 
``[q]ualifications, including a curriculum vitae and an appropriate 
. . .list of publications,'' the CSA requires that the application 
``be referred to the Secretary, who shall determine the 
qualifications and competency of each practitioner requesting 
registration, as well as the merits of the research protocol.'' 21 
U.S.C. 823(f). Cf. id. Sec.  823(g)(1)(A) (``The Attorney General 
shall register an applicant to dispense narcotic drugs to 
individuals for maintenance treatment or detoxification treatment . 
. . if the application is a practitioner who is determined by the 
Secretary to be qualified (under standards established by the 
Secretary) to engage in the treatment with respect to which 
registration is sought[.]''); id Sec.  823(g)(2)(B)(i) & 
(G)(ii)(VII) (authorizing the Secretary to promulgate by regulation 
criteria for determining that a ``physician has such other training 
or experience as the Secretary considers to demonstrate the ability 
of the physician to treat and manage opiate dependent patients'' by 
prescribing schedule III through V drugs approved for maintenance or 
detoxification treatment).
---------------------------------------------------------------------------

    Here, however, Respondent's experience as a dispenser of controlled 
substances includes not only the fraudulent June 11, 2008 Adderall 
prescription listing S.S. as the patient, but also the unlawful 
prescriptions he issued to S.S. on June 4, 2008 for Percocet 
(oxycodone) and Xanax (alprazolam), which the ALJ found were ``issued 
outside the usual course of professional practice and for other than a 
legitimate medical purpose.'' R.D. at 58-59. Moreover, the evidence 
shows that Respondent induced S.S. to fill the Adderall prescription as 
``a favor'' for his having provided S.S. with the Percocet and Xanax 
prescriptions. Tr. 207--210-11.
    As explained above, the ALJ found that Respondent ``us[ed] his 
experience and his association with Patient S.S. to acquire cocaine and 
marijuana on a regular basis.'' R.D. at 51. There is, however, no 
evidence that Respondent used his registration to trade controlled 
substance prescriptions for street drugs, and as the Agency has 
previously explained, ``factor two does not call for an inquiry into a 
practitioner's life experience generally or even his experience related 
in any manner to controlled substances, but rather, only his 
``experience in dispensing . . . controlled substances.'' Abbas E. 
Sina, 80 FR 53191, 53199 (2015). Nonetheless, the evidence does show 
that Respondent used his prescription writing authority to induce S.S. 
to fill the fraudulent Adderall prescription for him. This conduct is 
relevant in assessing Respondent's experience as a dispenser of 
controlled substances.\23\
---------------------------------------------------------------------------

    \23\ Respondent also takes exception to the ALJ's discussion 
that Respondent continues to deny that he has a drug abuse problem 
and presents a risk of relapse ``given the absence of any on-going 
monitoring or treatment, to warrant a finding that [his] experiences 
in dispensing controlled substances contradicts a finding that 
granting this application is consistent with the public interest.'' 
R.D. at 64. I conclude, however, that the issue of whether 
Respondent presents an unacceptable risk of relapse does not involve 
his experience in dispensing, but rather, whether he has produced 
sufficient evidence to rebut the Government's prima facie case. 
Accordingly, Respondent's arguments are addressed in that 
discussion.
---------------------------------------------------------------------------

Exception to Conclusion of Law 9

    In this conclusion, the ALJ discussed the evidence relevant to 
factor five--``such other conduct which may threaten public health and 
safety.'' R.D. at 65; see also 21 U.S.C. 823(f)(5). Specifically, the 
ALJ found that the record establishes:

that Respondent refused without good cause shown to execute releases 
granting the DEA access to monitoring reports in Minnesota and 
Florida; provided misleading accounts of the circumstances 
surrounding the June 13, 2008 motor vehicle crash in reports 
tendered to medical boards in Florida and Minnesota and in his 
accounts of the same to DEA investigators; and provided inconsistent 
and misleading accounts of his history of drug use to the DEA and to 
medical boards in Florida and Minnesota.

R.D. at 65-66. For these reasons, the ALJ found that this factor 
supports the conclusion that granting Respondent's application ``would 
be inconsistent with the public interest.'' R.D. at 66.
    Respondent takes exception to the ALJ's conclusion. According to 
Respondent, the ALJ's conclusion ``rest [sic] on the testimony of [the 
DI] and N.P. and ignores the testimony of [Respondent], the undisputed 
testimony of Dr. Nedd [the neurologist who treated him after the crash] 
and the fact that . . . the incident which occurred in 2008 occurred 
over 6 years ago.'' Exceptions at 22-23. Respondent argues that he 
stipulated to many of the facts outlined in the Government's Pre-
Hearing Statements and that at the hearing, he did not dispute 
paragraphs two through six of the Order to Show Cause. Id. at 23. He 
further argues that he did not mean ``to be evasive,'' but ``simpl[y] . 
. . cannot remember the details'' of the accident because he ``suffers 
from post-traumatic amnesia'' and was ``under stress during the weeks 
prior to the hearing and had to try to gather pieces about a very 
traumatic incident he does not remember.'' Id. Finally, he argues that 
he had a seizure the day before the hearing and that ``[d]uring the 
hearing [he] was post-ictal and his emotional defenses and skills'' 
were compromised. Id.
    For the reasons explained in my discussion of Respondent's 
exceptions to the ALJ's factual findings numbers 12 and 13, I reject 
Respondent's exception to the ALJ's conclusions of law with respect to 
factor five.\24\ Moreover, with respect to factor five, I further find 
that Respondent made material false statements in this proceeding. 
These included: (1) When he testified that the Adderall prescription he 
wrote for S.S. was a refill of a prescription S.S. usually got and that 
while he had used Adderall, he obtained it from a physician's assistant 
at the clinic but could not remember the PA's last name; (2) when he 
testified that he could not ``remember diverting medications with SS'' 
and could not ``remember how the [Adderall] got into his car,'' (3) 
when he denied having used marijuana even though he tested positive for 
the drug following the accident and then asserted that he had ``no 
idea'' from whom he obtained the marijuana; (4) as well as in his 
testimony regarding why he tested positive for opiates and provided a 
diluted sample while subject to the Florida Drug Court program.
---------------------------------------------------------------------------

    \24\ However, for reasons explained previously, I do not adopt 
the ALJ's conclusion to the extent it states that Respondent 
provided misleading accounts of the accident and his history of drug 
use to the Florida Board. Nor do I adopt the ALJ's conclusion to the 
extent it suggests that Respondent providing misleading statements 
when he appeared before the Minnesota Board's licensure committee.
---------------------------------------------------------------------------

    Accordingly, I reject Respondent's Exception to factor five and 
conclude that this factor supports the conclusion that granting 
Respondent's application would be ``inconsistent with the public 
interest.'' 21 U.S.C. 823(f)(5); Hoxie v. DEA, 419 F.3d 477, 483 (6th 
Cir. 2005); John v. Scalera, 78 FR 12092, 12100 & n.21 (2013); Robert 
F. Hunt, 75 FR 49995, 5004 (2010); Rose Mary Jacinta Lewis, 72 FR 4035, 
4042 (2007).

Exception to Conclusion of Law 13

    Finally, Respondent takes exception to the ALJ's legal conclusion 
that he has failed to produce sufficient evidence to rebut the 
Government's prima facie showing that granting his application would be 
inconsistent with the public interest. In this conclusion, the ALJ 
found that:

    The record . . . establishes that Respondent has failed to 
timely provide the DEA with reports of his treatment or monitoring 
from the Florida Medical Board and PRN and from the Minnesota Board 
of Medical Practice and HPSP; failed to acknowledge the need to 
provide forthright, accurate, and complete responses to questions 
presented regarding his prescription practice and his history of 
drug

[[Page 71628]]

abuse; and failed to account for his false statement in making this 
application[.]

R.D. at 66.
    Moreover, earlier in his discussion of Respondent's evidence of 
remediation, the ALJ explained that:

[t]he most probative evidence of [Respondent's] efforts to address 
any drug abuse problems he may have had would have come from the 
reports by monitors in the Florida PRN program and Minnesota's HPSP 
program. Even as he insists he has and had no drug abuse problem, 
the evidence of drug abuse associated with the 2008 crash, his abuse 
of marijuana and cocaine prior to the crash, and his adamant 
determination to deflect and minimize the adverse impact of his drug 
use are all both abundant and troubling. [Respondent] has thwarted a 
complete review of the steps he has taken (or has failed to take) by 
refusing [the DI's] request for releases that would allow the DEA to 
see the PRN and HPSP reports. We have what appears to be only part 
of the report maintained by HPSP, and none of the report by PRN. In 
the absence of such evidence, I cannot find Respondent has 
established by at least preponderant evidence that he has accepted 
responsibility for his wrong-doing and has put in place effective 
corrective measures that would guard against future misconduct.

R.D. at 57-58.
    Respondent nonetheless contends that at the hearing, he ``took full 
responsibility for his drug use and diversion of controlled 
substances.'' Exceptions at 25. He also argues that he acknowledged his 
use of marijuana and his diversion of Adderall in his first meeting 
with the DIs, and that Minnesota Board's decision to grant him a 
conditional license ``is evidence of his acknowledgment of his past 
drug use and diversion of prescription drugs,'' because the Board noted 
that it ``discussed [with him] his use of controlled substances that 
had not been prescribed to him.'' Id. at 24-25.
    I reject Respondent's contention. His assertion that he 
acknowledged his use of marijuana at his first meeting with the DI is 
counterfactual, as Respondent asserted that his positive drug test 
following the accident ``was a false positive'' and that ``he had not 
used marijuana in a long time.'' Tr. 462. Moreover, while at the 
hearing, Respondent admitted to facts which establish that the 
prescriptions he issued to S.S. for Percocet and Xanax were outside of 
the usual course of professional practice and which lacked a legitimate 
medical purpose (see R.D. at 5-7; Tr. 610-11), he continued to deny 
that he wrote the Adderall prescription in S.S.'s name for the purpose 
of obtaining the drugs for his own use and that S.S. had given him the 
filled prescription.\25\ Tr. 612. Moreover, Respondent failed to 
acknowledge his misconduct in intentionally and materially falsifying 
his application for his DEA registration. Also, he failed to 
acknowledge that he made various false statements to the Agency's 
Investigators.
---------------------------------------------------------------------------

    \25\ As for his contention that the Minnesota Board's decision 
to grant him a conditional license ``is evidence of his 
acknowledgement of his past drug use and diversion of prescription 
drugs,'' while Respondent may have admitted to some misconduct in 
that proceeding, it is unclear exactly what he admitted to in that 
proceeding. Also, under Agency precedent, Respondent is required to 
acknowledge his misconduct with respect to the full extent of the 
misconduct proved on the record of this proceeding. See Robert L. 
Dougherty, 76 FR 16823, 16834 (2011); Jeffrey Patrick Gunderson, 61 
FR 26208, 26211 (1996); Prince George Daniels, 60 FR 62884, 62887 
(1995).
---------------------------------------------------------------------------

    Accordingly, I reject Respondent's contention that he accepted 
responsibility for the full extent of the misconduct which has been 
proven on this record. See MacKay v. DEA, 664 F.3d 808, 820 (10th Cir. 
2011) (``The DEA may properly consider whether a physician admits fault 
in determining if the physician's registration should be revoked. When 
faced with evidence that a doctor has a history of distributing 
controlled substances unlawfully, it is reasonable for the Deputy 
Administrator to consider whether that doctor will change his . . . 
behavior in the future. And that consideration is vital to whether 
continued registration is in the public interest.'') (citing Hoxie v. 
DEA, 419 F.3d 477, 483 (6th Cir. 2005)).
    This is reason alone to conclude that Respondent has not rebutted 
the Government's prima facie showing that granting his application 
``would be inconsistent with the public interest.'' 21 U.S.C. 823(f). 
Respondent nonetheless argues that he has put on ``uncontested evidence 
of his efforts to rehabilitate his career.'' Exceptions at 25. He 
argues that he ``participated in all the required programs[,] treatment 
plan and drug testing,'' and that he has ``met fully every condition 
and gained the trust of the Minnesota Medical Board, his employer, his 
peers, and his patients.'' Id. Respondent further argues that ``[t]he 
fulfillment of these conditions cannot simple [sic] be ignored because 
[he] did not sign a release for [the DI] to access HPSP directly'' and 
that he ``provided her with 82 pages of documentation which included 
the quarterly reports, results of toxicology test [sic], his case 
manager's notes.'' Id. at 26-27. He also argues that ``[t]here is no 
justification for not considering the Minnesota Board's Order'' and 
that ``[t]he argument that [he] did not disclose the extent of his drug 
use and diversion of controlled substances to the Minnesota Medical 
Board is not supported by either'' the Board's Order granting him a 
conditional license or the Order which granted him an unconditional 
license. Id. at 27.
    The ALJ did, however, consider the Board's Order as evidence in 
remediation. See R.D. at 62 (FoF #14) (``Evidence of remediation in 
this record takes the form of Respondent's successful completion of a 
one-year period of monitoring under the auspices of the Minnesota 
Health Professional Services Program.''). He just found it insufficient 
to satisfy Respondent's burden of production on the issue of the 
adequacy of his remedial measures.
    As for Respondent's further contention that ``[t]he fulfillment of 
these conditions cannot simple [sic] be ignored because [he] did not 
sign a release for [the DI] to access HPSP directly'' and that he 
``provided her with 82 pages of documentation which included the 
quarterly reports, results of toxicology test [sic], his case manager's 
notes,'' id. at 26-27, where, as here, the evidence shows that 
Respondent has a history of abusing controlled substances, the Agency 
is not required to take him at his word that he provided his complete 
HPSP file. Here, while Respondent submitted various documents related 
to his participation in the HPSP program, there is ample reason to 
believe that these records are incomplete as they do not appear to 
include the initial evaluation conducted by Dr. Albert (his 
psychologist),\26\ and thus, it remains unclear what he disclosed to 
the psychologist regarding his history of substance abuse. Accordingly, 
I agree with the ALJ's conclusion that Respondent has not produced 
sufficient evidence of his remedial measures to rebut the Government's 
prima facie case.\27\
---------------------------------------------------------------------------

    \26\ The DI testified that upon receiving a file from Dr. 
Hasper, it contained notes for Respondent's ``first two visits'' 
with Dr. Albert, but these notes were not included in the HPSP 
records that Respondent provided to her. Tr. 481, 497. 
Notwithstanding that Respondent had the burden of production on the 
issue of the adequacy of his remedial measures, he did not submit 
these documents for the record. See generally Resp. Exhibits. 
Moreover, although the Government was eventually provided with these 
notes, the fact remains that because Respondent would not agree to 
release his HPSP file and did not submit these documents, it remains 
unclear whether he fully disclosed his history of substance abuse to 
his treating professionals.
    \27\ As previously noted, in his legal conclusions pertaining to 
factor two, the ALJ explained that if Respondent was ``granted the 
authority to prescribe often-diverted controlled substances, [his] 
experience as demonstrated in this record would, in the event of 
relapse, constitute a threat to the public interest, particularly 
where Respondent continues to deny having drug abuse problems 
notwithstanding a history of abuse.'' R.D. at 64. The ALJ then 
explained that ``[w]hile this risk is attenuated during [his] 
sustained period of stable recovery, it is sufficiently present 
here, given the absence of any on-going monitoring or treatment, to 
warrant a finding that [his] experience in dispensing controlled 
substances contradicts a finding that granting this application is 
consistent with the public interest.'' Id.
    Respondent argues that ``there is nothing in the record which 
shows [that he] has a risk of relapse.'' Exceptions at 21. He argues 
that ``[h]e was not diagnosed with a drug problem,'' but ``with 
authority conflicts'' and that he ``fully shared his history of drug 
uses with Dr. Albert'' and ``completed his treatment plan.'' Id. He 
then argues that if the Board ``believed that he had a risk of 
relapse they never would have removed the conditions on his medical 
license'' and that the Government ``did not provide any evidence, 
testimonial or otherwise, by any professional, serving those with a 
history of drug abuse, to contradict'' the conclusions of Dr. Albert 
and the Board. Id. at 22.
    I agree that there is no evidence establishing what Respondent's 
risk of relapse is. I conclude, however, that because Respondent 
would not provide the Government with a release allowing it to 
obtain his HPSP file directly from the program so that it could 
verify whether he actually ``fully shared his history of drug use'' 
with his treating professional, his evidence as to his 
rehabilitation is insufficient.
    Of further note, as found above, Respondent also unlawfully 
distributed Percocet (oxycodone) and Xanax (alprazolam) to S.S. See 
21 U.S.C. 841(a)(1); 21 CFR 1306.04(a). While Respondent admitted to 
the facts which establish the violation, he has failed to produce 
any evidence of remedial training he had undertaken in the proper 
prescribing of controlled substances. Thus, Respondent has failed to 
produce sufficient evidence of remedial measures with respect to 
these violations.

---------------------------------------------------------------------------

[[Page 71629]]



Summary

    The Government has made out a prima facie case to deny Respondent's 
application based on his material falsification of his DEA application, 
his diversion of controlled substances to both S.S. and himself, his 
substance abuse, and the numerous false statements he made to DEA 
Investigators and in this proceeding. Notably, at most, Respondent has 
acknowledged his misconduct only with respect to the Percocet and Xanax 
prescriptions he issued to S.S. While Respondent's failure to 
acknowledge his misconduct in materially falsifying his application, 
the circumstances surrounding his issuance of the Adderall 
prescription, and his false statements to the Investigators, provides 
reason alone to conclude that he has not rebutted the Government's 
case, he also failed to produce sufficient evidence in remediation. 
Because I conclude that Respondent's misconduct is both extensive and 
egregious, I agree with the ALJ that granting his application ``would 
be inconsistent with the public interest.'' 21 U.S.C. 823(f). 
Accordingly, I will adopt the ALJ's recommended order and deny his 
application.


Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28 
CFR 0.100(b), I order that the application of Mark William Andrew 
Holder, M.D., for a DEA Certificate of Registration be, and it hereby 
is, denied. This Order is effective immediately.

    Dated: November 5, 2015.
Chuck Rosenberg,
Acting Administrator.

    Krista Tongring, Esq., for the Government.
    Yende Anderson, Esq., for the Respondent.

