Wesley Pope, M.D.; Decision and Order, 14944-14985 [2017-05676]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 15–8]
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Wesley Pope, M.D.; Decision and Order
On October 8, 2014, the former
Deputy Assistant Administrator of the
then-Office of Diversion Control, issued
an Order to Show Cause to Wesley
Pope, M.D. (hereinafter, Respondent), of
Newcastle, Oklahoma. ALJ Ex. 1, at 1.
The Show Cause Order proposed the
denial of Respondent’s application for a
new Certificate of Registration as a
practitioner in schedules II through V,
on the ground that his registration
would be ‘‘inconsistent with the public
interest.’’ Id. (citing 21 U.S.C. 823(f)).
As support for the proposed denial,
the Government alleged that ‘‘[f]rom on
or about August 25, 2011 through on or
about May 9, 2012, [Respondent] issued
controlled substance prescriptions to
[patient] B.B. in violation of Federal and
Oklahoma . . . law.’’ Id. The
Government specifically alleged that
‘‘on each of the occasions that
[Respondent] issued controlled
substance prescriptions to B.B.,’’
Respondent was ‘‘aware . . . that he
presented a high risk of abuse and/or
diversion of controlled substances, as
evidenced by the red flags documented
in his patient file, such as aberrant urine
drug tests, a request for early refills, and
a claim of stolen drugs.’’ Id. The
Government then alleged that
Respondent ‘‘failed to address and, in
fact, ignored these red flags, continuing
to issue B.B. controlled substances [sic]
prescriptions in the face of mounting
evidence that he was misusing, abusing,
and/or diverting the controlled
substances [he was] prescribing.’’ Id.
The Government further alleged that
‘‘[t]he prescriptions [Respondent] issued
to B.B. on each visit were below the
standard of care in Oklahoma and fell
outside the usual course of professional
practice.’’ Id. at 1–2 (citing 21 CFR
1306.04(a); Okla. Admin. Code
§ 435:10–7–4; id. § 435:70–7–11 1; Okla.
Bd. of Med. Lic. & Super., Use of
Controlled Substances for the Treatment
of Pain (Mar. 10, 2005)). The Show
Cause Order then alleged that on 11
different dates, Respondent issued to
B.B. prescriptions for such drugs as
hydrocodone/acetaminophen, Opana
(oxymorphone), fentanyl patches,
1 This is an apparent typographical error as there
is no such provision. The parties, however, spent
considerable time arguing as to whether
Respondent complied with Okla. Admin. Code
§ 435:10–7–11, which governs the ‘‘Use of
Controlled Substances for the Management of
Chronic Pain.’’
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morphine sulfate, oxycodone/
acetaminophen, and Soma
(carisoprodol) which were ‘‘invalid.’’ Id.
at 2–6. The Government also provided
detailed factual allegations pertaining to
each of the prescriptions. Id.
Respondent requested a hearing on
the allegations. The matter was then
placed on the docket of the Office of
Administrative Law Judges and assigned
to Chief Administrative Law Judge John
J. Mulrooney, II (hereinafter, CALJ).
Following pre-hearing procedures, the
CALJ conducted a hearing on April 7–
8, 2015 in Oklahoma City, Oklahoma.
During the hearing, both parties
submitted documentary evidence; the
Government elicited the testimony of
several witnesses and Respondent
testified on his own behalf.
On July 24, 2015, the CALJ issued his
Recommended Decision (cited as R.D.).
Therein, the CALJ found that the
allegations were sustained only with
respect to five of the dates on which
Respondent prescribed (and with
respect to four of these dates, only
sustained in part). See R.D. 44, 46, 62,
64, 68. While the CALJ concluded that
Respondent had issued these
prescriptions outside of the course of
professional practice and thus violated
21 CFR 1306.04(a), id. at 90, he further
reasoned that Respondent’s misconduct
reflected ‘‘inattention to detail [and] not
intentional diversion.’’ Id. at 82. He thus
concluded that while the Government
had made out a prima facie case to
warrant some form of sanction,
Respondent’s conduct was not
sufficiently egregious to warrant denial
even though he found that ‘‘Respondent
was irresponsible in continuing to
prescribe to this patient in the face of
red flags of diversion, and in failing to
document or even possess the ability to
persuasively convey a medically-based
justification for prescribing new
controlled medication.’’ Id. at 92–93.
And even though Respondent had failed
to accept responsibility and put forward
no evidence of remedial measures he
had undertaken, the CALJ
recommended that he be granted a new
registration subject to a one-year period
of probation with various conditions. Id.
The Government filed Exceptions to
the Recommended Decision and
Respondent filed a Response to the
Government’s Exceptions. Thereafter,
the record was forwarded to my Office
for Final Agency Action.
Having considered the record in its
entirety including the Recommended
Decision, the Government’s Exceptions,
and Respondent’s Response to the
Government’s Exceptions, I agree with
the CALJ’s findings and legal conclusion
with respect to the first prescribing
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event (August 25, 2011). While I agree
with the CALJ’s legal conclusions that
Respondent acted outside of the usual
course of professional practice when he
prescribed controlled substances during
the third, fourth, tenth, eleventh, and
twelfth prescribing events, I hold that
several of the exceptions raised by the
Government are well taken and that
additional relevant evidence should be
considered in review of the record.
Based on my consideration of the record
as a whole, I, as the ultimate fact-finder,
conclude that a preponderance of the
evidence supports the conclusions that
Respondent knowingly diverted
controlled substances by issuing
prescriptions in violation of 21 CFR
1306.04(a) when he prescribed various
schedule II controlled substances on 11
occasions, beginning on September 22,
2011 and ending on May 9, 2012.
I further find that Respondent’s
misconduct is egregious and establishes
a prima facie case for denial. Because I
also agree with the CALJ that the record
reflects Respondent’s ‘‘almost dogged
determination to accept no
responsibility for any of his actions’’
and that he ‘‘has not presented even the
most modest plan for any remedial
action,’’ R.D. 92, I conclude that his
application should be denied.
The Government’s Exceptions
In its Exceptions, the Government
raises multiple contentions, several of
which warrant discussion prior to
making factual findings. The first of
these is that the CALJ erroneously
concluded that the Oklahoma Medical
Board’s Standards ‘‘on which the
Government relied were permissive
rather than mandatory.’’ Exceptions, at
5. Indeed, in making his legal
conclusions, the CALJ repeatedly
declined to give weight to the
Government Expert’s testimony on
material issues, reasoning that the
Expert’s testimony was premised on his
misunderstanding that the Board’s
regulations, in particular its
documentation and recordkeeping rules,
were mandatory rather than permissive.
Second, the Government maintains
that the CALJ erroneously held that the
Government failed to provide adequate
notice to Respondent of its intent to rely
on the various aberrant drug tests as part
of its proof that various prescriptions
were issued in violation of 21 CFR
1306.04(a). With respect to this
exception, the Government argues that
not only did it provide adequate notice,
the aberrant nature of the various urine
drug screens (UDS) was litigated by
consent. Exceptions, at 15–25. It also
takes exception to the CALJ’s finding
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that several of the UDSs were not
aberrant.
The CALJ’s Conclusion That the
Board’s Standards Are Permissive
Throughout his Recommended
Decision, the CALJ repeatedly declined
to give weight to the Government
Expert’s testimony that Respondent
failed to conduct a medically adequate
evaluation of B.B.’s pain complaint and
establish medical necessity to justify the
prescribing of controlled substances.
The basis of the CALJ’s reasoning was
that the deficiencies identified by the
Expert ‘‘generally relate to a paucity of
documented proof in the chart entries as
to whether or how much various
medical treatment considerations that
he favors were considered by the
Respondent in making his prescription
decision.’’ R.D. at 35. Based on his
conclusion that the provisions of the
Oklahoma Board’s rules applicable to a
physician’s documentation of his
evaluation of a patient and
recordkeeping are ‘‘permissive’’ and not
mandatory, the CALJ reasoned that
‘‘Respondent’s alleged lack of
documentation . . . is likely not as fatal
to the Respondent’s adherence to the
standard of care in Oklahoma as the
Government expert claims.’’ R.D. 16. I
disagree.
With respect to the evaluation of the
patient, the Oklahoma Rule states:
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A medical history and physical
examination must be obtained, evaluated and
documented in the medical record. The
medical record should document the nature
and intensity of the pain, current and past
treatments for pain, underlying or coexisting
diseases or conditions, the effect of the pain
on physical and psychological function and
history of substance abuse. The medical
record also should document the presence of
one or more recognized medical indications
for the use of a controlled substance.
Okla. Admin. Code § 435:10–7–11(1).
And with respect to medical records,
the Oklahoma Rule states in relevant
part that ‘‘[r]ecords should remain
current’’ and that ‘‘[t]he physician
should keep accurate and complete
records.’’ Id. § 435:10–7–11(6). The
records are ‘‘to include . . . the medical
history and physical examination
(including vital signs),’’ ‘‘diagnostic,
therapeutic and laboratory results,’’
‘‘evaluations, consultations and followup evaluations,’’ ‘‘treatment objectives,’’
‘‘discussion of risks and benefits,’’
‘‘informed consent,’’ ‘‘treatments,’’
‘‘medications (included date, type,
dosage and quantity prescribed),’’
‘‘instructions and agreements and
periodic reviews.’’ Id. In the CALJ’s
view, because the provisions of the
Oklahoma regulation applicable to the
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documentation of the physician’s
evaluation of his patient and his
recordkeeping use the word ‘‘should’’ in
expressing the State’s rules, the
obligations they impose are
‘‘permissive.’’ R.D. at 16.
The CALJ, however, cited no
authority from either the Board or the
Oklahoma courts definitively
interpreting the word ‘‘should’’ as used
in the context of these two provisions as
‘‘permissive.’’ See, e.g., id. at 6. Indeed,
the CALJ’s conclusion appears to have
been based entirely on the fact that the
Board’s prior version of its intractable
pain rule used such words as ‘‘requires’’
and ‘‘must’’ in setting forth a
practitioner’s obligations with respect to
documentation and recordkeeping. See
R.D. 87 n.147 (quoting Okla. Admin.
Code § 435:10–7–11(b) (2004): ‘‘[t]his
rule requires that a diagnosis be
documented’’ and id. § 435:10–7–11(j):
‘‘[a]ccurate and complete records to
document compliance with this section
must be kept’’). In the CALJ’s view,
‘‘[t]he evolution of the [regulations]
demonstrate [sic] that their permissive
nature represents an intentional redirection by Oklahoma.’’ Id.
However, when the Board
promulgated the current version of the
rule in 2005, it simply noted that ‘‘[t]he
rule is being updated based on
recommendations from the Federation
of State Medical Boards.’’ 22 Okla. Reg.
2096 (June 15, 2005); see also 22 Okla.
Reg. 379 (Notice of Rulemaking Intent;
Feb. 1, 2005). In short, the CALJ’s
reliance on the Board’s decision to
adopt the Federation of State Medical
Board’s model rule simply proves too
much.
Furthermore, although the word
‘‘should’’ is susceptible to different
meanings, when used in the context of
legal requirements, it generally does not
connote ‘‘permission’’ but rather
obligation or duty. United States v.
Anderson, 798 F.2d 919, 924 (7th Cir.
1986) (‘‘The common interpretation of
the word ‘should’ is ‘shall’ and thus a
straight-forward construction of [the
Code of Judicial Conduct] reveals that it
imposes a mandatory rule of conduct
upon a judge.’’) 2; Wollschlaeger v.
Farmer, 814 F.Supp.2d 1367, 1376
(S.D.Fl. 2011) (‘‘Generally, laws that
provide for disciplinary action in the
cases of violations or noncompliance are
mandatory, not precatory or hortatory.
. . .’’); see also Bureau of Prisons v.
FLRA, 737 F.3d 779, 787 (D.C. Cir. 2013)
(‘‘ ‘Should’ is typically used to express
2 As the Seventh Circuit also noted, ‘‘as listed in
Roget’s Thesaurus, [the word ‘‘should’’] means ‘be
obliged, must . . . have to.’ The common
interpretation of the word ‘should’ is ‘shall.’ ’’ 798
F.2d at 924.
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an obligation or duty.’’) (citing Webster’s
Third International Dictionary 2104
(1976)); see also Webster’s Third
International Dictionary 2104 (defining
‘‘should’’ as ‘‘used in auxiliary function
to express duty, obligation, necessity,
propriety or expediency’’).
Moreover, reading the Board’s
documentation and recordkeeping
provisions as permissive cannot be
squared with the Oklahoma Medical
Practice Act. Cf. Wollschlaeger, 814
F.Supp.2d at 1376 (rejecting
interpretation that statute which used
‘‘should’’ was hortatory when State law
provided that violations of provision
constituted grounds for disciplinary
action). Under the Medical Practice Act,
a physician’s ‘‘[f]ailure to maintain an
office record for each patient which
accurately reflects the evaluation,
treatment, and medical necessity of
treatment of the patient’’ constitutes
‘‘unprofessional conduct.’’ 50 Okla. Stat.
Ann. § 509(18). Another provision of the
Medical Practice Act states that
‘‘[a]dequate medical records to support
diagnosis, procedures, treatment, or
prescribed medications must be
produced and maintained.’’ Id.
§ 509(20) (emphasis added). And a
further provision of the Medical Practice
Act makes ‘‘[p]rescribing . . . controlled
substances or narcotic drugs without
medical need in accordance with
published standards’’ ‘‘unprofessional
conduct.’’ Id. § 509(16).
Thus, construing the Board’s
documentation and recordkeeping rules
as permissive would be fundamentally
inconsistent with the Medical Practice
Act’s provisions on documentation and
recordkeeping, which are clearly
mandatory. See Abramski v. United
States, 134 S.Ct. 2259, 2267 n.6 (2014)
(‘‘[A] court should not interpret each
word in a statute with blinders on,
refusing to look at the word’s function
within the broader statutory context. As
we have previously put the point, a
‘provision that may seem ambiguous in
isolation is often clarified by the
remainder of the statutory scheme . . .
because only one of the permissible
meanings produces a substantive effect
that is compatible with the rest of the
law.’ ’’) (quoting United Sav. Assn. of
Tex. v. Timbers of Inwood Forest
Associates, Ltd., 484 U.S. 365, 371
(1988)). See also Jacobs v. New York
Foundling Hosp., 577 F.3d 93, 99 (2d
Cir. 2009).
Accordingly, the Board’s Intractable
Pain Rule’s documentation and
recordkeeping provisions are not
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reasonably read as being permissive.3
Indeed, in the Policy Statement it issued
contemporaneously with the
promulgation of the Rule, the Board
provided further evidence that the
documentation and recordkeeping
requirements are not permissive. For
example, the Board explained that ‘‘[a]ll
such prescribing [of controlled
substances for pain] must be based on
clear documentation of unrelieved pain.
To be within the usual course of
professional practice, a physicianpatient relationship must exist and the
prescribing should be based on a
diagnosis and documentation of
unrelieved pain.’’ Policy Statement, at 2
(emphasis added). Were the CALJ’s
interpretation correct, what the Board
required in the first sentence was then
rendered permissive by the use of the
word ‘‘should’’ in the following
sentence. Indeed, if the word ‘‘should’’
rendered the rules permissive, a
physician could prescribe controlled
substances to his patient without even
having formulated a diagnosis. This
makes no sense and thus, the better
view is that the words ‘‘must’’ and
‘‘should’’ have the same meaning: they
impose mandatory obligations.
In its Policy Statement, the Board also
stated that it ‘‘will judge the validity of
the physician’s treatment of the patient
based on available documentation.’’ Id.
And finally, the Board stated that it
‘‘will not take disciplinary action
against a physician for deviating from
this policy when contemporaneous
medical records document reasonable
cause for deviation.’’ Id. It makes no
sense to advise physicians that the
validity of their treatment decisions will
be based on documentation and
recordkeeping requirements if those
provisions are not requirements at all,
but rather, merely hortatory and
aspirational pronouncements.
Accordingly, I do not agree that the
Government Expert’s testimony as to the
deficiencies in Respondent’s
evaluations of B.B. was based on the
Expert’s mistaken understanding of the
scope of the Oklahoma Board’s
documentation and recordkeeping
standards. Thus, while I fully agree with
3 In a series of cases involving the State of
Florida’s former regulation entitled ‘‘Standards for
the Use of Controlled Substances for Treatment of
Pain’’ (Fla. Admin. Code r. 64B8–9.013 (2009)),
which adopted nearly verbatim the FSMB’s text
(including the respective uses of the words ‘‘must’’
and ‘‘should’’) in setting that State’s documentation
standard with respect to the evaluation of the
patient, the CALJ explained that ‘‘[c]onscientious
documentation is repeatedly emphasized as not just
a ministerial act, but a key treatment tool and a vital
indicator to evaluate whether the physician’s
prescribing practices are ‘within the usual course of
professional practice.’ ’’ See, e.g., Roni Dreszer, 76
FR 19434, 19448–49 (2011). So too here.
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the CALJ that the Expert’s ‘‘testimony
predictably raised no issues regarding
credibility,’’ I disagree with the CALJ’s
assertion that the Expert’s ‘‘testimony
was not without its own ‘red flags.’ ’’
R.D. 18. I therefore find that this
exception is well taken.
The CALJ’s Rulings That the
Government Failed To Provide
Adequate Notice of Its Intent To Rely
on Various Urine Drug Screen Results
as Probative Evidence of the Illegality
of the Prescriptions
Throughout his Recommended
Decision, the CALJ repeatedly declined
to consider the Government’s evidence
that Respondent failed to address an
aberrant urine drug screen which
showed that his patient B.B. was not
taking a controlled substance that had
been prescribed to him. See, e.g., R.D. at
38–39 n.75. In the CALJ’s view, the
Government did not provide adequate
notice of its intent to rely on
Respondent’s failure to address an
aberrant June 1UDS in either the Show
Cause Order or its Pre-hearing
Statements with respect to multiple
prescriptions. See id. at 38–39 (Sept. 25,
2011 Rxs), 48 (Nov. 18 and Dec. 15,
2011 Rxs); 51 (Jan. 19, 2012 Rxs); 54
(Feb. 13, 2012 Rxs), 56 (Mar. 13, 2012
Rxs), 60 (April 12, 2012 Rxs), 64 n.121
(April 25, 2012 Rx). As support for his
rulings, the CALJ maintained that ‘‘the
Agency has recently imposed an
increased standard of notice on it
administrative prosecutors.’’ Id. at 39
n.75 (citing Farmacia Yani, 80 FR
29053, 29064 n.28 (2015); Jana
Marjenhoff, 80 FR 29067, 29068 (2015)).
A review of these decisions shows,
however, that the Agency has not
‘‘imposed an increased standard of
notice’’ 4 but simply applied the
4 According to the CALJ, in Farmacia Yani, ‘‘the
Government’s notice was deemed insufficient in
that although the alleged misconduct was disclosed
and pursued, it did not include the correct
regulation subsection in its [Show Cause Order] and
prehearing statement.’’ R.D. 66 (citing 80 FR at
29064 n.28). This, however, misstates the case.
At issue in footnote 28 of Farmacia Yani was the
Government’s allegation that the pharmacy had
filled Suboxone prescriptions which were clearly
issued for maintenance or detoxification purposes
by two physicians but which did not contain the
requisite identification number or good faith
statement establishing that the physician was
authorized to prescribe Suboxone for these
purposes. See 80 FR 29063–64. As the legal basis
for the allegation, the Government cited 21 CFR
1306.04 and 1306.06. The first regulation includes,
inter alia, subsection a, which makes it illegal for
a pharmacist to knowingly fill a prescription issued
outside of the usual course of professional practice
and which lacks a legitimate medical purpose, and
subsection c, which provides, in part, that a
prescription may not be issued for maintenance or
detoxification treatment unless ‘‘the practitioner is
in compliance with the requirements’’ applicable to
practitioners who prescribe Suboxone for
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maintenance or detoxification treatment. See 21
CFR 1306.04(a) & (c); id. § 1301.28 (requirements for
prescribing Suboxone for this purpose); see also id.
§ 1306.06 (‘‘A prescription for a controlled
substance may only be filled by a pharmacist, acting
in the usual course of his professional
practice. . . .’’).
While the Decision noted that the Government
had not identified the specific subsection of
1306.04 which it alleged was violated, it did not
hold that the ‘‘notice was deemed insufficient.’’
R.D. 66. Indeed, while the Decision rejected the
Government’s contention that the pharmacist acted
outside of the usual course of professional practice
in violation of 1306.04(a) and 1306.06 for lack of
evidence, 80 FR at 29064, and further noted that
1306.04(c) ‘‘impose[s] duties only on the issuer of
[a] prescription which has been issued to provide
maintenance or detoxification purposes,’’ id. at
n.28, the Decision nonetheless found that the
pharmacy had violated another provision of the
Agency’s regulations. Specifically, the Decision
found a violation based on 21 CFR 1306.05(f),
which imposes ‘‘[a] corresponding liability . . .
upon the pharmacist . . . who fills a prescription
not prepared in the form prescribed by DEA
regulations, ’’ 21 CFR 1306.05(f), and 21 CFR
1306.05(b), which requires that such a prescription
include either the prescriber’s X number or good
faith statement. See 80 FR at 29064 & n.28 (citation
omitted).
Indeed, notwithstanding that the Government
cited the wrong provision of the regulations, the
respondent’s principal did not dispute that her
conduct in filling these prescriptions was a
violation. See Respondent’s Proposed Findings of
Fact and Conclusions of Law, at 11 (Proposed
Conclusion of Law #11: ‘‘The second violation[]
relates to buprenorphine prescriptions from two
physicians who were not authorized to prescribe
such prescriptions because they were not Datawaived practitioners. Physicians are issued a
specific registration that is distinguished with an X
number, and this number[] should be on the
prescription. Farmacia Yani dispensed 29
prescriptions in total from these two doctors that
did not have an X number.’’) (citations omitted).
Thus, this case does not support the CALJ’s
assertion that ‘‘recent Agency precedent has
imposed significantly tighter notice requirements
on the Government.’’ R.D. at 66.
The CALJ further asserted that ‘‘[i]n Marjenhoff,
. . . the Agency refused to allow the Government
to rely on noticed conduct alleged as a violation of
the public interest factors because it failed to
specify that the conduct would be specifically
considered under factor 5.’’ R.D. 66 (citing 80 FR
at 29068). Here again, this is a misstatement of the
case.
Apparently, the CALJ’s assertion refers to the
Agency’s declination to find that the respondent’s
conduct in intercepting a pharmacist’s phone calls
(who questioned the validity of a prescription the
respondent had created for herself by forging the
signature of the purported prescriber) constituted
actionable misconduct under factor five. 21 U.S.C.
823(f)(5). This factor provides for liability based on
‘‘such other conduct which may threaten public
health and safety.’’ Id.
Significantly, the Show Cause Order made no
such allegation, and while the Government
disclosed in its pre-hearing statement that it
intended to elicit testimony from the pharmacist
regarding his attempt to verify the prescription after
it was rejected for payment by respondent’s insurer,
at no point in the proceedings did the Government
rely on the evidence other than as proof that the
‘‘[r]espondent illegally obtained hydrocodone on
eleven occasions.’’ See Govt.’s Proposed Findings of
Fact and Conclusion of Law, at 14 (discussing the
pharmacist’s testimony as evidence that respondent
‘‘forged and filled hydrocodone prescriptions to
herself using [a PA’s] DEA number. These actions
constitute violations of 21 U.S.C. 843(a)(3) [and] 21
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extensive body of judicial precedent
that addresses the adequacy of notice in
administrative adjudication, which, as
the Second Circuit has explained, ‘‘is so
peculiarly fact-bound as to make every
case unique.’’ Pergament United Sales,
Inc. v. NLRB, 920 F.2d 130, 135 (2d Cir.
1990) (quoted in Marjenhoff, 80 FR at
29068); see also Marjenhoff, 80 FR at
29067–68 (discussing court decisions on
notice in administrative adjudication);
Farmacia Yani, 80 FR at 29059 (same).
The CALJ also held that the
Government could not rely on this
evidence under the doctrine of litigation
by consent—even though Respondent
never objected to the Expert’s testimony
that the June 1 (and other tests) were
aberrant and that Respondent failed to
properly address the aberrant results—
asserting that the Government had the
duty to ‘‘timely and affirmatively raise[]
. . . this theory’’ and failed to do so. Id.
at 39 (citing Odette Campbell, 80 FR
41062, 41062 n.2 (2015)). This
reasoning, however, is also based on a
misreading of that case.5
CFR 1306.04. . . .’’). Moreover, in its discussion of
Factor Five, the Government’s arguments were
confined to arguing that the ‘‘[r]espondent has
failed to accept responsibility for her actions,’’ that
she had not ‘‘present[ed] any mitigating evidence,’’
and that she ‘‘has demonstrated a pattern of actions
that are against the public interest by
inappropriately prescribing controlled substances
. . . in 2005 and forging and filling prescriptions
in 2011.’’ Id. at 15–16.
Thus, contrary to the CALJ’s statement, the
Government never relied on this conduct as a
separate ‘‘violation of the public interest factors.’’
R.D. at 66. Nor could it have, as the public interest
factors do not impose substantive rules of conduct
but are simply ‘‘components of the public interest’’
that ‘‘shall be considered’’ in determining whether
to grant an application for a registration. Penick
Corp., Inc. v. DEA, 491 F.3d 483, 490 (D.C. Cir.
2007) (citation omitted). Most importantly, at no
point did the Government assert that this conduct
should also be considered as a separate act of
misconduct under Factor Five.
5 In Campbell, the ALJ noted that ‘‘ ‘the evidence
indicate[d] that [the] [r]espondent did not follow
adequate security procedures,’ ’’ but then ‘‘declined
to consider the evidence on the ground that the
Government did not provide adequate notice in
either the Show Cause Order or its Prehearing
Statements, notwithstanding that [the] [r]espondent
did not object to the testimony.’’ 80 FR at 41062 n.2
(other citation omitted). While the former
Administrator observed that ‘‘the record arguably
support[s] a finding that the issue was litigated by
consent,’’ she did not consider the evidence
because ‘‘the Government did not take exception to
the ALJ’s ruling.’’ Id.
Here, by contrast, the Government has taken
exception to the CALJ’s rulings that the issue has
not been litigated by consent. See Gov. Exceptions,
at 24–25. As for the CALJ’s assertion that the issue
was ‘‘not timely’’ raised by the Government, given
that: (1) Respondent never objected to the testimony
nor argued in its post-hearing brief that it did not
have fair notice that the June 1 drug screen would
be at issue throughout the proceeding, and (2) the
CALJ did not rule that the Government could not
rely on this theory until he issued his
Recommended Decision, it is unclear how the
Government could have timely raised the issue
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‘‘The primary function of notice is to
afford [a] respondent an opportunity to
prepare a defense by investigating the
basis of the complaint and fashioning an
explanation that refutes the charge of
unlawful behavior.’’ Pergament United
Sales, Inc. v. NLRB, 920 F.2d 130, 135
(2d Cir. 1990) (citation omitted). Thus,
as the courts have long noted,
‘‘ ‘[p]leadings in administrative
proceedings are not judged by the
standards applied to an indictment at
common law.’ ’’ Aloha Airlines v. Civil
Aeronautics Bd., 598 F.2d 250, 262 (D.C.
Cir. 1979) (quoted in CBS Wholesale
Distributors, 74 FR 36746, 36749
(2009)); accord Citizens State Bank of
Marshfield v. FDIC, 751 F.2d 209, 213
(8th Cir. 1984). Moreover, an agency ‘‘is
not burdened with the obligation to give
every [Respondent] a complete bill of
particulars as to every allegation that
[he] will confront.’’ Boston Carrier, Inc.
v. ICC, 746 F.2d 1555, 1560 (D.C. Cir.
1984).
Accordingly, even where the
Government fails to disclose an
allegation in the Order to Show Cause,
‘‘an issue can be litigated if the
Government otherwise timely notifies a
[r]espondent of its intent to litigate the
issue.’’ CBS Wholesale, 74 FR at 36570.
Moreover, while the Agency has held
that ‘‘the parameters of the hearing are
determined by the prehearing
statements,’’ consistent with numerous
court decisions, it has also recognized
that even where an allegation was not
raised in either the Show Cause Order
or the pre-hearing statements, the
parties may nonetheless litigate an issue
by consent. Pergament United Sales,
920 F.2d at 135–37; see also Duane v.
Department of Defense, 275 F.3d 988,
995 (10th Cir. 2002) (discussing Facet
Enterprises, Inc., v. NLRB, 907 F.2d 963,
974 (10th Cir. 1990); ‘‘we held that the
defendant had constructive notice of an
alternate theory of liability not
described in the formal charge when the
agency detailed that theory during its
opening argument and at other points
during the hearing and when the
defendant’s conduct revealed that it
understood and attempted to defend
against that theory’’).6
until it received the Recommended Decision and
filed its Exceptions.
6 See also Grider Drug #1 & Grider Drug #2, 77
FR 44070, 44077 n.23 (2012) (holding that while the
Government did not provide adequate notice of its
intent to litigate an allegation in either the Show
Cause Order or its pre-hearing statements, where
respondents ‘‘did not object that the allegation was
beyond the scope of the proceeding and that they
were denied adequate notice of it’’ and ‘‘fully
litigated the issue,’’ the allegation was litigated by
consent) (citing Citizens State Bank, 751 F.2d at
213; Kuhn v. Civil Aeronautics Bd., 183 F.2d 839,
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To be sure, ‘‘[a]n agency may not base
its decision upon an issue the parties
tried inadvertently. Implied consent is
not established merely because one
party introduced evidence relevant to an
unpleaded issue and the opposing party
failed to object to its introduction. It
must appear that the parties understood
the evidence to be aimed at the
unpleaded issue.’’ Yellow Freight
System, Inc., v. Martin, 954 F.2d 353,
358 (6th Cir.1992) (citation omitted).
Accordingly, where the Government’s
case ‘‘focus[es] on another issue and
[the] evidence of [an] uncharged
violation [is] ‘at most incidental,’ ’’ the
Government has not satisfied its
constitutional obligation to provide a
full and fair opportunity to litigate the
issue and it cannot rely on the
incidental issue as the basis for
imposing a sanction. Pergament, 920
F.2d at 136 (quoting NLRB v. Majestic
Weaving Co., 355 F.2d 854, 861–62 (2d
Cir. 1966)). However, the issue of
whether an allegation ‘‘has been fully
and fairly litigated [by consent] is so
peculiarly fact-bound as to make every
case unique.’’ Id. at 136.
Having reviewed the record, I find the
Government’s exception well taken and
hold that the Government provided
Respondent with adequate notice that
both the aberrant nature of the June 1
drug test and his failure to address it
would be at issue throughout the
proceeding. Moreover, even if the
Government failed to specifically
reference the June 1 test by date in the
Show Cause Order (and Pre-hearing
Statements) with respect to several of
the prescriptions, Respondent had
adequate notice that it was at issue
throughout the proceeding and indeed,
had a full and fair opportunity to litigate
the issue.
The Show Cause Order repeatedly
provided notice that the aberrant nature
of B.B.’s June 1 UDS and Respondent’s
failure to address it would be at issue in
the proceeding. For example, paragraph
3 of the Show Cause order alleged that
‘‘[f]rom on or about August 25, 2011
through on or about May 9, 2012,
[Respondent] issued controlled
substance[] prescriptions to B.B. in
violation of Federal . . . law.’’ ALJ Ex.
1, at 1 (emphasis added). The Show
Cause Order then alleged that
Respondent was ‘‘aware on each of the
occasions that [he] issued controlled
substance[] prescriptions to B.B. that he
presented a high risk of abuse and/or
diversion of controlled substances, as
evidenced by the red flags documented
in his patient file, such as aberrant
841–42 (D.C. Cir. 1950); and Yellow Freight System,
Inc., v. Martin, 954 F.2d 353, 358 (6th Cir. 1992)).
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urine drug tests.’’ Id. (emphasis added).
And the Order then alleged that
Respondent ‘‘failed to address and, in
fact, ignored these red flags, continuing
to issue B.B controlled substance
prescriptions in the face of mounting
evidence that he was misusing, abusing,
and/or diverting the controlled
substances you were prescribing.’’ Id.
In the allegations regarding the
August 25, 2011 prescriptions, the Show
Cause Order provided a detailed
recitation of the factual basis for the
allegation that the June 1, 2011 UDS was
aberrant and that this ‘‘should have
indicated . . . that B.B. may have been
misusing/abusing the alprazolam by
consuming more than he had been
prescribed, or diverting it.’’ Id. at 2. As
for the September 22, 2011
prescriptions, the Show Cause Order,
after setting forth the factual basis for
why the August 25 UDS was aberrant,
proceeded to allege that Respondent
‘‘did not address with B.B. the now
second aberrant drug screen in an
approximately three month period,
despite noting in the record that you
had ‘extensively reviewed’ B.B.’s ‘[p]ast
medical history.’ ’’ Id. at 3 (emphasis
added). The Show Cause order then
alleged that ‘‘[y]ou took no other steps
to monitor B.B.’s controlled substance
use, such as requiring him [to] take
another drug screen due to the two
failed ones, conducting a new
[prescription monitoring report] check,
or requiring him to submit to a pill
count.’’ Id. (emphasis added).
In setting forth the allegations with
respect to the October 6 and 20
prescriptions, the Show Cause Order
alleged that ‘‘[y]ou still did not address
with B.B. the two aberrant drug screens’’
and ‘‘[y]ou still had not confronted B.B.
about the two aberrant drug screens’’
respectively. Id. at 4 (emphasis added).
And with respect to the subsequent
prescriptions, the Show Cause Order
made multiple allegations such as that:
(1) Respondent ‘‘did not take any steps
to monitor [B.B.’s] controlled
substance[ ] use despite his history of
misusing, abusing, or diverting
controlled substances’’ (Nov. 18, 2011
prescriptions); (2) ‘‘despite [B.B.’s]
history of substance misuse, abuse, and/
or diversion, you did not take
appropriate steps to monitor his
controlled substance use before issuing
him these new prescriptions’’ (Jan. 19,
2012 prescriptions); and (3) Respondent
again prescribed controlled substances
‘‘without taking appropriate steps to
monitor [B.B.’s] controlled substance
use despite the persistent red flags of
abuse and diversion he previously
presented’’ (Mar. 13, 2012
prescriptions).
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Likewise, in its Pre-hearing
Statement, the Government provided
notice that ‘‘Dr. Owen [its Expert] will
testify that [Respondent] should have
been aware from documentation in
B.B.’s file of red flags that B.B. may have
been abusing or diverting controlled
substances prior to transferring his
treatment to’’ Respondent (the period in
which the June 1 UDS was obtained), as
well as notice setting forth the factual
basis as for why the June 1 UDS was
aberrant. ALJ Ex. 5, at 10, 12–13. With
respect to the September 22, 2011
prescriptions, the Pre-hearing Statement
provided notice that the medical file
shows that Respondent ‘‘never
addressed with B.B. this now second
aberrant UDS in an approximately three
month period, despite noting in the
record that [he] had ‘extensively
reviewed’ B.B.’s past medical history’’
and that Respondent ‘‘took no other
steps to monitor B.B.’s controlled
substance use, such as requiring him to
take another UDS due to the two failed
ones.’’ Id. at 14 (emphasis added).
Moreover, with respect to the October
6 prescriptions, the Pre-hearing
Statement provided notice that ‘‘Dr.
Owen will testify that on this visit
[Respondent] again failed to address
with B.B. the two aberrant UDSs,’’ and
with respect to the October 20, 2011
prescriptions, ‘‘the record lacks
documentation that . . . he confronted
B.B. about the two aberrant UDSs.’’ Id.
at 15–16 (emphasis added). And with
respect to the later prescriptions, the
Pre-hearing Statement provided notice
that Dr. Owen ‘‘will testify’’ that
Respondent ‘‘also failed to take any
steps to monitor B.B.’s controlled
substances use despite B.B.’s history of
misusing, abusing, or diverting
controlled substances.’’ Id. at 16. See
also id. at 17 (Jan. 19 prescriptions; ‘‘Dr.
Owen will testify that despite the fact
that this was B.B.’s first visit . . . in
three months, and despite his history of
substances misuse, abuse, and/or
diversion, [Respondent] failed to take
adequate steps to monitor B.B.’s
controlled substance use before issuing
him these new prescriptions’’); id. at 19
(Mar. 13 prescriptions; providing notice
that ‘‘Dr. Owen will testify’’ that
Respondent again issued controlled
substance prescriptions ‘‘without taking
appropriate steps to monitor B.B.’s
controlled substance use despite the
persistent red flags of abuse and
diversion he previously presented’’).
Thus, the Show Cause Order’s
allegations and the Pre-Hearing
Statement’s disclosure of the expected
testimony provided Respondent with
more than adequate notice that the
results of the June 1, 2011 UDS and his
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failure to address it would be at issue
throughout the proceeding. And even if
I concluded otherwise, the record is
clear that the issue was litigated by
consent.
Notably, during its direct examination
of Dr. Owen regarding the September
22, 2011 prescriptions, the Government
asked Dr. Owen the following questions:
Q. Would the aberrant urine drug test from
June 1 have shown up in a review of the
history?
A. Yes.
Q. Would the aberrant drug test from
August 25, 2011, have shown up in the
history?
A. Yes.
Q. And were those aberrant drug tests part
of this medical file as you received it?
A. Yes, it [sic] was.
Q. What—how does [Respondent] address
the aberrant drug tests in this 9/22 patient
file note[]?
A. It’s [sic] completely ignored.
Q. What steps should [Respondent] have
taken regarding the aberrant drug screens?
A. He should have acknowledged their
existence and then taken some corrective
action.
. . . .
Q. Does it appear that [Respondent] took
any safeguard regarding the potential for
diversion or abuse with the aberrant drug
screens?
A. No.
Tr. 132–33.
Notably, Respondent did not object to
any of this testimony. See id. Moreover,
the Government asked similar questions
of Dr. Owen regarding the later
prescriptions, with no objection by
Respondent. See id. at 136 (Oct. 6, 2011
visit; Q. ‘‘Having reviewed the patient
file, can you tell me what steps
[Respondent] took on this date to
address the two previous aberrant urine
drug tests?’’ A. ‘‘The previous aberrant
urine drug tests are ignored and not
addressed.’’); id. at 139 (Oct. 20,
2011visit: Q. ‘‘What steps should
[Respondent] have taken on this date?’’
A. Respondent ‘‘[s]hould have,
particularly in light of the previous
aberrant drug tests . . . sought
psychological counseling for this
patient.’’).7
7 See also Tr. 143 (Nov. 18 and Dec. 15, 2011 Rxs:
Q. ‘‘Is there any mention anywhere about the
aberrant drug tests and the results being discussed
with BB?’’ A. ‘‘No, there’s not.’’); id. at 147 (Jan. 19,
2102 visit and Rxs: Q. ‘‘Is there any mention of the
aberrant urine drug tests from June or August in this
[patient file] during this visit?’’ A. ‘‘There is not.’’);
id. at 154 (Feb. 13 Rxs: testimony of Dr. Owen’s that
Respondent’s counseling B.B. ‘‘to take only as
prescribed’’ after Jan. 19 drug test was not an
adequate safeguard against abuse and diversion,
‘‘especially since this is the third aberrant drug
test’’); id. at 154–55 (Feb. 13 Rxs: Q. ‘‘In the face
of so many aberrant drug tests, what steps—what
should [Respondent] have done?’’); id. at 158 (Mar.
13, 2012 Rxs: Q. ‘‘Are there any aberrant drugtaking behaviors here?’’ A. ‘‘There has [sic] been
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Indeed, Respondent’s counsel raised
the issue when, in Respondent’s case-inchief, she asked him: ‘Do you recall if
you looked back at the previous drug
tests?’’ Id. at 283. Respondent answered:
‘‘I don’t recall, but I doubt I did’’ and
‘‘I wouldn’t expect myself to.’’ Id.
Respondent’s counsel then asked him if
Dr. Schoelen had seen B.B.in June and
July after the June 1 drug test, with
Respondent answering ‘‘[t]hat’s
correct.’’ Id. Respondent then testified
that the test was reported back to his
former partner, who saw B.B. on June 29
and July 26, before testifying that he
would have ‘‘routinely looked at two,
three different notes.’’ Id. at 284.
Subsequently, on its crossexamination of Respondent with respect
to what he looked at in the chart when
he took over B.B.’s care, the Government
asked: ‘‘Did you see the June 1, 2011,
UD[S], urine drug test?’’ Id. at 390.
Respondent’s counsel raised no
objection to the question and
Respondent answered: ‘‘I don’t believe I
did.’’ Id. While Respondent then
asserted that he ‘‘assume[d]’’ that Dr.
Schoelen ‘‘addressed every UDS,’’ when
pressed as to whether, based on his
review of the file, Dr. Schoelen had ever
addressed the June 1 UDS, Respondent
answered: ‘‘I didn’t review his part of
the chart.’’ Id. at 390–91.
Thus, Respondent was clearly aware
that his failure to address the June 1,
2011 drug test was at issue with respect
to the entirety of his controlled
substance prescribing to B.B. and in no
sense was this ‘‘an incidental issue’’ in
the case. Pergament United Sales, 920
F.2d at 136 (citation omitted). He also
had a full and fair opportunity to litigate
the issues of whether the June 1 (as well
other tests) were aberrant and whether
he properly addressed them during the
course of his prescribing to B.B.
Accordingly, I find the Government’s
exception well taken and will consider
this evidence.8
Based on the preponderance of the
evidence, I make the following findings.
Findings of Fact
Respondent is a family practice
physician licensed by the Oklahoma
State Board of Medical Licensure and
Supervision. RX 1. Respondent
graduated from the University of
Oklahoma (OU) College of Medicine in
1989. Tr. 231. Thereafter, he did an
internship through the OU ‘‘Tulsa/
three previous.’’); id. at 165–66 (Apr. 12, 2012 Rxs
Q. ‘‘Did he address any of the previous aberrant
drug screens?’’ A. ‘‘He did not.’’). Significantly, at
no point did Respondent object to the questioning
or testimony.
8 The Government’s remaining exceptions are
discussed throughout this decision.
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Bartlesville program’’ and ‘‘the last two
years of his residency’’ in family
medicine at OU in Oklahoma City. Id.
Respondent testified that upon
completing his residency, he practiced
family medicine and obstetrics for
several years at several rural clinics. Id.
at 234–35. He further explained that
while working at one of the clinics, he
was asked to become the medical
director of a nursing home for terminal
AIDS patients, which he did for
approximately five years, after which he
and Dr. Steve Schoelen bought a
practice in Newcastle, Oklahoma which
they named ‘‘Tri-City Family
Medicine.’’ Id. at 235–36.9 Respondent
practiced family medicine at Tri-City
from approximately 2000 through 2012.
Id. at 245. Respondent further testified
that he was board certified in family
medicine until 2015. Id. at 247.
Respondent testified that he could not
reapply for board certification because
he had not practiced family medicine
for several years and does not ‘‘qualify
to show them my charts . . . to qualify
to take the test.’’ Id. at 248.
Respondent testified that due to the
expense of malpractice insurance for his
OB/GYN activities, he stopped
delivering babies and focused on family
medicine. Id. at 249. Respondent
testified that he started seeing chronic
pain patients around this time, but that
Dr. Schoelen mostly saw these patients
as he ‘‘took much more of an interest in
the pain patients and pain
management.’’ Id. He further testified
that within days of Dr. Schoelen ‘‘telling
Medicaid that he would accept chronic
pain patients on Medicaid, we were
overwhelmed with referrals from the
emergency rooms . . . in Oklahoma
City.’’ Id. at 253. According to
Respondent, in response, Dr. Schoelen
took continuing medical education
(CME) classes and joined the American
Academy of Pain Management. Id. The
clinic also started using a pain
management contract and contracted
with a company for urine drug testing.
Id. at 254.
Respondent testified that he did drug
screens ‘‘every three months’’ and that
9 Respondent also testified that for approximately
three years (which are not specified in the record)
and during which he was still practicing at his
clinic, he was also the medical director of Unicare
of Oklahoma, a subsidiary of WellPoint, and that
his duties involved oversight of the clinics,
reviewing chart audits, and that ‘‘[w]e also were in
charge of prior authorization.’’ Tr. 237, 240. He also
testified that he sat on WellPoint’s national
credentialing committee, which sat once a month
for three hours and reviewed the credentials of
practitioners applying to the company. Id. at 240.
Respondent testified that he resumed working full
time at Tri-City after the State cancelled its contract
with Wellpoint to provide medical care to patients
covered by the State’s Medicaid program. Id. at 242.
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14949
any patient who received more than two
Lortabs (hydrocodone with
acetaminophen) a day would be subject
to ‘‘the guidelines of our pain
management contract and rules.’’ Id. at
256. Respondent further asserted that
‘‘[s]ometimes we [would] send [patients]
for a second opinion’’ or for a ‘‘modality
that we didn’t do’’ such as ‘‘an epidural
or [a] further evaluation if something
changed in their pain something
changed neurologically.’’ Id. He testified
that he would obtain a Prescription
Monitoring Program report for ‘‘[e]very
phone call for every prescription and
every office visit.’’ Id. at 263. He also
testified that the practice did not replace
lost or stolen medications and that he
had terminated a substantial number of
patients over the years. Id. at 279–80.
The Investigation
Respondent came to the attention of
the authorities on or about May 10,
2012, when police in Norman,
Oklahoma found Respondent’s patient
B.B., a 27-year old male (RX 3, at 2),
who was ‘‘semiconscious’’ and
‘‘appeared to be intoxicated’’ in a
vehicle parked ‘‘in the center median
of’’ Interstate-35. Tr. 18; RX 3, at 2. The
police also found ‘‘several prescription
bottles of opiate pain killers’’ which had
been prescribed to B.B. by Respondent.
RX 3, at 2–3; Tr. 18. With B.B.’s consent,
the police searched his cell phone and
found text messages that ‘‘indicated that
[B.B.] was illegally buying and selling
prescriptions drugs,’’ as well as
messages between B.B. and Respondent
related to B.B.’s ‘‘medical care,
prescription dosages and prescriptions
to be picked up by’’ B.B. RX 3, at 3. In
addition, the police found ‘‘numerous
sexually explicit messages’’ that had
been exchanged between Respondent’s
phone and B.B. Id.; Tr. 18. A Detective
with the Norman police then contacted
the Chief Investigator for the Oklahoma
State Board of Medical Licensure and
Supervision. Tr. 18. The Detective also
notified a DEA Diversion Investigator
(DI) that the police had found drugs in
B.B.’s car and that the latter was a
patient of Respondent; the Detective
also asked the DI to attend an interview
of B.B., who could not be interviewed
until ‘‘the next day’’ because ‘‘he was
too intoxicated.’’ Id. at 46.
In the meantime, the Chief
Investigator, who was familiar with
Respondent’s background because the
latter ‘‘was on probation at that time for
an incident that involved sexual
misconduct,’’ obtained a report from the
Oklahoma Bureau of Narcotics
Prescription Monitoring Program to ‘‘see
any prescriptions that were prescribed
by [Respondent] to’’ B.B. Id. at 18–19.
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The report showed that Respondent had
written ‘‘numerous controlled drug
prescriptions’’ for B.B. Id. at 19.
After reviewing the PMP report, the
Chief Investigator notified the Board’s
Executive Director of his findings, id. at
21, who, on May 11, 2012, ordered the
summary suspension of Respondent’s
medical license. Id.; see also RX 3, at 3.
The same day, the Chief Investigator
went to Respondent’s clinic to obtain
B.B.’s record, interview Respondent,
and serve the suspension order on him.
Id. at 21. While Respondent was not at
the clinic, the Chief Investigator spoke
with him by phone and made
arrangements to return on May 14 (a
Monday); the Chief Investigator also
took B.B.’s chart. Id.
On May 11, 2012, the DI and two
Detectives interviewed B.B., who
‘‘confirmed that he was’’ Respondent’s
patient. Id. at 48. B.B. admitted that ‘‘he
used the Opanas [oxymorphone] 10
himself’’ but ‘‘denied that he snorted
them.’’ Id. B.B. explained that ‘‘[h]e
crushed them up and put them in an
energy drink, which he had in his
vehicle . . . when he was found’’ by the
police. Id. B.B. also told the
Investigators that ‘‘[n]ot only was he a
user of it, he also sold the medications.’’
Id. After the interview, the DI was
informed by the lead Detective that he
had spoken to the Board’s Chief
Investigator and that the Board’s
Investigators were going to meet on
Monday May 14 and go to Respondent’s
office. Id.
On that day, the Chief Investigator
(accompanied by another Board
Investigator), the DI and the lead
Detective went to Respondent’s clinic to
interview him. Id. 25. During the
interview, the Board’s Chief Investigator
confronted Respondent ‘‘with some of
the sexually graphic text messages sent
from his phone to the patient.’’ RX 3, at
3. While Respondent ‘‘admitted that he
may have made social comments to
[B.B.],’’ he ‘‘would not answer any more
questions without contacting his
attorney.’’ 11 Id. ‘‘At that point,’’ the
Chief Investigator asked Respondent ‘‘to
allow him to examine’’ his phone ‘‘for
text messages to’’ B.B. Id. Respondent
stated that ‘‘his phone was not available
because it had been run over with his
tractor over the weekend.’’ Id. The Chief
Investigator then served the Board’s
10 As discussed more fully below, Respondent
issued B.B. prescriptions for Opana 10 mg. on
multiple occasions, including on May 9, 2012
which B.B. filled the next day. GX 5, at 27.
11 Subsequently, Respondent denied that he had
exchanged these messages and attributed this
conduct to his partner at the time, stating that he
had allowed his partner to have ‘‘access to his cell
phone.’’ RX 3, at 3; see also Tr. 415.
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suspension order on Respondent. RX 3,
at 3. The DI then informed Respondent
that because he did not have state
authority, he could not maintain his
DEA registration and asked Respondent
to voluntarily surrender his registration;
Respondent agreed to do so. Tr. 49; see
also GX 1, at 1.
On September 13, 2012, the Board
lifted Respondent’s suspension.12 RX 3,
at 4. On October 4, 2012, Respondent
applied for a new registration. GX 1, at
2. Because Respondent’s application
included a ‘‘yes’’ answer to the liability
question which asked whether his state
professional license had ever been
sanctioned, the application was
forwarded to the Oklahoma City field
office and an investigation was opened.
GX 2, at 1; Tr. 62, 65, 81.
Thereafter, a Diversion Investigator
obtained a copy of B.B.’s patient file
from the Board and provided it to
Graves Owen, M.D., an expert in pain
management, to review and determine
whether Respondent lawfully issued the
controlled substance prescriptions. Tr.
50–52, 55. The DI testified that he did
not ask Dr. Owen to come to any
specific conclusion and that Dr. Owen’s
compensation was not contingent on the
conclusions he drew. Id. at 56. At the
hearing, Dr. Owen testified that he has
previously testified as to the ‘‘standard
of care in pain management’’ and that
he has testified for a defendant. Id. at
92.
The Government’s Expert’s Testimony
as to the Standards of Medical Practice
Applicable to the Prescribing of
Controlled Substances To Treat Pain
Dr. Owen obtained a Bachelor of
Science in chemistry and biology from
Texas State University in 1985 and a
Doctor of Medicine from the University
of Texas Health Science Center
12 On March 7, 2013, Respondent voluntarily
submitted to the jurisdiction of the Board and
agreed to the entry of an Order which found him
guilty of unprofessional conduct in that he: (1)‘‘
[v]iolated any provision of the medical practice act
or the rule and regulations of the Board or of an
action, stipulation, or agreement of the Board in
violation of 59 O.S. § 509(13) and OAC 435:10–7–
4(39)’’; (2) ‘‘[e]ngaged in the improper management
of medical records in violation of OAC 435:10–7–
4(36)’’; and (3)‘‘ [w]illfully betrayed a professional
secret to the detriment of the patient[,] 12 O.S.
§ 509(3).’’ RX 3, at 5. The Board did not, however,
make any findings as to the legitimacy of the
controlled substance prescriptions Respondent
issued to B.B. The Board then extended
Respondent’s pre-existing probation, which was the
result of a 2008 Order based on findings that he had
prescribed controlled substances to a patient with
whom he had a sexual relationship, ‘‘[b]eginning in
or around 2001 . . . through approximately 2004.’’
RX 3, at 2. The Board further found that when
questioned about his relationship with this patient,
Respondent ‘‘lied and denied that it existed’’ until
he was confronted ‘‘with corroborating evidence.’’
Id.
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(Houston) in 1990. Id. at 89–90; GX 4,
at 1–2. After obtaining his M.D., Dr.
Owen did a one year internship in
internal medicine followed by a threeyear residency in Anesthesiology at the
UT Health Science Center; he then did
a one-year fellowship in Pain
Management at the University of
Pittsburg’s Pain Evaluation and
Treatment Center. GX 4, at 1. Dr. Owen
holds a Texas medical license and is
board certified by the American Board
of Pain Management and American
Board of Anesthesiology. Id. at 2. He is
a member of the American Pain Society,
the American Academy of Pain
Medicine, the American Academy of
Pain Management and the Texas Pain
Society. Id. at 7. With respect to the
latter organization, Dr. Owen served on
its Board of Directors from 2009 through
2012 and served as its President from
2012 through 2014. Id. at 8. He has also
served on the Society’s Legislative
Committee and on its Educational
Committee for multiple years. Id.
Dr. Owen’s work experience includes
more than 16 years at the Texas Pain
Rehabilitation Institute (Sept. 1995
through Nov. 2011), which is an
interdisciplinary pain management
clinic. Id. at 2. Since February 2011, he
has been a Peer Reviewer on Pain
Medicine for the Journal of the
American Academy of Pain Medicine.
Id. He has also served as a member of
the Medical Quality Review Panel and
as an Arbiter on the Quality Assurance
Panel of the Texas Department of
Insurance, Division of Workers
Compensation, Office of Medical
Advisor. Id. He has written several
articles and made more than 40
presentations on subjects related to pain
management before both professional
and governmental bodies, including on
the use of urine drug testing in pain
management. Id. at 4–9. The CALJ
accepted Dr. Owen ‘‘as an expert in pain
management in Oklahoma and Texas.’’
Tr. 91.
While Dr. Owen is licensed to
practice medicine in Texas, he testified
that he had reviewed Oklahoma’s
guidelines and policies. Id. at 93. Asked
what the requirements are in Oklahoma
for prescribing opioid controlled
substances, Dr. Owen testified: ‘‘Well,
first you have to do an appropriate
history and physical exam for whatever
the chief complaint is. You need to get
all pertinent previous medical records
pertaining to this chief complaint.’’ Id.
at 94. As to why a physician needs to
obtain the patient’s medical records, Dr.
Owen explained that: ‘‘You want to
know what has previously been
performed as far as treatment elements
and what resulted from those
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treatments, and you also want to look
for any previous aberrant behaviors.’’ Id.
(emphasis added).
The Government then asked Dr. Owen
‘‘what else is required?’’ Id. Dr. Owen
explained: ‘‘So after you do an
appropriate history and physical exam,
you review the pertinent medical
records. You may need to do
consultations. You may need to do
diagnostics, whether laboratory or
imaging studies, and then you formulate
a treatment plan based on the analysis
of this information.’’ Id. at 94–95. Asked
to explain ‘‘[w]hat’s a treatment plan,’’
Dr. Owen testified: ‘‘A treatment plan is
what we’re going to do to move this
person from wherever they are to the
next place, and part of the treatment
plan will be dictated by your treatment
goals that you need to set up to try to
get that person to the next place.’’ Id. at
95.
Subsequently, Dr. Owen explained
that ‘‘there [are] three broad treatments
in pain management: Interventional,
rehabilitative, and pharmaceutical. So
your treatment plan would list each of
these categories if you’re going to use
elements of those categories in your
treatment plan, and it would
specifically define what your treatment
plan is and how you tie it to your
treatment goal.’’ Id. at 97. Dr. Owen
further testified that while treatment
goals are ‘‘tailor[ed] . . . to the
individual’’ and would be different
depending upon a patient’s age, ‘‘you
would primarily focus on functional
improvements.’’ Id. at 99–100. With
respect to someone of working age, Dr.
Owen explained that ‘‘return[ing] to
work’’ is ‘‘the gold standard for
functionality in pain management.’’ Id.
at 100.
Subsequently, Dr. Owen testified that
a treatment plan can involve more than
one of these approaches and that it
evolves over the course of treating the
patient if the treatment goals are not
being achieved. Id. at 98–99. However,
a physician ‘‘certainly would have [a
treatment plan] on the initial visit.’’ Id.
at 99. While Dr. Owen acknowledged
that a treatment plan can be ‘‘tease[d]
. . . out’’ of the patient’s record
‘‘without necessarily a formal title’’ if
‘‘enough information’’ is documented in
the record, he then explained what
content the plan should contain:
Well, if it’s interventional, you would talk
about what intervention you’re going to do.
If it’s rehabilitative, you’d talk about physical
therapy, occupational therapy or
psychotherapy. If it’s pharmaceutical, you’re
going to talk about the specific
pharmaceutical, its dose and the frequency
that you’re going to prescribe it and
hopefully the indication it’s being used for.
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Id. at 98–99.
Asked whether the file for a patient
being prescribed opioid controlled
substances would contain anything else,
Dr. Owen testified that you would ‘‘have
an informed consent and a pain
management agreement.’’ Id. at 99. Dr.
Owen then explained that ‘‘[a]n
informed consent is telling the patient
what the risks and benefits are of this
proposed treatment and what alternative
treatments exist.’’ Id.
As to why a physician treating a
patient for pain would seek consultation
with other specialists, Dr. Owen
testified that ‘‘[t]hese are complex cases,
and you can’t be an expert of
everything, and you may need help in
narrowing your diagnosis or help in
stabilizing comorbidities that are
outside of your scope of practice.’’ Id. at
100. Dr. Owen further explained that the
need to consult with particular
specialists ‘‘depends on the [patient’s]
chief complaint and your differential
diagnosis and what you’re trying to
achieve.’’ Id.
Asked by the Government if ‘‘these
requirements . . . are . . . best
practices,’’ Dr. Owen testified that
‘‘some of them can be best practices, but
most of them are standard of care
items.’’ Id. at 100–01. Then asked if
‘‘when you say standard of care, are
they required,’’ Dr. Owen explained that
‘‘they’re required based on the context
of the chief complaint and . . . the facts
of the situation.’’ Id. at 101. When then
asked ‘‘are they required by law,’’ Dr.
Owen initially answered ‘‘no’’ before
explaining that:
Well, I’m not a lawyer. I would say that the
policies and guidelines that I was sent for
Oklahoma say certain things about
consultations, and the one that stood out is
if somebody’s a complex pain patient with
psychological or psychiatric comorbidities,
they should get consultations with a pain
management physician with expertise in
these complex cases.
Id.
Dr. Owen testified that ‘‘comorbid
psychiatric conditions’’ include
‘‘depression, anxiety, maladaptive
coping mechanisms, such as
catastrophization, fear avoidance,
disability conviction, and a sense of
injustice,’’ which are ‘‘all built on a
foundation of cognitive distortions.’’ Id.
at 101–02. He also testified that there
are ‘‘personality disorders and a whole
host of psychiatric conditions like
PTSD, OCD, bipolar, schizophrenia,
[and] other scenarios like that, that
make it more difficult to treat’’ a pain
patient. Id. at 102. Dr. Owen then
explained that these conditions ‘‘might
magnify [a patient’s] perception of pain
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and disability and, in doing so, [a
patient’s] experience of suffering is
aggravated or increased.’’ Id.
The CALJ then asked Dr. Owen if the
reason it is important to refer a pain
patient to a mental health expert is so
that the patient’s ‘‘subjective
complaint[] of pain’’ can be ‘‘properly
gauged?’’ Id. at 103. Dr. Owen answered:
‘‘So that you can help understand the
context of their pain and what might be
distorting and magnifying their pain and
suffering experience, because suffering
is defined as your ability to cope with
adversity, and everybody comes with
different skill sets of how they cope
with adversity.’’ Id. at 103–04. While Dr.
Owen then acknowledged that ‘‘[p]ain is
subjective,’’ he further explained that
‘‘function is objective, so that’s why [a
physician would] use functions as [the]
primary baseline for measuring
therapeutic influence.’’ Id. at 104.
The CALJ then asked Dr. Owen if
‘‘ask[ing] the patient about activities of
daily living’’ is ‘‘one of the tools that
you use?’’ Id. Dr. Owen answered ‘‘yes’’
and added ‘‘[t]hat’s one of the things.
Return to work, and you can do more
global things like sitting tolerance,
walking tolerance, standing tolerance,
and then site-specific areas of
functionality like range of motion and
other physical exam measurements.’’ Id.
at 104.
Dr. Owen was then asked to describe
‘‘the steps that a practitioner would take
to determine whether a patient is truly
experiencing chronic pain?’’ Id. at 106.
He replied:
Well, there’s no objective way to know if
somebody [is] experiencing pain, so you take
them for their word at it. But what you need
to do is to make sure that you go through a
process to ensure that they have exhausted
all the medically reasonable treatments
before you go to a high-risk, non-evidencebased treatment.
Id. at 107.
Dr. Owen further explained that
‘‘[h]igh-risk treatments are treatments
that have a potential for bad outcomes,
and there’s evidence-based and nonevidence-based treatments. There’s lowrisk, medium-risk, and high-risk
treatments, and you have to have some
context for how you approach the
problem.’’ Id. Dr. Owen then opined
that ‘‘chronic opioid therapy and
chronic benzodiazepine therapy’’ are
high-risk treatments. Id. He also opined
that chronic opioid therapy is not an
evidence-based 13 treatment, noting that
13 Dr. Owen explained that ‘‘evidence-based
studies are studies published in peer review articles
that actually show positive outcomes for the
treatment, and ideally these treatments are
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there are ‘‘no publications’’ supporting
the use of ‘‘chronic opioid therapy’’ and
that ‘‘[m]ost of the opioid articles have
poor outcome[ ] metrics.’’ Id. at 108.
Asked whether it is ‘‘permissible to
taken on a patient who’s already on
high-risk treatment and to continue
them on high-risk treatment,’’ Dr. Owen
testified that while a physician ‘‘can do
that,’’ the physician must ‘‘adequately
document the justification for skipping
steps,’’ i.e., low-risk 14 and medium risk
treatments, and must ‘‘make sure that
[the patient is] obtaining a clinically
meaningful and objective therapeutic
outcome.’’ Id. at 109. He then explained
that this means that the patient is
‘‘having functional improvement that is
truly measurable’’ and that a patient’s
‘‘subjective report is problematic.’’ Id.
And later, Dr. Owen testified that even
when the care of a patient is transferred
from one doctor to another in the same
practice, the new doctor ‘‘need[s] to
make sure that any previous
documentation deficiencies or standard
of care violations are rectified by doing
a proper evaluation.’’ Id. at 206.
Next, the CALJ asked Dr. Owen what,
as a chronic pain specialist, he would
look at to determine if a patient who
was referred to him was being
successfully treated with long-term
opioid therapy. Id. at 109. Dr. Owen
answered that he would ‘‘first go to the
previous medical records to see what
functionality was documented before
[the patient was] started on that
treatment and compare it to’’ the
patient’s current ‘‘functionality.’’ Id.
Asked by the CALJ if ‘‘those would be
subjective notes,’’ Dr. Owen explained
that ‘‘if someone is not working and
now they are working, although they’re
subjective notes, there is an objective
measure to it’’ and that ‘‘[w]henever
possible, I like information from friends
or family that’s with the patient about
[the patient’s] functionality and what it
was like, so there’s an independent
assessment.’’ Id. at 109–10. Continuing,
Dr. Owen explained that there are also
‘‘various psychometric tests on
functionality, [including the] Oswestry
Disability Inventory and other things
like that, that measure your function in
somewhat objective terms.’’ Id. at 110.
However, Dr. Owen acknowledged that
‘‘it all comes down to [the patient’s]
self-report.’’ Id.
The CALJ then asked Dr. Owen if
there are ‘‘tests that are traditionally
done in the office, such as . . . range of
compared to some kind of either non[-] treatment
or a sham treatment.’’ Tr. 108.
14 Dr. Owen testified that low-risk, evidencebased treatments include physical therapy,
occupational therapy and cognitive behavioral
therapy.
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motion and other things . . . that have
an objective sense to them?’’ Id. Dr.
Owen answered that while ‘‘you can
measure range of motion of the various
joints and spine, and you can look at
muscle strength and those kinds of
issues . . . they don’t always correlate
to your ability to work and other more
global functionality.’’ Id. Dr. Owen also
explained that in evaluating the
patient’s functionality, ‘‘[y]ou want to
look at [the] neurological assessment.
You want to look at [the] straight leg
raise. You want to look at spine range
of motion, and you want to ask [the
patient] how far can you walk; how long
can you sit, and those kinds of
functional assessments as well.’’ Id. at
111.
Next, the CALJ asked Dr. Owen if on
taking over a long-term opioid therapy
patient, it is ‘‘generally true that [the
patient will be] continue[d] on the . . .
regimen?’’ Id. In response, Dr. Owen
testified that he would not continue the
regimen if the patient is ‘‘not clinically
improved from the results of this
treatment.’’ Id. Continuing, he explained
that ‘‘[a] lot of people deteriorate on
chronic opioid therapy and they
actually do better when they’re taken off
of opioids’’ because they have ‘‘opioidinduced hyperalgesia.’’ Id. Dr. Owen
then explained that this ‘‘is a
paradoxical response in which [a
patient’s] pain gets worse while [he/she
is] on opioids, and when [the patient is]
take[n] off of the opioids, [his/her] pain
improves.’’ Id.
Dr. Owen further testified that there is
a difference between addiction and
dependence. Id. at 112. After noting that
‘‘dependency will happen to anybody
over time in which an abrupt cessation
of the drug will cause withdrawal
symptoms,’’ he explained that
‘‘addiction has three [additional]
elements: Craving the drug, continued
use despite its harms, and inability to
self regulate’’ the use of the drug. Id. at
112–13. Asked how he would tell
whether a patient he had ‘‘just assumed
the care of’’ was dependent or addicted,
Dr. Owen explained that an addicted
patient ‘‘may have self-escalation of
[his/her] drugs, and . . . run out early.’’
Id. at 113.
Dr. Owen then explained that a
physician ‘‘would use urine drug testing
to see if [the patient] ha[s] all the drugs
that were prescribed in [his] urine.’’ Id.
The physician would also look for
‘‘other aberrant drug-taking behaviors’’
such as ‘‘lost medicines’’ and use the
prescription monitoring program to look
for ‘‘doctor-shopping . . . or other
concerning activities.’’ Id. Dr. Owen
further explained that ‘‘[y]ou would,
when possible, talk to the family and
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see how [the patient’s] behavior is’’ as
well as ‘‘look for volatile behavior . . .
with your staff.’’ Id.; see also id. at 117–
18 (testifying that ‘‘problematic
behaviors’’ or ‘‘red flags’’ include ‘‘[l]ost
or stolen medications, self-escalation of
. . . medications without permission,
aberrant urine drugs tests, [PMP]
behaviors that look problematic,’’ and
receiving reports that a patient is selling
drugs).
While Dr. Owen acknowledged that
the presence of suspicious behavior by
a patient does not necessarily mean the
patient is abusing or diverting
controlled substances, it does require
that the physician take ‘‘some type of
corrective action.’’ Id. at 118. As for
what type of action should be taken, Dr.
Owen explained that ‘‘[i]t depends on
the context’’ and that ‘‘there’s a
spectrum of corrective actions . . . you
might take . . . from shortening the
leash and seeing the patient more
frequently, with less drugs per
prescription,’’ to not treating with
controlled substances, ‘‘to firing the
patient.’’ Id. at 118–19.
Dr. Owen disputed the CALJ’s
suggestion that the use of urine drug
screens is ‘‘pretty controversial in the
pain management field,’’ stating that
‘‘[i]t’s a standard of care.’’ Id. at 113.
After explaining that he would set the
frequency of drug testing based on a risk
assessment of the patient, Dr. Owen
acknowledged that the ‘‘point of care’’
enzyme-amino assay test is a
‘‘preliminary test’’ and that ‘‘[y]ou can’t
use the results with any confidence.’’ Id.
at 114–15. Dr. Owen explained,
however, that ‘‘the mass spectrometry
test . . . is very reliable.’’ Id. at 115. Dr.
Owen further testified that a physician
would ‘‘want to test for common illicit
substances, because you don’t just want
to know what you’re prescribing’’ and
would want to know if the patient is
using ‘‘non-prescribed drugs or any
street drugs.’’ Id.
Asked how a practitioner should
respond to an aberrant drug test, Dr.
Owen testified that ‘‘first you need to
document the presence of the aberrant
. . . test. You need to document your
rationale for your corrective actions.
And then you explain what the
corrective action is going to be.’’ Id. at
119. Dr. Owen then reiterated his earlier
testimony that ‘‘the corrective action’’
could be ‘‘seeing the patient more
frequently with less drugs’’; referring
the patient to see an addictionologist or
a psychiatrist or psychologist ‘‘with
experience in addiction medicine’’ for a
consultation; having the patient see a
physical medicine specialist ‘‘to look at
more functional goals’’; and in severe
cases, terminating treatment with
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controlled substances. Id. Dr. Owen also
testified that ‘‘[t]here’s no reason ever to
ignore a red flag’’ and that a physician
has a duty to resolve the red flag before
prescribing. Id.
Returning to the issue of what
constitutes an adequate medical history,
Dr. Owen testified that:
. . . it’s a history that’s appropriate for
whatever the chief complaint is, for example,
low back pain. It includes a who, what,
when, why, where, and type of elements that
you would do in most any kind of a
journalism course.
So you’d say, how did you hurt yourself;
where does it hurt; does the pain radiate
down an extremity; if so, how far down; does
it go past the knee; where does it end up; is
there any numbness or weakness associated
with it. And then you would talk about what
treatments have you had or what diagnostics
have you had.
And you’d gather as much of that
information, and you’d ask . . . how’s the
pain affecting you physically and
psychosocially. And that’s part of the
Oklahoma guidelines is that you assess the
person functionally, physically and
psychosocially.
Id. at 115–16. Dr. Owen then testified
that this information is required to be
documented in the patient file, and if it
is ‘‘not in the file,’’ the assumption is
that ‘‘it wasn’t done.’’ Id. at 116.
Continuing, Dr. Owen explained that:
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. . . if you don’t do a proper history and
a proper physical exam, if you don’t look at
all the pertinent previous medical records,
you can’t get an accurate diagnosis. And . . .
you can’t draw any accurate conclusions
about what is the right treatment plan. And
if you don’t do accurate assessments, it
results in potentially dangerous treatments
that aren’t reasonable or medically necessary.
Id. at 117.
Asked by the CALJ to explain what a
pain management contract is, Dr. Owen
testified that it’s ‘‘a document informing
the patient what the rules of the road
are.’’ Id. at 120. Dr. Owen testified that
the contract contains provisions that the
patient ‘‘won’t get drugs from anybody
else . . . for th[e] condition,’’ the
patient ‘‘will only go to one pharmacy,’’
that the patient ‘‘will use the drugs only
as directed,’’ and the patient will
‘‘submit[ ] to urine or blood drug
testing.’’ Id. Then asked by the CALJ if,
in Oklahoma, the use of a pain
management contract is a ‘‘best
practice’’ or part of the ‘‘standard of
care,’’ Dr. Owen testified that it ‘‘is part
of the [Oklahoma] guidelines of [the]
standard of care.’’ Id. Dr. Owen also
testified that ‘‘when taking on a new
patient,’’ a physician ‘‘needs to have a
pain management contract and informed
consent.’’ Id. at 121. Finally, when
asked by the CALJ where ‘‘there is a
difference’’ between the standard of care
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for ‘‘a pain management specialist and
someone who is treating a patient . . .
for pain symptoms,’’ Dr. Owen
explained that ‘‘[t]here’s only one
standard of care.’’ Id. at 120–21.
On cross-examination, Dr. Owen was
asked whether a prescriptive practice
can ‘‘be within . . . legitimate medical
practice and still be below the standard
of care?’’ Id. at 181. In response, Dr.
Owen testified that a physician ‘‘can
violate the standard of care and still
have a legitimate medical practice, but
[cannot] be in the standard of care and
have an illegitimate medical practice.’’
Id. When later asked ‘‘[w]hat goes into
determining if the standard of care has
been met,’’ Dr. Owen testified that ‘‘the
standard of care is what a reasonable
and prudent physician would do in the
same or similar circumstances, and a
reasonable, prudent physician would go
to the evidence-based literature as a
foundation for how to make decisions
using critical thinking skills.’’ Id. at 183.
When then asked ‘‘if there’s a
community standard of care in
Oklahoma,’’ Dr. Owen answered that
‘‘[t]here’s no such thing as a community
standard of care anymore. It’s a national
standard of care, and it’s based on our
evolving body of knowledge, and as we
learn new things, the standard
changes.’’ Id. Dr. Owen then
acknowledged that he did not know the
Oklahoma Medicaid rules for when a
patient can be referred. Id.
On further cross-examination, Dr.
Owen was asked whether the Oklahoma
Guideline which addresses the need for
consultation with an expert in the
management of patients who have a
history of substance abuse or a
comorbid psychiatric disorder is
mandatory as he had previously
testified. Id. at 185–86. Dr. Owen
acknowledged that the provision states
that these two conditions ‘‘may require’’
consultation. Id. at 186. He then added,
however, that a physician ‘‘should
document why [he] deviate[d] from that
recommendation.’’ Id.
The Prescribing Events
The August 25, 2011 Prescriptions
B.B.’s patient file reflects that from
the date of his first visit on or about
April 24, 2009 up until August 25, 2011,
B.B. obtained narcotic prescriptions
from Dr. Schoelen, Respondent’s
partner. See generally GX 3; Tr. 236.
While on August 25, 2011, Dr. Schoelen
issued B.B. a prescription for 120 tablets
of oxymorphone 10 mg, the same day,
Respondent wrote B.B. prescriptions for
150 hydrocodone/acetaminophen 10/
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500 as well as 60 carisoprodol 350.15 GX
3, at 24.
B.B. was not seen by either Dr.
Schoelen or Respondent on this day. GX
3, at 49. However, he was required to
provide a urine sample, the results of
which were reported by the lab on
August 29, 2011.16 Id. at 99. While the
lab results were expected with respect
to the narcotics B.B. had previously
been prescribed, the lab also detected
the presence of nordiazepam, a
metabolite of diazepam; oxazepam; and
temazepam; none of these drugs had
been prescribed to B.B.17 Id.
While the Government alleged in the
Order to Show Cause that the
prescriptions Respondent issued on this
day were ‘‘invalid’’ and violated 21 CFR
1306.04(a) and made extensive factual
allegations to support this conclusion, it
did not elicit any testimony from its
Expert as to why. Moreover, Respondent
testified that this was ‘‘a nurse-only
visit’’ and that he issued the
prescriptions because ‘‘Dr. Schoelen
works half [a] day’’ and while Schoelen
had issued one of the prescriptions, ‘‘he
had missed the fact that—or the nurses
had missed and not written the other
two medications for him.’’ Tr. 389. The
CALJ found this testimony credible.
R.D. at 31.
As the Government put forward no
evidence to support the conclusion that
it was outside of the usual course of
professional practice for Respondent to
cover for his partner, nor cites to any
state rule prohibiting prescribing under
this circumstance, I find that the
allegation is unsupported by substantial
evidence.18
15 At the time carisoprodol was not controlled
under the CSA. However, a proceeding to control
the drug was then ongoing and the drug became
federally controlled effective on January 11, 2012.
See Schedules of Controlled Substances, Placement
of Carisoprodol Into Schedule IV, 76 FR 77330
(final rule). However, during 2011, the drug was a
controlled substance under Oklahoma law. See
Okla. Stat. tit. 63, § 2–210 (2011)
16 On June 1, 2011, B.B. had also provided a urine
sample. GX 3, at 103. This test, which was reported
by the lab on June 6, 2011, yielded a negative result
for alprazolam, even though B.B. was then being
prescribed alprazolam by another physician. Id.
According to a PMP report, B.B. had filled
alprazolam prescriptions for a 30-day supply on
both May 9 and June 6, 2011. See id. at 25.
17 While the lab results also noted that B.B. had
tested positive for alpha-hydroxyalprazolam, a
metabolite of alprazolam, and reported this result
as ‘‘not expected based on prescribed medications,’’
B.B. had obtained a prescription for a 30-day supply
of alprazolam on July 29, 2011 and filled the
prescription the same day. GX 3, at 36.
18 In its Exceptions, the Government argues that
the CALJ erred in finding the allegation with
respect to the August 25, 2011 prescriptions not
proved. See Exceptions, at 44–47. It argues that
because Respondent issued the prescriptions
without seeing B.B. on that date, without having
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The September 22, 2011 Visit and
Prescriptions
On some date after August 25, 2011,
the State Board suspended Dr.
Schoelen’s medical license and
Respondent took over the treatment of
B.B., who came for an office visit on
September 22, 2011. Tr. 290; GX 3, at
48.19 See GX 3, at 103; id. at 25.
According to the progress note for the
visit, B.B. had come in ‘‘for a recheck on
lumbar disc disease’’ and also had a
‘‘left abdominal hernia as well.’’ Id. at
48. Respondent also indicated in the
progress note that B.B.’s ‘‘[p]ast medical
history [was] extensively reviewed and
placed in [the] chart.’’ Id. Respondent
documented that he did a physical
exam, noting, inter alia, ‘‘[l]umbar very
painful spinal and paraspinal
tenderness,’’ a ‘‘[n]egative straight leg
raise,’’ and ‘‘[n]euro intact.’’ Id.
Respondent diagnosed B.B. as having
‘‘lumbar disc disease’’ and a hernia; his
plan included having B.B. obtain an
MRI, changing him from Lortab to
Duragesic patches, and continuing
Respondent on Opana and Soma
(carisoprodol). Id. Respondent also
documented that he had discussed the
seen him previously, and without reviewing the
PMP, and because he testified that he reviewed only
B.B.’s ‘‘medical history and the last two office visit
notes’’ made by Dr. Schoelen, the ‘‘issuance of the
two prescriptions fell far below the standard of care
and outside the usual course of practice.’’ Id. at 46.
As noted above, the Government elicited no
testimony from Dr. Owen as to whether
Respondent’s issuance of the prescriptions was
below the standard of care or outside of the usual
course of professional practice. Apparently, the
Government relies on subsection 1 of the Board’s
chronic pain rule, see Okla. Admin. Code § 435:10–
7–11(1), which requires that ‘‘[a] medical history
and physical examination . . . be obtained,
evaluated and documented in the medical record’’
in order to prescribe a controlled substance. See
Exceptions, at 45 (arguing that ‘‘the OK Pain Rule
sets forth the standard of care for Oklahoma
prescribing controlled substances . . . for the
treatment of pain’’).
However, in 2014, the Board promulgated an
exception to the requirement that ‘‘[t]he physician/
patient relationship shall include a medically
appropriate, timely-scheduled, face-to-face
encounter with the patient,’’ which allows
‘‘providers covering the practice of another provider
[to] approve refills of previously ordered
medications if they have access to the medical file
of the patient.’’ Okla. Admin. Code § 435:10–7–
12(1). While this rule was not in effect when
Respondent issued the prescriptions, it strains
credulity to suggest that providing prescriptions
under the circumstances of covering for a partner
violated the standard of care two years earlier when
Respondent issued the prescriptions. While the
Government speculates that Dr. Schoelen ‘‘may not
have issued B.B. these two prescriptions
purposefully pending the results of the new UDS,’’
Exceptions at 46, and argues that Respondent was
required to call Dr. Schoelen as a witness to
corroborate his testimony, the Government ignores
that it had the burden of proof on this issue.
19 According to a PMP report in B.B.’s patient file,
he had filled a prescription for a 30-day supply of
alprazolam on May 9, 2011. GX 3, at 25.
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‘‘[a]ddictive, dependence, and tolerance
nature of the medicines,’’ the ‘‘use of
Duragesic,’’ and suggested ‘‘[n]onmedicinal pain-relieving modalities.’’
Id.
B.B.’s file also contains a Pain
Management Treatment Plan, which
includes a section bearing the caption:
‘‘Treatment Objective Evaluation.’’ GX
3, at 28. This form lists several
questions, with boxes for documenting
by date, various findings which
included: ‘‘Has patient achieved
treatment objective?’’; ‘‘Patient
completed . . . updated pain scale’’;
‘‘Re-review benefits and risks of using
medications’’; ‘‘Consider referral to
another physician for second opinion or
further treatment options’’; ‘‘Changes to
Treatment Plan’’; and the ‘‘[p]hysician’s
initials.’’ Id. For this visit, Respondent
wrote ‘‘yes’’ as to whether B.B. had
achieved the treatment objective (which
was documented as ‘‘to be able to work
without pain,’’ id. at 29), wrote the
number ‘‘3–5’’ in the pain scale block,
and noted ‘‘yes’’ with respect to both
whether he had re-reviewed the risks
and benefits of controlled substances
and considered a referral to another
physician.20 Id. at 28.
Dr. Owen testified that because this
was B.B.’s first visit with Respondent,
Respondent should have ‘‘do[ne] a
20 In contrast to this document which contains a
single box in which Respondent and Dr. Schoelen
would write a number for B.B’s pain (the ‘‘Patient
Completed . . . updated pain scale’’), B.B.’s file
contains a ‘‘Patient Comfort Assessment Guide’’
form which B.B. completed on September 2, 2009.
GX 3, at 32–33. On this form, B.B. circled various
words such as ‘‘aching,’’ ‘‘throbbing,’’ ‘‘shooting’’
and ‘‘stabbing’’ to describe his pain which he
maintained was ‘‘continuous’’ and at its worst in
the ‘‘afternoon’’ and ‘‘evening.’’ Id. The form also
contains four instructions which directed B.B. to
rate his pain on a numeric scale of 0 to 10 (with
0 being ‘‘no pain’’ and 10 being ‘‘[p]ain as bad as
you can imagine’’), at its worst,’’ ‘‘its least,’’ and
‘‘on average in the last month,’’ as well as ‘‘right
now.’’ Id. at 32. In addition, the form asked ‘‘[w]hat
makes your pain better,’’ ‘‘what makes your pain
worse,’’ as well as ‘‘what treatments or medicines
are you receiving for your pain,’’ and it further
instructed the patient to numerically rate the relief
he obtained (again on a 0 for ‘‘no relief’, to 10 for
‘‘complete relief’’ scale) from the treatment or
medicine. Id.
On the form’s second page, it asked ‘‘[w]hat side
effects or symptoms are you having,’’ and directed
B.B. to ‘‘[c]ircle the number that best describes your
experience during the past week,’’ again using a 0
(‘‘Barely Noticeable’’) to 10 (‘‘Severe Enough to Stop
Medicine’’) scale for 10 side effects and symptoms
such as nausea, vomiting, constipation, lack of
appetite, difficulty thinking and insomnia. And
finally, the form directed B.B. to ‘‘[c]ircle the one
number’’—on a scale of 0 for ‘‘not [i]nterfer[ing]’’
to 10 for ‘‘[c]ompletely [i]nterfering’’—which
‘‘describes how during the past week pain has
interfered with’’ his ‘‘[g]eneral [a]ctivity,’’
‘‘[m]ood,’’ ‘‘[n]ormal work,’’ ‘‘[s]leep,’’ ‘‘[e]njoyment
of [l]ife,’’ ‘‘[a]bility to [c]oncentrate,’’ and
‘‘[r]elations with [o]ther [p]eople.’’ Id. Of note, there
is no evidence that B.B. was required to complete
this form at any subsequent visit.
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proper history and physical exam and
review[ed] previous treatments and
everything that typically is expected for
a new patient evaluation.’’ Tr. 131.
According to Dr. Owen, this included
reviewing B.B.’s patient file which
included the aberrant June 1 and August
25, 2011 drug tests. Id. at 132.
With respect to the August 25 drug
test, Dr. Owen testified that B.B. had
previously received prescriptions for
alprazolam, hydrocodone, Soma
(carisoprodol) and oxymorphone. Id. at
130. As found above, each of these
drugs (or its metabolites) was detected
by this test. Id. Dr. Owen then noted,
however, that there were ‘‘no
prescriptions for the metabolites of
diazepam, which is nordiazepam, or
oxazepam or temazepam.’’ Id. And he
further noted that in the comment
section with respect to these three
drugs, the lab report stated that ‘‘[t]hese
test results were not expected based on
the [prescribed] medications.’’ Id.
Dr. Owen testified that Respondent
‘‘completely ignored’’ the aberrant drug
screens and ‘‘should have
acknowledged their existence and then
taken some type of corrective action.’’
Id. at 132. Dr. Owen also testified that
the patient file did not reflect that
Respondent had consulted or discussed
B.B. with past or current prescribers and
that it did not appear that Respondent
had taken any ‘‘safeguards regarding the
potential’’ for diversion or abuse
presented by the aberrant drug screens.
Id. at 132–33.
Dr. Owen then testified that the
patient record did not justify the
prescribing of controlled substances as
it did not ‘‘establish medical necessity
for this type of treatment.’’ Id. at 133. As
the basis for his conclusion, Dr. Owen
explained that:
For one, it’s a superficial evaluation that
doesn’t adequately explain the chief
complaint or what previous treatments have
or have not been done. And there’s no
evaluation of pain or function, physical or
psychosocial in the documentation. There’s
no evidence of a previous therapeutic benefit.
There’s no medical rationale for continuing
with an ineffective treatment, so there’s no
justification to continue treatment with
controlled substances.
Id. Dr. Owen also explained that
‘‘[t]here’s no proof that he’s exhausted
conservative care before going into these
high-risk treatments’’ and reiterated that
‘‘[t]here’s no evidence of a therapeutic
benefit.’’ Id. at 134. And with respect to
the aberrant drug screens, Dr. Owen
testified that Respondent ‘‘could have
sent this gentleman for evaluations by
an addictionologist, by a psychiatrist [or
psychologist] with experience in
addiction medicine, and certainly
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looked at being much more careful and
objective about how [he] measure[d] a
therapeutic benefit with the controlled
substances.’’ Id. Dr. Owen thus opined
that the prescriptions Respondent
provided at this visit were not issued in
the usual course of professional practice
and lacked a legitimate medical
purpose. Id. at 133.
On cross-examination, Dr. Owen was
asked if he considered Respondent’s
ordering of an MRI at this visit to be ‘‘a
safeguard.’’ Id. at 188. Dr. Owen initially
answered ‘‘no,’’ before explaining that
‘‘[i]t depends [on] if you clinically need
the MRI, and you only need the MRI if
you’re looking for something that has
potentially a surgically correctable
lesion,’’ and that absent ‘‘a clinical
finding’’ that suggests ‘‘an MRI is
needed to confirm a lesion that’s
surgically reversible . . . you don’t have
medical necessity to get an MRI.’’ Id. Dr.
Owen further explained that ‘‘MRIs
have high false positive rates’’ and that
‘‘[a]bnormalities are commonly found in
asymptomatic people.’’ Id. On
questioning by the CALJ as to whether
when a patient complains of ‘‘a high
subjective level of pain,’’ an MRI could
‘‘at least confirm [if] there was some
objective basis for it,’’ Dr. Owen
explained that ‘‘without a neurological
finding,’’ it is ‘‘rarely . . . valuable to
get an MRI.’’ Id. at 189. He further
explained that MRIs show
‘‘abnormalities that are nonspecific’’
leading to ‘‘overtreatment,’’ and thus a
physician ‘‘need[s] something more
objective from a physical exam finding
to get an MRI.’’ Id.
In response to a further question by
the CALJ which posited whether an MRI
would provide an objective basis such
as ‘‘foraminal narrowing’’ or
‘‘spondylosis’’ for concluding that a
patient ‘‘may be having a spine issue’’
and is not ‘‘making it up,’’ Dr. Owen
explained that ‘‘foraminal stenosis or
foraminal narrowing are common in
asymptomatic people.’’ Id. at 190. Dr.
Owen then explained that ‘‘[t]he only
reason it would be important is if you
have a radiculopathy you’ve identified
on clinical exam . . . and that would be
pain going down the leg in a dermatome
distribution, typically below the knee.’’
Id. Continuing, Dr. Owen explained that
there may be ‘‘numbness’’ and there
may be ‘‘weakness associated with the
isolated nerve that’s being entrapped,
and you would have a positive straight
leg raise.’’ Id.
Dr. Owen further noted that ‘‘almost
all the exams’’ on B.B. ‘‘said it was
negative straight leg raise’’ and that this
is ‘‘the most sensitive physical finding
for low back pain.’’ Id. Dr. Owen then
explained that ‘‘a sensitive test means
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that if you don’t have a positive finding
you don’t have that diagnosis.’’ Id.
Moreover, Dr. Owen testified that even
if a patient reported symptoms
consistent with radiculopathy, ‘‘you’d
want physical exam findings, with the
most important being the straight leg
raise, according to the North American
Spine Society.’’ Id. at 191. Dr. Owen
further explained that ‘‘if you had a
negative straight leg raise, then you
don’t have radiculopathy, and if you
don’t have radiculopathy . . . you really
don’t need to get an MRI, because it’s
just going to lead to finding things that
send you on a garden path of
overinterpreting the diagnosis.’’ Id.
Regarding B.B.’s September 22, 2011
visit and the prescriptions he issued,
Respondent testified that the first thing
he would do when entered the exam
room is look at the Pain Management
Treatment Plan (GX 3, at 28) after which
he would ‘‘look[ ] at his previous
notes.’’ 21 Tr. 286. According to
Respondent, he would ask the patient if
he had ‘‘achieved [his] objective in the
pain medicine contract’’ and ‘‘what [the
patient’s] pain level is on medicine’’
and use ‘‘a scale of 1 to 10.’’ Id.
Continuing, Respondent testified that
‘‘then we [would] talk about what their
medicines are and what utilization that
we would use, what the risks are using
the medicines . . . what our plans are,
what treatment, what goal we’re going to
go for, and what we might need to
change or initiate in the treatment, and
then decide whether [to do] a urine drug
screen.’’ Id. at 286–87. Respondent then
testified that B.B. ‘‘basically said that he
had achieved his pain goal and that he
was only a 3 to 5 out of 10, that he
preferred that we not make any changes
or any type of referral at that time, and
I did a urine drug screen.’’ Id. at 287.
There is, however, no evidence that
Respondent did a urine drug screen at
this visit. See GX 3.
Respondent was then asked by his
counsel if he looked back at the August
25 drug screen. Tr. 287. Respondent
testified that he ‘‘would not’’ have
discussed the results with B.B. because
‘‘[b]asically he was on all the medicines
he was prescribed, and according to [the
lab], if you’re on one benzodiazepine,
all the other benzodiazepines can
appear positive within the drug screen.’’
Id. Respondent then testified that B.B.
was ‘‘on Xanax [alprazolam] by another
provider, and he was also on Ambien.’’
Id. Asked how he knew that B.B. was on
both drugs, Respondent testified that
B.B. had listed the alprazolam on the
intake form he completed at his first
visit and while the Ambien was not
listed ‘‘on his past medical sheet, [it]
was on the PMP.’’ Id. Respondent then
added that the Ambien was prescribed
by B.B.’s psychiatrist. Id. at 289. He
further maintained that when the
practice ‘‘started doing pain
management, we were getting multiple
episodes where patients were denying
that they had taken other
benzodiazepines,’’ and when they
contacted the lab, the lab told them that
Xanax can cross-react and cause a
positive result on the mass spectrometry
for other benzodiazepines. Id. Thus,
Respondent maintained that he did not
believe this to be an aberrant drug
screen. Id.
Respondent further testified that
although he took over the care of B.B.,
he did not simply continue the same
treatment that Dr. Schoelen provided.
Id. at 290. Rather, he testified that based
on his ‘‘education and . . . experience,
especially with Lortab . . . I found it
too addicting to keep people on shortacting pain medicines.’’ Id. at 291.
Respondent told B.B. ‘‘that there would
have to be . . . a change in his
treatment, and that I would have to use
a long-acting pain medicine and a shortacting only for breakthrough’’ pain. Id.
While Respondent continued B.B. on
carisoprodol and Opana, he took B.B. off
of Lortab ‘‘and gave him a two-week
trial of the Duragesic patch.’’ Id.
Respondent also maintained that
B.B.’s ‘‘reported pain and his objective’’
were consistent with the findings on
physical examination. Id. at 292. He also
testified that he had discussed the use
of Duragesic and that it, as well as
morphine and Opana ER, were the
‘‘only long-acting pain medications
that’’ the Oklahoma Medicaid program
‘‘would cover’’ and that Medicaid
would only pay for three prescriptions
a month.22 Id. Respondent further
21 However, in discussing the August 25
prescriptions, Respondent testified that ‘‘[a]nytime
I had to do anything with the chart of Dr.
Schoelen’s or pain management or anyone that I
hadn’t seen before, I would look at their last two
office notes, and I’d look at their past medical
history sheet on the front that’s filled out by the
physician . . . and then I would look at the PMP.’’
Tr. 281.
Asked with respect to the August 25 prescriptions
if he ‘‘looked back at the previous drug tests,’’
Respondent answered: ‘‘I don’t recall, but I doubt
I did. . . . I wouldn’t expect myself to.’’ Id. at 283.
22 It is unclear, however, whether B.B. was on
Medicaid or Medicare or both at the time of the
prescription. See, GX 3, at 7 (copy of B.B.’s
Medicare card and Sooner Care Medical ID card);
id. at 8–9 (Medical Home Agreement for
SoonerCare); id. at 10–13 (Advance Beneficiary
Notices dated during 2011 through 2012 advising
B.B. that ‘‘Medicare probably will not pay for’’
various items or services and explaining appeal
rights if Medicare did not pay); id. at 14 (referral
form for SoonerCare dated 10–14–09). See also Tr.
at 192–93. Moreover, Respondent offered no
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maintained that he and B.B. had
discussed non-medicinal pain-relieving
modalities so that B.B. knew that he
believed in them and that he then
ordered the MRI. Id. at 293.
As for why he ordered the MRI,
Respondent testified that it was the
‘‘[s]tandard of care in Oklahoma,’’ and
that while ‘‘[h]e had an X-ray done in
2009 that was consistent with his
finding . . . [i]f you treat chronic pain
. . . patients and [are] audited by the
Board or your insurance company [and]
you don’t have an objective finding in
the chart, such as X-rays and MRIs,
you’re quite . . . the outlier.’’ 23 Id.
Respondent added that he ‘‘wanted to
make sure that [B.B.] was consistent
with . . . [w]hat he was being treated
for and what his exam [sic] and the fact
that he was on a Schedule II narcotic.’’
Id. at 293. Respondent then explained
that while an MRI might give a false
positive, ‘‘[if] the pain is consistent with
it, it’s just one more piece of evidence
that gives you a reason to believe that
the patient’s legitimate and that you’re
legitimately treating his condition.’’ Id.
at 294. Respondent also testified that an
MRI provides a baseline should his
exam change at a late date. Id.
The October 6, 2011 Visit
srobinson on DSK5SPTVN1PROD with NOTICES2
On October 6, 2011, B.B. again saw
Respondent. In the visit note,
Respondent wrote: ‘‘Patient has been on
the DURAGESIC 50 mcg and the
OPANA. Now, he would like to try the
Morphine. He is slowly trying to figure
out the right regimen for him.’’ GX 3, at
47. Respondent again noted in the chart
that ‘‘[p]ast medical history extensively
reviewed and placed in chart.’’ Id. With
respect to the physical exam,
Respondent noted: ‘‘[l]ow back
paraspinal tenderness,’’ ‘‘[n]egative
straight leg raise,’’ and ‘‘[n]euro intact.’’
Id. Respondent also found that B.B. ‘‘has
a left abdominal wall hernia.’’ Id.
Respondent listed his diagnoses as
‘‘[l]umbar disc disease’’ and
‘‘anxiety.’’ 24 Id.
At the visit, Respondent prescribed 30
tablets of Morphine Sulfate ER15 mg
B.I.D. (one tablet twice per day), for a
15-day supply. GX 5, at 25. Respondent
also recommended that B.B. ‘‘[w]ear a
testimony as to whether Medicare used the same
formulary as the Oklahoma Medicaid program.
23 A progress note for B.B.’s September 2, 2009
visit stated that an x-ray was obtained and
confirmed the existence of lumbar thoracic scoliosis
but that the disc spaces appear to be within normal
limits. GX3, at 59. The Government did not,
however, ask its Expert to address the significance
of these findings.
24 Respondent found, however, that B.B. was
‘‘[a]lert and oriented and in no apparent distress.’’
GX 3, at 47.
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corset if at all possible’’ for his hernia.
GX 3, at 47.
Regarding the prescription, Dr. Owen
testified (in the words of Government
counsel) that it is not ‘‘normal practice
. . . for patients to dictate the
controlled substances they’re
prescribed.’’ Tr. 135. Asked ‘‘why not,’’
he explained that a physician must
‘‘safeguard the patient against addiction,
and you need to do things that are
medically necessary, not what patients
want.’’ Id. at 135–36. Dr. Owen further
testified that ‘‘it’s a yellow flag for a
patient to ask for a drug specifically,’’
but not necessarily ‘‘a red flag’’ as ‘‘it
could mean [the patient] had a previous
experience with the drug and either
found it helpful, or they’ve had previous
experience from the drug from an illicit
means.’’ Id. However, because
Respondent did not document that he
addressed ‘‘B.B.’s previous history with
morphine’’ B.B.’s request was
‘‘elevate[d] to a red flag.’’ Id. at 136.
Asked what steps Respondent should
have taken, Dr. Owen testified that ‘‘just
the fact that the aberrant urine drug tests
were there means that you should get
some consultations, because . . . this is
a complex issue, and there’s behaviors
going on that you can’t quite understand
without a more thorough assessment by
mental health providers or
addictionologists.’’ Id. at 136–37.
According to Dr. Owen, this was so even
if B.B. had not asked for morphine. Id.
at 137.
Here again, Dr. Owen testified that the
medical record did not justify the
prescribing of controlled substances. Id.
He explained that:
This is a superficial evaluation that does not
properly address the chief complaint of low
back pain or establish medical necessity for
treating with controlled substances. There’s
no assessment of pain, physical or
psychosocial function, and therefore, there’s
no medical necessity to continue treatment
with controlled substances, and if you don’t
have medical necessity, you don’t have a
legitimate purpose to treat.
Id. And again, Dr. Owen opined that the
prescriptions ‘‘were not’’ issued in the
usual course of professional practice
and ‘‘were not’’ for a legitimate medical
purpose. Id. at 137–38.
Regarding this visit, Respondent
testified that B.B. had ‘‘report[ed] that
his objectives were only fair’’ and that
‘‘[h]is pain level had gone up to a 6 out
of 10 on the Duragesic.’’ Id. at 295.
Respondent further testified that ‘‘[w]e
again went over what the rules were and
what the Medicaid and the Duragesic
and what the risk benefits were. We
talked about whether we needed to
make a referral at that point or make any
other changes.’’ Id. Respondent also
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testified that B.B. ‘‘had a full exam’’ but
that ‘‘[t]he MRI was not back yet.’’ Id.
As for the statement in the progress
note that B.B. ‘‘would like to try the
Morphine,’’ GX 3, at 47, Respondent
testified that B.B. ‘‘did not believe the
Duragesic was sufficient and that he
wanted to try one of the other medicines
that was on the formulary.’’ Tr. 296.
Respondent testified that he did not
believe this to be a ‘‘red flag’’ in B.B.’s
case because he ‘‘had made it very clear
to [B.B.] what our choices were’’ under
the Medicaid formulary and ‘‘the
majority of patients are very concerned
[because] Duragesic and morphine are
used for dying cancer patients, and why
are we putting them on medications for
dying.’’ Id. Respondent then testified
that he was ‘‘sure I told [B.B. that]
Duragesic, morphine and Opana ER’’
were his options. Id.
The CALJ, observing that ‘‘saying the
patient requested morphine . . . is kind
of a remarkable note,’’ asked
Respondent how his conversation with
B.B. went. Id. at 298. Respondent
answered: ‘‘Probably that I didn’t like
the Duragesic and you suggested that
morphine was an option. Can we try the
morphine this time. Probably something
like that.’’ Id. at 299. Respondent added
that B.B. ‘‘was not pleased . . . that we
changed the Lortab and the Opana, so
the fact that I made him do the
Duragesic, he was not happy.’’ Id. at
300. Respondent further noted that he
‘‘did his exam’’ and ‘‘[i]t was still
consistent that he did have left
abdominal wall weakness.’’ Id.
Respondent explained that ‘‘[h]is
diagnosis was lumbar disc disease,
anxiety, and a questionable upper
respiratory infection’’ and that he
‘‘placed [B.B.] on antibiotics.’’ Id. As for
his abdominal wall pain, Respondent
discussed with B.B. ‘‘wearing a corset if
at all possible’’ because he did not
‘‘want to confuse his . . . abdominal
pain[] with his level of pain because of
my change in his pain regimen.’’ Id.
Respondent further explained that B.B.
‘‘would follow up . . . in two weeks’’
and was given only ‘‘a two week supply
of his new Schedule II medicine.’’ Id.
According to Respondent, ‘‘anytime [he]
made a large change in [a patient’s]
medications, [he] would only give a
two-week’’ supply in the event the
patient was ‘‘allergic to it,’’ was ‘‘going
to abuse it,’’ or ‘‘got no pain relief
whatsoever.’’ Id. at 302.
Respondent also testified that he had
given B.B. a shot of Decadron, a steroid,
which ‘‘sometimes’’ provides patients in
‘‘severe pain’’ with ‘‘significant relief’’
and is ‘‘a great indicator that [the
patient’s] pain was more inflammatory
than other nature.’’ Id. at 301.
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The October 20, 2011 Visit
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B.B. again saw Respondent on
October 20, 2011. GX 3, at 46.
According to the progress note, B.B.
reported that ‘‘his stress [was] up,’’ that
he had ‘‘los[t] his father, and ‘‘he [was]
having a lot of grief.’’ 25 Id. Respondent
again noted that B.B.’s ‘‘[p]ast medical
history [was] extensively reviewed and
placed in chart.’’ Id.
As for the physical exam, Respondent
noted that B.B. had ‘‘[l]ow back
paraspinal and spinal tenderness’’ and a
‘‘[n]egative straight leg raise, but [that]
lying down and sitting up cause him a
lot of pain.’’ Id. He also noted ‘‘[n]euro
intact.’’ Id. Respondent again diagnosed
B.B. with ‘‘[l]umbar disc disease’’ and
added a further diagnosis of ‘‘[a]cute
grief.’’ Id. Respondent documented that
he discussed the ‘‘[a]ddictive,
dependence, and tolerance nature of the
medicines as well as alternatives,’’ that
he suggested ‘‘[n]on-medicinal painrelieving modalities,’’ and that the
follow-up would be either ‘‘p.r.n.’’ (as
needed) or ‘‘three months per his pain
contract.’’ Id. Respondent also issued
B.B. new prescriptions for 120 Opana 10
(one tablet every 6 hours P.R.N. for
breakthrough pain) and 90 Morphine
Sulfate ER 15, increasing the dosing of
the latter drug to one tablet in the
morning and two tablets in the evening.
Id.; see also GX 5, at 19, 22.
With respect to the statement in the
progress note that B.B. was having a lot
of stress and grief, Dr. Owen testified
that this ‘‘magnifies the perception of
pain and disability’’ and that because
there were previous ‘‘aberrant behaviors
going on and now . . . another stressor
in [B.B.’s] life,’’ this ‘‘increase[d] the
risk’’ that B.B. would ‘‘use [the] drugs to
chemically cope.’’ Tr. 139. Dr. Owen
then explained that Respondent should
have ‘‘sought psychological counseling
for’’ B.B. Id. Based on there being ‘‘no
documentation of [Respondent] taking
additional steps,’’ Dr. Owen concluded
that he ‘‘did not’’ do that. Id. at 140.
Dr. Owen also testified that
Respondent’s notation that
‘‘[n]onmedicinal pain-relieving
modalities suggested’’ lacked sufficient
detail before rhetorically asking: ‘‘What
does that mean, nonmedicinal
modalities suggested?’’ Id. at 209–10.
Continuing, Dr. Owen explained:
First, you don’t suggest treatment. Your job
as a physician is to advise the patient of what
good medicine is, and good medicine would
be if you haven’t done nonmedicinal painrelieving modalities, we need a back-up,
25 Yet
Respondent also noted that B.B. was
‘‘[a]lert and oriented and in no apparent distress.’’
GX 3, at 46.
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wean you off these controlled substances and
try these other treatments first.
Id. at 210. Then asked what the purpose
is ‘‘of providing that level of detail in a
patient file,’’ Dr. Owen answered:
Well, the purpose of documentation is for
continuity of care. Not only continuity of
care for this same provider from visit to visit
but continuity of care should somebody else
assume the care later on down the road or
should you need to get a consultation, that
the consultant can read your notes and
understand what was happening with this
patient at this point in time.
Id.
Regarding this visit, the CALJ asked
Dr. Owen if Respondent’s notation that
‘‘[n]egative straight leg raise, but lying
down and sitting up causes him a lot of
pain’’ had ‘‘any significance?’’ Id. Dr.
Owen replied: ‘‘[I]t doesn’t—it’s not
objective [in a] neurological kind of
sense, but it definitely contributes to the
idea that it’s not therapeutic on his
controlled substances, because he’s
having a lot of pain, lying down and
sitting.’’ Id. When then asked by the
CALJ, ‘‘[h]ow about the negative straight
leg raise part of it?’’ Dr. Owen answered:
‘‘[t]hat means he cannot have a
radiculopathy. There’s not likely
anything surgically going on.’’ Id. at
211.
Dr. Owen again testified that the
medical record did not support the
prescribing of controlled substances. Id.
at 140. He testified that: ‘‘[a]s previously
discussed, there’s an inadequate
evaluation going on. There’s a lack of
medical necessity to continue treatment
with controlled substances since there’s
no therapeutic benefit. And if you don’t
have medical necessity, you can’t have
a legitimate medical purpose for using
controlled substances.’’ Id.
Respondent testified that the ‘‘most
remarkable’’ thing in the October 20
progress note was that B.B.’s blood
pressure had gone up and that B.B. was
also ‘‘wanting to know about his MRI
report.’’ 26 Tr. 305. Respondent then
testified as to the various entries in the
October 20 note including B.B.’s report
of having ‘‘lost his father’’ and ‘‘having
a lot of grief.’’ Id. According to
Respondent, B.B.’s ‘‘exam was still
exactly like before, with low back
paraspinal and spinal tenderness, but he
still had the negative straight leg raises.
But laying down and sitting up still
caused him a lot of pain.’’ Id.
Continuing, Respondent testified that
he diagnosed B.B. with acute grief and
lumbar disc disease and that he
26 However, while the visit includes the
handwritten notation ‘‘Question about MRI,’’ GX 3,
at 46, B.B. did not undergo the MRI until the next
day. See id. at 19.
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increased his Morphine to two pills or
30 milligrams in the evening while
keeping his Opana for breakthrough
pain. Id. He also testified that he warned
B.B. about ‘‘the addictive, dependence
and tolerance natures’’ of the
medications and ‘‘suggested that he
continue using his non-pain [sic]
relieving modalities.’’ Id. Respondent
did not, however, offer any further
explanation as to what those modalities
involved. Respondent then testified that
he determined the follow-up would be
in ‘‘three months’’ as he ‘‘felt like [B.B.]
could really go into the three-month’’
schedule for being seen by him. Id. at
305–06. However, at this visit,
Respondent did not document whether
B.B. was achieving his treatment
objective or that he had obtained a
numeric rating from B.B. as to his pain.
See GX 3, at 28.
On October 21, 2011, the day after
this visit, B.B. had an MRI done of his
lumbar spine. Id. at 19. The Radiologist
reported his impression as follows:
‘‘Degenerative changes of the lower
lumbar spine as above. Most affected
level is at L5–S1 where a left paracentral
disc protrusion contacts the descending
S1 nerve root in the lateral recess.’’ 27 Id.
at 20.
Regarding the MRI, Dr. Owen tested
that it ‘‘did not show any specific
problems that would be attributable for
this kind of pain complaint[], nor was
it significant to cause the perceived
disability that this 26-year-old
gentleman considers himself’’ to have.
Tr. 207. And as he earlier testified in
response to the CALJ’s question as to
whether an MRI would provide an
objective basis such as ‘‘foraminal
narrowing’’ or ‘‘spondylosis’’ for
concluding that a patient ‘‘may be
having a spine issue’’ and not ‘‘making
it up,’’ Dr. Owen explained that
‘‘foraminal stenosis or foraminal
narrowing are common in asymptomatic
people.’’ Id. at 190. Dr. Owen then
explained that ‘‘[t]he only reason it
would be important is if you have a
radiculopathy you’ve identified on
clinical exam . . . and that would be
pain going down the leg in a dermatome
distribution, typically below the knee.’’
Id. Continuing, Dr. Owen explained that
27 Other findings included that L1–L2, L2–L3, and
L3–L4 were all normal, as well as that the
alignment of his vertebrae was normal. GX 3, at 19.
At L4–L5, the MRI found a ‘‘[s]mall left paracentral
disc protrusion with no significant spinal canal
with mild left neural foraminal and no significant
right neural foraminal stenosis.’’ Id. At L5–S1, the
MRI found a ‘‘[s]mall left paracentral disc
protrusion measuring 8 mm in [the] AP dimension
results in moderate subarticular recess narrowing,
with contact of the descending S1 nerve root. There
is mild left neural foraminal stenosis with no
significant right neural foraminal stenosis.’’ Id.
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there may be ‘‘numbness’’ and there
may be ‘‘weakness associated with the
isolated nerve that’s being entrapped,
and you would have a positive straight
leg raise.’’ Id.
The November 18, 2011 and December
15, 2011 Prescriptions
On November 18, 2011, Respondent
wrote new prescriptions with the same
dosing instructions for 90 Morphine
Sulfate ER 15 mg and 120 Opana 10 mg;
each of these was for a 30-day supply.
GX 5, at 17, 21; GX 3, at 23. B.B. filled
the prescriptions the same day. While
B.B.’s file contains photocopies of the
prescriptions, it contains no
documentation of a visit with either
Respondent or a nurse on this date. See
generally GX 3; Tr. 142.
Likewise, on December 15, 2011,
Respondent wrote new prescriptions
with the same dosing instructions for 90
Morphine Sulfate ER 15 mg and 120
Opana 10 mg, each of these being for a
30-day supply. GX 3, at 67, 90.
Respondent filled these prescriptions
the same day. Id. at 23. Here again, there
is no documentation of a visit with
either Respondent or a nurse on this
date. See generally GX 3; Tr. 142.
Dr. Owen testified that ‘‘[e]specially
in the context of the previous aberrant
urine drug testing and the lack of any
clear medical necessity or therapeutic
benefit,’’ Respondent ‘‘should have’’
seen B.B. in his office prior to
prescribing the drugs on both dates. Tr.
142. Dr. Owen further testified that
notwithstanding that at the October 20
visit, B.B. had reported that ‘‘his stress
is up’’ and that ‘‘he [was] having a lot
of grief,’’ there is no notation in B.B.’s
file as to how B.B. was dealing with
these issues. Id. Dr. Owen also noted
that there was no notation in the file
that Respondent had discussed the
results of the aberrant drugs tests with
B.B. Id. at 143. Dr. Owen then testified
that Respondent had ‘‘never’’
established ‘‘a medical necessity . . . to
continue these treatments’’ and that this
would require an in-office visit. Id.
After explaining that the aberrant
drugs tests and mention of B.B.’s life
stressors supported the need for
psychological counselling and
consultations with a psychologist or
addictionologist, Dr. Owen was asked
what risk was created by prescribing
these drugs to B.B. without requiring an
office visit. Id. Dr. Owen testified that
‘‘[t]he risk is that he continues to selfescalate these medications, and [is]
either chemically coping or becomes—
or is addicted to it.’’ Id. Dr. Owen then
opined that Respondent had never
established the ‘‘medical necessity’’ of
the prescriptions he issued to B.B. on
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these two dates, that the prescriptions
lacked a legitimate medical purpose,
and that Respondent acted outside of
the usual course of professional practice
in issuing them. Id. at 144.
On cross-examination, Dr. Owen was
asked whether he was aware that under
DEA’s regulation which allows a
physician to ‘‘issue multiple
prescriptions authorizing the patient to
receive . . . up to a 90-day supply of a
schedule II controlled substance,
provided [various] conditions are met,’’
‘‘it was okay . . . to only see a patient
once . . . every 90 days?’’ Id. at 195–96;
see also 21 CFR 1306.12(b). While Dr.
Owen answered ‘‘yes,’’ he added that a
physician must have ‘‘established
medical necessity and legitimate
therapeutic benefit from previous
documentation and [that] a patient
doesn’t have a high risk of abuse.’’ Tr.
196. Dr. Owen then re-iterated that B.B.
‘‘already had multiple aberrant urine
drug tests before those prescriptions
were issued.’’ Id.
Regarding these prescriptions,
Respondent testified that he did not
understand that he had to see B.B.
‘‘every 30 days’’ and that ‘‘[w]e saw him
every 90 days.’’ Id. at 307. Respondent
further testified that ‘‘[a]t the time there
was debate within the state as to
whether’’ patients ‘‘could be seen’’ even
‘‘every four months’’ and ‘‘we had
chosen every three months, so we never
gave more than two refills on a II or
above.’’ Id. Respondent then explained
that the patients ‘‘would call one to two
days ahead, a lot of times to the
pharmacy, and the pharmacist faxes the
request.’’ Id. at 307–08. Continuing,
Respondent testified that ‘‘[a] PMP
would be pulled, and then the chart
would be pulled. And then we would
write a prescription for the person and
leave it up front for them to pick up and
sign for.’’ Id. at 308. Respondent further
testified that the November 18
prescriptions were issued 29 days after
the previous prescriptions. Id. at 311.
Respondent did not, however, address
Dr. Owen’s criticism that B.B. presented
a high risk of escalating the use of the
controlled substances and should have
been seen prior to prescribing on each
of these dates. See id. at 306–13.
The January 19, 2012 Visit and
Prescriptions
On January 19, 2012, B.B. again saw
Respondent, who reported that he had
gone to the emergency room ‘‘two weeks
ago with right leg swelling’’ but that
‘‘[h]is ultrasound was negative.’’ GX 3,
at 45. B.B. complained of ‘‘some calf
pain’’ and that ‘‘[h]e still feels very
tight.’’ Id. Respondent also noted that
B.B. ‘‘goes to a psychiatrist’’ and
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‘‘reports severe lumbar disc disease’’; he
also noted that B.B. reported that ‘‘he
ha[d] been exposed to someone with
HPV’’ and ‘‘would like an exam.’’ Id.
Respondent further noted that B.B.’s
‘‘[p]ast medical history [was]
extensively reviewed’’ and ‘‘placed in
chart.’’ Id.
According to Respondent’s exam
notes, B.B. was ‘‘[a]lert and oriented and
in no apparent distress.’’ Id. While other
portions of the exam were normal,
Respondent again documented that B.B.
had ‘‘[l]ow back paraspinal tenderness,’’
a ‘‘[n]egative straight leg raise,’’ and
‘‘[n]euro intact.’’ Id. He also
documented that B.B. ‘‘has very tight
right calf.’’ Id. However, no mention
was made of B.B.’s hernia which had
been noted at previous visits. Id.
Respondent diagnosed B.B. with
‘‘lumbar disc disease,’’ ‘‘exposure to
infectious disease,’’ and ‘‘[r]ight calf
pain.’’ Id. He further documented that
he discussed the ‘‘[a]ddictive
dependence, and tolerance nature of the
medicines as well as alternatives,’’ that
he suggested ‘‘[n]on-medicinal painrelieving modalities,’’ and that the
‘‘[f]ollowup will be [in] three months.’’
Id. Respondent then issued B.B. new
prescriptions for Morphine Sulfate ER
15 mg and Opana 10 mg with the same
dosing instructions, thus providing a 30day supply for each drug if taken as
directed. Id.
At this visit, B.B. was required to
provide a urine drug screen. While the
results were not reported until January
31, 2012, the lab reported that morphine
was ‘‘not detected’’ and that this result
was ‘‘not expected with prescribed
medications.’’ GX 3, at 97. Moreover,
while the lab detected the presence of
alpha-hydroxyalprazolam, a metabolite
of alprazolam, the lab also detected the
presence of nordiazepam, the metabolite
of diazepam, as well as the presence of
oxazepam, and temazepam. Id. With
respect to the presence of the latter three
drugs, the lab reported that these three
results were ‘‘not expected with
prescribed medications.’’ Id. Of further
note, the lab report bears the
handwritten but undated notation: ‘‘Pt
counseled to only take what is
prescribed[.]’’ Id.
Dr. Owen testified that while
‘‘oxazepam can be a metabolite of
several other benzodiazepines,’’ this
was an aberrant drug test because nonprescribed drugs were detected and
prescribed drugs were not detected. Tr.
150–51. As for the drugs that were
detected but were not prescribed, Dr.
Owen testified that B.B. was either
‘‘getting [them] from the illicit . . .
market or from a friend.’’ Id. at 151. As
for the morphine, which was prescribed
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but not detected, Dr. Owen explained
that ‘‘[e]ither [B.B. was] selling it on the
street or he self-escalated and ran out of
his supply.’’ Id.
Regarding this visit, Dr. Owen
testified that when a patient reports
having gone to the emergency room, he
would get the record to find out both
‘‘what the problem was,’’ as well as if
‘‘any additional medication [was]
prescribed.’’ Tr. 147. However, the
patient file does not contain a note from
the emergency room. Id.; see also GX 3.
Moreover, after observing that the visit
note contains no mention that
Respondent addressed either of the two
prior urine screens during this visit, Dr.
Owen again testified that Respondent
had failed to establish medical necessity
for the prescriptions ‘‘by doing a proper
history and physical exam, by defining
a therapeutic benefit, by explaining
what previous treatments have or have
not worked . . . and . . . addressing the
previous aberrant urine drug tests.’’ Id.
at 148. Thus, Dr. Owen opined that
Respondent acted outside of the usual
course of professional practice in
issuing the prescriptions and that the
prescriptions lacked a legitimate
medical purpose. Id.
Regarding the prescriptions,
Respondent testified that B.B. wanted
refills and then testified as to what he
had documented in the note. Id. at 313.
Asked by his counsel if B.B. had
‘‘ask[ed] for anything different or
call[ed] for additional drugs when he
went to the ER,’’ Respondent testified
that ‘‘[t]here was nothing on his PMP
that revealed they prescribed anything,’’
a fact confirmed by the PMP. Id. at 314;
GX 3, at 23.
Observing that the visit note ‘‘almost
seems as if [B.B.] would be a person
that’s not in pain,’’ the CALJ asked:
‘‘doesn’t it seem like an unremarkable
set of . . . notes for such a high amount
of painkillers?’’ Tr. 315. Respondent
answered: ‘‘He just continued to have
the same pain that he had before, so I
didn’t go into details on it.’’ Id. The
CALJ then asked: ‘‘doesn’t it seem like
kind of an unremarkable set of notes for
somebody that’s on a lot of heavy
medications?’’ Id. Respondent answered
that he ‘‘agree[d]’’ and added that ‘‘I can
only conjecture at this point as to what
was going on, but I imagine I was more
concerned about the fact he had went to
the emergency room and making sure he
didn’t get other medicine’’ and ‘‘less
concentrated on his chronic pain.’’ Id. at
316. The CALJ then commented that
‘‘the notes do seem very benign’’ and
asked ‘‘if that seemed normal to’’ him?
Id. at 316–17. Respondent answered that
‘‘[i]t stands out that I didn’t make
more.’’ Id. at 317. Respondent then
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maintained that he ‘‘was seeing 40 to 45
patients a day and dictating that night
and the next morning, and so I
definitely could have done a better job.’’
Id. Continuing, Respondent testified
that he thought that at this visit, B.B.
‘‘wasn’t requesting any more or any
change in his pain medicines’’ and
‘‘wasn’t reporting anything except his
calf pain and his new conditions.’’ Id.
At this point, Respondent’s attorney
suggested that he had noted ‘‘his lumbar
disc disease and ‘‘low back paraspinal
tenderness’’ in the visit note, prompting
Respondent to state: ‘‘[t]hat’s correct.
And he still had the negative straight leg
raise.’’ Id. at 317–18. Respondent then
conceded that his finding of a negative
straight leg raise was an indicator that
B.B.’s back issues were not causing
radiculopathy in his legs. Id. at 318.
However, Respondent maintained that
‘‘a negative straight leg raise doesn’t
mean they [sic] don’t have significant
pain when you raise their [sic] leg,’’ and
that ‘‘if you raise their [sic] foot when
they’re [sic] laying in a supine, they [sic]
flinch back.’’ Id. Respondent did not,
however, document this in the progress
note for this visit, nor did he document
as he had at the last visit that ‘‘lying
down and sitting up cause [a] lot of
pain.’’ Compare GX 3, at 46, with id. at
45.
Moreover, when the CALJ asked if
‘‘[t]his note was more saying . . . that
he’s still maintaining an absence of at
least an objective sign of
radiculopathy,’’ Respondent answered:
‘‘[o]f radiculopathy, but not necessarily
paraspinal or muscular-skeletal pain.’’
Tr. at 318–19. Upon further questioning
by the CALJ as to his reason for noting
the negative straight leg raise,
Respondent agreed with the CALJ’s
suggestion that the reason for the note
was to ‘‘more or less show that things
[weren’t] getting worse’’ and then added
that ‘‘there was no change.’’ Id. at 319.
Yet, at this visit, Respondent neither
documented that B.B. had achieved his
treatment objective nor indicated if he
had completed an update pain scale on
the Treatment Plan form. See GX 3, at
28. Respondent did not document if
B.B. was achieving his treatment
objective and had completed an updated
pain scale until his January 27, 2015
visit, when Respondent wrote ‘‘fair’’ in
the block for ‘‘Has patient achieved
treatment objective?’’ and either the
number 3 or 7 in the block for ‘‘Patient
Completed Updated Pain Scale’’ on the
Treatment Plan form.28 Id. On the same
28 Indeed, the writing bears a strong semblance to
the number 3 as written by Respondent in listing
his registration number (BP2423440) on various
prescriptions. Compare GX 3, at 28, with GX 5, at
23; see also GX 1, at 1.
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date, Respondent also wrote ‘‘no’’ in the
block for whether he considered
referring B.B. for a second opinion or
further treatment options. Id.
According to the progress note for the
January 27 visit, B.B. reported that he
was ‘‘very anxious’’ about the price of
the vaccine for HPV. GX 3, at 44.
Respondent also documented that B.B.’s
‘‘[p]ast medical history [was]
extensively reviewed and placed in
chart and includes severe thoracic and
lumbar pain.’’ Id. And in the physical
exam section of the note, Respondent
noted ‘‘low back paraspinal and spinal
tenderness’’ and ‘‘[q]uestionable straight
leg raise.’’ Id. He also noted ‘‘[n]euro
intact.’’ Id. Respondent did not,
however, prescribe any controlled
substances on this date. See id.; see also
id. at 22–23 (PMP Report).
The CALJ also asked Respondent
whether he thought the Jan. 27 visit note
looked ‘‘very benign’’ if he was ‘‘really
evaluating’’ the ‘‘efficacy of the pain
[medication] regimen’’ as it only
referred to B.B.’s ‘‘past history’’ of
thoracic and lumbar pain. Id. at 323.
Respondent answered that even if he
‘‘was seeing someone for something
other than their [sic] pain management
and not writing prescriptions that day,’’
he would ‘‘acknowledge the fact that
that was still underlying’’ and ‘‘reflect[]
[that] in the note,’’ so that it did not
‘‘appear[] that he has no pain in
between’’ the visits. Id. at 324.
The CALJ, explaining that the
progress note did not ‘‘seem to discuss
at all the underlying basis for the pain
[medication] regimen’’ or the ‘‘activities
of daily living or . . . function,’’ asked
Respondent if ‘‘those [are] things that
you would ordinarily include in there?’’
Id. at 324. Respondent answered that
‘‘[i]n the individual’s subjective—or the
SOAP notes, a lot of times those would
be neglected. With time constraints, I’m
not necessarily efficient. That’s not ideal
I guess is what I’d say.’’ Id. Continuing,
Respondent testified: ‘‘But this patient
had been disabled on Social Security
and determined previously to have
chronic pain and . . . objective data
confirmed that. He was not doing
anything to set off alarms with his PMP,
doctor-shopping or changing his
medications. He was stable on his
medicines at that point.’’ Id. Respondent
then maintained that B.B. ‘‘was one of
our low-flyers’’ compared to other
patients and because ‘‘[h]e wasn’t
increasing his pain med [and] not asking
for increased pain medicines . . . I
guess [he] got less individualized SOAP
notes.’’ Id. at 325.
Observing that the visit notes ‘‘don’t
tend to deal with activities of daily
living or anything where you were
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measuring how well the treatment
objectives are being attained,’’ the CALJ
asked Respondent how he evaluated
‘‘how well you’re doing in treating the
patient with . . . pain medications?’’ Id.
at 325–26. Respondent testified that:
[t]he notes could be much more well written.
Much more went on in the office than what’s
written. And it’s been pointed out here that
if it’s not written it didn’t occur. That doesn’t
mean it didn’t occur. It means I can’t prove
it. But I definitely knew what was going on
in his life from each visit, and I just failed
to dictate that.
Id. at 326.
Subsequently, the CALJ asked
Respondent how he knew ‘‘how the
meds were doing?’’ Id. at 327.
Respondent answered: ‘‘Pure subjective,
and if they were needing more or less
pain meds. That’s all I —.’’ Id.
The CALJ then asked Respondent if
he was not asking B.B. ‘‘questions about
what activities he’s doing or what’s
better or worse or what’s causing him
pain, then aren’t you just depending on
his subjective desire for more or less
pain medicine?’’ Id. Respondent replied:
Well, I was talking to him about those
things and what all he did in a day, and he
was not able to work. He . . . didn’t have a
vehicle, I don’t believe. I think that was a
major issue for how he got his prescriptions
or not. And so he basically was stuck in the
house all day, trying to figure out how to
stretch or how to do his exercises at home—
he was pretty much homebound, taking care
of his son.
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Id.
The February 13, 2012 Prescriptions
On February 13, 2012, Respondent
issued B.B. new prescriptions for both
120 Opana 10 and 90 Morphine Sulfate
ER 15, with the same dosing
instructions as the previous
prescriptions. GX 5, at 3 & 23. As noted
previously, the lab reported the results
of the January 19, 2016 urine drug test
on January 31, 2012, GX 3, at 97; and
thus Respondent should have had the
results by this date. Tr. 153. As
explained previously, other than the
undated notation on the Lab Report that
B.B. was ‘‘counseled to only take what
is prescribed,’’ the only documentation
in the progress notes for this date
(which is written at the bottom of the
January 27, 2012 progress note) is the
following: ‘‘Zpack, Prednisone 10 mg #
28, Phenergan.’’ GX 3, at 44.
Dr. Owen testified that there should
have been an office visit ‘‘in light of the
previous aberrant drug-taking behaviors
and the lack of medical necessity
[having been] established to treat with
controlled substances.’’ Tr. 154. He
further explained that Respondent
‘‘need[ed] to establish medical necessity
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and establish a therapeutic benefit, and
now we have another aberrant drug test
in late January.’’ Id. While he
acknowledged that Respondent
documented that he counseled B.B. to
take only what is prescribed, Dr. Owen
testified that this was not an adequate
safeguard to prevent abuse or diversion,
‘‘especially since this [was] the third
aberrant urine drug test.’’ Id. Asked
what Respondent should have done, Dr.
Owen testified that ‘‘you need to have
a long discussion with the patient about
the risk of addiction 29 and get some
consultations by experts in [the] field of
addiction.’’ Id. at 155. Based on the
absence of any such documentation in
the file, see generally GX 3, and that
Respondent never claimed to have
obtained any consultations, I find
Respondent did not obtain a
consultation with an expert in
addiction.
Moreover, Dr. Owen again found that
the patient record did not justify the
prescribing of controlled substances and
further noted that the ‘‘medical
necessity for the prescriptions ha[d] not
been established in any of the previous
evaluations.’’ Tr. 155. He further opined
that the Opana and morphine
prescriptions issued on this date lacked
a legitimate medical purpose and were
issued outside of the usual course of
professional practice. Id. at 155–56.
Respondent testified that he had
reviewed the drug test results and had
directed his staff to pull a PMP report.
Id. at 335. He also acknowledged having
written the notation that ‘‘patient was
counseled to only take what is
prescribed.’’ Id. Asked by his counsel if
‘‘red flags [were] raised by these test
results,’’ Respondent answered:
[t]he red flag that I saw—the morphine said
not detected, but the oxymorphone was
positive, so that was explainable. The
nordiazepam, the oxazepam, and then the
Xanax, the lab always said that if . . . Xanax
was positive, that they could all three be
positive. The temazepam, in our practice,
usually didn’t show up, and temazepam is a
sleeping pill called Restoril.
And so I wanted to pull the chart, and so
Dr. Schoelen didn’t mind his pain patients
being on Restoril. I did, and so I wanted to
make sure, has he been prescribed Restoril.
I couldn’t find it on the PMP, so I’m sure
what was told was, if you have an old
Restoril or some other doctor, I do consider
that breaking our rules, and so you can’t take
it.
Id. at 335–36.
Notably, while the PMP report shows
that B.B. had received a number of
prescriptions for Ambien (zolpidem), it
29 Dr. Owen was not asked to provide details as
to what specific areas would be discussed in such
a conversation.
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does not list any prescriptions for
temazepam. GX 3, at 22–26. Nor do the
progress notes during the period in
which B.B. was being treated by Dr.
Schoelen contain any indication that
Schoelen had prescribed temazepam to
B.B. Id. at 50–62. And Respondent
offered no testimony that he ever asked
B.B. from whom he obtained the
Restoril, and the chart contains no
documentation that he did. In any
event, even if the lab had told
Respondent that using alprazolam could
also trigger false positives for diazepam
and oxazepam, this was still an
aberrational result and was, in fact, the
third aberrational UDS that B.B. had
provided in less than eight months.
Asked by the CALJ why he did not
find the non-detection of morphine to
be ‘‘an anomaly,’’ Respondent asserted
that this was because oxymorphone is a
metabolite of the former. Id. at 336.
When then asked ‘‘[w]hy wouldn’t it
show morphine positive then if the
person’s on morphine,’’ Respondent
testified ‘‘[t]hat would occur
occasionally.’’ Id. Respondent then
speculated that B.B. ‘‘probably did not
take two medications on that day. Most
likely it was over the 30 days since his
last prescription, but it was still in his
system, that it had been taken recently.’’
Id. Respondent then asserted that ‘‘[t]he
same is true, the exact same thing for
the carisoprodol, which is Soma. It’s on
the next page, page 98 [of the Exhibit],
shows that meprobamate was positive’’
and ‘‘the comments section says, ‘Test
result is expected based on prescribed
medications.’’’ Id. at 337.
It is true that meprobamate is a
metabolite of carisoprodol—as noted by
the lab itself on the reports. See GX 3,
at 96–98, 100, 104; see also 76 FR at
77340 (carisoprodol scheduling order).
Moreover, when B.B. was under Dr.
Schoelen’s care and being prescribed
hydrocodone, the lab reports noted that
B.B. had tested positive for
hydromorphone and that this drug ‘‘is a
metabolite of hydrocodone,’’ thus
rendering the test result ‘‘expected with
[the] prescribed medications.’’ See id. at
99, 103, 104, 105, 106. Unexplained by
Respondent is why, if oxymorphone is
a metabolite of morphine, the lab did
not indicate that on the reports as it did
when it noted that meprobamate and
hydromorphone were metabolites of
carisoprodol and hydrocodone
respectively. Of further note,
Respondent did not testify as to his
basis of knowledge for this assertion.
However, as found above, B.B. had
last obtained a morphine prescription
on December 15, 2011, 35 days before
the January 19 visit, and if taken as
directed, B.B. would have run out of his
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morphine five days earlier. GX 3, at 23.
The Government produced no evidence
as to how long morphine at this dosing
would still be detectable in urine after
it was last taken. Nonetheless, based on
the presence of temazepam which was
not prescribed, the January 19 drug test
was still aberrational.
The March 13, 2012 Prescriptions
On March 13, 2012, Respondent
issued B.B. new prescriptions for both
120 Opana 10 and 90 Morphine Sulfate
ER 15, with the same dosing
instructions as the previous
prescriptions. See GX 5, at 10, 24.
Respondent issued the prescriptions
without requiring an office visit by B.B.
Tr. 156, see generally GX 3, at 42–62
(visit notes for B.B.). Nor is there any
notation on any of the visit notes
regarding Respondent’s issuance of
these prescriptions.30
Dr. Owen testified that Respondent
should have required an office before
issuing these prescriptions, reiterating
that the ‘‘medical necessity for’’ the
prescriptions still had not been
established. Tr. 156. Asked to again
identify the deficiencies which led him
to conclude that Respondent had not
established medical necessity, Dr. Owen
explained:
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Reviewing all the pertinent previous
medical records, including what previous
treatments have been performed, an adequate
history and physical exam, consultations as
medically appropriate, establishing a
clinically meaningful and objective
therapeutic benefit, and addressing any
aberrant drug-taking behaviors.
Id. at 157. Dr. Owen then noted that
there were three previous incidents of
aberrant drug-taking behaviors, and that
‘‘[t]he only treatment plan has been
continuing the controlled substances
without medical necessity.’’ Id. at 158.
And once again, Dr. Owen testified that
the prescriptions lacked a legitimate
medical purpose and ‘‘were not’’ issued
in the usual course of professional
practice. Id.
In his direct testimony, Respondent
did not address his reasons for issuing
the March 13 Opana and morphine
prescriptions. See Tr. at 338–39.
Instead, the questioning centered on
why he wrote a prescription on March
14 for Nexium, ‘‘a stomach medicine’’
and a non-controlled drug (‘‘I have no
idea’’) after which the questioning
30 As found above, on the January 27, 2012 visit
note, Respondent had written that on ‘‘2/13/12’’ he
prescribed ‘‘Zpack, Prednisone 10 mg # 28,
Phenergan.’’ GX 3, at 44. The same visit note
contains a further entry for ‘‘2–22–12’’ documenting
the issuance of a prescription for 60 tablets of Soma
(carisoprodol) 350 mg. Id.
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moved on to the next set of
prescriptions. Id.
The April 12, 2012 Visit and
Prescriptions
On April 12, 2012, B.B. saw
Respondent for an office visit. GX 3, at
42. According to the visit note, B.B.
‘‘report[ed] his pain has been worse,’’
that ‘‘[h]e has run out of his medicines;
he had them stolen,’’ and that ‘‘[h]e has
done fairly well.’’ Id. Moreover, on the
Treatment Objective Evaluation section
of the Treatment Plan, Respondent
wrote ‘‘fair → yes’’ in the block for ‘‘Has
patient achieved treatment objective?’’
and ‘‘6’’ in the block for ‘‘Patient
Completed . . . updated pain scale.’’ Id.
at 28.
In the visit note, Respondent wrote
that B.B. ‘‘still has severe anxiety and
depression’’ and has been ‘‘exposed to
someone with HPV’’; Respondent then
wrote: ‘‘[h]e is also wanting to switch
his medicines because he is having
trouble finding the OPANA.’’ GX 3, at
42. Respondent also noted: ‘‘[p]ast
medical history extensively reviewed
and placed in chart.’’ Id.