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

Nature of the Proceeding

    Christopher B. McNeil, Administrative Law Judge. These are 
proceedings before the Drug Enforcement Administration and the United 
States Department of Justice, under DEA docket number 2014-13, 
captioned ``In the Matter of Mark William Andrew Holder, M.D.'' The 
proceedings are being held pursuant to sections 303 and 304 of the 
Controlled Substances Act, Title 21 United States Code sections 823 and 
824.
    On March 7, 2012, Respondent Mark W.A. Holder, M.D., applied for a 
DEA Certificate of Registration as a practitioner in Controlled 
Substance Schedules 2, 2N, 3, 3N, 4 and 5, identifying the business 
location as 2810 Nicollet Avenue South, Minneapolis, Minnesota 55408-
3160.\1\ After reviewing this application the Drug Enforcement 
Administrator through her Deputy Assistant Administrator issued an 
order dated April 11, 2014 extending to Dr. Holder the opportunity to 
show cause why the Administrator should not deny this application.\2\ 
In the order, the Administrator alleged that Dr. Holder's registration 
would be inconsistent with the public interest and thus should be 
denied pursuant to 21 U.S.C. 823(f); and further alleged that Dr. 
Holder materially falsified a DEA registration application, warranting 
the denial of the application pursuant to 21 U.S.C. 824(a)(1) and 
824(a)(4).\3\
---------------------------------------------------------------------------

    \1\ Gov't Ex. Two at 1.
    \2\ A.L.J. Ex. One at 1.
    \3\ Id.
---------------------------------------------------------------------------

    On May 8, 2014, the Office of Administrative Law Judges for the DEA 
received Respondent's May 6, 2014 request for a hearing to permit him 
the opportunity to establish why his application should not be denied. 
The parties presented evidence during a hearing conducted at the DEA 
Hearing Facility in Arlington, Virginia, on August 4 and 5, 2014.

Summary of the Evidence

    Prior to the hearing, the parties entered into stipulations,\4\ 
which will be presented here, along with summaries of testimony taken 
during two days of hearings conducted in Arlington, Virginia.
---------------------------------------------------------------------------

    \4\ A.L.J. Ex. 31.
---------------------------------------------------------------------------

    In articulating the bases upon which the Administrator proposed to 
deny Dr. Holder's application for a Certificate of Registration, the 
Deputy Assistant Administrator identified the following:
    (1) The Government alleged improprieties with respect to Dr. 
Holder's prescription practice as it concerned Patient S.S. on June 4, 
2008.\5\ The Government alleged Dr. Holder prescribed Percocet and 
Xanax for this patient under conditions that were outside the usual 
course of professional practice and for other than a legitimate medical 
purpose.\6\ The Government specifically alleged that Dr. Holder failed 
to document a complete medical history and physical exam prior to 
prescribing controlled substances to the patient, failed to determine 
the nature and intensity of the pain attributed to the patient, failed 
to determine the patient's true medication history, and failed to 
provide a legitimate diagnosis to support prescribing controlled 
substances to this patient, during an office visit on June 4, 2008.\7\ 
The Administrator further alleged that on June 11, 2008, Dr. Holder 
issued a handwritten prescription to Patient S.S. for Adderall, a 
Schedule II controlled substance, without creating any written record 
of diagnosis or treatment for the prescription.\8\
---------------------------------------------------------------------------

    \5\ A.L.J. Ex. One at 1.
    \6\ Id. at 1-2 .
    \7\ Id.
    \8\ Id. at 2.
---------------------------------------------------------------------------

    (2) With respect to the prescription for Adderall dated June 11, 
2008, the Administrator also alleged that Dr. Holder wrote this 
prescription in order to illegally obtain the medication for his own 
use; and that after taking control of the medication, Dr. Holder 
engaged in behavior resulting in a single-vehicle crash on June 13, 
2008 that seriously injured Dr. Holder and his passenger, N.P., while 
Dr. Holder was under the influence of THC and amphetamines.\9\
---------------------------------------------------------------------------

    \9\ Id.
---------------------------------------------------------------------------

    (3) The Administrator further alleged that consequent to the crash 
involving Dr. Holder and his passenger, the Florida Department of 
Health indefinitely suspended Dr. Holder's

[[Page 71630]]

license to practice medicine in that State, and the Minnesota Board of 
Medical Practice initially recommended the denial of his application to 
practice in that State, thereafter granting him a restricted, 
conditional license to practice medicine in Minnesota.\10\ The 
Administrator alleged that despite his history of proceedings before 
the boards regulating the practice of medicine in Florida and 
Minnesota, when asked in his DEA application whether he ever had a 
state professional license suspended, denied, or restricted, Dr. Holder 
falsely answered in the negative.\11\
---------------------------------------------------------------------------

    \10\ Id.
    \11\ Id. at 2-3.
---------------------------------------------------------------------------

    (4) The Administrator alleged that in the course of the 
investigation into whether Dr. Holder's application should be granted, 
Dr. Holder engaged in evasive conduct, evinced a lack of candor when 
responding to investigators, has given inconsistent or evasive reports 
of his past drug use, has refused requests from the DEA investigators 
seeking records demonstrating compliance with drug treatment programs 
in Florida and Minnesota, and has tested positive for prohibited 
controlled substances during periods of court supervision subsequent to 
the June 13, 2008 motor vehicle crash.\12\
---------------------------------------------------------------------------

    \12\ Id. at 3.
---------------------------------------------------------------------------

Background

    Dr. Holder attended the University of Minnesota and Morehouse 
School of Medicine, completing his residency from 2004 to 2007 at 
Jackson Memorial Hospital in Miami, Florida, with a specialty in family 
medicine.\13\ During his residency, he was trained in critical care, 
emergency medicine, infectious disease, pediatrics, wards medicine, and 
women's health.\14\ Shortly after completing that residency program, 
Dr. Holder accepted employment as an independent contractor at an 
urgent care facility called MD Now, which has locations throughout 
southern Florida.\15\ Respondent previously held DEA Certificate of 
Registration BH9956232, issued on November 21, 2007, with a registered 
address of 221 164th Street, NE., Suite 329, North Miami Beach, 
Florida.\16\ This registration expired by its own terms on October 31, 
2009.\17\
---------------------------------------------------------------------------

    \13\ Tr. at 87.
    \14\ Gov't Ex. 37 at 59.
    \15\ Tr. at 88-89; A.L.J. Ex. 31 at 1.
    \16\ A.L.J. Ex. 31 at 1.
    \17\ Id.
---------------------------------------------------------------------------

    In addition to his experience as an urgent care medical doctor, Dr. 
Holder has evaluated the Cuban health care system to formulate a 
Student National Medical Association article promoting preventative 
medicine, and has conducted HIV prevention research and initiated 
recommended therapy in Accra and Ada, Ghana.\18\
---------------------------------------------------------------------------

    \18\ Gov't Ex. 37 at 60.
---------------------------------------------------------------------------

    When describing why he wanted to go to medical school, Dr. Holder 
stated: ``I thought that medicine was a good way to kind of give back 
to the world. And I think there's a huge need for medicine in this 
nation and all over the world, and I thought this is a good way to use 
the energies that I had.'' \19\
---------------------------------------------------------------------------

    \19\ Tr. at 573.
---------------------------------------------------------------------------

Dr. Holder's Prescription Practice Regarding Patient S.S.

    In his testimony and through stipulation, Dr. Holder admitted that 
on June 4, 2008, he saw Patient S.S., a 25 year old male, at MD Now's 
Royal Palm Beach Facility.\20\ This was Dr. Holder's initial encounter 
with Patient S.S. in a professional capacity, and it was Patient S.S.'s 
first visit of any kind to MD Now.\21\ At this encounter, Dr. Holder 
prescribed Percocet and Xanax for Patient S.S., allegedly for back 
pain.\22\ Percocet 10/235 is the brand name for oxycodone 10mg/
acetaminophen 325 mg and is a Schedule II narcotic controlled 
substance.\23\ Xanax is a brand name for alprazolam, a Schedule IV 
controlled substance.\24\
---------------------------------------------------------------------------

    \20\ Id. at 610; A.L.J. Ex. 31 at 1-2.
    \21\ Tr. at 610.
    \22\ Id.
    \23\ A.L.J. Ex. 31 at 2.
    \24\ Id.
---------------------------------------------------------------------------

    Dr. Holder acknowledged that when he issued these prescriptions, he 
was acting outside the usual course of his professional practice, and 
that he did so for other than a legitimate medical purpose.\25\
---------------------------------------------------------------------------

    \25\ Tr. at 610.
---------------------------------------------------------------------------

    Patient S.S. explained the circumstances under which he obtained 
these prescriptions from Dr. Holder. Patient S.S. testified that in 
2007 and 2008, while he had a legitimate job working part-time in a 
restaurant and running a mortgage branch location, he also earned money 
as a drug dealer.\26\ He said he was introduced to Dr. Holder by an 
associate who believed Dr. Holder was a potential client for cocaine 
and marijuana.\27\ He said this introduction occurred six to twelve 
months before the 2008 vehicle crash, adding that he was able to recall 
the date of the crash because he received a phone call around 2:00 a.m. 
on the day of the crash.\28\ He described selling marijuana to Dr. 
Holder once or twice a week during this period, and selling cocaine to 
Dr. Holder sporadically.\29\ He said he would make these transactions 
either at Dr. Holder's personal residence or at locations that were 
near to where Dr. Holder was at the time.\30\
---------------------------------------------------------------------------

    \26\ Id. at 193.
    \27\ Id. at 194.
    \28\ Id. at 195.
    \29\ Id. at 197.
    \30\ Id.
---------------------------------------------------------------------------

    According to Patient S.S., he had been experiencing some pain in 
his back, and on June 4, 2008, he visited Dr. Holder at MD Now to 
discuss the matter.\31\ Patient S.S. stated that during this visit, 
``[a] very brief examination was done after I filled out all the intake 
paperwork, from his front office staff. He came in the room, basic 
examination. [He] wrote me three prescriptions; one was for Xanax for 
anxiety, one was for Percocet for pain and one was Naproxen which was 
also used as an anti-inflammatory.'' \32\ He said Dr. Holder took his 
blood pressure and weight, listened to his breathing, and told him ``he 
had to make it look like a real examination, so he was going to spend 
about five to ten minutes with me.'' \33\
---------------------------------------------------------------------------

    \31\ Id. at 201, 206.
    \32\ Id. at 201.
    \33\ Id. at 204.
---------------------------------------------------------------------------

    Dr. Holder agreed that the records of this encounter indicated his 
failure to document a complete medical history and physical 
examination, as well as his failure to determine either the nature or 
the intensity of the patient's pain.\34\ He also acknowledged failing 
to determine the nature of Patient S.S.'s current and past treatments 
for the pain.\35\
---------------------------------------------------------------------------

    \34\ Tr. at 610 and A.L.J. Ex. One at 1.
    \35\ Tr. at 610 and A.L.J. Ex. One at 2.
---------------------------------------------------------------------------

    Dr. Holder did not dispute the Government's claim that while 
Patient S.S. reported that he currently was taking Percocet, Flexeril, 
and Xanax, the patient's medical records contained no mention of who 
had prescribed these medications and no indication that Dr. Holder 
inquired as to the identity of the treating source or sources who 
prescribed these medications.\36\ He agreed that his brief treatment 
records for Patient S.S. included a diagnosis of ``disc degeneration,'' 
despite the complete absence of any indication that he reviewed any 
imaging studies or prior medical records that would support this 
diagnosis.\37\
---------------------------------------------------------------------------

    \36\ Tr. at 610 and A.L.J. Ex. One at 2.
    \37\ Tr. at 610.
---------------------------------------------------------------------------

    Patient S.S. testified that the only narcotic pills he ever 
distributed to Dr. Holder were those in the prescription for Adderall 
written by Dr. Holder.\38\ D-amphetamine Salt Combo is the generic 
substitute for Adderall, the brand name for a stimulant containing a 
mixture of

[[Page 71631]]

amphetamine, a Schedule II controlled substance.\39\
---------------------------------------------------------------------------

    \38\ Id. at 200.
    \39\ A.L.J. Ex. 31 at 2.
---------------------------------------------------------------------------

    Without objection, the Government presented the testimony of Mark 
Rubenstein, M.D., as an expert medical witness in the standard of care 
for patients with pain and also as an expert in biomedical 
engineering.\40\ Drawing from his review of the medical records 
reflecting Dr. Holder's treatment of Patient S.S. on June 4, 2008 and 
the subsequent prescription of Adderall on June 11, 2008, Dr. 
Rubenstein prepared a written report, dated May 30, 2014.\41\
---------------------------------------------------------------------------

    \40\ Tr. at 303-04.
    \41\ Gov't Ex. 42.
---------------------------------------------------------------------------

    In his report, Dr. Rubenstein cited State of Florida Board of 
Medicine Rule 64B8-9.003, which requires that the medical record 
contain ``sufficient information to support the diagnosis [and] justify 
the treatment,'' in opining that ``there is no evidence that the 
prescription for Adderall is supported by the medical records.'' \42\ 
Further, citing the requirement at Board of Medicine Rule 64B8-9.013 
that the prescription of controlled substances for pain must be based 
on ``a complete history and physical exam'' documenting the ``nature 
and intensity of the pain, current and past treatments for the pain, 
effect of pain on physical and psychological functioning, etc.,'' Dr. 
Rubenstein opined that the prescriptions for Percocet, Flexeril, and 
Xanax attributed to Dr. Holder were not supported by the medical 
records reviewed.\43\
---------------------------------------------------------------------------

    \42\ Id. at 4.
    \43\ Id.
---------------------------------------------------------------------------

    Dr. Rubenstein also was present for the direct and cross 
examination of Dr. Holder in the Government's case in chief. Upon his 
consideration of the patient records and based on what Dr. Holder 
testified to during the first day of hearing, Dr. Rubenstein testified 
that nothing presented during the hearing caused him to change any of 
the findings set forth in his written report.\44\ He added, with 
respect to Dr. Holder's decision to prescribe Xanax after Patient 
S.S.'s initial visit on June 4, 2008, that there was a clear risk of 
drug diversion presented, explaining that, ``in [the] absence of pre-
existing history, pre-existing documentation, or objective correlation, 
you can't just take necessarily the patient at their word in view of 
the risk of drug dependence, drug addiction, and drug diversion.'' \45\ 
He opined similarly that the history taken and the physical examination 
reported during the office visit on June 4, 2008, would not support Dr. 
Holder's prescription for Percocet for Patient S.S.\46\ It was Dr. 
Rubenstein's opinion that Dr. Holder's June 4, 2008 prescriptions for 
Xanax and Percocet ``cannot be deemed for a legitimate medical 
purpose''.\47\ Similarly, Dr. Rubenstein opined that the June 11, 2008 
prescription for Adderall ``was not provided in compliance with Florida 
Regulations and Rules . . . and cannot be deemed rendered for a 
legitimate medical purpose in the usual course of professional 
practice.'' \48\
---------------------------------------------------------------------------

    \44\ Tr. at 305.
    \45\ Id. at 313.
    \46\ Id. at 315.
    \47\ Gov't Ex. 42 at 1-4.
    \48\ Id.
---------------------------------------------------------------------------

The Adderall Prescription and Subsequent Automobile Crash

    Patient S.S. explained that before June 11, 2008, he and his ex-
girlfriend went to Dr. Holder's house on ``multiple occasions'' to drop 
off marijuana and ``a little bit of cocaine.'' \49\ During the hearing, 
Patient S.S. described one such occasion:
---------------------------------------------------------------------------

    \49\ Tr. at 207.

    [A] couple of days prior [to June 11, 2008], we were sitting on 
his porch and we were actually smoking marijuana and he said, you 
know, I need a favor. Is there a chance that you can come by my 
office? I'll have a prescription for Adderall waiting for you. 
You're going to meet me around back of the office. I'm going to hand 
you the prescription, you're going to go get them filled. Bring it 
back here and I'll pay you for it. And he left the money in his car 
for, to cover my copay.\50\
---------------------------------------------------------------------------

    \50\ Id. at 208.

    When asked about why Dr. Holder turned to Patient S.S. for this 
favor, Patient S.S. testified that Dr. Holder told him that ``since I 
did you a favor, now you owe me one. And the favor was that I come in, 
see him, pick up the prescriptions and have them filled . . . and 
release them to him.'' \51\ Patient S.S. said he understood that the 
``favor'' Dr. Holder had performed for him was ``[t]he fact that he 
wrote me prescriptions [for Percocet, Flexeril, and Xanax] without any 
real background or history . . . aside from what was on the initial 
patient consultation form.'' \52\
---------------------------------------------------------------------------

    \51\ Id. at 211.
    \52\ Id.
---------------------------------------------------------------------------

    Patient S.S. stated that as requested, he picked up the Adderall 
prescription, went next door to Walgreens to fill the prescription, 
then delivered to Dr. Holder the filled prescription, either leaving it 
in his Cadillac or handing it to him directly (he could not recall with 
certainty which), after first retaining two tablets for his own 
use.\53\ (Patient S.S. later testified that he may have taken as many 
as four tablets, but it was not more than four because, as he put it, 
``I was mostly using cocaine myself.'' \54\)
---------------------------------------------------------------------------

    \53\ Id. at 209.
    \54\ Id. at 212-13.
---------------------------------------------------------------------------

    Dr. Holder agreed that on June 11, 2008, he issued a handwritten 
prescription to Patient S.S. for 60 tablets of 30 mg Adderall, a 
Schedule II controlled substance.\55\ He agreed that he issued these 
prescriptions from MD Now's Lake Worth, Florida facility, located at 
4570 Lantana Road; and that the facility has no medical records or any 
other documentation of Patient S.S.'s visit on June 11, nor is there 
any record of the issuance of this prescription.\56\ Dr. Holder did not 
dispute the Government's assertion that he wrote this prescription 
without conducting an examination of Patient S.S., acknowledging during 
the hearing that he wrote the prescription without making a diagnosis 
for any condition necessitating the prescription, and without 
documenting the fact that he had prescribed Adderall for Patient 
S.S.\57\
---------------------------------------------------------------------------

    \55\ Id. at 611 and A.L.J. Ex. One at 2.
    \56\ Tr. at 611 and A.L.J. Ex. One at 2.
    \57\ Tr. at 611 and A.L.J. Ex. One at 2.
---------------------------------------------------------------------------

    When asked during the hearing how the police found a bottle of 
Adderall identified as belonging to Patient S.S. in the car Dr. Holder 
was driving at the time of the crash, Dr. Holder said simply, ``I can't 
explain that,'' adding that he might have offered an explanation for it 
in the past, but ``right now, I'm at the place where I cannot explain 
how it got there. I do not recall how it got there.'' \58\
---------------------------------------------------------------------------

    \58\ Tr. at 168.
---------------------------------------------------------------------------

    When questioned about the presence of the bottle of Adderall found 
in the Cadillac after the crash, Dr. Holder admitted to DEA Diversion 
Investigator Virginia McKenna that he used Adderall ``on a few 
different occasions [and] that he obtained it from a colleague [but] he 
did not know where the pill bottle came from.'' \59\
---------------------------------------------------------------------------

    \59\ Tr. at 475.
---------------------------------------------------------------------------

    According to Investigator McKenna, when she presented a copy of the 
Adderall prescription for Patient S.S. written by Dr. Holder,

    Initially he said that he did meet with SS and provide him the 
prescription, but it wasn't documented because it had already been 
discussed. Later during the conversation, he said he didn't recall 
giving the prescription, that he had been in a coma, and he did not 
have a good memory of it. And then later in the conversation, he 
admitted in fact that he did give the prescription and repeated that 
it was not documented or charted, no exam, because that was already 
in the prior record.
    * * *

[[Page 71632]]

    His mother [Dr. Wilhelmina Holder] quite forcefully stated that 
law enforcement planted it in the car. That's when I turned to Dr. 
Holder and again asked him, how would law enforcement know to go 
specifically to that person, knowing that that person received a 
prescription for Adderall from you just two days prior, to get the 
bottle to plant. And he said he didn't know, that law enforcement 
had been looking through his phone and would have found his 
number.\60\
---------------------------------------------------------------------------

    \60\ Tr. at 476-77.

    The passenger in Dr. Holder's car at the time of the crash, N.P., 
provided details of what took place on June 13, 2008. Because her 
testimony was internally consistent, consistent with the evidence 
generally, and not contradicted by any other testimony or evidence, I 
found her testimony to be credible and gave it great weight.
    N.P. testified that she met Dr. Holder in the early morning of June 
13, 2008, when Dr. Holder introduced himself to her at a nightclub.\61\ 
Although N.P. left the club as the passenger in another vehicle, she 
encountered Dr. Holder while in the other vehicle, at which time Dr. 
Holder caught her attention, and then arranged to follow the car to 
N.P.'s home.\62\ Once at her home, N.P. asked Dr. Holder to take her to 
a 24-hour Walgreens, and the two then departed in Dr. Holder's 
Cadillac.\63\
---------------------------------------------------------------------------

    \61\ Id. at 52.
    \62\ Id. at 53-54.
    \63\ Id. at 55.
---------------------------------------------------------------------------

    While making the five-minute drive from her home to the drug store, 
N.P. observed that at first Dr. Holder was driving within the speed 
limit; but that, while engaged in conversation with her, Dr. Holder 
missed the turn that would have brought them to the drug store.\64\ She 
said when she brought this to his attention, Dr. Holder ``started 
moaning and . . . he stiffened up his back. His head was, he threw his 
head back on the seat and his eyes were rolling back in the back of his 
head.'' \65\ She said Dr. Holder's foot pressed heavily on the 
accelerator, ``his arms were stretched out holding the steering 
wheel,'' and the car was increasing in speed.\66\
---------------------------------------------------------------------------

    \64\ Id. at 58.
    \65\ Id. at 58-59.
    \66\ Id. at 59-60.
---------------------------------------------------------------------------

    At this point, N.P. sought to control the vehicle, with one hand 
reaching for the steering wheel and the other seeking the parking 
brake.\67\ There was, however, neither braking nor any slowing, when 
the car hit a concrete signage wall and light pole.\68\ Upon impact, 
N.P. thought she ``was actually dead, because I couldn't see 
anything.'' \69\ She then realized the passenger airbag had deployed, 
and Dr. Holder was slumped over her left shoulder, bleeding 
profusely.\70\
---------------------------------------------------------------------------

    \67\ Id. at 60.
    \68\ Id. at 61.
    \69\ Id. at 62.
    \70\ Id.
---------------------------------------------------------------------------

    Taking her own condition into account, N.P. testified that she 
could hardly breathe and was in ``a lot of pain.'' \71\ She had a gash 
on her left leg, was in great pain, and learned upon being admitted to 
the hospital that she had a severely dislocated elbow, shattered 
cervical spinal discs, and a broken back.\72\ According to N.P., 
however, her treatment at the scene had to be interrupted, as the first 
responders were diverted when it appeared Dr. Holder was yelling at 
those who had come to his aid.\73\ She said that after surgery, she now 
has limited mobility in her neck, with sustained periodic back pain; 
and has been told to expect an increase in that pain as she ages.\74\
---------------------------------------------------------------------------

    \71\ Id.
    \72\ Id. at 62, 66.
    \73\ Id. at 64-65.
    \74\ Id. at 66.
---------------------------------------------------------------------------

    Also testifying were first responders who encountered Dr. Holder 
after he crashed his car. Ryan Biramontes is a driver operator and 
paramedic for the Palm Beach County Fire and Rescue squad, who 
described responding to a vehicle accident call at approximately 3 a.m. 
on June 13, 2008.\75\ He described encountering N.P., who was crying 
and reporting that she was in pain.\76\ He saw Dr. Holder, who appeared 
to have sustained a head injury, but was not responding to his 
name.\77\
---------------------------------------------------------------------------

    \75\ Id. at 238.
    \76\ Id.
    \77\ Id. at 239.
---------------------------------------------------------------------------

    Mr. Biramontes reviewed reports of the crash, and described his 
encounters with Dr. Holder after Dr. Holder got out of the vehicle and 
in an ``altered'' state began ``screaming and stumbling around.'' \78\ 
He described the steps other responders took to subdue Dr. Holder, 
generally describing Dr. Holder as ``combative'' and ``resisting.'' 
\79\ Included in the responses by these responders were multiple 
attempts to subdue Dr. Holder using a Taser, which proved to be less 
than effective.\80\ He said that after repeated efforts by a team of 
responders, they were able to restrain Dr. Holder, administer Valium, 
and transport him to the Delray Medical Center for treatment.\81\ The 
toxicology report provided by Delray Center noted that Respondent's 
blood taken shortly after the accident by law enforcement tested 
negative for alcohol and positive for the presence of amphetamines and 
THC, the active ingredient in marijuana.\82\ Respondent admitted that 
he took amphetamines without a valid prescription on or about June 12, 
2008.\83\
---------------------------------------------------------------------------

    \78\ Id. at 250.
    \79\ Id. at 252.
    \80\ Id. at 254.
    \81\ Id. at 258, 260.
    \82\ A.L.J. Ex. 31 at 2.
    \83\ Id.
---------------------------------------------------------------------------

    In addition, the Government presented testimony from Palm Beach 
County Sheriff's Deputy Jesse McCoy, who gave testimony that was 
substantially the same as that provided by Mr. Biramontes, in that he 
observed N.P. having sustained a dislocated elbow and finding Dr. 
Holder with a bloody face, grunting behind the wheel, refusing to 
acknowledge the deputy's presence.\84\ He added that when members of 
the Fire Rescue team arrived, he saw the members having trouble 
restraining Dr. Holder so that he could be taken in to the hospital for 
treatment.\85\
---------------------------------------------------------------------------

    \84\ Tr. at 405.
    \85\ Id. at 407.
---------------------------------------------------------------------------

    Also called to the scene of the crash, although later in time, 
after Dr. Holder had departed for the hospital, was Palm Beach 
Sheriff's Office Investigator Robert Stephan.\86\ Investigator Stephan 
described the crash scene, noted the condition of the Cadillac's 
windshield after the crash, and opined that from the spider-webbing 
fractures and pieces of organic material found on the inside of the 
driver's side of the windshield, it was likely the driver of the car 
was not wearing a seatbelt at the time of the crash.\87\ He said this 
was confirmed during his review of the vehicle's on-board Crash Data 
Retrieval System report.\88\
---------------------------------------------------------------------------

    \86\ Id. at 270-71.
    \87\ Id. at 286-91.
    \88\ Id. at 279-81.
---------------------------------------------------------------------------

    The Government also presented the testimony of Palm Beach County 
Deputy Sheriff Judith Little, who testified regarding the condition of 
Dr. Holder's Cadillac on the morning after the crash. Specifically, 
Deputy Sheriff Little said she discovered the prescription bottle that 
had been issued to Patient S.S., located inside the vehicle.\89\ She 
counted the pills inside the vial, and determined there were 41 pills 
remaining in the 60-pill June 11, 2008 prescription.\90\ Palm Beach 
County Detective Daniel Morgado, too, testified about his review of the 
crash scene and vehicle in the morning after the crash.\91\ He said he 
received the prescription bottle and determined that Dr. Holder had 
issued the prescription out of MD Now's office for Patient S.S.\92\ 
There is

[[Page 71633]]

no direct testimony from Dr. Holder accounting for the nineteen 
Adderall tablets missing from the prescription bottle found in Dr. 
Holder's Cadillac after the June 13, 2008 crash, although Patient S.S. 
acknowledged taking no more than four tablets prior to delivering the 
vial to Dr. Holder.\93\
---------------------------------------------------------------------------

    \89\ Id. at 396.
    \90\ Id.
    \91\ Id. at 426-28.
    \92\ Id. at 429.
    \93\ Id. at 212-213.
---------------------------------------------------------------------------

    Respondent subsequently was criminally charged in Palm Beach County 
with driving under the influence, possession of amphetamines, driving 
on a suspended license, and obtaining amphetamines by fraud. The State 
of Florida subsequently issued a nolle prosse for all criminal 
charges.\94\
---------------------------------------------------------------------------

    \94\ A.L.J. Ex. 31 at 2.
---------------------------------------------------------------------------

    Regarding the crash, Dr. Holder presented the testimony of Kester 
Jimmy Nedd, M.D., who treated Dr. Holder upon his arrival at the 
hospital.\95\ Dr. Nedd is a board certified neurologist and is the 
Medical Director for Neurological Rehabilitation at Jackson Memorial 
Hospital.\96\ Dr. Nedd testified that from his review of treatment 
records, he was of the opinion that Dr. Holder ``suffered a severe 
traumatic brain injury with hemorrhage in the brain'' and that this 
``resulted in cognitive impairment.'' \97\ He said Dr. Holder suffered 
from ``post-traumatic amnesia, where he was in a state of confusion and 
not able to form new memory. This lasted maybe up to, even up to when 
he left the rehabilitation center,'' at which point Dr. Nedd followed 
him at the outpatient center.\98\
---------------------------------------------------------------------------

    \95\ Tr. at 509.
    \96\ Id. at 508-09.
    \97\ Id. at 510.
    \98\ Id.
---------------------------------------------------------------------------

    According to Dr. Nedd, Dr. Holder's ``cognitive symptoms include 
trouble with judgment, reasoning, [and] executive function.'' \99\ Dr. 
Nedd testified that even after many years, Dr. Holder ``was still 
having issues,'' \100\ explaining that ``for many patients with 
traumatic brain injury, this could be a life-long issue.'' \101\ He 
added that he ``would expect that [Dr. Holder] would have trouble 
recalling events'' associated with the 2008 crash.\102\ He added that 
not only might someone with these symptoms have difficulty remembering 
the events relating to the crash, such a person might also substitute 
alternative facts for what actually happened, called ``confabulation,'' 
where ``the patient actually combines many pieces of information and 
it's not always truthful.'' \103\
---------------------------------------------------------------------------

    \99\ Id. at 510-11.
    \100\ Id. at 512.
    \101\ Id.
    \102\ Id. at 515-16.
    \103\ Id. at 519.
---------------------------------------------------------------------------

The Misrepresentation of Dr. Holder's Record of Suspensions

    Dr. Holder acknowledged that on January 26, 2009, the Florida 
Department of Health issued an Emergency Suspension of his license to 
practice medicine.\104\ He did not dispute that the Departmental action 
was the result of his illegal and unprofessional conduct surrounding 
his prescriptions to Patient S.S., as well as his unlawful possession 
and use of Adderall, and the subsequent traffic crash and DUI 
arrest.\105\ Further, he acknowledged that on June 19, 2009, the 
Florida Board of Medicine issued a final order indefinitely suspending 
his medical license in Florida.\106\
---------------------------------------------------------------------------

    \104\ Id. at 614 and A.L.J. Ex. One at 2.
    \105\ Tr. at 614 and A.L.J. Ex. One at 2.
    \106\ Tr. at 614 and A.L.J. Ex. One at 2.
---------------------------------------------------------------------------

    Dr. Holder also acknowledged that on March 25, 2011, he applied for 
a medical license in Minnesota; and that the licensure committee of the 
Minnesota Board of Medical Practice initially recommended denial of the 
application for his failure to show good moral character.\107\ He 
further agreed that in November 2011, he was granted a restricted and 
conditional medical license in Minnesota.\108\
---------------------------------------------------------------------------

    \107\ Tr. at 614 and A.L.J. Ex. One at 2.
    \108\ Tr. at 614 and A.L.J. Ex. One at 2.
---------------------------------------------------------------------------

    The application for a DEA Certificate of Registration requires 
applicants to answer the following question: ``[h]as the applicant ever 
surrendered (for cause) or had a state professional license or 
controlled substance registration revoked, suspended, denied, 
restricted, or placed on probation, or is any such action pending?'' 
\109\ Despite holding a restricted and conditional license in 
Minnesota, and despite having had his Florida license suspended, when 
asked this question in his application for a DEA Certificate of 
Registration on March 7, 2012, Dr. Holder answered in the 
negative.\110\
---------------------------------------------------------------------------

    \109\ Gov't Ex. Two at 3.
    \110\ Id.
---------------------------------------------------------------------------

    On July 19, 2012, Diversion Investigators McKenna and Joseph 
Cappello met with Dr. Holder and Dr. Holder's attorney, Kent G. 
Harbison, of Fredrikson & Byron, P.A., Minneapolis, Minnesota. 
Investigator McKenna said she questioned Dr. Holder about this response 
as part of her investigation, prior to the issuance of the Order to 
Show Cause. According to Investigator McKenna,

    [Dr. Holder] answered on the application no. When I asked him 
about that, he said that he didn't understand the question, that he 
wasn't intending to lie, at which time Mr. Harbison interjected, 
``why would he lie when he knew it was public record?'' but I had 
no, I don't know why he would or wouldn't do such a thing, so I 
showed him the application. And then he said that he didn't read the 
question thoroughly, and that's when I showed him a sample 
application that I had.\111\
---------------------------------------------------------------------------

    \111\ Tr. at 463.

    According to Investigator McKenna, upon being presented with the 
---------------------------------------------------------------------------
sample application, Dr. Holder:

    [W]ent through it and he underlined the first word--
``surrendered''--and stopped. I then went on and underlined the 
rest: ``Revoked, suspended, denied, restricted or placed on 
probation, or is any other such action pending?''
    MR. LAWSON: So in other words, he was trying to tell you that he 
answered the question properly because he had never surrendered?
    MS. MCKENNA: That could have been the suggestion, and I [asked] 
about his training as a student for medical doctor and sitting for 
Boards, and I asked him if during those occasions, ``did you just 
gloss over the questions or did you read them thoroughly in order to 
answer them?'' And he said he didn't gloss over.\112\
---------------------------------------------------------------------------

    \112\ Id. at 463-64.
---------------------------------------------------------------------------

Dr. Holder's Lack of Candor in the Investigative Process

    In its Order to Show Cause, the Government averred the existence of 
multiple instances in which it appeared Dr. Holder had been other than 
forthright and honest with state regulators and the DEA.\113\ These 
instances included the following:
---------------------------------------------------------------------------

    \113\ A.L.J. Ex. One at 3.
---------------------------------------------------------------------------

    1. Dr. Holder provided inconsistent statements with respect to the 
number of doses of Adderall he consumed prior to the automobile crash, 
and gave inconsistent statements regarding how he obtained the 
medication, including a claim that the presence of Adderall (in the 
bottle bearing the prescription he wrote to Patient S.S.) was the 
product of Florida law enforcement officers planting the bottle in his 
car, or, alternatively, had been provided by an unnamed colleague at 
work.\114\
---------------------------------------------------------------------------

    \114\ Id.
---------------------------------------------------------------------------

    2. Dr. Holder attributed a positive screen for marijuana to be the 
result of a false positive, rather than to his own use of the 
drug.\115\
---------------------------------------------------------------------------

    \115\ Id.
---------------------------------------------------------------------------

    3. Dr. Holder provided evasive answers to DEA agents regarding his 
past use of controlled substances, and refused multiple requests from 
the DEA seeking the release of records showing

[[Page 71634]]

his participation in court-ordered monitoring in Florida through the 
Florida Professional Resource Network, and during regulatory monitoring 
required in Minnesota by the Minnesota Health Professional Services 
Program.\116\
---------------------------------------------------------------------------

    \116\ Id.
---------------------------------------------------------------------------

    4. Records of drug screening results during court-ordered 
monitoring included positive testing for opiates on one occasion, the 
submission of a diluted urine sample on another, and skipping a call 
for random sampling on another occasion.\117\
---------------------------------------------------------------------------

    \117\ Id.
---------------------------------------------------------------------------

    Diversion Investigator Jack Henderson testified with respect to the 
process by which his office evaluated Dr. Holder's March 2012 
application for a DEA Certificate of Registration in Minnesota. 
Investigator Henderson is in charge of the diversion control program 
for the DEA in the Minneapolis/St. Paul District office.\118\ After the 
application was received on March 8, 2012, Investigator Henderson's 
office began the process of reviewing the responses Dr. Holder provided 
in his application.\119\ By June 3, 2013, Investigator Henderson had 
determined that it appeared Dr. Holder had provided ``inconsistent and 
potentially false information'' to the DEA, warranting the issuance of 
a show cause order regarding the application.\120\
---------------------------------------------------------------------------

    \118\ Tr. at 326.
    \119\ Id. at 326-27.
    \120\ Id. at 327.
---------------------------------------------------------------------------

    Asked to provide specific instances that gave rise to his 
determination, Investigator Henderson noted first a discrepancy 
regarding the number of dosages of Adderall Dr. Holder admitted to 
consuming on the evening of the crash.\121\ Investigator Henderson said 
he understood Dr. Holder acknowledged taking one unit, but when asked 
about this on June 3, 2013, ``he told me that he could have taken on 
that evening between four and six dosage units, but more than likely it 
was five.'' \122\
---------------------------------------------------------------------------

    \121\ Id. at 328.
    \122\ Id.
---------------------------------------------------------------------------

    Investigator Henderson also identified the business record 
reflecting the answers provided by Dr. Holder to the questions 
appearing on the online application Dr. Holder submitted in March 
2012.\123\
---------------------------------------------------------------------------

    \123\ Id. at 334-35. Note: The print-out of this document has a 
caption stating ``DEA Form 224--Completed,'' and was identified by 
Investigator Henderson as a true copy of Dr. Holder's application. 
Investigator Henderson acknowledged that the document (shown as 
Government Exhibit 53) bears a header that reads ``Page 1 of 3,'' 
but testified that to the best of his recollection, the form 
consists of two pages, not three, and he provided copies of both 
pages to Dr. Holder's counsel upon receiving a request for the same 
in July 2014. Tr. at 332-34.
---------------------------------------------------------------------------

    Also working out of the DEA's Minneapolis/St. Paul district 
office,\124\ Investigator McKenna was the lead investigator responsible 
for evaluating Dr. Holder's March 2012 application.\125\ She explained 
that a registration specialist in the office initially reviewed Dr. 
Holder's application, then checked to see if there were any records of 
board orders regarding Dr. Holder's past history.\126\ She said Dr. 
Holder did not disclose such a history, so when the specialist found 
evidence that the medical boards in Florida and Minnesota had taken 
action regarding Dr. Holder's licenses in those states, the file was 
forwarded to the investigator.\127\ Because her testimony was 
internally consistent, consistent with the evidence generally, and not 
contradicted by any other reliable testimony or evidence, I found her 
testimony to be credible and gave it great weight.
---------------------------------------------------------------------------