In his exam findings, Respondent
noted ‘‘[l]ow back paraspinal and spinal
tenderness,’’ ‘‘[n]egative straight leg
raise,’’ and ‘‘[n]euro intact.’’ Id.
Respondent listed his diagnoses as
‘‘[l]umber disc disease,’’ ‘‘[a]nxiety and
depression’’ and ‘‘[e]xposure to
infectious disease,’’ although he
‘‘doubt[ed] that it was HPV.’’ Id.
Respondent then changed B.B.’s
medications to Opana ER (extended
release) 20 mg b.i.d. (twice per day) and
Percocet 10 mg (q. 12h) p.r.n. (as
needed) for acute pain. Id.; see also Tr.
340. He also prescribed Soma
(carisoprodol) one tablet b.i.d. GX 3, at
42.
Respondent further documented that
he discussed the ‘‘[a]ddictive,
dependence, and tolerance nature of the
medicines, as well as alternatives.’’ Id.
He noted that he ‘‘suggested’’ ‘‘[n]onmedicinal pain and anxiety-relieving
modalities.’’ Id.
Respondent also required B.B. to
undergo a urine drug screen. While the
preliminary screen shows that B.B.
tested positive for oxycodone (which
had not been prescribed to him) and
negative for opiates/morphine (which
he had been prescribed), the line on the
form for noting the oxycodone result
includes the parenthetical ‘‘synthetic &
semi-synthetic opiates’’ and the form
contains no separate entry for
oxymorphone, which is a semi-synthetic
narcotic. GX 3, at 63. Notably, the
Government produced no evidence as to
whether a positive result for
oxymorphone would show up as
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positive for oxycodone or as positive for
‘‘opiates/morphine.’’ Moreover, Dr.
Owen acknowledged that there are
reliability issues with this type of test
and thus, ‘‘you would send it off for a
confirmatory mass spectroscopy test.’’
Tr. 164. However, according to Dr.
Owen, the results are still valid until the
confirmation shows otherwise. Id.
Respondent did send B.B.’s. urine
sample to the lab for further testing. GX
3, at 96. According to the lab report,
which was reported back to Respondent
on April 17, 2012, B.B. tested positive
for oxymorphone, which was expected
based on Respondent’s having
prescribed Opana to him. Id. He also
tested positive for meprobamate, which
was expected based on Respondent’s
having prescribed carisoprodol to B.B.
Id. However, the lab further found that
morphine was ‘‘not detected,’’ a result
which was ‘‘not expected’’ because
Respondent had prescribed morphine
sulfate ER to B.B. on March 13, 2012. Id.
Dr. Owen also noted that while ‘‘the
confirmed . . . drug test [was] positive
for some of these drugs,’’ Respondent
had reported that he had run out of his
medicines and that there was a ‘‘lack of
documentation of what he ran out of
and what he should still be on, so . . .
there’s problems in interpreting this
urine drug test.’’ Tr. 167.
Dr. Owen testified that Respondent
did not address the aberrant preliminary
drug screen conducted on April 12 nor
any of the previous aberrant drugs tests
at this visit. Id. at 165–66. However, as
found above, on the January drug test
report, Respondent did note—but
without specifying the date that he did
so—that he had counseled B.B. to take
only what was prescribed.
The Government also asked Dr. Owen
if it was noteworthy that B.B. had told
Respondent that his pain was worse,
that he had run out of his medicines and
had them stolen. Id. at 159. Dr. Owen
answered:
Well, one, his pain is worse, so why is it
worse? Two is he’s run out of his
medications, and then he had them stolen.
What is it? Did you run out of them because
you self-escalated, or were they stolen and
you ran out of them? It needs clarification.
But either event, self-escalation or having
them stolen, is a red flag.
Id.
Dr. Owen then noted that B.B.’s pain
contract stated that ‘‘lost and stolen
medications will not be replaced,’’ id. at
160, but acknowledged on crossexamination that Respondent had not
provided an early refill of the
prescriptions. Id. at 200. However,
regarding B.B.’s report that his
medications were stolen, Dr. Owen
further testified that because there had
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‘‘been the aberrant urine drug tests
before . . . this, there is [sic] enough
aberrant behaviors that’’ Respondent
needed ‘‘to get the person to an
addictionologist or a psychologist, or
just stop prescribing these controlled
substances since there’s no evidence
they’re helping this gentleman.’’ Id. at
212–13.
Dr. Owen also found problematic the
notations in the visit note that B.B.
reported that ‘‘his pain has been worse’’
and that ‘‘[h]e has done fairly well.’’ Id.
at 160. As Dr. Owen testified, the
statement that ‘‘[h]e has done fairly well
. . . kind of conflicts with his pain is
worse and the aberrant drug-taking
behavior, so that’s an unreliable
statement.’’ Id. Dr. Owen also explained
that B.B.’s having ‘‘severe anxiety and
depression . . . are relative
contraindications to prescribing
controlled substances . . . [b]ecause it
magnifies [the] perception of pain and
disability.’’ Id. Dr. Owen then testified
that because of these conditions,
Respondent should have requested a
‘‘consultation by a psychologist’’ but did
not. Id. at 160–61.
Dr. Owen further testified that
Respondent ‘‘did not’’ address B.B.’s
‘‘ongoing stress and anxiety issues,’’ and
that ‘‘[h]e did not’’ conduct a thorough
patient history. Id. at 166. He then
testified that Respondent had changed
B.B.’s treatment plan by adding
Percocet, but that Respondent
‘‘change[d] the medications without
ever . . . documenting [a] medical
rationale to add any new medication.’’
Id. Asked by the CALJ ‘‘why would
someone add Percocet,’’ Dr. Owen
testified that it is a short-acting opioid
that could be added ‘‘for break-through
pain, if that’s not being controlled
well.’’ Id. at 167.
With respect to Respondent’s notation
that he had discussed ‘‘[a]ddictive
dependency and tolerance nature of
these medications as well as
alternatives,’’ id. at 167, Dr. Owen noted
that ‘‘there’s no real substance to that
statement’’ as a statement of informed
consent. Id. at 168. He then explained
that the statement ‘‘[l]acks any details
about what alternative treatments were
discussed, and . . . B.B.’s already
demonstrated several aberrant drugtaking behaviors.’’ Id. Continuing, Dr.
Owen explained that ‘‘[t]he potential of
addiction is very high in this individual,
and I think you just can’t say something
as generic as this statement and [not]
have any meaningful documentation
behind it.’’ Id.
Dr. Owen was also asked about entries
in a PMP report in B.B.’s file which
showed the controlled substance
prescriptions he obtained and filled
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from April 12, 2011 through April 11,
2012. Tr. 170–72. The report showed
that on March 14, 2012, B.B. had
obtained and filled a prescription from
another provider (R.H.) for 60
alprazolam 1 mg, which was a 30-day
supply and that on April 6, 2012, he had
obtained and filled another prescription
from R.H. for 30 alprazolam 1 mg. Id. at
170–71. Dr. Owen testified that this was
an early refill, as the March 14
prescriptions should have lasted until
approximately the middle of April. Id.
at 171. According to Dr. Owen, this
‘‘could represent [that] the person is
self-escalating their medications.’’ 31 Id.
Dr. Owen testified that Respondent
should have addressed the early refills
because although he did ‘‘not prescrib[e]
this drug, it is a reflection of B.B.’s
ability to self-regulate his controlled
substance use.’’ Id. at 172. However, Dr.
Owen then testified that an early refill
does not necessarily mean that B.B. was
abusing his medication if it was ‘‘a onetime situation.’’ Id. While Dr. Owen
testified that ‘‘if you’re prescribing, you
might call the treating doctor that is
prescribing and get clarification. But
when you have a pattern of early refills,
it’s hard to explain that the office is
closed for a holiday or a weekend and
that justifying the medical necessity to
prescribe early.’’ Id. at 172–73.
However, given that the alprazolam
prescription issued on February 15 was
at most three days early and the March
14 prescription was at most two days
early, the evidence does not establish a
pattern of early refills but only a single
early refill. Thus, I place no weight on
Respondent’s failure to contact Dr. R.H.
regarding the alprazolam refills.
Continuing, Dr. Owen reiterated his
earlier testimony that the patient record
was ‘‘not adequate’’ to establish
‘‘medical necessity’’ for prescribing the
controlled substances on this date and
that between September 22, 2011 (when
he assumed the care of B.B.) and April
12, 2012, Respondent had not
established medical necessity for the
drugs. Id. at 173–74. He then opined
that the prescriptions Respondent
31 The Government attempted to make the same
point with respect to the alprazolam prescriptions
issued by R.H. on February 15 and March 14, 2012
and filled by B.B. the same day. Tr. 171; see also
GX 3, at 22. However, 2012 was a leap year, and
thus, the March 14 prescription was filled 28 days
after the February 15 prescription, rendering it only
two days early. The Government also attempted to
establish that the February 15 prescription was an
early refill, because B.B. had obtained a refill of
alprazolam on January 20, 2012, thus rendering the
February 15 prescription four days early. Tr. 171–
72; see also GX 3, at 22–23. As for the latter
prescription, according to the calendar for February
2012, February 19 was a Sunday and there is no
evidence as to whether the practice was open on
February 18.
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issued at this visit were issued outside
of the usual course of professional
practice and lacked a legitimate medical
purpose. Id. at 174.
Regarding the April 12 visit,
Respondent testified that B.B. ‘‘said he
perceived [his] treatment objective was
fair’’ and that ‘‘[t]here’s a ‘yes’ this time
instead of just fair.’’ Id. at 339. Asked by
his counsel if B.B. was able to work at
that point, Respondent answered ‘‘[n]o’’
and that ‘‘[h]e ha[d] not worked any at
that point.’’ Id. at 353. When then asked
why he wrote ‘‘yes’’ there, Respondent
testified that he did not recall. Id.
Respondent also testified that ‘‘[h]is
pain had gone from a 7 in January to a
6.’’ Id. at 339. Later, he testified that
‘‘[m]y subjective said his pain was
worse, but it was a 6, and my last note
said it was a 7.’’ Id. at 353. Respondent
then asserted that B.B.’s pain rating
‘‘was still above the 4 to 5 [that] the
Joint Commission says . . . needs to be
addressed.’’ 32 Id.
Respondent further testified that he
had not replaced the stolen medication.
Id. at 341. As for how B.B. had managed
after his medications were stolen,
Respondent testified that while ‘‘the
notes don’t necessarily reflect it . . . he
had a family member, and I don’t
remember who it was, but someone had
held some pain medicines for him, and
he was trying to stretch them out to
make sure that he didn’t run out.’’ Id.
Continuing, Respondent asserted that
B.B. did this ‘‘[b]ecause he knew how
important his drug screen would be
positive, and so he always kept some
medicine back’’ by placing it in ‘‘an old
bottle.’’ Id.
At this point, the CALJ interjected
that he did not ‘‘understand this,
because if a person says that my
medicines were stolen, the medicines
are going to be gone’’ and ‘‘they won’t
have medicines to keep taking them.’’
Id. at 342. After Respondent
acknowledged that he ‘‘tell[s] stories,’’
he explained that the more he ‘‘did pain
medicine, the more [he] found out there
is such a culture, everyone wanting
their pain medicines . . . that many of
them keep them in a separate bottle . . .
for safety’’ and ‘‘keep a stash in a
different place’’ from their other
prescriptions. Id. Then asked by the
CALJ if it made sense that B.B. reported
that his drugs were stolen but stretched
them out, Respondent answered that it
32 Respondent also testified as to the contents of
the visit note, largely reading into the record what
the notes contained. However, he noted, inter alia,
that B.B. had ‘‘reported subjectively . . . that his
pain had been a little worse,’’ as well as that his
straight leg raise was now negative and not
‘‘questionable’’ as he noted at the previous visit. Id.
at 340.
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did because he knew that ‘‘most of my
patients keep extra pills or keep them in
a different place’’ in their house. Id. at
343.
In his testimony, Respondent agreed
with the CALJ that he preferred
prescribing extended release drugs, and
that these formulations require a patient
‘‘to keep a certain amount in [his]
system so that [he] would have relief
from [his] pain’’ and be able ‘‘to engage
in the [ ] activities of daily living.’’ Id.
at 344–45. The CALJ then asked:
‘‘doesn’t it seem to you unusual that a
person would be keeping some of those
back?’’ Id. at 345. Respondent testified
that ‘‘[i]t would have before I started
doing pain management.’’ Id.
Continuing, he maintained that ‘‘[i]t’s
very common that [patients] keep a
stash of their medicines in an old bottle
or take some with them, because they
are absolutely paranoid of having their
medicine stolen, and it is such a
common thing for drug seekers, and
basically the medicines are highly
sought after, even amongst their family
members.’’ Id. Respondent then
maintained that ‘‘[m]any of them have
lockboxes in their house, where they
actually have their pills. . . . And so it’s
not unusual in my practice at all for
patients to keep a separate container of
their medicine.’’ Id.
Respondent offered no explanation as
to how a patient could forgo taking
extended release medication to create ‘‘a
stash’’ while still managing his pain. In
any event, Respondent offered no
evidence that he even asked B.B. when
the purported theft had occurred, which
drugs had been stolen, and when B.B.
had last taken the drugs he prescribed.
As for why he changed B.B.’s
medication, Respondent testified that
‘‘Opana was very difficult to get in some
of the pharmacies’’ as some of the
pharmacies ‘‘couldn’t get it from their
suppliers’’ and he had a policy of
requiring patients to obtain their
medications at a single pharmacy. Id. at
346–47. Respondent was then asked by
his counsel: ‘‘so the Percocet took the
place of what?’’ Id. at 347. Respondent
answered: ‘‘I used the Opana ER,
because he had had good luck with the
Opana short-acting, so I swapped him
and used the Opana ER’’ as it was on
Medicaid formulary and easier to obtain
because ‘‘it was very, very expensive’’
and ‘‘didn’t have a supply problem,
because people on the street or privatepay people couldn’t pay for it.’’ Id.
Respondent then explained that he
‘‘changed [B.B.] off the long morphine to
Percocet . . . [b]ecause I wanted
another . . . short-acting . . . for his
break-through’’ pain. Id. Respondent
testified that he wrote only for a two-
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week supply of the medications. Id. at
348–49.
While Respondent acknowledged that
‘‘having chronic pain [can] lead to
worse anxiety and depression’’ as well
as that ‘‘uncontrolled anxiety or
depression [can] lead [ ] to more pain,’’
id. at 409, he admitted that he never
consulted with the mental health
providers that B.B. was seeing. Id. at
408. Asked by the CALJ whether it was
‘‘within the standard of care’’ for him
and B.B.’s mental health provider to
have ‘‘ke[pt] treating [B.B.] without
talking to each other,’’ Respondent
answered that ‘‘[t]he mental health
providers are very good about speaking
to us about patients.’’ Id. at 409. Then
asked by the CALJ ‘‘[h]ow about the
other way around,’’ Respondent
answered: ‘‘[i]f you felt it was necessary,
you could report on information, I’m
sure.’’ Id.
Continuing, the CALJ asked
Respondent if ‘‘a mental health provider
[is] prescribing controlled substances
simultaneously with you, ordinarily
will you consult with the mental health
provider?’’ Id. Respondent answered:
We’ve become quite reliant on the PMPs
now. Before the PMP, there was quite a bit
of cross-talk, because you would get
pharmacists [who] would call you and say,
did you know that they’re [sic] seeing so and
so, or they’re [sic] taking this, that or the
other. And so there was much more of a need
to try and get ahold [sic] of them. But we’ve
become very reliant on the PMPs now to
track that.
Id. at 409–10.
The CALJ then asked Respondent ‘‘if
two practitioners are simultaneously
providing controlled substances [to] the
same patient, wouldn’t the two
practitioners talk to each other about
[that] approach?’’ Id. at 410. Respondent
answered: ‘‘Absolutely. In every other
field but mental health we do do that,
and actually we don’t treat the same—
we don’t treat with pain medication any
patient that’s seeing another doctor for
pain. We don’t go and side talk at all.’’
Id.
This answer prompted the CALJ to
ask: ‘‘but with a mental health
practitioner, if that practitioner is also
prescribing controlled substances, you
wouldn’t consult with them and—or ask
anything about that patient?’’ Id.
Respondent testified: ‘‘[t]hat doesn’t
happen very often.’’ Id. Indeed,
notwithstanding that on the date of
B.B.’s first visit to Respondent’s clinic,
he identified Wellbutrin and alprazolam
as drugs which he was either then
taking or had recently used, see GX 3,
at 5; there is no evidence that
Respondent (or Dr. Schoelen) ever
discussed B.B.’s psychiatric issues with
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his mental health providers. See
generally GX 3.
The April 25 Prescriptions
On April 25, 2012, Respondent
provided B.B. with a prescription for 30
Roxicodone (oxycodone) 15 mg. GX 5, at
4. B.B.’s file contains no documentation
that there was an office visit, and
notwithstanding that this was a change
in medication from what Respondent
had prescribed at the previous visit,
there is no notation in the progress
notes as to why he changed the
prescription. See generally GX 3; see
also Tr. 174–75. Moreover, while
Respondent testified that he would
‘‘routinely’’ make an entry in the
Treatment Objective Evaluation section
of the Pain Management Treatment Plan
‘‘if we were making a change in a
medication,’’ Tr. 357, no such entry was
made on this date. See GX 3, at 28. Nor
is there any documentation in the
patient file that Respondent addressed
with B.B. the aberrant drug test result
(the non-detection of morphine) which
had been reported to him on April 17.
See generally GX 3.
According to Dr. Owen, when adding
a new drug to a patient’s regimen of
pain medications, a physician ‘‘would
have to establish medical necessity with
some type of note, using sound medical
rationale.’’ Tr. 175. Dr. Owen further
testified that making such a notation is
‘‘a standard of care, and it’s part of the
documentation guidelines that are
issued across every state for the most
part.’’ Id. Asked if he could think of a
reason why a physician ‘‘would add a
drug for the first time without seeing a
patient,’’ Dr. Owen answered: ‘‘No. Or at
least documenting the medical rationale
and establishing medical necessity.’’ Id.
at 176. Dr. Owen then testified that
Respondent did not take appropriate
steps to establish medical necessity for
the prescription, reiterating his earlier
testimony that Respondent had not
demonstrated that conservative care had
been tried and been unsuccessful, as
well as that there was a ‘‘clinically
meaningful and objective therapeutic
benefit from the previous use of
controlled substances.’’ Id. He again
opined that the prescription was not
issued in the usual course of
professional practice and lacked a
legitimate medical purpose. Id.
Regarding the Roxicodone
prescription, Respondent asserted that
he ‘‘was just doing a two-week trial,
trying to figure out his dose, and at the
time, most likely the patient didn’t have
any punches on his card left, and
Roxicodone is much cheaper than
Percocet, and it’s the same medication.’’
Id. at 355. However, Respondent
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documented none of this in B.B.’s
record. Nor did he explain why he
failed to follow his routine of making an
entry in the Treatment Objective
Evaluation section of the Pain
Management Treatment Plan given that
he had changed B.B.’s medication.
As for why he did not take any action
with regard to the lab’s finding that the
April 12 drug test result was negative
for morphine sulfate, Respondent
asserted that the result was not aberrant.
Id. at 366. In addressing this
prescription, Respondent offered no
further explanation as to why he
deemed the result not aberrant.
However, with respect to the January 19
UDS lab report, which was also negative
for morphine, Respondent asserted that
oxymorphone is a metabolite of
morphine and thus he did not consider
the negative result to be aberrant. Id. at
336. He asserted this notwithstanding
that with respect to other drugs such as
hydrocodone and carisoprodol, the lab
specifically reported when it detected
the presence of metabolites of these
drugs, such as hydromorphone for
hydrocodone and meprobamate for
carisoprodol. Yet, the lab report
contains no notation that oxymorphone
is a metabolite of morphine. Nor did he
testify as to his basis of knowledge for
this claim.
Pursuant to 5 U.S.C. 556(e), I take
official notice that morphine does not
metabolize into oxymorphone. See
Edward J. Cone, et al., Evidence that
Morphine is Metabolized to
Hydromorphone But Not to
Oxymorphone, 32 J. Analytic
Toxicology 319, 323 (2008) (finding,
based on study of urine drug screens
using liquid chromatography-tandem
mass spectrometry conducted on 34
patients taking morphine exclusively for
chronic pain, that while
‘‘hydromorphone was demonstrated to
be a minor metabolite . . . no evidence
was found that oxymorphone is a
metabolite of morphine’’ and ‘‘that a
positive urine test for oxymorphone can
arise only from oxymorphone or
oxycodone administration, and not from
morphine or hydromorphone
administration’’); id. at 319
(characterizing as ‘‘unsubstantiated’’ the
‘‘claim of a new metabolic pathway
leading from morphine to
hydromorphone to oxymorphone’’).33
33 Under the Administrative Procedure Act
(APA), an agency ‘‘may take official notice of facts
at any stage in a proceeding—even in the final
decision.’’ U.S. Dept. of Justice, Attorney General’s
Manual on the Administrative Procedure Act 80
(1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979).
Pursuant to 5 U.S.C. 556(e), ‘‘[w]hen an agency
decision rests on official notice of a material fact
not appearing in the evidence in the record, a party
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The May 9, 2012 Prescriptions
On May 9, 2012, Respondent wrote
B.B. a prescription for 60 Opana ER 20
mg. GX 3, at 93; GX 5, at 27. Respondent
did not require an office visit, and he
made no notations in the progress notes
regarding the prescription. See generally
GX 3; see also Tr. 177–78. Regarding the
prescription, Dr. Owen again testified
that Respondent ‘‘needed to establish
medical necessity for continuation of
controlled substances’’ and ‘‘did not.’’
Id. at 178.
Asked why he refilled the
prescriptions,34 Respondent testified
that ‘‘I got a phone call that he was
wanting his medicines refilled and that
the [R]oxicodone had worked for him
and et cetera, so we were converting
him back into the one-month
prescriptions in the Schedules IIs and
going back to this three-month office
visit.’’ Tr. 356. Respondent offered no
testimony addressing Dr. Owen’s
criticism that he still had not
established that there was a medical
necessity for prescribing controlled
substances, which included the Opana.
See generally id. at 356–57.
Asked to provide his opinion as to
Respondent’s prescribing of controlled
substances from September 2011
through May 9, 2012, Dr. Owen opined
that Respondent did not adequately
review B.B.’s medical history. Id. at 178.
He further opined that a treatment plan
that established medical necessity
‘‘would have logic behind the
treatment’’ and would have
‘‘establish[ed] that conservative care has
not been helpful and that [an] objective
and clinically meaningful therapeutic
benefit from the use of controlled
substances has been established, if
[they] ha[d] previously been used.’’ Id.
Dr. Owen then testified that none of the
is entitled, on timely request, to show the contrary.’’
Accordingly, Respondent may dispute my finding
by filing a properly supported motion for
reconsideration within 20 calendar days of the date
of this Order. Any such motion shall be filed with
the Office of the Administrator and a copy shall be
served on the Government; in the event Respondent
files a motion, the Government shall have 20
calendar days to file a response.
34 In her questioning of Respondent, his counsel
referred to a Roxicodone prescription as having
been issued on May 9, 2012 and in his testimony
regarding the prescriptions he wrote on that date,
Respondent referred to both a Roxicodone
prescription and an Opana ER 20 mg prescription.
Tr. 356. While GX 5 contains a legible copy of the
May 9, 2012 Opana ER prescription, see GX 5, at
27, it does not contain a copy of a Roxicodone
prescription, and as for GX 3, the copy of the
purported Roxicodone prescription is illegible. GX
3, at 93. Because the Government failed to produce
any reliable evidence to show that Respondent
issued a Roxicodone prescription on May 9, 2012,
I do not consider whether any such prescription
was issued, nor whether Respondent complied with
21 CFR 1306.04(a) when he issued it.
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controlled substance prescriptions
Respondent issued to B.B. were issued
in the usual course of professional
practice and for a legitimate medical
purpose. Id. at 178–79.
Respondent’s Evidence in Remediation
Respondent offered only vague
testimony that he has taken ‘‘extreme
CME [continuing medical education]
. . . in hospice care and pain medicine’’
in 1995 and had done some ‘‘reading’’
on pain management. Tr. 235, 381.
Respondent offered no further detail as
to the subject matter of the CME
course[s] he took. See id. As for his
assertions that he had read articles on
pain management and that he kept
current with those articles, he admitted
that he had not ‘‘read anything in a
couple of years’’ and could not recall
any articles he had read on pain
management. Id. at 385–86.
Discussion
Section 303(f) of the Controlled
Substances Act (CSA) provides that
‘‘[t]he Attorney General may deny an
application for [a practitioner’s]
registration . . . if the Attorney General
determines that the issuance of such
registration . . . would be inconsistent
with the public interest.’’ 21 U.S.C.
823(f). With respect to a practitioner, the
Act requires the consideration of the
following factors in making the public
interest determination:
(1) The recommendation of the appropriate
State licensing board or professional
disciplinary authority.
(2) The applicant’s experience in
dispensing . . . controlled substances.
(3) The applicant’s conviction record under
Federal or State laws relating to the
manufacture, distribution, or dispensing of
controlled substances.
(4) Compliance with applicable State,
Federal, or local laws relating to controlled
substances.
(5) Such other conduct which may threaten
the public health and safety.
Id.
‘‘[T]hese factors are . . . considered
in the disjunctive.’’ Robert A. Leslie,
M.D., 68 FR 15227, 15230 (2003). It is
well settled that I ‘‘may rely on any one
or a combination of factors, and may
give each factor the weight [I] deem[ ]
appropriate in determining whether a
registration should be revoked.’’ Id.; see
also MacKay v. DEA, 664 F.3d 808, 816
(10th Cir. 2011); Volkman v. DEA, 567
F.3d 215, 222 (6th Cir. 2009); Hoxie v.
DEA, 419 F.3d 477, 482 (6th Cir. 2005).
Moreover, while I am required to
consider each of the factors, I ‘‘need not
make explicit findings as to each one.’’
MacKay, 664 F.3d at 816 (quoting
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Volkman, 567 F.3d at 222 (quoting
Hoxie, 419 F.3d at 482)).35
The Government has the burden of
proving, by a preponderance of the
evidence, that the requirements for
denial of an application pursuant to 21
U.S.C. 823(f) are met. 21 CFR
1301.44(d). However, once the
Government has made a prima facie
showing that issuing a new registration
to the applicant would be inconsistent
with the public interest, an applicant
must then present sufficient mitigating
evidence to show why he can be
entrusted with a new registration.
Medicine Shoppe-Jonesborough, 73 FR
364, 387 (2008) (citing cases)); see also
MacKay, 664 F.3d at 817.
Having considered all of the factors, I
find that the Government’s evidence
with respect to Factors Two and Four
satisfies its prima facie burden of
showing that granting Respondent’s
application would be inconsistent with
the public interest.36 I further find that
35 In short, this 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; what matters is the seriousness
of the registrant’s misconduct. Jayam Krishna-Iyer,
74 FR 459, 462 (2009). Accordingly, as the Tenth
Circuit has recognized, findings under a single
factor can support the revocation of a registration
or the denial of an application. MacKay, 664 F.3d
at 821.
36 As to factor one, while the Oklahoma Board has
taken disciplinary action against Respondent for
conduct related to his prescribing to B.B., the Board
has not made a recommendation to the Agency with
respect to whether his application should be
granted. To be sure, as a result of the Board’s
restoration of his medical license without
restriction of his controlled substance prescribing
authority under Oklahoma law, Respondent
satisfies the CSA’s prerequisite for obtaining a new
practitioner’s registration. See 21 U.S.C. 823(f)(1);
see also id.§ 802(21). (defining ‘‘the term
‘practitioner’ [to] mean[ ] a . . . physician . . . or
other person licensed, registered or otherwise
permitted, by . . . the jurisdiction in which he
practices . . . to distribute, dispense, [or]
administer . . . a controlled substance in the course
of professional practice’’). However, the restoration
of Respondent’s state authority is not dispositive of
the public interest inquiry. See Mortimer Levin, 57
FR 8680, 8681 (1992) (‘‘[T]he Controlled Substances
Act requires that the Administrator . . . make an
independent determination [from that made by state
officials] as to whether the granting of controlled
substance privileges would be in the public
interest.’’).
To be sure, the Agency’s case law contains some
older decisions which can be read as giving more
than nominal weight in the public interest
determination to a State Board’s decision (not
involving a recommendation to DEA) either
restoring or maintaining a practitioner’s state
authority to dispense controlled substances. See,
e.g., Gregory D. Owens, 67 FR 50461, 50463 (2002)
(expressing agreement with ALJ’s conclusion that
the board’s placing dentist on probation instead of
suspending or limiting his controlled substance
authority ‘‘reflects favorably upon [his] retaining his
. . . [r]egistration, and upon DEA’s granting of [his]
pending renewal application’’); Vincent J. Scolaro,
67 FR 42060, 42065 (2002) (concurring with ALJ’s
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Respondent has failed to produce
sufficient evidence to rebut the
Government’s prima facie case.
Factors Two and Four—Respondent’s
Experience in Dispensing Controlled
Substances and Record of Compliance
With Applicable Controlled Substance
Laws
Under a longstanding DEA regulation,
a prescription for a controlled substance
is not ‘‘effective’’ unless it is ‘‘issued for
a legitimate medical purpose by an
individual practitioner acting in the
usual course of his professional
practice.’’ 21 CFR 1306.04(a). Under the
CSA, it is fundamental that a
practitioner must establish a bonafide
doctor-patient relationship in order to
act ‘‘in the usual course of . . .
professional practice’’ and to issue a
prescription for a ‘‘legitimate medical
purpose.’’ See United States v. Moore,
423 U.S. 122, 142–43 (1975); United
States v. Lovern, 590 F.3d 1095, 1100–
01 (10th Cir. 2009); United States v.
Smith, 573 F.3d 639, 657 (8th Cir. 2009);
see also 21 CFR 1306.04(a) (‘‘an order
purporting to be a prescription issued
not in the usual course of professional
treatment . . . is not a prescription
within the meaning and intent of [21
‘‘conclusion that’’ state board’s reinstatement of
medical license ‘‘with restrictions’’ established that
‘‘[b]oard implicitly agrees that the [r]espondent is
ready to maintain a DEA registration upon the terms
set forth in’’ its order).
Of note, these cases cannot be squared with the
Agency’s longstanding holding that ‘‘[t]he
Controlled Substances Act requires that the
Administrator . . . make an independent
determination [from that made by state officials] as
to whether the granting of controlled substance
privileges would be in the public interest.’’ Levin,
57 FR at 8681. Indeed, neither of these cases even
acknowledged the existence of Levin, let alone
attempted to reconcile the weight it gave the state
board’s action with Levin. While in other cases, the
Agency has given some weight to a Board’s action
in allowing a practitioner to retain his state
authority even in the absence of an express
recommendation, see Tyson Quy, 78 FR 47412,
47417 (2013), the Agency has repeatedly held that
a practitioner’s retention of his/her state authority
is not dispositive of the public interest inquiry. See,
e.g., Paul Weir Battershell, 76 FR 44359, 44366
(2011) (citing Edmund Chein, 72 FR 6580, 6590
(2007), pet. for rev. denied, Chein v. DEA, 533 F.3d
828 (D.C. Cir. 2008)).
As to factor three, I acknowledge that there is no
evidence that Respondent has been convicted of an
offense under either federal or Oklahoma law
‘‘relating to the manufacture, distribution or
dispensing of controlled substances.’’ 21 U.S.C.
823(f)(3). However, there are a number of reasons
why even a person who has engaged in criminal
misconduct may never have been convicted of an
offense under this factor, let alone prosecuted for
one. Dewey C. MacKay, 75 FR 49956, 49973 (2010),
pet. for rev. denied, MacKay v. DEA, 664 F.3d at
822. The Agency has therefore held that ‘‘the
absence of such a conviction is of considerably less
consequence in the public interest inquiry’’ and is
therefore not dispositive. Id.
While I have considered factor five, I deem it
unnecessary to make any findings.
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U.S.C. 829] and . . . the person issuing
it, shall be subject to the penalties
provided for violations of the provisions
of law related to controlled
substances’’).
As the Supreme Court has explained,
‘‘the prescription requirement . . .
ensures patients use controlled
substances under the supervision of a
doctor so as to prevent addiction and
recreational abuse. As a corollary, [it]
also bars doctors from peddling to
patients who crave the drugs for those
prohibited uses.’’ Gonzales v. Oregon,
546 U.S. 243, 274 (2006) (citing Moore,
423 U.S. 122, 135, 143 (1975)).
Both this Agency and the federal
courts have held that ‘‘establishing a
violation of the prescription
requirement ‘requires proof that the
practitioner’s conduct went ‘‘beyond the
bounds of any legitimate medical
practice, including that which would
constitute civil negligence.’’ ’ ’’ Laurence
T. McKinney, 73 FR 43260, 43266 (2008)
(quoting United States v. McIver, 470
F.3d 550, 559 (4th Cir. 2006)). See also
United States v. Feingold, 454 F.3d
1001, 1010 (9th Cir. 2006) (‘‘[T]he Moore
Court based its decision not merely on
the fact that the doctor had committed
malpractice, or even intentional
malpractice, but rather on the fact that
his actions completely betrayed any
semblance of legitimate medical
treatment.’’); Jack A. Danton, 76 FR
60900, 60904 (2011) (finding violations
of 21 CFR 1306.04(a), in the absence of
expert testimony, ‘‘where a physician
has utterly failed to comply with
multiple requirements of state law for
evaluating her patients and determining
whether controlled substances are
medically indicated and thus has
‘ ‘‘completely betrayed any semblance of
legitimate medical treatment’’ ’ ’’)
(quoting McKinney, 73 FR at 43266
(quoting Feingold, 454 F.3d at 1010)).
However, as the Agency has held in
multiple cases, ‘‘the Agency’s authority
to deny an application [and] to revoke
an existing registration . . . is not
limited to those instances in which a
practitioner intentionally diverts a
controlled substance.’’ Bienvenido Tan,
76 FR 17673, 17689 (2011) (citing Paul
J. Caragine, Jr., 63 FR 51592, 51601
(1998)); see also Dewey C. MacKay, 75
FR at 49974. As Caragine explained:
‘‘[j]ust because misconduct is
unintentional, innocent, or devoid of
improper motive, [it] does not preclude
revocation or denial. Careless or
negligent handling of controlled
substances creates the opportunity for
diversion and [can] justify’’ the
revocation of an existing registration or
the denial of an application for a
registration. 63 FR at 51601.
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‘‘Accordingly, under the public
interest standard, DEA has authority to
consider those prescribing practices of a
physician, which, while not rising to the
level of intentional or knowing
misconduct, nonetheless create a
substantial risk of diversion.’’ MacKay,
75 FR at 49974; see also Patrick K.
Chau, 77 FR 36003, 36007 (2012).
Likewise, ‘‘[a] practitioner who ignores
the warning signs that [his] patients are
either personally abusing or diverting
controlled substances commits ‘acts
inconsistent with the public interest,’ 21
U.S.C. 824(a)(4), even if [he] is merely
¨
gullible or naıve.’’ Jayam Krishna-Iyer,
74 FR 459, 460 n.3 (2009); see also
Chau, 77 FR at 36007 (holding that even
if physician ‘‘did not intentionally
divert controlled substances,’’ State
Board Order ‘‘identified numerous
instances in which [physician]
recklessly prescribed controlled
substances to persons who were likely
engaged in either self-abuse or
diversion’’ and that physician’s
‘‘repeated failure to obtain medical
records for his patients, as well as to
otherwise verify their treatment
histories and other claims, created a
substantial risk of diversion and abuse’’)
(citing MacKay, 75 FR at 49974).
In March 2005, the Oklahoma Board
of Medical Licensure and Supervision
issued its Policy Statement on the ‘‘Use
of Controlled Substances for the
Treatment of Pain.’’ Okla. Bd. of Med.
Lic. & Super., Use of Controlled
Substances for the Treatment of Pain
(Mar. 10, 2005) (hereinafter, Policy
Statement). Therein, the Board
explained that it:
will refer to current clinical practice
guidelines and expert review in approaching
cases involving management of pain. The
medical management of pain should consider
current clinical knowledge and scientific
research and the use of pharmacological and
non-pharmacological modalities according to
the judgment of the physician. Pain should
be assessed and treated promptly and the
quantity and frequency of doses should be
adjusted according to the intensity, duration
of the pain and treatment outcomes.
. . . .
. . . The Board will consider prescribing,
ordering, dispensing or administering
controlled substances for pain to be for a
legitimate medical purpose if based on sound
clinical judgment. All such prescribing must
be based on clear documentation of
unrelieved pain. To be within the usual
course of professional practice, a physicianpatient relationship must exist and the
prescribing should be based on a diagnosis
and documentation of unrelieved pain.
Compliance with applicable state and/or
federal law is required.
The Board will judge the validity of the
physician’s treatment of the patient based on
available documentation, rather than solely
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on the quantity and duration of medication
administration. The goal is to control the
patient’s pain while effectively addressing
other aspect of the patient’s functioning,
including physical, psychological, social and
work-related factors.37
Id. at 1–2.
Simultaneously with the issuance of
its Policy Statement, the Board
promulgated its regulation on the ‘‘[u]se
of controlled substances for the
management of chronic pain.’’ Okla.
Admin. Code § 435:10–7–11. As the
Board explained, its purpose was to
adopt ‘‘criteria’’ to be used ‘‘when
evaluating [a] physician’s treatment of
pain, including the use of controlled
substances.’’ Id. The regulation thus sets
forth criteria for the ‘‘[e]valuation of the
patient,’’ the ‘‘[t]reatment plan,’’
‘‘[i]nformed consent and agreement for
treatment,’’ ‘‘[p]eriodic review,’’
‘‘[c]onsultation,’’ and ‘‘[m]edical
records.’’ Id.
With respect to the evaluation of the
patient, the Rule states:
A medical history and physical
examination must be obtained, evaluated and
documented in the medical record. The
medical record should document the nature
and intensity of the pain, current and past
treatments for pain, underlying or coexisting
diseases or conditions, the effect of the pain
on physical and psychological function and
history of substance abuse. The medical
record also should document the presence of
one or more recognized medical indications
for the use of a controlled substance.
Id. § 435:10–7–11(1). As for the
treatment plan, the Rule provides:
The written treatment plan should state
objectives that will be used to determine
treatment success, such as pain relief and
improved physical and psychosocial
function, and should indicate if any further
diagnostic evaluations or other treatments are
planned. After treatment begins, the
physician should adjust drug therapy to the
individual medical needs of each patient.
Other treatment modalities or a rehabilitation
program may be necessary depending on the
etiology of the pain and the extent to which
the pain is associated with physical and
psychosocial impairment.
Id. § 435:10–7–11(2).
After providing the criteria for
informed consent and agreement for
treatment, which states, inter alia, that
37 See also Policy Statement, at 2 (‘‘Allegations of
inappropriate pain management will be evaluated
on an individual basis. The Board will not take
disciplinary action against a physician for deviating
from this policy when contemporaneous medical
records document reasonable cause for deviation.
The physician’s conduct will be evaluated to a great
extent by the outcome of pain treatment,
recognizing that some types of pain cannot be
completely relieved, and by taking into account
whether the drug used is appropriate for the
diagnosis, as well as improvement in patient
functioning and/or quality of life.’’).
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‘‘[t]he physician should discuss the
risks and benefits of the use of
controlled substances with the patient,’’
id. § 435:10–7–11(3), the Rule sets forth
the criteria for the periodic review. The
Rule states:
The physician should periodically review
the course of pain treatment and any new
information about the etiology of the pain or
the patient’s state of health. Continuation or
modification of controlled substances for
pain management therapy depends on the
physician’s evaluation of progress toward
treatment objectives. Satisfactory response to
treatment may be indicated by the patient’s
decreased pain, increased level of function or
improved quality of life. Objective evidence
of improved or diminished function should
be monitored and information from family
members or other caregivers should be
considered in determining the patient’s
response to treatment. If the patient’s
progress is unsatisfactory, the physician
should assess the appropriateness of
continued uses of the current treatment plan
and consider the use of other therapeutic
modalities.
Id. § 435:10–7–11(4).
With respect to consultation, the Rule
provides:
The physician should be willing to refer
the patient, as necessary, for additional
evaluation and treatment in order to achieve
treatment objectives. Special attention should
be given to those patients with pain who are
at risk for medication misuse, abuse or
diversion. The management of pain in
patients with a history of substance abuse or
with a comorbid psychiatric disorder may
require extra care, monitoring,
documentation and consultations with or
referral to an expert in the management of
such patients.
Id. § 435:10–7–11(5).
And finally, with respect to medical
records, the Rule states in relevant part
that ‘‘[r]ecords should remain current’’
and that ‘‘[t]he physician should keep
accurate and complete records.’’ Id.
§ 435:10–7–11(6). The records are ‘‘to
include . . . the medical history and
physical examination,’’ ‘‘diagnostic,
therapeutic and laboratory results,’’
‘‘evaluations, consultations and followup evaluations,’’ ‘‘treatment objectives,’’
‘‘discussion of risks and benefits,’’
‘‘informed consent,’’ ‘‘treatments,’’
‘‘medications (included date, type,
dosage and quantity prescribed),’’
‘‘instructions and agreements and
periodic reviews.’’ Id.
The CALJ rejected the bulk of the
Government’s case, finding the
allegations proven only ‘‘in part’’ and
only with respect to the prescriptions
Respondent issued on October 6 and 20,
2011 (prescribing events 3 and 4), April
12 and 25, and May 9, 2012 (prescribing
events 10, 11, and 12). Even then,
however, the CALJ reasoned that ‘‘[t]he
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errant prescribing events established by
the record reveal inattention to detail,
not intentional diversion,’’ R.D. at 82,
only to subsequently conclude that
‘‘Respondent violated his responsibility
. . . to ensure that he only prescribed
controlled substances for a legitimate
medical purpose in the course of
professional practice.’’ Id. at 90 (citing
21 CFR 1306.04(a)); see also id.
(‘‘[T]hese prescribing events violated
Oklahoma medical regulations, fell
below the prevailing medical practice
standard in Oklahoma, and did not fall
within the state and federal definitions
of the usual course of a professional
practice.’’ (citing Policy Statement, at 2;
21 CFR 1306.04(a))).
I conclude, however, that the
Government has proved additional
violations of 21 CFR 1306.04(a) beyond
those found by the CALJ, and I further
conclude that the evidence does not
simply reflect ‘‘inattention to detail’’ on
Respondent’s part—a finding which is
legally insufficient to support the
conclusion that he violated 21 CFR
1306.04(a)—but rather, that he
knowingly diverted drugs to B.B. I am
mindful of the various credibility
findings made by the CALJ, particularly
with respect to the testimony of
Respondent, as well as his finding that
‘‘Dr. Owen’s expert testimony
predictably raised no issues regarding
credibility’’ but that his ‘‘testimony was
not without its own ‘red flags.’ ’’ R.D. 18.
For reasons explained earlier, I
respectfully disagree with the CALJ’s
reasons for declining to give weight to
much of Dr. Owen’s testimony,
including his conclusion that Dr.
Owen’s testimony was based upon a
misunderstanding of the nature of the
Oklahoma Board’s Pain Management
Regulations. And to the extent the CALJ
declined to consider the evidence of
various UDS results with respect to the
specific prescribing events on the
ground that the Government did not
provide adequate notice, as explained
above, I conclude that Respondent had
constitutionally sufficient notice and
understood that the UDS results were at
issue throughout the proceeding.
The September 22, 2011 Prescriptions
The CALJ rejected the Government’s
allegation that the Duragesic and Opana
prescriptions issued by Respondent on
this date violated 21 CFR 1306.04(a)
because they were issued outside of the
usual course of professional practice
and lacked a legitimate medical
purpose.38 As found above, Dr. Owen
38 The CALJ asserted that in the Show Cause
Order and its Prehearing Statement, ‘‘the
Government noticed a theory based in the issuance
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testified that because this was B.B.’s
first visit with Respondent and
Respondent was taking over his care,
Respondent should have ‘‘do[ne] a
proper history and physical exam,’’
reviewed the ‘‘previous treatments’’ and
done ‘‘everything that typically is
expected for a new patient evaluation.’’
Tr. 131. Dr. Owen testified that
Respondent performed ‘‘a superficial
of prescriptions outside the course of a professional
practice under 21 CFR 1306.04(a), not that any
prescriptions were not issued for a legitimate
medical purpose.’’ R.D. 87–88. While then noting
that ‘‘the Government did sporadically elicit
testimony from its expert in this regard ([citing] Tr.
93, 123, 133–34, 137–38, 140, 144, 148, 155–56,
158, 174, 176, 179) and did espouse this theory in
its closing brief,’’ the CALJ again asserted that this
theory was unavailable to the Government because
it raised the issue for the first time in its posthearing brief. Id. at 88 n.150 (citing Fred Samimi,
79 FR 18698, 18713 (2014)).
I decline to adopt this ruling for multiple reasons.
First, as several federal appeals courts have
recognized, there is no material difference between
the phrases ‘‘usual course of professional practice’’
and ‘‘legitimate medical purpose,’’ and thus the
courts have sustained convictions for violating the
regulation and 21 U.S.C. 841(a)(1), notwithstanding
that an indictment charged the defendant ‘‘with
dispensing of a controlled substance not in the
usual course of professional practice’’ but did not
allege that the dispensing lacked a legitimate
medical purpose, as well as where the jury
instructions only referenced the ‘‘usual course of
professional practice’’ and did not require the jury
to find that the defendant ‘‘dispensed without a
legitimate medical purpose.’’ See United States v.
Fuchs, 467 F.3d 889, 898–901 (5th Cir. 2006)
(noting earlier decision that ‘‘appears to use the
phrases . . . interchangeably’’).
Likewise, in United States v. Nelson, 383 F.3d
1227, 1230–31 (10th Cir. 2004), the Tenth Circuit
found no error in a jury instruction which provided
that a physician could be convicted of conspiracy
under 21 U.S.C. 846, ‘‘if it found the prescriptions
were either without a legitimate purpose or outside
the course of professional practice.’’ As the Tenth
Circuit explained, ‘‘[i]t is difficult to imagine
circumstances in which a practitioner could have
prescribed controlled substances within the usual
course of medical practice but without a legitimate
medical purpose. Similarly, it is difficult to imagine
circumstances in which a practitioner could have
prescribed controlled substances with a legitimate
medical purpose and yet be outside the usual
course of medical practice.’’ Id. at 1231. See also
United States v. Kirk, 584 F.2d, 773, 784 (6th Cir.
1978) (‘‘[T]here is no difference in the meanings of
the . . . phrase, ‘[i]n the usual course of
professional practice’ and the . . . phrase,
‘legitimate medical purpose.’ ’’) (citing United
States v. Plesons, 560 F.2d 890, 897 (8th Cir. 1977)
and United States v. Rosenberg, 515 F.2d 190, 197
(9th Cir. 1975)).
Furthermore, even if these were two distinct
theories for proving a violation of 21 CFR
1306.04(a), the record supports a finding of
litigation by consent. The Government did not
‘‘sporadically elicit testimony from its expert’’ on
this issue, but rather, asked Dr. Owen whether each
of the prescriptions lacked a legitimate medical
purpose. Respondent did not object to any of these
questions, and thus, it is clear that unlike the issue
in Samimi, which was raised for the first time by
the Government in its post-hearing brief, Dr.
Owen’s testimony that each of the prescriptions
lacked a legitimate medical purpose was not
directed at an incidental issue, but rather went to
the heart of the Government’s case.
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evaluation that’’ did not ‘‘adequately
explain the chief complaint or what
previous treatments have or have not
been done.’’ Id. at 133.
Dr. Owen further noted that
Respondent documented that B.B. had a
negative straight leg raise and that this
is ‘‘the most sensitive physical finding
for low back pain.’’ Id. at 190. He then
explained that ‘‘a sensitive test means
that if you don’t have a positive finding
you don’t have that diagnosis.’’ Id. Dr.
Owen also testified that there was ‘‘no
evaluation of pain or function, physical
or psychosocial in the documentation’’
and ‘‘no evidence of a previous
therapeutic benefit’’ from the use of
controlled substances,’’ nor ‘‘proof that
[B.B. had] exhausted conservative care
before going [to the] high-risk
treatment[ ]’’ of ‘‘prescribing controlled
substances.’’ Id. at 134. Dr. Owen thus
concluded that because ‘‘[t]here’s no
medical rationale for continuing with an
ineffective treatment . . . there’s no
justification to continue’’ to prescribe
controlled substances. Id. at 133.
Dr. Owen further testified that
Respondent’s patient file contained two
aberrant drug tests, the June 1, 2011 test,
which did not detect alprazolam even
though B.B. was obtaining the drug
every 30 days, and the August 25, 2011
test, which detected the presence of
nordiazepam, oxazepam, and
temazepam, which the lab reported as
not expected based on the prescribed
medications. Dr. Owen testified that
Respondent ‘‘completely ignored’’ the
aberrant drug screens and that he
‘‘should have acknowledged their
existence and . . . taken some type of
corrective action.’’ Id. at 132. Dr. Owen
then suggested that Respondent could
have sent B.B. for an evaluation by an
addictionologist or mental health
professional (either a psychiatrist or
psychologist) with experience in
addiction medicine. Id. at 134. And he
further testified that the patient file did
not reflect that Respondent had
discussed B.B. with either his current
(such as the providers who were writing
alprazolam prescriptions) or past
prescribers (such as Dr. Schoelen). Id. at
132. Dr. Owen also noted that
Respondent did not appear to have
taken any safeguards against the
potential for abuse or diversion. Id.
The CALJ found uncontroverted Dr.
Owen’s testimony that B.B. was a new
patient and thus, Respondent was
required to have done everything
typically expected of a physician in the
evaluation of a new patient, including a
proper history and physical, reviewing
previous treatments, and reviewing his
patient file. R.D. at 33–34. The CALJ
further found uncontroverted Dr.
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Owen’s testimony that Respondent
ignored the June 1 aberrant drug screen,
that there was no evidence Respondent
discussed B.B. with either his current or
past prescribers, and that Respondent
took no precautions against the
potential for abuse or diversion. Id. at
34.
As for the aberrant drug tests, the
CALJ asserted that ‘‘there is little doubt
that the June 1 UDS is aberrant to the
extent it shows that B.B. was not taking
his alprazolam,’’ and that Dr. Owen’s
testimony that ‘‘failing to act on this
aberrant UDS fell below the prevailing
standard . . . stands unrebutted [on] the
record.’’ Id. at 38. The CALJ, however,
declined to consider this evidence,
reasoning that it was not properly
noticed by the Government in its
pleadings with respect to this
prescribing event. Id. at 38–39. For
reasons explained previously, I disagree
and find that Respondent had fair notice
that the June 1 aberrant UDS was at
issue throughout the proceeding.
Accordingly, I find that the June 1
drug test was aberrant and that
Respondent breached the standard of
care when he failed to address the test
with B.B. prior to issuing the September
22, 2011 prescriptions. The CALJ,
however, also rejected the Government’s
contention that the drug test of August
25, 2011, which showed the presence of
nordiazepam, oxazepam and temazepam
when these drugs had not been
prescribed to B.B. by either Dr. Schoelen
or his mental health professional, was
also aberrant and not properly
considered and addressed by
Respondent prior to prescribing to B.B.
R.D. at 38. While Respondent testified
that he did not remember if he reviewed
this UDS prior to the September 22 visit
or at any point, Tr. 397, in the visit note,
Respondent stated that B.B.’s ‘‘[p]ast
medical history was extensively
reviewed.’’ GX 3, at 48. Moreover, Dr.
Owen credibly testified as to the need
to obtain ‘‘all . . . previous medical
records pertaining to [the] chief
complaint’’ and review them to
determine what previous treatments had
been tried and their results, as well as
‘‘to look for any previous aberrant
behaviors.’’ Tr. 94. And Dr. Owen
further explained that ‘‘if you don’t look
at all the pertinent previous medical
records, you can’t get an accurate
diagnosis.’’ Id. at 117. This testimony is
unrefuted.
In rejecting the Government’s
contention that the August 25 test was
aberrant, the CALJ did not make a
credibility finding as to Respondent’s
testimony that he did not remember
whether he reviewed the UDS at the
time he was treating B.B. Nor did he
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make an explicit finding as to whether
Respondent reviewed the UDS.
Instead, the CALJ reasoned that
‘‘Respondent credibly testified that,
based on his professional opinion and
his conversations with personnel at the
testing lab, a patient taking any
benzodiazepine may test positive for
any other benzodiazepine[,] [and] [t]hus,
the Respondent did not, and does not
view the August 25 UDS as anomalous.’’
R.D. at 38 (emphasis added). After
faulting the Government because it did
not recall Dr. Owen ‘‘to rebut
Respondent’s understanding about the
limitations of the GC/MS,’’ the ALJ
explained that ‘‘[t]here was nothing
patently incredible about the
Respondent’s recollection of his
conversations with the UDS lab about
the limits of its testing.’’ Id.
However, if, in fact, Respondent did
not review the UDSs prior to prescribing
(notwithstanding the notation that he
‘‘extensively reviewed’’ B.B.’s medical
history), Dr. Owen’s unrefuted
testimony establishes that Respondent
committed a gross breach of the
standard of care in failing to do so. Of
note, Respondent testified that Dr.
Schoelen had instituted urine drug
testing as a ‘‘safeguard’’ after Dr.
Schoelen joined the American Academy
of Pain Management and attended
training, and that a drug test was done
‘‘every three months’’ on the clinic’s
‘‘chronic pain patients.’’ Tr. 253–55.
Thus, Respondent clearly knew that
B.B. had been subjected to drug testing.
Moreover, if it is the case that
Respondent did not review the August
25 drug test, then it is clear that
Respondent’s testimony as to what he
was told by the lab was not offered to
show his state of mind in failing to
address the aberrant test result. Rather,
it was offered to prove the truth of the
matter asserted—that because of crossreactions, ‘‘a patient taking any
benzodiazepine may test positive for
any other benzodiazepine.’’
Thus, Respondent’s testimony was
hearsay which was uncorroborated by
either the testimony of a lab employee,
an expert in drug testing, or articles
from scientific or medical journals. The
CALJ did not, however, analyze the
reliability of the hearsay statements
recounted by Respondent.39 See R.D. at
37–40.
39 In multiple decisions, the Agency has made
clear that the reliability of a hearsay statement
should be evaluated by reference to the decisional
law of the courts of appeals that would have
jurisdiction over a subsequent petition for review;
this includes the D.C. Circuit and the Tenth Circuit.
As the D.C. Circuit has explained, ‘‘hearsay may
constitute substantial evidence depending upon its
probative value and reliability, considering inter
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Notably, in his Response to the
Government’s Exceptions, Respondent
does not maintain that this testimony
was offered for the non-hearsay purpose
of showing Respondent’s state of mind
when he failed to address the August 25
drug test with B.B. Response to
Exceptions, at 4–6. Indeed, in his brief,
Respondent argues only that ‘‘there is
no evidence that the written test results
provided by . . . the drug testing
company . . . are unreliable and
inadmissible or that the results
themselves are unreliable.’’ Id. at 5.
However, neither the August 25 nor the
January 19, 2012 lab reports—each of
which detected the presence of
nordiazepam, oxazepam, and
temazepam in addition to the metabolite
of alprazolam—contain any statements
to the effect that because of crossreactions, taking alprazolam could
result in a positive finding for the other
three drugs. And as for Respondent’s
contention that there is no evidence that
the test results are unreliable, that is the
very point made by the Government. Id.
Moreover, even were I to consider
Respondent’s testimony on the issue of
his state of mind—which would seem to
require a finding that he did see the lab
alia, possible bias of the declarant, whether [the]
statements are signed and sworn to, whether they
are contradicted by direct testimony, whether the
declarant is available, and whether the hearsay is
corroborated.’’ Hoska v. Department of the Army,
677 F.2d 131, 138 (D.C. Cir. 1982) (quoted in
Mireille Lalanne, 78 FR 47750, 47752 (2013)). By
contrast, the Tenth Circuit does not appear to have
set forth a set of factors for evaluating the reliability
of hearsay in administrative proceedings. See Roach
v. NTSB, 804 F.2d 1147, 1160 (10th Cir. 1986); Cf.
Bennett v. NTSB, 66 F.3d 1130, 1137 (10th Cir.
1995) (declining to decide if uncorroborated
hearsay can constitute substantial evidence in
administrative proceeding ‘‘given the existence of
ample corroborative evidence-both nonhearsay and
hearsay exceptions’’); Sorenson v. NTSB, 684 F.2d
683, 686 (10th Cir. 1982) (declining to decide
‘‘whether uncorroborated hearsay can constitute
substantial evidence in administrative
proceedings’’).
Applying the Hoska factors, I conclude that the
statement is not entitled to weight. Even assuming
that the lab employee who made the statement was
not biased, the statement was neither signed nor
sworn to, Respondent did not identify the employee
by name, and Respondent did not disclose that he
intended to testify to the lab’s statement in advance
of the hearing notwithstanding that the CALJ’s
Order for Prehearing Statements directed that
Respondent was ‘‘to indicate clearly each and every
matter as to which he intends to introduce evidence
in opposition’’ and the summary of each witness’
testimony was ‘‘to state what the testimony will
be.’’ ALJ Ex. 4, at 2. Moreover, that Order then
stated ‘‘that testimony not disclosed in the
prehearing statement or pursuant to subsequent
rulings is likely to be excluded at the hearing.’’ Id.
Given that Respondent did not disclose this
testimony in advance of the hearing, I find that the
declarant was not available. Moreover, as explained
above, Respondent offered no other evidence to
corroborate the lab’s statement and the statement
was contradicted in part by Respondent’s testimony
regarding the temazepam positive on the January 19
drug test.
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report—as ultimate factfinder, I would
not give it weight. While the Agency
must accord some deference to an ALJ’s
findings on credibility issues where an
ALJ observes the demeanor of the
witness, ‘‘[t]he findings of the [ALJ] are
to be considered along with the
consistency and inherent probability of
[the] testimony.’’ Universal Camera
Corp. v. NLRB, 340 U.S. 474, 496 (1951).
Of consequence, B.B.’s January 19,
2012 drug test also detected the
presence (in addition to that of alphahydroxyalprazolam, the metabolite of
alprazolam) of nordiazepam, oxazepam,
and temazepam. GX 3, at 97. Yet on this
occasion, Respondent noted on the Lab
Report that he had ‘‘counseled [B.B.] to
only take what is prescribed.’’ GX 3, at
97. And in his testimony regarding the
January 19 drug test results, Respondent
stated that he made the notation because
‘‘[t]he nordiazepam, the oxazepam, and
then the Xanax, the lab always said that
if . . . Xanax [alprazolam] was positive,
that they could all three be positive. The
temazepam, in our practice usually
didn’t show up, and temazepam is [a]
sleeping pill called Restoril.’’ Tr. 335;
see also GX 3, at 105 (lab report of Dec.
7, 2010 in B.B.’s file reporting presence
of alpha-hydroxyalprazolam but no
other benzodiazepines even though the
drugs screened for included diazepam,
oxazepam, and temazepam).
Respondent offered no explanation for
the inconsistency between his testimony
regarding why he ‘‘would not consider’’
the August 25 drug test to be aberrant
and his testimony as to why he deemed
the January 19 drug test as aberrant,
even though both tests reported the
presence of the same four
benzodiazepines, and in particular,
temazepam. Most significantly, the
CALJ did not address the inconsistency
between Respondent’s testimony
regarding the August 25 and January 19
drug tests in making his credibility
finding. See R.D. at 38.
I conclude, however, that for the same
reason that Respondent deemed the
January 19 test to be aberrant, I reject his
testimony that he does not believe the
August 25 test was aberrant and find
that it was. I further find that this was
now the second aberrant drug test that
B.B. had provided in the previous four
months.
I am also unpersuaded by the CALJ’s
reasoning for rejecting Dr. Owen’s
testimony as to the adequacy of
Respondent’s evaluation of B.B. The
CALJ reasoned that the deficiencies
identified by Dr. Owen ‘‘generally relate
to a paucity of documented proof in the
chart entries’’ as to whether Respondent
had adequately evaluated B.B.’s chief
complaint, the treatments he had
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previously undergone, his physical and
psychosocial function, and whether the
prescribing of controlled substances
provided a therapeutic benefit. R.D. at
35–36. As explained above, the CALJ
declined to give weight to Dr. Owen’s
testimony based on the erroneous legal
conclusion that the Board’s
documentation and recordkeeping
standards are permissive and not
mandatory. The CALJ apparently
credited Respondent’s testimony in
finding that ‘‘B.B. reported pain, which
was consistent with the findings of the
exam the Respondent conducted on that
date.’’ Id. at 37. The CALJ also gave
weight to Respondent’s decision to
change B.B’s medications from Lortab, a
short-acting medication which Dr.
Schoelen had prescribed, to Duragesic
(fentanyl) patches, which are longacting, because in his view, short-acting
medications are too addicting. Id. And
the CALJ also reasoned that Respondent
‘‘explained that he did not have B.B.
undergo physical therapy because that
approach had been tried without
success . . . in the past.’’ Id. at 38
(citing Tr. 392).
As to Respondent’s claim that B.B.
had undergone physical therapy for
some time, Respondent admitted that
this was not documented in the patient
file. Tr. 392. Indeed, a review of the
progress notes prepared by Dr. Schoelen
finds no mention of B.B.’s having been
referred to physical therapy, but rather,
mentions only Dr. Schoelen’s
recommendations of such modalities as
gentle stretching, low back
strengthening exercises, heat, and low
back range of motion exercises. See GX
3, at 51–54, 56, 59. Likewise, B.B.’s file
does not contain either a copy of any
referral or prescription for physical
therapy, or a copy of any physical
therapist’s notes. Indeed, while
Respondent cited to the Patient History
Form in B.B’s file (GX 3, at 34) and
testified that ‘‘[i]t says that under pain
management, that he was in therapy
every month on his past medical
history,’’ Tr. 392, that form does not
even use the words ‘‘pain management.’’
See GX 3, at 34. Instead, the form
contains a column with the heading of
‘‘Chronic Problems,’’ under which the
entries state: ‘‘Depression,’’ ‘‘Anxiety’’
and then ‘‘Therapy every month.’’ Id.
Patients in physical therapy, however,
typically receive treatment several times
a week and not ‘‘every month.’’ Cf.
United States v. Armstrong, 550 F.3d
382, 389 (5th Cir. 2008) (explaining that
‘‘[j]urors have had a wide variety of
their own experiences in doctors’ care
over their lives,’’ and can rely on those
experiences when assessing evidence as
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to whether a physician lawfully
prescribed controlled substances). And
as noted previously, other evidence of
record establishes that B.B. was seeing
a psychiatrist and receiving alprazolam
prescriptions on a monthly basis.
Accordingly, I do not find credible
Respondent’s testimony that he did not
have B.B. go to physical therapy because
B.B. ‘‘had been on physical therapy
monthly for quite some time and didn’t
feel that it was of any benefit at all.’’ Tr.
392. Here too, because Respondent’s
testimony is inconsistent with the
evidence (and lack thereof), I decline to
adopt the CALJ’s apparent credibility
finding as to this testimony. I further
agree with Dr. Owen’s assessment that
Respondent failed to properly assess
whether B.B. had undergone
conservative treatments.
As explained above, Dr. Owen also
provided extensive testimony as to the
standard of care for evaluating the
history of a patient’s pain complaint and
the effect of the pain on a patient’s
physical and psychosocial functioning.
Tr. 116. In his testimony, Dr. Owen
identified various questions that
Respondent should have asked B.B. and
for which Respondent’s September 22
visit note contains no evidence that he
did so. See id. (‘‘[H]ow did you hurt
yourself; where does it hurt; does the
pain radiate down an extremity; if so,
how far down; does it go past the knee;
where does it end up; is any numbness
or weaknesses associated with it?’’); see
also id. (‘‘And then you talk about what
treatments have you had or what
diagnostics have you had’’). And with
respect to the assessment of the effect of
pain on a patient’s functioning, Dr.
Owen, after explaining that function is
the ‘‘primary baseline for measuring
therapeutic influence,’’ id. at 104,
testified that a physician should ask a
patient about his activities of daily
living such as his ability to work and his
ability to tolerate sitting, walking and
standing. Id. at 106, 111. See also GX 3,
at 33 (Patient Comfort Assessment
Guide completed by B.B. on Sept. 2,
2009 which asked questions as to how
pain interfered with his general activity,
mood, sleep, enjoyment of life, ability to
concentrate, and relations with other
people). He also noted that in evaluating
functionality, a physician would
perform a neurological assessment, do a
straight leg raise test, and look at the
range of motion of the patient’s spine.
Id. at 111.
Respondent’s note for this visit is
totally devoid of any documentation
that he asked B.B. how he hurt himself;
whether his pain radiated down his
extremities and if so, how far down; if
the pain went past his knee; if he had
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any weakness or numbness; how the
pain effected various activities of daily
living such as his ability to work, as
well as his ability to tolerate sitting,
walking and standing.40 GX 3, at 48.
Indeed, the only documentation
Respondent made pertinent to B.B.’s
ability to function was to note ‘‘yes’’ for
whether he had achieved his treatment
objective and the numbers ‘‘3–5’’ in the
pain scale column. Id. at 28. See Okla.
Admin. Code § 435:10–7–11(1) (‘‘The
medical record should document the
nature and intensity of the pain, current
and past treatment for pain, underlying
or coexisting diseases or conditions, the
effect of the pain on physical and
psychological function and history of
substance abuse.’’).
Against this evidence, Respondent
testified that B.B. reported pain which
was consistent with the exam he
conducted at this visit. Tr. 292. He also
explained that he ordered an MRI
because he ‘‘wanted to make sure that’’
the results were ‘‘consistent with his
pain,’’ his physical exam, and ‘‘the fact
that he was on a schedule II narcotic.’’
Id. at 293. Respondent also testified that
he did not continue B.B. on Lortab
(hydrocodone/acetaminophen) and
prescribed fentanyl patches (a longacting) narcotic medication because of
the risk of abuse and addiction present
with short-acting medications. Id. at
291.
While Respondent may have palpated
B.B.’s lumbar region, he offered no
testimony or other evidence refuting Dr.
Owen’s testimony that the straight leg
raise test is ‘‘the most sensitive physical
finding for low back pain,’’ and that ‘‘if
you don’t have a positive finding you
don’t have that diagnosis.’’ Id. at 190.
While the CALJ acknowledged this
testimony, see R.D. at 35 nn.68–69, he
did not explain why the testimony was
not entitled to weight in determining
whether Respondent established
medical necessity to prescribe
controlled substances. As this testimony
stands unrefuted, I conclude that
Respondent did not establish a
diagnosis.
As for Respondent’s having changed
B.B.’s medication from Lortab to
Fentanyl patches, even long-acting
schedule II medications are susceptible
to abuse. Moreover, because Respondent
performed only a superficial evaluation
and did not establish a diagnosis and
medical necessity to prescribe
controlled substances, let alone two
40 There is likewise no evidence that Respondent
had B.B. complete a new Patient Comfort
Assessment Guide or that he asked him as to how
the pain interfered with his general activity, mood,
sleep, enjoyment of life, ability to concentrate and
relations with other people.
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schedule II controlled substances, this
evidence is entitled to no weight.41
I further hold that Respondent’s
issuance of the prescriptions for the
fentanyl patches and Opana
(oxymorphone) prescriptions was not
merely malpractice. Rather, I conclude
that the evidence supports the
conclusion that Respondent acted
outside of the usual course of
professional practice and lacked a
legitimate medical purpose when he
prescribed these drugs to B.B. Here, not
only did Respondent do a superficial
evaluation as to B.B.’s purported pain
complaint, his medical history, and the
effect of the pain on his ability to
function, he also performed a cursory
examination which did not support his
diagnosis, id. at 190, and ignored the
results of the two aberrant drugs tests.