    \124\ Tr. at 440.
    \125\ Id. at 442.
    \126\ Id. at 442-43.
    \127\ Id. at 443-44. Upon inquiry, Investigator McKenna also 
confirmed testimony by Investigator Henderson regarding the printed 
copy of this application, stating that the document is two pages 
long, not three, and that there are no questions presented to the 
applicant other than those shown on pages three and four of 
Government Exhibit Two. Tr. at 446.
---------------------------------------------------------------------------

    The application includes Question Three, which asks ``[h]as the 
applicant ever surrendered (for cause) or had a state professional 
license or controlled substance registration revoked, suspended, 
denied, restricted, or placed on probation, or is any such action 
pending?'' \128\ In his application, Dr. Holder responded in the 
negative to this question.\129\ Investigator McKenna then identified 
documents establishing that Dr. Holder's medical license had been 
suspended and was currently on probation in Florida, and was restricted 
in Minnesota.\130\
---------------------------------------------------------------------------

    \128\ Gov't Ex. Two at 3.
    \129\ Id.
    \130\ Id. at 448 and Gov't Exs. 46 through 50.
---------------------------------------------------------------------------

    Investigator McKenna said that when assigned to review an 
application, her first task is to check for orders from state boards, 
apparently replicating the task attributed to the DEA registration 
specialist.\131\ Doing so, Investigator McKenna found the record of 
disciplinary action taken with respect to Dr. Holder's medical licenses 
in both Florida and Minnesota.\132\ Upon making these findings, she 
then sought copies of the drug monitoring program reports from Florida 
(i.e., the Professional Resource Network, or PRN, report), and 
Minnesota (the Health Professional Services Program, or HPSP, 
report).\133\ She explained that she needed to see the contents of 
these reports in order to corroborate what Dr. Holder was telling 
her.\134\ She said she specifically wanted to learn what Dr. Holder's 
diagnoses and prognoses were, and whether there were issues relating to 
his treatment that were being addressed or had been addressed in the 
past.\135\
---------------------------------------------------------------------------

    \131\ Tr. at 453.
    \132\ Id. at 453-54.
    \133\ Id.
    \134\ Id.
    \135\ Id.
---------------------------------------------------------------------------

    According to Investigator McKenna, Dr. Holder was not forthcoming 
with securing these reports:

    MR. LAWSON: Okay. And if you can remember, what sort of 
documents were you focused on collecting before you ever spoke with 
Dr. Holder?
    MS. MCKENNA: The Board orders, of course. And then I wanted to 
get the law enforcement file, the police reports, any supporting 
documentation to get a clearer picture of what the allegations were 
there.
    MR. LAWSON: Okay. Now your investigation went on for quite a 
long time. Is that correct?
    MS. MCKENNA: Yes, sir. It did.
    MR. LAWSON: All right. Why did it take so long?
    MS. MCKENNA: On numerous occasions, I requested the HPSP and PRN 
records from Dr. Holder in order to afford him the opportunity to 
present his side, so to speak. On those occasions, I would get, 
``I'll get them for you,'' or I would remind him that I was still 
waiting for them, and I never really received much, if 
anything.\136\
---------------------------------------------------------------------------

    \136\ Id. at 455.

    Investigator McKenna said she asked for these reports during the 
meeting on July 19, 2012, at which time Dr. Holder told her he ``would 
look for them.'' \137\ He failed to produce the records, and when 
Investigator McKenna repeated the request during a discussion on August 
25, 2012, Dr. Holder again offered to provide them.\138\ When that 
failed, she
---------------------------------------------------------------------------

    \137\ Id. at 464.
    \138\ Id. at 469-70.

    [A]ttempted to subpoena the records and was instructed I would 
need a court order or a release from Dr. Holder. I then presented 
him with a release, one each for Florida, one for Minnesota, on 
August 13th of 2013, I believe it was, and asked him if he would 
consent to me receiving the records personally.
    MR. LAWSON: And was August 13th the date that you actually 
presented, did you actually go ahead and complete, fill out the 
release forms?
    MS. MCKENNA: Yes, sir. I had the release forms completed. I 
brought them to him at his place of business, at, Whittier Clinic, 
and presented them to him personally.\139\
---------------------------------------------------------------------------

    \139\ Id. at 455-57.


[[Page 71635]]


---------------------------------------------------------------------------

    On August 23, 2013, however, Dr. Holder informed Investigator 
McKenna that he would not sign the release for either set of 
records.\140\
---------------------------------------------------------------------------

    \140\ Id. at 479.
---------------------------------------------------------------------------

    In the course of her investigation, Investigator McKenna learned of 
``three different occasions where [Dr. Holder] either tested positive 
for opiates, had a diluted [urine] sample, or missed a testing date.'' 
\141\ When in November 2012 she asked Dr. Holder if he completed the 
Florida program, Dr. Holder said that he had completed the 
program.\142\ Investigator McKenna then testified: ``I said `no. In 
fact, you didn't complete the program.' And that's when he said that he 
withdrew from the program because it was taking too long.'' \143\
---------------------------------------------------------------------------

    \141\ Id. at 471.
    \142\ Id. at 472.
    \143\ Id. at 472.
---------------------------------------------------------------------------

    During this conversation, Dr. Holder again stated he would look for 
records of his participation in PRN and HPSP, but again failed to 
provide the requested records, a process that repeated itself when 
Investigator McKenna met with Dr. Holder in person on January 4, 
2013.\144\ At that meeting, Dr. Holder provided 82 pages of records, 
the most significant of which were five pages of treatment records 
written by Marilyn Miller, Dr. Holder's contact at HPSP.\145\
---------------------------------------------------------------------------

    \144\ Id. at 473.
    \145\ Id. at 474.
---------------------------------------------------------------------------

Evidence of Respondent's Acknowledgement of Wrongdoing and Remediation

    Testifying on behalf of Dr. Holder, Ms. Miller said she provides 
case management services at the Health Professionals Services Program 
(HSPS) in Minnesota.\146\ Due to Dr. Holder's failure to supply a 
release reflecting Ms. Miller's treatment records, it is unclear 
whether the records of her services have been fully presented in this 
proceeding.
---------------------------------------------------------------------------

    \146\ Id. at 532.
---------------------------------------------------------------------------

    Pursuant to 21 CFR 1301.15,\147\ the Administrator may require an 
applicant to submit such documents or written statements of fact 
relevant to the application as the Administrator deems necessary to 
determine whether the application should be granted. This regulation 
provides that ``[t]he failure of the applicant to provide such 
documents or statements within a reasonable time after being requested 
to do so shall be deemed to be a waiver by the applicant of an 
opportunity to present such documents or facts for consideration by the 
Administrator in granting or denying the application.''
---------------------------------------------------------------------------

    \147\ 21 CFR 1301.15 Additional information. The Administrator 
may require an applicant to submit such documents or written 
statements of fact relevant to the application as he/she deems 
necessary to determine whether the application should be granted. 
The failure of the applicant to provide such documents or statements 
within a reasonable time after being requested to do so shall be 
deemed to be a waiver by the applicant of an opportunity to present 
such documents or facts for consideration by the Administrator in 
granting or denying the application.
---------------------------------------------------------------------------

    The record here establishes that Dr. Holder failed to provide a 
release that would permit Diversion Investigator McKenna to obtain a 
complete record of monitoring by HPSP, creating an instance where by 
operation of this regulation, Dr. Holder has waived the opportunity to 
present HPSP records for consideration in this application. The 
Government timely objected to the presentation of Ms. Miller's 
testimony, based on 21 CFR 1301.15.\148\ Finding the objection is well-
taken, I limit my use of Ms. Miller's testimony. I do consider as 
uncontroverted Ms. Miller's description of the purpose of the Minnesota 
HPSP. The program, according to Ms. Miller, ``is a state program that 
was created by the Health Licensing Boards in 1994 to monitor health 
professionals with illnesses that could potentially impair their 
ability to practice with reasonable skill and safety.'' \149\ According 
to Ms. Miller, under this program (which is not managed by the state 
medical board), she monitors participants for ``substance problems, 
psychiatric problems, and medical conditions.'' \150\
---------------------------------------------------------------------------

    \148\ Tr. at 520.
    \149\ Id. at 523.
    \150\ Id.
---------------------------------------------------------------------------

    I do not consider as substantive evidence Ms. Miller's proffer of 
facts regarding Dr. Holder's progress in the HPSP program. Although Ms. 
Miller testified that a substance abuse treatment plan has been 
established for Dr. Holder, and that Dr. Holder complied with that 
plan, it is not clear from the record before me that a complete record 
of treatment has ever been produced for the Administrator's 
consideration. Ms. Miller testified that while Dr. Holder provided 
releases authorizing potential employers and credentialing agencies to 
see the full record of monitoring at HPSP, Dr. Holder did not provide a 
similar release that would have authorized the DEA to see these 
records.\151\
---------------------------------------------------------------------------

    \151\ Id. at 528.
---------------------------------------------------------------------------

    The evidence establishes that Dr. Holder requested and received 
from HPSP a copy of his case file as it existed on September 18, 
2012,\152\ but it appears this case file has not been provided to the 
Government and does not appear as part of the record of this 
proceeding. Given Dr. Holder's explicit determination to withhold from 
the Administrator the record of his experience at PRN in Florida and 
his refusal to sign a release allowing the DEA access to the full 
record of his experience in Minnesota, I give no weight to the balance 
of Ms. Miller's testimony, including her statement that Dr. Holder has 
met all of the conditions of monitoring at HPSP.\153\
---------------------------------------------------------------------------

    \152\ Id. at 535.
    \153\ See id. at 526-27.
---------------------------------------------------------------------------

    Further, I note with concern Ms. Miller's testimony that 
established June 2008 as Dr. Holder's date of sobriety.\154\ As the 
Government brought forward during its examination of Ms. Miller, it 
appears Ms. Miller used this as Dr. Holder's sobriety date without 
knowing that Dr. Holder tested positive for unprescribed opiate use 
while a participant in the Florida PRN program, that he submitted a 
diluted urine sample while in that program, and that these events arose 
after June 2008.\155\ Accordingly, I give no weight to Ms. Miller's 
testimony that Dr. Holder has a continuous sobriety date of June 2008.
---------------------------------------------------------------------------

    \154\ Id. at 532.
    \155\ Id. at 533.
---------------------------------------------------------------------------

    As of April 2013, Investigator McKenna still did not have records 
of treatment from PRN, and renewed her request for those and for 
records not yet provided from HPSP.\156\ No records were forthcoming, 
however, so Investigator McKenna went to see Dr. Holder at his 
workplace, presenting him with releases allowing the release of PRN and 
HPSP records.\157\ Dr. Holder elected not to sign the releases, telling 
Investigator McKenna he had given her all of the records and saying 
that before he approved the releases, he wanted to consult with his 
sister, who is an attorney.\158\ On August 23, 2013, Investigator 
McKenna called Dr. Holder regarding the releases. She testified that 
Dr. Holder said ``he had already given me all of HPSP's records, that 
PRN's records were full of inaccuracies, and that it would be 
inappropriate for me to have that information and to use it at this 
point.'' \159\ As a result, records of Dr. Holder's participation in 
and withdrawal from the court-ordered monitoring by PRN in Florida are 
not available for the Administrator's review.
---------------------------------------------------------------------------

    \156\ Id. at 478.
    \157\ Id.
    \158\ Id. at 479.
    \159\ Id.
---------------------------------------------------------------------------

    It bears noting that on the day testimony began in this case, Dr. 
Holder reported that he experienced a seizure of unknown duration the 
day before, one that came upon him without advance warning, during 
which he lost

[[Page 71636]]

consciousness for a few moments and afterwards had ``a little bit of a 
headache and [was] a bit confused.'' \160\ Dr. Holder explained that he 
could not anticipate when such a seizure would occur, although he 
``attribute[d] a lot of it to like extreme fatigue.'' \161\ He said 
that he has an unrestricted Minnesota driver license, despite the fact 
that if he were driving when such a seizure occurred, there would be 
nothing he could do to safely pull over.\162\ When asked whether the 
condition could be controlled by medication, Dr. Holder explained that 
``[i]t was recommended by a neurologist that I take medication,'' but 
Dr. Holder has elected not to follow that recommendation and currently 
takes no medication for this condition.\163\
---------------------------------------------------------------------------

    \160\ Id. at 80-81.
    \161\ Id. at 82.
    \162\ Id.
    \163\ Id. at 83.
---------------------------------------------------------------------------

    Also noteworthy are the impressions created during this 
administrative proceeding, by the character of Dr. Holder's responses 
to questions put to him during the evidentiary hearing. In many 
respects, the material facts presented by the Government in its Order 
to Show Cause had in one form or another been stipulated to in advance 
of the hearing, or were not disputed when Dr. Holder was directly 
questioned about them. In his closing statement, Dr. Holder accurately 
states that ``at the end of the hearing Dr. Holder . . . acknowledged 
that there were no factual disputes with respect to paragraph 2-6 of 
the Government's Notice [sic] to Show Cause.'' \164\
---------------------------------------------------------------------------

    \164\ Respondent's Written Closing Statement at 11 (citing Tr. 
at 611-16).
---------------------------------------------------------------------------

    Despite having stipulated to key material facts, however, Dr. 
Holder frequently proved to be either unable or unwilling to respond 
directly to questions about the evidence that supported those facts. 
For example, in advance of the hearing the parties stipulated that on 
June 4, 2008, Respondent saw Patient S.S., a 25 year old male, at MD 
Now's Royal Palm Beach facility, and that he prescribed Patient S.S. 30 
tablet of Percocet 10/325 and 30 tablets of 2 mg Xanax XR (extended 
release), later orally changed to 60 tablets Xanax (immediate 
release).\165\
---------------------------------------------------------------------------

    \165\ A.L.J. Ex. 31 at 1, Stipulation Three.
---------------------------------------------------------------------------

    When the Government presented copies of the prescriptions 
(Government Exhibit 5) to Dr. Holder, however, and asked that he 
identify them, Dr. Holder's answers were less than direct.

    MR. LAWSON: Dr. Holder would you just take a look at the 
documents at Exhibit 5? And those are three prescriptions issued to 
Patient SS, correct?
    DR. HOLDER: That's what it appears to be.
    MR. LAWSON: And is that your signature on those prescriptions?
    DR. HOLDER: That is my signature.
    MR. LAWSON: All right. And so you issued those prescriptions to 
Patient SS on June 4, 2008?
    DR. HOLDER: Seems like it.\166\
---------------------------------------------------------------------------

    \166\ Tr. at 92-93.

    Similar deflection can be found when Dr. Holder was asked about his 
decision to prescribe Adderall to Patient S.S. When asked whether there 
were any factual misstatements appearing in paragraph three in the 
Order to Show Cause, Dr. Holder answered in the negative.\167\ That 
paragraph alleges on June 11, 2008 Dr. Holder issued a prescription for 
60 tablets of 30 mg Adderall to Patient S.S. without conducting an 
examination, without making a diagnosis for any condition calling for 
the prescription, and without making any documentation to support the 
prescription.\168\
---------------------------------------------------------------------------

    \167\ Id. at 611.
    \168\ A.L.J. Ex. One at 2.
---------------------------------------------------------------------------

    When the Government asked Dr. Holder to explain why the June 11, 
2008 prescription was hand-written when others in the record were 
computer-generated, however, Dr. Holder offered a different account of 
the circumstances leading to the issuance of this prescription:

    MR. LAWSON: Okay. And can you tell me why that is a handwritten 
prescription versus the electronically generated prescriptions in 
the previous exhibit?
    DR. HOLDER: Yes, well what I assume what's going on here is it 
seems that he came to this visit, which the previous prescriptions 
were, and if you look, they are dated different dates as well. And 
then if you look at this one um, which was on 11th, meaning that we, 
it's not infrequent that people come in after the appointment 
wanting medications that they usually get and I was refilling those 
medicines.
    MR. LAWSON: Sir, are you saying that the prescription you issued 
on June 11th to SS was a refill of a prescription he usually gets?
    DR. HOLDER: Yes, I am.\169\
---------------------------------------------------------------------------

    \169\ Tr. at 95.

    Dr. Holder also exhibited a marked tendency not to fully disclose 
information that may call into question his ability to comply with the 
law, doing so both in his representations to the Minnesota Board, and 
in his testimony before me.
    In the following exchange, Government's counsel brought to Dr. 
Holder's attention the answers appearing in Dr. Holder's application 
for licensure in Minnesota, with respect to criminal convictions. The 
application question, Question 12, provides as follows:

    Have there ever been any criminal charges filed against you? 
This includes charges of disorderly conduct, assault or battery, or 
domestic abuse, whether the charges were misdemeanor, gross 
misdemeanor, or felony. This also includes any offenses which have 
been expunged or otherwise removed from your record by executive 
pardon. If so, give particulars, including the date of conduct, 
state and local jurisdiction in which the charges were filed.\170\
---------------------------------------------------------------------------

    \170\ Gov't Ex. 34 at 6.

    In the space provided, Dr. Holder wrote ``please view addendum.'' 
\171\ The addendum describes charges arising from the June 13, 2008 
vehicle crash, but no other criminal charges are reported.\172\ When 
questioned about the true state of his criminal record, Dr. Holder 
testified as follows:
---------------------------------------------------------------------------

    \171\ Id.
    \172\ Id. at 9-10.

    MR. LAWSON: Okay. And Question 12 asks whether any criminal 
charges have been filed against you and you circled yes and said, 
please view addendum, right?
    DR. HOLDER: Yes.
    MR. LAWSON: And so your addendum is part of your application, 
correct? Because you had to give an explanation for positive 
answers?
    DR. HOLDER: Yes, it is.
    MR. LAWSON: And I guess going back to the last question I asked 
you about, did you in that addendum disclose every instance in which 
criminal charges had been filed against you?
    DR. HOLDER: I focused specifically on the incidents of June--
    ADMIN. JUDGE MCNEIL: You need to answer yes or no to begin that.
    DR. HOLDER: Okay. Yes. Well. Yes.
    MR. LAWSON: So your addendum discloses every instance in your 
life in which criminal charges have been filed against you?
    DR. HOLDER: In my life. Perhaps there were charges, maybe filed 
against me another time that I did not mention. So, so maybe it's 
no. The answer is no.
    MR. LAWSON: So the answer then is that you didn't answer that 
question completely and truthfully on that form? That's a yes or no 
question, Dr. Holder.
    DR. HOLDER: I was--
    ADMIN. JUDGE MCNEIL: Answer the question, please. Completely and 
truthfully. So go to completely first. Did you answer it completely?
    MR. LAWSON: Dr. Holder, did you answer, in your addendum did you 
completely disclose every instance in which criminal charges have 
been filed against you?
    DR. HOLDER: Let me read the question again. What's the question 
that you are pointing to on the, the Minnesota Board application? 
Because I'm certain I was truthful.
    MR. LAWSON: It is Question 12 on Page 6 of the form. And I will 
specifically point out to you that it says it includes charges of 
disorderly conduct, assault or battery, or domestic abuse; whether 
those charges were misdemeanor, gross misdemeanor or felony

[[Page 71637]]

and includes charges that have been expunged.
    DR. HOLDER: And also, it may not have been complete, but it was 
truthful.
    MR. LAWSON: So you were truthful about the charges you chose to 
disclose?
    DR. HOLDER: And the charges that I thought were actually most 
important.
    MR. LAWSON: But you had, in fact, you've been charged with other 
crimes besides the one stemming from the June 13, 2008 accident, 
correct?
    DR. HOLDER: I think disorderly conduct before.
    MR. LAWSON: Right.
    DR. HOLDER: But this was, the charges were dismissed.
    MR. LAWSON: Right. They were dismissed, but they were charges 
for disorderly conduct, correct?
    DR. HOLDER: I vaguely remember, but you know, I don't know the 
details about that. Nothing came of that incident.
    ADMIN. JUDGE MCNEIL: I'll take that as a yes.\173\

    \173\ Tr. at 149-52.

    I also note with concern the question of whether Dr. Holder was 
forthright in his communication with the medical boards in Florida and 
Minnesota in other respects. In describing his recollection of events 
immediately before and after the motor vehicle crash on June 13, 2008, 
Dr. Holder told me he remembered none of the circumstances of the 
crash.\174\ He made no similar claim when describing the crash to the 
Minnesota Board of Medical Practice.
---------------------------------------------------------------------------

    \174\ Id. at 107.
---------------------------------------------------------------------------

    In his Minnesota application, dated March 18, 2011, Dr. Holder 
stated that he had a seizure while driving on June 13, 2008; and that 
``[a] collision with a sign post followed. Both the passenger and I 
were in seatbelts and only suffered minor injuries form [sic] airbag 
deployment.'' \175\ During this hearing, however, Palm Beach Sheriff's 
Office Investigator Robert Stephan credibly testified that the evidence 
gathered at the scene of the crash established the driver of the 
Cadillac was not wearing a seatbelt at the time of the crash.\176\ 
Further, passenger N.P. credibly testified that she suffered a serious 
cut to her leg, dislocation of her elbow, and multiple spinal injuries, 
and sustained in excess of $100,000 in medical expenses.\177\ Dr. 
Holder indirectly confirmed the severity of N.P.'s injuries, testifying 
that his insurer, Progressive Auto, paid in excess of $100,000 to 
settle N.P.'s civil lawsuit against him.\178\ Dr. Holder's statement to 
the Minnesota Board, however, made no mention of these details.\179\ 
Instead, he attributed his injuries to being repeatedly tazed and 
beaten by seven police officers who responded to the scene of the 
crash.\180\ He also minimized the injuries sustained by his passenger, 
reporting only that she ``was treated for an elbow injury on scene,'' 
without disclosing N.P.'s hospitalization and subsequent treatment for 
orthopedic dislocation and spinal injuries.\181\
---------------------------------------------------------------------------

    \175\ Gov't Ex. 34 at 9.
    \176\ Tr. at 279-81, 286-91.
    \177\ Id. at 66-71.
    \178\ Id. at 147.
    \179\ Id.
    \180\ Id.
    \181\ Id.
---------------------------------------------------------------------------

    Beyond what appears to be Dr. Holder's tendency to minimize the 
injuries he and N.P. suffered as a result of this crash, there is also 
the unresolved inconsistency regarding his capacity to describe N.P.'s 
condition after the crash. During the hearing, Dr. Holder repeatedly 
testified that he remembered none of the circumstances of the 
crash,\182\ at one point claiming that his knowledge of the events at 
the time of the crash was based on police reports, not his own 
independent recollection.\183\ Indeed, the thrust of testimony from his 
treating physician, Dr. Nedd, was that the injuries Dr. Holder 
sustained in the crash likely impaired his ability to recall what 
happened at the time of the crash.\184\ Dr. Holder's representations to 
the Florida and Minnesota medical boards, however, do not reflect the 
presence of any such cognitive impairment, nor do they indicate that 
his answers were based on his reliance on police reports; to the 
contrary, his answers appear to reflect descriptions based on his own 
knowledge and recollection.
---------------------------------------------------------------------------

    \182\ Id. at 107, 118.
    \183\ Id. at 118.
    \184\ See id. at 510-17.
---------------------------------------------------------------------------

    Similarly, Dr. Holder's representations to the Minnesota Board 
differed significantly from what he presented during this 
administrative hearing with respect to his possession of Adderall at 
the time of the crash. As noted above, in order to demonstrate that he 
has accepted responsibility for engaging in the conduct attributed to 
him in paragraphs two through six in the Order to Show Cause, Dr. 
Holder ``acknowledged that there were no factual disputes with respect 
to paragraph 2-6'' of the Order to Show Cause.\185\ In paragraph four 
of that Order, the Administrator alleged that Dr. Holder issued the 
Adderall prescription to Patient S.S. ``solely in order to illegally 
obtain amphetamines for [his] own personal use,'' and not for any 
legitimate medical purpose.\186\ On the other hand, Dr. Holder withheld 
from the Minnesota Board any reference to Patient S.S., nor did he 
mention taking Adderall on the evening of the crash, averring instead 
that he ``did use Adderall as used for ADHD without a prescription 
while working long hours. I acquired from a colleague who worked in the 
Urgent Care where I worked.'' \187\ During the hearing before me, 
however, when asked whether he had been diagnosed with ADHD, Dr. Holder 
answered in the negative.\188\
---------------------------------------------------------------------------

    \185\ Respondent's Written Closing Statement at 11; A.L.J. Ex. 
One at 2.
    \186\ Respondent's Written Closing Statement at 11; A.L.J. Ex. 
One at 2.
    \187\ Gov't Ex. 34 at 10.
    \188\ Tr. at 108.
---------------------------------------------------------------------------

    Also of concern was Dr. Holder's account of his use of Adderall on 
the day of the crash. Initially, Dr. Holder told Diversion Investigator 
McKenna he had taken one tablet of Adderall on the day before the 
crash.\189\ After receiving the toxicology report from the crash (i.e., 
the University of Florida Diagnostic Reference Laboratory Report of Dr. 
Bruce A. Goldberger) \190\ and reviewing Dr. Goldberger's deposition 
from the criminal case involving Dr. Holder, Investigator McKenna 
returned to the subject with Dr. Holder during an interview on August 
25, 2012.\191\ At that interview, Dr. Holder said ``he thinks he might 
have taken two [Adderall doses] that night.'' \192\ These accounts, 
further, are at odds with what Dr. Holder told Diversion Investigator 
Henderson on June 3, 2013, when ``[Dr. Holder] told me that he could 
have taken on that evening between four and six dosage units, but more 
than likely it was five.'' \193\
---------------------------------------------------------------------------

    \189\ Id. at 464-65.
    \190\ Gov't Ex. 14.
    \191\ Tr. at 469.
    \192\ Id.
    \193\ Id. at 328.
---------------------------------------------------------------------------

    No disclosure of such use appears in his description of the events 
as presented to the Minnesota Medical Board.\194\ While Dr. Holder does 
disclose that he was charged with unlawful possession of Adderall, with 
fraud to acquire a controlled substance, and with driving under a 
``sub-therapeutic'' level of Adderall in his blood, he does not 
acknowledge any misconduct with respect to Adderall.\195\ Instead, he 
reported that he elected not to appear before the Florida Medical 
Board, asserting that he was not ``physically or legally'' fit to 
participate in such a hearing; and that as a result, after he refused 
to appear before the Florida Board, ``they adopted the charges and 
incorporated the police report as their findings.'' \196\
---------------------------------------------------------------------------

    \194\ Gov't Ex. 34 at 9-10.
    \195\ Id.
    \196\ Id. at 10.
---------------------------------------------------------------------------

    During the hearing before me, Dr. Holder admitted using Adderall

[[Page 71638]]

immediately after accompanying Patient S.S. to fill the prescription on 
June 12, 2008, but did so ``because I wanted to stay alert.'' \197\ 
When asked ``Stay alert for what?'' Dr. Holder responded: ``Seeing 
patients. I wanted to be alert while I was seeing patients.'' When 
asked ``[s]o does that indicate to you then that you were in fact 
working on June 12, 2008 if you were taking Adderall?'' he responded 
``If I took it, then I probably was working, yes.'' \198\ When asked to 
identify by name the source of Adderall other than the prescription he 
wrote for Patient S.S., Dr. Holder testified that he ``would rather not 
mention his name,'' and then asserted the source was a medical 
colleague, a physician's assistant, working at MD Now whose first name 
is William and whose last name Dr. Holder could no longer recall.\199\ 
He acknowledged, however, that he has never disclosed to the management 
at MD Now that they had an employee who was unlawfully distributing 
controlled substances.\200\
---------------------------------------------------------------------------

    \197\ Tr. at 109.
    \198\ Id. at 109-10.
    \199\ Id. at 114-15.
    \200\ Id. at 118.
---------------------------------------------------------------------------

    When describing her interview of Dr. Holder (in the presence of Dr. 
Holder's attorney) during a meeting at the DEA on July 19, 2012, 
Diversion Investigator McKenna said that when she asked Dr. Holder 
about the bottle of Adderall found in his Cadillac immediately after 
the crash,

    [H]e said he said he had no knowledge of how the bottle got 
there. He suggested that law enforcement planted it. When I asked 
how would the police know to go to that particular individual and 
ask for that particular prescription, he said that the law 
enforcement was rifling through his cell phone and could have found 
his phone number in it, that he had a criminal history or criminal 
record.
    MR. LAWSON: Who had a criminal record?
    MS. MCKENNA: The patient on the bottle, SS.
    MR. LAWSON: So, he denied having any knowledge of how that 
bottle got in his car?
    MS. MCKENNA: He did deny it.\201\
---------------------------------------------------------------------------

    \201\ Id. at 460-61.

    In a similar manner, Dr. Holder gave what appear to be inconsistent 
accounts to the Minnesota Medical Board and to me during the hearing, 
with respect to his past use of Adderall. At the outset, Dr. Holder 
wanted me to know that while he agreed with the written statement 
submitted to the Minnesota Board, what was written there was not his 
own work but was instead written by his attorney.\202\ Justifying his 
duplicity, Dr. Holder stated ``like I said before, I did not write this 
document. I signed it. I read it and signed it. So I can't tell you 
exactly what, you know, I meant on this document.'' \203\
---------------------------------------------------------------------------

    \202\ Id. at 176.
    \203\ Id.
---------------------------------------------------------------------------

    Dr. Holder then acknowledged that the representation regarding his 
past use of Adderall appearing in his sworn statement to the Minnesota 
Board, dated August 8, 2011 was not true.\204\ There is, however, no 
evidence to date that Dr. Holder has ever brought this error to the 
attention of the Minnesota Board.
---------------------------------------------------------------------------

    \204\ Id. at 175-77 and Gov't Ex. 37 at 10-13.
---------------------------------------------------------------------------

    In his written statement to the Board, Dr. Holder makes reference 
to his past use of Adderall. Dr. Holder stated the following:

    It is true that, because of a stupid error of judgment, I did 
obtain improperly from a friend tablets of Adderall. I obtained 
Adderall only for the purpose of helping me stay alert during a 
period when I was working hard for many hours. I definitely do not 
have a ``drug problem,'' and have never had a history of anything 
even close to that. I realize and agree that what I did in obtaining 
the Adderall was wrong. I had never done that before and will never 
do it again.\205\
---------------------------------------------------------------------------

    \205\ Gov't Ex. 37 at 12 (emphasis sic).

    When asked if he agreed that his statement that he had never used 
Adderall before was a lie, Dr. Holder first denied it was a lie, then 
reiterated that ``I don't understand what this things written [sic]. I 
have a problem with this because I've got, I'm, like I'm mentioning, 
this is not written by me.'' \206\
---------------------------------------------------------------------------

    \206\ Tr. at 176-77.
---------------------------------------------------------------------------

    Under questioning by his attorney, Dr. Holder stated he knew 
diversion of prescription medications would be ``misusing my privilege 
to practice medicine and serve the community that I wish to serve,'' 
and said he would never divert medicine, under any circumstances.\207\ 
He said he's a changed man now, living a life that is different than 
the one he lived in 2008. Elaborating, he stated:
---------------------------------------------------------------------------

    \207\ Id. at 185.

    The way I've lived my life back then is very different from my 
life now, and I think one of the things that this whole opportunity 
has made me do, is really kind of surrender my will to my creator 
and I've always believed in, you know, Jesus Christ growing up, 
because that's what I learned. So as long as I've known myself, I've 
actually believed that Jesus was the Lord of all, etc. But I've 
never really surrendered my will, so being a very strong-willed 
person, I still kind of would do what I wanted to do, even though I 
would pray or go to church or whatever. And I think in this case, 
I've had to completely surrender my will and what I've found from 
this, is I have actually have reached a place of joy, advancement 
and completion. And going from the place where I lost everything, 
you know, with my trust and faith, has propelled me to the place 
where I am right now.\208\
---------------------------------------------------------------------------

    \208\ Id. at 186.

    Dr. Holder explained that he currently works as a doctor practicing 
urgent care at Whittier Clinic, in a ``family medicine residency.'' 
\209\ He lives with his wife (who attended much of the evidentiary 
hearing) and the couple's three-month old daughter, spending a lot of 
time with them and with his parents, who are part of his ``support 
system.'' \210\
---------------------------------------------------------------------------

    \209\ Id. at 187.
    \210\ Tr. at 187-88.
---------------------------------------------------------------------------

    Pursuant to orders from the Florida Board, Dr. Holder participated 
in monitoring and drug testing by Professional Resource Network, or 
PRN.\211\ According to Dr. Holder, PRN provides monitoring and testing 
``to make sure people are providing competent medicine.'' \212\ The 
criminal charges arising from the 2008 crash were reinstated for 
prosecution, but ultimately those charges were dropped.\213\ The 
Florida Medical Board, however, did not end its inquiry, but instead in 
June 2009 it issued a final order indefinitely suspending Dr. Holder's 
license to practice medicine.\214\ Dr. Holder testified that after 
being enrolled in a court-sponsored drug monitoring program in Florida, 
he left the program, and has never completed it.\215\
---------------------------------------------------------------------------

    \211\ Id. at 143-44.
    \212\ Id. at 144-45.
    \213\ Id. at 137-38.
    \214\ Id. at 139.
    \215\ Id. at 137.
---------------------------------------------------------------------------

    Dr. Holder explained that in November 2010 he submitted a petition 
to the Florida Medical Board, seeking reinstatement of his medical 
license.\216\ Included in that petition is the following description of 
Dr. Holder's status at the time of the petition, along with the 
requirements of PRN-based monitoring:

    \216\ Id. at 146.

    The related criminal matter has been referred for pre-trial 
intervention and Respondent is currently complying with the 
requirements for successfully completing the Circuit Court's 
requirements to avoid prosecution for those criminal charges. These 
requirements include successful completion of the Comprehensive 
Alcoholism Rehabilitation Program (CARP) as ordered by the Court. 
This is a program providing a continuum of care to individuals 
affected by alcoholism, drug dependency and co-occurring disorders 
and PRN is monitoring Respondent's participation in the CARP.\217\
---------------------------------------------------------------------------

    \217\ Id. and Gov't Ex. 30 at 12.


[[Page 71639]]


---------------------------------------------------------------------------

    Although from this description it appears Dr. Holder participated 
in monitoring by PRN and the CARP program, Dr. Holder elected not to 
complete the course of monitoring and refused to permit access to these 
records upon request by DEA Diversion Investigator.\218\ As a result, 
although he has been identified as a person affected by alcoholism, 
drug dependence and co-occurring disorders, Dr. Holder has effectively 
withheld from the Administrator records showing his treatment in 
Florida for these disorders.
---------------------------------------------------------------------------

    \218\ Tr. at 472, 479.
---------------------------------------------------------------------------

    The record reflects that the Florida Board, presumably having the 
benefit of PRN's full report of Dr. Holder's incomplete participation 
in CARP, did not grant Dr. Holder's request for an unconditional 
medical license.\219\ Instead, it required that for one year his 
practice be under direct supervision by a board certified physician who 
was to review all of Dr. Holder's prescriptions, and that his license 
be subject to a five year period of probation.\220\
---------------------------------------------------------------------------

    \219\ Id. at 146.
    \220\ Id. and Gov't Ex. 30 at 2-5.
---------------------------------------------------------------------------

    Also before me is testimony from Brenda Joyce McGuire, M.D., who 
spoke in support of Dr. Holder's application. Dr. McGuire's association 
with Dr. Holder began in 2011, when she and Dr. Holder were volunteers 
at an organization that was at the time called the African and American 
Friendship Association for Cooperation and Development.\221\ She 
testified that she holds Dr. Holder ``in high esteem,'' and that he has 
always ``shown a lot of caring for the people that he works with, that 
his medical knowledge is extremely good, and that he's always 
displayed, you know, good character, integrity, [and] compassion.'' 
\222\ She added that ``Minnesota is becoming increasingly diverse, with 
large populations of immigrants and refugees. Dr. Holder, being of 
African descent, born in Africa and raised in this country, relates 
well culturally and even linguistically with a lot of the refugees . . 
. and immigrants that we have here.'' \223\
---------------------------------------------------------------------------

    \221\ Tr. at 544.
    \222\ Id. at 546-47.
    \223\ Id. at 547.
---------------------------------------------------------------------------

    Dr. Holder also introduced the testimony of his mother, Wilhelmina 
Valerie Holder, M.D., a public health physician who currently serves as 
a community advocate who assists in decreasing ``health disparities'' 
and improving ``health equity.'' \224\ Dr. Holder described her son's 
account of the 2008 crash, stating that he ``couldn't remember much, 
but he remembered when he was getting the seizure, and a police reached 
in the car and hit him on his nose a couple of times.'' \225\ Given 
that this account was based on Dr. Wilhelmina Holder's recollection of 
what her son told her, and given the unreliable nature of Dr. Mark 
Holder's account of the circumstances attendant to the crash, I find I 
can give little weight to the testimony of Wilhelmina Holder's account 
of the crash or its aftermath.\226\
---------------------------------------------------------------------------

    \224\ Id. at 552.
    \225\ Id. at 553.
    \226\ Id. at 553-54.
---------------------------------------------------------------------------

    Also testifying on behalf of the Respondent was Cidijah Rodney-
Somersall, M.D., a pediatrician with a practice in Atlanta, 
Georgia.\227\ According to Dr. Somersall,
---------------------------------------------------------------------------

    \227\ Id. at 557.