As for the June 1 UDS, as the CALJ
noted, ‘‘Respondent never addressed the
absence of [the alprazolam and]
presented no explanation for his failure
to react to the June 1 UDS.’’ R.D. 36.
Moreover, even were I to credit
Respondent’s testimony that he
‘‘doubt[ed]’’ that he reviewed the drug
tests performed by Dr. Schoelen and
‘‘wouldn’t expect [him]self to,’’ Tr. 283,
the evidence shows that Respondent
41 In his discussion as to why the Government
had not proved that Respondent violated 21 CFR
1306.04(a) in issuing the September 22, 2011
prescriptions, the CALJ also explained that ‘‘Dr.
Owen’s views about the relative merits of an MRI
versus an X-ray or some other treatment is a
medical treatment dispute that falls squarely
outside the bounds of DEA’s expertise and
jurisdiction.’’ R.D. 39 (citing Gonzales v. Oregon,
546 U.S. 243, 274 (2006)). However, while Dr.
Owen criticized Respondent’s decision to order an
MRI in response to questioning on crossexamination and by the CALJ because there was no
clinical justification for doing so and MRIs lead to
over-diagnosis, his opinion that Respondent did not
establish medical necessity for the September 22
prescriptions was not based on Respondent’s
decision to order an MRI, but rather, the inadequacy
of the evaluation of B.B.’s pain complaint, the
failure to address the two aberrant drug screens, the
lack of a positive finding on the straight leg raise
test and the failure to exhaust conservative
treatments.
So too, the CALJ took issue with Dr. Owen’s
testimony regarding ‘‘Respondent’s failure to make
referral to other specialists.’’ R.D. 39. However, Dr.
Owen’s opinion that Respondent did not establish
medical necessity for the September 22
prescriptions was based on Respondent’s
superficial evaluation of B.B.’s pain and function,
Respondent’s failure to exhaust conservative
treatments, and the lack of evidence of a therapeutic
benefit. Tr. 133–34. While Dr. Owen did suggest
that based on the two aberrant drug tests,
Respondent ‘‘could have sent’’ B.B. to an evaluation
by an addictionologist or a psychiatrist/
psychologist with experience in addiction
medicine, he also testified that there was a further
alternative step that Respondent could have taken:
he could have been ‘‘much more careful and
objective [as to] how [he] measure[d] a therapeutic
benefit.’’ Id. at 134. Thus, Dr. Owen’s testimony is
not fairly read as saying that such a referral was
mandated at this visit.
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clearly knew that B.B. was a chronic
pain patient who was on multiple
narcotics and was subject to drug
testing. Dr. Owen credibly testified as to
the importance of reviewing a patient’s
medical records to determine if the
patient has a history of aberrant
behaviors, id. at 94, yet Respondent
maintained that he did not do so.
Accordingly, I conclude that
Respondent did not establish medical
necessity to prescribe controlled
substances and that he lacked a
legitimate medical purpose and acted
outside of the usual course of
professional practice when he issued
the Opana and Duragesic prescriptions.
See 21 CFR 1306.04(a).
The October 6 Prescriptions
Here again, Dr. Owen testified that the
medical record did not justify the
prescribing of controlled substances. Tr.
137. Dr. Owen then explained that
Respondent’s evaluation of B.B. was
superficial in that there was no
assessment of B.B.’s pain and his
physical and psychosocial functioning.
Dr. Owen thus concluded that once
again, Respondent had not established
medical necessity to prescribe
controlled substances and thus, he
opined that the prescriptions ‘‘were
not’’ issued in the usual course of
professional practice and ‘‘were not’’ for
a legitimate medical purpose. Id. at 137–
38. Dr. Owen further explained that
based on the aberrant drug tests,
Respondent should have obtained
consultations with mental health
providers or addictionologists. Id. at
137. And based on the notation in the
visit note that ‘‘[n]ow, B.B. would like
to try the morphine,’’ Dr. Owen further
faulted Respondent for not properly
addressing B.B.’s request to try
morphine. Id. at 135.
Explaining that ‘‘[t]he principal issue
raised by Dr. Owen and noticed by the
Government’’ with respect to these
prescriptions ‘‘centers on’’ this notation,
the CALJ found credible Respondent’s
testimony regarding B.B.’s request to try
morphine, characterizing the notation as
‘‘a poorly-worded memorialization of a
longer conversation wherein he got
medication efficacy input from B.B. and
outlined several medication options
based on the existing Oklahoma
Medicaid formulary.’’ R.D. 43. The CALJ
then explained that ‘‘[t]he progress
notes related to issues regarding the
Respondent’s evaluation and treatment
of a suspected upper respiratory ailment
are likewise more consistent with a
conscientious practitioner than a pill
mill operator.’’ Id.
Next, while the CALJ rejected the
Government’s contention that the
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August 25 UDS was anomalous based
on ‘‘Respondent’s plausible and credible
explanation,’’ he then found that ‘‘[t]he
aberrant nature of the June 1 UDS is
uncontroverted by the evidence.’’ Id.
The CALJ further found that the
Government had proved that
‘‘Respondent’s actions in continuing to
prescribe controlled medications
without acting to investigate or institute
safeguards upon encountering an
anomalous UDS . . . fell below the
standard expected of a prudent
controlled substances prescriber.’’ Id.
As explained previously, with respect
to those instances in which he found
violations, the CALJ simply concluded
that Respondent’s actions were
neglectful. However, even accepting the
CALJ’s credibility finding with respect
to Respondent’s testimony regarding
B.B.’s request to try morphine, I find
that the evidence still supports the
conclusion that Respondent violated 21
CFR 1306.04(a) in issuing the
prescriptions for both morphine ER and
Opana (oxymorphone).
As explained in my discussion of the
September 22nd prescriptions, I
conclude that the August 25, 2011 UDS
was anomalous. And as also discussed
previously, I find that the Board’s
documentation and recordkeeping
provisions are mandatory and thus, Dr.
Owen’s testimony should be given
weight.
In refutation of Dr. Owen’s testimony
that Respondent’s evaluation was
inadequate, Respondent testified that
B.B. reported that ‘‘his objectives were
only fair’’ and that his pain level had
increased to a six out of ten. Respondent
further noted that he did ‘‘a full exam’’
but that ‘‘[t]he MRI was not back yet.’’
Tr. 295.
As the CALJ noted, Respondent
‘‘admitted that this part of the patient
visit went very quickly, and that a
patient may not remember the treatment
goal when asked this.’’ R.D. 41 n.80.
Indeed, after admitting that ‘‘that part
would be very quick in my office,’’
Respondent added that ‘‘I wouldn’t ask
him what he was actually doing to
achieve that.’’ Tr. 393. He also testified
that he was not sure as to why, when
the question was ‘‘has patient achieved
treatment objective’’ and was, in
essence, a yes or no question, and the
patient may not even remember what
his treatment objective was, B.B. would
have answered ‘‘fair.’’ Id. at 395. Given
that Respondent offered no further
testimony as to other questions he asked
B.B. to ascertain how the pain was
effecting his ability to function in
various aspects of his life activities, nor
maintained that he asked any other
questions about B.B.’s pain level, I give
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weight to Dr. Owen’s testimony that
Respondent’s evaluation of B.B.’s pain
and ability to function was superficial.
Although Respondent maintained that
he did a full physical exam, once again
he found that B.B.’s straight leg raise
was negative. As Dr. Owen testified,
without a positive finding on this test,
Respondent did not have a diagnosis for
lumbar disc disease. And as for the
Respondent’s testimony that ‘‘the MRI
results were not back yet,’’ B.B. had not
even gone for the MRI as of this date.
Nor do I find persuasive the reasoning
that Respondent’s treatment of B.B.’s
upper respiratory ailment was ‘‘more
consistent’’ with the treatment provided
by ‘‘a conscientious practitioner than a
pill mill operator.’’ R.D. 43. Putting
aside that there is no evidence as to how
a conscientious practitioner would treat
a patient who complains of a potential
upper respiratory ailment, even patients
who engage in the abuse or diversion of
controlled substances may seek
treatment for legitimate health
conditions. So too, a physician may
nonetheless divert controlled substances
to some patients without being a pill
mill operator. Thus, even assuming that
Respondent properly evaluated and
treated B.B. for this condition, this has
no bearing on whether he properly
evaluated B.B. to determine whether he
had a legitimate pain condition which
warranted the prescription of controlled
substances.42
In sum, because I agree with Dr. Owen
that Respondent still had not
established medical necessity for the
prescriptions and had still failed to
address the two aberrant drug tests, I
conclude that the prescriptions lacked a
legitimate medical purpose and that
Respondent acted outside of the usual
course of professional practice in
issuing them. 21 CFR 1306.04(a).
The October 20 Prescriptions
At this visit, Respondent noted that
B.B. reported that ‘‘his stress [was] up’’
and that he had ‘‘lo[st] his father’’ and
42 To be sure, the visit note also stated that B.B.
had ‘‘a left abdominal wall hernia’’ and Respondent
recommended that he ‘‘wear a corset if at all
possible.’’ GX 3, at 47. While Respondent testified
that he suggested the use of a corset because he
didn’t want B.B. to confuse his abdominal pain
with his level of pain because of his having changed
B.B.’s pain regimen, here again, there is no evidence
that he evaluated the cause of the hernia, how much
pain it was generating, and how it was effecting
B.B.’s ability to function. Tr. 300.
Notably, B.B. returned for another office visit
only two weeks later. GX 3, at 46. Yet the note for
the visit contains no mention of the hernia. Id. Nor
is the hernia mentioned in the visit notes for B.B.’s
later visits. See id. at 42, 44–45. And in his
testimony, Respondent offered no explanation as to
what happened to B.B’s hernia such that it was no
longer mentioned in subsequent visit notes.
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was ‘‘having a lot of grief.’’ GX 3, at 46.
He made similar physical exam findings
as at the previous visit, again noting that
B.B.’s straight leg raise was negative but
that ‘‘lying down and sitting up cause
him a lot of pain.’’ Id.; see also Tr. 305
(Respondent’s testimony that B.B.’s
‘‘exam was still exactly like before, with
low back paraspinal and spinal
tenderness, but he still had the negative
straight leg raises. But lying down and
sitting up still caused him a lot of
pain.’’). Respondent did not even obtain
a numerical pain rating at this visit nor
note whether B.B. was achieving his
treatment objective. Respondent
diagnosed B.B. as having both acute
grief and lumbar disc disease.
Dr. Owen testified that B.B.’s having
a lot of stress and grief would magnify
B.B.’s ‘‘perception of pain and
disability.’’ Tr. 139. He further
explained that because of B.B.’s
previous aberrant behaviors and the
new stressors in B.B.’s life, he was at
increased risk to ‘‘use [the] drugs to
chemically cope’’ and that Respondent
should have ‘‘sought psychological
counselling for’’ him but did not do so.
Id.
Dr. Owen also took issue with
Respondent’s notation in the visit note
that he suggested nonmedicinal
modalities for two reasons. Id. at 209–
10. First, he explained that ‘‘good
medicine would be [that] if you haven’t
done nonmedicinal pain-relieving
modalities,’’ Respondent should have
‘‘wean[ed] [B.B.] off these controlled
substances and tr[ied] these other
treatments first.’’ Id. at 210. Second, he
explained that the note did not provide
an adequate level of detail such that any
person who took over B.B.’s care or was
asked to provide a consultation would
be able to ‘‘understand what was
happening with this patient at that
point.’’ Id.
As for Respondent’s notations that the
straight leg raise test was negative but
that lying down and sitting up caused
B.B. a lot of pain, Dr. Owen testified that
these were not objective findings in a
neurological sense in that B.B. could not
‘‘have a radiculopathy’’ absent a
positive straight leg raise test. Id. at
210–11. As for the pain that B.B. had
lying down and sitting up, Dr. Owen
testified that this contributed to the idea
that the controlled substances did not
provide a therapeutic benefit and thus
did not warrant the continued
prescribing of controlled substances. Id.
at 210.
The CALJ declined to give weight to
much of Dr. Owen’s testimony,
reasoning that his ‘‘view of the level of
documentation detail required in
Oklahoma, as well as his description of
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a mandatory mental health referral
requirement, is [sic] not consonant with
the requirement of the Oklahoma Pain
Management Regulations.’’ R.D. 46.
With respect to Respondent’s
recordkeeping, the CALJ explained that
‘‘[t]here was sufficient detail to support
the proposition that the office visit that
was conducted in conjunction with this
prescribing event presented efforts on
the part of the Respondent to treat B.B.’’
Id. (emphasis added). However, as he
did with the October 6 prescriptions,
the CALJ found that the August 25 UDS
was not anomalous (based on
Respondent’s uncorroborated hearsay
testimony) but nonetheless found that
the June 1 UDS was aberrant and that
‘‘Respondent’s continued controlled
substance prescribing under these
circumstances . . . fell outside the
course of a professional medical
practice, and fell short of his obligations
as a DEA registrant to safeguard against
diversion.’’ Id.
I do not read Dr. Owen’s testimony as
categorically stating that the Oklahoma
regulation imposes a mandatory
requirement of obtaining a consultation
when a patient presents with a comorbid psychiatric disorder. While Dr.
Owen testified that one of the
provisions in Oklahoma’s ‘‘policies and
guidelines . . . that stood out is if
somebody’s a complex pain patient with
psychological or psychiatric
comorbidities, they should get
consultations with a pain management
physician with expertise in these
complex cases,’’ Tr. 101, he
acknowledged that the Board’s rule used
the words ‘‘may require’’ but that a
physician ‘‘should document why [he]
deviate[s] from that recommendation.’’
Id. at 186.
Thus, Dr. Owen’s testimony is not
fairly read as asserting that Oklahoma
imposes a mandatory requirement of
obtaining a consultation in all instances
in which a patient presents with a
comorbid psychiatric disorder.
Moreover, even if I agreed with the
CALJ’s characterization of Dr. Owen’s
testimony on this issue, the Board’s
standard is nonetheless evidence that
the standard of care may require referral
or consultation depending on the
circumstances presented by the patient,
and there is ample evidence to support
Dr. Owen’s conclusion that Respondent
breached the standard of care when he
failed to even consult with B.B.’s mental
health providers.
Dr. Owen testified that patients who
present with comorbid psychiatric
conditions present a heightened risk of
abusing controlled substances because
these conditions may magnify a
patient’s perception of pain and
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disability and aggravate a patient’s
experience of suffering, id. 102–04, and
Respondent agreed with Dr. Owen. Id. at
409 (Respondent’s testimony that
‘‘having chronic pain [can] lead to
worse anxiety and depression’’ and that
‘‘uncontrolled anxiety or depression
[can] lead[] to more pain.’’). And
throughout his testimony, Dr. Owen
repeatedly noted that based on B.B.’s
aberrant behavior alone, Respondent
should have obtained consultations
with mental health providers or
addictionologists to obtain a more
thorough assessment of B.B.’s behavior.
Thus, Dr. Owen opined that Respondent
should have sought psychological
counselling for B.B. based on his
presentation of suffering from greater
stress and acute grief at this visit. Id. at
139.
To be sure, the evidence shows that
B.B. was already seeing a mental health
professional during this period.
However, Respondent admitted that he
never even consulted with the mental
health professionals who were
simultaneously prescribing controlled
substances to B.B., whether in response
to B.B.’s report of increased stress and
grief at this visit, or at any point during
the course of his prescribing to B.B. Id.
at 408. Notably, when Respondent was
asked if it was within the standard of
care for him and B.B.’s mental health
provider to keep treating B.B. ‘‘without
talking to each other,’’ Respondent
explained that ‘‘the mental health
providers are very good about speaking
to us about patients.’’ Id. at 409. When
then asked if he would ordinarily
consult with a patient’s mental health
provider if the latter is simultaneously
prescribing controlled substances,
Respondent offered the unresponsive
answer that ‘‘[w]e’ve become quite
reliant on the PMP [reports] now’’ and
that ‘‘[b]efore the PMP, there was quite
a bit of cross-talk, because . . .
pharmacists would call’’ and tell him
that a patient was seeing another
physician. Id. at 409–10. However, the
PMP reports in the record show that
they did not contain any medical
information for B.B. other than the
controlled substance prescriptions he
obtained and filled and the names of the
prescribers.
When then asked if two practitioners
who are simultaneously prescribing
controlled substances to the same
patient wouldn’t ‘‘talk to each other
about’’ their joint prescribing,
Respondent initially answered
‘‘absolutely.’’ Id. at 410. However,
notwithstanding his earlier testimony
that ‘‘[t]he mental health providers are
very good about speaking to us about
patients,’’ he then asserted that ‘‘[i]n
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every other field but mental health we
do do that,’’ and added that consulting
with his patient’s mental health
professionals ‘‘doesn’t happen very
often.’’ Id. In short, none of this
testimony refutes Dr. Owen’s testimony
that a patient with a comorbid
psychiatric disorder is at a higher risk
of abusing controlled substances to
cope, that consultations are important to
obtain a better understanding of such a
patient’s behavior, and that based on the
aberrant drug screens and his report of
acute grief, Respondent should have
consulted with either B.B.’s mental
health providers or an addictionologist.
While, when considered in isolation,
Respondent’s failure to consult with
B.B.’s mental health providers would
not establish a violation of 21 CFR
1306.04(a), Dr. Owen again explained
that Respondent’s evaluation was
‘‘inadequate’’ and did not support a
finding of medical necessity to continue
prescribing controlled substances. Id. at
140. Moreover, while Respondent
testified that lying down and sitting up
caused B.B. a lot of pain, B.B. had been
on controlled substances for more than
two and a half years at this point and
was receiving prescriptions for even
more potent narcotics and in larger
doses (morphine and oxymorphone,
both schedule II drugs) and yet he had
never been referred for physical therapy.
Thus, as Dr. Owen explained,
Respondent’s findings that B.B. was
having a lot of pain lying down and
sitting up supported the finding that
prescribing controlled substances was
not providing a therapeutic benefit. Id.
at 211.
As before, Respondent’s failure to
address the aberrant drug screens as
well as Dr. Owen’s testimony that the
evaluation was inadequate, that
prescribing controlled substances did
not provide a therapeutic benefit, and
that Respondent did not establish
medical necessity to continue
prescribing controlled substances, are
sufficient to support a finding that
Respondent violated 21 CFR 1306.04(a).
Respondent’s failure to consult with
B.B.’s mental health providers given
B.B.’s report of increased stress and grief
provides additional support for this
conclusion.
The November 18 and December 15,
2011 Prescriptions
On both dates, Respondent issued
B.B. prescriptions for 90 Morphine
Sulfate ER 15 mg and 120 Opana 10 mg
without requiring that B.B. appear for an
office visit with him. Dr. Owen again
found that Respondent should have
seen B.B. prior to issuing the
prescriptions and that Respondent still
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had not established medical necessity to
continue to prescribe controlled
substances. Tr. 142. Dr. Owen also
noted that Respondent still had not
addressed the aberrant drug screens. Id.
at 143. He further observed that
notwithstanding B.B.’s report of
increased stress and grief at the previous
visit and that B.B. presented a high risk
of escalating his medications and
abusing them, Respondent obviously
did not discuss these issues with B.B.
Id.
Dr. Owen acknowledged that under a
DEA regulation (21 CFR 1306.12(b)), a
practitioner may issue multiple
prescriptions for a schedule II drug to
provide up to a 90-day supply of the
drug based on only seeing the patient
once every 90 days. However, Dr. Owen
explained that a physician who does so
must have ‘‘established medical
necessity and legitimate therapeutic
benefit . . . and [that] a patient doesn’t
have a high risk of abuse,’’ but that B.B.
already had provided two aberrant drug
screens before Respondent issued the
prescriptions. Id. at 196.
In refutation, Respondent offered only
that after the October 20 visit, he ‘‘felt
like [B.B.] could really go into the threemonth’’ and that he did not understand
that he had to see B.B. ‘‘every 30 days.’’
Id. at 307. Respondent further asserted
that when a patient requested a new
schedule II prescription, a PMP report
would be obtained, the patient’s file
would be pulled, and that he would
write the prescription and leave it ‘‘up
front.’’ Id. at 308. Respondent did not
offer any testimony refuting Dr. Owen’s
testimony that B.B. presented a high risk
of escalating the use of controlled
substances and should have been seen
prior to the issuance of the prescriptions
on both dates.
The CALJ found the allegations ‘‘not
sustained’’ with respect to both the
November 18 and December 15
prescriptions. R.D. at 51. In the CALJ’s
view, although the June 1 UDS was
aberrant, it was not adequately noticed
with respect to these two prescribing
events, and as for the August 25 UDS,
‘‘the record evidence [did] not support
a finding that the . . . results [were]
aberrant.’’ Id. The CALJ again rejected
Dr. Owen’s testimony as to the lack of
therapeutic benefit and medical
necessity, on the ground that Dr. Owen’s
view as to the required level of
documentation ‘‘is at odds with the
requirements of the Oklahoma Pain
Management Regulations.’’ Id. at 48.
And finally, the CALJ rejected Dr.
Owen’s testimony regarding
Respondent’s failure to require an office
visit, reasoning that DEA’s regulation
allows for the issuance of multiple
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prescriptions for up to a 90-day supply
of a schedule II drug and that Dr.
Owen’s opinion was ‘‘based on his
assumptions that the chart contains
insufficient documentation detail and
two aberrant UDS lab results.’’ Id.
I find, however that on both dates,
Respondent acted outside of the usual
course of professional practice and
lacked a legitimate medical purpose in
issuing the morphine and Opana
prescriptions without requiring an office
visit. As previously explained, the Show
Cause Order provided Respondent with
fair notice that the aberrant June 1 drug
test would be at issue throughout this
proceeding, including with respect to
the prescriptions he issued on
November 18 and December 15, 2011.
See supra discussion at 72–77. With
respect to the August 25 drug test, the
CALJ’s reasoning makes clear that he
considered Respondent’s testimony as
to what he was told by the lab to prove
the truth of the matter asserted. As
explained previously, his testimony is
uncorroborated hearsay and thus
unreliable. Moreover, Respondent’s
testimony that he did not consider the
positive test results for the other
benzodiazepines including the
temazepam positive to be aberrant is
amply refuted by his testimony
regarding the January 19, 2012, which
he deemed aberrant.
So too, for reasons explained
previously, I reject the CALJ’s
interpretation of the documentation
requirements imposed by the Oklahoma
regulations. In any event, in his
testimony regarding his evaluation of
B.B., Respondent simply read aloud
what he had documented in the visit
notes and in the Treatment Objective
Evaluation section of the Treatment
Plan (GX 3, at 28) and never identified
additional measures he took to evaluate
B.B.’s pain and how it affected his
ability to function.43 Thus, I give weight
to Dr. Owen’s testimony that
Respondent did not establish medical
necessity to continue to prescribe
controlled substances.
As for the CALJ’s reliance on the
regulation which allows a practitioner
to issue to a patient multiple schedule
II prescriptions for up to a 90-day
supply at one time, provided the
practitioner meets certain conditions,
the rationale underlying this provision
43 While Respondent had received the MRI results
before he issued the November prescriptions, GX 3,
at 20; Dr. Owen testified that the MRI ‘‘did not
show any specific problems that would be
attributable for this kind of pain complaint[], nor
was it significant to cause the perceived disability
that this 26-year-old gentleman considers himself’’
to have. Tr. 207. At no point in his testimony did
Respondent refute Dr. Owen’s review of the MRI
results.
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does not provide a safe harbor to
Respondent.44 Of relevance here, these
conditions include, inter alia, that:
‘‘[e]ach separate prescription is issued
for a legitimate medical purpose by an
individual practitioner acting in the
usual course of professional practice’’;
and ‘‘[t]he individual practitioner
concludes that providing the patient
with multiple prescriptions in this
manner does not create an undue risk of
diversion or abuse.’’ 21 CFR
1306.12(b)(i) and (iii). As found above,
based on my conclusions that the
prescriptions Respondent issued at the
three previous office visits were issued
outside of the usual course of
professional practice and lacked a
legitimate medical purpose, Respondent
did not meet the first condition.
Moreover, based on Respondent’s
testimony that he did not remember
whether he reviewed either the June 1
or August 25 drug test results, that he
doubted that he did and ‘‘wouldn’t
expect [him]self to’’ have done so even
though he knew his partner had
instituted drug testing of the clinic’s
chronic pain patients (Tr. 283, 397),
Respondent failed to determine whether
issuing the prescriptions created an
undue risk of diversion. Thus, the
rationale underlying this regulation
provides no basis to reject Dr. Owen’s
testimony that these prescriptions were
issued outside of the usual course of
professional practice and lacked a
legitimate medical purpose. 21 CFR
1306.04(a).
The January 19, 2012 Prescriptions
On January 19, 2012, B.B. again saw
Respondent. B.B. reported that he had
gone to the emergency room ‘‘two weeks
ago with right leg swelling’’ but that
‘‘[h]is ultrasound was negative’’; he
complained of ‘‘some calf pain’’ and
that ‘‘[h]e still feels very tight.’’ GX 3, at
45. Respondent also noted that B.B.
‘‘goes to a psychiatrist’’ and ‘‘reports
severe lumbar disc disease.’’ Id. In
addition, Respondent documented that
B.B. reported that ‘‘he ha[d] been
exposed to someone with HPV’’ and
‘‘would like an exam.’’ Id. Respondent
further noted that B.B.’s ‘‘[p]ast medical
history [was] extensively reviewed’’ and
‘‘placed in chart.’’ Id.
44 As this provision contemplates the issuance of
multiple prescriptions at one time provided the
prescriptions ‘‘indicat[e] the earliest date on which
a pharmacy may fill each prescription,’’ it is not
directly applicable here. However, as to the
frequency of office visits, the regulation states that
a physician ‘‘must determine . . . based on sound
medical judgment, and in accordance with
established medical standards, whether it is
appropriate to issue multiple prescriptions and how
often to see their patients when doing so.’’ 21 CFR
1306.12(b)(2).
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According to Respondent’s exam
notes, B.B. was ‘‘[a]lert and oriented and
in no apparent distress.’’ Id. While other
portions of the exam were normal,
Respondent again documented that B.B.
had ‘‘[l]ow back paraspinal tenderness,’’
a ‘‘[n]egative straight leg raise,’’ and
‘‘[n]euro intact.’’ Id. He also
documented that B.B. ‘‘has very tight
right calf.’’ Id. However, no mention
was made of B.B.’s hernia which had
been noted at previous visits. Id.
Respondent diagnosed B.B. with
‘‘lumbar disc disease,’’ ‘‘exposure to
infectious disease,’’ and ‘‘[r]ight calf
pain.’’ Id. He further documented that
he discussed the ‘‘[a]ddictive
dependence, and tolerance nature of the
medicines as well as alternatives,’’ that
he suggested ‘‘[n]on-medicinal painrelieving modalities,’’ and that the
‘‘[f]ollowup will be [in] three months.’’
Id. Respondent then issued B.B. new
prescriptions for Morphine Sulfate ER
15 mg and Opana 10 mg with the same
dosing instructions, thus providing a 30day supply for each drug if taken as
directed. Id.
Dr. Owen testified that when a patient
reports having gone to the emergency
room, he would get the record to find
out both ‘‘what the problem was’’ as
well as if ‘‘any additional medication
[was] prescribed.’’ Tr. 147. B.B.’s file
does not, however, contain a note from
the emergency room. Id.; see also GX 3.
Moreover, after observing that the visit
note contains no mention that
Respondent addressed either of the two
prior urine screens during this visit, Dr.
Owen again testified that Respondent
had failed to establish medical necessity
for the prescriptions ‘‘by doing a proper
history and physical exam, by defining
a therapeutic benefit, by explaining
what previous treatments have or have
not worked . . . and . . . addressing the
previous aberrant urine drug tests.’’ Id.
at 148. Thus, Dr. Owen opined that the
Respondent acted outside of the usual
course of professional practice in
issuing the prescriptions and that the
prescriptions lacked a legitimate
medical purpose. Id.
In refutation of Dr. Owen’s testimony,
Respondent asserted that B.B. did not
report anything other than his calf pain
and his new conditions (apparently a
reference to his exposure to someone
with HPV). Id. at 314, 317. He further
testified that there was nothing in the
PMP report that showed that B.B. had
been prescribed anything during his
emergency room visit. Id. at 314. He also
acknowledged that during the physical
exam, he again found that B.B. had a
negative straight leg raise test and thus
did not have radiculopathy but that this
did not mean that B.B. did not have
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paraspinal or muscular skeletal pain. Id.
at 318–19. However, in contrast to the
last visit where Respondent
documented that lying down and sitting
up was causing B.B. a lot of pain,
Respondent made no such note in the
visit note. GX 3, at 45.
While Respondent agreed that his
visit notes were unremarkable given the
high amount of narcotics he was
prescribing and asserted he could have
done a better job dictating his notes
(which he attributed to seeing 40 to 45
patients a day and dictating the notes),
he maintained that because B.B. ‘‘just
continued to have the same pain that he
had before . . . I didn’t go into details
on it.’’ Tr. 315. However,
notwithstanding that he had not seen
B.B. in three months, he did not
document whether B.B. had achieved
his treatment objective nor document a
numeric pain rating. GX 3, at 28.
The CALJ rejected the Government’s
contention that the controlled substance
prescriptions Respondent issued at this
visit violated 21 CFR 1306.04(a). Again,
the CALJ concluded that the
Government did not provide adequate
notice regarding its reliance on the June
1 UDS and that the record does not
support a finding that the August 25
UDS result was aberrant. R.D. at 51. And
again, the CALJ reasoned that Dr.
Owen’s view of the level of
documentation required findings of
therapeutic benefit and medical
necessity, as well as his conclusion that
Respondent did not adequately
document B.B.’s visit to the emergency
room and should have obtained the
record of that visit, were ‘‘at odds with
the requirements of the’’ Board’s rules.
Id. Finally, the CALJ asserted that
‘‘Respondent’s testimony provide[s]
convincing evidence that the
Respondent was engaged in bona fide
attempts to treat B.B., not act as a drug
supplier. The same can be said of the
evidence that the Respondent was
seeing B.B. for maladies beyond his pain
complaints.’’ Id.
For reasons explained previously, I
find that Respondent was provided
adequate notice regarding the
Government’s reliance on the June 1
UDS and that the record supports a
finding that the August 25 UDS was
aberrant. As also explained previously,
because I do not agree with the
conclusion that Dr. Owen’s
understanding of the Oklahoma
documentation requirement is ‘‘at odds’’
with the permissive nature of the State’s
regulations, R.D. 51, and agree with the
CALJ’s conclusion that Dr. Owen’s
testimony ‘‘predictably raised no issues
regarding credibility,’’ I give weight to
Dr. Owen’s testimony that Respondent
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did not establish medical necessity to
issue the prescriptions.
As for Dr. Owen’s criticism of
Respondent for failing to obtain the
emergency room record, Respondent
testified that he checked the PMP and
found no evidence that B.B. had been
prescribed controlled substances.
Moreover, even if the standard of care
does require a pain management
physician to obtain an ER record for his
patient, it not clear how quickly that
record could have been obtained on the
date of this visit. Nor is it clear why, if
a physician has otherwise properly
evaluated his patient, his failure to
obtain an ER record on that date would
preclude his issuance of controlled
substance prescriptions.
However, Dr. Owen provided credible
testimony that when Respondent issued
the January 19 prescriptions, he still did
not perform an adequate evaluation of
B.B.’s pain complaint by doing a proper
history and physical exam, nor
determined whether there was a
therapeutic benefit to justify the
continued prescribing of controlled
substances, nor addressed the previous
aberrant drugs tests. Dr. Owen’s
testimony provides substantial evidence
to conclude that Respondent acted
outside of the usual course of
professional practice and lacked a
legitimate medical purpose when he
issued the prescriptions.
In discussing Respondent’s testimony
regarding the notes he made after B.B.’s
January 27 office visit (on which
occasion he did not prescribe controlled
substances), the CALJ stated that
‘‘Respondent noted that B.B. was on
Social Security disability, and objective
data had confirmed that he had chronic
pain.’’ R.D. at 50 (citing Tr. 324).
However, Respondent did not identify
what the ‘‘objective data’’ were. See Tr.
324–25.
The CALJ also found that in the
Respondent’s view, B.B. had not
behaved in a way that set off alarms,
and was stable on his medications.’’
R.D. at 50. However, as found
previously, Respondent testified that he
probably never even looked at the UDS
results that were in B.B.’s chart and
didn’t expect that he would have done
so. Yet Respondent also testified that Dr.
Schoelen had instituted urine drug
testing for the clinic’s chronic pain
patients and thus Respondent obviously
knew that B.B.’s file likely contained
UDS results. And the evidence also
shows that Respondent did not conduct
a drug test of B.B. at any of his first three
visits and yet concluded that he only
needed to see B.B. once every three
months. Thus, to the extent Respondent
claims that B.B’s behavior did not set off
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alarm bells, it is because Respondent
deliberately ignored relevant evidence
and failed to monitor his patient.
The CALJ apparently also credited
Respondent’s testimony to the effect
that ‘‘[m]uch more went on in the office
than what’s written’’ in the visit notes
and that he ‘‘definitely knew what was
going on in [B.B’s] life from each visit,
and I just failed to dictate that.’’ Tr. 326.
And the CALJ further asserted that
‘‘Respondent provided details to
demonstrate that he knew his patient,’’
R.D. 50, and apparently credited
Respondent’s testimony that he ‘‘was
talking to [B.B] about those things and
what all he did in a day, and he was not
able to work.’’ Tr. 327 (cited at R.D. 51).
Yet, on the occasion of the January 19
visit, during which he issued B.B. new
prescriptions for morphine and
oxymorphone, Respondent did not even
document in the Treatment Objective
Evaluation section on the Treatment
Plan if B.B. was meeting his treatment
objectives and did not obtain a pain
rating. Of note, the former was typically
documented with a handwritten oneword answer of either ‘‘yes’’ or ‘‘fair,’’
and the latter was documented with a
handwritten notation of a number; thus
neither of these inquiries required
dictation at all.45
Moreover, when asked by the CALJ
how he knew how the meds he
prescribed ‘‘were doing,’’ Respondent
replied that his evaluation was ‘‘purely
subjective, and if they were needing
more or less pain meds.’’ Only after a
further question as to whether he asked
objective questions in assessing how
B.B. was responding to the medications
did Respondent maintain that he was
aware of what B.B. did all day and that
he had not returned to work.
Dr. Owen provided unrefuted
testimony that ‘‘return[ing] to work’’ is
‘‘the gold standard for functionality in
pain management.’’ Tr. 100. Given this,
it is telling that Respondent never
documented whether B.B. had returned
to work in the progress notes he
prepared for the various visits.
Moreover, given that B.B.’s treatment
objective was to return to work without
pain and yet B.B. never returned to
work during the course of Respondent’s
prescribing to him, id. at 353, it is hard
to understand why Respondent wrote
‘‘fair’’ for whether B.B. was meeting his
treatment objective.
As for why he did so, Respondent
testified that he would ask his patients
if they were meeting their treatment
objective and he would write down
45 Indeed, on each of the dates on which
Respondent made notations in this section of the
chart, each of the entries was handwritten.
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what the patient told him. Tr. 392.
However, Respondent further testified
that ‘‘[a]ctually that part [of the visit]
would be very quick in my office. I
wouldn’t ask him what he was actually
doing to achieve that.’’ Id. at 393.
Respondent ‘‘absolutely’’ agreed with
the CALJ that he would ask his patients
‘‘[h]ave you achieved your treatment
objective?’’ only to then acknowledge
that his patients ‘‘may not’’ remember
what their treatment objective was. Tr.
394. And while this question appears to
have been directed at assessing a
patient’s function, Respondent testified
that the question was intended to elicit
‘‘[b]asically if they were satisfied with
the care or the standard that they meet.’’
Id. When then asked why B.B. would
answer ‘‘fair’’ to what seemed to be ‘‘a
yes or no question,’’ Respondent
testified that he was ‘‘not sure’’ why the
answer would come out as ‘‘fair.’’ Id. at
395.
Tellingly, at another point during his
testimony on this issue, Respondent
explained:
They [the patients] were very well trained
by the time this was here. Whenever we
walked in, they knew the questions before we
asked them. You know, are you meeting your
objective? What’s your pain level? And do
you wish to change? Do you think we should
make a referral? We asked it every time, just
like clockwork.
Tr. 394–95.
I disagree with the CALJ that
‘‘Respondent’s testimony provides
convincing evidence that he was
engaged in bona fide attempts to treat
B.B., not act as a drug supplier.’’ On the
issue of how he evaluated B.B.’s
function, Respondent offered only the
vague testimony that he ‘‘was talking to
B.B about those things and what all he
did in a day.’’ Yet Respondent never
documented any such findings other
than to make the nonsensical notation of
‘‘fair’’ for whether B.B. was achieving
his treatment objective, and even at the
hearing, Respondent still could not
explain why he did so even though he
did so on multiple occasions. As for his
assessment of B.B.’s pain level,
Respondent testified to only asking
‘‘what’s your pain level’’—as if over the
course of the preceding 90-day period,
a patient’s pain level would not
fluctuate depending upon the activities
engaged in by the patient. While I am
mindful that the CALJ’s finding was
based on his credibility determination,
it is noteworthy that in his decision, the
CALJ did not discuss this portion of
Respondent’s testimony (Tr. 392–95),
which is clearly relevant and probative
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14975
on the issue of the scope of his
evaluation of B.B.46
As noted previously, in its Policy
Statement, the Board stated that it ‘‘will
judge the validity of the physician’s
treatment of the patient based on
available documentation’’ and that
‘‘[t]he goal is to control the patient’s
pain while effectively addressing other
aspects of the patient’s functioning,
including physical, psychological,
social and work-related factors.’’ Policy
Statement, at 2 (emphasis added). Given
that Respondent’s documentation was
confined to the two superficial notations
in the Treatment Objective Evaluation
section of the Treatment Plan and given
the emphasis which the Board’s Policy
Statement places on the available
documentation in judging the validity of
treatment, as well as Respondent’s
testimony as to the scope of the
questions he would ask, I conclude that
Respondent has not refuted Dr. Owen’s
testimony that he failed to adequately
evaluate whether there was a medical
necessity to prescribe controlled
substances to B.B.
In concluding so, I am mindful that
while the Board initially charged
Respondent with ‘‘fail[ing] to maintain
adequate medical records to support
diagnosis . . . treatment or prescribed
medications, in violation of 59 O.S.
§ 509(20),’’ RX 1, at 4, the Board
ultimately entered into a settlement
with him prior to hearing which did not
include a finding that he violated this
provision. There is, however, nothing
unusual about prosecutors agreeing to
enter settlement agreements in which
they waive meritorious allegations and,
as the voluntary settlement agreement
offers no explanation as to why the
Board did not rely on this specific
allegation, I place no weight on the
failure of the Board to find that
Respondent violated the provision.
I am also mindful of the CALJ’s
criticism that Dr. Owen is not licensed
to practice in Oklahoma and has never
practiced there, as well as that Dr.
Owen’s ‘‘representation that the
controlled substance prescribing
standards in his home state of Texas are
similar to, but less restrictive than
Oklahoma, is flat out wrong,’’ and that
this diminishes the weight to be given
to his testimony. R.D. 89 (citing Tr. 87,
94, 105–06).
46 While Respondent also asserted that B.B.
‘‘basically was stuck in the house all day,’’ that
obviously was not the case when B.B. was found
semiconscious and in an apparent state of
intoxication in a vehicle parked on the median strip
of I–35. As far as B.B.’s inability to work, the
evidence shows that he was working by ‘‘illegally
buying and selling prescriptions drugs.’’ RX 3, at 3
(stipulated findings of fact of the March 8, 2013
Board Order).
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It is true that in several respects the
Texas Board’s standards are more
restrictive than Oklahoma’s, and thus,
Dr. Owen’s testimony that Texas’s
standards are less restrictive was
erroneous. However, on the critical
issues of the scope of the evaluation of
the patient and the documentation
required, as explained previously, I
conclude that the Oklahoma Board’s
standards on these issues are
mandatory. While the Texas Board uses
even more emphatic language to express
the mandatory nature of these
requirements, I conclude that there is no
material difference between the
standards of Oklahoma and Texas.
Moreover, Dr. Owen provided
additional evidence to support the view
that the standards of medical practice
require the documentation of
considerably more information than
found in B.B.’s progress notes. As he
explained:
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the purpose of documentation is for
continuity of care. Not only continuity of
care for this same provider from visit to visit
but continuity of care should somebody else
assume the care later on down the road or
should you need to get a consultation, that
the consultant can read your notes and
understand what was happening with this
patient at this point in time.
Tr. 210.
Notably, Respondent put on no
evidence showing that Oklahoma’s
standard was materially different than
what Dr. Owen testified to on the issue
of the adequacy of the evaluation and
required level of documentation. See
United States v. Joseph, 709 F.3d 1082,
1096 (11th Cir. 2013) (upholding
criminal conviction for violation 21 CFR
1306.04(a); ‘‘[e]ven if the district court
should have instructed the jury to
evaluate the conduct of the defendants
against only a Georgia standard of
medical practice, the defendants failed
to offer any proof that the Georgia
standard differs at all from any national
standard that the jury purportedly
considered’’).
Moreover, while States have the
primary responsibility for the regulation
of the medical profession, many of the
profession’s norms were created by the
profession itself. Thus, on such issues as
the adequacy of a clinical evaluation for
a particular pain complaint and the
necessary documentation to support the
prescribing of controlled substances, the
standard of medical practice would not
seem to vary to any material degree
between States, especially between
States that border each other.
Finally, unlike Respondent, Dr. Owen
is board certified in pain management,
is a member of multiple pain
management professional organizations,
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including the American Academy of
Pain Medicine and the American
Academy of Pain Management, has
practiced pain management for more
than sixteen years, serves as a peer
reviewer on pain medicine for the
Journal of the American Academy of
Pain Medicine, and has made numerous
presentations on pain-management. In
light of his extensive professional
credentials, I conclude that even though
he has not practiced in Oklahoma, I find
persuasive his testimony as to the
inadequacy of Respondent’s evaluations
of B.B. and Respondent’s failure to
establish a medical necessity for the
prescriptions. I thus conclude that the
January 19, 2012 Morphine and Opana
prescriptions lacked a legitimate
medical purpose and that Respondent
acted outside of the usual course of
professional practice in issuing them. 21
CFR 1306.04(a).
The February 13, 2013 Prescriptions
On this date, Respondent issued B.B.
new prescriptions for 120 Opana 10 and
90 Morphine Sulfate ER 15. Moreover,
by this date, Respondent likely had the
results of the January 19 UDS, which
showed that Morphine Sulfate was not
detected and that B.B. had tested
positive for nordiazepam, oxazepam and
temazepam (as well as alprazolam). On
the lab report, Respondent wrote that
B.B. was ‘‘counsel[led] to only take what
is prescribed.’’ Respondent did not
require that B.B. appear for an office
visit.
Dr. Owen testified that Respondent
should have required an office visit
because of B.B.’s previous aberrant
drug-taking behaviors and because
Respondent still needed to establish that
there was a medical necessity to
prescribe controlled substances and a
therapeutic benefit. Tr. 154. While Dr.
Owen acknowledged Respondent’s
notation that he had counseled B.B., Dr.
Owen testified that this was not an
adequate safeguard to prevent abuse or
diversion because this was B.B.’s third
aberrant drug test. Id. Dr. Owen further
testified that Respondent ‘‘need[ed] to
have a long discussion with [B.B.] about
the risk of addiction’’ and obtain a
consultation by a specialist in addiction.
In refutation, Respondent maintained
that ‘‘the morphine said not detected,
but the oxymorphone was positive, so
that was explainable.’’ Id. at 335. And
he again maintained that ‘‘the lab
always said that if ‘‘the Xanax was
positive,’’ then nordiazepam, oxazepam
and Xanax ‘‘could all three be positive.’’
Id. Continuing, Respondent testified
that ‘‘temazepam, in our practice,
usually didn’t show up,’’ so he checked
B.B.’s PMP report to see if he had been
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prescribed Restoril (the name of the
legend drug) but ‘‘couldn’t find it on the
PMP.’’ Id. Respondent then maintained
that ‘‘Dr. Schoelen didn’t mind his pain
patient being on Restoril,’’ but ‘‘I did,
and so I wanted to make sure, has he
been prescribed Restoril.’’ Id. at 335–36.
Respondent then testified that he was
‘‘sure’’ that he told B.B. that if he had
‘‘an old Restoril or some other doctor, I
do consider that breaking our rules, and
so you can’t take it.’’ Id. at 336.
The CALJ again rejected the
Government’s contention that
Respondent violated 21 CFR 1306.04(a)
when he issued the prescriptions,
reasoning that ‘‘the record evidence
does not support a finding that the
August 25 or January 19 UDS results are
aberrant.’’ R.D. at 54. While the CALJ
again explained that ‘‘it is beyond
argument that the June 1 UDS does
present an anomaly, reliance on that
event [was] not adequately notice by the
Government in support’’ of its
contentions regarding these
prescriptions. Id.
In addition, the CALJ found that
Respondent ‘‘provided a thoughtful and
reasoned explanation (based on his
professional experience and knowledge
of operating Tri-City) of why B.B. may
have tested positive for temazepam
despite not having been prescribed it.’’
Id. at 54–55. Taking the January 19 UDS
in isolation, the CALJ explained that the
Government did not ‘‘establish that the
Respondent’s counseling B.B. to ‘only
take what is prescribed’ fell below the
standard of care in Oklahoma.’’ Id. at 55.
The CALJ then rejected Dr. Owen’s
testimony that Respondent should have
referred B.B. to an addictionologist,
explaining that ‘‘the existence of the
UDS reports that are unavailable to the
Government and/or unsupported by the
evidence were integral to that
recommendation, and their absence
from a useful role in the record likewise
undermines his testimony in this
regards [sic].’’ Id.
However, as explained above, even
though the June 1 UDS was not
specifically referenced in the Show
Cause Order with respect to the
February 13 prescriptions, the issues of
the aberrant nature of the June 1 test (as
well as the August 25 test) were litigated
by consent. As for the CALJ’s assertion
that the record does not support a
finding that the August 25 and January
19 UDS results were aberrant,
Respondent’s testimony and the
notation he placed on the report of the
January 19 test establish that both tests
were aberrant in that B.B. was taking a
medication which Respondent had not
prescribed to him and which was not
listed on the PMP reports, including one
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that went back as far as August 27, 2010.
Moreover, none of Dr. Schoelen’s
progress notes ever mentioned that B.B.
was taking Restoril or temazepam,
whether prescribed by Dr. Schoelen or
another authorized prescriber. And
while the CALJ noted that Respondent
provided a thoughtful and reasoned
explanation as to ‘‘why B.B. may have
tested positive for temazepam,’’ the fact
of the matter is that in his testimony,
Respondent never maintained that he
even asked B.B. if he had an old
prescription for the drug and who
prescribed it to him. Thus, B.B. may
have tested positive for the drug because
he was obtaining it without a
prescription.
As for the CALJ’s assertion that the
Government provided no evidence that
Respondent’s action in counseling B.B.
to take only what he was prescribed fell
below the standard of care, the CALJ’s
reasoning rests on the erroneous
premise that this was B.B.’s first
aberrant drug test. However, for reasons
explained previously, it was his third
aberrant test in less than eight months,
and each of his last three tests produced
an aberrational result.47
In rejecting Dr. Owen’s testimony that
Respondent needed to obtain a
consultation, the CALJ further asserted
that Oklahoma’s referral standard
(which uses the language ‘‘may
require’’) is ‘‘permissive’’ and not
‘‘directive.’’ R.D. at 55. The provision is,
however, more appropriately read as
conferring a degree of discretion which
must be exercised within the bounds of
‘‘sound clinical judgment,’’ Policy
Statement, at 2; and which is
necessarily dependent on the facts and
circumstances presented by the patient.
Thus, in contrast to the CALJ, I give
weight to Dr. Owen’s testimony that
based on B.B.’s multiple aberrational
tests, Respondent needed to obtain a
consultation with a specialist in
addiction. Moreover, as Respondent did
not require an office visit, I also give
weight to Dr. Owen’s testimony that
Respondent had still not established
medical necessity to justify the
continued prescribing of controlled
substances. Accordingly, I conclude that
the Opana and Morphine prescriptions
lacked a legitimate medical purpose and
47 However, I do not rely on the January 19 UDS
result that morphine was not detected. In contrast
to the results which showed the presence of drugs
which B.B. had not been prescribed, B.B. was five
days past 30 days (the number of days the morphine
prescription would have lasted if taken as directed),
and the Government put forward no evidence that
morphine would still be detectable five days later.
While B.B.’s having been five days late raises other
issues (such as whether he should have been going
through withdrawal by January 19), the Government
elicited no such testimony from Dr. Owen.
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that Respondent acted outside of the
usual course of professional practice in
issuing them. 21 CFR 1306.04(a).
The March 13, 2012 Prescriptions
On March 13, 2012, Respondent
issued B.B. new prescriptions for both
120 Opana 10 and 90 Morphine Sulfate
ER 15. See GX 5, at 10, 24. Respondent
issued the prescriptions without
requiring an office visit by B.B. Tr. 156;
see generally GX 3, at 42–62 (visit notes
for B.B.). Nor is there any notation on
any of the visit notes regarding
Respondent’s issuance of these
prescriptions.48
Dr. Owen testified that Respondent
should have required an office visit
before issuing these prescriptions,
reiterating that Respondent still had not
established ‘‘medical necessity for’’
prescribing controlled substances to
B.B. Tr. 155. Asked to again identify the
deficiencies which led him to conclude
that Respondent had not established
medical necessity, Dr. Owen explained:
Reviewing all the pertinent previous
medical records, including what previous
treatments have been performed, an adequate
history and physical exam, consultations as
medically appropriate, establishing a
clinically meaningful and objective
therapeutic benefit, and addressing any
aberrant drug-taking behaviors.
Id. at 157. Dr. Owen again noted that
there were three previous incidents of
aberrant drug-taking behaviors, and that
‘‘[t]he only treatment plan has been
continuing the controlled substances
without medical necessity.’’ Id. at 158.
And once again, Dr. Owen testified that
the prescriptions lacked a legitimate
medical purpose and ‘‘were not’’ issued
in the usual course of professional
practice. Id.
In his direct testimony, Respondent
did not address his reasons for issuing
the March 13 Opana and morphine
prescriptions. See Tr. at 338–39.
Instead, the questioning centered on the
issue of why he wrote a prescription on
March 14 for Nexium, ‘‘a stomach
medicine’’ and a non-controlled drug (‘‘I
have no idea’’) after which the
questioning moved on to the next set of
prescriptions. Id.
Here again, the CALJ concluded that
the Government’s evidence was not
sufficient to sustain the allegations that
Respondent violated 21 CFR 1306.04(a)
in issuing the prescriptions. According
to the CALJ, ‘‘there [was] no persuasive
48 As found above, on the January 27, 2012 visit
note, Respondent had written that on ‘‘2/13/12’’ he
prescribed ‘‘Zpack, Prednisone 10 mg # 28,
Phenergan.’’ GX 3, at 44. The same visit note
contains a further entry for ‘‘2–22–12’’ documenting
the issuance of a prescription for 60 tablets of Soma
(carisoprodol) 350 mg. Id.
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evidence to support the conclusion that
the absence of an office visit by B.B.,
standing alone, render[ed] this
prescribing event below the prevailing
medical standard in Oklahoma.’’ R.D. at
56. Again noting that under 21 CFR
1306.12(b), which allows for the
issuance of multiple schedule II
prescriptions to provide up to a 90-day
supply provided certain conditions are
met, the CALJ concluded that ‘‘without
persuasive expert or state regulatory
guidance, evidence [of] the failure to
conduct an in-person office visit does
not establish that this prescribing event
fell below the standard of care required
in Oklahoma.’’ Id. And in rejecting the
allegations, the CALJ further cited the
purported permissive nature of the
State’s documentation standard and
asserted that ‘‘none of the UDS results
raised by Dr. Owen in his testimony
were adequately noticed by the
Government regarding this prescribing
event.’’ Id.
As for the CALJ’s assertion that the
UDS results were not adequately
noticed, in the Show Cause Order, the
Government alleged with respect to
these prescriptions that Respondent
‘‘once again issued [B.B.] controlled
substance prescriptions . . . without
taking appropriate steps to monitor his
controlled substances use despite the
persistent red flags of abuse and
diversion he previously presented.’’ ALJ
Ex. 1, at 5 (¶ 3h). Even if this was not
enough to provide Respondent with
notice that the three UDSs would be at
issue with respect to these
prescriptions, Respondent did not object
when the Government asked Dr. Owen:
‘‘[a]re there any aberrant drug-taking
behaviors here?’’ and he answered:
‘‘[t]here has [sic] been three previous.’’
Tr. 158. I thus conclude that
Respondent consented to the litigation
of the issue.
As for the CALJ’s assertion that there
is no persuasive evidence that standing
alone, the absence of an office visit
rendered these prescriptions below the
prevailing medical standard, the
Respondent’s prescribing without
requiring an office visit does not stand
alone. Rather, Dr. Owen credibly
identified multiple deficiencies in
Respondent’s evaluation of B.B.’s pain
complaint, including his failure to
perform an adequate history and
physical, his failure to properly evaluate
how B.B.’s pain was effecting his ability
to function, his failure to determine if
the controlled substances were
providing a therapeutic benefit and to
try conservative treatments, and his
failure to address the multiple instances
of aberrant behavior. Of further note,
Respondent offered no evidence refuting
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Dr. Owen’s testimony regarding these
prescriptions. I thus conclude that these
prescriptions lacked a legitimate
medical purpose and that Respondent
acted outside of the usual course of
professional practice in issuing them. 21
CFR 1306.04(a).
The April 12 Prescriptions
On April 12, 2012, B.B. saw
Respondent for an office visit. GX 3, at
42. According to the visit note, B.B.
‘‘report[ed] his pain has been worse,’’
that ‘‘[h]e has run out of his medicines;
he had them stolen,’’ and that ‘‘[h]e has
done fairly well.’’ Id. Moreover, on the
Treatment Objective Evaluation section
of the Treatment Plan, Respondent
wrote ‘‘fair → yes’’ and made an arrow
pointing to ‘‘yes’’ in the block for ‘‘Has
patient achieved treatment objective?’’
and ‘‘6’’ in the block for ‘‘Patient
Completed . . . update [sic] pain scale.’’
Id. at 28.
In the visit note, Respondent wrote
that B.B. ‘‘still has severe anxiety and
depression’’ and has been ‘‘exposed to
someone with HPV’’; Respondent then
wrote: ‘‘[h]e is also wanting to switch
his medicines because he is having
trouble finding the OPANA.’’ Id.
Respondent also noted: ‘‘[p]ast medical
history extensively reviewed and placed
in chart.’’ Id.
In his exam findings, Respondent
noted ‘‘[l]ow back paraspinal and spinal
tenderness,’’ ‘‘[n]egative straight leg
raise,’’ and ‘‘[n]euro intact.’’ Id.
Respondent listed his diagnoses as
‘‘[l]umber disc disease,’’ ‘‘[a]nxiety and
depression’’ and ‘‘[e]xposure to
infectious disease’’ although he
‘‘doubt[ed] that it was HPV.’’ Id.
Respondent then changed B.B.’s
medications to Opana ER (extended
release) 20 mg, b.i.d. (twice per day) and
Percocet 10 mg (q. 12h) p.r.n. (as
needed) for acute pain. Id.; see also Tr.
340. He also prescribed Soma
(carisoprodol) one tablet b.i.d. GX 3, at
42.
Respondent further documented that
he discussed the ‘‘[a]ddictive,
dependence, and tolerance nature of the
medicines, as well as alternatives.’’ Id.
He noted that he ‘‘suggested’’ ‘‘[n]onmedicinal pain and anxiety-relieving
modalities.’’ Id.
During this visit, Respondent also
required B.B. to provide a UDS. The
preliminary screening found that B.B.
was negative for opiates and morphine.
And according to the confirmatory
testing done by the lab, which was
reported back to Respondent on April
17, 2012, B.B. tested positive for
oxymorphone, which was expected
based on Respondent’s having
prescribed Opana to him. Id. He also
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tested positive for meprobamate, which
was expected based on Respondent’s
having prescribed carisoprodol to B.B.
Id. However, the lab further found that
morphine was ‘‘not detected,’’ a result
which was ‘‘not expected’’ because
Respondent had prescribed morphine
sulfate ER to B.B. on March 13, 2012. Id.
Dr. Owen also noted that while ‘‘the
confirmed . . . drug test [was] positive
for some of these drugs,’’ Respondent
had reported that he had run out of his
medicines and that there was a ‘‘lack of
documentation of what he ran out of
and what he should still be on.’’ Tr. 167.
Dr. Owen found it problematic that
B.B. had told Respondent that his pain
was worse, that he had run out of his
medicines and had them stolen. Id. at
159. As he explained:
Well, one, his pain is worse, so why is it
worse? Two is he’s run out of his
medications, and then he had them stolen.
What is it? Did you run out of them because
you self-escalated, or were they stolen and
you ran out of them? It needs clarification.
But either event, self-escalation or having
them stolen, is a red flag.
Id.
Regarding B.B.’s report that his
medications were stolen, Dr. Owen
testified that because there had ‘‘been
the aberrant urine drug tests before . . .
this, there is [sic] enough aberrant
behaviors that’’ Respondent needed ‘‘to
get the person to an addictionologist or
a psychologist, or just stop prescribing
these controlled substances since there’s
no evidence they’re helping this
gentleman.’’ Id. at 212–13.
Dr. Owen also found problematic the
notations in the visit note that B.B.
reported that ‘‘his pain has been was
worse’’ and that ‘‘[h]e has done fairly
well.’’ Id. at 160. As Dr. Owen testified,
the statement that ‘‘[h]e has done fairly
well . . . kind of conflicts with his pain
is worse and the aberrant drug-taking
behavior, so that’s an unreliable
statement.’’ Id. Dr. Owen also explained
that B.B.’s having ‘‘severe anxiety and
depression . . . are relative
contraindications to prescribing
controlled substances . . . [b]ecause it
magnifies [the] perception of pain and
disability.’’ Id. Dr. Owen then testified
that because of these conditions,
Respondent should have requested a
‘‘consultation by a psychologist’’ but did
not. Id. at 160–61.
Dr. Owen further testified that
Respondent ‘‘did not’’ address B.B.’s
‘‘ongoing stress and anxiety issues’’ and
that ‘‘[h]e did not’’ conduct a thorough
patient history. Id. at 166. He then
testified that Respondent had changed
B.B.’s treatment plan by adding
Percocet, but that Respondent
‘‘change[d] the medications without
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ever . . . documenting [a] medical
rationale to add any new medication.’’
Id. Asked by the CALJ ‘‘why would
someone add Percocet,’’ Dr. Owen
testified that it is a short-acting opioid
that could be added ‘‘for break-through
pain, if that’s not being controlled
well.’’ Id. at 167.
Dr. Owen reiterated his earlier
testimony that the patient record was
‘‘not adequate’’ to establish ‘‘medical
necessity’’ for prescribing the controlled
substances on this date and that
between September 22, 2011 (when he
assumed the care of B.B.) and April 12,
2012, Respondent had never established
medical necessity for prescribing
controlled substances to B.B. Id. at 173–
74. He then opined that the
prescriptions Respondent issued at this
visit were issued outside of the usual
course of professional practice and
lacked a legitimate medical purpose. Id.
at 174.
The CALJ sustained the Government’s
allegations only with respect to its
contention that Respondent ignored the
PMP data showing that B.B. was
obtaining early refills of alprazolam and
failed to take any action in response to
this information, such as contacting the
other prescribers or cautioning B.B. in
response to this information. R.D. at 61–
62. For reasons explained previously,
the evidence does not support the
contention that B.B. exhibited a pattern
of obtaining early refills as of this visit.
I also agree with the CALJ that the
evidence does not support a finding that
Respondent provided B.B. with an early
refill of his pain medications.
However, for many of the same
reasons previously discussed, the CALJ
rejected the other evidence offered by
the Government to prove that the
prescriptions violated 21 CFR
1306.04(a). For example, the CALJ again
reasoned that ‘‘the UDS results prior to
the April 12 amino assay UDS’’ were not
‘‘adequately noticed by the Government
. . . regarding this prescribing event
[and] are unavailable to support its
expert’s opinion here.’’ R.D. at 60. And
the CALJ further asserted that the
Government could not rely on litigation
by consent because it did ‘‘not timely
and affirmatively raise[]’’ this theory. Id.
However, as discussed previously,
paragraph 3 of the Show Cause Order
provided adequate notice that various
aberrant drug tests would be at issue
throughout the proceeding.49 And even
49 As the Show Cause Order alleged:
From on or about August 25, 2011 through on or
about May 9, 2012, you issued controlled
substance[] prescriptions to B.B. in violation of
Federal and Oklahoma state law. You were aware
on each of the occasions that you issued controlled
substance[] prescriptions to B.B. that he presented
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if it did not, the record fully supports
the conclusion that the issue was
litigated by consent as, given the
absence of an objection, the Government
had no obligation to affirmatively raise
the argument (which it did in its
Exceptions) until the CALJ issued his
Recommended Decision.
The CALJ also failed to give weight to
Dr. Owen’s testimony that Respondent
should have either referred B.B. to a
specialist in addiction or spoken with
his mental health professional, asserting
that the Government did ‘‘not establish[
] that good medical practice in
Oklahoma require[d] that.’’ R.D. at 60.
However, Dr. Owen is board-certified in
pain management, a member of multiple
national professional societies which
focus on pain medicine and is a peer
reviewer on pain medicine for the
Journal of Pain Management. As
previously explained, while the
Oklahoma referral provision does not
categorically require that a physician
refer a patient to a specialist in
addiction or consult with other
providers, it clearly contemplates that a
physician will use sound clinical
judgment in determining whether a
referral or consultation is necessary.
And as to whether Respondent
exercised sound clinical judgment when
he neither referred B.B. to an
addictionologist nor consulted with his
mental health providers, Respondent
produced no evidence showing that the
standard of care in Oklahoma is
materially different from the standard in
Texas or the standard that is generally
recognized by pain management
practitioners. See United States v.
Joseph, 709 F.3d at 1096.
In rejecting the Government’s
evidence, the CALJ also explained that
the Government did not establish that
‘‘good medical practice in Oklahoma
require[d]’’ that Respondent
‘‘document[] in any specific level of
detail the Respondent’s discussion with
B.B. about . . . [his] success on the
treatment plan.’’ R.D. at 60. Yet the
Board’s Regulation directs that ‘‘[t]he
physician should periodically review
the course of pain treatment’’ and
‘‘[c]ontinuation or modification of
controlled substances for pain
management therapy depends on the
physician’s evaluation of progress
a high risk of abuse and/or diversion of controlled
substances, as evidenced by the red flags
documented in his patient file, such as aberrant
urine drug tests, a request for early refills, and a
claim of stolen drugs. You failed to address and, in
fact, ignored these red flags, continuing to issue
B.B. controlled substance prescriptions in the face
of mounting evidence that he was misusing,
abusing, and/or diverting the controlled substances
you were prescribing.
ALJ Ex. 1, at 1 ¶ 3.
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toward treatment objectives. Satisfactory
response to treatment may be indicated
by the patient’s decreased pain,
increased level of function or improved
quality of life. Objective evidence of
improved or diminished function
should be monitored . . . ’’ Okla.
Admin. Code § 435:10–7–11(4).
Moreover, another provision of the
regulation requires physicians to ‘‘keep
accurate and complete records to
include . . . follow-up evaluations .
. . . [and] periodic reviews.’’ Id.
§ 435:10–7–11(6). And the Board’s
Policy Statement explains that ‘‘[a]ll
such prescribing must be based on clear
documentation of unrelieved pain’’ and
that ‘‘the validity of the physician’s
treatment of the patient’’ will be judged
‘‘based on available documentation.’’
Policy Statement, at 2.
Moreover, even if the Board’s rule
does not mandate ‘‘any specific level of
detail,’’ Dr. Owen offered credible
testimony as to why the standard of care
clearly requires more documentation
than that made by Respondent. As he
explained, ‘‘the purpose of
documentation is for continuity of care.
Not only continuity of care for this same
provider from visit to visit but
continuity of care should somebody else
assume the care later on down the road
or should you need to get a
consultation, that the consultant can
read your notes and understand what
was happening with this patient at this
point in time.’’ Tr. 210.
Notably, while B.B.’s treatment
objective was to return to work without
pain, B.B. had not returned to work as
of the April 12 visit (and never did
during the course of Respondent’s
prescribing) and yet in the box for
documenting whether he was meeting
his treatment objective, Respondent
wrote the words ‘‘fair’’ and ‘‘yes.’’ Yet
at the hearing, Respondent did not
recall why he wrote ‘‘yes,’’ just as he
was ‘‘unsure’’ as to why he had written
‘‘fair’’ in the box at previous visits. As
Respondent could not even explain why
he made these entries, it is clear that no
other physician who subsequently took
over B.B.’s care could ‘‘understand what
was happening with’’ B.B. at various
points. So too, as Respondent could not
explain the inconsistency between his
having noted in B.B.’s progress note that
‘‘his pain was worse’’ while B.B.
reported a decrease in his numeric pain
rating and that ‘‘he has done fairly
well,’’ I give weight to Dr. Owen’s
testimony that Respondent’s notes fell
below the standard of care.
Finally, the CALJ declined to give
weight to Dr. Owen’s testimony
regarding Respondent’s failure to
address the aberrant immunoassay drug
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14979
test result once again asserting that the
Board’s regulations ‘‘contain no specific
directive to mandate such a notation.’’
R.D. at 61. However, as the CALJ noted,
‘‘Respondent did not address this issue
in his testimony’’ and thus, there is no
dispute that he took no action other
than to send the specimen in for
confirmatory testing. While it is true
that Dr. Owen testified that the
immunoassay test has reliability
problems and thus, by sending the
specimen to the lab for further testing
‘‘it could not be said that [Respondent]
took no action,’’ what is notable is that
Respondent offered no testimony that he
ever asked B.B. which drugs had been
purportedly stolen and when they had
been stolen. Obviously, without
determining and documenting what
drugs had been stolen, Respondent
could not evaluate whether the lab’s
finding (using GC–MS testing) that B.B.
had tested negative for morphine was
aberrational.50
Moreover, even crediting
Respondent’s testimony regarding the
notation that B.B. wanted to switch
medications because he was having
troubling finding immediate release
Opana, his testimony regarding the
limitations imposed by the Medicaid
formulary, and his explanation for why
he provided B.B. with Percocet, I still
conclude that the Government has
proved that Respondent violated 21 CFR
1306.04(a) when he issued the Opana 20
ER and Percocet 10 prescriptions at this
visit. As Dr. Owen testified, Respondent
still had not done a thorough patient
history and evaluation of B.B.’s pain
complaint; failed to properly address
multiple instances of aberrant behavior
including the three previous UDSs and
the other red flags he presented (i.e., the
claims of stolen medications and having
run out of them); never consulted with
B.B.’s mental health providers
notwithstanding Respondent’s finding
that B.B. had severe anxiety and
depression and that these are relative
contraindications to prescribing
controlled substances; never determined
which drugs were stolen from B.B. or
which drugs he ran out of thus
rendering the UDS he obtained at this
visit useless; never resolved
inconsistencies in B.B.’s report of pain;
and never established that the
controlled substances provided a
therapeutic benefit and that there was a
50 While Respondent offered testimony to the
effect that pain patients will maintain ‘‘a stash’’ of
controlled substances in the event their medications
are stolen, and asserted that B.B. did this as well,
he offered no explanation as to how B.B. could have
accumulated a stash of extended release
medications (such as Morphine Sulfate ER, the drug
which was not detected) while still managing pain.
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medical necessity for the prescriptions.
Also, while Dr. Owen did not
specifically cite Respondent’s failure to
try conservative treatments such as
physical therapy when he testified
regarding these two prescriptions, the
evidence shows that Respondent never
referred B.B. for physical therapy.