    Mark is a very enthusiastic person who was very passionate 
about, or he's very passionate about medicine and patient care. He's 
someone who is, has great bedside manner. He's very charming, he has 
a love for people, and he always appeared to provide excellent 
patient care.
    He was very good in terms of gathering a full history, just 
finding about the patient, not only their medical problems, but 
socially. And I mean, I was always impressed by him as a medical 
student, the kind of care that he provided. He was bright, and he 
was a great medical student, and seemed to be a very good healthcare 
professional.\228\
---------------------------------------------------------------------------

    \228\ Id. at 559.

    Also before me is the sworn statement of Jerome Potts, M.D., who is 
the Department Chief of Family and Community Medicine at the Whittier 
Clinic, Hennepin County (Minnesota) Medical Center.\229\ Dr. Potts 
avers Dr. Holder's service as an employee at the clinic in June 2012 
has been subject to close monitoring, including random toxicology 
screening.\230\ Dr. Potts avers that he has personally closely 
supervised and monitored Dr. Holder, and states that Dr. Holder ``met 
all the conditions of his employment and at no point has he 
demonstrated a lapse in judgment or provided substandard care to 
patients.'' \231\ According to Dr. Potts, Dr. Holder
---------------------------------------------------------------------------

    \229\ Resp. Ex. T, admitted over Government objection, Tr. at 
561-62.
    \230\ Resp. Ex. T at 1.
    \231\ Id. at 2.

    [I]s very diligent in documenting his charts and they are in 
compliance with all of our policies and procedures. His interaction 
with other staff and peers can be described as respectful, 
professional, and kind. I believe that his past issues have made him 
a more empathetic physician and colleague. He has earned my trust 
and that of his peers and patients. . . . I continue to trust Dr. 
Holder and am confident that he will continue to deliver quality 
medical care that is above reproach and meets all applicable 
standards.\232\
---------------------------------------------------------------------------

    \232\ Id.

    It is not clear the extent to which Dr. Potts is familiar with Dr. 
Holder's past, as his statement was received in lieu of live testimony, 
and as such the Government was not able to cross examine this 
witness.\233\ Accordingly, while I give weight to Dr. Potts' 
description of Dr. Holder's current professional demeanor and 
performance, I cannot give weight to Dr. Potts' report that ``Dr. 
Holder shared details about the incident in Florida.'' \234\ As a 
result, while I can and do receive Dr. Potts' statement averring Dr. 
Holder's successful employment at Whittier Clinic, those statements do 
not constitute evidence of any acknowledgement of past misconduct by 
Dr. Holder, nor do they serve as evidence of remediation for that past 
misconduct.
---------------------------------------------------------------------------

    \233\ Id. at 561-62.
    \234\ Resp. Ex. T at 1.
---------------------------------------------------------------------------

    Dr. Holder presented live testimony of Laurie Kardon, M.D., who 
spoke in support of his application. Dr. Kardon worked with Dr. Holder 
at MD Now in 2007 and 2008, and said he had an excellent bedside manner 
when working there, and that ``[p]atients loved him'' for his ability 
to provide ``accurate diagnoses and treatment.'' \235\ Dr. Kardon 
testified:
---------------------------------------------------------------------------

    \235\ Tr. at 566-67.

    I trust his medical knowledge, I trust his judgment, I trust his 
judgment in taking care of patients and his treatment, and his 
follow-up with patients. I would trust him with my life and with the 
life of my family.
    As a person I knew him mostly in a professional capacity prior 
to his, his accident, and I visited him several times in the 
hospital, and with him and also got to know his family after his 
accident, from the hospital on forward, and am just as equally 
impressed with the hard work that he's done since his accident to 
regain, first, his life. That he survived that at all is miraculous, 
and just equally impressed with the work, the hard work that he has 
done to regain his personal and professional life.\236\
---------------------------------------------------------------------------

    \236\ Id. at 568.

    Although testifying about Dr. Holder's good reputation, Dr. Kardon 
acknowledged that she was unaware that Dr. Holder admitted to having 
diverted controlled substances through other employees at MD Now.\237\ 
Further, her opinion is given less weight after considering the 
response she made to the Government's inquiry during cross-examination. 
Government's counsel predicated a question by stating what

[[Page 71640]]

had been established at this point in the hearing:
---------------------------------------------------------------------------

    \237\ Id. at 570.

    Mr. Lawson: I'm telling you that [Dr. Holder has] admitted to 
[having diverted controlled substances through other employees at MD 
Now] in court under oath, so you can assume it's true. . . . Does 
the fact that he's admitted to diverting and using controlled 
substances unlawfully through his employment at MD Now change your 
stated opinion as to how much you trust him and value his 
professional reputation?
    Dr. Kardon: It does not, because I don't think that's true.\238\
---------------------------------------------------------------------------

    \238\ Id. at 569-70.

    Testifying on his own behalf, Dr. Holder sought to relate his 
history of conflicts with law enforcement officials, including his 
being repeatedly being shocked by a Taser during his encounter with 
first responders after the crash in 2008, and raising the claim that he 
had been arrested for trespassing in Minnesota under conditions he felt 
indicated improper police conduct.\239\ He also wanted to express how 
adversely he had been affected by the crash in 2008, fearing that he 
``may never be able to function again'' but that, eschewing surgeries 
after the crash, he prayed, ``and I was delivered by all of them, step 
by step.'' \240\
---------------------------------------------------------------------------

    \239\ Id. at 574-75; see also Gov't Ex. 37 at 10-11.
    \240\ Tr. at 578.
---------------------------------------------------------------------------

    Dr. Holder admitted to his past use of Adderall without a 
prescription, and to his past use of marijuana, but did so without 
providing specifics and without identifying a time period for this 
conduct.\241\ When asked whether he took responsibility for what 
happened in Florida, Dr. Holder again equivocated with respect to 
diversion of controlled substances:
---------------------------------------------------------------------------

    \241\ Id. at 579.

    I do take responsibility for the situation that happened in 
Florida. And there's a lot of things that I'm very unproud of, and 
the thing is, is I cannot remember diverting any medications with 
SS. I cannot remember and I honestly cannot remember how the 
medications got into the car, got into my car, but I do admit 
completely to using Adderall without prescriptions. And like I said, 
there's also a lot of my life that I'm not proud of, but I think 
that from there to now I've gone a long way, and I believe that I've 
displayed it through my actions.\242\
---------------------------------------------------------------------------

    \242\ Id. at 590-91.

    Dr. Holder also pointed to his completion of the requirements 
imposed by the Minnesota Medical Board, but offered no apologies for 
failing to complete the PRN monitoring program in Florida--other than 
to assert that ``I really could not support myself in Florida anymore 
because the restrictions I had on my license.'' \243\
---------------------------------------------------------------------------

    \243\ Id. at 581.
---------------------------------------------------------------------------

    Dr. Holder said one of the restrictions still in place at the 
clinic in Minnesota was imposed by his employer, in that his current 
employer has the right to drug test him for five years, adding that he 
has never failed a test since beginning at this place of 
employment.\244\ The record is silent, however, with respect to the 
presence of any other monitoring requirements.
---------------------------------------------------------------------------

    \244\ Id. at 588-89.
---------------------------------------------------------------------------

    Dr. Holder stated that if he had his DEA certificate of 
registration, ``I'd be able to moonlight'' and would not have the 
financial problems he currently is facing.\245\ When asked why I should 
recommend the DEA grant his application, Dr. Holder stated:
---------------------------------------------------------------------------

    \245\ Id. at 591.

    For one, I think that it's clear to me, and I want to make it 
clear to the Court again, that I've done some wrong things in the 
past and I've made some errors in the past, and I'm taking 
responsibility for the errors I've done. And since I've made these 
errors, I've worked diligently to the point where I am right now, 
complying with the things that I needed to comply with to get to 
this point.
    And so I deserve my DEA registration. I put the work in school, 
I'm a Board-Certified Family Medicine physician, and I've worked 
towards these things to this point.
    Number two, I think that the community actually needs me. I 
think that there's a need for family physicians and not only family 
physicians, but people that care for people, and I fall into that 
category where I care for people and I'll do the best job that I can 
to help people.
    And number three, partly because of this situation as well, I am 
at no risk of diverting medicines, and I will be clear to say that I 
would never, in no circumstance would I divert medications to 
anybody else or myself.\246\
---------------------------------------------------------------------------

    \246\ Id. at 592-93.
---------------------------------------------------------------------------



Analysis

    Four material factual premises compel the ultimate finding required 
in this case. First, the record now before the Administrator 
demonstrates that Dr. Holder has a history of noncompliance with laws 
regulating controlled substances renders restoring to him a DEA 
Certificate of Registration inconsistent with the public interest. 
Second, Dr. Holder's history of false representation to professional 
boards and law enforcement authorities calls into question whether he 
can be entrusted with the authority to prescribe controlled substances. 
Third, there is substantial evidence that Dr. Holder made a material 
misstatement when applying for his DEA Certificate of Registration in 
2012. And fourth, while there is some evidence of Dr. Holder's efforts 
at remediation, that evidence does not, by at least preponderance, 
overcome the Government's demonstration that granting a Certificate of 
Registration would be inconsistent with the public interest.
    Much of what has been presented by the Administrator in the Order 
to Show Cause is uncontroverted. Dr. Holder acknowledged that there 
were no factual disputes regarding the facts appearing in paragraphs 
two through six of the Order.\247\ Independent of Respondent's 
admissions, the Government presented preponderant evidence establishing 
that Dr. Holder improperly prescribed Percocet and Xanax to Patient 
S.S., then used Patient S.S. in order to illegally obtain sixty 
Adderall tablets, then, while under the influence of marijuana and 
amphetamines, caused an automobile crash that seriously injured himself 
and his passenger.
---------------------------------------------------------------------------

    \247\ Respondent's Written Closing Statement at 11.
---------------------------------------------------------------------------

    The Government further established a history of professional 
disciplinary action against Dr. Holder in Florida and Minnesota, 
throughout which Dr. Holder gave false and misleading information to 
the state investigators, and followed that by providing a materially 
false answer regarding that history when applying for a Certificate of 
Registration from the DEA. Throughout the proceedings before me, Dr. 
Holder has provided inconsistent and evasive responses to questions 
presented by the Government, calling into question whether even now the 
Administrator has a complete record of Dr. Holder's history of 
misconduct.
    There is substantial evidence that Dr. Holder obtained the 
restoration of his unrestricted state medical license by providing 
incomplete and misleading evidence to the Minnesota Board of Medical 
Practice. There is also evidence that Dr. Holder unilaterally 
terminated his participation in a monitoring program required of him by 
the Florida Board of Medicine, without completing the five-year period 
of Board-ordered probation and without completing the steps required by 
that Board to ensure his rehabilitation prior to his return to practice 
in Florida. Similarly, evidence of rehabilitation in the program 
established in Minnesota is lacking, as that program was based on a 
less than forthright description of Dr. Holder's illegal and improper 
conduct in Florida.

Elements of a Prima Facie Case

    This administrative action began when the DEA's Administrator, 
through her Deputy Administrator, issued an Order proposing to deny Dr. 
Holder's application for a DEA Certificate of

[[Page 71641]]

Registration.\248\ The Order alleged that granting Dr. Holder's 
application would be inconsistent with the public interest, as that 
term is used in sections 823(f) of Chapter 21 of the United States 
Code.\249\ Independent of this basis for denying the application, the 
Government also proposes to deny the application pursuant to sections 
824(a)(1) and 824(a)(4) of Chapter 21 of the United States Code,\250\ 
based on the material misrepresentation appearing in the March 7, 2012 
application regarding whether Dr. Holder's professional license has 
ever been suspended or limited.\251\ Thus, in order to deny Dr. 
Holder's application, the Government has the burden of establishing, by 
at least a preponderance of the evidence, that either (1) allowing Dr. 
Holder to issue prescriptions for controlled substances would be 
contrary to the public interest; or (2) Dr. Holder submitted an 
application for a Certificate of Registration that included a material 
misrepresentation of fact; or both.\252\
---------------------------------------------------------------------------

    \248\ A.L.J. Ex. One.
    \249\ 21 U.S.C. 823.
    \250\ 21 U.S.C. 824 Denial, revocation, or suspension of 
registration (a) Grounds--a registration pursuant to section 823 of 
this title to manufacture, distribute, or dispense a controlled 
substance or a list I chemical may be suspended or revoked by the 
Attorney General upon a finding that the registrant--(1) has 
materially falsified any application filed pursuant to or required 
by this subchapter or subchapter II of this chapter; . . . [or] (4) 
has committed such acts as would render his registration under 
section 823 of this title inconsistent with the public interest.
    \251\ A.L.J. Ex. One at 1.
    \252\ 21 U.S.C. 823(f); 21 CFR 1301.44(d)-(e); see also Steadman 
v. SEC, 450 U.S. 91, 100-01 (1981).
---------------------------------------------------------------------------

    While the burden of establishing that granting a Certificate of 
Registration application would contravene the public interest never 
shifts from the Government, once the Government meets this burden, Dr. 
Holder has the opportunity to present evidence that he accepts 
responsibility for his misconduct, and has taken appropriate steps to 
prevent misconduct in the future.\253\
---------------------------------------------------------------------------

    \253\ Marc G. Medinnus, D.D.S., 78 FR 62683-01, 62691-93 (DEA 
October 22, 2013).
---------------------------------------------------------------------------

    Regarding the first of these two bases for denying Respondent's 
application, under the registration requirements found in 21 U.S.C. 
823(f), the Administrator is expected to consider five factors in 
determining the public interest when presented with the actions of a 
physician seeking to prescribe controlled substances These factors are:

    (1) The recommendation of the appropriate State licensing board 
or professional disciplinary authority.
    (2) The applicant's experience in dispensing, or conducting 
research with respect to 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.\254\
---------------------------------------------------------------------------

    \254\ 21 U.S.C. 823(f).

    Any one of these factors may constitute a sufficient basis for 
denying an application for a Certificate of Registration.\255\ Any one 
or a combination of factors may be relied upon, and when exercising 
authority as an impartial adjudicator, the Administrator may properly 
give each factor whatever weight she deems appropriate in determining 
whether an application should be rejected.\256\ Moreover, although the 
Administrator is obliged to consider all five of the public interest 
factors, she is ``not required to make findings as to all of the 
factors.'' \257\ The Administrator also is not required to discuss each 
factor in equal detail, or even every factor in any given level of 
detail.\258\ The balancing of the public interest factors ``is not a 
contest in which score is kept; the Agency is not required to 
mechanically count up the factors and determine how many favor the 
Government and how many favor the registrant. Rather, it is an inquiry 
which focuses on protecting the public interest.'' \259\
---------------------------------------------------------------------------

    \255\ Robert A. Leslie, M.D., 68 FR 15227-01, 15230 (DEA March 
28, 2003).
    \256\ Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005); JLB, 
Inc., d/b/a Boyd Drugs, 53 FR 43945-02, 43947 (DEA October 31, 
1988); see also David E. Trawick, D.D.S., 53 FR 5326-01, 5327 (DEA 
February 23, 1988); see also David E. Trawick, D.D.S., 53 FR 5326-
01, 5327 (DEA February 23, 1988).
    \257\ Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see also 
Morall v. DEA, 412 F.3d at 173-74 (D.C. Cir. 2005).
    \258\ Trawick v. DEA, 861 F.2d 72, 76 (4th Cir. 1988).
    \259\ Jayam Krishna-Iyer, M.D., 74 FR 459-01, 462 (DEA January 
6, 2009).
---------------------------------------------------------------------------

Factor One--Recommendations of the State Licensing Board

    In its post-hearing brief, the Government argues that ``Factors 
One, Two, Four and Five militate against the issuance of a DEA 
Registration to Respondent.'' \260\ It then modifies this argument 
slightly, asserting only that when considering the evidence under 
Factor One, ``the decisions of the Florida and Minnesota Medical Boards 
should be given nominal weight.'' \261\
---------------------------------------------------------------------------

    \260\ Government's Proposed Findings of Fact and Conclusions of 
Law at 29.
    \261\ Id. at 34.
---------------------------------------------------------------------------

    I find the actions of state medical regulators in Minnesota and 
Florida, although not cast as ``recommendation[s],'' establish a basis 
for finding that Dr. Holder's application should be denied. Factor One 
considers ``[t]he recommendation of the appropriate State licensing 
board or professional disciplinary authority.'' \262\ Although the 
recommendation of the applicable state medical board is probative of 
Factor One, the Administrator possesses ``a separate oversight 
responsibility with respect to the handling of controlled substances'' 
and therefore must make an ``independent determination as to whether 
the granting [or revocation] of [a registration] would be in the public 
interest.'' \263\ In the exercise of that ``separate oversight 
responsibility,'' the Administrator may regard as probative of the 
public interest an applicant's experience before state medical boards.
---------------------------------------------------------------------------

    \262\ 21 U.S.C. 823(f).
    \263\ Mortimer B. Levin, D.O., 55 FR 8209-01, 8210 (DEA March 7, 
1990).
---------------------------------------------------------------------------

    I note the legal premise, presented by the Government in its post-
hearing brief, that the decisions of state medical boards regarding a 
licensee's ability to practice medicine in the jurisdiction of those 
boards ``are not in any sense an official recommendation regarding this 
proceeding's outcome.'' \264\ I agree. There is in this record no 
express recommendation directed to the DEA by any medical board, either 
in support of or in opposition to, granting Respondent a DEA 
Certificate of Registration.
---------------------------------------------------------------------------

    \264\ Government's Proposed Findings of Fact and Conclusions of 
Law at 30 (quoting Gregory D. Owens, D.D.S., 74 FR 36751-01, 36755 
(DEA July 24, 2009)).
---------------------------------------------------------------------------

    Instead, the parties have acknowledged by stipulation that the 
Florida Department of Health issued an Emergency Suspension of 
Respondent's license to practice medicine on January 26, 2009 and filed 
an Administrative Complaint against Respondent on February 13, 
2009.\265\ The Florida Board of Medicine issued a final Order 
indefinitely suspending Respondent's medical license on June 19, 
2009.\266\ The parties further stipulated that Respondent filed for 
reinstatement of his Florida medical license on November 8, 2010, and 
the Florida Board of Medicine reinstated Respondent's medical license 
pursuant to numerous restrictions, terms and conditions on December 16, 
2010, but that thereafter, Respondent voluntarily

[[Page 71642]]

surrendered his Florida medical license on March 3, 2011.\267\
---------------------------------------------------------------------------

    \265\ A.L.J. Ex. 31 at 2.
    \266\ Id.
    \267\ Id.
---------------------------------------------------------------------------

    Also before me is the parties' stipulation that on March 25, 2011, 
Respondent applied for a medical license from the Minnesota Board of 
Medical Practice (BMP); that by letter dated June 21, 2011, Respondent 
was informed that the BMP's Licensure committee intended to recommend 
denial of Respondent's application.\268\ By letter dated August 9, 
2011, Respondent's then-counsel requested reconsideration before the 
BMP.\269\ This letter included an affidavit from respondent as well as 
several enclosures.\270\ By letter dated September 26, 2011, the 
Minnesota BMP requested Respondent's personal appearance before the 
Licensure Committee to discuss his application to practice medicine, 
and after Respondent appeared before the Licensure Committee and 
discussed his use of controlled substances that had not been prescribed 
for him, on November 12, 2011, Respondent was granted a restricted, 
conditional license to practice in Minnesota, and one year later 
Respondent was granted an unrestricted license to practice medicine in 
Minnesota.\271\
---------------------------------------------------------------------------

    \268\ Id.
    \269\ Id. at 3.
    \270\ Id.
    \271\ Id.
---------------------------------------------------------------------------

    My concern with respect to evidence relating to the licensure 
actions taken by the medical boards in Florida and Minnesota rests not 
so much with their ultimate decisions, but with the process that led to 
those decisions being made. The Government is correct, in my view, in 
proposing that Respondent's misrepresentations to these boards call 
into question whether the actions taken by these regulators would be 
the same had they been told the same things Dr. Holder reported as true 
during this administrative process.
    The Government's identification of the nature of these 
misrepresentations accurately reflects the many ways in which the two 
state medical boards were acting with less than a complete and accurate 
record due to Dr. Holder's duplicity.\272\ Those misrepresentations 
regarding Dr. Holder's ability to recall what happened immediately 
preceding the June 2008 crash, his description of his history of 
abusing marijuana and Adderall, and his description of the nature of 
his injuries and those of his passenger, all threaten the integrity of 
the administrative process by which the Florida and Minnesota boards 
performed their assessments of Dr. Holder's fitness to practice 
medicine in those states. Accordingly, nothing in our record supports a 
finding that the elements of Factor One warrant a conclusion that 
granting Respondent's application would be consistent with the public 
interest.
---------------------------------------------------------------------------

    \272\ See Government's Proposed Findings of Fact and Conclusions 
of Law at 31-33 and citations to the record therein.
---------------------------------------------------------------------------

Factor Two--Dispensing Experience

    With respect to Factors Two and Four, the Government in its post-
hearing brief addresses both factors together.\273\ I think the better 
practice is to examine Factors Two and Four separately. Under 21 U.S.C. 
823(f)(2) (Factor Two), the Administrator is required to consider 
``experience in dispensing, or conducting research with respect to 
controlled substances.'' \274\
---------------------------------------------------------------------------

    \273\ Id. at 34-35.
    \274\ In this context, ``dispensing'' is defined as 
``deliver[ing] a controlled substance to an ultimate user or 
research subject by, or pursuant to the lawful order of, a 
practitioner, including the prescribing and administering of a 
controlled substance and the packaging, labeling or compounding 
necessary to prepare the substance for such delivery. The term 
`dispenser' means a practitioner who so delivers a controlled 
substance to an ultimate user or research subject.'' 21 U.S.C.A. 
Sec.  802(10).
---------------------------------------------------------------------------

    This provision calls for an examination of a prescription writer's 
familiarity with the complexities associated with dispensing controlled 
substances under the Controlled Substances Act. Where, from the 
evidence, it appears a prescribing source's conduct, training, or 
credentials (i.e., his or her experience) creates in the 
Administrator's mind a substantial concern regarding the source's 
prescription practice, Factor Two requires the Administrator to examine 
such conduct, training and credentials. The purpose of such an 
examination is not limited to only those instances where the source 
violated a provision of controlled substance law. Were that the purpose 
of 21 U.S.C. 823(f)(2), Factors Two and Four would be duplicative, and 
Factor Two would have no meaning distinct from that of Factor Four.
    By Factor Two's plain language, Congress called for more than a 
mere consideration of violations of controlled substance laws when the 
Administrator engages in a review under Factor Two. In my view, 
evidence of deficiencies in an applicant's conduct, training, or 
credentials could support a finding that the public interest would not 
be well-served by permitting the applicant to prescribe controlled 
substances, even if there was no showing that the conduct amounted to a 
violation of laws relating to the distribution of controlled 
substances. Accordingly, in the analysis that follows, evidence 
pertaining to Factors Two and Four will be addressed separately.
    The record before me includes very little evidence regarding Dr. 
Holder's experience dispensing controlled substances. By training, he 
noted experience in clinical settings here and abroad that suggest a 
deep understanding of the medical needs of the poor. As Dr. Kardon 
noted in her correspondence with the Minnesota Board of Medical 
Practice, Dr. Holder ``is committed to the humanitarian goal of 
improving healthcare for the poor and underserved.'' \275\
---------------------------------------------------------------------------

    \275\ Gov't Ex. 37 at 5.
---------------------------------------------------------------------------

    Most of his reported experience to date, however, appears to have 
had little to do with prescribing controlled substances. After 
successfully completing his residency, Dr. Holder continued to gain 
experience in a clinical practice in fields not generally associated 
with dispensing controlled substances, including service as the program 
coordinator for African and American Friendship Association for 
Cooperation and Development, which involved planning and implementing 
curriculum for the Foreign Trained Health Care Professional--Medical 
English program; service as the founder of Land Pilot, Inc. in 
Crozierville, Liberia, developing ``a conglomerate of various 
enterprises recognized for superior quality of services and products in 
Liberia'' in 2009; service as founder of M.B.H. Wellness Report, which 
developed ``a holistic approach to increase both the quantity and 
quality of life in a nontraditional medical setting'' in 2009; service 
as founder of Liberian Initiative for Enrichment in Monrovia, Liberia, 
where he developed an institution that ``conducts clinical research 
specifically for African American pollution globally''; service from 
2009 to 2010 as chairman of the board of Bentol Development 
Association, ``assisting in the economic, medical, and social planning 
for the development'' of his mother's hometown in Liberia; and service 
from 2006 to 2008 as founder and president of Mperial Health PA in 
Miami, Florida, ``operating healthcare consultation and providing 
medical services through emergency home visits, urgent care centers, 
and wellness training.''\276\
---------------------------------------------------------------------------

    \276\ Id. at 29.
---------------------------------------------------------------------------

    From this record, the most significant post-graduate prescribing 
experience attributed to Dr. Holder is that which he obtained while 
working at MD Now for seven months \277\ and while serving in

[[Page 71643]]

his family medicine residency at the University of Miami from 2004 to 
2007. Even here, however, while this experience includes training in 
critical care and emergency medicine (both of which may emphasize the 
use of controlled substances), the residency reflects a curriculum that 
was not concentrated in a practice requiring the dispensation of 
controlled substances, including emphases in infectious diseases, 
pediatrics, ``wards'' medicine, and women's health. Thus, while Dr. 
Holder's experiences as an independent contractor at MD Now and parts 
of his residence do suggest experience in dispensing controlled 
substances, the overall arc of his practice has not been one that would 
support a finding that his experience in dispensing controlled 
substances is substantial.
---------------------------------------------------------------------------

    \277\ Tr. at 120.
---------------------------------------------------------------------------

    The record also establishes, through the testimony of Dr. Holder 
and Patient S.S., that Dr. Holder entered the world of drug dealers, 
using his experience and his association with Patient S.S. to acquire 
cocaine and marijuana on a regular basis. As a result of his 
association with Patient S.S., Dr. Holder is not only knowledgeable in 
the ways and means used to acquire illicit controlled substances; he is 
now personally experienced in those ways and means.
    Coupling this character of experience with the negative features of 
his experience arising out of his improper prescription practice, 
discussed below in the analysis of Factor Four, I find the Government 
has presented under Factor Two preponderant evidence establishing that 
granting Respondent a DEA Certificate of Registration would be 
inconsistent with the public interest.

Factor Three--Conviction Record

    Under Factor Three the Administrator is to consider an applicant's 
conviction record under federal or state laws relating to the 
manufacture, distribution, or dispensing of controlled substances.\278\ 
Neither the Government nor Respondent has raised any claims pertaining 
to Factor Three, and there is no evidence that Dr. Holder has been 
convicted of any laws related to dispensing controlled substances. 
Accordingly, Factor Three does not serve as a basis for granting or 
denying Respondent's application for a DEA Certificate of Registration.
---------------------------------------------------------------------------

    \278\ 21 U.S.C. 823(f)(3).
---------------------------------------------------------------------------

Factor Four--Compliance With Applicable Laws

    Under Factor Four, the Administrator may consider evidence 
regarding ``[c]ompliance with applicable state, federal, or local laws 
relating to controlled substances.'' \279\ ``A prescription for a 
controlled substance is unlawful unless it has been issued for a 
legitimate medical purpose by an individual practitioner acting in the 
usual course of professional practice.'' \280\ Departing from the usual 
course of professional practice can have profound negative 
consequences. Here, by acknowledging the truth of those facts appearing 
in paragraphs two through six in the Order to Show Cause, Dr. Holder 
has acknowledged in his post-hearing brief that the record establishes 
by preponderant evidence that he failed to comply with applicable law 
relating to controlled substances.\281\ Upon such evidence the 
Government has demonstrated that granting Respondent's application 
would not be in the public interest, and has therefore established a 
legally sufficient basis for the Administrator to deny this application 
under Factor Four.
---------------------------------------------------------------------------

    \279\ 21 U.S.C. 823(f)(4).
    \280\ Sun & Lake Pharmacy, Inc., D.B.A. The Medicine Shoppe, 76 
FR 24523-02, 23530 (DEA May 2, 2011).
    \281\ Respondent's Written Closing Statement at 11.
---------------------------------------------------------------------------

Factor Five--Other Conduct

    In its post-hearing brief, the Government urges that the 
Administrator make an adverse finding under Factor Five, based on Dr. 
Holder's ``complete and utter lack of candor'' to the DEA and to state 
regulators.\282\ Factor Five calls for the Administrator to consider 
the public interest in the context of ``[s]uch other conduct which may 
threaten the public health and safety.'' \283\ A history of substance 
abuse, coupled with a pattern of obstructing and misleading 
governmental officials when the abuse created significant problems for 
Dr. Holder, is evidence of conduct that may threaten the public health 
and safety.
---------------------------------------------------------------------------

    \282\ Government's Proposed Findings of Fact and Conclusions of 
Law at 37.
    \283\ 21 U.S.C. 823(f)(5).
---------------------------------------------------------------------------

    In discussing Factor Five, I exclude for the moment my assessment 
of the evidence pertaining to the DEA application filed by Dr. Holder. 
Making a material misrepresentation in a DEA application is conduct 
that falls within the scope of 21 U.S.C. 824(a)(1), and as such it is 
beyond the scope of Factor Five and will be addressed below.
    The Factor Five concerns that are raised in this record arise when 
we examine Dr. Holder's conduct before the state medical boards, his 
behavior during the DEA investigation into his application, and his 
conduct before me during the evidentiary hearing. If I accept as true 
Dr. Holder's claim that because of his injuries he recalled none of the 
details of the 2008 automobile crash, I can only conclude Dr. Holder 
intentionally misled the Minnesota Medical Board when he stated, under 
oath, that neither he nor his passenger ``was seriously hurt from the 
accident.'' \284\ Nothing from the records pertaining to that crash, 
including the police report and records created in N.P.'s lawsuit 
seeking damages for injuries she sustained in that crash, would have 
supported Dr. Holder's description of the consequences of the crash.
---------------------------------------------------------------------------

    \284\ Gov't Ex. 37 at 10.
---------------------------------------------------------------------------

    Similarly, his inconsistent testimony regarding his history of drug 
use, his professed inability to recall where he obtained illicit 
supplies of controlled substances, his use of deflection and non-
responsive answers during the hearing, and his refusal to provide DEA 
Diversion Investigator McKenna complete copies of his treatment and 
monitoring at PRN and HPSP after repeated requests for the same, all 
constitute preponderant evidence of ``other behavior'' warranting a 
finding that registration would be inconsistent with the public 
interest under Factor Five.

Material Falsification of a DEA Registration Application

    The record establishes that when he submitted his DEA application 
for registration on March 7, 2012, Dr. Holder falsely represented his 
medical licenses had never been suspended, denied, or restricted. 
``Just as materially falsifying an application provides a basis for 
revoking an existing registration without proof of any other 
misconduct, see 21 U.S.C. 824(a)(1), it also provides an independent 
and adequate ground for denying an application.'' \285\ Thus, I can and 
do recommend denying Dr. Holder's application based on the false 
information he provided in his March 7, 2012 application, irrespective 
of the Government's claim that his registration is not consistent with 
the public interest.
---------------------------------------------------------------------------

    \285\ The Medicine Shoppe Pharmacy, 74334-01, 74338 (DEA 
December 31, 2007).
---------------------------------------------------------------------------

    In his post-hearing brief, Dr. Holder argues that the 
misrepresentation was not ``material,'' and that as such there was no 
violation of 21 U.S.C. 824(a)(1).\286\ In support, Dr. Holder asserts 
that the false answer ``was not capable of influencing the agency. 
Answering the liability questions in the negative does not grant an 
applicant a favorable response; it leads to

[[Page 71644]]

verification by a registration specialist. It is the findings of the 
registration specialist that has the capacity to influence the 
agency.'' \287\
---------------------------------------------------------------------------

    \286\ Respondent's Written Closing Statement at 6.
    \287\ Id. at 7.
---------------------------------------------------------------------------

    The factual predicate for this argument is that when an application 
is filed with the DEA, a registration specialist employed by the DEA 
checks to see if the applicant's medical license has been subject to 
adverse action by any state medical licensing board. Dr. Holder 
correctly notes that in her testimony, Diversion Investigator McKenna 
explained that when her office receives an application for 
registration, a registration specialist working at the office queries 
the state boards to determine if there any board actions present 
online.\288\ Because the office she works at covers Minnesota and North 
Dakota, the specialist used the Internet to check the records 
maintained by the medical boards of those two states.\289\ When the 
specialist discovered board action in Minnesota, she was, by internal 
office policy, unable to proceed on her own, and instead had to forward 
the application to a Diversion Investigator to investigate.\290\
---------------------------------------------------------------------------

    \288\ Tr. at 444.
    \289\ Id.
    \290\ Id.
---------------------------------------------------------------------------

    According to Investigator McKenna, when Dr. Holder's application 
was brought to her attention (after the specialist determined there was 
a disciplinary record regarding Dr. Holder in the records of the 
Minnesota Board), she too checked the Board's online records.\291\ In 
this way, she not only found evidence of Board action in Minnesota, but 
those records referred to Board action in Florida, leading Investigator 
McKenna to learn about the Florida Board's suspension of Dr. Holder's 
license and his subsequent surrender of the same.\292\
---------------------------------------------------------------------------

    \291\ Id. at 453.
    \292\ Id. at 453-54.
---------------------------------------------------------------------------

    In his argument, Dr. Holder correctly posits that the Government 
``has to show that the applicant provided false information in his/her 
application and that the false information provided is material.'' 
\293\ He also correctly posits that a false statement is ```material' 
if it has a natural tendency to influence or was capable of influencing 
the decision making body to which it is addressed.'' \294\ I reject as 
without merit his conclusion, however, that because a registration 
specialist reviews these applications, it was only the specialist who 
has ``the capacity to influence the agency,'' \295\ and that Dr. 
Holder's false response to Question Three was therefore not material.
---------------------------------------------------------------------------

    \293\ Respondent's Written Closing Statement at 6.
    \294\ Id. (citing The Medicine Shoppe Pharmacy, 72 FR 74334-01, 
74338 (DEA December 31 2007)).
    \295\ Respondent's Written Closing Statement at 6-7.
---------------------------------------------------------------------------

    As the Government sufficiently points out in its post-hearing 
brief, ``[a]nswers to the liability question[s] are always material 
because DEA relies on the answers to these questions to determine 
whether it is necessary to conduct an investigation prior to granting 
an application.'' \296\ I find substantial evidence supports the 
factual premise presented by the Government, that Respondent's false 
answer to Question Three was ``designed to shield Respondent's DEA 
application from the same troubling scrutiny that his application for a 
Minnesota medical license was subject to.'' \297\ Put differently, when 
Dr. Holder's former attorney, Mr. Harbison, asked Investigator McKenna 
the rhetorical question, ``why would [Dr. Holder] lie when he knew it 
was public record?'', the answer is that by doing so, Dr. Holder could 
hope to obtain a DEA Certificate of Registration, if no one at the DEA 
checked to confirm the truth of his answers.\298\
---------------------------------------------------------------------------

    \296\ Government's Proposed Findings of Fact and Conclusions of 
Law at 29-30 (emphasis added sic) (quoting Theodore Neujahr, D.V.M., 
65 FR 5680-01, 5681 (DEA February 4, 2000)).
    \297\ Government's Proposed Findings of Fact and Conclusions of 
Law at 30.
    \298\ Tr. at 463.
---------------------------------------------------------------------------

    The evidence further establishes that Dr. Holder's decision to 
answer Question Three in the negative was intentional. When given the 
opportunity to explain his response to this question during 
Investigator McKenna's meeting with him, Dr. Holder reviewed the 
language in Question Three, and underlined the first word, 
``surrendered'' to indicate he answered in the negative after reading 
just this part of the question.\299\ There is, however, no evidence 
suggesting he was unaware of the rest of the words in the question, nor 
that he sought any guidance with respect to the meaning of the words 
used in the question. The question is not of such complexity that a 
person of ordinary intelligence would have difficulty understanding 
each of its terms; and the circumstances attendant to filling out such 
an application are not so alien as to suggest persons filling out the 
application would not know they needed to read the entire text of each 
question before answering the same. From the testimony presented and 
the documentary evidence now before me, I find substantial preponderant 
evidence establishing Dr. Holder submitted an application for 
registration that he knew contained materially false information.
---------------------------------------------------------------------------

    \299\ Id. at 463-64.
---------------------------------------------------------------------------

    I am mindful that denial of an application may be appropriate based 
on an unintentional falsification, as noted in Dr. Holder's post-
hearing brief.\300\ Thus, if the Administrator were persuaded that the 
record before her does not support a finding of intentional 
falsification, denial of the application would still be available, 
provided she recognize that ``intent to deceive is a relevant 
consideration in determining whether a registrant or applicant should 
possess a DEA registration.'' \301\ I find this step to be superfluous, 
given that from the evidence before me I find Dr. Holder purposefully 
answered as he did, intending on obtaining his best chance at securing 
a DEA registration without disclosing his past disciplinary 
experiences.
---------------------------------------------------------------------------

    \300\ Respondent's Written Closing Statement at 6 (citing Darryl 
J. Mohr, M.D., 77 FR 34998 (DEA June 12, 2012)).
    \301\ Respondent's Written Closing Statement at 6 (citing Darryl 
J. Mohr, M.D., 77 FR 34998-01, [35013] (DEA June 12, 2012)) (quoting 
Rosalind A. Cropper, M.D., 66 FR 41040-02, 41048 (DEA August 6, 
2001)).
---------------------------------------------------------------------------

Evidence of Remediation

    Where the Government has established by at least a preponderance of 
the evidence that granting an application for a Certificate of 
Registration is not in the public interest, the applicant has the 
ability to present evidence of remediation. Mitigating evidence 
relevant to these proceedings generally includes two elements: An 
acknowledgement of responsibility by the applicant, and evidence of 
corrective measures taken by the applicant.
    From the evidence before me, however, I find insufficient evidence 
to establish the presence of remediation efforts that would mitigate 
adverse findings based on Factors One, Two, Four and Five. Dr. Holder 
testified that ``I've had to completely surrender my will and what I've 
found from this, is I have actually have reached a place of joy, 
advancement and completion.'' \302\ I have no reason to doubt this 
claim, but neither can I use this claim to support a recommendation in 
Dr. Holder's favor.
---------------------------------------------------------------------------

    \302\ Tr. at 187.
---------------------------------------------------------------------------

    The most probative evidence of Dr. Holder's efforts to address any 
drug abuse problems he may have had would have come from the reports by 
monitors in the Florida PRN program and Minnesota's HPSP program. Even 
as he insists he has and had no drug abuse problem, the evidence of 
drug abuse associated with the 2008 crash, his abuse of marijuana and 
cocaine prior to

[[Page 71645]]

the crash, and his adamant determination to deflect and minimize the 
adverse impact of his drug use are all both abundant and troubling. Dr. 
Holder has thwarted a complete review of the steps he has taken (or has 
failed to take) by refusing Investigator McKenna's request for releases 
that would allow the DEA to see the PRN and HPSP reports. We have what 
appears to be only part of the report maintained by HPSP, and none of 
the report by PRN. In the absence of such evidence, I cannot find 
Respondent has established by at least preponderant evidence that he 
has accepted responsibility for his wrong-doing and has put in place 
effective corrective measures that would guard against future 
misconduct.