Of further note, Respondent could not
explain why he made the entries of
‘‘fair’’ and ‘‘yes’’ for whether B.B. was
meeting his treatment objective, when
he acknowledged that B.B.’s treatment
objective was to return to work but
never did so. And while he essentially
agreed with Dr. Owen’s testimony that
a patient with depression and anxiety
has a higher perception of pain and is
at greater risk of self-escalating his use
of controlled substances, he nonetheless
maintained that while ‘‘[i]n every other
field but mental health we do’’ consult
with the patient’s other practitioners,
consulting with mental health
practitioners who are ‘‘also prescribing
controlled substances . . . [t]hat doesn’t
happen very often.’’ Tr. 410. I thus
conclude that Respondent acted outside
of the usual course of professional
practice and lacked a legitimate medical
purpose when, on this date, he issued
the Opana and Percocet prescriptions to
B.B. 21 CFR 1306.04(a).
The April 25 Prescriptions
On April 25, 2012, Respondent
provided B.B. with a prescription for 30
Roxicodone (oxycodone) 15 mg. GX 5, at
4. B.B.’s file contains no documentation
that there was an office visit, and
notwithstanding that this was a change
in medication from what Respondent
had prescribed at the previous visit,
there is no notation in the progress
notes as to why he changed the
prescription. See generally GX 3; see
also Tr. 174–75. Moreover, while
Respondent testified that he would
‘‘routinely’’ make an entry in the
Treatment Objective Evaluation section
of the Pain Management Treatment Plan
‘‘if we were making a change in a
medication,’’ Tr. 357, no such entry was
made on this date. See GX 3, at 28. Nor
is there any documentation in the
patient file that Respondent addressed
with B.B. the aberrant drug test result
(the non-detection of morphine) which
had been reported to him on April 17.
See generally GX 3.
According to Dr. Owen, when adding
a new drug to a patient’s regimen of
pain medications, a physician ‘‘would
have to establish medical necessity with
some type of note, using sound medical
rationale.’’ Tr. 175. Dr. Owen further
testified that making such a notation is
‘‘a standard of care, and it’s part of the
documentation guidelines that are
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issued across every state for the most
part.’’ Id. Asked if he could think of a
reason why a physician ‘‘would add a
drug for the first time without seeing a
patient,’’ Dr. Owen answered: ‘‘No. Or at
least documenting the medical rationale
and establishing medical necessity.’’ Id.
at 176. Dr. Owen then testified that
Respondent did not take appropriate
steps to establish medical necessity for
the prescription, reiterating his earlier
testimony that Respondent had not
demonstrated that conservative care had
been tried and been unsuccessful, as
well as that there was a ‘‘clinically
meaningful and objective therapeutic
benefit from the previous use of
controlled substances.’’ Id. He again
opined that the prescription was not
issued in the usual course of
professional practice and lacked a
legitimate medical purpose. Id.
Regarding the Roxicodone
prescription, Respondent asserted that
he ‘‘was just doing a two-week trial,
trying to figure out his dose, and at the
time, most likely the patient didn’t have
any punches on his card left, and
Roxicodone is much cheaper than
Percocet, and it’s the same medication.’’
Id. at 355. However, Respondent did not
document any of this in B.B.’s record.
Nor did he explain why he failed to
follow his routine of making an entry in
the Treatment Objective Evaluation
section of the Pain Management
Treatment Plan given that he had
changed B.B.’s medication.
As for the April 12 UDS lab report,
which he had obtained prior to issuing
the prescription and which found that
morphine was not detected and that this
result was not expected based on the
prescribed medications, Respondent
testified that in his opinion the result
was not aberrant. Respondent did not
explain whether this was based on his
previous claim that the oxymorphone is
a metabolite of morphine or because
B.B. had reported that his medications
were stolen. Tr. 364–66.
As Respondent offered no testimony
that he asked B.B which of his drugs
were stolen and was told that it was the
morphine, B.B.’s claim of stolen drugs
does not render the test non-aberrant.
Moreover, the lab reports noted various
instances in which the presence of
various metabolites was consistent with
prescribed medications and that the
particular substances were metabolites
of prescribed drugs but included no
such notation with respect to
oxymorphone and morphine. Finally,
Respondent’s testimony is contradicted
by science and he offered no evidence
which would support a finding that he
had a good faith but mistaken belief that
oxymorphone is a metabolite of
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morphine. Based on these reasons, I find
that the April 12 UDS was aberrant and
that Respondent knew it to be.
While the CALJ concluded that the
Government could not rely on the four
UDS reports, he nonetheless found that
the evidence supported the
Government’s contention that
Respondent acted outside of the usual
course of professional practice in
issuing the prescriptions. R.D. at 64.
While the CALJ accepted Respondent’s
assertion that Percocet and Roxicodone
are similar drugs in that they both
contain oxycodone (although he noted
that Roxicodone does not contain
acetaminophen and contains only
oxycodone), id. at n.119, he explained
that Respondent did not merely provide
a refill but was changing B.B.’s
medications. Id. at 63–64. While the
CALJ then noted Dr. Owen’s opinion
that the standard of care required the
‘‘establish[ment] of medical necessity
with some type of note, using sound
medical rationale,’’ the CALJ then
explained that ‘‘it is not the
documentation of the medical
determination that carries the day here.
Rather, it is whether the evidence or
record supports the Respondent’s
proposition that he made such a
determination; and it does not.’’ Id. at
64. And while again asserting
erroneously that the Oklahoma
regulation stating that ‘‘[t]he medical
record . . . should document the
presence of one or more recognized
medical indications for the use of a
controlled substance’’ is permissive, id.
(emphasis added by CALJ), he
concluded that Respondent acted
outside of the usual course of
professional practice because he neither
documented an indication for a
medication change nor could
‘‘remember it in a way that is
persuasive.’’ 51 Id.
While I agree with the CALJ that
Respondent’s testimony was
unpersuasive, I also give weight to Dr.
Owen’s testimony that Respondent had
not established medical necessity for
prescribing controlled substances by
demonstrating that conservative
treatments had been tried and been
unsuccessful and by establishing an
‘‘objective therapeutic benefit from the
previous use of controlled substances.’’
Tr. 176. Moreover, Dr. Owen’s
testimony as to the other reasons why
51 Unexplained by the CALJ is why he did not
apply the same reasoning to Respondent’s
testimony that he was ‘‘unsure’’ as to why, on
various occasions, he wrote ‘‘fair’’ in the block for
noting whether B.B. had achieved his treatment
objective as well as to why he wrote ‘‘yes’’ when
B.B never returned to work during the course of
Respondent’s prescribing to him.
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the Respondent did not establish a
medical necessity for the previous
prescriptions likewise applies to the
Roxicodone prescription issued on this
date. Finally, once again B.B. provided
an aberrant drug test which Respondent
ignored (and could not properly
evaluate). I therefore conclude that
Respondent acted outside of the usual
course of professional practice and
lacked a legitimate medical purpose
when he prescribed Roxicodone to B.B.
on this date.
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The May 9, 2012 Prescriptions
On May 9, 2012, Respondent wrote
B.B. a prescription for 60 Opana ER 20
mg. GX 3, at 93; GX 5, at 27. Respondent
did not require an office visit, and he
made no notations in the progress notes
regarding the prescription. See generally
GX 3; see also Tr. 177–78. Regarding the
prescription, Dr. Owen again testified
that Respondent ‘‘needed to establish
medical necessity for continuation of
controlled substances’’ and ‘‘did not.’’
Id. at 178.
Asked to provide his opinion as to
Respondent’s prescribing of controlled
substances from September 2011
through May 9, 2012, Dr. Owen opined
that Respondent did not adequately
review B.B.’s medical history. Id. He
further opined that the treatment plan
‘‘would have the logic behind the
treatment’’ and would have
‘‘establish[ed] that conservative care has
not been helpful and that [an] objective
and clinically meaningful therapeutic
benefit from the use of controlled
substances has been established, if
[they] ha[d] previously been used.’’ Id.
Dr. Owen then testified that none of the
controlled substance prescriptions
Respondent issued to B.B. were issued
in the usual course of professional
practice and for a legitimate medical
purpose. Id. at 178–79.
Asked why he refilled the
prescriptions,52 Respondent testified
52 In her questioning of Respondent,
Respondent’s counsel referred to a Roxicodone
prescription as having been issued on May 9, 2012,
and in his testimony regarding the prescriptions he
wrote on that date, Respondent referred to both a
Roxicodone prescription and an Opana ER 20 mg
prescription. Tr. 356. While GX 5 contains a legible
copy of the May 9, 2012 Opana ER prescription, see
GX 5, at 27, it does not contain a copy of a
Roxicodone prescription, and as for GX 3, the copy
of the purported Roxicodone prescription is
illegible. GX 3, at 93.
Moreover, at no point did the Government put in
issue whether Respondent violated 21 CFR
1306.04(a) when he issued the Roxicodone
prescription. The Government did not mention this
prescription in the specific allegation it made in the
Show Cause Order regarding the events of May 9,
2012, see ALJ Ex. 1, at 6 ¶ 3(j); it did not mention
the prescription in its Pre-hearing Statement, see
ALJ Ex. 5, at 21; it did not question Dr. Owen about
this prescription, see Tr. 177–78; and even after
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that ‘‘I got a phone call that he was
wanting his medicines refilled and that
the [R]oxicodone had worked for him
and et cetera, so we were converting
him back into the one-month
prescriptions in the Schedule IIs and
going back to this three-month office
visit.’’ Tr. 356. Respondent offered no
testimony addressing Dr. Owen’s
criticism that he still had not
established that there was a medical
necessity for prescribing controlled
substances, which included the Opana.
See generally id. at 356–57.
The CALJ found that because he ‘‘had
PMP data indicating that B.B. had
previously engaged in a pattern of
procuring early refills from multiple
prescribers,’’ Respondent’s issuance of
the prescription was ‘‘a breach of [his]
obligation as a registrant to guard
against the diversion of controlled
substances.’’ R.D. at 67–68. The CALJ
thus concluded that Respondent acted
outside of the course of professional
practice in issuing the Opana
prescription.53 Id. at 68.
Respondent testified about it, the Government did
not argue in its post-hearing brief that Respondent
issued this Roxicodone prescription in violation of
21 CFR 1306.04(a). Thus, I do not consider the
prescription.
53 In his decision, the CALJ explained that
‘‘[a]lthough the Government’s pleadings do not
specifically refer to the early refills in support of
this prescribing event, the [Show Cause Order]
alleges that the prescribing was effected ‘despite
previous indications that B.B. was at risk for abuse
or diversion of controlled substance[s].’’’ R.D. 67–
68 n.124 (quoting ALJ Ex. 1, at 6). The CALJ also
noted that ‘‘[t]he Government Prehearing Statement
alleges that the prescription for Opana was issued
‘despite previous indications that B.B. was at risk
for abuse or diversion of controlled substances[s]
. . . .’’’ Id. (quoting ALJ Ex. 5, at 21). The CALJ
then explained that ‘‘[t]hese broadly-worded
phrases supply sufficient notice . . . to constitute
sufficient notice to use the PMP early refill
evidence in support of this prescribing event.’’ Id.
I am, however, left to wonder why the same
reasoning did not apply to the multiple instances
in which the CALJ asserted that the Government
did not provide sufficient notice that it intended to
rely on the various UDSs. Notably, paragraph 3 of
the Show Cause Order alleged that:
[f]rom on or about August 25, 2011 through on
or about May 9, 2012, you issued controlled
substance[] prescriptions to B.B. in violation of
Federal and Oklahoma state law. You were aware
on each of the occasions that you issued controlled
substance[] prescriptions to B.B. that he presented
a high risk of abuse and/or diversion of controlled
substances, as evidenced by the red flags
documented in his patient file, such as aberrant
urine drug tests. . . . You failed to address and, in
fact, ignored these red flags, continuing to issue
B.B. controlled substance prescriptions in the face
of mounting evidence that he was misusing,
abusing, and/or diverting the controlled substances
you were prescribing.
ALJ Ex. 1, at 1. See also, e.g., id. at 3 (Sept. 22,
2011 Rxs: ‘‘You did not address with B.B. the now
second aberrant drug screen in an approximately
three month period’’ and ‘‘[y]ou took no other steps
to monitor B.B’s controlled substance use, such as
requiring him [to] take another drug screen due to
the two failed ones’’); id. at 4 (Nov. 18 and Dec. 15
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While I agree with the CALJ that
Respondent violated 21 CFR 1306.04(a)
in issuing the prescription, I do so for
reasons other than that B.B. had
‘‘engaged in a pattern of early refills.’’
As Respondent did not see B.B. on this
date, I give weight to Dr. Owen’s
testimony that Respondent did not
establish medical necessity for the
prescription (or any of the prescriptions
for that matter) for the reasons he
explained throughout his testimony as
well as for the other reasons discussed
in this Decision.
* * *
In his Recommended Decision, the
CALJ alleges that the Agency ‘‘has been
engaged in a deliberate winnowing of
the scope of Factor 2, to the extent that
. . . it now largely mirrors the
considerations found in Factor 4.’’ R.D.
77. He further asserts that the Agency’s
rejection of dicta which has appeared in
various recommended decisions to the
effect that Factor 2 ‘‘manifests
Congress’s acknowledgement that . . .
the quantitative volume in which an
applicant has engaged in the dispensing
of controlled substances may be [a]
significant factor’’ in the public interest
determination, see JM Pharmacy Group,
Inc., 80 FR 28667, 28684 (2015), is
inconsistent with the plain meaning of
Factor 2. R.D. 77–81.
Congress did not, however, define the
term ‘‘experience’’ in the CSA, and as
the Administrator has explained at
length, the word has multiple meanings,
none of which ‘‘compels the conclusion
that Congress acknowledged that the
quantitative volume of an applicant’s
dispensing may be a significant
consideration under this factor, and
certainly none [of these definitions]
suggests that the Agency is required to
count up the number of times an
applicant or registrant has dispensed
controlled substances,’’ JM Pharmacy
Group, 80 FR at 28667 n.1, let alone
compare the number of lawful
dispensings against those shown to be
unlawful, as some registrants have
argued. See, e.g., Syed-Jawed AkhtarZaidi, 80 FR 42961, 42967 (2015)
(arguing that physician was denied a
‘‘fair adjudication’’ where the
Government based its case only on
undercover visits but had seized 400
patient files from physician’s office and
yet ‘‘failed to present any evidence . . .
Rxs: alleging that ‘‘you did not take any steps to
monitor [B.B.’s] controlled substances use despite
his history of misusing, abusing, or diverting
controlled substances’’); id. at 5 (Mar. 13, 2012 Rxs:
‘‘you once again issued him controlled substance[]
prescriptions . . . without taking appropriate steps
to monitor his controlled substance use despite the
persistent red flags of abuse and diversion he
previously presented’’).
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that the treatment of those patients
failed to meet the standard of care,’’ as
well as any evidence regarding the
treatment of ‘‘over 400 additional
patients’’’ whose charts were not
seized), pet. for rev. denied, 841 F.3d
707, 713 (6th Cir. 2016).
Notably, the CALJ does not cite to any
of the sources typically invoked by the
courts in cases which have held that a
statute has a plain meaning.54 See,
e.g.,Williams v. Taylor, 529 U.S. 420,
431–32 (2000) (giving statutory text its
‘‘ordinary, contemporary, common
meaning’’ based on definitions from
Webster’s New International Dictionary
and Black’s Law Dictionary); United
States v. Labonte, 520 U.S. 751, 757–58
(1997) (giving statutory text ordinary
meaning by reference to same
dictionaries); Levorsen v. Octapharma
Plasma, Inc., 828 F.3d 1227, 1231 (10th
Cir. 2016) (relying on Webster’s Third
New International Dictionary for
meaning of statutory terms). And while
‘‘[t]he plainness or ambiguity of
statutory language is [also] determined
by reference to the . . . specific context
in which that language is used, and the
broader context of the statute as a
whole,’’ Yates v. United States, 135
S.Ct. 1074, 1082 (2015), nothing in the
context of providing factors for
determining the public interest supports
the notion that the term ‘‘experience’’
requires a consideration of the
quantitative volume of an applicant’s
dispensing.
As previously explained, Congress
enacted the public interest standard to
provide DEA with additional authority
to address the diversion of controlled
substances because prior to the 1984
amendment of section 823(f), the
Agency’s authority to deny an
application or revoke a registration was
limited to cases in which a practitioner:
(1) Had materially falsified an
application, (2) had been convicted of a
State or Federal felony offense related to
controlled substances, or (3) had his
54 As the Administrator noted in JM Pharmacy,
the word ‘‘experience’’ has multiple meanings.
Among those most relevant in assessing its meaning
as used in the context of Factor Two are: (1) The
‘‘direct observation of or participation in events as
a basis for knowledge,’’ (2) ‘‘the fact or state of
having been affected by or gained knowledge
through direct observation or participation,’’ (3)
‘‘practical knowledge, skill, or practice derived
from direct observation of or participation in events
or in a particular activity,’’ and (4) ‘‘the length of
such participation.’’ See Merriam-Webster’s
Collegiate Dictionary 409 (10th ed. 1998); see also
The Random House Dictionary of the English
Language 681 (2d ed. 1987) (defining experience to
include ‘‘the process or fact of personally observing
encountering, or undergoing something,’’ ‘‘the
observing, encountering, or undergoing of things
generally as they occur in the course of time,’’
‘‘knowledge or practical wisdom gained from what
one has observed, encountered, or undergone’’).
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State license or registration suspended,
revoked, or denied. See S. Rep. No. 98–
225, at 266 (1983), as reprinted in 1984
U.S.C.C.A.N. 3182, 3448. Finding that
the ‘‘[i]mproper diversion of controlled
substances’’ was ‘‘one of the most
serious aspects of the drug abuse
problem,’’ and yet ‘‘effective Federal
action against practitioners ha[d] been
severely inhibited by the [then] limited
authority to deny or revoke practitioner
registrations,’’ id., Congress concluded
that ‘‘the overly limited bases in current
law for denial or revocation of a
practitioner’s registration do not operate
in the public interest.’’ Id.
The Senate Report thus explained that
‘‘the bill would amend 21 U.S.C. 824(f)
[sic] to expand the authority of the
Attorney General to deny a
practitioner’s registration application.’’
Id. The Report further explained that
‘‘in those cases in which registration is
clearly contrary to the public interest,
the amendment would allow a swift and
sure response to the danger posed to the
public health and safety by the
registration of the practitioner in
question.’’ Id. at 267, as reprinted in
1984 U.S.C.C.A.N. at 3449. Accordingly,
section 823(f) was amended to provide
the Agency with authority to deny an
application based upon a finding that
the issuance of a registration ‘‘would be
inconsistent with the public interest,’’
upon consideration of the five public
interest factors, including the
experience factor. Id. See also 21 U.S.C.
824(a)(4). Nowhere in the Report’s
discussion of the amendments to
sections 823 and 824 is there any
support for the notion that Congress
deemed the quantitative volume of a
practitioner’s dispensings to be a
significant consideration in making
findings under the experience factor.55
Indeed, as Krishna-Iyer explained,
because the CSA limits registration to
those practitioners who possess
authority under state law to dispense
controlled substances in the course of
professional practice, and patients with
legitimate medical conditions routinely
seek treatment from licensed medical
55 As the CALJ noted, one of the House Reports
explained that ‘‘[t]he second factor shall not, of
course, be construed in anyway to hinder
registration of recent graduates of professional
schools who may have no professional experience
dispensing or conducting research with controlled
substances.’’ H.R. Rep. No. 98–835, Pt. 1, at 14.
Obviously, if Factor Two’s meaning was so plain,
the Judiciary Committee had no need to express
that it should not be construed to deny registrations
to newly-licensed practitioners, most of whom can
point to no volume of dispensings other than by
observing a physician during clinical rotations.
Thus, the Committee’s direction refutes the notion
that the quantitative volume of an applicant’s
dispensings may be a significant consideration
under the factor.
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professionals, every registrant can
undoubtedly point to an extensive body
of legitimate prescribing over the course
of his professional career. See KrishnaIyer, 459 FR at 463. Thus, in past cases,
this Agency has given no more than
nominal weight to a practitioner’s
evidence that he has dispensed
controlled substances to thousands of
patients in circumstances which did not
involve diversion. See, e.g., Caragine, 63
FR at 51599 (‘‘[T]he Government does
not dispute that during Respondent’s 20
years in practice he has seen over
15,000 patients. At issue in this
proceeding is Respondent’s controlled
substance prescribing to 18 patients.’’);
id. at 51600 (‘‘[E]ven though the patients
at issue are only a small portion of
Respondent’s patient population, his
prescribing of controlled substances to
these individuals raises serious
concerns regarding [his] ability to
responsibly handle controlled
substances in the future.’’); see also
Medicine Shoppe—Jonesborough, 73 FR
364, 386 & n.56 (2008) (noting that
pharmacy ‘‘had 17,000 patients,’’ but
that ‘‘[n]o amount of legitimate
dispensings can render . . . flagrant
violations [acts which are] ‘consistent
with the public interest.’’’), pet. for
review denied, Medicine ShoppeJonesborough v. DEA, slip. op. at 11 (6th
Cir. Nov. 13, 2008).
As in past cases, the parties may
continue to introduce evidence as to the
extent of both a practitioner’s lawful or
unlawful dispensing activities.
However, under Agency precedent,
proof of a single act of intentional or
knowing diversion remains sufficient to
satisfy the Government’s prima facie
burden and to impose on a respondent
the obligation to produce evidence to
show that it can be entrusted with a
registration. See Krishna-Iyer, 74 FR
459, 463 (2009); see also Alan H.
Olefsky, 57 FR 928, 928–29 (1992)
(revoking registration based on
physician’s presentation of two
fraudulent prescriptions to pharmacy
and noting that the respondent ‘‘refuses
to accept responsibility for his actions
and does not even acknowledge the
criminality of his behavior’’).
The CALJ further alleges that on
remand in Krishna-Iyer, the Agency
failed to follow the Eleventh Circuit’s
unpublished decision, in which the
Administrator was directed to consider
12 additional patient files as well as the
‘‘entire corpus’’ of the physician’s
controlled substance dispensing for
evidence of the physician’s ‘‘positive
experience’’ in dispensing controlled
substances. R.D. 79. However, the
Administrator carefully reviewed those
files, and noted that the files ‘‘included
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numerous instances in which [the
physician] appear[ed] to have ignored
warning signs that the patient was either
abusing or diverting controlled
substance’’; she also made findings with
respect to multiple incidents. 74 FR at
460–61 n.3. And as for the ‘‘entire
corpus’’ of the physician’s prescribing,
notwithstanding the physician had not
introduced any evidence as to the
propriety of her prescribing to the
‘‘thousands of other patients’’ she had
treated, the Administrator assumed that
every one of those prescriptions was
lawfully issued. Id. at 461. However, as
the Administrator explained, even if
those prescriptions were lawfully
issued, they did not negate the
Government’s prima facie showing that
the physician had knowingly diverted
drugs to others. Id. at 462–63. And
while the Administrator granted the
physician a new registration, she made
clear that had the physician not
acknowledged her misconduct, she
would have again revoked the
physician’s registration. Id. at 463.
Not mentioned by the CALJ is that
several years later, the exact same
arguments were raised before the
Eleventh Circuit by two different
physicians and rejected without any
discussion. In Lynch v. DEA, a
physician whose registration was
revoked by the Agency for unlawful
prescribing,56 argued that the Agency’s
Decision arbitrarily ‘‘limited its
consideration of [his] experience to only
ten prescriptions issued to out of state
patients, the two undercover patients,
and the use of a rubber stamp on nine
prescriptions . . . and did not consider
the evidence that he had been
dispensing controlled substances for
over twenty years,’’ and thus ‘‘fail[ed] to
consider the overwhelming evidence of
positive experience.’’ See Brief of
Petitioner 31–32, Lynch v. DEA, No. 11–
10207–EE (11th Cir. 2011) (citing
Krishna-Iyer, M.D., v. DEA, 249 Fed.
Appx. 159, 161 (11th Cir. 2007)
(unpublished)). Notably, the Eleventh
Circuit denied the physician’s petition
for review, holding that the revocation
of the physician’s registration ‘‘was not
arbitrary, capricious, an abuse of
discretion or contrary to law.’’ Lynch v.
DEA, Slip. Op. at 4 (11th Cir. May 22,
2012) (per curiam). Indeed, the Court of
Appeals did not even deem the
respondent’s argument to warrant
discussion. See id. at 2–4.
So too, in McNichol v. DEA, another
physician whose registration was
revoked for issuing unlawful
prescriptions to four undercover officers
relied on Krishna-Iyer to argue that the
56 See
Ronald Lynch, 75 FR 78745 (2010).
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Agency’s final decision was arbitrary
and capricious because the investigation
‘‘failed to take into account any positive
conduct on [his] part’’ and
‘‘intentionally ignored any evidence not
specifically related to the undercover
patients.’’ Brief of Petitioner 21–23,
McNichol v. DEA, No. 12–15292 (11th
Cir. 2013) (citing Krishna-Iyer, 249 Fed.
Appx. at 161). Of note, the Agency’s
Decision specifically rejected the ALJ’s
assertion that the Government was
required to review the patient charts for
patients other than the undercover
officers and look for evidence of the
physician’s ‘‘positive prescribing
practices’’ so as to ‘‘develop evidence to
enlighten the administrative record.’’
T.J. McNichol, 77 FR 57133, 57146
(2012). The Administrator further
explained that ‘‘[h]aving garnered
evidence of what it believed to be
unlawful prescriptions issued to the
four undercover officers, the
Government was entitled to go to
hearing with that evidence.’’ Id.
Again, the Eleventh Circuit denied the
physician’s petition for review, holding
that ‘‘the record supports that the
administrator considered all aspects of
the evidence in light of the applicable
statutory factors and . . . [her] decision
was not arbitrary and capricious. . . .
[w]e also agree with the administrator’s
conclusion that [the physician’s]
continued registration would be
inconsistent with the public interest.’’
McNichol v. DEA, Slip. Op. at 4 (11th
Cir. Oct. 17, 2013) (per curiam). Here
again, the Court did not deem
Respondent’s argument to warrant
discussion.
The CALJ also dismisses the
published decision of the Tenth Circuit
in MacKay v. DEA, 664 F.3d 808 (10th
Cir. 2011), asserting that ‘‘the Agency’s
view of Factor 2 was not a focus of the
court’s decision.’’ R.D. 80 (emphasis
added). Therein, after the Agency
revoked the physician’s registration
based on his unlawful prescribing to
two patients, the physician argued on
review that:
The DEA must consider the totality of the
experiences a physician has, including: the
interaction reflected in each of the medical
charts of patients that were seized by the
DEA, the ‘‘thousands of other patients . . .
[and] positive experience’’ with dispensing
controlled substances and not merely the
testimony of people trying to make a case
against the physician.
The DEA, in fact, flat out disregarded the
substantial experience Dr. MacKay has had
with dispensing controlled substances. The
law requires the DEA to consider evidence
that reflects that the physician is not a danger
to the public and delineates how the DEA
must do so.
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Brief of Petitioner, 13–14, MacKay v.
DEA. Moreover, after discussing the
affidavits of several patients who
testified that Dr. MacKay had provided
medically appropriate, and in some
instances, beneficial treatment for their
pain, Respondent argued that ‘‘[t]he
DEA decision is based only on the
medical charts of a few patients out of
thousands Dr. MacKay has successfully
treated over the years. In fact . . . the
DEA’s expert only reviewed twelve
patient files and testified about even
fewer.’’ Id. at 20.
Notwithstanding that the Agency’s
decision was based entirely on the
evidence with respect to two patients
(K.R. and M.R.), see Dewey C. MacKay,
75 FR 49956, 49972 (2009); the Tenth
Circuit rejected Respondent’s
contention that the Agency had failed to
consider his ‘‘positive experience’’
evidence. As the Court of Appeals
explained:
Despite Dr. MacKay’s claim to the contrary,
the Deputy Administrator considered the
entire record, including the evidence in Dr.
MacKay’s favor. She determined, however,
that none of Dr. MacKay’s evidence negated
the DEA’s prima facie showing that Dr.
MacKay had intentionally diverted drugs to
K.D. and M.R. Indeed, she found that even
if Dr. MacKay had provided proper medical
care to all of his other patients, that fact
would not overcome the government’s
evidence with regard to M.R. and K.D.
None of the evidence presented by Dr.
MacKay undermines the evidence relating to
M.R. and K.D. Although numerous patients
and colleagues of Dr. MacKay related their
positive experiences with him, none had any
personal knowledge regarding his treatment
of M.R. and K.D. Notably, Dr. MacKay’s
medical expert . . . failed to specifically
discuss and justify Dr. MacKay’s treatment of
M.R. and K.D. As a result, none of Dr.
MacKay’s evidence contradicts the testimony
and evidence presented by the DEA relating
to the knowing diversion of drugs to these
two patients.
664 F.3d at 819.
The Court of Appeals then rejected
MacKay’s contention that the Deputy
Administrator had misweighed the
public interest factors. As the Court
explained: ‘‘[i]n light of Dr. MacKay’s
misconduct relating to factors two and
four, the government made a prima facie
showing that [his] continued
registration is inconsistent with the
public interest.’’ Id. (citing 75 FR at
49977). And the Court further explained
that ‘‘[a]lthough Dr. MacKay may have
engaged in the legitimate practice of
pain medicine for many of his patients,
the conduct found by the Deputy
Administrator with respect to K.D. and
M.R. is sufficient to support her
determination that his continued
registration is inconsistent with the
public interest.’’ Id.
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The CALJ further asserts that ‘‘to the
extent that the ever-widening range of
activity that the Agency considers
‘positive experience’ is banned, Factor 2
analysis, in the majority of Agency
cases, will largely consist of a reprise of
evidence also considered under Factor
4.’’ R.D. 81. Continuing, the CALJ
contends that ‘‘[t]he Government’s
ability to introduce alleged acts of
malfeasance will warrant double
consideration under Factor 2 and again
under Factor 4, but respondents will
remain unable to demonstrate that a
transgression constituted an isolated
occurrence when compared with even
many years of compliant practice as a
registrant.’’ Id.
The CALJ is mistaken. As JM
Pharmacy made clear, ‘‘[a]s in past
cases, the parties may continue to
introduce evidence as to the extent of
both a practitioner’s lawful or unlawful
dispensing activities.’’ 80 FR at 28668
n.2. Indeed, in these proceedings, the
Agency will assume, without requiring
the production of any evidence by a
respondent, that the practitioner has
lawfully issued every prescription other
than those alleged by the Government to
be unlawful. And contrary to the CALJ’s
understanding, notwithstanding the
Agency’s rejection of the notion that
‘‘the plain meaning’’ of Factor 2
mandates the consideration of ‘‘the
quantitative volume’’ of a respondent’s
dispensing, a respondent may still argue
that his conduct was ‘‘an isolated
occurrence when compared with even
many years of compliant practice’’ or an
‘‘aberration.’’ R.D. 81–82.
Equally misplaced is the CALJ’s
assertion that the Government’s
evidence of unlawful prescribing will
hence be given double consideration in
the public interest determination. Id. at
82. While evidence of a respondent’s
unlawful prescribing is clearly relevant
in assessing both his/her experience in
dispensing controlled substances and
compliance with applicable laws related
to controlled substances and thus
typically discussed under both factors—
indeed, because of the overlap between
the factors, the Agency has long
discussed both factors together—this
does not mean that the prescriptions
have been double weighted. See, e.g.,
Albert Lepis, 51 FR 17555, 17555–56
(1986).
As the Agency’s decision on remand
in Krishna-Iyer explained, ‘‘[w]hether
this conduct is evaluated under factor
two . . . or factor four, or both [factors],
is of no legal consequence. In
establishing [the Government’s] prima
facie case, the fundamental question is
whether [a] [r]espondent ‘has committed
such acts as would render [his]
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17:59 Mar 22, 2017
Jkt 241001
registration inconsistent with the public
interest.’ ’’ 57 74 FR at 462 (quoting 21
U.S.C. 824(a)(4)). Moreover, as both the
Agency and federal courts have
recognized, findings under a single
factor can support the denial of an
application or the revocation of a
registration. See MacKay, 664 F.3d at
821 (quoting Krishna-Iyer, 74 FR at 462).
While the Agency has explained that
proof of a single act of intentional or
knowing diversion remains sufficient to
satisfy the Government’s prima facie
burden and to impose on a respondent
the obligation to produce evidence to
show that he can be entrusted with a
registration, this is not the result of
double weighting the misconduct. See
Krishna-Iyer, 74 FR at 463; see also
MacKay, 664 F.3d at 819. Rather, it is
based on the recognition that a violation
of the prescription requirement (21 CFR
1306.04(a)) ‘‘strikes at the CSA’s core
purpose of preventing the abuse and
diversion of controlled substances.’’
Samuel Mintlow, 80 FR 3630, 3653
(2015); accord David A. Ruben, 78 FR
38363, 38386 (2013). Accordingly, the
Agency has held that where the
Government proves that a practitioner
has engaged in knowing or intentional
diversion, a respondent is not entitled to
be registered (or maintain an existing
registration) absent a credible
acceptance of responsibility.58 As the
Tenth Circuit has recognized:
. . . 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
. . . Administrator to consider whether that
doctor will change his or her behavior in the
future. And that consideration is vital to
whether continued registration is in the
57 While Krishna-Iyer involved a revocation
proceeding, the public interest inquiry is essentially
the same where the Agency proposes the denial of
an application.
58 In Krishna-Iyer, the Agency explained that
‘‘while some isolated decisions . . . may suggest
that a practitioner who committed only a few acts
of diversion was entitled to regain his registration
even without having to accept responsibility for his
misconduct, see Anant N. Mauskar, 63 FR 13687,
13689 (1998), the great weight of the Agency’s
decisions are to the contrary.’’ 74 FR at 464. Noting
that ‘‘[t]he diversion of controlled substances has
become an increasingly grave threat to this nation’s
public health and safety,’’ the Agency clarified its
policy and explained that ‘‘[t]o the extent Mauskar,
or any other decision of this Agency suggests
otherwise, it [wa]s overruled.’’ Id. at 464 n.9.
Continuing, the Agency explained that because of
the grave and increasing harm to public health and
safety caused by the diversion of prescription
controlled substances, even where the Agency’s
proof establishes that a practitioner has committed
only a few acts of knowing or intentional diversion,
this Agency will not grant or continue the
practitioner’s registration unless he accepts
responsibility for his misconduct. Id. at 464.
PO 00000
Frm 00042
Fmt 4701
Sfmt 4703
public interest. Without Dr. MacKay’s
testimony, the Deputy Administrator had no
evidence that Dr. MacKay recognized the
extent of his misconduct and was prepared
to remedy his prescribing practices.
MacKay, 664 F.3d at 820 (citing Hoxie
v. DEA, 419 F.3d 477, 483 (2005)).
Thus, contrary to the CALJ’s
understanding, a respondent can still
argue (as he/she always could) that his/
her misconduct in knowingly or
intentionally diverting controlled
substances was ‘‘an isolated
occurrence’’ or an ‘‘aberration’’ in his/
her years of otherwise compliant
professional practice. However, one
cannot argue that his/her conduct was
‘‘an isolated occurrence’’ or ‘‘an
aberration’’ without first acknowledging
that he/she has engaged in unlawful
conduct.59 And in any case, Respondent
has made no such argument.
Summary of Factors Two and Four
While Respondent put on no evidence
as to the lawfulness of his controlled
substance prescribing to patients other
than B.B., I have assumed that every
other prescription he has issued in the
course of his professional career
complied with 21 CFR 1306.04(a).60
Nonetheless, as found above,
59 The CALJ also asserts that in JM Pharmacy,
‘‘the Agency determined in clear terms that it will
no longer consider whether established misconduct
presented an isolated piece of an applicant’s record,
irrespective of whether the misconduct is
intentional or otherwise.’’ R.D. at 82 (emphasis
added). To the contrary, in JM Pharmacy, the
Administrator denied two applications for
pharmacy registrations, expressly adopting the
CALJ’s conclusion that the owner of the two
pharmacies had ‘‘knowingly and materially falsified
the applications he submitted.’’ 80 FR at 28669; see
also id. at 28683 (CALJ’s Recommended Decision:
‘‘It is clear that the Respondents, through their
common owner . . . knew or should have known
that the answers provided to Question 2 were false,
and that their . . . applications contained material
falsifications. The absence of any logical basis for
confusion and the past experience of [their owner]
as a registrant holder and pharmacist
preponderantly support a finding that the
misrepresentations were intentional, not negligent.
. . . [E]ven standing alone, the denial of the
Respondent’s . . . applications is adequately
supported on this record based on the material
falsifications set forth in the filed applications.’’)
(emphasis added); id. at 28689 (CALJ noting that
owner’s ‘‘insistence that his false response to an
application query . . . was simply not credible and
defeats the Respondents’ efforts to meet the
Government’s case. The false misrepresentation[s]
. . . are sufficiently egregious on their face to
warrant sanction’’). Thus, JM Pharmacy does not
support the CALJ’s assertion that the Agency does
not consider a respondent’s level of culpability in
committing misconduct.
60 This assumption may actually be more
favorable to Respondent than what is warranted
with respect to his experience in dispensing
controlled substances. In 2008, Respondent was
sanctioned by the Board for ‘‘prescribing controlled
dangerous substances’’ over the course of a threeyear period to a patient with whom he had sexual
relations. RX 3, at 2.
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Respondent issued multiple
prescriptions for various schedule II
narcotics outside the course of
professional practice and which lacked
a legitimate medical purpose. 21 CFR
1306.04(a). Moreover, the evidence in
no sense shows that Respondent was
merely neglectful, but rather supports a
finding that Respondent acted with
knowledge that B.B. was abusing and/or
diverting the controlled substances he
prescribed. And while the evidence of
record does not support a finding that
Respondent unlawfully prescribed to
any other patient, it is significant that
his misconduct went on for eight
months and involved 19 prescriptions
for schedule II narcotics alone. Thus, I
conclude that Respondent has engaged
in egregious misconduct which supports
the denial of his registration. See
MacKay, 75 FR at 49997; Krishna-Iyer,
74 FR at 463; Olefsky, 57 FR at 928–29.
I therefore hold that the Government
has established its prima facie case that
Respondent’s registration ‘‘would be
inconsistent with the public interest.’’
21 U.S.C. 823(f).
Sanction
Where, as here,61 the Government has
met its prima facie burden of showing
that issuing a new registration to the
applicant would be inconsistent with
the public interest, a respondent must
come forward with ‘‘‘‘‘sufficient
mitigating evidence’’’’’ to show why he
can be entrusted with a new
registration. Medicine ShoppeJonesborough, 73 FR 364, 387 (2008)
(quoting Samuel S. Jackson, 72 FR
srobinson on DSK5SPTVN1PROD with NOTICES2
61 So too, the egregiousness and extent of a
registrant’s misconduct are significant factors in
determining the appropriate sanction. See Jacobo
Dreszer, 76 FR 19386, 19387–88 (2011) (explaining
that a respondent can ‘‘argue that even though the
Government has made out a prima facie case, his
conduct was not so egregious as to warrant
revocation’’); Paul H. Volkman, 73 FR 30630, 30644
(2008); see also Paul Weir Battershell, 76 FR 44359,
44369 (2011) (imposing six-month suspension,
noting that the evidence was not limited to security
and recordkeeping violations found at first
inspection and ‘‘manifested a disturbing pattern of
indifference on the part of [r]espondent to his
obligations as a registrant’’); Gregory D. Owens, 74
FR 36751, 36757 n.22 (2009). As explained above,
Respondent’s misconduct in knowingly issuing
multiple prescriptions in violation of 21 CFR
1306.04(a) is egregious and supports the denial of
his registration and not the issuance of a
registration subject to conditions. Indeed, this is not
a close call.
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17:59 Mar 22, 2017
Jkt 241001
23848, 23853 (2007) (quoting Leo R.
Miller, 53 FR 21931, 21932 (1988))).
‘‘Moreover, because ‘past performance is
the best predictor of future
performance,’ ALRA Labs, Inc. v. DEA,
54 F.3d 450, 452 (7th Cir.1995), [DEA]
has repeatedly held that where a
registrant has committed acts
inconsistent with the public interest, the
registrant must accept responsibility for
[his] actions and demonstrate that [he]
will not engage in future misconduct.’’
Medicine Shoppe, 73 FR at 387; see also
Jackson, 72 FR at 23853; John H.
Kennedy, 71 FR 35705, 35709 (2006);
Prince George Daniels, 60 FR 62884,
62887 (1995). See also MacKay v. DEA,
664 F.3d at 820; Hoxie v. DEA, 419 F.3d
at 483 (‘‘admitting fault’’ is ‘‘properly
consider[ed]’’ by DEA to be an
‘‘important factor[]’’ in the public
interest determination).
Finally, the Agency has also held that
‘‘‘[n]either Jackson, nor any other
agency decision, holds . . . that the
Agency cannot consider the deterrent
value of a sanction in deciding whether
a registration should be [suspended or]
revoked.’’’ Joseph Gaudio, 74 FR 10083,
10094 (2009) (quoting Southwood
Pharmaceuticals, Inc., 72 FR 36487,
36504 (2007)); see also Robert Raymond
Reppy, 76 FR 61154, 61158 (2011);
Michael S. Moore, 76 FR 45867, 45868
(2011). This is so, both with respect to
the respondent in a particular case and
the community of registrants. See
Gaudio, 74 FR at 10095 (quoting
Southwood, 71 FR at 36503). Cf.
McCarthy v. SEC, 406 F.3d 179, 188–89
(2d Cir. 2005) (upholding SEC’s express
adoptions of ‘‘deterrence, both specific
and general, as a component in
analyzing the remedial efficacy of
sanctions’’).
Even with respect to the violations
which he found proven, the CALJ found
that ‘‘one clear and consistent aspect of
the record is the Respondent’s almost
dogged determination to accept no
responsibility for his actions.’’ R.D. 92.
This holds equally true with respect to
each of the controlled substance
prescriptions he issued in violation of
21 CFR 1306.04(a), as other than his
meager acknowledgement that his
documentation on certain progress notes
could have been better, Respondent has
not accepted responsibility for his
PO 00000
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Fmt 4701
Sfmt 9990
14985
misconduct with respect to any of the
controlled substance prescriptions he
unlawfully issued to B.B. beginning on
September 22, 2011 and ending on May
9, 2012. And as explained above, the
evidence supports the conclusion that
Respondent was not merely neglectful,
but that he engaged in knowing
misconduct when he issued the
prescriptions. As the Tenth Circuit has
recognized, Respondent’s failure to
acknowledge his misconduct establishes
that he is not prepared to remedy his
unlawful prescribing practices. MacKay,
664 F.3d at 820. This alone supports the
conclusion that he cannot be entrusted
with a new registration.62
So too, while the Agency’s interest in
specific deterrence is not triggered
(because I deny his application), as
found above, Respondent’s misconduct
is egregious and the Agency has a
manifest interest in deterring similar
misconduct by other practitioners. This
interest would be compelling even if it
was not the case that the nation was
confronting an epidemic of opioid
abuse. I therefore conclude that granting
Respondent’s application ‘‘would be
inconsistent with the public interest.’’
21 U.S.C. 823(f). Accordingly, I will
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 Wesley
Pope, M.D., for a DEA Certificate of
Registration as a practitioner, be, and it
hereby is, denied. This Order is effective
immediately.
Dated: March 16, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017–05676 Filed 3–22–17; 8:45 am]
BILLING CODE 4410–09–P
62 Even if Respondent had credibly accepted
responsibility for his misconduct, he has offered no
evidence of any remedial training he has
undertaken in controlled substance prescribing.
While the CSA does not impose a time bar on a
practitioner’s ability to reapply for a registration,
the rules of the Agency are clear. Thus, to obtain
favorable consideration of any new application,
Respondent must both credibly acknowledge his
misconduct in prescribing to B.B. and provide
evidence of remedial training he has undertaken in
the proper prescribing of controlled substances.
E:\FR\FM\23MRN2.SGM
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Agencies
[Federal Register Volume 82, Number 55 (Thursday, March 23, 2017)]
[Notices]
[Pages 14944-14985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-05676]
[[Page 14943]]
Vol. 82
Thursday,
No. 55
March 23, 2017
Part II
Department of Justice
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Drug Enforcement Administration
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Wesley Pope, M.D.; Decision and Order; Notice
Federal Register / Vol. 82 , No. 55 / Thursday, March 23, 2017 /
Notices
[[Page 14944]]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 15-8]
Wesley Pope, M.D.; Decision and Order
On October 8, 2014, the former Deputy Assistant Administrator of
the then-Office of Diversion Control, issued an Order to Show Cause to
Wesley Pope, M.D. (hereinafter, Respondent), of Newcastle, Oklahoma.
ALJ Ex. 1, at 1. The Show Cause Order proposed the denial of
Respondent's application for a new Certificate of Registration as a
practitioner in schedules II through V, on the ground that his
registration would be ``inconsistent with the public interest.'' Id.
(citing 21 U.S.C. 823(f)).
As support for the proposed denial, the Government alleged that
``[f]rom on or about August 25, 2011 through on or about May 9, 2012,
[Respondent] issued controlled substance prescriptions to [patient]
B.B. in violation of Federal and Oklahoma . . . law.'' Id. The
Government specifically alleged that ``on each of the occasions that
[Respondent] issued controlled substance prescriptions to B.B.,''
Respondent was ``aware . . . that he presented a high risk of abuse
and/or diversion of controlled substances, as evidenced by the red
flags documented in his patient file, such as aberrant urine drug
tests, a request for early refills, and a claim of stolen drugs.'' Id.
The Government then alleged that Respondent ``failed to address and, in
fact, ignored these red flags, continuing to issue B.B. controlled
substances [sic] prescriptions in the face of mounting evidence that he
was misusing, abusing, and/or diverting the controlled substances [he
was] prescribing.'' Id. The Government further alleged that ``[t]he
prescriptions [Respondent] issued to B.B. on each visit were below the
standard of care in Oklahoma and fell outside the usual course of
professional practice.'' Id. at 1-2 (citing 21 CFR 1306.04(a); Okla.
Admin. Code Sec. 435:10-7-4; id. Sec. 435:70-7-11 \1\; Okla. Bd. of
Med. Lic. & Super., Use of Controlled Substances for the Treatment of
Pain (Mar. 10, 2005)). The Show Cause Order then alleged that on 11
different dates, Respondent issued to B.B. prescriptions for such drugs
as hydrocodone/acetaminophen, Opana (oxymorphone), fentanyl patches,
morphine sulfate, oxycodone/acetaminophen, and Soma (carisoprodol)
which were ``invalid.'' Id. at 2-6. The Government also provided
detailed factual allegations pertaining to each of the prescriptions.
Id.
---------------------------------------------------------------------------
\1\ This is an apparent typographical error as there is no such
provision. The parties, however, spent considerable time arguing as
to whether Respondent complied with Okla. Admin. Code Sec. 435:10-
7-11, which governs the ``Use of Controlled Substances for the
Management of Chronic Pain.''
---------------------------------------------------------------------------
Respondent requested a hearing on the allegations. The matter was
then placed on the docket of the Office of Administrative Law Judges
and assigned to Chief Administrative Law Judge John J. Mulrooney, II
(hereinafter, CALJ). Following pre-hearing procedures, the CALJ
conducted a hearing on April 7-8, 2015 in Oklahoma City, Oklahoma.
During the hearing, both parties submitted documentary evidence; the
Government elicited the testimony of several witnesses and Respondent
testified on his own behalf.
On July 24, 2015, the CALJ issued his Recommended Decision (cited
as R.D.). Therein, the CALJ found that the allegations were sustained
only with respect to five of the dates on which Respondent prescribed
(and with respect to four of these dates, only sustained in part). See
R.D. 44, 46, 62, 64, 68. While the CALJ concluded that Respondent had
issued these prescriptions outside of the course of professional
practice and thus violated 21 CFR 1306.04(a), id. at 90, he further
reasoned that Respondent's misconduct reflected ``inattention to detail
[and] not intentional diversion.'' Id. at 82. He thus concluded that
while the Government had made out a prima facie case to warrant some
form of sanction, Respondent's conduct was not sufficiently egregious
to warrant denial even though he found that ``Respondent was
irresponsible in continuing to prescribe to this patient in the face of
red flags of diversion, and in failing to document or even possess the
ability to persuasively convey a medically-based justification for
prescribing new controlled medication.'' Id. at 92-93. And even though
Respondent had failed to accept responsibility and put forward no
evidence of remedial measures he had undertaken, the CALJ recommended
that he be granted a new registration subject to a one-year period of
probation with various conditions. Id.
The Government filed Exceptions to the Recommended Decision and
Respondent filed a Response to the Government's Exceptions. Thereafter,
the record was forwarded to my Office for Final Agency Action.
Having considered the record in its entirety including the
Recommended Decision, the Government's Exceptions, and Respondent's
Response to the Government's Exceptions, I agree with the CALJ's
findings and legal conclusion with respect to the first prescribing
event (August 25, 2011). While I agree with the CALJ's legal
conclusions that Respondent acted outside of the usual course of
professional practice when he prescribed controlled substances during
the third, fourth, tenth, eleventh, and twelfth prescribing events, I
hold that several of the exceptions raised by the Government are well
taken and that additional relevant evidence should be considered in
review of the record. Based on my consideration of the record as a
whole, I, as the ultimate fact-finder, conclude that a preponderance of
the evidence supports the conclusions that Respondent knowingly
diverted controlled substances by issuing prescriptions in violation of
21 CFR 1306.04(a) when he prescribed various schedule II controlled
substances on 11 occasions, beginning on September 22, 2011 and ending
on May 9, 2012.
I further find that Respondent's misconduct is egregious and
establishes a prima facie case for denial. Because I also agree with
the CALJ that the record reflects Respondent's ``almost dogged
determination to accept no responsibility for any of his actions'' and
that he ``has not presented even the most modest plan for any remedial
action,'' R.D. 92, I conclude that his application should be denied.
The Government's Exceptions
In its Exceptions, the Government raises multiple contentions,
several of which warrant discussion prior to making factual findings.
The first of these is that the CALJ erroneously concluded that the
Oklahoma Medical Board's Standards ``on which the Government relied
were permissive rather than mandatory.'' Exceptions, at 5. Indeed, in
making his legal conclusions, the CALJ repeatedly declined to give
weight to the Government Expert's testimony on material issues,
reasoning that the Expert's testimony was premised on his
misunderstanding that the Board's regulations, in particular its
documentation and recordkeeping rules, were mandatory rather than
permissive.
Second, the Government maintains that the CALJ erroneously held
that the Government failed to provide adequate notice to Respondent of
its intent to rely on the various aberrant drug tests as part of its
proof that various prescriptions were issued in violation of 21 CFR
1306.04(a). With respect to this exception, the Government argues that
not only did it provide adequate notice, the aberrant nature of the
various urine drug screens (UDS) was litigated by consent. Exceptions,
at 15-25. It also takes exception to the CALJ's finding
[[Page 14945]]
that several of the UDSs were not aberrant.
The CALJ's Conclusion That the Board's Standards Are Permissive
Throughout his Recommended Decision, the CALJ repeatedly declined
to give weight to the Government Expert's testimony that Respondent
failed to conduct a medically adequate evaluation of B.B.'s pain
complaint and establish medical necessity to justify the prescribing of
controlled substances. The basis of the CALJ's reasoning was that the
deficiencies identified by the Expert ``generally relate to a paucity
of documented proof in the chart entries as to whether or how much
various medical treatment considerations that he favors were considered
by the Respondent in making his prescription decision.'' R.D. at 35.
Based on his conclusion that the provisions of the Oklahoma Board's
rules applicable to a physician's documentation of his evaluation of a
patient and recordkeeping are ``permissive'' and not mandatory, the
CALJ reasoned that ``Respondent's alleged lack of documentation . . .
is likely not as fatal to the Respondent's adherence to the standard of
care in Oklahoma as the Government expert claims.'' R.D. 16. I
disagree.
With respect to the evaluation of the patient, the Oklahoma Rule
states:
A medical history and physical examination must be obtained,
evaluated and documented in the medical record. The medical record
should document the nature and intensity of the pain, current and
past treatments for pain, underlying or coexisting diseases or
conditions, the effect of the pain on physical and psychological
function and history of substance abuse. The medical record also
should document the presence of one or more recognized medical
indications for the use of a controlled substance.
Okla. Admin. Code Sec. 435:10-7-11(1). And with respect to medical
records, the Oklahoma Rule states in relevant part that ``[r]ecords
should remain current'' and that ``[t]he physician should keep accurate
and complete records.'' Id. Sec. 435:10-7-11(6). The records are ``to
include . . . the medical history and physical examination (including
vital signs),'' ``diagnostic, therapeutic and laboratory results,''
``evaluations, consultations and follow-up evaluations,'' ``treatment
objectives,'' ``discussion of risks and benefits,'' ``informed
consent,'' ``treatments,'' ``medications (included date, type, dosage
and quantity prescribed),'' ``instructions and agreements and periodic
reviews.'' Id. In the CALJ's view, because the provisions of the
Oklahoma regulation applicable to the documentation of the physician's
evaluation of his patient and his recordkeeping use the word ``should''
in expressing the State's rules, the obligations they impose are
``permissive.'' R.D. at 16.
The CALJ, however, cited no authority from either the Board or the
Oklahoma courts definitively interpreting the word ``should'' as used
in the context of these two provisions as ``permissive.'' See, e.g.,
id. at 6. Indeed, the CALJ's conclusion appears to have been based
entirely on the fact that the Board's prior version of its intractable
pain rule used such words as ``requires'' and ``must'' in setting forth
a practitioner's obligations with respect to documentation and
recordkeeping. See R.D. 87 n.147 (quoting Okla. Admin. Code Sec.
435:10-7-11(b) (2004): ``[t]his rule requires that a diagnosis be
documented'' and id. Sec. 435:10-7-11(j): ``[a]ccurate and complete
records to document compliance with this section must be kept''). In
the CALJ's view, ``[t]he evolution of the [regulations] demonstrate
[sic] that their permissive nature represents an intentional re-
direction by Oklahoma.'' Id.
However, when the Board promulgated the current version of the rule
in 2005, it simply noted that ``[t]he rule is being updated based on
recommendations from the Federation of State Medical Boards.'' 22 Okla.
Reg. 2096 (June 15, 2005); see also 22 Okla. Reg. 379 (Notice of
Rulemaking Intent; Feb. 1, 2005). In short, the CALJ's reliance on the
Board's decision to adopt the Federation of State Medical Board's model
rule simply proves too much.
Furthermore, although the word ``should'' is susceptible to
different meanings, when used in the context of legal requirements, it
generally does not connote ``permission'' but rather obligation or
duty. United States v. Anderson, 798 F.2d 919, 924 (7th Cir. 1986)
(``The common interpretation of the word `should' is `shall' and thus a
straight-forward construction of [the Code of Judicial Conduct] reveals
that it imposes a mandatory rule of conduct upon a judge.'') \2\;
Wollschlaeger v. Farmer, 814 F.Supp.2d 1367, 1376 (S.D.Fl. 2011)
(``Generally, laws that provide for disciplinary action in the cases of
violations or noncompliance are mandatory, not precatory or hortatory.
. . .''); see also Bureau of Prisons v. FLRA, 737 F.3d 779, 787 (D.C.
Cir. 2013) (`` `Should' is typically used to express an obligation or
duty.'') (citing Webster's Third International Dictionary 2104 (1976));
see also Webster's Third International Dictionary 2104 (defining
``should'' as ``used in auxiliary function to express duty, obligation,
necessity, propriety or expediency'').
---------------------------------------------------------------------------
\2\ As the Seventh Circuit also noted, ``as listed in Roget's
Thesaurus, [the word ``should''] means `be obliged, must . . . have
to.' The common interpretation of the word `should' is `shall.' ''
798 F.2d at 924.
---------------------------------------------------------------------------
Moreover, reading the Board's documentation and recordkeeping
provisions as permissive cannot be squared with the Oklahoma Medical
Practice Act. Cf. Wollschlaeger, 814 F.Supp.2d at 1376 (rejecting
interpretation that statute which used ``should'' was hortatory when
State law provided that violations of provision constituted grounds for
disciplinary action). Under the Medical Practice Act, a physician's
``[f]ailure to maintain an office record for each patient which
accurately reflects the evaluation, treatment, and medical necessity of
treatment of the patient'' constitutes ``unprofessional conduct.'' 50
Okla. Stat. Ann. Sec. 509(18). Another provision of the Medical
Practice Act states that ``[a]dequate medical records to support
diagnosis, procedures, treatment, or prescribed medications must be
produced and maintained.'' Id. Sec. 509(20) (emphasis added). And a
further provision of the Medical Practice Act makes ``[p]rescribing . .
. controlled substances or narcotic drugs without medical need in
accordance with published standards'' ``unprofessional conduct.'' Id.
Sec. 509(16).
Thus, construing the Board's documentation and recordkeeping rules
as permissive would be fundamentally inconsistent with the Medical
Practice Act's provisions on documentation and recordkeeping, which are
clearly mandatory. See Abramski v. United States, 134 S.Ct. 2259, 2267
n.6 (2014) (``[A] court should not interpret each word in a statute
with blinders on, refusing to look at the word's function within the
broader statutory context. As we have previously put the point, a
`provision that may seem ambiguous in isolation is often clarified by
the remainder of the statutory scheme . . . because only one of the
permissible meanings produces a substantive effect that is compatible
with the rest of the law.' '') (quoting United Sav. Assn. of Tex. v.
Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988)).
See also Jacobs v. New York Foundling Hosp., 577 F.3d 93, 99 (2d Cir.
2009).
Accordingly, the Board's Intractable Pain Rule's documentation and
recordkeeping provisions are not
[[Page 14946]]
reasonably read as being permissive.\3\ Indeed, in the Policy Statement
it issued contemporaneously with the promulgation of the Rule, the
Board provided further evidence that the documentation and
recordkeeping requirements are not permissive. For example, the Board
explained that ``[a]ll such prescribing [of controlled substances for
pain] must be based on clear documentation of unrelieved pain. To be
within the usual course of professional practice, a physician-patient
relationship must exist and the prescribing should be based on a
diagnosis and documentation of unrelieved pain.'' Policy Statement, at
2 (emphasis added). Were the CALJ's interpretation correct, what the
Board required in the first sentence was then rendered permissive by
the use of the word ``should'' in the following sentence. Indeed, if
the word ``should'' rendered the rules permissive, a physician could
prescribe controlled substances to his patient without even having
formulated a diagnosis. This makes no sense and thus, the better view
is that the words ``must'' and ``should'' have the same meaning: they
impose mandatory obligations.
---------------------------------------------------------------------------
\3\ In a series of cases involving the State of Florida's former
regulation entitled ``Standards for the Use of Controlled Substances
for Treatment of Pain'' (Fla. Admin. Code r. 64B8-9.013 (2009)),
which adopted nearly verbatim the FSMB's text (including the
respective uses of the words ``must'' and ``should'') in setting
that State's documentation standard with respect to the evaluation
of the patient, the CALJ explained that ``[c]onscientious
documentation is repeatedly emphasized as not just a ministerial
act, but a key treatment tool and a vital indicator to evaluate
whether the physician's prescribing practices are `within the usual
course of professional practice.' '' See, e.g., Roni Dreszer, 76 FR
19434, 19448-49 (2011). So too here.
---------------------------------------------------------------------------
In its Policy Statement, the Board also stated that it ``will judge
the validity of the physician's treatment of the patient based on
available documentation.'' Id. And finally, the Board stated that it
``will not take disciplinary action against a physician for deviating
from this policy when contemporaneous medical records document
reasonable cause for deviation.'' Id. It makes no sense to advise
physicians that the validity of their treatment decisions will be based
on documentation and recordkeeping requirements if those provisions are
not requirements at all, but rather, merely hortatory and aspirational
pronouncements.
Accordingly, I do not agree that the Government Expert's testimony
as to the deficiencies in Respondent's evaluations of B.B. was based on
the Expert's mistaken understanding of the scope of the Oklahoma
Board's documentation and recordkeeping standards. Thus, while I fully
agree with the CALJ that the Expert's ``testimony predictably raised no
issues regarding credibility,'' I disagree with the CALJ's assertion
that the Expert's ``testimony was not without its own `red flags.' ''
R.D. 18. I therefore find that this exception is well taken.
The CALJ's Rulings That the Government Failed To Provide Adequate
Notice of Its Intent To Rely on Various Urine Drug Screen Results as
Probative Evidence of the Illegality of the Prescriptions
Throughout his Recommended Decision, the CALJ repeatedly declined
to consider the Government's evidence that Respondent failed to address
an aberrant urine drug screen which showed that his patient B.B. was
not taking a controlled substance that had been prescribed to him. See,
e.g., R.D. at 38-39 n.75. In the CALJ's view, the Government did not
provide adequate notice of its intent to rely on Respondent's failure
to address an aberrant June 1UDS in either the Show Cause Order or its
Pre-hearing Statements with respect to multiple prescriptions. See id.
at 38-39 (Sept. 25, 2011 Rxs), 48 (Nov. 18 and Dec. 15, 2011 Rxs); 51
(Jan. 19, 2012 Rxs); 54 (Feb. 13, 2012 Rxs), 56 (Mar. 13, 2012 Rxs), 60
(April 12, 2012 Rxs), 64 n.121 (April 25, 2012 Rx). As support for his
rulings, the CALJ maintained that ``the Agency has recently imposed an
increased standard of notice on it administrative prosecutors.'' Id. at
39 n.75 (citing Farmacia Yani, 80 FR 29053, 29064 n.28 (2015); Jana
Marjenhoff, 80 FR 29067, 29068 (2015)). A review of these decisions
shows, however, that the Agency has not ``imposed an increased standard
of notice'' \4\ but simply applied the
[[Page 14947]]
extensive body of judicial precedent that addresses the adequacy of
notice in administrative adjudication, which, as the Second Circuit has
explained, ``is so peculiarly fact-bound as to make every case
unique.'' Pergament United Sales, Inc. v. NLRB, 920 F.2d 130, 135 (2d
Cir. 1990) (quoted in Marjenhoff, 80 FR at 29068); see also Marjenhoff,
80 FR at 29067-68 (discussing court decisions on notice in
administrative adjudication); Farmacia Yani, 80 FR at 29059 (same).
---------------------------------------------------------------------------
\4\ According to the CALJ, in Farmacia Yani, ``the Government's
notice was deemed insufficient in that although the alleged
misconduct was disclosed and pursued, it did not include the correct
regulation subsection in its [Show Cause Order] and prehearing
statement.'' R.D. 66 (citing 80 FR at 29064 n.28). This, however,
misstates the case.
At issue in footnote 28 of Farmacia Yani was the Government's
allegation that the pharmacy had filled Suboxone prescriptions which
were clearly issued for maintenance or detoxification purposes by
two physicians but which did not contain the requisite
identification number or good faith statement establishing that the
physician was authorized to prescribe Suboxone for these purposes.
See 80 FR 29063-64. As the legal basis for the allegation, the
Government cited 21 CFR 1306.04 and 1306.06. The first regulation
includes, inter alia, subsection a, which makes it illegal for a
pharmacist to knowingly fill a prescription issued outside of the
usual course of professional practice and which lacks a legitimate
medical purpose, and subsection c, which provides, in part, that a
prescription may not be issued for maintenance or detoxification
treatment unless ``the practitioner is in compliance with the
requirements'' applicable to practitioners who prescribe Suboxone
for maintenance or detoxification treatment. See 21 CFR 1306.04(a) &
(c); id. Sec. 1301.28 (requirements for prescribing Suboxone for
this purpose); see also id. Sec. 1306.06 (``A prescription for a
controlled substance may only be filled by a pharmacist, acting in
the usual course of his professional practice. . . .'').
While the Decision noted that the Government had not identified
the specific subsection of 1306.04 which it alleged was violated, it
did not hold that the ``notice was deemed insufficient.'' R.D. 66.
Indeed, while the Decision rejected the Government's contention that
the pharmacist acted outside of the usual course of professional
practice in violation of 1306.04(a) and 1306.06 for lack of
evidence, 80 FR at 29064, and further noted that 1306.04(c)
``impose[s] duties only on the issuer of [a] prescription which has
been issued to provide maintenance or detoxification purposes,'' id.
at n.28, the Decision nonetheless found that the pharmacy had
violated another provision of the Agency's regulations.
Specifically, the Decision found a violation based on 21 CFR
1306.05(f), which imposes ``[a] corresponding liability . . . upon
the pharmacist . . . who fills a prescription not prepared in the
form prescribed by DEA regulations, '' 21 CFR 1306.05(f), and 21 CFR
1306.05(b), which requires that such a prescription include either
the prescriber's X number or good faith statement. See 80 FR at
29064 & n.28 (citation omitted).
Indeed, notwithstanding that the Government cited the wrong
provision of the regulations, the respondent's principal did not
dispute that her conduct in filling these prescriptions was a
violation. See Respondent's Proposed Findings of Fact and
Conclusions of Law, at 11 (Proposed Conclusion of Law #11: ``The
second violation[] relates to buprenorphine prescriptions from two
physicians who were not authorized to prescribe such prescriptions
because they were not Data-waived practitioners. Physicians are
issued a specific registration that is distinguished with an X
number, and this number[] should be on the prescription. Farmacia
Yani dispensed 29 prescriptions in total from these two doctors that
did not have an X number.'') (citations omitted). Thus, this case
does not support the CALJ's assertion that ``recent Agency precedent
has imposed significantly tighter notice requirements on the
Government.'' R.D. at 66.
The CALJ further asserted that ``[i]n Marjenhoff, . . . the
Agency refused to allow the Government to rely on noticed conduct
alleged as a violation of the public interest factors because it
failed to specify that the conduct would be specifically considered
under factor 5.'' R.D. 66 (citing 80 FR at 29068). Here again, this
is a misstatement of the case.
Apparently, the CALJ's assertion refers to the Agency's
declination to find that the respondent's conduct in intercepting a
pharmacist's phone calls (who questioned the validity of a
prescription the respondent had created for herself by forging the
signature of the purported prescriber) constituted actionable
misconduct under factor five. 21 U.S.C. 823(f)(5). This factor
provides for liability based on ``such other conduct which may
threaten public health and safety.'' Id.
Significantly, the Show Cause Order made no such allegation,
and while the Government disclosed in its pre-hearing statement that
it intended to elicit testimony from the pharmacist regarding his
attempt to verify the prescription after it was rejected for payment
by respondent's insurer, at no point in the proceedings did the
Government rely on the evidence other than as proof that the
``[r]espondent illegally obtained hydrocodone on eleven occasions.''
See Govt.'s Proposed Findings of Fact and Conclusion of Law, at 14
(discussing the pharmacist's testimony as evidence that respondent
``forged and filled hydrocodone prescriptions to herself using [a
PA's] DEA number. These actions constitute violations of 21 U.S.C.
843(a)(3) [and] 21 CFR 1306.04. . . .''). Moreover, in its
discussion of Factor Five, the Government's arguments were confined
to arguing that the ``[r]espondent has failed to accept
responsibility for her actions,'' that she had not ``present[ed] any
mitigating evidence,'' and that she ``has demonstrated a pattern of
actions that are against the public interest by inappropriately
prescribing controlled substances . . . in 2005 and forging and
filling prescriptions in 2011.'' Id. at 15-16.
Thus, contrary to the CALJ's statement, the Government never
relied on this conduct as a separate ``violation of the public
interest factors.'' R.D. at 66. Nor could it have, as the public
interest factors do not impose substantive rules of conduct but are
simply ``components of the public interest'' that ``shall be
considered'' in determining whether to grant an application for a
registration. Penick Corp., Inc. v. DEA, 491 F.3d 483, 490 (D.C.
Cir. 2007) (citation omitted). Most importantly, at no point did the
Government assert that this conduct should also be considered as a
separate act of misconduct under Factor Five.