Findings of Fact

    1. On March 7, 2012, Respondent, Mark William Andrew Holder, M.D., 
submitted an application for a DEA Certificate of Registration to 
handle controlled substances.
    2. Respondent previously held DEA Certificate of Registration 
BH9956232, issued on November 21, 2007, with a registered address of 
221 164th Street NE., Suite 329, North Miami Beach, Florida. This 
registration expired by its own terms on October 31, 2009.
    3. On June 4, 2008, Respondent saw Patient S.S., a 25 year old 
male, at the MD Now Urgent Care Centers Royal Palm Beach facility. This 
was Patient S.S.'s initial encounter with Respondent in Respondent's 
professional capacity and Patient S.S.'s first visit of any kind to MD 
Now. Respondent prescribed Patient S.S. Percocet and Xanax, allegedly 
for back pain. The records of this visit indicate that Respondent 
failed to document a complete medical history and physical examination 
and that he failed to determine either the nature or the intensity of 
the patient's pain and the nature of the patient's current and past 
treatment for pain. Patient S.S. reported to Respondent that he was 
currently taking Percocet, Flexeril, and Xanax, yet the records 
contained no indication that Respondent inquired as to the identity of 
who previously treated and prescribed to the patient for his alleged 
back pain and anxiety issues. Respondent's brief treatment records 
indicate a diagnosis of ``disc degeneration'' despite the complete 
absence of any indication that Respondent reviewed any imaging studies 
or prior medical records to support this diagnosis.
    4. Respondent's prescriptions for Percocet and Xanax issued on June 
4, 2008 to Patient S.S. were issued outside the usual course of 
professional practice and for other than a legitimate medical purpose.
    5. On June 11, 2008, Respondent issued a handwritten prescription 
to Patient S.S. for 60 tablets of 30 mg Adderall, a Schedule II 
controlled substance. The prescription indicates that Respondent issued 
the prescription from MD Now's Lake Worth, Florida facility, located at 
4570 Lantana Road. MN Now has no medical records or any other 
documentation of Patient S.S.'s visit on June 11, 2008, nor is there 
any record of the issuance of this prescription. Respondent wrote the 
prescription without conducting an examination, without making a 
diagnosis for any condition necessitating the prescription, and without 
documenting the fact that Respondent had prescribed Adderall for this 
patient.
    6. Respondent's prescription for Adderall issued on June 11, 2008 
to Patient S.S. was issued outside the usual course of professional 
practice and for other than a legitimate medical purpose.
    7. Respondent directed Patient S.S. to deliver the filled Adderall 
prescription back to him, for his own personal use. Patient S.S. 
complied with this direction, diverting the prescription to Respondent, 
who then exercised control over the filled prescription.
    8. On June 13, 2008, at approximately 2:57 a.m., Respondent drove 
his Cadillac over a median, across three lanes of oncoming traffic into 
a street sign and concrete light pole, severely injuring himself and a 
passenger, N.P. The vial of Adderall Patient S.S. obtained from the 
prescription Respondent issued was located in Respondent's vehicle, 
with 41 of the 60 tablets remaining. Respondent's blood subsequently 
tested positive for amphetamines and marijuana, resulting in 
Respondent's arrest for driving under the influence of amphetamines and 
marijuana, driving on a suspended license, and obtaining amphetamines 
by fraud.
    9. By an Order of Emergency Suspension dated January 26, 2009, the 
State of Florida Department of Health suspended Respondent's license to 
practice medicine in Florida. It did so after finding Respondent 
violated Section 458.331(1)(r), Florida Statutes, which prohibited 
Respondent from prescribing or administering controlled substances to 
himself. It also found Respondent violated Section 458.331(1)(q), 
Florida Statutes, which prohibited Respondent from prescribing Adderall 
to a patient without conducting an examination, without making a 
diagnosis for any condition necessitating the prescription, and without 
documenting that he had prescribed Adderall for the patient or 
providing a justification for the prescription. It also found 
Respondent violated Section 458.311(1)(cc), Florida Statutes, by 
prescribing Adderall for purposes other than those authorized by that 
Section, after determining that Respondent wrote an Adderall 
prescription for Patient S.S., who then filled the prescription and 
upon being reimbursed for the cost of the prescription delivered to 
Respondent the filled prescription for Respondent's own use.
    10. By a Stipulation and Order dated November 12, 2011, the 
Minnesota Board of Medical Practice issued a restricted medical license 
to Respondent, upon its review of a report of chemical abuse and 
diversion of controlled substances for Respondent's own use. Under the 
terms of the Stipulation and Order, Respondent was authorized to 
practice medicine in Minnesota only upon agreeing to (1) participate in 
the Health Professionals Services Program for at least one year and 
complying with all of the requirements of that program; (2) submit to a 
minimum of six unannounced biological fluid screens per quarter; (3) 
execute a release authorizing the Program to release a copy of 
Respondent's monitoring plan to the Board; (4) practice only in a 
setting approved in advance by the Board; and (5) obtain a supervising 
physician who shall provide quarterly reports to the Board.
    11. On March 7, 2012, Respondent submitted the application for a 
DEA Certificate of Registration to handle controlled substances under 
Schedules 2, 2N, 3, 3N, 4 and 5, identifying the business location as 
2810 Nicollet Avenue South, Minneapolis, Minnesota 55408-3160. In this 
application, when asked ``Has the applicant ever surrendered (for 
cause) or had a state professional license or controlled substance 
registration revoked, suspended, denied, restricted, or placed on 
probation, or is any such action pending?'' Respondent falsely answered 
``No'' to this question.
    12. In the course of investigating the circumstances surrounding 
state medical board action pertaining to Respondent's medical licenses 
in Florida and Minnesota, DEA Diversion Investigator Virginia McKenna 
met with or spoke with Respondent on several occasions between July 19, 
2012 and August 23, 2013. Throughout this period, Investigator McKenna 
made repeated requests for Respondent to provide the DEA with copies of

[[Page 71646]]

monitoring and treatment records reflecting action by the medical 
boards in Florida and Minnesota. Initially, and for a period extending 
more than six months, Respondent deferred complying with these requests 
while assuring Investigator McKenna he would comply. By April 2013, 
when the records still had not been produced, Investigator McKenna 
presented Respondent with release forms that would authorize the DEA to 
receive copies of these reports. Respondent refused to sign the 
releases, and advised Investigator McKenna that he would not permit the 
DEA access to the PRN report from Florida, and gave her what appears to 
be an incomplete set of records reflecting the report from Minnesota.
    13. In meetings and conversations conducted by DEA Diversion 
Investigators McKenna, Jack Henderson, and Joseph Cappello, Respondent 
gave evasive and conflicting answers to questions regarding his history 
of drug abuse, his use and abuse of marijuana and Adderall, the sources 
supplying him with controlled substances, his ability to recall the 
events immediately prior to and after the June 13, 2008 crash, the 
nature and severity of injuries he and his passenger sustained due to 
the crash, his use of controlled substances while working at MD Now, 
and his reasons for answering registration application Question Three 
in the negative. He provided similarly evasive and conflicting answers 
to questions presented to him by the medical boards in Florida and 
Minnesota, particularly minimizing the severity of injuries he and his 
passenger sustained in the June 13, 2008 crash. Respondent continued 
providing evasive, inconsistent, and deflecting responses during the 
evidentiary hearing he requested upon his receipt of the pending DEA 
Order to Show Cause.
    14. Evidence of remediation in this record takes the form of 
Respondent's successful completion of a one-year period of monitoring 
under the auspices of the Minnesota Health Professional Services 
Program; letters expressing support by family members, professional 
colleagues and patients; and Respondent's testimony averring that he 
has changed his lifestyle, gotten married, produced a daughter, and 
learned from his experiences. Circumstances calling into question the 
weight that can be attributed to this evidence include the fact that 
the monitoring program established by the Minnesota Board was based on 
Respondent's material misrepresentation of the nature of the injuries 
he and his passenger sustained in the June 2008 crash, and his failure 
to disclose the extent and nature of his history of drug abuse. 
Further, the record establishes that upon its inquiry into Respondent's 
actions relating to the June 13, 2008 automobile crash, medical 
regulators in Florida ordered Respondent to participate in monitoring 
and a five-year period of probation, which Respondent failed to comply 
with, surrendering his medical license in that state in order to avoid 
these remedial requirements. There is thus insufficient evidence of 
remediation to overcome the Government's prima facie case.

Conclusions of Law

    1. When it proposes to deny a new application for a DEA Certificate 
of Registration pursuant to U.S.C. 824(a)(1), the Government is 
required to establish by at least a preponderance of the evidence that 
Respondent materially falsified a DEA registration application.
    2. Where preponderant evidence establishes, as is the case here, 
that Respondent denied having a license to practice medicine either 
suspended or restricted, knowing that this was a false answer, the 
Government has established sufficient proof of Respondent materially 
falsifying a DEA registration application to warrant denial of the 
application.
    3. When it proposes to deny a new application for a DEA Certificate 
of Registration pursuant to U.S.C. 824(a)(4), the Government is 
required to establish by at least a preponderance of the evidence that 
the applicant's registration is inconsistent with the public 
interest.\303\
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    \303\ 21 U.S.C. 823(f) and 824(a)(4); 21 CFR 1301.44(d).
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    4. Pursuant to U.S.C. 823(f), five factors must be considered when 
determining the public interest in this case pursuant to U.S.C. 
824(a)(4):
    (1) The recommendation of the appropriate state licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing, or conducting 
research with respect to controlled substances.
    (3) The applicant's conviction record under federal or state laws 
relating to the manufacture, distribution, or dispensing of controlled 
substances.
    (3) Compliance with applicable state, federal, or local laws 
relating to controlled substances.
    (4) Such other conduct which may threaten the public health and 
safety.\304\
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    \304\ 21 U.S.C. 823(f).
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    5. Under 21 U.S.C. 823(f)(1) (Factor One), where the record 
establishes a history of Respondent's license being first suspended by 
the Florida Department of Health and then voluntarily surrendered for 
cause, based on Respondent's decision not to participate in further 
monitoring by the Florida Department of Health; and a history of 
Respondent's license being restricted by the Minnesota Medical Board 
and then restored based on Respondent's false and misleading statements 
of his history of drug abuse and the circumstances surrounding a motor 
vehicle crash that had precipitated the action of the Florida 
Department of Health, the circumstances attendant to the action of 
these boards constitute evidence tending to establish that Respondent's 
DEA registration would be inconsistent with the public interest under 
Factor One.
    6. In order to establish a basis for denying an application for a 
Certificate of Registration based on the provisions of 21 U.S.C. 
823(f)(2) (Factor Two), the Government must present preponderant 
evidence establishing that Respondent's experience in dispensing 
controlled substances is of such character and quality that his 
registration would be inconsistent with the public interest. While 
there is some evidence that through the course of his education, 
training, and employment Respondent has acquired sufficient experience 
to appropriately fulfill those responsibilities attendant to persons 
authorized to prescribe controlled substances, the preponderant 
evidence of Respondent's experience in procuring controlled substances 
creates material questions regarding the benefit Respondent obtained 
from his positive experiences, where those experiences should have 
instilled in Respondent a greater sense of responsibility when 
procuring and using highly addictive controlled substances. If granted 
the authority to prescribe often-diverted controlled substances, 
Respondent's experience as demonstrated in this record would, in the 
event of relapse, constitute a threat to the public interest, 
particularly where Respondent continues to deny having drug abuse 
problems notwithstanding a history of abuse. While this risk is 
attenuated during Respondent's sustained period of stable recovery, it 
is sufficiently present here, given the absence of any on-going 
monitoring or treatment, to warrant a finding that Respondent's 
experience in dispensing controlled substances contradicts a finding 
that granting this application is consistent with the public interest. 
Accordingly, the Government has met its burden of establishing that 
registration would be inconsistent with the public interest under 
Factor Two.

[[Page 71647]]

    7. In order to establish a basis for denying an application for a 
Certificate of Registration based on the provisions of 21 U.S.C. 
823(f)(3) (Factor Three), the Government must present evidence of 
Respondent's conviction record under federal or state laws relating to 
the manufacture, distribution, or dispensing of controlled substances. 
As this Factor is neither alleged by the Government nor suggested by 
the evidence, this Factor may not be considered to support the denial 
of Respondent's application for a DEA Certificate of Registration.
    8. Under 21 U.S.C. 823(f)(4) (Factor Four), the Administrator is to 
consider the Respondent's compliance with applicable state, federal, or 
local laws relating to controlled substances. Federal law relating to 
controlled substances includes the requirement that all prescriptions 
for controlled substances must be for a legitimate medical purpose and 
must be issued in the ordinary course of a professional medical 
practice.\305\ Where the preponderant evidence establishes Respondent 
unlawfully prescribed Percocet and Xanax to Patient S.S. on June 4, 
2008, and unlawfully obtained and self-administered Adderall on June 
11, 2008, the Government has demonstrated a basis for finding that 
granting this application would be inconsistent with the public 
interest, under Factor Four.
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    \305\ Sun & Lake Pharmacy, 76 FR 24523-02, 24530 (DEA May 2, 
2011) (quoting 21 CFR 1306.04(a)); George C. Aycock, M.D., 74 FR 
17529-01, 17541 (DEA April 15, 2009).
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    9. Under 21 U.S.C. 823(f)(5) (Factor Five), the Administrator is to 
consider, ``[s]uch other conduct which may threaten the public health 
and safety.'' Respondent's actions or omissions that threaten the 
public interest may constitute a basis for denying an application for a 
DEA registration under Factor Five, where the conduct is not within the 
scope of Factors One through Four.\306\ Where by at least a 
preponderance of the evidence the Government establishes, as is the 
case here, that Respondent refused without good cause shown to execute 
releases granting the DEA access to monitoring reports in Minnesota and 
Florida; provided misleading accounts of the circumstances surrounding 
the June 13, 2008 motor vehicle crash in reports tendered to medical 
boards in Florida and Minnesota and in his accounts of the same to DEA 
investigators; and provided inconsistent and misleading accounts of his 
history of drug use to the DEA and to medical boards in Florida and 
Minnesota, the Government has met its burden of demonstrating that 
granting Respondent's application for a DEA registration would be 
inconsistent with the public interest under Factor Five.
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    \306\ 21 U.S.C. 823(f)(5).
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    10. Upon such evidence, the Government has met its burden and has 
made a prima facie case in support of the proposed order denying 
Respondent's application for a DEA Certificate of Registration.
    11. Where the Government has made out its prima facie case 
supporting the denial of an application, Respondent has the opportunity 
to demonstrate by preponderant evidence that through acknowledgement 
and remediation, granting Respondent's application for a DEA 
Certificate of Registration would be consistent with the public 
interest.
    12. Because ``past performance is the best predictor of future 
performance,'' \307\ where an applicant has committed acts inconsistent 
with the public interest, the applicant must accept responsibility for 
his or her actions and demonstrate that he or she will not engage in 
future misconduct.\308\ Further, admitting fault is ``properly 
consider[ed]'' by DEA to be an ``important factor [ ]'' in the public 
interest determination.\309\
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    \307\ Medicine Shoppe-Jonesborough, 73 FR 364-01, 387 (DEA 
January 2, 2008) (quoting ALRA Labs., Inc., v. DEA, 54 F.3d 450, 452 
(7th Cir. 1995)).
    \308\ Medicine Shoppe-Jonesborough, 73 FR at 387 (citing Samuel 
S. Jackson, 72 FR 23848-01, 23853 (DEA May 1, 2007)); John H. 
Kennedy, 71 FR 35705-01, 35709 (DEA June 21, 2006); Prince George 
Daniels, 60 FR 62884-01, 62887 (DEA December 7, 1995).
    \309\ Medicine Shoppe-Jonesborough, supra, 73 FR at 387 (quoting 
Hoxie v. DEA, 419 F.3d 477, 483 (6th Cir. 2005)).
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    13. The record now before the Administrator establishes that 
Respondent has failed to timely provide the DEA with reports of his 
treatment or monitoring from the Florida Medical Board and PRN and from 
the Minnesota Board of Medical Practice and HPSP; failed to acknowledge 
the need to provide forthright, accurate, and complete responses to 
questions presented regarding his prescription practice and his history 
of drug abuse; and failed to account for his false statement in making 
this application for DEA registration. Upon such evidence, Respondent 
has not rebutted the Government's prima facie case. Accordingly, the 
Government has established cause to deny this application.

Recommendation

    As the Government has pursuant to 21 U.S.C. 824(a)(1) established 
by preponderant evidence that Respondent has materially falsified an 
application filed pursuant to subchapters I or II of Chapter 13 of 
Title 21, United States Code; and as the Government has pursuant to 21 
U.S.C. 824(a)(4) established by preponderant evidence that granting a 
DEA Certificate of Registration to Respondent would be inconsistent 
with the public interest, and as Respondent has failed to rebut the 
case presented by the Government, Respondent's application for a DEA 
Certificate of Registration should be DENIED.

    Dated: October 9, 2014.

s/ CHRISTOPHER B. MCNEIL

Administrative Law Judge

 [FR Doc. 2015-28928 Filed 11-13-15; 8:45 am]
 BILLING CODE 4410-09-P