---------------------------------------------------------------------------
The CALJ also held that the Government could not rely on this
evidence under the doctrine of litigation by consent--even though
Respondent never objected to the Expert's testimony that the June 1
(and other tests) were aberrant and that Respondent failed to properly
address the aberrant results--asserting that the Government had the
duty to ``timely and affirmatively raise[] . . . this theory'' and
failed to do so. Id. at 39 (citing Odette Campbell, 80 FR 41062, 41062
n.2 (2015)). This reasoning, however, is also based on a misreading of
that case.\5\
---------------------------------------------------------------------------
\5\ In Campbell, the ALJ noted that `` `the evidence indicate[d]
that [the] [r]espondent did not follow adequate security
procedures,' '' but then ``declined to consider the evidence on the
ground that the Government did not provide adequate notice in either
the Show Cause Order or its Prehearing Statements, notwithstanding
that [the] [r]espondent did not object to the testimony.'' 80 FR at
41062 n.2 (other citation omitted). While the former Administrator
observed that ``the record arguably support[s] a finding that the
issue was litigated by consent,'' she did not consider the evidence
because ``the Government did not take exception to the ALJ's
ruling.'' Id.
Here, by contrast, the Government has taken exception to the
CALJ's rulings that the issue has not been litigated by consent. See
Gov. Exceptions, at 24-25. As for the CALJ's assertion that the
issue was ``not timely'' raised by the Government, given that: (1)
Respondent never objected to the testimony nor argued in its post-
hearing brief that it did not have fair notice that the June 1 drug
screen would be at issue throughout the proceeding, and (2) the CALJ
did not rule that the Government could not rely on this theory until
he issued his Recommended Decision, it is unclear how the Government
could have timely raised the issue until it received the Recommended
Decision and filed its Exceptions.
---------------------------------------------------------------------------
``The primary function of notice is to afford [a] respondent an
opportunity to prepare a defense by investigating the basis of the
complaint and fashioning an explanation that refutes the charge of
unlawful behavior.'' Pergament United Sales, Inc. v. NLRB, 920 F.2d
130, 135 (2d Cir. 1990) (citation omitted). Thus, as the courts have
long noted, `` `[p]leadings in administrative proceedings are not
judged by the standards applied to an indictment at common law.' ''
Aloha Airlines v. Civil Aeronautics Bd., 598 F.2d 250, 262 (D.C. Cir.
1979) (quoted in CBS Wholesale Distributors, 74 FR 36746, 36749
(2009)); accord Citizens State Bank of Marshfield v. FDIC, 751 F.2d
209, 213 (8th Cir. 1984). Moreover, an agency ``is not burdened with
the obligation to give every [Respondent] a complete bill of
particulars as to every allegation that [he] will confront.'' Boston
Carrier, Inc. v. ICC, 746 F.2d 1555, 1560 (D.C. Cir. 1984).
Accordingly, even where the Government fails to disclose an
allegation in the Order to Show Cause, ``an issue can be litigated if
the Government otherwise timely notifies a [r]espondent of its intent
to litigate the issue.'' CBS Wholesale, 74 FR at 36570. Moreover, while
the Agency has held that ``the parameters of the hearing are determined
by the prehearing statements,'' consistent with numerous court
decisions, it has also recognized that even where an allegation was not
raised in either the Show Cause Order or the pre-hearing statements,
the parties may nonetheless litigate an issue by consent. Pergament
United Sales, 920 F.2d at 135-37; see also Duane v. Department of
Defense, 275 F.3d 988, 995 (10th Cir. 2002) (discussing Facet
Enterprises, Inc., v. NLRB, 907 F.2d 963, 974 (10th Cir. 1990); ``we
held that the defendant had constructive notice of an alternate theory
of liability not described in the formal charge when the agency
detailed that theory during its opening argument and at other points
during the hearing and when the defendant's conduct revealed that it
understood and attempted to defend against that theory'').\6\
---------------------------------------------------------------------------
\6\ See also Grider Drug #1 & Grider Drug #2, 77 FR 44070, 44077
n.23 (2012) (holding that while the Government did not provide
adequate notice of its intent to litigate an allegation in either
the Show Cause Order or its pre-hearing statements, where
respondents ``did not object that the allegation was beyond the
scope of the proceeding and that they were denied adequate notice of
it'' and ``fully litigated the issue,'' the allegation was litigated
by consent) (citing Citizens State Bank, 751 F.2d at 213; Kuhn v.
Civil Aeronautics Bd., 183 F.2d 839, 841-42 (D.C. Cir. 1950); and
Yellow Freight System, Inc., v. Martin, 954 F.2d 353, 358 (6th Cir.
1992)).
---------------------------------------------------------------------------
To be sure, ``[a]n agency may not base its decision upon an issue
the parties tried inadvertently. Implied consent is not established
merely because one party introduced evidence relevant to an unpleaded
issue and the opposing party failed to object to its introduction. It
must appear that the parties understood the evidence to be aimed at the
unpleaded issue.'' Yellow Freight System, Inc., v. Martin, 954 F.2d
353, 358 (6th Cir.1992) (citation omitted). Accordingly, where the
Government's case ``focus[es] on another issue and [the] evidence of
[an] uncharged violation [is] `at most incidental,' '' the Government
has not satisfied its constitutional obligation to provide a full and
fair opportunity to litigate the issue and it cannot rely on the
incidental issue as the basis for imposing a sanction. Pergament, 920
F.2d at 136 (quoting NLRB v. Majestic Weaving Co., 355 F.2d 854, 861-62
(2d Cir. 1966)). However, the issue of whether an allegation ``has been
fully and fairly litigated [by consent] is so peculiarly fact-bound as
to make every case unique.'' Id. at 136.
Having reviewed the record, I find the Government's exception well
taken and hold that the Government provided Respondent with adequate
notice that both the aberrant nature of the June 1 drug test and his
failure to address it would be at issue throughout the proceeding.
Moreover, even if the Government failed to specifically reference the
June 1 test by date in the Show Cause Order (and Pre-hearing
Statements) with respect to several of the prescriptions, Respondent
had adequate notice that it was at issue throughout the proceeding and
indeed, had a full and fair opportunity to litigate the issue.
The Show Cause Order repeatedly provided notice that the aberrant
nature of B.B.'s June 1 UDS and Respondent's failure to address it
would be at issue in the proceeding. For example, paragraph 3 of the
Show Cause order alleged that ``[f]rom on or about August 25, 2011
through on or about May 9, 2012, [Respondent] issued controlled
substance[] prescriptions to B.B. in violation of Federal . . . law.''
ALJ Ex. 1, at 1 (emphasis added). The Show Cause Order then alleged
that Respondent was ``aware on each of the occasions that [he] issued
controlled substance[] prescriptions to B.B. that he presented a high
risk of abuse and/or diversion of controlled substances, as evidenced
by the red flags documented in his patient file, such as aberrant
[[Page 14948]]
urine drug tests.'' Id. (emphasis added). And the Order then alleged
that Respondent ``failed to address and, in fact, ignored these red
flags, continuing to issue B.B controlled substance prescriptions in
the face of mounting evidence that he was misusing, abusing, and/or
diverting the controlled substances you were prescribing.'' Id.
In the allegations regarding the August 25, 2011 prescriptions, the
Show Cause Order provided a detailed recitation of the factual basis
for the allegation that the June 1, 2011 UDS was aberrant and that this
``should have indicated . . . that B.B. may have been misusing/abusing
the alprazolam by consuming more than he had been prescribed, or
diverting it.'' Id. at 2. As for the September 22, 2011 prescriptions,
the Show Cause Order, after setting forth the factual basis for why the
August 25 UDS was aberrant, proceeded to allege that Respondent ``did
not address with B.B. the now second aberrant drug screen in an
approximately three month period, despite noting in the record that you
had `extensively reviewed' B.B.'s `[p]ast medical history.' '' Id. at 3
(emphasis added). The Show Cause order then alleged that ``[y]ou took
no other steps to monitor B.B.'s controlled substance use, such as
requiring him [to] take another drug screen due to the two failed ones,
conducting a new [prescription monitoring report] check, or requiring
him to submit to a pill count.'' Id. (emphasis added).
In setting forth the allegations with respect to the October 6 and
20 prescriptions, the Show Cause Order alleged that ``[y]ou still did
not address with B.B. the two aberrant drug screens'' and ``[y]ou still
had not confronted B.B. about the two aberrant drug screens''
respectively. Id. at 4 (emphasis added). And with respect to the
subsequent prescriptions, the Show Cause Order made multiple
allegations such as that: (1) Respondent ``did not take any steps to
monitor [B.B.'s] controlled substance[ ] use despite his history of
misusing, abusing, or diverting controlled substances'' (Nov. 18, 2011
prescriptions); (2) ``despite [B.B.'s] history of substance misuse,
abuse, and/or diversion, you did not take appropriate steps to monitor
his controlled substance use before issuing him these new
prescriptions'' (Jan. 19, 2012 prescriptions); and (3) Respondent again
prescribed controlled substances ``without taking appropriate steps to
monitor [B.B.'s] controlled substance use despite the persistent red
flags of abuse and diversion he previously presented'' (Mar. 13, 2012
prescriptions).
Likewise, in its Pre-hearing Statement, the Government provided
notice that ``Dr. Owen [its Expert] will testify that [Respondent]
should have been aware from documentation in B.B.'s file of red flags
that B.B. may have been abusing or diverting controlled substances
prior to transferring his treatment to'' Respondent (the period in
which the June 1 UDS was obtained), as well as notice setting forth the
factual basis as for why the June 1 UDS was aberrant. ALJ Ex. 5, at 10,
12-13. With respect to the September 22, 2011 prescriptions, the Pre-
hearing Statement provided notice that the medical file shows that
Respondent ``never addressed with B.B. this now second aberrant UDS in
an approximately three month period, despite noting in the record that
[he] had `extensively reviewed' B.B.'s past medical history'' and that
Respondent ``took no other steps to monitor B.B.'s controlled substance
use, such as requiring him to take another UDS due to the two failed
ones.'' Id. at 14 (emphasis added).
Moreover, with respect to the October 6 prescriptions, the Pre-
hearing Statement provided notice that ``Dr. Owen will testify that on
this visit [Respondent] again failed to address with B.B. the two
aberrant UDSs,'' and with respect to the October 20, 2011
prescriptions, ``the record lacks documentation that . . . he
confronted B.B. about the two aberrant UDSs.'' Id. at 15-16 (emphasis
added). And with respect to the later prescriptions, the Pre-hearing
Statement provided notice that Dr. Owen ``will testify'' that
Respondent ``also failed to take any steps to monitor B.B.'s controlled
substances use despite B.B.'s history of misusing, abusing, or
diverting controlled substances.'' Id. at 16. See also id. at 17 (Jan.
19 prescriptions; ``Dr. Owen will testify that despite the fact that
this was B.B.'s first visit . . . in three months, and despite his
history of substances misuse, abuse, and/or diversion, [Respondent]
failed to take adequate steps to monitor B.B.'s controlled substance
use before issuing him these new prescriptions''); id. at 19 (Mar. 13
prescriptions; providing notice that ``Dr. Owen will testify'' that
Respondent again issued controlled substance prescriptions ``without
taking appropriate steps to monitor B.B.'s controlled substance use
despite the persistent red flags of abuse and diversion he previously
presented'').
Thus, the Show Cause Order's allegations and the Pre-Hearing
Statement's disclosure of the expected testimony provided Respondent
with more than adequate notice that the results of the June 1, 2011 UDS
and his failure to address it would be at issue throughout the
proceeding. And even if I concluded otherwise, the record is clear that
the issue was litigated by consent.
Notably, during its direct examination of Dr. Owen regarding the
September 22, 2011 prescriptions, the Government asked Dr. Owen the
following questions:
Q. Would the aberrant urine drug test from June 1 have shown up
in a review of the history?
A. Yes.
Q. Would the aberrant drug test from August 25, 2011, have shown
up in the history?
A. Yes.
Q. And were those aberrant drug tests part of this medical file
as you received it?
A. Yes, it [sic] was.
Q. What--how does [Respondent] address the aberrant drug tests
in this 9/22 patient file note[]?
A. It's [sic] completely ignored.
Q. What steps should [Respondent] have taken regarding the
aberrant drug screens?
A. He should have acknowledged their existence and then taken
some corrective action.
. . . .
Q. Does it appear that [Respondent] took any safeguard regarding
the potential for diversion or abuse with the aberrant drug screens?
A. No.
Tr. 132-33.
Notably, Respondent did not object to any of this testimony. See
id. Moreover, the Government asked similar questions of Dr. Owen
regarding the later prescriptions, with no objection by Respondent. See
id. at 136 (Oct. 6, 2011 visit; Q. ``Having reviewed the patient file,
can you tell me what steps [Respondent] took on this date to address
the two previous aberrant urine drug tests?'' A. ``The previous
aberrant urine drug tests are ignored and not addressed.''); id. at 139
(Oct. 20, 2011visit: Q. ``What steps should [Respondent] have taken on
this date?'' A. Respondent ``[s]hould have, particularly in light of
the previous aberrant drug tests . . . sought psychological counseling
for this patient.'').\7\
---------------------------------------------------------------------------
\7\ See also Tr. 143 (Nov. 18 and Dec. 15, 2011 Rxs: Q. ``Is
there any mention anywhere about the aberrant drug tests and the
results being discussed with BB?'' A. ``No, there's not.''); id. at
147 (Jan. 19, 2102 visit and Rxs: Q. ``Is there any mention of the
aberrant urine drug tests from June or August in this [patient file]
during this visit?'' A. ``There is not.''); id. at 154 (Feb. 13 Rxs:
testimony of Dr. Owen's that Respondent's counseling B.B. ``to take
only as prescribed'' after Jan. 19 drug test was not an adequate
safeguard against abuse and diversion, ``especially since this is
the third aberrant drug test''); id. at 154-55 (Feb. 13 Rxs: Q. ``In
the face of so many aberrant drug tests, what steps--what should
[Respondent] have done?''); id. at 158 (Mar. 13, 2012 Rxs: Q. ``Are
there any aberrant drug-taking behaviors here?'' A. ``There has
[sic] been three previous.''); id. at 165-66 (Apr. 12, 2012 Rxs Q.
``Did he address any of the previous aberrant drug screens?'' A.
``He did not.''). Significantly, at no point did Respondent object
to the questioning or testimony.
---------------------------------------------------------------------------
[[Page 14949]]
Indeed, Respondent's counsel raised the issue when, in Respondent's
case-in-chief, she asked him: `Do you recall if you looked back at the
previous drug tests?'' Id. at 283. Respondent answered: ``I don't
recall, but I doubt I did'' and ``I wouldn't expect myself to.'' Id.
Respondent's counsel then asked him if Dr. Schoelen had seen B.B.in
June and July after the June 1 drug test, with Respondent answering
``[t]hat's correct.'' Id. Respondent then testified that the test was
reported back to his former partner, who saw B.B. on June 29 and July
26, before testifying that he would have ``routinely looked at two,
three different notes.'' Id. at 284.
Subsequently, on its cross-examination of Respondent with respect
to what he looked at in the chart when he took over B.B.'s care, the
Government asked: ``Did you see the June 1, 2011, UD[S], urine drug
test?'' Id. at 390. Respondent's counsel raised no objection to the
question and Respondent answered: ``I don't believe I did.'' Id. While
Respondent then asserted that he ``assume[d]'' that Dr. Schoelen
``addressed every UDS,'' when pressed as to whether, based on his
review of the file, Dr. Schoelen had ever addressed the June 1 UDS,
Respondent answered: ``I didn't review his part of the chart.'' Id. at
390-91.
Thus, Respondent was clearly aware that his failure to address the
June 1, 2011 drug test was at issue with respect to the entirety of his
controlled substance prescribing to B.B. and in no sense was this ``an
incidental issue'' in the case. Pergament United Sales, 920 F.2d at 136
(citation omitted). He also had a full and fair opportunity to litigate
the issues of whether the June 1 (as well other tests) were aberrant
and whether he properly addressed them during the course of his
prescribing to B.B. Accordingly, I find the Government's exception well
taken and will consider this evidence.\8\
---------------------------------------------------------------------------
\8\ The Government's remaining exceptions are discussed
throughout this decision.
---------------------------------------------------------------------------
Based on the preponderance of the evidence, I make the following
findings.
Findings of Fact
Respondent is a family practice physician licensed by the Oklahoma
State Board of Medical Licensure and Supervision. RX 1. Respondent
graduated from the University of Oklahoma (OU) College of Medicine in
1989. Tr. 231. Thereafter, he did an internship through the OU ``Tulsa/
Bartlesville program'' and ``the last two years of his residency'' in
family medicine at OU in Oklahoma City. Id.
Respondent testified that upon completing his residency, he
practiced family medicine and obstetrics for several years at several
rural clinics. Id. at 234-35. He further explained that while working
at one of the clinics, he was asked to become the medical director of a
nursing home for terminal AIDS patients, which he did for approximately
five years, after which he and Dr. Steve Schoelen bought a practice in
Newcastle, Oklahoma which they named ``Tri-City Family Medicine.'' Id.
at 235-36.\9\ Respondent practiced family medicine at Tri-City from
approximately 2000 through 2012. Id. at 245. Respondent further
testified that he was board certified in family medicine until 2015.
Id. at 247. Respondent testified that he could not reapply for board
certification because he had not practiced family medicine for several
years and does not ``qualify to show them my charts . . . to qualify to
take the test.'' Id. at 248.
---------------------------------------------------------------------------
\9\ Respondent also testified that for approximately three years
(which are not specified in the record) and during which he was
still practicing at his clinic, he was also the medical director of
Unicare of Oklahoma, a subsidiary of WellPoint, and that his duties
involved oversight of the clinics, reviewing chart audits, and that
``[w]e also were in charge of prior authorization.'' Tr. 237, 240.
He also testified that he sat on WellPoint's national credentialing
committee, which sat once a month for three hours and reviewed the
credentials of practitioners applying to the company. Id. at 240.
Respondent testified that he resumed working full time at Tri-City
after the State cancelled its contract with Wellpoint to provide
medical care to patients covered by the State's Medicaid program.
Id. at 242.
---------------------------------------------------------------------------
Respondent testified that due to the expense of malpractice
insurance for his OB/GYN activities, he stopped delivering babies and
focused on family medicine. Id. at 249. Respondent testified that he
started seeing chronic pain patients around this time, but that Dr.
Schoelen mostly saw these patients as he ``took much more of an
interest in the pain patients and pain management.'' Id. He further
testified that within days of Dr. Schoelen ``telling Medicaid that he
would accept chronic pain patients on Medicaid, we were overwhelmed
with referrals from the emergency rooms . . . in Oklahoma City.'' Id.
at 253. According to Respondent, in response, Dr. Schoelen took
continuing medical education (CME) classes and joined the American
Academy of Pain Management. Id. The clinic also started using a pain
management contract and contracted with a company for urine drug
testing. Id. at 254.
Respondent testified that he did drug screens ``every three
months'' and that any patient who received more than two Lortabs
(hydrocodone with acetaminophen) a day would be subject to ``the
guidelines of our pain management contract and rules.'' Id. at 256.
Respondent further asserted that ``[s]ometimes we [would] send
[patients] for a second opinion'' or for a ``modality that we didn't
do'' such as ``an epidural or [a] further evaluation if something
changed in their pain something changed neurologically.'' Id. He
testified that he would obtain a Prescription Monitoring Program report
for ``[e]very phone call for every prescription and every office
visit.'' Id. at 263. He also testified that the practice did not
replace lost or stolen medications and that he had terminated a
substantial number of patients over the years. Id. at 279-80.
The Investigation
Respondent came to the attention of the authorities on or about May
10, 2012, when police in Norman, Oklahoma found Respondent's patient
B.B., a 27-year old male (RX 3, at 2), who was ``semiconscious'' and
``appeared to be intoxicated'' in a vehicle parked ``in the center
median of'' Interstate-35. Tr. 18; RX 3, at 2. The police also found
``several prescription bottles of opiate pain killers'' which had been
prescribed to B.B. by Respondent. RX 3, at 2-3; Tr. 18. With B.B.'s
consent, the police searched his cell phone and found text messages
that ``indicated that [B.B.] was illegally buying and selling
prescriptions drugs,'' as well as messages between B.B. and Respondent
related to B.B.'s ``medical care, prescription dosages and
prescriptions to be picked up by'' B.B. RX 3, at 3. In addition, the
police found ``numerous sexually explicit messages'' that had been
exchanged between Respondent's phone and B.B. Id.; Tr. 18. A Detective
with the Norman police then contacted the Chief Investigator for the
Oklahoma State Board of Medical Licensure and Supervision. Tr. 18. The
Detective also notified a DEA Diversion Investigator (DI) that the
police had found drugs in B.B.'s car and that the latter was a patient
of Respondent; the Detective also asked the DI to attend an interview
of B.B., who could not be interviewed until ``the next day'' because
``he was too intoxicated.'' Id. at 46.
In the meantime, the Chief Investigator, who was familiar with
Respondent's background because the latter ``was on probation at that
time for an incident that involved sexual misconduct,'' obtained a
report from the Oklahoma Bureau of Narcotics Prescription Monitoring
Program to ``see any prescriptions that were prescribed by [Respondent]
to'' B.B. Id. at 18-19.
[[Page 14950]]
The report showed that Respondent had written ``numerous controlled
drug prescriptions'' for B.B. Id. at 19.
After reviewing the PMP report, the Chief Investigator notified the
Board's Executive Director of his findings, id. at 21, who, on May 11,
2012, ordered the summary suspension of Respondent's medical license.
Id.; see also RX 3, at 3. The same day, the Chief Investigator went to
Respondent's clinic to obtain B.B.'s record, interview Respondent, and
serve the suspension order on him. Id. at 21. While Respondent was not
at the clinic, the Chief Investigator spoke with him by phone and made
arrangements to return on May 14 (a Monday); the Chief Investigator
also took B.B.'s chart. Id.
On May 11, 2012, the DI and two Detectives interviewed B.B., who
``confirmed that he was'' Respondent's patient. Id. at 48. B.B.
admitted that ``he used the Opanas [oxymorphone] \10\ himself'' but
``denied that he snorted them.'' Id. B.B. explained that ``[h]e crushed
them up and put them in an energy drink, which he had in his vehicle .
. . when he was found'' by the police. Id. B.B. also told the
Investigators that ``[n]ot only was he a user of it, he also sold the
medications.'' Id. After the interview, the DI was informed by the lead
Detective that he had spoken to the Board's Chief Investigator and that
the Board's Investigators were going to meet on Monday May 14 and go to
Respondent's office. Id.
---------------------------------------------------------------------------
\10\ As discussed more fully below, Respondent issued B.B.
prescriptions for Opana 10 mg. on multiple occasions, including on
May 9, 2012 which B.B. filled the next day. GX 5, at 27.
---------------------------------------------------------------------------
On that day, the Chief Investigator (accompanied by another Board
Investigator), the DI and the lead Detective went to Respondent's
clinic to interview him. Id. 25. During the interview, the Board's
Chief Investigator confronted Respondent ``with some of the sexually
graphic text messages sent from his phone to the patient.'' RX 3, at 3.
While Respondent ``admitted that he may have made social comments to
[B.B.],'' he ``would not answer any more questions without contacting
his attorney.'' \11\ Id. ``At that point,'' the Chief Investigator
asked Respondent ``to allow him to examine'' his phone ``for text
messages to'' B.B. Id. Respondent stated that ``his phone was not
available because it had been run over with his tractor over the
weekend.'' Id. The Chief Investigator then served the Board's
suspension order on Respondent. RX 3, at 3. The DI then informed
Respondent that because he did not have state authority, he could not
maintain his DEA registration and asked Respondent to voluntarily
surrender his registration; Respondent agreed to do so. Tr. 49; see
also GX 1, at 1.
---------------------------------------------------------------------------
\11\ Subsequently, Respondent denied that he had exchanged these
messages and attributed this conduct to his partner at the time,
stating that he had allowed his partner to have ``access to his cell
phone.'' RX 3, at 3; see also Tr. 415.
---------------------------------------------------------------------------
On September 13, 2012, the Board lifted Respondent's
suspension.\12\ RX 3, at 4. On October 4, 2012, Respondent applied for
a new registration. GX 1, at 2. Because Respondent's application
included a ``yes'' answer to the liability question which asked whether
his state professional license had ever been sanctioned, the
application was forwarded to the Oklahoma City field office and an
investigation was opened. GX 2, at 1; Tr. 62, 65, 81.
---------------------------------------------------------------------------
\12\ On March 7, 2013, Respondent voluntarily submitted to the
jurisdiction of the Board and agreed to the entry of an Order which
found him guilty of unprofessional conduct in that he: (1)``
[v]iolated any provision of the medical practice act or the rule and
regulations of the Board or of an action, stipulation, or agreement
of the Board in violation of 59 O.S. Sec. 509(13) and OAC 435:10-7-
4(39)''; (2) ``[e]ngaged in the improper management of medical
records in violation of OAC 435:10-7-4(36)''; and (3)`` [w]illfully
betrayed a professional secret to the detriment of the patient[,] 12
O.S. Sec. 509(3).'' RX 3, at 5. The Board did not, however, make
any findings as to the legitimacy of the controlled substance
prescriptions Respondent issued to B.B. The Board then extended
Respondent's pre-existing probation, which was the result of a 2008
Order based on findings that he had prescribed controlled substances
to a patient with whom he had a sexual relationship, ``[b]eginning
in or around 2001 . . . through approximately 2004.'' RX 3, at 2.
The Board further found that when questioned about his relationship
with this patient, Respondent ``lied and denied that it existed''
until he was confronted ``with corroborating evidence.'' Id.
---------------------------------------------------------------------------
Thereafter, a Diversion Investigator obtained a copy of B.B.'s
patient file from the Board and provided it to Graves Owen, M.D., an
expert in pain management, to review and determine whether Respondent
lawfully issued the controlled substance prescriptions. Tr. 50-52, 55.
The DI testified that he did not ask Dr. Owen to come to any specific
conclusion and that Dr. Owen's compensation was not contingent on the
conclusions he drew. Id. at 56. At the hearing, Dr. Owen testified that
he has previously testified as to the ``standard of care in pain
management'' and that he has testified for a defendant. Id. at 92.
The Government's Expert's Testimony as to the Standards of Medical
Practice Applicable to the Prescribing of Controlled Substances To
Treat Pain
Dr. Owen obtained a Bachelor of Science in chemistry and biology
from Texas State University in 1985 and a Doctor of Medicine from the
University of Texas Health Science Center (Houston) in 1990. Id. at 89-
90; GX 4, at 1-2. After obtaining his M.D., Dr. Owen did a one year
internship in internal medicine followed by a three-year residency in
Anesthesiology at the UT Health Science Center; he then did a one-year
fellowship in Pain Management at the University of Pittsburg's Pain
Evaluation and Treatment Center. GX 4, at 1. Dr. Owen holds a Texas
medical license and is board certified by the American Board of Pain
Management and American Board of Anesthesiology. Id. at 2. He is a
member of the American Pain Society, the American Academy of Pain
Medicine, the American Academy of Pain Management and the Texas Pain
Society. Id. at 7. With respect to the latter organization, Dr. Owen
served on its Board of Directors from 2009 through 2012 and served as
its President from 2012 through 2014. Id. at 8. He has also served on
the Society's Legislative Committee and on its Educational Committee
for multiple years. Id.
Dr. Owen's work experience includes more than 16 years at the Texas
Pain Rehabilitation Institute (Sept. 1995 through Nov. 2011), which is
an interdisciplinary pain management clinic. Id. at 2. Since February
2011, he has been a Peer Reviewer on Pain Medicine for the Journal of
the American Academy of Pain Medicine. Id. He has also served as a
member of the Medical Quality Review Panel and as an Arbiter on the
Quality Assurance Panel of the Texas Department of Insurance, Division
of Workers Compensation, Office of Medical Advisor. Id. He has written
several articles and made more than 40 presentations on subjects
related to pain management before both professional and governmental
bodies, including on the use of urine drug testing in pain management.
Id. at 4-9. The CALJ accepted Dr. Owen ``as an expert in pain
management in Oklahoma and Texas.'' Tr. 91.
While Dr. Owen is licensed to practice medicine in Texas, he
testified that he had reviewed Oklahoma's guidelines and policies. Id.
at 93. Asked what the requirements are in Oklahoma for prescribing
opioid controlled substances, Dr. Owen testified: ``Well, first you
have to do an appropriate history and physical exam for whatever the
chief complaint is. You need to get all pertinent previous medical
records pertaining to this chief complaint.'' Id. at 94. As to why a
physician needs to obtain the patient's medical records, Dr. Owen
explained that: ``You want to know what has previously been performed
as far as treatment elements and what resulted from those
[[Page 14951]]
treatments, and you also want to look for any previous aberrant
behaviors.'' Id. (emphasis added).
The Government then asked Dr. Owen ``what else is required?'' Id.
Dr. Owen explained: ``So after you do an appropriate history and
physical exam, you review the pertinent medical records. You may need
to do consultations. You may need to do diagnostics, whether laboratory
or imaging studies, and then you formulate a treatment plan based on
the analysis of this information.'' Id. at 94-95. Asked to explain
``[w]hat's a treatment plan,'' Dr. Owen testified: ``A treatment plan
is what we're going to do to move this person from wherever they are to
the next place, and part of the treatment plan will be dictated by your
treatment goals that you need to set up to try to get that person to
the next place.'' Id. at 95.
Subsequently, Dr. Owen explained that ``there [are] three broad
treatments in pain management: Interventional, rehabilitative, and
pharmaceutical. So your treatment plan would list each of these
categories if you're going to use elements of those categories in your
treatment plan, and it would specifically define what your treatment
plan is and how you tie it to your treatment goal.'' Id. at 97. Dr.
Owen further testified that while treatment goals are ``tailor[ed] . .
. to the individual'' and would be different depending upon a patient's
age, ``you would primarily focus on functional improvements.'' Id. at
99-100. With respect to someone of working age, Dr. Owen explained that
``return[ing] to work'' is ``the gold standard for functionality in
pain management.'' Id. at 100.
Subsequently, Dr. Owen testified that a treatment plan can involve
more than one of these approaches and that it evolves over the course
of treating the patient if the treatment goals are not being achieved.
Id. at 98-99. However, a physician ``certainly would have [a treatment
plan] on the initial visit.'' Id. at 99. While Dr. Owen acknowledged
that a treatment plan can be ``tease[d] . . . out'' of the patient's
record ``without necessarily a formal title'' if ``enough information''
is documented in the record, he then explained what content the plan
should contain:
Well, if it's interventional, you would talk about what
intervention you're going to do. If it's rehabilitative, you'd talk
about physical therapy, occupational therapy or psychotherapy. If
it's pharmaceutical, you're going to talk about the specific
pharmaceutical, its dose and the frequency that you're going to
prescribe it and hopefully the indication it's being used for.
Id. at 98-99.
Asked whether the file for a patient being prescribed opioid
controlled substances would contain anything else, Dr. Owen testified
that you would ``have an informed consent and a pain management
agreement.'' Id. at 99. Dr. Owen then explained that ``[a]n informed
consent is telling the patient what the risks and benefits are of this
proposed treatment and what alternative treatments exist.'' Id.
As to why a physician treating a patient for pain would seek
consultation with other specialists, Dr. Owen testified that ``[t]hese
are complex cases, and you can't be an expert of everything, and you
may need help in narrowing your diagnosis or help in stabilizing
comorbidities that are outside of your scope of practice.'' Id. at 100.
Dr. Owen further explained that the need to consult with particular
specialists ``depends on the [patient's] chief complaint and your
differential diagnosis and what you're trying to achieve.'' Id.
Asked by the Government if ``these requirements . . . are . . .
best practices,'' Dr. Owen testified that ``some of them can be best
practices, but most of them are standard of care items.'' Id. at 100-
01. Then asked if ``when you say standard of care, are they required,''
Dr. Owen explained that ``they're required based on the context of the
chief complaint and . . . the facts of the situation.'' Id. at 101.
When then asked ``are they required by law,'' Dr. Owen initially
answered ``no'' before explaining that:
Well, I'm not a lawyer. I would say that the policies and
guidelines that I was sent for Oklahoma say certain things about
consultations, and the one that stood out is if somebody's a complex
pain patient with psychological or psychiatric comorbidities, they
should get consultations with a pain management physician with
expertise in these complex cases.
Id.
Dr. Owen testified that ``comorbid psychiatric conditions'' include
``depression, anxiety, maladaptive coping mechanisms, such as
catastrophization, fear avoidance, disability conviction, and a sense
of injustice,'' which are ``all built on a foundation of cognitive
distortions.'' Id. at 101-02. He also testified that there are
``personality disorders and a whole host of psychiatric conditions like
PTSD, OCD, bipolar, schizophrenia, [and] other scenarios like that,
that make it more difficult to treat'' a pain patient. Id. at 102. Dr.
Owen then explained that these conditions ``might magnify [a patient's]
perception of pain and disability and, in doing so, [a patient's]
experience of suffering is aggravated or increased.'' Id.
The CALJ then asked Dr. Owen if the reason it is important to refer
a pain patient to a mental health expert is so that the patient's
``subjective complaint[] of pain'' can be ``properly gauged?'' Id. at
103. Dr. Owen answered: ``So that you can help understand the context
of their pain and what might be distorting and magnifying their pain
and suffering experience, because suffering is defined as your ability
to cope with adversity, and everybody comes with different skill sets
of how they cope with adversity.'' Id. at 103-04. While Dr. Owen then
acknowledged that ``[p]ain is subjective,'' he further explained that
``function is objective, so that's why [a physician would] use
functions as [the] primary baseline for measuring therapeutic
influence.'' Id. at 104.
The CALJ then asked Dr. Owen if ``ask[ing] the patient about
activities of daily living'' is ``one of the tools that you use?'' Id.
Dr. Owen answered ``yes'' and added ``[t]hat's one of the things.
Return to work, and you can do more global things like sitting
tolerance, walking tolerance, standing tolerance, and then site-
specific areas of functionality like range of motion and other physical
exam measurements.'' Id. at 104.
Dr. Owen was then asked to describe ``the steps that a practitioner
would take to determine whether a patient is truly experiencing chronic
pain?'' Id. at 106. He replied:
Well, there's no objective way to know if somebody [is]
experiencing pain, so you take them for their word at it. But what
you need to do is to make sure that you go through a process to
ensure that they have exhausted all the medically reasonable
treatments before you go to a high-risk, non-evidence-based
treatment.
Id. at 107.
Dr. Owen further explained that ``[h]igh-risk treatments are
treatments that have a potential for bad outcomes, and there's
evidence-based and non-evidence-based treatments. There's low-risk,
medium-risk, and high-risk treatments, and you have to have some
context for how you approach the problem.'' Id. Dr. Owen then opined
that ``chronic opioid therapy and chronic benzodiazepine therapy'' are
high-risk treatments. Id. He also opined that chronic opioid therapy is
not an evidence-based \13\ treatment, noting that
[[Page 14952]]
there are ``no publications'' supporting the use of ``chronic opioid
therapy'' and that ``[m]ost of the opioid articles have poor outcome[ ]
metrics.'' Id. at 108.
---------------------------------------------------------------------------
\13\ Dr. Owen explained that ``evidence-based studies are
studies published in peer review articles that actually show
positive outcomes for the treatment, and ideally these treatments
are compared to some kind of either non[-] treatment or a sham
treatment.'' Tr. 108.
---------------------------------------------------------------------------
Asked whether it is ``permissible to taken on a patient who's
already on high-risk treatment and to continue them on high-risk
treatment,'' Dr. Owen testified that while a physician ``can do that,''
the physician must ``adequately document the justification for skipping
steps,'' i.e., low-risk \14\ and medium risk treatments, and must
``make sure that [the patient is] obtaining a clinically meaningful and
objective therapeutic outcome.'' Id. at 109. He then explained that
this means that the patient is ``having functional improvement that is
truly measurable'' and that a patient's ``subjective report is
problematic.'' Id. And later, Dr. Owen testified that even when the
care of a patient is transferred from one doctor to another in the same
practice, the new doctor ``need[s] to make sure that any previous
documentation deficiencies or standard of care violations are rectified
by doing a proper evaluation.'' Id. at 206.
---------------------------------------------------------------------------
\14\ Dr. Owen testified that low-risk, evidence-based treatments
include physical therapy, occupational therapy and cognitive
behavioral therapy.
---------------------------------------------------------------------------
Next, the CALJ asked Dr. Owen what, as a chronic pain specialist,
he would look at to determine if a patient who was referred to him was
being successfully treated with long-term opioid therapy. Id. at 109.
Dr. Owen answered that he would ``first go to the previous medical
records to see what functionality was documented before [the patient
was] started on that treatment and compare it to'' the patient's
current ``functionality.'' Id. Asked by the CALJ if ``those would be
subjective notes,'' Dr. Owen explained that ``if someone is not working
and now they are working, although they're subjective notes, there is
an objective measure to it'' and that ``[w]henever possible, I like
information from friends or family that's with the patient about [the
patient's] functionality and what it was like, so there's an
independent assessment.'' Id. at 109-10. Continuing, Dr. Owen explained
that there are also ``various psychometric tests on functionality,
[including the] Oswestry Disability Inventory and other things like
that, that measure your function in somewhat objective terms.'' Id. at
110. However, Dr. Owen acknowledged that ``it all comes down to [the
patient's] self-report.'' Id.
The CALJ then asked Dr. Owen if there are ``tests that are
traditionally done in the office, such as . . . range of motion and
other things . . . that have an objective sense to them?'' Id. Dr. Owen
answered that while ``you can measure range of motion of the various
joints and spine, and you can look at muscle strength and those kinds
of issues . . . they don't always correlate to your ability to work and
other more global functionality.'' Id. Dr. Owen also explained that in
evaluating the patient's functionality, ``[y]ou want to look at [the]
neurological assessment. You want to look at [the] straight leg raise.
You want to look at spine range of motion, and you want to ask [the
patient] how far can you walk; how long can you sit, and those kinds of
functional assessments as well.'' Id. at 111.
Next, the CALJ asked Dr. Owen if on taking over a long-term opioid
therapy patient, it is ``generally true that [the patient will be]
continue[d] on the . . . regimen?'' Id. In response, Dr. Owen testified
that he would not continue the regimen if the patient is ``not
clinically improved from the results of this treatment.'' Id.
Continuing, he explained that ``[a] lot of people deteriorate on
chronic opioid therapy and they actually do better when they're taken
off of opioids'' because they have ``opioid-induced hyperalgesia.'' Id.
Dr. Owen then explained that this ``is a paradoxical response in which
[a patient's] pain gets worse while [he/she is] on opioids, and when
[the patient is] take[n] off of the opioids, [his/her] pain improves.''
Id.
Dr. Owen further testified that there is a difference between
addiction and dependence. Id. at 112. After noting that ``dependency
will happen to anybody over time in which an abrupt cessation of the
drug will cause withdrawal symptoms,'' he explained that ``addiction
has three [additional] elements: Craving the drug, continued use
despite its harms, and inability to self regulate'' the use of the
drug. Id. at 112-13. Asked how he would tell whether a patient he had
``just assumed the care of'' was dependent or addicted, Dr. Owen
explained that an addicted patient ``may have self-escalation of [his/
her] drugs, and . . . run out early.'' Id. at 113.
Dr. Owen then explained that a physician ``would use urine drug
testing to see if [the patient] ha[s] all the drugs that were
prescribed in [his] urine.'' Id. The physician would also look for
``other aberrant drug-taking behaviors'' such as ``lost medicines'' and
use the prescription monitoring program to look for ``doctor-shopping .
. . or other concerning activities.'' Id. Dr. Owen further explained
that ``[y]ou would, when possible, talk to the family and see how [the
patient's] behavior is'' as well as ``look for volatile behavior . . .
with your staff.'' Id.; see also id. at 117-18 (testifying that
``problematic behaviors'' or ``red flags'' include ``[l]ost or stolen
medications, self-escalation of . . . medications without permission,
aberrant urine drugs tests, [PMP] behaviors that look problematic,''
and receiving reports that a patient is selling drugs).
While Dr. Owen acknowledged that the presence of suspicious
behavior by a patient does not necessarily mean the patient is abusing
or diverting controlled substances, it does require that the physician
take ``some type of corrective action.'' Id. at 118. As for what type
of action should be taken, Dr. Owen explained that ``[i]t depends on
the context'' and that ``there's a spectrum of corrective actions . . .
you might take . . . from shortening the leash and seeing the patient
more frequently, with less drugs per prescription,'' to not treating
with controlled substances, ``to firing the patient.'' Id. at 118-19.
Dr. Owen disputed the CALJ's suggestion that the use of urine drug
screens is ``pretty controversial in the pain management field,''
stating that ``[i]t's a standard of care.'' Id. at 113. After
explaining that he would set the frequency of drug testing based on a
risk assessment of the patient, Dr. Owen acknowledged that the ``point
of care'' enzyme-amino assay test is a ``preliminary test'' and that
``[y]ou can't use the results with any confidence.'' Id. at 114-15. Dr.
Owen explained, however, that ``the mass spectrometry test . . . is
very reliable.'' Id. at 115. Dr. Owen further testified that a
physician would ``want to test for common illicit substances, because
you don't just want to know what you're prescribing'' and would want to
know if the patient is using ``non-prescribed drugs or any street
drugs.'' Id.
Asked how a practitioner should respond to an aberrant drug test,
Dr. Owen testified that ``first you need to document the presence of
the aberrant . . . test. You need to document your rationale for your
corrective actions. And then you explain what the corrective action is
going to be.'' Id. at 119. Dr. Owen then reiterated his earlier
testimony that ``the corrective action'' could be ``seeing the patient
more frequently with less drugs''; referring the patient to see an
addictionologist or a psychiatrist or psychologist ``with experience in
addiction medicine'' for a consultation; having the patient see a
physical medicine specialist ``to look at more functional goals''; and
in severe cases, terminating treatment with
[[Page 14953]]
controlled substances. Id. Dr. Owen also testified that ``[t]here's no
reason ever to ignore a red flag'' and that a physician has a duty to
resolve the red flag before prescribing. Id.
Returning to the issue of what constitutes an adequate medical
history, Dr. Owen testified that:
. . . it's a history that's appropriate for whatever the chief
complaint is, for example, low back pain. It includes a who, what,
when, why, where, and type of elements that you would do in most any
kind of a journalism course.
So you'd say, how did you hurt yourself; where does it hurt;
does the pain radiate down an extremity; if so, how far down; does
it go past the knee; where does it end up; is there any numbness or
weakness associated with it. And then you would talk about what
treatments have you had or what diagnostics have you had.
And you'd gather as much of that information, and you'd ask . .
. how's the pain affecting you physically and psychosocially. And
that's part of the Oklahoma guidelines is that you assess the person
functionally, physically and psychosocially.
Id. at 115-16. Dr. Owen then testified that this information is
required to be documented in the patient file, and if it is ``not in
the file,'' the assumption is that ``it wasn't done.'' Id. at 116.
Continuing, Dr. Owen explained that:
. . . if you don't do a proper history and a proper physical
exam, if you don't look at all the pertinent previous medical
records, you can't get an accurate diagnosis. And . . . you can't
draw any accurate conclusions about what is the right treatment
plan. And if you don't do accurate assessments, it results in
potentially dangerous treatments that aren't reasonable or medically
necessary.
Id. at 117.
Asked by the CALJ to explain what a pain management contract is,
Dr. Owen testified that it's ``a document informing the patient what
the rules of the road are.'' Id. at 120. Dr. Owen testified that the
contract contains provisions that the patient ``won't get drugs from
anybody else . . . for th[e] condition,'' the patient ``will only go to
one pharmacy,'' that the patient ``will use the drugs only as
directed,'' and the patient will ``submit[ ] to urine or blood drug
testing.'' Id. Then asked by the CALJ if, in Oklahoma, the use of a
pain management contract is a ``best practice'' or part of the
``standard of care,'' Dr. Owen testified that it ``is part of the
[Oklahoma] guidelines of [the] standard of care.'' Id. Dr. Owen also
testified that ``when taking on a new patient,'' a physician ``needs to
have a pain management contract and informed consent.'' Id. at 121.
Finally, when asked by the CALJ where ``there is a difference'' between
the standard of care for ``a pain management specialist and someone who
is treating a patient . . . for pain symptoms,'' Dr. Owen explained
that ``[t]here's only one standard of care.'' Id. at 120-21.
On cross-examination, Dr. Owen was asked whether a prescriptive
practice can ``be within . . . legitimate medical practice and still be
below the standard of care?'' Id. at 181. In response, Dr. Owen
testified that a physician ``can violate the standard of care and still
have a legitimate medical practice, but [cannot] be in the standard of
care and have an illegitimate medical practice.'' Id. When later asked
``[w]hat goes into determining if the standard of care has been met,''
Dr. Owen testified that ``the standard of care is what a reasonable and
prudent physician would do in the same or similar circumstances, and a
reasonable, prudent physician would go to the evidence-based literature
as a foundation for how to make decisions using critical thinking
skills.'' Id. at 183. When then asked ``if there's a community standard
of care in Oklahoma,'' Dr. Owen answered that ``[t]here's no such thing
as a community standard of care anymore. It's a national standard of
care, and it's based on our evolving body of knowledge, and as we learn
new things, the standard changes.'' Id. Dr. Owen then acknowledged that
he did not know the Oklahoma Medicaid rules for when a patient can be
referred. Id.
On further cross-examination, Dr. Owen was asked whether the
Oklahoma Guideline which addresses the need for consultation with an
expert in the management of patients who have a history of substance
abuse or a comorbid psychiatric disorder is mandatory as he had
previously testified. Id. at 185-86. Dr. Owen acknowledged that the
provision states that these two conditions ``may require''
consultation. Id. at 186. He then added, however, that a physician
``should document why [he] deviate[d] from that recommendation.'' Id.
The Prescribing Events
The August 25, 2011 Prescriptions
B.B.'s patient file reflects that from the date of his first visit
on or about April 24, 2009 up until August 25, 2011, B.B. obtained
narcotic prescriptions from Dr. Schoelen, Respondent's partner. See
generally GX 3; Tr. 236. While on August 25, 2011, Dr. Schoelen issued
B.B. a prescription for 120 tablets of oxymorphone 10 mg, the same day,
Respondent wrote B.B. prescriptions for 150 hydrocodone/acetaminophen
10/500 as well as 60 carisoprodol 350.\15\ GX 3, at 24.
---------------------------------------------------------------------------
\15\ At the time carisoprodol was not controlled under the CSA.
However, a proceeding to control the drug was then ongoing and the
drug became federally controlled effective on January 11, 2012. See
Schedules of Controlled Substances, Placement of Carisoprodol Into
Schedule IV, 76 FR 77330 (final rule). However, during 2011, the
drug was a controlled substance under Oklahoma law. See Okla. Stat.
tit. 63, Sec. 2-210 (2011)
---------------------------------------------------------------------------
B.B. was not seen by either Dr. Schoelen or Respondent on this day.
GX 3, at 49. However, he was required to provide a urine sample, the
results of which were reported by the lab on August 29, 2011.\16\ Id.
at 99. While the lab results were expected with respect to the
narcotics B.B. had previously been prescribed, the lab also detected
the presence of nordiazepam, a metabolite of diazepam; oxazepam; and
temazepam; none of these drugs had been prescribed to B.B.\17\ Id.
---------------------------------------------------------------------------
\16\ On June 1, 2011, B.B. had also provided a urine sample. GX
3, at 103. This test, which was reported by the lab on June 6, 2011,
yielded a negative result for alprazolam, even though B.B. was then
being prescribed alprazolam by another physician. Id. According to a
PMP report, B.B. had filled alprazolam prescriptions for a 30-day
supply on both May 9 and June 6, 2011. See id. at 25.
\17\ While the lab results also noted that B.B. had tested
positive for alpha-hydroxyalprazolam, a metabolite of alprazolam,
and reported this result as ``not expected based on prescribed
medications,'' B.B. had obtained a prescription for a 30-day supply
of alprazolam on July 29, 2011 and filled the prescription the same
day. GX 3, at 36.
---------------------------------------------------------------------------
While the Government alleged in the Order to Show Cause that the
prescriptions Respondent issued on this day were ``invalid'' and
violated 21 CFR 1306.04(a) and made extensive factual allegations to
support this conclusion, it did not elicit any testimony from its
Expert as to why. Moreover, Respondent testified that this was ``a
nurse-only visit'' and that he issued the prescriptions because ``Dr.
Schoelen works half [a] day'' and while Schoelen had issued one of the
prescriptions, ``he had missed the fact that--or the nurses had missed
and not written the other two medications for him.'' Tr. 389. The CALJ
found this testimony credible. R.D. at 31.
As the Government put forward no evidence to support the conclusion
that it was outside of the usual course of professional practice for
Respondent to cover for his partner, nor cites to any state rule
prohibiting prescribing under this circumstance, I find that the
allegation is unsupported by substantial evidence.\18\
---------------------------------------------------------------------------
\18\ In its Exceptions, the Government argues that the CALJ
erred in finding the allegation with respect to the August 25, 2011
prescriptions not proved. See Exceptions, at 44-47. It argues that
because Respondent issued the prescriptions without seeing B.B. on
that date, without having seen him previously, and without reviewing
the PMP, and because he testified that he reviewed only B.B.'s
``medical history and the last two office visit notes'' made by Dr.
Schoelen, the ``issuance of the two prescriptions fell far below the
standard of care and outside the usual course of practice.'' Id. at
46.
As noted above, the Government elicited no testimony from Dr.
Owen as to whether Respondent's issuance of the prescriptions was
below the standard of care or outside of the usual course of
professional practice. Apparently, the Government relies on
subsection 1 of the Board's chronic pain rule, see Okla. Admin. Code
Sec. 435:10-7-11(1), which requires that ``[a] medical history and
physical examination . . . be obtained, evaluated and documented in
the medical record'' in order to prescribe a controlled substance.
See Exceptions, at 45 (arguing that ``the OK Pain Rule sets forth
the standard of care for Oklahoma prescribing controlled substances
. . . for the treatment of pain'').
However, in 2014, the Board promulgated an exception to the
requirement that ``[t]he physician/patient relationship shall
include a medically appropriate, timely-scheduled, face-to-face
encounter with the patient,'' which allows ``providers covering the
practice of another provider [to] approve refills of previously
ordered medications if they have access to the medical file of the
patient.'' Okla. Admin. Code Sec. 435:10-7-12(1). While this rule
was not in effect when Respondent issued the prescriptions, it
strains credulity to suggest that providing prescriptions under the
circumstances of covering for a partner violated the standard of
care two years earlier when Respondent issued the prescriptions.
While the Government speculates that Dr. Schoelen ``may not have
issued B.B. these two prescriptions purposefully pending the results
of the new UDS,'' Exceptions at 46, and argues that Respondent was
required to call Dr. Schoelen as a witness to corroborate his
testimony, the Government ignores that it had the burden of proof on
this issue.
---------------------------------------------------------------------------
[[Page 14954]]
The September 22, 2011 Visit and Prescriptions
On some date after August 25, 2011, the State Board suspended Dr.
Schoelen's medical license and Respondent took over the treatment of
B.B., who came for an office visit on September 22, 2011. Tr. 290; GX
3, at 48.\19\ See GX 3, at 103; id. at 25. According to the progress
note for the visit, B.B. had come in ``for a recheck on lumbar disc
disease'' and also had a ``left abdominal hernia as well.'' Id. at 48.
Respondent also indicated in the progress note that B.B.'s ``[p]ast
medical history [was] extensively reviewed and placed in [the] chart.''
Id. Respondent documented that he did a physical exam, noting, inter
alia, ``[l]umbar very painful spinal and paraspinal tenderness,'' a
``[n]egative straight leg raise,'' and ``[n]euro intact.'' Id.
Respondent diagnosed B.B. as having ``lumbar disc disease'' and a
hernia; his plan included having B.B. obtain an MRI, changing him from
Lortab to Duragesic patches, and continuing Respondent on Opana and
Soma (carisoprodol). Id. Respondent also documented that he had
discussed the ``[a]ddictive, dependence, and tolerance nature of the
medicines,'' the ``use of Duragesic,'' and suggested ``[n]on-medicinal
pain-relieving modalities.'' Id.
---------------------------------------------------------------------------
\19\ According to a PMP report in B.B.'s patient file, he had
filled a prescription for a 30-day supply of alprazolam on May 9,
2011. GX 3, at 25.
---------------------------------------------------------------------------
B.B.'s file also contains a Pain Management Treatment Plan, which
includes a section bearing the caption: ``Treatment Objective
Evaluation.'' GX 3, at 28. This form lists several questions, with
boxes for documenting by date, various findings which included: ``Has
patient achieved treatment objective?''; ``Patient completed . . .
updated pain scale''; ``Re-review benefits and risks of using
medications''; ``Consider referral to another physician for second
opinion or further treatment options''; ``Changes to Treatment Plan'';
and the ``[p]hysician's initials.'' Id. For this visit, Respondent
wrote ``yes'' as to whether B.B. had achieved the treatment objective
(which was documented as ``to be able to work without pain,'' id. at
29), wrote the number ``3-5'' in the pain scale block, and noted
``yes'' with respect to both whether he had re-reviewed the risks and
benefits of controlled substances and considered a referral to another
physician.\20\ Id. at 28.
---------------------------------------------------------------------------
\20\ In contrast to this document which contains a single box in
which Respondent and Dr. Schoelen would write a number for B.B's
pain (the ``Patient Completed . . . updated pain scale''), B.B.'s
file contains a ``Patient Comfort Assessment Guide'' form which B.B.
completed on September 2, 2009. GX 3, at 32-33. On this form, B.B.
circled various words such as ``aching,'' ``throbbing,''
``shooting'' and ``stabbing'' to describe his pain which he
maintained was ``continuous'' and at its worst in the ``afternoon''
and ``evening.'' Id. The form also contains four instructions which
directed B.B. to rate his pain on a numeric scale of 0 to 10 (with 0
being ``no pain'' and 10 being ``[p]ain as bad as you can
imagine''), at its worst,'' ``its least,'' and ``on average in the
last month,'' as well as ``right now.'' Id. at 32. In addition, the
form asked ``[w]hat makes your pain better,'' ``what makes your pain
worse,'' as well as ``what treatments or medicines are you receiving
for your pain,'' and it further instructed the patient to
numerically rate the relief he obtained (again on a 0 for ``no
relief', to 10 for ``complete relief'' scale) from the treatment or
medicine. Id.
On the form's second page, it asked ``[w]hat side effects or
symptoms are you having,'' and directed B.B. to ``[c]ircle the
number that best describes your experience during the past week,''
again using a 0 (``Barely Noticeable'') to 10 (``Severe Enough to
Stop Medicine'') scale for 10 side effects and symptoms such as
nausea, vomiting, constipation, lack of appetite, difficulty
thinking and insomnia. And finally, the form directed B.B. to
``[c]ircle the one number''--on a scale of 0 for ``not
[i]nterfer[ing]'' to 10 for ``[c]ompletely [i]nterfering''--which
``describes how during the past week pain has interfered with'' his
``[g]eneral [a]ctivity,'' ``[m]ood,'' ``[n]ormal work,''
``[s]leep,'' ``[e]njoyment of [l]ife,'' ``[a]bility to
[c]oncentrate,'' and ``[r]elations with [o]ther [p]eople.'' Id. Of
note, there is no evidence that B.B. was required to complete this
form at any subsequent visit.
---------------------------------------------------------------------------
Dr. Owen testified that because this was B.B.'s first visit with
Respondent, Respondent should have ``do[ne] a proper history and
physical exam and review[ed] previous treatments and everything that
typically is expected for a new patient evaluation.'' Tr. 131.
According to Dr. Owen, this included reviewing B.B.'s patient file
which included the aberrant June 1 and August 25, 2011 drug tests. Id.
at 132.
With respect to the August 25 drug test, Dr. Owen testified that
B.B. had previously received prescriptions for alprazolam, hydrocodone,
Soma (carisoprodol) and oxymorphone. Id. at 130. As found above, each
of these drugs (or its metabolites) was detected by this test. Id. Dr.
Owen then noted, however, that there were ``no prescriptions for the
metabolites of diazepam, which is nordiazepam, or oxazepam or
temazepam.'' Id. And he further noted that in the comment section with
respect to these three drugs, the lab report stated that ``[t]hese test
results were not expected based on the [prescribed] medications.'' Id.
Dr. Owen testified that Respondent ``completely ignored'' the
aberrant drug screens and ``should have acknowledged their existence
and then taken some type of corrective action.'' Id. at 132. Dr. Owen
also testified that the patient file did not reflect that Respondent
had consulted or discussed B.B. with past or current prescribers and
that it did not appear that Respondent had taken any ``safeguards
regarding the potential'' for diversion or abuse presented by the
aberrant drug screens. Id. at 132-33.
Dr. Owen then testified that the patient record did not justify the
prescribing of controlled substances as it did not ``establish medical
necessity for this type of treatment.'' Id. at 133. As the basis for
his conclusion, Dr. Owen explained that:
For one, it's a superficial evaluation that doesn't adequately
explain the chief complaint or what previous treatments have or have
not been done. And there's no evaluation of pain or function,
physical or psychosocial in the documentation. There's no evidence
of a previous therapeutic benefit. There's no medical rationale for
continuing with an ineffective treatment, so there's no
justification to continue treatment with controlled substances.
Id. Dr. Owen also explained that ``[t]here's no proof that he's
exhausted conservative care before going into these high-risk
treatments'' and reiterated that ``[t]here's no evidence of a
therapeutic benefit.'' Id. at 134. And with respect to the aberrant
drug screens, Dr. Owen testified that Respondent ``could have sent this
gentleman for evaluations by an addictionologist, by a psychiatrist [or
psychologist] with experience in addiction medicine, and certainly
[[Page 14955]]
looked at being much more careful and objective about how [he]
measure[d] a therapeutic benefit with the controlled substances.'' Id.
Dr. Owen thus opined that the prescriptions Respondent provided at this
visit were not issued in the usual course of professional practice and
lacked a legitimate medical purpose. Id. at 133.
On cross-examination, Dr. Owen was asked if he considered
Respondent's ordering of an MRI at this visit to be ``a safeguard.''
Id. at 188. Dr. Owen initially answered ``no,'' before explaining that
``[i]t depends [on] if you clinically need the MRI, and you only need
the MRI if you're looking for something that has potentially a
surgically correctable lesion,'' and that absent ``a clinical finding''
that suggests ``an MRI is needed to confirm a lesion that's surgically
reversible . . . you don't have medical necessity to get an MRI.'' Id.
Dr. Owen further explained that ``MRIs have high false positive rates''
and that ``[a]bnormalities are commonly found in asymptomatic people.''
Id. On questioning by the CALJ as to whether when a patient complains
of ``a high subjective level of pain,'' an MRI could ``at least confirm
[if] there was some objective basis for it,'' Dr. Owen explained that
``without a neurological finding,'' it is ``rarely . . . valuable to
get an MRI.'' Id. at 189. He further explained that MRIs show
``abnormalities that are nonspecific'' leading to ``overtreatment,''
and thus a physician ``need[s] something more objective from a physical
exam finding to get an MRI.'' Id.
In response to a further question by the CALJ which posited whether
an MRI would provide an objective basis such as ``foraminal narrowing''
or ``spondylosis'' for concluding that a patient ``may be having a
spine issue'' and is not ``making it up,'' Dr. Owen explained that
``foraminal stenosis or foraminal narrowing are common in asymptomatic
people.'' Id. at 190. Dr. Owen then explained that ``[t]he only reason
it would be important is if you have a radiculopathy you've identified
on clinical exam . . . and that would be pain going down the leg in a
dermatome distribution, typically below the knee.'' Id. Continuing, Dr.
Owen explained that there may be ``numbness'' and there may be
``weakness associated with the isolated nerve that's being entrapped,
and you would have a positive straight leg raise.'' Id.
Dr. Owen further noted that ``almost all the exams'' on B.B. ``said
it was negative straight leg raise'' and that this is ``the most
sensitive physical finding for low back pain.'' Id. Dr. Owen then
explained that ``a sensitive test means that if you don't have a
positive finding you don't have that diagnosis.'' Id. Moreover, Dr.
Owen testified that even if a patient reported symptoms consistent with
radiculopathy, ``you'd want physical exam findings, with the most
important being the straight leg raise, according to the North American
Spine Society.'' Id. at 191. Dr. Owen further explained that ``if you
had a negative straight leg raise, then you don't have radiculopathy,
and if you don't have radiculopathy . . . you really don't need to get
an MRI, because it's just going to lead to finding things that send you
on a garden path of overinterpreting the diagnosis.'' Id.
Regarding B.B.'s September 22, 2011 visit and the prescriptions he
issued, Respondent testified that the first thing he would do when
entered the exam room is look at the Pain Management Treatment Plan (GX
3, at 28) after which he would ``look[ ] at his previous notes.'' \21\
Tr. 286. According to Respondent, he would ask the patient if he had
``achieved [his] objective in the pain medicine contract'' and ``what
[the patient's] pain level is on medicine'' and use ``a scale of 1 to
10.'' Id. Continuing, Respondent testified that ``then we [would] talk
about what their medicines are and what utilization that we would use,
what the risks are using the medicines . . . what our plans are, what
treatment, what goal we're going to go for, and what we might need to
change or initiate in the treatment, and then decide whether [to do] a
urine drug screen.'' Id. at 286-87. Respondent then testified that B.B.
``basically said that he had achieved his pain goal and that he was
only a 3 to 5 out of 10, that he preferred that we not make any changes
or any type of referral at that time, and I did a urine drug screen.''
Id. at 287. There is, however, no evidence that Respondent did a urine
drug screen at this visit. See GX 3.
---------------------------------------------------------------------------
\21\ However, in discussing the August 25 prescriptions,
Respondent testified that ``[a]nytime I had to do anything with the
chart of Dr. Schoelen's or pain management or anyone that I hadn't
seen before, I would look at their last two office notes, and I'd
look at their past medical history sheet on the front that's filled
out by the physician . . . and then I would look at the PMP.'' Tr.
281.
Asked with respect to the August 25 prescriptions if he ``looked
back at the previous drug tests,'' Respondent answered: ``I don't
recall, but I doubt I did. . . . I wouldn't expect myself to.'' Id.
at 283.
---------------------------------------------------------------------------
Respondent was then asked by his counsel if he looked back at the
August 25 drug screen. Tr. 287. Respondent testified that he ``would
not'' have discussed the results with B.B. because ``[b]asically he was
on all the medicines he was prescribed, and according to [the lab], if
you're on one benzodiazepine, all the other benzodiazepines can appear
positive within the drug screen.'' Id. Respondent then testified that
B.B. was ``on Xanax [alprazolam] by another provider, and he was also
on Ambien.'' Id. Asked how he knew that B.B. was on both drugs,
Respondent testified that B.B. had listed the alprazolam on the intake
form he completed at his first visit and while the Ambien was not
listed ``on his past medical sheet, [it] was on the PMP.'' Id.
Respondent then added that the Ambien was prescribed by B.B.'s
psychiatrist. Id. at 289. He further maintained that when the practice
``started doing pain management, we were getting multiple episodes
where patients were denying that they had taken other
benzodiazepines,'' and when they contacted the lab, the lab told them
that Xanax can cross-react and cause a positive result on the mass
spectrometry for other benzodiazepines. Id. Thus, Respondent maintained
that he did not believe this to be an aberrant drug screen. Id.
Respondent further testified that although he took over the care of
B.B., he did not simply continue the same treatment that Dr. Schoelen
provided. Id. at 290. Rather, he testified that based on his
``education and . . . experience, especially with Lortab . . . I found
it too addicting to keep people on short-acting pain medicines.'' Id.
at 291. Respondent told B.B. ``that there would have to be . . . a
change in his treatment, and that I would have to use a long-acting
pain medicine and a short-acting only for breakthrough'' pain. Id.
While Respondent continued B.B. on carisoprodol and Opana, he took B.B.
off of Lortab ``and gave him a two-week trial of the Duragesic patch.''
Id.
Respondent also maintained that B.B.'s ``reported pain and his
objective'' were consistent with the findings on physical examination.
Id. at 292. He also testified that he had discussed the use of
Duragesic and that it, as well as morphine and Opana ER, were the
``only long-acting pain medications that'' the Oklahoma Medicaid
program ``would cover'' and that Medicaid would only pay for three
prescriptions a month.\22\ Id. Respondent further
[[Page 14956]]
maintained that he and B.B. had discussed non-medicinal pain-relieving
modalities so that B.B. knew that he believed in them and that he then
ordered the MRI. Id. at 293.
---------------------------------------------------------------------------
\22\ It is unclear, however, whether B.B. was on Medicaid or
Medicare or both at the time of the prescription. See, GX 3, at 7
(copy of B.B.'s Medicare card and Sooner Care Medical ID card); id.
at 8-9 (Medical Home Agreement for SoonerCare); id. at 10-13
(Advance Beneficiary Notices dated during 2011 through 2012 advising
B.B. that ``Medicare probably will not pay for'' various items or
services and explaining appeal rights if Medicare did not pay); id.
at 14 (referral form for SoonerCare dated 10-14-09). See also Tr. at
192-93. Moreover, Respondent offered no testimony as to whether
Medicare used the same formulary as the Oklahoma Medicaid program.
---------------------------------------------------------------------------
As for why he ordered the MRI, Respondent testified that it was the
``[s]tandard of care in Oklahoma,'' and that while ``[h]e had an X-ray
done in 2009 that was consistent with his finding . . . [i]f you treat
chronic pain . . . patients and [are] audited by the Board or your
insurance company [and] you don't have an objective finding in the
chart, such as X-rays and MRIs, you're quite . . . the outlier.'' \23\
Id. Respondent added that he ``wanted to make sure that [B.B.] was
consistent with . . . [w]hat he was being treated for and what his exam
[sic] and the fact that he was on a Schedule II narcotic.'' Id. at 293.
Respondent then explained that while an MRI might give a false
positive, ``[if] the pain is consistent with it, it's just one more
piece of evidence that gives you a reason to believe that the patient's
legitimate and that you're legitimately treating his condition.'' Id.
at 294. Respondent also testified that an MRI provides a baseline
should his exam change at a late date. Id.
---------------------------------------------------------------------------
\23\ A progress note for B.B.'s September 2, 2009 visit stated
that an x-ray was obtained and confirmed the existence of lumbar
thoracic scoliosis but that the disc spaces appear to be within
normal limits. GX3, at 59. The Government did not, however, ask its
Expert to address the significance of these findings.
---------------------------------------------------------------------------
The October 6, 2011 Visit
On October 6, 2011, B.B. again saw Respondent. In the visit note,
Respondent wrote: ``Patient has been on the DURAGESIC 50 mcg and the
OPANA. Now, he would like to try the Morphine. He is slowly trying to
figure out the right regimen for him.'' GX 3, at 47. Respondent again
noted in the chart that ``[p]ast medical history extensively reviewed
and placed in chart.'' Id. With respect to the physical exam,
Respondent noted: ``[l]ow back paraspinal tenderness,'' ``[n]egative
straight leg raise,'' and ``[n]euro intact.'' Id. Respondent also found
that B.B. ``has a left abdominal wall hernia.'' Id. Respondent listed
his diagnoses as ``[l]umbar disc disease'' and ``anxiety.'' \24\ Id.
---------------------------------------------------------------------------
\24\ Respondent found, however, that B.B. was ``[a]lert and
oriented and in no apparent distress.'' GX 3, at 47.
---------------------------------------------------------------------------
At the visit, Respondent prescribed 30 tablets of Morphine Sulfate
ER15 mg B.I.D. (one tablet twice per day), for a 15-day supply. GX 5,
at 25. Respondent also recommended that B.B. ``[w]ear a corset if at
all possible'' for his hernia. GX 3, at 47.
Regarding the prescription, Dr. Owen testified (in the words of
Government counsel) that it is not ``normal practice . . . for patients
to dictate the controlled substances they're prescribed.'' Tr. 135.
Asked ``why not,'' he explained that a physician must ``safeguard the
patient against addiction, and you need to do things that are medically
necessary, not what patients want.'' Id. at 135-36. Dr. Owen further
testified that ``it's a yellow flag for a patient to ask for a drug
specifically,'' but not necessarily ``a red flag'' as ``it could mean
[the patient] had a previous experience with the drug and either found
it helpful, or they've had previous experience from the drug from an
illicit means.'' Id. However, because Respondent did not document that
he addressed ``B.B.'s previous history with morphine'' B.B.'s request
was ``elevate[d] to a red flag.'' Id. at 136.
Asked what steps Respondent should have taken, Dr. Owen testified
that ``just the fact that the aberrant urine drug tests were there
means that you should get some consultations, because . . . this is a
complex issue, and there's behaviors going on that you can't quite
understand without a more thorough assessment by mental health
providers or addictionologists.'' Id. at 136-37. According to Dr. Owen,
this was so even if B.B. had not asked for morphine. Id. at 137.
Here again, Dr. Owen testified that the medical record did not
justify the prescribing of controlled substances. Id. He explained
that:
This is a superficial evaluation that does not properly address the
chief complaint of low back pain or establish medical necessity for
treating with controlled substances. There's no assessment of pain,
physical or psychosocial function, and therefore, there's no medical
necessity to continue treatment with controlled substances, and if
you don't have medical necessity, you don't have a legitimate
purpose to treat.
Id. And again, Dr. Owen opined that the prescriptions ``were not''
issued in the usual course of professional practice and ``were not''
for a legitimate medical purpose. Id. at 137-38.
Regarding this visit, Respondent testified that B.B. had
``report[ed] that his objectives were only fair'' and that ``[h]is pain
level had gone up to a 6 out of 10 on the Duragesic.'' Id. at 295.
Respondent further testified that ``[w]e again went over what the rules
were and what the Medicaid and the Duragesic and what the risk benefits
were. We talked about whether we needed to make a referral at that
point or make any other changes.'' Id. Respondent also testified that
B.B. ``had a full exam'' but that ``[t]he MRI was not back yet.'' Id.
As for the statement in the progress note that B.B. ``would like to
try the Morphine,'' GX 3, at 47, Respondent testified that B.B. ``did
not believe the Duragesic was sufficient and that he wanted to try one
of the other medicines that was on the formulary.'' Tr. 296. Respondent
testified that he did not believe this to be a ``red flag'' in B.B.'s
case because he ``had made it very clear to [B.B.] what our choices
were'' under the Medicaid formulary and ``the majority of patients are
very concerned [because] Duragesic and morphine are used for dying
cancer patients, and why are we putting them on medications for
dying.'' Id. Respondent then testified that he was ``sure I told [B.B.
that] Duragesic, morphine and Opana ER'' were his options. Id.
The CALJ, observing that ``saying the patient requested morphine .
. . is kind of a remarkable note,'' asked Respondent how his
conversation with B.B. went. Id. at 298. Respondent answered:
``Probably that I didn't like the Duragesic and you suggested that
morphine was an option. Can we try the morphine this time. Probably
something like that.'' Id. at 299. Respondent added that B.B. ``was not
pleased . . . that we changed the Lortab and the Opana, so the fact
that I made him do the Duragesic, he was not happy.'' Id. at 300.
Respondent further noted that he ``did his exam'' and ``[i]t was still
consistent that he did have left abdominal wall weakness.'' Id.
Respondent explained that ``[h]is diagnosis was lumbar disc disease,
anxiety, and a questionable upper respiratory infection'' and that he
``placed [B.B.] on antibiotics.'' Id. As for his abdominal wall pain,
Respondent discussed with B.B. ``wearing a corset if at all possible''
because he did not ``want to confuse his . . . abdominal pain[] with
his level of pain because of my change in his pain regimen.'' Id.
Respondent further explained that B.B. ``would follow up . . . in two
weeks'' and was given only ``a two week supply of his new Schedule II
medicine.'' Id. According to Respondent, ``anytime [he] made a large
change in [a patient's] medications, [he] would only give a two-week''
supply in the event the patient was ``allergic to it,'' was ``going to
abuse it,'' or ``got no pain relief whatsoever.'' Id. at 302.
Respondent also testified that he had given B.B. a shot of
Decadron, a steroid, which ``sometimes'' provides patients in ``severe
pain'' with ``significant relief'' and is ``a great indicator that [the
patient's] pain was more inflammatory than other nature.'' Id. at 301.
[[Page 14957]]
The October 20, 2011 Visit
B.B. again saw Respondent on October 20, 2011. GX 3, at 46.
According to the progress note, B.B. reported that ``his stress [was]
up,'' that he had ``los[t] his father, and ``he [was] having a lot of
grief.'' \25\ Id. Respondent again noted that B.B.'s ``[p]ast medical
history [was] extensively reviewed and placed in chart.'' Id.
---------------------------------------------------------------------------
\25\ Yet Respondent also noted that B.B. was ``[a]lert and
oriented and in no apparent distress.'' GX 3, at 46.
---------------------------------------------------------------------------
As for the physical exam, Respondent noted that B.B. had ``[l]ow
back paraspinal and spinal tenderness'' and a ``[n]egative straight leg
raise, but [that] lying down and sitting up cause him a lot of pain.''
Id. He also noted ``[n]euro intact.'' Id. Respondent again diagnosed
B.B. with ``[l]umbar disc disease'' and added a further diagnosis of
``[a]cute grief.'' Id. Respondent documented that he discussed the
``[a]ddictive, dependence, and tolerance nature of the medicines as
well as alternatives,'' that he suggested ``[n]on-medicinal pain-
relieving modalities,'' and that the follow-up would be either
``p.r.n.'' (as needed) or ``three months per his pain contract.'' Id.
Respondent also issued B.B. new prescriptions for 120 Opana 10 (one
tablet every 6 hours P.R.N. for breakthrough pain) and 90 Morphine
Sulfate ER 15, increasing the dosing of the latter drug to one tablet
in the morning and two tablets in the evening. Id.; see also GX 5, at
19, 22.
With respect to the statement in the progress note that B.B. was
having a lot of stress and grief, Dr. Owen testified that this
``magnifies the perception of pain and disability'' and that because
there were previous ``aberrant behaviors going on and now . . . another
stressor in [B.B.'s] life,'' this ``increase[d] the risk'' that B.B.
would ``use [the] drugs to chemically cope.'' Tr. 139. Dr. Owen then
explained that Respondent should have ``sought psychological counseling
for'' B.B. Id. Based on there being ``no documentation of [Respondent]
taking additional steps,'' Dr. Owen concluded that he ``did not'' do
that. Id. at 140.
Dr. Owen also testified that Respondent's notation that
``[n]onmedicinal pain-relieving modalities suggested'' lacked
sufficient detail before rhetorically asking: ``What does that mean,
nonmedicinal modalities suggested?'' Id. at 209-10. Continuing, Dr.
Owen explained:
First, you don't suggest treatment. Your job as a physician is to
advise the patient of what good medicine is, and good medicine would
be if you haven't done nonmedicinal pain-relieving modalities, we
need a back-up, wean you off these controlled substances and try
these other treatments first.
Id. at 210. Then asked what the purpose is ``of providing that level of
detail in a patient file,'' Dr. Owen answered:
Well, the purpose of documentation is for continuity of care.
Not only continuity of care for this same provider from visit to
visit but continuity of care should somebody else assume the care
later on down the road or should you need to get a consultation,
that the consultant can read your notes and understand what was
happening with this patient at this point in time.
Id.
Regarding this visit, the CALJ asked Dr. Owen if Respondent's
notation that ``[n]egative straight leg raise, but lying down and
sitting up causes him a lot of pain'' had ``any significance?'' Id. Dr.
Owen replied: ``[I]t doesn't--it's not objective [in a] neurological
kind of sense, but it definitely contributes to the idea that it's not
therapeutic on his controlled substances, because he's having a lot of
pain, lying down and sitting.'' Id. When then asked by the CALJ,
``[h]ow about the negative straight leg raise part of it?'' Dr. Owen
answered: ``[t]hat means he cannot have a radiculopathy. There's not
likely anything surgically going on.'' Id. at 211.
Dr. Owen again testified that the medical record did not support
the prescribing of controlled substances. Id. at 140. He testified
that: ``[a]s previously discussed, there's an inadequate evaluation
going on. There's a lack of medical necessity to continue treatment
with controlled substances since there's no therapeutic benefit. And if
you don't have medical necessity, you can't have a legitimate medical
purpose for using controlled substances.'' Id.
Respondent testified that the ``most remarkable'' thing in the
October 20 progress note was that B.B.'s blood pressure had gone up and
that B.B. was also ``wanting to know about his MRI report.'' \26\ Tr.
305. Respondent then testified as to the various entries in the October
20 note including B.B.'s report of having ``lost his father'' and
``having a lot of grief.'' Id. According to Respondent, B.B.'s ``exam
was still exactly like before, with low back paraspinal and spinal
tenderness, but he still had the negative straight leg raises. But
laying down and sitting up still caused him a lot of pain.'' Id.
---------------------------------------------------------------------------
\26\ However, while the visit includes the handwritten notation
``Question about MRI,'' GX 3, at 46, B.B. did not undergo the MRI
until the next day. See id. at 19.
---------------------------------------------------------------------------
Continuing, Respondent testified that he diagnosed B.B. with acute
grief and lumbar disc disease and that he increased his Morphine to two
pills or 30 milligrams in the evening while keeping his Opana for
breakthrough pain. Id. He also testified that he warned B.B. about
``the addictive, dependence and tolerance natures'' of the medications
and ``suggested that he continue using his non-pain [sic] relieving
modalities.'' Id. Respondent did not, however, offer any further
explanation as to what those modalities involved. Respondent then
testified that he determined the follow-up would be in ``three months''
as he ``felt like [B.B.] could really go into the three-month''
schedule for being seen by him. Id. at 305-06. However, at this visit,
Respondent did not document whether B.B. was achieving his treatment
objective or that he had obtained a numeric rating from B.B. as to his
pain. See GX 3, at 28.
On October 21, 2011, the day after this visit, B.B. had an MRI done
of his lumbar spine. Id. at 19. The Radiologist reported his impression
as follows: ``Degenerative changes of the lower lumbar spine as above.
Most affected level is at L5-S1 where a left paracentral disc
protrusion contacts the descending S1 nerve root in the lateral
recess.'' \27\ Id. at 20.
---------------------------------------------------------------------------
\27\ Other findings included that L1-L2, L2-L3, and L3-L4 were
all normal, as well as that the alignment of his vertebrae was
normal. GX 3, at 19. At L4-L5, the MRI found a ``[s]mall left
paracentral disc protrusion with no significant spinal canal with
mild left neural foraminal and no significant right neural foraminal
stenosis.'' Id. At L5-S1, the MRI found a ``[s]mall left paracentral
disc protrusion measuring 8 mm in [the] AP dimension results in
moderate subarticular recess narrowing, with contact of the
descending S1 nerve root. There is mild left neural foraminal
stenosis with no significant right neural foraminal stenosis.'' Id.
---------------------------------------------------------------------------
Regarding the MRI, Dr. Owen tested that it ``did not show any
specific problems that would be attributable for this kind of pain
complaint[], nor was it significant to cause the perceived disability
that this 26-year-old gentleman considers himself'' to have. Tr. 207.
And as he earlier testified in response to the CALJ's question as to
whether an MRI would provide an objective basis such as ``foraminal
narrowing'' or ``spondylosis'' for concluding that a patient ``may be
having a spine issue'' and not ``making it up,'' Dr. Owen explained
that ``foraminal stenosis or foraminal narrowing are common in
asymptomatic people.'' Id. at 190. Dr. Owen then explained that ``[t]he
only reason it would be important is if you have a radiculopathy you've
identified on clinical exam . . . and that would be pain going down the
leg in a dermatome distribution, typically below the knee.'' Id.
Continuing, Dr. Owen explained that
[[Page 14958]]
there may be ``numbness'' and there may be ``weakness associated with
the isolated nerve that's being entrapped, and you would have a
positive straight leg raise.'' Id.
The November 18, 2011 and December 15, 2011 Prescriptions
On November 18, 2011, Respondent wrote new prescriptions with the
same dosing instructions for 90 Morphine Sulfate ER 15 mg and 120 Opana
10 mg; each of these was for a 30-day supply. GX 5, at 17, 21; GX 3, at
23. B.B. filled the prescriptions the same day. While B.B.'s file
contains photocopies of the prescriptions, it contains no documentation
of a visit with either Respondent or a nurse on this date. See
generally GX 3; Tr. 142.
Likewise, on December 15, 2011, Respondent wrote new prescriptions
with the same dosing instructions for 90 Morphine Sulfate ER 15 mg and
120 Opana 10 mg, each of these being for a 30-day supply. GX 3, at 67,
90. Respondent filled these prescriptions the same day. Id. at 23. Here
again, there is no documentation of a visit with either Respondent or a
nurse on this date. See generally GX 3; Tr. 142.
Dr. Owen testified that ``[e]specially in the context of the
previous aberrant urine drug testing and the lack of any clear medical
necessity or therapeutic benefit,'' Respondent ``should have'' seen
B.B. in his office prior to prescribing the drugs on both dates. Tr.
142. Dr. Owen further testified that notwithstanding that at the
October 20 visit, B.B. had reported that ``his stress is up'' and that
``he [was] having a lot of grief,'' there is no notation in B.B.'s file
as to how B.B. was dealing with these issues. Id. Dr. Owen also noted
that there was no notation in the file that Respondent had discussed
the results of the aberrant drugs tests with B.B. Id. at 143. Dr. Owen
then testified that Respondent had ``never'' established ``a medical
necessity . . . to continue these treatments'' and that this would
require an in-office visit. Id.
After explaining that the aberrant drugs tests and mention of
B.B.'s life stressors supported the need for psychological counselling
and consultations with a psychologist or addictionologist, Dr. Owen was
asked what risk was created by prescribing these drugs to B.B. without
requiring an office visit. Id. Dr. Owen testified that ``[t]he risk is
that he continues to self-escalate these medications, and [is] either
chemically coping or becomes--or is addicted to it.'' Id. Dr. Owen then
opined that Respondent had never established the ``medical necessity''
of the prescriptions he issued to B.B. on these two dates, that the
prescriptions lacked a legitimate medical purpose, and that Respondent
acted outside of the usual course of professional practice in issuing
them. Id. at 144.
On cross-examination, Dr. Owen was asked whether he was aware that
under DEA's regulation which allows a physician to ``issue multiple
prescriptions authorizing the patient to receive . . . up to a 90-day
supply of a schedule II controlled substance, provided [various]
conditions are met,'' ``it was okay . . . to only see a patient once .
. . every 90 days?'' Id. at 195-96; see also 21 CFR 1306.12(b). While
Dr. Owen answered ``yes,'' he added that a physician must have
``established medical necessity and legitimate therapeutic benefit from
previous documentation and [that] a patient doesn't have a high risk of
abuse.'' Tr. 196. Dr. Owen then re-iterated that B.B. ``already had
multiple aberrant urine drug tests before those prescriptions were
issued.'' Id.
Regarding these prescriptions, Respondent testified that he did not
understand that he had to see B.B. ``every 30 days'' and that ``[w]e
saw him every 90 days.'' Id. at 307. Respondent further testified that
``[a]t the time there was debate within the state as to whether''
patients ``could be seen'' even ``every four months'' and ``we had
chosen every three months, so we never gave more than two refills on a
II or above.'' Id. Respondent then explained that the patients ``would
call one to two days ahead, a lot of times to the pharmacy, and the
pharmacist faxes the request.'' Id. at 307-08. Continuing, Respondent
testified that ``[a] PMP would be pulled, and then the chart would be
pulled. And then we would write a prescription for the person and leave
it up front for them to pick up and sign for.'' Id. at 308. Respondent
further testified that the November 18 prescriptions were issued 29
days after the previous prescriptions. Id. at 311. Respondent did not,
however, address Dr. Owen's criticism that B.B. presented a high risk
of escalating the use of the controlled substances and should have been
seen prior to prescribing on each of these dates. See id. at 306-13.
The January 19, 2012 Visit and Prescriptions
On January 19, 2012, B.B. again saw Respondent, who reported that
he had gone to the emergency room ``two weeks ago with right leg
swelling'' but that ``[h]is ultrasound was negative.'' GX 3, at 45.
B.B. complained of ``some calf pain'' and that ``[h]e still feels very
tight.'' Id. Respondent also noted that B.B. ``goes to a psychiatrist''
and ``reports severe lumbar disc disease''; he also noted that B.B.
reported that ``he ha[d] been exposed to someone with HPV'' and ``would
like an exam.'' Id. Respondent further noted that B.B.'s ``[p]ast
medical history [was] extensively reviewed'' and ``placed in chart.''
Id.
According to Respondent's exam notes, B.B. was ``[a]lert and
oriented and in no apparent distress.'' Id. While other portions of the
exam were normal, Respondent again documented that B.B. had ``[l]ow
back paraspinal tenderness,'' a ``[n]egative straight leg raise,'' and
``[n]euro intact.'' Id. He also documented that B.B. ``has very tight
right calf.'' Id. However, no mention was made of B.B.'s hernia which
had been noted at previous visits. Id.
Respondent diagnosed B.B. with ``lumbar disc disease,'' ``exposure
to infectious disease,'' and ``[r]ight calf pain.'' Id. He further
documented that he discussed the ``[a]ddictive dependence, and
tolerance nature of the medicines as well as alternatives,'' that he
suggested ``[n]on-medicinal pain-relieving modalities,'' and that the
``[f]ollowup will be [in] three months.'' Id. Respondent then issued
B.B. new prescriptions for Morphine Sulfate ER 15 mg and Opana 10 mg
with the same dosing instructions, thus providing a 30-day supply for
each drug if taken as directed. Id.
At this visit, B.B. was required to provide a urine drug screen.
While the results were not reported until January 31, 2012, the lab
reported that morphine was ``not detected'' and that this result was
``not expected with prescribed medications.'' GX 3, at 97. Moreover,
while the lab detected the presence of alpha-hydroxyalprazolam, a
metabolite of alprazolam, the lab also detected the presence of
nordiazepam, the metabolite of diazepam, as well as the presence of
oxazepam, and temazepam. Id. With respect to the presence of the latter
three drugs, the lab reported that these three results were ``not
expected with prescribed medications.'' Id. Of further note, the lab
report bears the handwritten but undated notation: ``Pt counseled to
only take what is prescribed[.]'' Id.
Dr. Owen testified that while ``oxazepam can be a metabolite of
several other benzodiazepines,'' this was an aberrant drug test because
non-prescribed drugs were detected and prescribed drugs were not
detected. Tr. 150-51. As for the drugs that were detected but were not
prescribed, Dr. Owen testified that B.B. was either ``getting [them]
from the illicit . . . market or from a friend.'' Id. at 151. As for
the morphine, which was prescribed
[[Page 14959]]
but not detected, Dr. Owen explained that ``[e]ither [B.B. was] selling
it on the street or he self-escalated and ran out of his supply.'' Id.
Regarding this visit, Dr. Owen testified that when a patient
reports having gone to the emergency room, he would get the record to
find out both ``what the problem was,'' as well as if ``any additional
medication [was] prescribed.'' Tr. 147. However, the patient file does
not contain a note from the emergency room. Id.; see also GX 3.
Moreover, after observing that the visit note contains no mention that
Respondent addressed either of the two prior urine screens during this
visit, Dr. Owen again testified that Respondent had failed to establish
medical necessity for the prescriptions ``by doing a proper history and
physical exam, by defining a therapeutic benefit, by explaining what
previous treatments have or have not worked . . . and . . . addressing
the previous aberrant urine drug tests.'' Id. at 148. Thus, Dr. Owen
opined that Respondent acted outside of the usual course of
professional practice in issuing the prescriptions and that the
prescriptions lacked a legitimate medical purpose. Id.
Regarding the prescriptions, Respondent testified that B.B. wanted
refills and then testified as to what he had documented in the note.
Id. at 313. Asked by his counsel if B.B. had ``ask[ed] for anything
different or call[ed] for additional drugs when he went to the ER,''
Respondent testified that ``[t]here was nothing on his PMP that
revealed they prescribed anything,'' a fact confirmed by the PMP. Id.
at 314; GX 3, at 23.
Observing that the visit note ``almost seems as if [B.B.] would be
a person that's not in pain,'' the CALJ asked: ``doesn't it seem like
an unremarkable set of . . . notes for such a high amount of
painkillers?'' Tr. 315. Respondent answered: ``He just continued to
have the same pain that he had before, so I didn't go into details on
it.'' Id. The CALJ then asked: ``doesn't it seem like kind of an
unremarkable set of notes for somebody that's on a lot of heavy
medications?'' Id. Respondent answered that he ``agree[d]'' and added
that ``I can only conjecture at this point as to what was going on, but
I imagine I was more concerned about the fact he had went to the
emergency room and making sure he didn't get other medicine'' and
``less concentrated on his chronic pain.'' Id. at 316. The CALJ then
commented that ``the notes do seem very benign'' and asked ``if that
seemed normal to'' him? Id. at 316-17. Respondent answered that ``[i]t
stands out that I didn't make more.'' Id. at 317. Respondent then
maintained that he ``was seeing 40 to 45 patients a day and dictating
that night and the next morning, and so I definitely could have done a
better job.'' Id. Continuing, Respondent testified that he thought that
at this visit, B.B. ``wasn't requesting any more or any change in his
pain medicines'' and ``wasn't reporting anything except his calf pain
and his new conditions.'' Id.
At this point, Respondent's attorney suggested that he had noted
``his lumbar disc disease and ``low back paraspinal tenderness'' in the
visit note, prompting Respondent to state: ``[t]hat's correct. And he
still had the negative straight leg raise.'' Id. at 317-18. Respondent
then conceded that his finding of a negative straight leg raise was an
indicator that B.B.'s back issues were not causing radiculopathy in his
legs. Id. at 318. However, Respondent maintained that ``a negative
straight leg raise doesn't mean they [sic] don't have significant pain
when you raise their [sic] leg,'' and that ``if you raise their [sic]
foot when they're [sic] laying in a supine, they [sic] flinch back.''
Id. Respondent did not, however, document this in the progress note for
this visit, nor did he document as he had at the last visit that
``lying down and sitting up cause [a] lot of pain.'' Compare GX 3, at
46, with id. at 45.
Moreover, when the CALJ asked if ``[t]his note was more saying . .
. that he's still maintaining an absence of at least an objective sign
of radiculopathy,'' Respondent answered: ``[o]f radiculopathy, but not
necessarily paraspinal or muscular-skeletal pain.'' Tr. at 318-19. Upon
further questioning by the CALJ as to his reason for noting the
negative straight leg raise, Respondent agreed with the CALJ's
suggestion that the reason for the note was to ``more or less show that
things [weren't] getting worse'' and then added that ``there was no
change.'' Id. at 319.
Yet, at this visit, Respondent neither documented that B.B. had
achieved his treatment objective nor indicated if he had completed an
update pain scale on the Treatment Plan form. See GX 3, at 28.
Respondent did not document if B.B. was achieving his treatment
objective and had completed an updated pain scale until his January 27,
2015 visit, when Respondent wrote ``fair'' in the block for ``Has
patient achieved treatment objective?'' and either the number 3 or 7 in
the block for ``Patient Completed Updated Pain Scale'' on the Treatment
Plan form.\28\ Id. On the same date, Respondent also wrote ``no'' in
the block for whether he considered referring B.B. for a second opinion
or further treatment options. Id.
---------------------------------------------------------------------------
\28\ Indeed, the writing bears a strong semblance to the number
3 as written by Respondent in listing his registration number
(BP2423440) on various prescriptions. Compare GX 3, at 28, with GX
5, at 23; see also GX 1, at 1.
---------------------------------------------------------------------------
According to the progress note for the January 27 visit, B.B.
reported that he was ``very anxious'' about the price of the vaccine
for HPV. GX 3, at 44. Respondent also documented that B.B.'s ``[p]ast
medical history [was] extensively reviewed and placed in chart and
includes severe thoracic and lumbar pain.'' Id. And in the physical
exam section of the note, Respondent noted ``low back paraspinal and
spinal tenderness'' and ``[q]uestionable straight leg raise.'' Id. He
also noted ``[n]euro intact.'' Id. Respondent did not, however,
prescribe any controlled substances on this date. See id.; see also id.
at 22-23 (PMP Report).
The CALJ also asked Respondent whether he thought the Jan. 27 visit
note looked ``very benign'' if he was ``really evaluating'' the
``efficacy of the pain [medication] regimen'' as it only referred to
B.B.'s ``past history'' of thoracic and lumbar pain. Id. at 323.
Respondent answered that even if he ``was seeing someone for something
other than their [sic] pain management and not writing prescriptions
that day,'' he would ``acknowledge the fact that that was still
underlying'' and ``reflect[] [that] in the note,'' so that it did not
``appear[] that he has no pain in between'' the visits. Id. at 324.
The CALJ, explaining that the progress note did not ``seem to
discuss at all the underlying basis for the pain [medication] regimen''
or the ``activities of daily living or . . . function,'' asked
Respondent if ``those [are] things that you would ordinarily include in
there?'' Id. at 324. Respondent answered that ``[i]n the individual's
subjective--or the SOAP notes, a lot of times those would be neglected.
With time constraints, I'm not necessarily efficient. That's not ideal
I guess is what I'd say.'' Id. Continuing, Respondent testified: ``But
this patient had been disabled on Social Security and determined
previously to have chronic pain and . . . objective data confirmed
that. He was not doing anything to set off alarms with his PMP, doctor-
shopping or changing his medications. He was stable on his medicines at
that point.'' Id. Respondent then maintained that B.B. ``was one of our
low-flyers'' compared to other patients and because ``[h]e wasn't
increasing his pain med [and] not asking for increased pain medicines .
. . I guess [he] got less individualized SOAP notes.'' Id. at 325.
Observing that the visit notes ``don't tend to deal with activities
of daily living or anything where you were
[[Page 14960]]
measuring how well the treatment objectives are being attained,'' the
CALJ asked Respondent how he evaluated ``how well you're doing in
treating the patient with . . . pain medications?'' Id. at 325-26.
Respondent testified that:
[t]he notes could be much more well written. Much more went on in
the office than what's written. And it's been pointed out here that
if it's not written it didn't occur. That doesn't mean it didn't
occur. It means I can't prove it. But I definitely knew what was
going on in his life from each visit, and I just failed to dictate
that.
Id. at 326.
Subsequently, the CALJ asked Respondent how he knew ``how the meds
were doing?'' Id. at 327. Respondent answered: ``Pure subjective, and
if they were needing more or less pain meds. That's all I --.'' Id.
The CALJ then asked Respondent if he was not asking B.B.
``questions about what activities he's doing or what's better or worse
or what's causing him pain, then aren't you just depending on his
subjective desire for more or less pain medicine?'' Id. Respondent
replied:
Well, I was talking to him about those things and what all he
did in a day, and he was not able to work. He . . . didn't have a
vehicle, I don't believe. I think that was a major issue for how he
got his prescriptions or not. And so he basically was stuck in the
house all day, trying to figure out how to stretch or how to do his
exercises at home--he was pretty much homebound, taking care of his
son.
Id.
The February 13, 2012 Prescriptions
On February 13, 2012, Respondent issued B.B. new prescriptions for
both 120 Opana 10 and 90 Morphine Sulfate ER 15, with the same dosing
instructions as the previous prescriptions. GX 5, at 3 & 23. As noted
previously, the lab reported the results of the January 19, 2016 urine
drug test on January 31, 2012, GX 3, at 97; and thus Respondent should
have had the results by this date. Tr. 153. As explained previously,
other than the undated notation on the Lab Report that B.B. was
``counseled to only take what is prescribed,'' the only documentation
in the progress notes for this date (which is written at the bottom of
the January 27, 2012 progress note) is the following: ``Zpack,
Prednisone 10 mg # 28, Phenergan.'' GX 3, at 44.
Dr. Owen testified that there should have been an office visit ``in
light of the previous aberrant drug-taking behaviors and the lack of
medical necessity [having been] established to treat with controlled
substances.'' Tr. 154. He further explained that Respondent ``need[ed]
to establish medical necessity and establish a therapeutic benefit, and
now we have another aberrant drug test in late January.'' Id. While he
acknowledged that Respondent documented that he counseled B.B. to take
only what is prescribed, Dr. Owen testified that this was not an
adequate safeguard to prevent abuse or diversion, ``especially since
this [was] the third aberrant urine drug test.'' Id. Asked what
Respondent should have done, Dr. Owen testified that ``you need to have
a long discussion with the patient about the risk of addiction \29\ and
get some consultations by experts in [the] field of addiction.'' Id. at
155. Based on the absence of any such documentation in the file, see
generally GX 3, and that Respondent never claimed to have obtained any
consultations, I find Respondent did not obtain a consultation with an
expert in addiction.
---------------------------------------------------------------------------
\29\ Dr. Owen was not asked to provide details as to what
specific areas would be discussed in such a conversation.
---------------------------------------------------------------------------
Moreover, Dr. Owen again found that the patient record did not
justify the prescribing of controlled substances and further noted that
the ``medical necessity for the prescriptions ha[d] not been
established in any of the previous evaluations.'' Tr. 155. He further
opined that the Opana and morphine prescriptions issued on this date
lacked a legitimate medical purpose and were issued outside of the
usual course of professional practice. Id. at 155-56.
Respondent testified that he had reviewed the drug test results and
had directed his staff to pull a PMP report. Id. at 335. He also
acknowledged having written the notation that ``patient was counseled
to only take what is prescribed.'' Id. Asked by his counsel if ``red
flags [were] raised by these test results,'' Respondent answered:
[t]he red flag that I saw--the morphine said not detected, but
the oxymorphone was positive, so that was explainable. The
nordiazepam, the oxazepam, and then the Xanax, the lab always said
that if . . . Xanax was positive, that they could all three be
positive. The temazepam, in our practice, usually didn't show up,
and temazepam is a sleeping pill called Restoril.
And so I wanted to pull the chart, and so Dr. Schoelen didn't
mind his pain patients being on Restoril. I did, and so I wanted to
make sure, has he been prescribed Restoril. I couldn't find it on
the PMP, so I'm sure what was told was, if you have an old Restoril
or some other doctor, I do consider that breaking our rules, and so
you can't take it.
Id. at 335-36.
Notably, while the PMP report shows that B.B. had received a number
of prescriptions for Ambien (zolpidem), it does not list any
prescriptions for temazepam. GX 3, at 22-26. Nor do the progress notes
during the period in which B.B. was being treated by Dr. Schoelen
contain any indication that Schoelen had prescribed temazepam to B.B.
Id. at 50-62. And Respondent offered no testimony that he ever asked
B.B. from whom he obtained the Restoril, and the chart contains no
documentation that he did. In any event, even if the lab had told
Respondent that using alprazolam could also trigger false positives for
diazepam and oxazepam, this was still an aberrational result and was,
in fact, the third aberrational UDS that B.B. had provided in less than
eight months.
Asked by the CALJ why he did not find the non-detection of morphine
to be ``an anomaly,'' Respondent asserted that this was because
oxymorphone is a metabolite of the former. Id. at 336. When then asked
``[w]hy wouldn't it show morphine positive then if the person's on
morphine,'' Respondent testified ``[t]hat would occur occasionally.''
Id. Respondent then speculated that B.B. ``probably did not take two
medications on that day. Most likely it was over the 30 days since his
last prescription, but it was still in his system, that it had been
taken recently.'' Id. Respondent then asserted that ``[t]he same is
true, the exact same thing for the carisoprodol, which is Soma. It's on
the next page, page 98 [of the Exhibit], shows that meprobamate was
positive'' and ``the comments section says, `Test result is expected
based on prescribed medications.''' Id. at 337.
It is true that meprobamate is a metabolite of carisoprodol--as
noted by the lab itself on the reports. See GX 3, at 96-98, 100, 104;
see also 76 FR at 77340 (carisoprodol scheduling order). Moreover, when
B.B. was under Dr. Schoelen's care and being prescribed hydrocodone,
the lab reports noted that B.B. had tested positive for hydromorphone
and that this drug ``is a metabolite of hydrocodone,'' thus rendering
the test result ``expected with [the] prescribed medications.'' See id.
at 99, 103, 104, 105, 106. Unexplained by Respondent is why, if
oxymorphone is a metabolite of morphine, the lab did not indicate that
on the reports as it did when it noted that meprobamate and
hydromorphone were metabolites of carisoprodol and hydrocodone
respectively. Of further note, Respondent did not testify as to his
basis of knowledge for this assertion.
However, as found above, B.B. had last obtained a morphine
prescription on December 15, 2011, 35 days before the January 19 visit,
and if taken as directed, B.B. would have run out of his
[[Page 14961]]
morphine five days earlier. GX 3, at 23. The Government produced no
evidence as to how long morphine at this dosing would still be
detectable in urine after it was last taken. Nonetheless, based on the
presence of temazepam which was not prescribed, the January 19 drug
test was still aberrational.
The March 13, 2012 Prescriptions
On March 13, 2012, Respondent issued B.B. new prescriptions for
both 120 Opana 10 and 90 Morphine Sulfate ER 15, with the same dosing
instructions as the previous prescriptions. See GX 5, at 10, 24.
Respondent issued the prescriptions without requiring an office visit
by B.B. Tr. 156, see generally GX 3, at 42-62 (visit notes for B.B.).
Nor is there any notation on any of the visit notes regarding
Respondent's issuance of these prescriptions.\30\
---------------------------------------------------------------------------
\30\ As found above, on the January 27, 2012 visit note,
Respondent had written that on ``2/13/12'' he prescribed ``Zpack,
Prednisone 10 mg # 28, Phenergan.'' GX 3, at 44. The same visit note
contains a further entry for ``2-22-12'' documenting the issuance of
a prescription for 60 tablets of Soma (carisoprodol) 350 mg. Id.
---------------------------------------------------------------------------
Dr. Owen testified that Respondent should have required an office
before issuing these prescriptions, reiterating that the ``medical
necessity for'' the prescriptions still had not been established. Tr.
156. Asked to again identify the deficiencies which led him to conclude
that Respondent had not established medical necessity, Dr. Owen
explained:
Reviewing all the pertinent previous medical records, including
what previous treatments have been performed, an adequate history
and physical exam, consultations as medically appropriate,
establishing a clinically meaningful and objective therapeutic
benefit, and addressing any aberrant drug-taking behaviors.
Id. at 157. Dr. Owen then noted that there were three previous
incidents of aberrant drug-taking behaviors, and that ``[t]he only
treatment plan has been continuing the controlled substances without
medical necessity.'' Id. at 158. And once again, Dr. Owen testified
that the prescriptions lacked a legitimate medical purpose and ``were
not'' issued in the usual course of professional practice. Id.
In his direct testimony, Respondent did not address his reasons for
issuing the March 13 Opana and morphine prescriptions. See Tr. at 338-
39. Instead, the questioning centered on why he wrote a prescription on
March 14 for Nexium, ``a stomach medicine'' and a non-controlled drug
(``I have no idea'') after which the questioning moved on to the next
set of prescriptions. Id.
The April 12, 2012 Visit and Prescriptions
On April 12, 2012, B.B. saw Respondent for an office visit. GX 3,
at 42. According to the visit note, B.B. ``report[ed] his pain has been
worse,'' that ``[h]e has run out of his medicines; he had them
stolen,'' and that ``[h]e has done fairly well.'' Id. Moreover, on the
Treatment Objective Evaluation section of the Treatment Plan,
Respondent wrote ``fair [rarr] yes'' in the block for ``Has patient
achieved treatment objective?'' and ``6'' in the block for ``Patient
Completed . . . updated pain scale.'' Id. at 28.
In the visit note, Respondent wrote that B.B. ``still has severe
anxiety and depression'' and has been ``exposed to someone with HPV'';
Respondent then wrote: ``[h]e is also wanting to switch his medicines
because he is having trouble finding the OPANA.'' GX 3, at 42.
Respondent also noted: ``[p]ast medical history extensively reviewed
and placed in chart.'' Id.
In his exam findings, Respondent noted ``[l]ow back paraspinal and
spinal tenderness,'' ``[n]egative straight leg raise,'' and ``[n]euro
intact.'' Id. Respondent listed his diagnoses as ``[l]umber disc
disease,'' ``[a]nxiety and depression'' and ``[e]xposure to infectious
disease,'' although he ``doubt[ed] that it was HPV.'' Id. Respondent
then changed B.B.'s medications to Opana ER (extended release) 20 mg
b.i.d. (twice per day) and Percocet 10 mg (q. 12h) p.r.n. (as needed)
for acute pain. Id.; see also Tr. 340. He also prescribed Soma
(carisoprodol) one tablet b.i.d. GX 3, at 42.
Respondent further documented that he discussed the ``[a]ddictive,
dependence, and tolerance nature of the medicines, as well as
alternatives.'' Id. He noted that he ``suggested'' ``[n]on-medicinal
pain and anxiety-relieving modalities.'' Id.
Respondent also required B.B. to undergo a urine drug screen. While
the preliminary screen shows that B.B. tested positive for oxycodone
(which had not been prescribed to him) and negative for opiates/
morphine (which he had been prescribed), the line on the form for
noting the oxycodone result includes the parenthetical ``synthetic &
semi-synthetic opiates'' and the form contains no separate entry for
oxymorphone, which is a semi-synthetic narcotic. GX 3, at 63. Notably,
the Government produced no evidence as to whether a positive result for
oxymorphone would show up as positive for oxycodone or as positive for
``opiates/morphine.'' Moreover, Dr. Owen acknowledged that there are
reliability issues with this type of test and thus, ``you would send it
off for a confirmatory mass spectroscopy test.'' Tr. 164. However,
according to Dr. Owen, the results are still valid until the
confirmation shows otherwise. Id.
Respondent did send B.B.'s. urine sample to the lab for further
testing. GX 3, at 96. According to the lab report, which was reported
back to Respondent on April 17, 2012, B.B. tested positive for
oxymorphone, which was expected based on Respondent's having prescribed
Opana to him. Id. He also tested positive for meprobamate, which was
expected based on Respondent's having prescribed carisoprodol to B.B.
Id. However, the lab further found that morphine was ``not detected,''
a result which was ``not expected'' because Respondent had prescribed
morphine sulfate ER to B.B. on March 13, 2012. Id. Dr. Owen also noted
that while ``the confirmed . . . drug test [was] positive for some of
these drugs,'' Respondent had reported that he had run out of his
medicines and that there was a ``lack of documentation of what he ran
out of and what he should still be on, so . . . there's problems in
interpreting this urine drug test.'' Tr. 167.
Dr. Owen testified that Respondent did not address the aberrant
preliminary drug screen conducted on April 12 nor any of the previous
aberrant drugs tests at this visit. Id. at 165-66. However, as found
above, on the January drug test report, Respondent did note--but
without specifying the date that he did so--that he had counseled B.B.
to take only what was prescribed.
The Government also asked Dr. Owen if it was noteworthy that B.B.
had told Respondent that his pain was worse, that he had run out of his
medicines and had them stolen. Id. at 159. Dr. Owen answered:
Well, one, his pain is worse, so why is it worse? Two is he's
run out of his medications, and then he had them stolen. What is it?
Did you run out of them because you self-escalated, or were they
stolen and you ran out of them? It needs clarification. But either
event, self-escalation or having them stolen, is a red flag.
Id.
Dr. Owen then noted that B.B.'s pain contract stated that ``lost
and stolen medications will not be replaced,'' id. at 160, but
acknowledged on cross-examination that Respondent had not provided an
early refill of the prescriptions. Id. at 200. However, regarding
B.B.'s report that his medications were stolen, Dr. Owen further
testified that because there had
[[Page 14962]]
``been the aberrant urine drug tests before . . . this, there is [sic]
enough aberrant behaviors that'' Respondent needed ``to get the person
to an addictionologist or a psychologist, or just stop prescribing
these controlled substances since there's no evidence they're helping
this gentleman.'' Id. at 212-13.
Dr. Owen also found problematic the notations in the visit note
that B.B. reported that ``his pain has been worse'' and that ``[h]e has
done fairly well.'' Id. at 160. As Dr. Owen testified, the statement
that ``[h]e has done fairly well . . . kind of conflicts with his pain
is worse and the aberrant drug-taking behavior, so that's an unreliable
statement.'' Id. Dr. Owen also explained that B.B.'s having ``severe
anxiety and depression . . . are relative contraindications to
prescribing controlled substances . . . [b]ecause it magnifies [the]
perception of pain and disability.'' Id. Dr. Owen then testified that
because of these conditions, Respondent should have requested a
``consultation by a psychologist'' but did not. Id. at 160-61.
Dr. Owen further testified that Respondent ``did not'' address
B.B.'s ``ongoing stress and anxiety issues,'' and that ``[h]e did not''
conduct a thorough patient history. Id. at 166. He then testified that
Respondent had changed B.B.'s treatment plan by adding Percocet, but
that Respondent ``change[d] the medications without ever . . .
documenting [a] medical rationale to add any new medication.'' Id.
Asked by the CALJ ``why would someone add Percocet,'' Dr. Owen
testified that it is a short-acting opioid that could be added ``for
break-through pain, if that's not being controlled well.'' Id. at 167.
With respect to Respondent's notation that he had discussed
``[a]ddictive dependency and tolerance nature of these medications as
well as alternatives,'' id. at 167, Dr. Owen noted that ``there's no
real substance to that statement'' as a statement of informed consent.
Id. at 168. He then explained that the statement ``[l]acks any details
about what alternative treatments were discussed, and . . . B.B.'s
already demonstrated several aberrant drug-taking behaviors.'' Id.
Continuing, Dr. Owen explained that ``[t]he potential of addiction is
very high in this individual, and I think you just can't say something
as generic as this statement and [not] have any meaningful
documentation behind it.'' Id.
Dr. Owen was also asked about entries in a PMP report in B.B.'s
file which showed the controlled substance prescriptions he obtained
and filled from April 12, 2011 through April 11, 2012. Tr. 170-72. The
report showed that on March 14, 2012, B.B. had obtained and filled a
prescription from another provider (R.H.) for 60 alprazolam 1 mg, which
was a 30-day supply and that on April 6, 2012, he had obtained and
filled another prescription from R.H. for 30 alprazolam 1 mg. Id. at
170-71. Dr. Owen testified that this was an early refill, as the March
14 prescriptions should have lasted until approximately the middle of
April. Id. at 171. According to Dr. Owen, this ``could represent [that]
the person is self-escalating their medications.'' \31\ Id.
---------------------------------------------------------------------------
\31\ The Government attempted to make the same point with
respect to the alprazolam prescriptions issued by R.H. on February
15 and March 14, 2012 and filled by B.B. the same day. Tr. 171; see
also GX 3, at 22. However, 2012 was a leap year, and thus, the March
14 prescription was filled 28 days after the February 15
prescription, rendering it only two days early. The Government also
attempted to establish that the February 15 prescription was an
early refill, because B.B. had obtained a refill of alprazolam on
January 20, 2012, thus rendering the February 15 prescription four
days early. Tr. 171-72; see also GX 3, at 22-23. As for the latter
prescription, according to the calendar for February 2012, February
19 was a Sunday and there is no evidence as to whether the practice
was open on February 18.
---------------------------------------------------------------------------
Dr. Owen testified that Respondent should have addressed the early
refills because although he did ``not prescrib[e] this drug, it is a
reflection of B.B.'s ability to self-regulate his controlled substance
use.'' Id. at 172. However, Dr. Owen then testified that an early
refill does not necessarily mean that B.B. was abusing his medication
if it was ``a one-time situation.'' Id. While Dr. Owen testified that
``if you're prescribing, you might call the treating doctor that is
prescribing and get clarification. But when you have a pattern of early
refills, it's hard to explain that the office is closed for a holiday
or a weekend and that justifying the medical necessity to prescribe
early.'' Id. at 172-73. However, given that the alprazolam prescription
issued on February 15 was at most three days early and the March 14
prescription was at most two days early, the evidence does not
establish a pattern of early refills but only a single early refill.
Thus, I place no weight on Respondent's failure to contact Dr. R.H.
regarding the alprazolam refills.
Continuing, Dr. Owen reiterated his earlier testimony that the
patient record was ``not adequate'' to establish ``medical necessity''
for prescribing the controlled substances on this date and that between
September 22, 2011 (when he assumed the care of B.B.) and April 12,
2012, Respondent had not established medical necessity for the drugs.
Id. at 173-74. He then opined that the prescriptions Respondent issued
at this visit were issued outside of the usual course of professional
practice and lacked a legitimate medical purpose. Id. at 174.
Regarding the April 12 visit, Respondent testified that B.B. ``said
he perceived [his] treatment objective was fair'' and that ``[t]here's
a `yes' this time instead of just fair.'' Id. at 339. Asked by his
counsel if B.B. was able to work at that point, Respondent answered
``[n]o'' and that ``[h]e ha[d] not worked any at that point.'' Id. at
353. When then asked why he wrote ``yes'' there, Respondent testified
that he did not recall. Id.
Respondent also testified that ``[h]is pain had gone from a 7 in
January to a 6.'' Id. at 339. Later, he testified that ``[m]y
subjective said his pain was worse, but it was a 6, and my last note
said it was a 7.'' Id. at 353. Respondent then asserted that B.B.'s
pain rating ``was still above the 4 to 5 [that] the Joint Commission
says . . . needs to be addressed.'' \32\ Id.
---------------------------------------------------------------------------
\32\ Respondent also testified as to the contents of the visit
note, largely reading into the record what the notes contained.
However, he noted, inter alia, that B.B. had ``reported subjectively
. . . that his pain had been a little worse,'' as well as that his
straight leg raise was now negative and not ``questionable'' as he
noted at the previous visit. Id. at 340.
---------------------------------------------------------------------------
Respondent further testified that he had not replaced the stolen
medication. Id. at 341. As for how B.B. had managed after his
medications were stolen, Respondent testified that while ``the notes
don't necessarily reflect it . . . he had a family member, and I don't
remember who it was, but someone had held some pain medicines for him,
and he was trying to stretch them out to make sure that he didn't run
out.'' Id. Continuing, Respondent asserted that B.B. did this
``[b]ecause he knew how important his drug screen would be positive,
and so he always kept some medicine back'' by placing it in ``an old
bottle.'' Id.
At this point, the CALJ interjected that he did not ``understand
this, because if a person says that my medicines were stolen, the
medicines are going to be gone'' and ``they won't have medicines to
keep taking them.'' Id. at 342. After Respondent acknowledged that he
``tell[s] stories,'' he explained that the more he ``did pain medicine,
the more [he] found out there is such a culture, everyone wanting their
pain medicines . . . that many of them keep them in a separate bottle .
. . for safety'' and ``keep a stash in a different place'' from their
other prescriptions. Id. Then asked by the CALJ if it made sense that
B.B. reported that his drugs were stolen but stretched them out,
Respondent answered that it
[[Page 14963]]
did because he knew that ``most of my patients keep extra pills or keep
them in a different place'' in their house. Id. at 343.
In his testimony, Respondent agreed with the CALJ that he preferred
prescribing extended release drugs, and that these formulations require
a patient ``to keep a certain amount in [his] system so that [he] would
have relief from [his] pain'' and be able ``to engage in the [ ]
activities of daily living.'' Id. at 344-45. The CALJ then asked:
``doesn't it seem to you unusual that a person would be keeping some of
those back?'' Id. at 345. Respondent testified that ``[i]t would have
before I started doing pain management.'' Id. Continuing, he maintained
that ``[i]t's very common that [patients] keep a stash of their
medicines in an old bottle or take some with them, because they are
absolutely paranoid of having their medicine stolen, and it is such a
common thing for drug seekers, and basically the medicines are highly
sought after, even amongst their family members.'' Id. Respondent then
maintained that ``[m]any of them have lockboxes in their house, where
they actually have their pills. . . . And so it's not unusual in my
practice at all for patients to keep a separate container of their
medicine.'' Id.
Respondent offered no explanation as to how a patient could forgo
taking extended release medication to create ``a stash'' while still
managing his pain. In any event, Respondent offered no evidence that he
even asked B.B. when the purported theft had occurred, which drugs had
been stolen, and when B.B. had last taken the drugs he prescribed.
As for why he changed B.B.'s medication, Respondent testified that
``Opana was very difficult to get in some of the pharmacies'' as some
of the pharmacies ``couldn't get it from their suppliers'' and he had a
policy of requiring patients to obtain their medications at a single
pharmacy. Id. at 346-47. Respondent was then asked by his counsel: ``so
the Percocet took the place of what?'' Id. at 347. Respondent answered:
``I used the Opana ER, because he had had good luck with the Opana
short-acting, so I swapped him and used the Opana ER'' as it was on
Medicaid formulary and easier to obtain because ``it was very, very
expensive'' and ``didn't have a supply problem, because people on the
street or private-pay people couldn't pay for it.'' Id. Respondent then
explained that he ``changed [B.B.] off the long morphine to Percocet .
. . [b]ecause I wanted another . . . short-acting . . . for his break-
through'' pain. Id. Respondent testified that he wrote only for a two-
week supply of the medications. Id. at 348-49.
While Respondent acknowledged that ``having chronic pain [can] lead
to worse anxiety and depression'' as well as that ``uncontrolled
anxiety or depression [can] lead [ ] to more pain,'' id. at 409, he
admitted that he never consulted with the mental health providers that
B.B. was seeing. Id. at 408. Asked by the CALJ whether it was ``within
the standard of care'' for him and B.B.'s mental health provider to
have ``ke[pt] treating [B.B.] without talking to each other,''
Respondent answered that ``[t]he mental health providers are very good
about speaking to us about patients.'' Id. at 409. Then asked by the
CALJ ``[h]ow about the other way around,'' Respondent answered: ``[i]f
you felt it was necessary, you could report on information, I'm sure.''
Id.
Continuing, the CALJ asked Respondent if ``a mental health provider
[is] prescribing controlled substances simultaneously with you,
ordinarily will you consult with the mental health provider?'' Id.
Respondent answered:
We've become quite reliant on the PMPs now. Before the PMP,
there was quite a bit of cross-talk, because you would get
pharmacists [who] would call you and say, did you know that they're
[sic] seeing so and so, or they're [sic] taking this, that or the
other. And so there was much more of a need to try and get ahold
[sic] of them. But we've become very reliant on the PMPs now to
track that.
Id. at 409-10.
The CALJ then asked Respondent ``if two practitioners are
simultaneously providing controlled substances [to] the same patient,
wouldn't the two practitioners talk to each other about [that]
approach?'' Id. at 410. Respondent answered: ``Absolutely. In every
other field but mental health we do do that, and actually we don't
treat the same--we don't treat with pain medication any patient that's
seeing another doctor for pain. We don't go and side talk at all.'' Id.
This answer prompted the CALJ to ask: ``but with a mental health
practitioner, if that practitioner is also prescribing controlled
substances, you wouldn't consult with them and--or ask anything about
that patient?'' Id. Respondent testified: ``[t]hat doesn't happen very
often.'' Id. Indeed, notwithstanding that on the date of B.B.'s first
visit to Respondent's clinic, he identified Wellbutrin and alprazolam
as drugs which he was either then taking or had recently used, see GX
3, at 5; there is no evidence that Respondent (or Dr. Schoelen) ever
discussed B.B.'s psychiatric issues with his mental health providers.
See generally GX 3.
The April 25 Prescriptions
On April 25, 2012, Respondent provided B.B. with a prescription for
30 Roxicodone (oxycodone) 15 mg. GX 5, at 4. B.B.'s file contains no
documentation that there was an office visit, and notwithstanding that
this was a change in medication from what Respondent had prescribed at
the previous visit, there is no notation in the progress notes as to
why he changed the prescription. See generally GX 3; see also Tr. 174-
75. Moreover, while Respondent testified that he would ``routinely''
make an entry in the Treatment Objective Evaluation section of the Pain
Management Treatment Plan ``if we were making a change in a
medication,'' Tr. 357, no such entry was made on this date. See GX 3,
at 28. Nor is there any documentation in the patient file that
Respondent addressed with B.B. the aberrant drug test result (the non-
detection of morphine) which had been reported to him on April 17. See
generally GX 3.
According to Dr. Owen, when adding a new drug to a patient's
regimen of pain medications, a physician ``would have to establish
medical necessity with some type of note, using sound medical
rationale.'' Tr. 175. Dr. Owen further testified that making such a
notation is ``a standard of care, and it's part of the documentation
guidelines that are issued across every state for the most part.'' Id.
Asked if he could think of a reason why a physician ``would add a drug
for the first time without seeing a patient,'' Dr. Owen answered: ``No.
Or at least documenting the medical rationale and establishing medical
necessity.'' Id. at 176. Dr. Owen then testified that Respondent did
not take appropriate steps to establish medical necessity for the
prescription, reiterating his earlier testimony that Respondent had not
demonstrated that conservative care had been tried and been
unsuccessful, as well as that there was a ``clinically meaningful and
objective therapeutic benefit from the previous use of controlled
substances.'' Id. He again opined that the prescription was not issued
in the usual course of professional practice and lacked a legitimate
medical purpose. Id.
Regarding the Roxicodone prescription, Respondent asserted that he
``was just doing a two-week trial, trying to figure out his dose, and
at the time, most likely the patient didn't have any punches on his
card left, and Roxicodone is much cheaper than Percocet, and it's the
same medication.'' Id. at 355. However, Respondent
[[Page 14964]]
documented none of this in B.B.'s record. Nor did he explain why he
failed to follow his routine of making an entry in the Treatment
Objective Evaluation section of the Pain Management Treatment Plan
given that he had changed B.B.'s medication.
As for why he did not take any action with regard to the lab's
finding that the April 12 drug test result was negative for morphine
sulfate, Respondent asserted that the result was not aberrant. Id. at
366. In addressing this prescription, Respondent offered no further
explanation as to why he deemed the result not aberrant. However, with
respect to the January 19 UDS lab report, which was also negative for
morphine, Respondent asserted that oxymorphone is a metabolite of
morphine and thus he did not consider the negative result to be
aberrant. Id. at 336. He asserted this notwithstanding that with
respect to other drugs such as hydrocodone and carisoprodol, the lab
specifically reported when it detected the presence of metabolites of
these drugs, such as hydromorphone for hydrocodone and meprobamate for
carisoprodol. Yet, the lab report contains no notation that oxymorphone
is a metabolite of morphine. Nor did he testify as to his basis of
knowledge for this claim.
Pursuant to 5 U.S.C. 556(e), I take official notice that morphine
does not metabolize into oxymorphone. See Edward J. Cone, et al.,
Evidence that Morphine is Metabolized to Hydromorphone But Not to
Oxymorphone, 32 J. Analytic Toxicology 319, 323 (2008) (finding, based
on study of urine drug screens using liquid chromatography-tandem mass
spectrometry conducted on 34 patients taking morphine exclusively for
chronic pain, that while ``hydromorphone was demonstrated to be a minor
metabolite . . . no evidence was found that oxymorphone is a metabolite
of morphine'' and ``that a positive urine test for oxymorphone can
arise only from oxymorphone or oxycodone administration, and not from
morphine or hydromorphone administration''); id. at 319 (characterizing
as ``unsubstantiated'' the ``claim of a new metabolic pathway leading
from morphine to hydromorphone to oxymorphone'').\33\
---------------------------------------------------------------------------
\33\ Under the Administrative Procedure Act (APA), an agency
``may take official notice of facts at any stage in a proceeding--
even in the final decision.'' U.S. Dept. of Justice, Attorney
General's Manual on the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e),
``[w]hen an agency decision rests on official notice of a material
fact not appearing in the evidence in the record, a party is
entitled, on timely request, to show the contrary.'' Accordingly,
Respondent may dispute my finding by filing a properly supported
motion for reconsideration within 20 calendar days of the date of
this Order. Any such motion shall be filed with the Office of the
Administrator and a copy shall be served on the Government; in the
event Respondent files a motion, the Government shall have 20
calendar days to file a response.
---------------------------------------------------------------------------
The May 9, 2012 Prescriptions
On May 9, 2012, Respondent wrote B.B. a prescription for 60 Opana
ER 20 mg. GX 3, at 93; GX 5, at 27. Respondent did not require an
office visit, and he made no notations in the progress notes regarding
the prescription. See generally GX 3; see also Tr. 177-78. Regarding
the prescription, Dr. Owen again testified that Respondent ``needed to
establish medical necessity for continuation of controlled substances''
and ``did not.'' Id. at 178.
Asked why he refilled the prescriptions,\34\ Respondent testified
that ``I got a phone call that he was wanting his medicines refilled
and that the [R]oxicodone had worked for him and et cetera, so we were
converting him back into the one-month prescriptions in the Schedules
IIs and going back to this three-month office visit.'' Tr. 356.
Respondent offered no testimony addressing Dr. Owen's criticism that he
still had not established that there was a medical necessity for
prescribing controlled substances, which included the Opana. See
generally id. at 356-57.
---------------------------------------------------------------------------
\34\ In her questioning of Respondent, his counsel referred to a
Roxicodone prescription as having been issued on May 9, 2012 and in
his testimony regarding the prescriptions he wrote on that date,
Respondent referred to both a Roxicodone prescription and an Opana
ER 20 mg prescription. Tr. 356. While GX 5 contains a legible copy
of the May 9, 2012 Opana ER prescription, see GX 5, at 27, it does
not contain a copy of a Roxicodone prescription, and as for GX 3,
the copy of the purported Roxicodone prescription is illegible. GX
3, at 93. Because the Government failed to produce any reliable
evidence to show that Respondent issued a Roxicodone prescription on
May 9, 2012, I do not consider whether any such prescription was
issued, nor whether Respondent complied with 21 CFR 1306.04(a) when
he issued it.
---------------------------------------------------------------------------
Asked to provide his opinion as to Respondent's prescribing of
controlled substances from September 2011 through May 9, 2012, Dr. Owen
opined that Respondent did not adequately review B.B.'s medical
history. Id. at 178. He further opined that a treatment plan that
established medical necessity ``would have logic behind the treatment''
and would have ``establish[ed] that conservative care has not been
helpful and that [an] objective and clinically meaningful therapeutic
benefit from the use of controlled substances has been established, if
[they] ha[d] previously been used.'' Id. Dr. Owen then testified that
none of the controlled substance prescriptions Respondent issued to
B.B. were issued in the usual course of professional practice and for a
legitimate medical purpose. Id. at 178-79.
Respondent's Evidence in Remediation
Respondent offered only vague testimony that he has taken ``extreme
CME [continuing medical education] . . . in hospice care and pain
medicine'' in 1995 and had done some ``reading'' on pain management.
Tr. 235, 381. Respondent offered no further detail as to the subject
matter of the CME course[s] he took. See id. As for his assertions that
he had read articles on pain management and that he kept current with
those articles, he admitted that he had not ``read anything in a couple
of years'' and could not recall any articles he had read on pain
management. Id. at 385-86.
Discussion
Section 303(f) of the Controlled Substances Act (CSA) provides that
``[t]he Attorney General may deny an application for [a practitioner's]
registration . . . if the Attorney General determines that the issuance
of such registration . . . would be inconsistent with the public
interest.'' 21 U.S.C. 823(f). With respect to a practitioner, the Act
requires the consideration of the following factors in making the
public interest determination:
(1) The recommendation of the appropriate State licensing board
or professional disciplinary authority.
(2) The applicant's experience in dispensing . . . controlled
substances.
(3) The applicant's conviction record under Federal or State
laws relating to the manufacture, distribution, or dispensing of
controlled substances.
(4) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health and
safety.
Id.
``[T]hese factors are . . . considered in the disjunctive.'' Robert
A. Leslie, M.D., 68 FR 15227, 15230 (2003). It is well settled that I
``may rely on any one or a combination of factors, and may give each
factor the weight [I] deem[ ] appropriate in determining whether a
registration should be revoked.'' Id.; see also MacKay v. DEA, 664 F.3d
808, 816 (10th Cir. 2011); Volkman v. DEA, 567 F.3d 215, 222 (6th Cir.
2009); Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005). Moreover, while
I am required to consider each of the factors, I ``need not make
explicit findings as to each one.'' MacKay, 664 F.3d at 816 (quoting
[[Page 14965]]
Volkman, 567 F.3d at 222 (quoting Hoxie, 419 F.3d at 482)).\35\
---------------------------------------------------------------------------
\35\ In short, this 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; what matters is the seriousness of the registrant's
misconduct. Jayam Krishna-Iyer, 74 FR 459, 462 (2009). Accordingly,
as the Tenth Circuit has recognized, findings under a single factor
can support the revocation of a registration or the denial of an
application. MacKay, 664 F.3d at 821.
---------------------------------------------------------------------------
The Government has the burden of proving, by a preponderance of the
evidence, that the requirements for denial of an application pursuant
to 21 U.S.C. 823(f) are met. 21 CFR 1301.44(d). However, once the
Government has made a prima facie showing that issuing a new
registration to the applicant would be inconsistent with the public
interest, an applicant must then present sufficient mitigating evidence
to show why he can be entrusted with a new registration. Medicine
Shoppe-Jonesborough, 73 FR 364, 387 (2008) (citing cases)); see also
MacKay, 664 F.3d at 817.
Having considered all of the factors, I find that the Government's
evidence with respect to Factors Two and Four satisfies its prima facie
burden of showing that granting Respondent's application would be
inconsistent with the public interest.\36\ I further find that
Respondent has failed to produce sufficient evidence to rebut the
Government's prima facie case.
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\36\ As to factor one, while the Oklahoma Board has taken
disciplinary action against Respondent for conduct related to his
prescribing to B.B., the Board has not made a recommendation to the
Agency with respect to whether his application should be granted. To
be sure, as a result of the Board's restoration of his medical
license without restriction of his controlled substance prescribing
authority under Oklahoma law, Respondent satisfies the CSA's
prerequisite for obtaining a new practitioner's registration. See 21
U.S.C. 823(f)(1); see also id.Sec. 802(21). (defining ``the term
`practitioner' [to] mean[ ] a . . . physician . . . or other person
licensed, registered or otherwise permitted, by . . . the
jurisdiction in which he practices . . . to distribute, dispense,
[or] administer . . . a controlled substance in the course of
professional practice''). However, the restoration of Respondent's
state authority is not dispositive of the public interest inquiry.
See Mortimer Levin, 57 FR 8680, 8681 (1992) (``[T]he Controlled
Substances Act requires that the Administrator . . . make an
independent determination [from that made by state officials] as to
whether the granting of controlled substance privileges would be in
the public interest.'').
To be sure, the Agency's case law contains some older decisions
which can be read as giving more than nominal weight in the public
interest determination to a State Board's decision (not involving a
recommendation to DEA) either restoring or maintaining a
practitioner's state authority to dispense controlled substances.
See, e.g., Gregory D. Owens, 67 FR 50461, 50463 (2002) (expressing
agreement with ALJ's conclusion that the board's placing dentist on
probation instead of suspending or limiting his controlled substance
authority ``reflects favorably upon [his] retaining his . . .
[r]egistration, and upon DEA's granting of [his] pending renewal
application''); Vincent J. Scolaro, 67 FR 42060, 42065 (2002)
(concurring with ALJ's ``conclusion that'' state board's
reinstatement of medical license ``with restrictions'' established
that ``[b]oard implicitly agrees that the [r]espondent is ready to
maintain a DEA registration upon the terms set forth in'' its
order).
Of note, these cases cannot be squared with the Agency's
longstanding holding that ``[t]he Controlled Substances Act requires
that the Administrator . . . make an independent determination [from
that made by state officials] as to whether the granting of
controlled substance privileges would be in the public interest.''
Levin, 57 FR at 8681. Indeed, neither of these cases even
acknowledged the existence of Levin, let alone attempted to
reconcile the weight it gave the state board's action with Levin.
While in other cases, the Agency has given some weight to a Board's
action in allowing a practitioner to retain his state authority even
in the absence of an express recommendation, see Tyson Quy, 78 FR
47412, 47417 (2013), the Agency has repeatedly held that a
practitioner's retention of his/her state authority is not
dispositive of the public interest inquiry. See, e.g., Paul Weir
Battershell, 76 FR 44359, 44366 (2011) (citing Edmund Chein, 72 FR
6580, 6590 (2007), pet. for rev. denied, Chein v. DEA, 533 F.3d 828
(D.C. Cir. 2008)).
As to factor three, I acknowledge that there is no evidence that
Respondent has been convicted of an offense under either federal or
Oklahoma law ``relating to the manufacture, distribution or
dispensing of controlled substances.'' 21 U.S.C. 823(f)(3). However,
there are a number of reasons why even a person who has engaged in
criminal misconduct may never have been convicted of an offense
under this factor, let alone prosecuted for one. Dewey C. MacKay, 75
FR 49956, 49973 (2010), pet. for rev. denied, MacKay v. DEA, 664
F.3d at 822. The Agency has therefore held that ``the absence of
such a conviction is of considerably less consequence in the public
interest inquiry'' and is therefore not dispositive. Id.
While I have considered factor five, I deem it unnecessary to
make any findings.
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Factors Two and Four--Respondent's Experience in Dispensing Controlled
Substances and Record of Compliance With Applicable Controlled
Substance Laws
Under a longstanding DEA regulation, a prescription for a
controlled substance is not ``effective'' unless it is ``issued for a
legitimate medical purpose by an individual practitioner acting in the
usual course of his professional practice.'' 21 CFR 1306.04(a). Under
the CSA, it is fundamental that a practitioner must establish a
bonafide doctor-patient relationship in order to act ``in the usual
course of . . . professional practice'' and to issue a prescription for
a ``legitimate medical purpose.'' See United States v. Moore, 423 U.S.
122, 142-43 (1975); United States v. Lovern, 590 F.3d 1095, 1100-01
(10th Cir. 2009); United States v. Smith, 573 F.3d 639, 657 (8th Cir.
2009); see also 21 CFR 1306.04(a) (``an order purporting to be a
prescription issued not in the usual course of professional treatment .
. . is not a prescription within the meaning and intent of [21 U.S.C.
829] and . . . the person issuing it, shall be subject to the penalties
provided for violations of the provisions of law related to controlled
substances'').
As the Supreme Court has explained, ``the prescription requirement
. . . ensures patients use controlled substances under the supervision
of a doctor so as to prevent addiction and recreational abuse. As a
corollary, [it] also bars doctors from peddling to patients who crave
the drugs for those prohibited uses.'' Gonzales v. Oregon, 546 U.S.
243, 274 (2006) (citing Moore, 423 U.S. 122, 135, 143 (1975)).
Both this Agency and the federal courts have held that
``establishing a violation of the prescription requirement `requires
proof that the practitioner's conduct went ``beyond the bounds of any
legitimate medical practice, including that which would constitute
civil negligence.'' ' '' Laurence T. McKinney, 73 FR 43260, 43266
(2008) (quoting United States v. McIver, 470 F.3d 550, 559 (4th Cir.
2006)). See also United States v. Feingold, 454 F.3d 1001, 1010 (9th
Cir. 2006) (``[T]he Moore Court based its decision not merely on the
fact that the doctor had committed malpractice, or even intentional
malpractice, but rather on the fact that his actions completely
betrayed any semblance of legitimate medical treatment.''); Jack A.
Danton, 76 FR 60900, 60904 (2011) (finding violations of 21 CFR
1306.04(a), in the absence of expert testimony, ``where a physician has
utterly failed to comply with multiple requirements of state law for
evaluating her patients and determining whether controlled substances
are medically indicated and thus has ` ``completely betrayed any
semblance of legitimate medical treatment'' ' '') (quoting McKinney, 73
FR at 43266 (quoting Feingold, 454 F.3d at 1010)).
However, as the Agency has held in multiple cases, ``the Agency's
authority to deny an application [and] to revoke an existing
registration . . . is not limited to those instances in which a
practitioner intentionally diverts a controlled substance.'' Bienvenido
Tan, 76 FR 17673, 17689 (2011) (citing Paul J. Caragine, Jr., 63 FR
51592, 51601 (1998)); see also Dewey C. MacKay, 75 FR at 49974. As
Caragine explained: ``[j]ust because misconduct is unintentional,
innocent, or devoid of improper motive, [it] does not preclude
revocation or denial. Careless or negligent handling of controlled
substances creates the opportunity for diversion and [can] justify''
the revocation of an existing registration or the denial of an
application for a registration. 63 FR at 51601.
[[Page 14966]]
``Accordingly, under the public interest standard, DEA has
authority to consider those prescribing practices of a physician,
which, while not rising to the level of intentional or knowing
misconduct, nonetheless create a substantial risk of diversion.''
MacKay, 75 FR at 49974; see also Patrick K. Chau, 77 FR 36003, 36007
(2012). Likewise, ``[a] practitioner who ignores the warning signs that
[his] patients are either personally abusing or diverting controlled
substances commits `acts inconsistent with the public interest,' 21
U.S.C. 824(a)(4), even if [he] is merely gullible or na[iuml]ve.''
Jayam Krishna-Iyer, 74 FR 459, 460 n.3 (2009); see also Chau, 77 FR at
36007 (holding that even if physician ``did not intentionally divert
controlled substances,'' State Board Order ``identified numerous
instances in which [physician] recklessly prescribed controlled
substances to persons who were likely engaged in either self-abuse or
diversion'' and that physician's ``repeated failure to obtain medical
records for his patients, as well as to otherwise verify their
treatment histories and other claims, created a substantial risk of
diversion and abuse'') (citing MacKay, 75 FR at 49974).
In March 2005, the Oklahoma Board of Medical Licensure and
Supervision issued its Policy Statement on the ``Use of Controlled
Substances for the Treatment of Pain.'' Okla. Bd. of Med. Lic. &
Super., Use of Controlled Substances for the Treatment of Pain (Mar.
10, 2005) (hereinafter, Policy Statement). Therein, the Board explained
that it:
will refer to current clinical practice guidelines and expert review
in approaching cases involving management of pain. The medical
management of pain should consider current clinical knowledge and
scientific research and the use of pharmacological and non-
pharmacological modalities according to the judgment of the
physician. Pain should be assessed and treated promptly and the
quantity and frequency of doses should be adjusted according to the
intensity, duration of the pain and treatment outcomes.
. . . .
. . . The Board will consider prescribing, ordering, dispensing
or administering controlled substances for pain to be for a
legitimate medical purpose if based on sound clinical judgment. All
such prescribing must be based on clear documentation of unrelieved
pain. To be within the usual course of professional practice, a
physician-patient relationship must exist and the prescribing should
be based on a diagnosis and documentation of unrelieved pain.
Compliance with applicable state and/or federal law is required.
The Board will judge the validity of the physician's treatment
of the patient based on available documentation, rather than solely
on the quantity and duration of medication administration. The goal
is to control the patient's pain while effectively addressing other
aspect of the patient's functioning, including physical,
psychological, social and work-related factors.\37\
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\37\ See also Policy Statement, at 2 (``Allegations of
inappropriate pain management will be evaluated on an individual
basis. The Board will not take disciplinary action against a
physician for deviating from this policy when contemporaneous
medical records document reasonable cause for deviation. The
physician's conduct will be evaluated to a great extent by the
outcome of pain treatment, recognizing that some types of pain
cannot be completely relieved, and by taking into account whether
the drug used is appropriate for the diagnosis, as well as
improvement in patient functioning and/or quality of life.'').
Id. at 1-2.
Simultaneously with the issuance of its Policy Statement, the Board
promulgated its regulation on the ``[u]se of controlled substances for
the management of chronic pain.'' Okla. Admin. Code Sec. 435:10-7-11.
As the Board explained, its purpose was to adopt ``criteria'' to be
used ``when evaluating [a] physician's treatment of pain, including the
use of controlled substances.'' Id. The regulation thus sets forth
criteria for the ``[e]valuation of the patient,'' the ``[t]reatment
plan,'' ``[i]nformed consent and agreement for treatment,''
``[p]eriodic review,'' ``[c]onsultation,'' and ``[m]edical records.''
Id.
With respect to the evaluation of the patient, the Rule states:
A medical history and physical examination must be obtained,
evaluated and documented in the medical record. The medical record
should document the nature and intensity of the pain, current and
past treatments for pain, underlying or coexisting diseases or
conditions, the effect of the pain on physical and psychological
function and history of substance abuse. The medical record also
should document the presence of one or more recognized medical
indications for the use of a controlled substance.
Id. Sec. 435:10-7-11(1). As for the treatment plan, the Rule provides:
The written treatment plan should state objectives that will be
used to determine treatment success, such as pain relief and
improved physical and psychosocial function, and should indicate if
any further diagnostic evaluations or other treatments are planned.
After treatment begins, the physician should adjust drug therapy to
the individual medical needs of each patient. Other treatment
modalities or a rehabilitation program may be necessary depending on
the etiology of the pain and the extent to which the pain is
associated with physical and psychosocial impairment.
Id. Sec. 435:10-7-11(2).
After providing the criteria for informed consent and agreement for
treatment, which states, inter alia, that ``[t]he physician should
discuss the risks and benefits of the use of controlled substances with
the patient,'' id. Sec. 435:10-7-11(3), the Rule sets forth the
criteria for the periodic review. The Rule states:
The physician should periodically review the course of pain
treatment and any new information about the etiology of the pain or
the patient's state of health. Continuation or modification of
controlled substances for pain management therapy depends on the
physician's evaluation of progress toward treatment objectives.
Satisfactory response to treatment may be indicated by the patient's
decreased pain, increased level of function or improved quality of
life. Objective evidence of improved or diminished function should
be monitored and information from family members or other caregivers
should be considered in determining the patient's response to
treatment. If the patient's progress is unsatisfactory, the
physician should assess the appropriateness of continued uses of the
current treatment plan and consider the use of other therapeutic
modalities.
Id. Sec. 435:10-7-11(4).
With respect to consultation, the Rule provides:
The physician should be willing to refer the patient, as
necessary, for additional evaluation and treatment in order to
achieve treatment objectives. Special attention should be given to
those patients with pain who are at risk for medication misuse,
abuse or diversion. The management of pain in patients with a
history of substance abuse or with a comorbid psychiatric disorder
may require extra care, monitoring, documentation and consultations
with or referral to an expert in the management of such patients.
Id. Sec. 435:10-7-11(5).
And finally, with respect to medical records, the Rule states in
relevant part that ``[r]ecords should remain current'' and that ``[t]he
physician should keep accurate and complete records.'' Id. Sec.
435:10-7-11(6). The records are ``to include . . . the medical history
and physical examination,'' ``diagnostic, therapeutic and laboratory
results,'' ``evaluations, consultations and follow-up evaluations,''
``treatment objectives,'' ``discussion of risks and benefits,''
``informed consent,'' ``treatments,'' ``medications (included date,
type, dosage and quantity prescribed),'' ``instructions and agreements
and periodic reviews.'' Id.
The CALJ rejected the bulk of the Government's case, finding the
allegations proven only ``in part'' and only with respect to the
prescriptions Respondent issued on October 6 and 20, 2011 (prescribing
events 3 and 4), April 12 and 25, and May 9, 2012 (prescribing events
10, 11, and 12). Even then, however, the CALJ reasoned that ``[t]he
[[Page 14967]]
errant prescribing events established by the record reveal inattention
to detail, not intentional diversion,'' R.D. at 82, only to
subsequently conclude that ``Respondent violated his responsibility . .
. to ensure that he only prescribed controlled substances for a
legitimate medical purpose in the course of professional practice.''
Id. at 90 (citing 21 CFR 1306.04(a)); see also id. (``[T]hese
prescribing events violated Oklahoma medical regulations, fell below
the prevailing medical practice standard in Oklahoma, and did not fall
within the state and federal definitions of the usual course of a
professional practice.'' (citing Policy Statement, at 2; 21 CFR
1306.04(a))).
I conclude, however, that the Government has proved additional
violations of 21 CFR 1306.04(a) beyond those found by the CALJ, and I
further conclude that the evidence does not simply reflect
``inattention to detail'' on Respondent's part--a finding which is
legally insufficient to support the conclusion that he violated 21 CFR
1306.04(a)--but rather, that he knowingly diverted drugs to B.B. I am
mindful of the various credibility findings made by the CALJ,
particularly with respect to the testimony of Respondent, as well as
his finding that ``Dr. Owen's expert testimony predictably raised no
issues regarding credibility'' but that his ``testimony was not without
its own `red flags.' '' R.D. 18. For reasons explained earlier, I
respectfully disagree with the CALJ's reasons for declining to give
weight to much of Dr. Owen's testimony, including his conclusion that
Dr. Owen's testimony was based upon a misunderstanding of the nature of
the Oklahoma Board's Pain Management Regulations. And to the extent the
CALJ declined to consider the evidence of various UDS results with
respect to the specific prescribing events on the ground that the
Government did not provide adequate notice, as explained above, I
conclude that Respondent had constitutionally sufficient notice and
understood that the UDS results were at issue throughout the
proceeding.
The September 22, 2011 Prescriptions
The CALJ rejected the Government's allegation that the Duragesic
and Opana prescriptions issued by Respondent on this date violated 21
CFR 1306.04(a) because they were issued outside of the usual course of
professional practice and lacked a legitimate medical purpose.\38\ As
found above, Dr. Owen testified that because this was B.B.'s first
visit with Respondent and Respondent was taking over his care,
Respondent should have ``do[ne] a proper history and physical exam,''
reviewed the ``previous treatments'' and done ``everything that
typically is expected for a new patient evaluation.'' Tr. 131. Dr. Owen
testified that Respondent performed ``a superficial evaluation that''
did not ``adequately explain the chief complaint or what previous
treatments have or have not been done.'' Id. at 133.
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\38\ The CALJ asserted that in the Show Cause Order and its
Prehearing Statement, ``the Government noticed a theory based in the
issuance of prescriptions outside the course of a professional
practice under 21 CFR 1306.04(a), not that any prescriptions were
not issued for a legitimate medical purpose.'' R.D. 87-88. While
then noting that ``the Government did sporadically elicit testimony
from its expert in this regard ([citing] Tr. 93, 123, 133-34, 137-
38, 140, 144, 148, 155-56, 158, 174, 176, 179) and did espouse this
theory in its closing brief,'' the CALJ again asserted that this
theory was unavailable to the Government because it raised the issue
for the first time in its post-hearing brief. Id. at 88 n.150
(citing Fred Samimi, 79 FR 18698, 18713 (2014)).
I decline to adopt this ruling for multiple reasons. First, as
several federal appeals courts have recognized, there is no material
difference between the phrases ``usual course of professional
practice'' and ``legitimate medical purpose,'' and thus the courts
have sustained convictions for violating the regulation and 21
U.S.C. 841(a)(1), notwithstanding that an indictment charged the
defendant ``with dispensing of a controlled substance not in the
usual course of professional practice'' but did not allege that the
dispensing lacked a legitimate medical purpose, as well as where the
jury instructions only referenced the ``usual course of professional
practice'' and did not require the jury to find that the defendant
``dispensed without a legitimate medical purpose.'' See United
States v. Fuchs, 467 F.3d 889, 898-901 (5th Cir. 2006) (noting
earlier decision that ``appears to use the phrases . . .
interchangeably'').
Likewise, in United States v. Nelson, 383 F.3d 1227, 1230-31
(10th Cir. 2004), the Tenth Circuit found no error in a jury
instruction which provided that a physician could be convicted of
conspiracy under 21 U.S.C. 846, ``if it found the prescriptions were
either without a legitimate purpose or outside the course of
professional practice.'' As the Tenth Circuit explained, ``[i]t is
difficult to imagine circumstances in which a practitioner could
have prescribed controlled substances within the usual course of
medical practice but without a legitimate medical purpose.
Similarly, it is difficult to imagine circumstances in which a
practitioner could have prescribed controlled substances with a
legitimate medical purpose and yet be outside the usual course of
medical practice.'' Id. at 1231. See also United States v. Kirk, 584
F.2d, 773, 784 (6th Cir. 1978) (``[T]here is no difference in the
meanings of the . . . phrase, `[i]n the usual course of professional
practice' and the . . . phrase, `legitimate medical purpose.' '')
(citing United States v. Plesons, 560 F.2d 890, 897 (8th Cir. 1977)
and United States v. Rosenberg, 515 F.2d 190, 197 (9th Cir. 1975)).
Furthermore, even if these were two distinct theories for
proving a violation of 21 CFR 1306.04(a), the record supports a
finding of litigation by consent. The Government did not
``sporadically elicit testimony from its expert'' on this issue, but
rather, asked Dr. Owen whether each of the prescriptions lacked a
legitimate medical purpose. Respondent did not object to any of
these questions, and thus, it is clear that unlike the issue in
Samimi, which was raised for the first time by the Government in its
post-hearing brief, Dr. Owen's testimony that each of the
prescriptions lacked a legitimate medical purpose was not directed
at an incidental issue, but rather went to the heart of the
Government's case.
---------------------------------------------------------------------------
Dr. Owen further noted that Respondent documented that B.B. had a
negative straight leg raise and that this is ``the most sensitive
physical finding for low back pain.'' Id. at 190. He then explained
that ``a sensitive test means that if you don't have a positive finding
you don't have that diagnosis.'' Id. Dr. Owen also testified that there
was ``no evaluation of pain or function, physical or psychosocial in
the documentation'' and ``no evidence of a previous therapeutic
benefit'' from the use of controlled substances,'' nor ``proof that
[B.B. had] exhausted conservative care before going [to the] high-risk
treatment[ ]'' of ``prescribing controlled substances.'' Id. at 134.
Dr. Owen thus concluded that because ``[t]here's no medical rationale
for continuing with an ineffective treatment . . . there's no
justification to continue'' to prescribe controlled substances. Id. at
133.
Dr. Owen further testified that Respondent's patient file contained
two aberrant drug tests, the June 1, 2011 test, which did not detect
alprazolam even though B.B. was obtaining the drug every 30 days, and
the August 25, 2011 test, which detected the presence of nordiazepam,
oxazepam, and temazepam, which the lab reported as not expected based
on the prescribed medications. Dr. Owen testified that Respondent
``completely ignored'' the aberrant drug screens and that he ``should
have acknowledged their existence and . . . taken some type of
corrective action.'' Id. at 132. Dr. Owen then suggested that
Respondent could have sent B.B. for an evaluation by an
addictionologist or mental health professional (either a psychiatrist
or psychologist) with experience in addiction medicine. Id. at 134. And
he further testified that the patient file did not reflect that
Respondent had discussed B.B. with either his current (such as the
providers who were writing alprazolam prescriptions) or past
prescribers (such as Dr. Schoelen). Id. at 132. Dr. Owen also noted
that Respondent did not appear to have taken any safeguards against the
potential for abuse or diversion. Id.
The CALJ found uncontroverted Dr. Owen's testimony that B.B. was a
new patient and thus, Respondent was required to have done everything
typically expected of a physician in the evaluation of a new patient,
including a proper history and physical, reviewing previous treatments,
and reviewing his patient file. R.D. at 33-34. The CALJ further found
uncontroverted Dr.
[[Page 14968]]
Owen's testimony that Respondent ignored the June 1 aberrant drug
screen, that there was no evidence Respondent discussed B.B. with
either his current or past prescribers, and that Respondent took no
precautions against the potential for abuse or diversion. Id. at 34.
As for the aberrant drug tests, the CALJ asserted that ``there is
little doubt that the June 1 UDS is aberrant to the extent it shows
that B.B. was not taking his alprazolam,'' and that Dr. Owen's
testimony that ``failing to act on this aberrant UDS fell below the
prevailing standard . . . stands unrebutted [on] the record.'' Id. at
38. The CALJ, however, declined to consider this evidence, reasoning
that it was not properly noticed by the Government in its pleadings
with respect to this prescribing event. Id. at 38-39. For reasons
explained previously, I disagree and find that Respondent had fair
notice that the June 1 aberrant UDS was at issue throughout the
proceeding.
Accordingly, I find that the June 1 drug test was aberrant and that
Respondent breached the standard of care when he failed to address the
test with B.B. prior to issuing the September 22, 2011 prescriptions.
The CALJ, however, also rejected the Government's contention that the
drug test of August 25, 2011, which showed the presence of nordiazepam,
oxazepam and temazepam when these drugs had not been prescribed to B.B.
by either Dr. Schoelen or his mental health professional, was also
aberrant and not properly considered and addressed by Respondent prior
to prescribing to B.B. R.D. at 38. While Respondent testified that he
did not remember if he reviewed this UDS prior to the September 22
visit or at any point, Tr. 397, in the visit note, Respondent stated
that B.B.'s ``[p]ast medical history was extensively reviewed.'' GX 3,
at 48. Moreover, Dr. Owen credibly testified as to the need to obtain
``all . . . previous medical records pertaining to [the] chief
complaint'' and review them to determine what previous treatments had
been tried and their results, as well as ``to look for any previous
aberrant behaviors.'' Tr. 94. And Dr. Owen further explained that ``if
you don't look at all the pertinent previous medical records, you can't
get an accurate diagnosis.'' Id. at 117. This testimony is unrefuted.
In rejecting the Government's contention that the August 25 test
was aberrant, the CALJ did not make a credibility finding as to
Respondent's testimony that he did not remember whether he reviewed the
UDS at the time he was treating B.B. Nor did he make an explicit
finding as to whether Respondent reviewed the UDS.
Instead, the CALJ reasoned that ``Respondent credibly testified
that, based on his professional opinion and his conversations with
personnel at the testing lab, a patient taking any benzodiazepine may
test positive for any other benzodiazepine[,] [and] [t]hus, the
Respondent did not, and does not view the August 25 UDS as anomalous.''
R.D. at 38 (emphasis added). After faulting the Government because it
did not recall Dr. Owen ``to rebut Respondent's understanding about the
limitations of the GC/MS,'' the ALJ explained that ``[t]here was
nothing patently incredible about the Respondent's recollection of his
conversations with the UDS lab about the limits of its testing.'' Id.
However, if, in fact, Respondent did not review the UDSs prior to
prescribing (notwithstanding the notation that he ``extensively
reviewed'' B.B.'s medical history), Dr. Owen's unrefuted testimony
establishes that Respondent committed a gross breach of the standard of
care in failing to do so. Of note, Respondent testified that Dr.
Schoelen had instituted urine drug testing as a ``safeguard'' after Dr.
Schoelen joined the American Academy of Pain Management and attended
training, and that a drug test was done ``every three months'' on the
clinic's ``chronic pain patients.'' Tr. 253-55. Thus, Respondent
clearly knew that B.B. had been subjected to drug testing.
Moreover, if it is the case that Respondent did not review the
August 25 drug test, then it is clear that Respondent's testimony as to
what he was told by the lab was not offered to show his state of mind
in failing to address the aberrant test result. Rather, it was offered
to prove the truth of the matter asserted--that because of cross-
reactions, ``a patient taking any benzodiazepine may test positive for
any other benzodiazepine.''
Thus, Respondent's testimony was hearsay which was uncorroborated
by either the testimony of a lab employee, an expert in drug testing,
or articles from scientific or medical journals. The CALJ did not,
however, analyze the reliability of the hearsay statements recounted by
Respondent.\39\ See R.D. at 37-40.
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\39\ In multiple decisions, the Agency has made clear that the
reliability of a hearsay statement should be evaluated by reference
to the decisional law of the courts of appeals that would have
jurisdiction over a subsequent petition for review; this includes
the D.C. Circuit and the Tenth Circuit. As the D.C. Circuit has
explained, ``hearsay may constitute substantial evidence depending
upon its probative value and reliability, considering inter alia,
possible bias of the declarant, whether [the] statements are signed
and sworn to, whether they are contradicted by direct testimony,
whether the declarant is available, and whether the hearsay is
corroborated.'' Hoska v. Department of the Army, 677 F.2d 131, 138
(D.C. Cir. 1982) (quoted in Mireille Lalanne, 78 FR 47750, 47752
(2013)). By contrast, the Tenth Circuit does not appear to have set
forth a set of factors for evaluating the reliability of hearsay in
administrative proceedings. See Roach v. NTSB, 804 F.2d 1147, 1160
(10th Cir. 1986); Cf. Bennett v. NTSB, 66 F.3d 1130, 1137 (10th Cir.
1995) (declining to decide if uncorroborated hearsay can constitute
substantial evidence in administrative proceeding ``given the
existence of ample corroborative evidence-both nonhearsay and
hearsay exceptions''); Sorenson v. NTSB, 684 F.2d 683, 686 (10th
Cir. 1982) (declining to decide ``whether uncorroborated hearsay can
constitute substantial evidence in administrative proceedings'').
Applying the Hoska factors, I conclude that the statement is not
entitled to weight. Even assuming that the lab employee who made the
statement was not biased, the statement was neither signed nor sworn
to, Respondent did not identify the employee by name, and Respondent
did not disclose that he intended to testify to the lab's statement
in advance of the hearing notwithstanding that the CALJ's Order for
Prehearing Statements directed that Respondent was ``to indicate
clearly each and every matter as to which he intends to introduce
evidence in opposition'' and the summary of each witness' testimony
was ``to state what the testimony will be.'' ALJ Ex. 4, at 2.
Moreover, that Order then stated ``that testimony not disclosed in
the prehearing statement or pursuant to subsequent rulings is likely
to be excluded at the hearing.'' Id. Given that Respondent did not
disclose this testimony in advance of the hearing, I find that the
declarant was not available. Moreover, as explained above,
Respondent offered no other evidence to corroborate the lab's
statement and the statement was contradicted in part by Respondent's
testimony regarding the temazepam positive on the January 19 drug
test.
---------------------------------------------------------------------------
Notably, in his Response to the Government's Exceptions, Respondent
does not maintain that this testimony was offered for the non-hearsay
purpose of showing Respondent's state of mind when he failed to address
the August 25 drug test with B.B. Response to Exceptions, at 4-6.
Indeed, in his brief, Respondent argues only that ``there is no
evidence that the written test results provided by . . . the drug
testing company . . . are unreliable and inadmissible or that the
results themselves are unreliable.'' Id. at 5. However, neither the
August 25 nor the January 19, 2012 lab reports--each of which detected
the presence of nordiazepam, oxazepam, and temazepam in addition to the
metabolite of alprazolam--contain any statements to the effect that
because of cross-reactions, taking alprazolam could result in a
positive finding for the other three drugs. And as for Respondent's
contention that there is no evidence that the test results are
unreliable, that is the very point made by the Government. Id.
Moreover, even were I to consider Respondent's testimony on the
issue of his state of mind--which would seem to require a finding that
he did see the lab
[[Page 14969]]
report--as ultimate factfinder, I would not give it weight. While the
Agency must accord some deference to an ALJ's findings on credibility
issues where an ALJ observes the demeanor of the witness, ``[t]he
findings of the [ALJ] are to be considered along with the consistency
and inherent probability of [the] testimony.'' Universal Camera Corp.
v. NLRB, 340 U.S. 474, 496 (1951).
Of consequence, B.B.'s January 19, 2012 drug test also detected the
presence (in addition to that of alpha-hydroxyalprazolam, the
metabolite of alprazolam) of nordiazepam, oxazepam, and temazepam. GX
3, at 97. Yet on this occasion, Respondent noted on the Lab Report that
he had ``counseled [B.B.] to only take what is prescribed.'' GX 3, at
97. And in his testimony regarding the January 19 drug test results,
Respondent stated that he made the notation because ``[t]he
nordiazepam, the oxazepam, and then the Xanax, the lab always said that
if . . . Xanax [alprazolam] was positive, that they could all three be
positive. The temazepam, in our practice usually didn't show up, and
temazepam is [a] sleeping pill called Restoril.'' Tr. 335; see also GX
3, at 105 (lab report of Dec. 7, 2010 in B.B.'s file reporting presence
of alpha-hydroxyalprazolam but no other benzodiazepines even though the
drugs screened for included diazepam, oxazepam, and temazepam).
Respondent offered no explanation for the inconsistency between his
testimony regarding why he ``would not consider'' the August 25 drug
test to be aberrant and his testimony as to why he deemed the January
19 drug test as aberrant, even though both tests reported the presence
of the same four benzodiazepines, and in particular, temazepam. Most
significantly, the CALJ did not address the inconsistency between
Respondent's testimony regarding the August 25 and January 19 drug
tests in making his credibility finding. See R.D. at 38.
I conclude, however, that for the same reason that Respondent
deemed the January 19 test to be aberrant, I reject his testimony that
he does not believe the August 25 test was aberrant and find that it
was. I further find that this was now the second aberrant drug test
that B.B. had provided in the previous four months.
I am also unpersuaded by the CALJ's reasoning for rejecting Dr.
Owen's testimony as to the adequacy of Respondent's evaluation of B.B.
The CALJ reasoned that the deficiencies identified by Dr. Owen
``generally relate to a paucity of documented proof in the chart
entries'' as to whether Respondent had adequately evaluated B.B.'s
chief complaint, the treatments he had previously undergone, his
physical and psychosocial function, and whether the prescribing of
controlled substances provided a therapeutic benefit. R.D. at 35-36. As
explained above, the CALJ declined to give weight to Dr. Owen's
testimony based on the erroneous legal conclusion that the Board's
documentation and recordkeeping standards are permissive and not
mandatory. The CALJ apparently credited Respondent's testimony in
finding that ``B.B. reported pain, which was consistent with the
findings of the exam the Respondent conducted on that date.'' Id. at
37. The CALJ also gave weight to Respondent's decision to change B.B's
medications from Lortab, a short-acting medication which Dr. Schoelen
had prescribed, to Duragesic (fentanyl) patches, which are long-acting,
because in his view, short-acting medications are too addicting. Id.
And the CALJ also reasoned that Respondent ``explained that he did not
have B.B. undergo physical therapy because that approach had been tried
without success . . . in the past.'' Id. at 38 (citing Tr. 392).
As to Respondent's claim that B.B. had undergone physical therapy
for some time, Respondent admitted that this was not documented in the
patient file. Tr. 392. Indeed, a review of the progress notes prepared
by Dr. Schoelen finds no mention of B.B.'s having been referred to
physical therapy, but rather, mentions only Dr. Schoelen's
recommendations of such modalities as gentle stretching, low back
strengthening exercises, heat, and low back range of motion exercises.
See GX 3, at 51-54, 56, 59. Likewise, B.B.'s file does not contain
either a copy of any referral or prescription for physical therapy, or
a copy of any physical therapist's notes. Indeed, while Respondent
cited to the Patient History Form in B.B's file (GX 3, at 34) and
testified that ``[i]t says that under pain management, that he was in
therapy every month on his past medical history,'' Tr. 392, that form
does not even use the words ``pain management.'' See GX 3, at 34.
Instead, the form contains a column with the heading of ``Chronic
Problems,'' under which the entries state: ``Depression,'' ``Anxiety''
and then ``Therapy every month.'' Id. Patients in physical therapy,
however, typically receive treatment several times a week and not
``every month.'' Cf. United States v. Armstrong, 550 F.3d 382, 389 (5th
Cir. 2008) (explaining that ``[j]urors have had a wide variety of their
own experiences in doctors' care over their lives,'' and can rely on
those experiences when assessing evidence as to whether a physician
lawfully prescribed controlled substances). And as noted previously,
other evidence of record establishes that B.B. was seeing a
psychiatrist and receiving alprazolam prescriptions on a monthly basis.
Accordingly, I do not find credible Respondent's testimony that he
did not have B.B. go to physical therapy because B.B. ``had been on
physical therapy monthly for quite some time and didn't feel that it
was of any benefit at all.'' Tr. 392. Here too, because Respondent's
testimony is inconsistent with the evidence (and lack thereof), I
decline to adopt the CALJ's apparent credibility finding as to this
testimony. I further agree with Dr. Owen's assessment that Respondent
failed to properly assess whether B.B. had undergone conservative
treatments.
As explained above, Dr. Owen also provided extensive testimony as
to the standard of care for evaluating the history of a patient's pain
complaint and the effect of the pain on a patient's physical and
psychosocial functioning. Tr. 116. In his testimony, Dr. Owen
identified various questions that Respondent should have asked B.B. and
for which Respondent's September 22 visit note contains no evidence
that he did so. See id. (``[H]ow did you hurt yourself; where does it
hurt; does the pain radiate down an extremity; if so, how far down;
does it go past the knee; where does it end up; is any numbness or
weaknesses associated with it?''); see also id. (``And then you talk
about what treatments have you had or what diagnostics have you had'').
And with respect to the assessment of the effect of pain on a patient's
functioning, Dr. Owen, after explaining that function is the ``primary
baseline for measuring therapeutic influence,'' id. at 104, testified
that a physician should ask a patient about his activities of daily
living such as his ability to work and his ability to tolerate sitting,
walking and standing. Id. at 106, 111. See also GX 3, at 33 (Patient
Comfort Assessment Guide completed by B.B. on Sept. 2, 2009 which asked
questions as to how pain interfered with his general activity, mood,
sleep, enjoyment of life, ability to concentrate, and relations with
other people). He also noted that in evaluating functionality, a
physician would perform a neurological assessment, do a straight leg
raise test, and look at the range of motion of the patient's spine. Id.
at 111.
Respondent's note for this visit is totally devoid of any
documentation that he asked B.B. how he hurt himself; whether his pain
radiated down his extremities and if so, how far down; if the pain went
past his knee; if he had
[[Page 14970]]
any weakness or numbness; how the pain effected various activities of
daily living such as his ability to work, as well as his ability to
tolerate sitting, walking and standing.\40\ GX 3, at 48. Indeed, the
only documentation Respondent made pertinent to B.B.'s ability to
function was to note ``yes'' for whether he had achieved his treatment
objective and the numbers ``3-5'' in the pain scale column. Id. at 28.
See Okla. Admin. Code Sec. 435:10-7-11(1) (``The medical record should
document the nature and intensity of the pain, current and past
treatment for pain, underlying or coexisting diseases or conditions,
the effect of the pain on physical and psychological function and
history of substance abuse.'').
---------------------------------------------------------------------------
\40\ There is likewise no evidence that Respondent had B.B.
complete a new Patient Comfort Assessment Guide or that he asked him
as to how the pain interfered with his general activity, mood,
sleep, enjoyment of life, ability to concentrate and relations with
other people.
---------------------------------------------------------------------------
Against this evidence, Respondent testified that B.B. reported pain
which was consistent with the exam he conducted at this visit. Tr. 292.
He also explained that he ordered an MRI because he ``wanted to make
sure that'' the results were ``consistent with his pain,'' his physical
exam, and ``the fact that he was on a schedule II narcotic.'' Id. at
293. Respondent also testified that he did not continue B.B. on Lortab
(hydrocodone/acetaminophen) and prescribed fentanyl patches (a long-
acting) narcotic medication because of the risk of abuse and addiction
present with short-acting medications. Id. at 291.
While Respondent may have palpated B.B.'s lumbar region, he offered
no testimony or other evidence refuting Dr. Owen's testimony that the
straight leg raise test is ``the most sensitive physical finding for
low back pain,'' and that ``if you don't have a positive finding you
don't have that diagnosis.'' Id. at 190. While the CALJ acknowledged
this testimony, see R.D. at 35 nn.68-69, he did not explain why the
testimony was not entitled to weight in determining whether Respondent
established medical necessity to prescribe controlled substances. As
this testimony stands unrefuted, I conclude that Respondent did not
establish a diagnosis.
As for Respondent's having changed B.B.'s medication from Lortab to
Fentanyl patches, even long-acting schedule II medications are
susceptible to abuse. Moreover, because Respondent performed only a
superficial evaluation and did not establish a diagnosis and medical
necessity to prescribe controlled substances, let alone two schedule II
controlled substances, this evidence is entitled to no weight.\41\
---------------------------------------------------------------------------
\41\ In his discussion as to why the Government had not proved
that Respondent violated 21 CFR 1306.04(a) in issuing the September
22, 2011 prescriptions, the CALJ also explained that ``Dr. Owen's
views about the relative merits of an MRI versus an X-ray or some
other treatment is a medical treatment dispute that falls squarely
outside the bounds of DEA's expertise and jurisdiction.'' R.D. 39
(citing Gonzales v. Oregon, 546 U.S. 243, 274 (2006)). However,
while Dr. Owen criticized Respondent's decision to order an MRI in
response to questioning on cross-examination and by the CALJ because
there was no clinical justification for doing so and MRIs lead to
over-diagnosis, his opinion that Respondent did not establish
medical necessity for the September 22 prescriptions was not based
on Respondent's decision to order an MRI, but rather, the inadequacy
of the evaluation of B.B.'s pain complaint, the failure to address
the two aberrant drug screens, the lack of a positive finding on the
straight leg raise test and the failure to exhaust conservative
treatments.
So too, the CALJ took issue with Dr. Owen's testimony regarding
``Respondent's failure to make referral to other specialists.'' R.D.
39. However, Dr. Owen's opinion that Respondent did not establish
medical necessity for the September 22 prescriptions was based on
Respondent's superficial evaluation of B.B.'s pain and function,
Respondent's failure to exhaust conservative treatments, and the
lack of evidence of a therapeutic benefit. Tr. 133-34. While Dr.
Owen did suggest that based on the two aberrant drug tests,
Respondent ``could have sent'' B.B. to an evaluation by an
addictionologist or a psychiatrist/psychologist with experience in
addiction medicine, he also testified that there was a further
alternative step that Respondent could have taken: he could have
been ``much more careful and objective [as to] how [he] measure[d] a
therapeutic benefit.'' Id. at 134. Thus, Dr. Owen's testimony is not
fairly read as saying that such a referral was mandated at this
visit.
---------------------------------------------------------------------------
I further hold that Respondent's issuance of the prescriptions for
the fentanyl patches and Opana (oxymorphone) prescriptions was not
merely malpractice. Rather, I conclude that the evidence supports the
conclusion that Respondent acted outside of the usual course of
professional practice and lacked a legitimate medical purpose when he
prescribed these drugs to B.B. Here, not only did Respondent do a
superficial evaluation as to B.B.'s purported pain complaint, his
medical history, and the effect of the pain on his ability to function,
he also performed a cursory examination which did not support his
diagnosis, id. at 190, and ignored the results of the two aberrant
drugs tests. As for the June 1 UDS, as the CALJ noted, ``Respondent
never addressed the absence of [the alprazolam and] presented no
explanation for his failure to react to the June 1 UDS.'' R.D. 36.
Moreover, even were I to credit Respondent's testimony that he
``doubt[ed]'' that he reviewed the drug tests performed by Dr. Schoelen
and ``wouldn't expect [him]self to,'' Tr. 283, the evidence shows that
Respondent clearly knew that B.B. was a chronic pain patient who was on
multiple narcotics and was subject to drug testing. Dr. Owen credibly
testified as to the importance of reviewing a patient's medical records
to determine if the patient has a history of aberrant behaviors, id. at
94, yet Respondent maintained that he did not do so. Accordingly, I
conclude that Respondent did not establish medical necessity to
prescribe controlled substances and that he lacked a legitimate medical
purpose and acted outside of the usual course of professional practice
when he issued the Opana and Duragesic prescriptions. See 21 CFR
1306.04(a).
The October 6 Prescriptions
Here again, Dr. Owen testified that the medical record did not
justify the prescribing of controlled substances. Tr. 137. Dr. Owen
then explained that Respondent's evaluation of B.B. was superficial in
that there was no assessment of B.B.'s pain and his physical and
psychosocial functioning. Dr. Owen thus concluded that once again,
Respondent had not established medical necessity to prescribe
controlled substances and thus, he opined that the prescriptions ``were
not'' issued in the usual course of professional practice and ``were
not'' for a legitimate medical purpose. Id. at 137-38. Dr. Owen further
explained that based on the aberrant drug tests, Respondent should have
obtained consultations with mental health providers or
addictionologists. Id. at 137. And based on the notation in the visit
note that ``[n]ow, B.B. would like to try the morphine,'' Dr. Owen
further faulted Respondent for not properly addressing B.B.'s request
to try morphine. Id. at 135.
Explaining that ``[t]he principal issue raised by Dr. Owen and
noticed by the Government'' with respect to these prescriptions
``centers on'' this notation, the CALJ found credible Respondent's
testimony regarding B.B.'s request to try morphine, characterizing the
notation as ``a poorly-worded memorialization of a longer conversation
wherein he got medication efficacy input from B.B. and outlined several
medication options based on the existing Oklahoma Medicaid formulary.''
R.D. 43. The CALJ then explained that ``[t]he progress notes related to
issues regarding the Respondent's evaluation and treatment of a
suspected upper respiratory ailment are likewise more consistent with a
conscientious practitioner than a pill mill operator.'' Id.
Next, while the CALJ rejected the Government's contention that the
[[Page 14971]]
August 25 UDS was anomalous based on ``Respondent's plausible and
credible explanation,'' he then found that ``[t]he aberrant nature of
the June 1 UDS is uncontroverted by the evidence.'' Id. The CALJ
further found that the Government had proved that ``Respondent's
actions in continuing to prescribe controlled medications without
acting to investigate or institute safeguards upon encountering an
anomalous UDS . . . fell below the standard expected of a prudent
controlled substances prescriber.'' Id.
As explained previously, with respect to those instances in which
he found violations, the CALJ simply concluded that Respondent's
actions were neglectful. However, even accepting the CALJ's credibility
finding with respect to Respondent's testimony regarding B.B.'s request
to try morphine, I find that the evidence still supports the conclusion
that Respondent violated 21 CFR 1306.04(a) in issuing the prescriptions
for both morphine ER and Opana (oxymorphone).
As explained in my discussion of the September 22nd prescriptions,
I conclude that the August 25, 2011 UDS was anomalous. And as also
discussed previously, I find that the Board's documentation and
recordkeeping provisions are mandatory and thus, Dr. Owen's testimony
should be given weight.
In refutation of Dr. Owen's testimony that Respondent's evaluation
was inadequate, Respondent testified that B.B. reported that ``his
objectives were only fair'' and that his pain level had increased to a
six out of ten. Respondent further noted that he did ``a full exam''
but that ``[t]he MRI was not back yet.'' Tr. 295.
As the CALJ noted, Respondent ``admitted that this part of the
patient visit went very quickly, and that a patient may not remember
the treatment goal when asked this.'' R.D. 41 n.80. Indeed, after
admitting that ``that part would be very quick in my office,''
Respondent added that ``I wouldn't ask him what he was actually doing
to achieve that.'' Tr. 393. He also testified that he was not sure as
to why, when the question was ``has patient achieved treatment
objective'' and was, in essence, a yes or no question, and the patient
may not even remember what his treatment objective was, B.B. would have
answered ``fair.'' Id. at 395. Given that Respondent offered no further
testimony as to other questions he asked B.B. to ascertain how the pain
was effecting his ability to function in various aspects of his life
activities, nor maintained that he asked any other questions about
B.B.'s pain level, I give weight to Dr. Owen's testimony that
Respondent's evaluation of B.B.'s pain and ability to function was
superficial.
Although Respondent maintained that he did a full physical exam,
once again he found that B.B.'s straight leg raise was negative. As Dr.
Owen testified, without a positive finding on this test, Respondent did
not have a diagnosis for lumbar disc disease. And as for the
Respondent's testimony that ``the MRI results were not back yet,'' B.B.
had not even gone for the MRI as of this date.
Nor do I find persuasive the reasoning that Respondent's treatment
of B.B.'s upper respiratory ailment was ``more consistent'' with the
treatment provided by ``a conscientious practitioner than a pill mill
operator.'' R.D. 43. Putting aside that there is no evidence as to how
a conscientious practitioner would treat a patient who complains of a
potential upper respiratory ailment, even patients who engage in the
abuse or diversion of controlled substances may seek treatment for
legitimate health conditions. So too, a physician may nonetheless
divert controlled substances to some patients without being a pill mill
operator. Thus, even assuming that Respondent properly evaluated and
treated B.B. for this condition, this has no bearing on whether he
properly evaluated B.B. to determine whether he had a legitimate pain
condition which warranted the prescription of controlled
substances.\42\
---------------------------------------------------------------------------
\42\ To be sure, the visit note also stated that B.B. had ``a
left abdominal wall hernia'' and Respondent recommended that he
``wear a corset if at all possible.'' GX 3, at 47. While Respondent
testified that he suggested the use of a corset because he didn't
want B.B. to confuse his abdominal pain with his level of pain
because of his having changed B.B.'s pain regimen, here again, there
is no evidence that he evaluated the cause of the hernia, how much
pain it was generating, and how it was effecting B.B.'s ability to
function. Tr. 300.
Notably, B.B. returned for another office visit only two weeks
later. GX 3, at 46. Yet the note for the visit contains no mention
of the hernia. Id. Nor is the hernia mentioned in the visit notes
for B.B.'s later visits. See id. at 42, 44-45. And in his testimony,
Respondent offered no explanation as to what happened to B.B's
hernia such that it was no longer mentioned in subsequent visit
notes.
---------------------------------------------------------------------------
In sum, because I agree with Dr. Owen that Respondent still had not
established medical necessity for the prescriptions and had still
failed to address the two aberrant drug tests, I conclude that the
prescriptions lacked a legitimate medical purpose and that Respondent
acted outside of the usual course of professional practice in issuing
them. 21 CFR 1306.04(a).
The October 20 Prescriptions
At this visit, Respondent noted that B.B. reported that ``his
stress [was] up'' and that he had ``lo[st] his father'' and was
``having a lot of grief.'' GX 3, at 46. He made similar physical exam
findings as at the previous visit, again noting that B.B.'s straight
leg raise was negative but that ``lying down and sitting up cause him a
lot of pain.'' Id.; see also Tr. 305 (Respondent's testimony that
B.B.'s ``exam was still exactly like before, with low back paraspinal
and spinal tenderness, but he still had the negative straight leg
raises. But lying down and sitting up still caused him a lot of
pain.''). Respondent did not even obtain a numerical pain rating at
this visit nor note whether B.B. was achieving his treatment objective.
Respondent diagnosed B.B. as having both acute grief and lumbar disc
disease.
Dr. Owen testified that B.B.'s having a lot of stress and grief
would magnify B.B.'s ``perception of pain and disability.'' Tr. 139. He
further explained that because of B.B.'s previous aberrant behaviors
and the new stressors in B.B.'s life, he was at increased risk to ``use
[the] drugs to chemically cope'' and that Respondent should have
``sought psychological counselling for'' him but did not do so. Id.
Dr. Owen also took issue with Respondent's notation in the visit
note that he suggested nonmedicinal modalities for two reasons. Id. at
209-10. First, he explained that ``good medicine would be [that] if you
haven't done nonmedicinal pain-relieving modalities,'' Respondent
should have ``wean[ed] [B.B.] off these controlled substances and
tr[ied] these other treatments first.'' Id. at 210. Second, he
explained that the note did not provide an adequate level of detail
such that any person who took over B.B.'s care or was asked to provide
a consultation would be able to ``understand what was happening with
this patient at that point.'' Id.
As for Respondent's notations that the straight leg raise test was
negative but that lying down and sitting up caused B.B. a lot of pain,
Dr. Owen testified that these were not objective findings in a
neurological sense in that B.B. could not ``have a radiculopathy''
absent a positive straight leg raise test. Id. at 210-11. As for the
pain that B.B. had lying down and sitting up, Dr. Owen testified that
this contributed to the idea that the controlled substances did not
provide a therapeutic benefit and thus did not warrant the continued
prescribing of controlled substances. Id. at 210.
The CALJ declined to give weight to much of Dr. Owen's testimony,
reasoning that his ``view of the level of documentation detail required
in Oklahoma, as well as his description of
[[Page 14972]]
a mandatory mental health referral requirement, is [sic] not consonant
with the requirement of the Oklahoma Pain Management Regulations.''
R.D. 46. With respect to Respondent's recordkeeping, the CALJ explained
that ``[t]here was sufficient detail to support the proposition that
the office visit that was conducted in conjunction with this
prescribing event presented efforts on the part of the Respondent to
treat B.B.'' Id. (emphasis added). However, as he did with the October
6 prescriptions, the CALJ found that the August 25 UDS was not
anomalous (based on Respondent's uncorroborated hearsay testimony) but
nonetheless found that the June 1 UDS was aberrant and that
``Respondent's continued controlled substance prescribing under these
circumstances . . . fell outside the course of a professional medical
practice, and fell short of his obligations as a DEA registrant to
safeguard against diversion.'' Id.
I do not read Dr. Owen's testimony as categorically stating that
the Oklahoma regulation imposes a mandatory requirement of obtaining a
consultation when a patient presents with a co-morbid psychiatric
disorder. While Dr. Owen testified that one of the provisions in
Oklahoma's ``policies and guidelines . . . that stood out is if
somebody's a complex pain patient with psychological or psychiatric
comorbidities, they should get consultations with a pain management
physician with expertise in these complex cases,'' Tr. 101, he
acknowledged that the Board's rule used the words ``may require'' but
that a physician ``should document why [he] deviate[s] from that
recommendation.'' Id. at 186.
Thus, Dr. Owen's testimony is not fairly read as asserting that
Oklahoma imposes a mandatory requirement of obtaining a consultation in
all instances in which a patient presents with a comorbid psychiatric
disorder. Moreover, even if I agreed with the CALJ's characterization
of Dr. Owen's testimony on this issue, the Board's standard is
nonetheless evidence that the standard of care may require referral or
consultation depending on the circumstances presented by the patient,
and there is ample evidence to support Dr. Owen's conclusion that
Respondent breached the standard of care when he failed to even consult
with B.B.'s mental health providers.
Dr. Owen testified that patients who present with comorbid
psychiatric conditions present a heightened risk of abusing controlled
substances because these conditions may magnify a patient's perception
of pain and disability and aggravate a patient's experience of
suffering, id. 102-04, and Respondent agreed with Dr. Owen. Id. at 409
(Respondent's testimony that ``having chronic pain [can] lead to worse
anxiety and depression'' and that ``uncontrolled anxiety or depression
[can] lead[] to more pain.''). And throughout his testimony, Dr. Owen
repeatedly noted that based on B.B.'s aberrant behavior alone,
Respondent should have obtained consultations with mental health
providers or addictionologists to obtain a more thorough assessment of
B.B.'s behavior. Thus, Dr. Owen opined that Respondent should have
sought psychological counselling for B.B. based on his presentation of
suffering from greater stress and acute grief at this visit. Id. at
139.
To be sure, the evidence shows that B.B. was already seeing a
mental health professional during this period. However, Respondent
admitted that he never even consulted with the mental health
professionals who were simultaneously prescribing controlled substances
to B.B., whether in response to B.B.'s report of increased stress and
grief at this visit, or at any point during the course of his
prescribing to B.B. Id. at 408. Notably, when Respondent was asked if
it was within the standard of care for him and B.B.'s mental health
provider to keep treating B.B. ``without talking to each other,''
Respondent explained that ``the mental health providers are very good
about speaking to us about patients.'' Id. at 409. When then asked if
he would ordinarily consult with a patient's mental health provider if
the latter is simultaneously prescribing controlled substances,
Respondent offered the unresponsive answer that ``[w]e've become quite
reliant on the PMP [reports] now'' and that ``[b]efore the PMP, there
was quite a bit of cross-talk, because . . . pharmacists would call''
and tell him that a patient was seeing another physician. Id. at 409-
10. However, the PMP reports in the record show that they did not
contain any medical information for B.B. other than the controlled
substance prescriptions he obtained and filled and the names of the
prescribers.
When then asked if two practitioners who are simultaneously
prescribing controlled substances to the same patient wouldn't ``talk
to each other about'' their joint prescribing, Respondent initially
answered ``absolutely.'' Id. at 410. However, notwithstanding his
earlier testimony that ``[t]he mental health providers are very good
about speaking to us about patients,'' he then asserted that ``[i]n
every other field but mental health we do do that,'' and added that
consulting with his patient's mental health professionals ``doesn't
happen very often.'' Id. In short, none of this testimony refutes Dr.
Owen's testimony that a patient with a comorbid psychiatric disorder is
at a higher risk of abusing controlled substances to cope, that
consultations are important to obtain a better understanding of such a
patient's behavior, and that based on the aberrant drug screens and his
report of acute grief, Respondent should have consulted with either
B.B.'s mental health providers or an addictionologist.
While, when considered in isolation, Respondent's failure to
consult with B.B.'s mental health providers would not establish a
violation of 21 CFR 1306.04(a), Dr. Owen again explained that
Respondent's evaluation was ``inadequate'' and did not support a
finding of medical necessity to continue prescribing controlled
substances. Id. at 140. Moreover, while Respondent testified that lying
down and sitting up caused B.B. a lot of pain, B.B. had been on
controlled substances for more than two and a half years at this point
and was receiving prescriptions for even more potent narcotics and in
larger doses (morphine and oxymorphone, both schedule II drugs) and yet
he had never been referred for physical therapy. Thus, as Dr. Owen
explained, Respondent's findings that B.B. was having a lot of pain
lying down and sitting up supported the finding that prescribing
controlled substances was not providing a therapeutic benefit. Id. at
211.
As before, Respondent's failure to address the aberrant drug
screens as well as Dr. Owen's testimony that the evaluation was
inadequate, that prescribing controlled substances did not provide a
therapeutic benefit, and that Respondent did not establish medical
necessity to continue prescribing controlled substances, are sufficient
to support a finding that Respondent violated 21 CFR 1306.04(a).
Respondent's failure to consult with B.B.'s mental health providers
given B.B.'s report of increased stress and grief provides additional
support for this conclusion.
The November 18 and December 15, 2011 Prescriptions
On both dates, Respondent issued B.B. prescriptions for 90 Morphine
Sulfate ER 15 mg and 120 Opana 10 mg without requiring that B.B. appear
for an office visit with him. Dr. Owen again found that Respondent
should have seen B.B. prior to issuing the prescriptions and that
Respondent still
[[Page 14973]]
had not established medical necessity to continue to prescribe
controlled substances. Tr. 142. Dr. Owen also noted that Respondent
still had not addressed the aberrant drug screens. Id. at 143. He
further observed that notwithstanding B.B.'s report of increased stress
and grief at the previous visit and that B.B. presented a high risk of
escalating his medications and abusing them, Respondent obviously did
not discuss these issues with B.B. Id.
Dr. Owen acknowledged that under a DEA regulation (21 CFR
1306.12(b)), a practitioner may issue multiple prescriptions for a
schedule II drug to provide up to a 90-day supply of the drug based on
only seeing the patient once every 90 days. However, Dr. Owen explained
that a physician who does so must have ``established medical necessity
and legitimate therapeutic benefit . . . and [that] a patient doesn't
have a high risk of abuse,'' but that B.B. already had provided two
aberrant drug screens before Respondent issued the prescriptions. Id.
at 196.
In refutation, Respondent offered only that after the October 20
visit, he ``felt like [B.B.] could really go into the three-month'' and
that he did not understand that he had to see B.B. ``every 30 days.''
Id. at 307. Respondent further asserted that when a patient requested a
new schedule II prescription, a PMP report would be obtained, the
patient's file would be pulled, and that he would write the
prescription and leave it ``up front.'' Id. at 308. Respondent did not
offer any testimony refuting Dr. Owen's testimony that B.B. presented a
high risk of escalating the use of controlled substances and should
have been seen prior to the issuance of the prescriptions on both
dates.
The CALJ found the allegations ``not sustained'' with respect to
both the November 18 and December 15 prescriptions. R.D. at 51. In the
CALJ's view, although the June 1 UDS was aberrant, it was not
adequately noticed with respect to these two prescribing events, and as
for the August 25 UDS, ``the record evidence [did] not support a
finding that the . . . results [were] aberrant.'' Id. The CALJ again
rejected Dr. Owen's testimony as to the lack of therapeutic benefit and
medical necessity, on the ground that Dr. Owen's view as to the
required level of documentation ``is at odds with the requirements of
the Oklahoma Pain Management Regulations.'' Id. at 48. And finally, the
CALJ rejected Dr. Owen's testimony regarding Respondent's failure to
require an office visit, reasoning that DEA's regulation allows for the
issuance of multiple prescriptions for up to a 90-day supply of a
schedule II drug and that Dr. Owen's opinion was ``based on his
assumptions that the chart contains insufficient documentation detail
and two aberrant UDS lab results.'' Id.
I find, however that on both dates, Respondent acted outside of the
usual course of professional practice and lacked a legitimate medical
purpose in issuing the morphine and Opana prescriptions without
requiring an office visit. As previously explained, the Show Cause
Order provided Respondent with fair notice that the aberrant June 1
drug test would be at issue throughout this proceeding, including with
respect to the prescriptions he issued on November 18 and December 15,
2011. See supra discussion at 72-77. With respect to the August 25 drug
test, the CALJ's reasoning makes clear that he considered Respondent's
testimony as to what he was told by the lab to prove the truth of the
matter asserted. As explained previously, his testimony is
uncorroborated hearsay and thus unreliable. Moreover, Respondent's
testimony that he did not consider the positive test results for the
other benzodiazepines including the temazepam positive to be aberrant
is amply refuted by his testimony regarding the January 19, 2012, which
he deemed aberrant.
So too, for reasons explained previously, I reject the CALJ's
interpretation of the documentation requirements imposed by the
Oklahoma regulations. In any event, in his testimony regarding his
evaluation of B.B., Respondent simply read aloud what he had documented
in the visit notes and in the Treatment Objective Evaluation section of
the Treatment Plan (GX 3, at 28) and never identified additional
measures he took to evaluate B.B.'s pain and how it affected his
ability to function.\43\ Thus, I give weight to Dr. Owen's testimony
that Respondent did not establish medical necessity to continue to
prescribe controlled substances.
---------------------------------------------------------------------------
\43\ While Respondent had received the MRI results before he
issued the November prescriptions, GX 3, at 20; Dr. Owen testified
that the MRI ``did not show any specific problems that would be
attributable for this kind of pain complaint[], nor was it
significant to cause the perceived disability that this 26-year-old
gentleman considers himself'' to have. Tr. 207. At no point in his
testimony did Respondent refute Dr. Owen's review of the MRI
results.
---------------------------------------------------------------------------
As for the CALJ's reliance on the regulation which allows a
practitioner to issue to a patient multiple schedule II prescriptions
for up to a 90-day supply at one time, provided the practitioner meets
certain conditions, the rationale underlying this provision does not
provide a safe harbor to Respondent.\44\ Of relevance here, these
conditions include, inter alia, that: ``[e]ach separate prescription is
issued for a legitimate medical purpose by an individual practitioner
acting in the usual course of professional practice''; and ``[t]he
individual practitioner concludes that providing the patient with
multiple prescriptions in this manner does not create an undue risk of
diversion or abuse.'' 21 CFR 1306.12(b)(i) and (iii). As found above,
based on my conclusions that the prescriptions Respondent issued at the
three previous office visits were issued outside of the usual course of
professional practice and lacked a legitimate medical purpose,
Respondent did not meet the first condition. Moreover, based on
Respondent's testimony that he did not remember whether he reviewed
either the June 1 or August 25 drug test results, that he doubted that
he did and ``wouldn't expect [him]self to'' have done so even though he
knew his partner had instituted drug testing of the clinic's chronic
pain patients (Tr. 283, 397), Respondent failed to determine whether
issuing the prescriptions created an undue risk of diversion. Thus, the
rationale underlying this regulation provides no basis to reject Dr.
Owen's testimony that these prescriptions were issued outside of the
usual course of professional practice and lacked a legitimate medical
purpose. 21 CFR 1306.04(a).
---------------------------------------------------------------------------
\44\ As this provision contemplates the issuance of multiple
prescriptions at one time provided the prescriptions ``indicat[e]
the earliest date on which a pharmacy may fill each prescription,''
it is not directly applicable here. However, as to the frequency of
office visits, the regulation states that a physician ``must
determine . . . based on sound medical judgment, and in accordance
with established medical standards, whether it is appropriate to
issue multiple prescriptions and how often to see their patients
when doing so.'' 21 CFR 1306.12(b)(2).
---------------------------------------------------------------------------
The January 19, 2012 Prescriptions
On January 19, 2012, B.B. again saw Respondent. B.B. reported that
he had gone to the emergency room ``two weeks ago with right leg
swelling'' but that ``[h]is ultrasound was negative''; he complained of
``some calf pain'' and that ``[h]e still feels very tight.'' GX 3, at
45. Respondent also noted that B.B. ``goes to a psychiatrist'' and
``reports severe lumbar disc disease.'' Id. In addition, Respondent
documented that B.B. reported that ``he ha[d] been exposed to someone
with HPV'' and ``would like an exam.'' Id. Respondent further noted
that B.B.'s ``[p]ast medical history [was] extensively reviewed'' and
``placed in chart.'' Id.
[[Page 14974]]
According to Respondent's exam notes, B.B. was ``[a]lert and
oriented and in no apparent distress.'' Id. While other portions of the
exam were normal, Respondent again documented that B.B. had ``[l]ow
back paraspinal tenderness,'' a ``[n]egative straight leg raise,'' and
``[n]euro intact.'' Id. He also documented that B.B. ``has very tight
right calf.'' Id. However, no mention was made of B.B.'s hernia which
had been noted at previous visits. Id.
Respondent diagnosed B.B. with ``lumbar disc disease,'' ``exposure
to infectious disease,'' and ``[r]ight calf pain.'' Id. He further
documented that he discussed the ``[a]ddictive dependence, and
tolerance nature of the medicines as well as alternatives,'' that he
suggested ``[n]on-medicinal pain-relieving modalities,'' and that the
``[f]ollowup will be [in] three months.'' Id. Respondent then issued
B.B. new prescriptions for Morphine Sulfate ER 15 mg and Opana 10 mg
with the same dosing instructions, thus providing a 30-day supply for
each drug if taken as directed. Id.
Dr. Owen testified that when a patient reports having gone to the
emergency room, he would get the record to find out both ``what the
problem was'' as well as if ``any additional medication [was]
prescribed.'' Tr. 147. B.B.'s file does not, however, contain a note
from the emergency room. Id.; see also GX 3. Moreover, after observing
that the visit note contains no mention that Respondent addressed
either of the two prior urine screens during this visit, Dr. Owen again
testified that Respondent had failed to establish medical necessity for
the prescriptions ``by doing a proper history and physical exam, by
defining a therapeutic benefit, by explaining what previous treatments
have or have not worked . . . and . . . addressing the previous
aberrant urine drug tests.'' Id. at 148. Thus, Dr. Owen opined that the
Respondent acted outside of the usual course of professional practice
in issuing the prescriptions and that the prescriptions lacked a
legitimate medical purpose. Id.
In refutation of Dr. Owen's testimony, Respondent asserted that
B.B. did not report anything other than his calf pain and his new
conditions (apparently a reference to his exposure to someone with
HPV). Id. at 314, 317. He further testified that there was nothing in
the PMP report that showed that B.B. had been prescribed anything
during his emergency room visit. Id. at 314. He also acknowledged that
during the physical exam, he again found that B.B. had a negative
straight leg raise test and thus did not have radiculopathy but that
this did not mean that B.B. did not have paraspinal or muscular
skeletal pain. Id. at 318-19. However, in contrast to the last visit
where Respondent documented that lying down and sitting up was causing
B.B. a lot of pain, Respondent made no such note in the visit note. GX
3, at 45.
While Respondent agreed that his visit notes were unremarkable
given the high amount of narcotics he was prescribing and asserted he
could have done a better job dictating his notes (which he attributed
to seeing 40 to 45 patients a day and dictating the notes), he
maintained that because B.B. ``just continued to have the same pain
that he had before . . . I didn't go into details on it.'' Tr. 315.
However, notwithstanding that he had not seen B.B. in three months, he
did not document whether B.B. had achieved his treatment objective nor
document a numeric pain rating. GX 3, at 28.
The CALJ rejected the Government's contention that the controlled
substance prescriptions Respondent issued at this visit violated 21 CFR
1306.04(a). Again, the CALJ concluded that the Government did not
provide adequate notice regarding its reliance on the June 1 UDS and
that the record does not support a finding that the August 25 UDS
result was aberrant. R.D. at 51. And again, the CALJ reasoned that Dr.
Owen's view of the level of documentation required findings of
therapeutic benefit and medical necessity, as well as his conclusion
that Respondent did not adequately document B.B.'s visit to the
emergency room and should have obtained the record of that visit, were
``at odds with the requirements of the'' Board's rules. Id. Finally,
the CALJ asserted that ``Respondent's testimony provide[s] convincing
evidence that the Respondent was engaged in bona fide attempts to treat
B.B., not act as a drug supplier. The same can be said of the evidence
that the Respondent was seeing B.B. for maladies beyond his pain
complaints.'' Id.
For reasons explained previously, I find that Respondent was
provided adequate notice regarding the Government's reliance on the
June 1 UDS and that the record supports a finding that the August 25
UDS was aberrant. As also explained previously, because I do not agree
with the conclusion that Dr. Owen's understanding of the Oklahoma
documentation requirement is ``at odds'' with the permissive nature of
the State's regulations, R.D. 51, and agree with the CALJ's conclusion
that Dr. Owen's testimony ``predictably raised no issues regarding
credibility,'' I give weight to Dr. Owen's testimony that Respondent
did not establish medical necessity to issue the prescriptions.
As for Dr. Owen's criticism of Respondent for failing to obtain the
emergency room record, Respondent testified that he checked the PMP and
found no evidence that B.B. had been prescribed controlled substances.
Moreover, even if the standard of care does require a pain management
physician to obtain an ER record for his patient, it not clear how
quickly that record could have been obtained on the date of this visit.
Nor is it clear why, if a physician has otherwise properly evaluated
his patient, his failure to obtain an ER record on that date would
preclude his issuance of controlled substance prescriptions.
However, Dr. Owen provided credible testimony that when Respondent
issued the January 19 prescriptions, he still did not perform an
adequate evaluation of B.B.'s pain complaint by doing a proper history
and physical exam, nor determined whether there was a therapeutic
benefit to justify the continued prescribing of controlled substances,
nor addressed the previous aberrant drugs tests. Dr. Owen's testimony
provides substantial evidence to conclude that Respondent acted outside
of the usual course of professional practice and lacked a legitimate
medical purpose when he issued the prescriptions.
In discussing Respondent's testimony regarding the notes he made
after B.B.'s January 27 office visit (on which occasion he did not
prescribe controlled substances), the CALJ stated that ``Respondent
noted that B.B. was on Social Security disability, and objective data
had confirmed that he had chronic pain.'' R.D. at 50 (citing Tr. 324).
However, Respondent did not identify what the ``objective data'' were.
See Tr. 324-25.
The CALJ also found that in the Respondent's view, B.B. had not
behaved in a way that set off alarms, and was stable on his
medications.'' R.D. at 50. However, as found previously, Respondent
testified that he probably never even looked at the UDS results that
were in B.B.'s chart and didn't expect that he would have done so. Yet
Respondent also testified that Dr. Schoelen had instituted urine drug
testing for the clinic's chronic pain patients and thus Respondent
obviously knew that B.B.'s file likely contained UDS results. And the
evidence also shows that Respondent did not conduct a drug test of B.B.
at any of his first three visits and yet concluded that he only needed
to see B.B. once every three months. Thus, to the extent Respondent
claims that B.B's behavior did not set off
[[Page 14975]]
alarm bells, it is because Respondent deliberately ignored relevant
evidence and failed to monitor his patient.
The CALJ apparently also credited Respondent's testimony to the
effect that ``[m]uch more went on in the office than what's written''
in the visit notes and that he ``definitely knew what was going on in
[B.B's] life from each visit, and I just failed to dictate that.'' Tr.
326. And the CALJ further asserted that ``Respondent provided details
to demonstrate that he knew his patient,'' R.D. 50, and apparently
credited Respondent's testimony that he ``was talking to [B.B] about
those things and what all he did in a day, and he was not able to
work.'' Tr. 327 (cited at R.D. 51).
Yet, on the occasion of the January 19 visit, during which he
issued B.B. new prescriptions for morphine and oxymorphone, Respondent
did not even document in the Treatment Objective Evaluation section on
the Treatment Plan if B.B. was meeting his treatment objectives and did
not obtain a pain rating. Of note, the former was typically documented
with a handwritten one-word answer of either ``yes'' or ``fair,'' and
the latter was documented with a handwritten notation of a number; thus
neither of these inquiries required dictation at all.\45\
---------------------------------------------------------------------------
\45\ Indeed, on each of the dates on which Respondent made
notations in this section of the chart, each of the entries was
handwritten.
---------------------------------------------------------------------------
Moreover, when asked by the CALJ how he knew how the meds he
prescribed ``were doing,'' Respondent replied that his evaluation was
``purely subjective, and if they were needing more or less pain meds.''
Only after a further question as to whether he asked objective
questions in assessing how B.B. was responding to the medications did
Respondent maintain that he was aware of what B.B. did all day and that
he had not returned to work.
Dr. Owen provided unrefuted testimony that ``return[ing] to work''
is ``the gold standard for functionality in pain management.'' Tr. 100.
Given this, it is telling that Respondent never documented whether B.B.
had returned to work in the progress notes he prepared for the various
visits. Moreover, given that B.B.'s treatment objective was to return
to work without pain and yet B.B. never returned to work during the
course of Respondent's prescribing to him, id. at 353, it is hard to
understand why Respondent wrote ``fair'' for whether B.B. was meeting
his treatment objective.
As for why he did so, Respondent testified that he would ask his
patients if they were meeting their treatment objective and he would
write down what the patient told him. Tr. 392. However, Respondent
further testified that ``[a]ctually that part [of the visit] would be
very quick in my office. I wouldn't ask him what he was actually doing
to achieve that.'' Id. at 393.
Respondent ``absolutely'' agreed with the CALJ that he would ask
his patients ``[h]ave you achieved your treatment objective?'' only to
then acknowledge that his patients ``may not'' remember what their
treatment objective was. Tr. 394. And while this question appears to
have been directed at assessing a patient's function, Respondent
testified that the question was intended to elicit ``[b]asically if
they were satisfied with the care or the standard that they meet.'' Id.
When then asked why B.B. would answer ``fair'' to what seemed to be ``a
yes or no question,'' Respondent testified that he was ``not sure'' why
the answer would come out as ``fair.'' Id. at 395.
Tellingly, at another point during his testimony on this issue,
Respondent explained:
They [the patients] were very well trained by the time this was
here. Whenever we walked in, they knew the questions before we asked
them. You know, are you meeting your objective? What's your pain
level? And do you wish to change? Do you think we should make a
referral? We asked it every time, just like clockwork.
Tr. 394-95.
I disagree with the CALJ that ``Respondent's testimony provides
convincing evidence that he was engaged in bona fide attempts to treat
B.B., not act as a drug supplier.'' On the issue of how he evaluated
B.B.'s function, Respondent offered only the vague testimony that he
``was talking to B.B about those things and what all he did in a day.''
Yet Respondent never documented any such findings other than to make
the nonsensical notation of ``fair'' for whether B.B. was achieving his
treatment objective, and even at the hearing, Respondent still could
not explain why he did so even though he did so on multiple occasions.
As for his assessment of B.B.'s pain level, Respondent testified to
only asking ``what's your pain level''--as if over the course of the
preceding 90-day period, a patient's pain level would not fluctuate
depending upon the activities engaged in by the patient. While I am
mindful that the CALJ's finding was based on his credibility
determination, it is noteworthy that in his decision, the CALJ did not
discuss this portion of Respondent's testimony (Tr. 392-95), which is
clearly relevant and probative on the issue of the scope of his
evaluation of B.B.\46\
---------------------------------------------------------------------------
\46\ While Respondent also asserted that B.B. ``basically was
stuck in the house all day,'' that obviously was not the case when
B.B. was found semiconscious and in an apparent state of
intoxication in a vehicle parked on the median strip of I-35. As far
as B.B.'s inability to work, the evidence shows that he was working
by ``illegally buying and selling prescriptions drugs.'' RX 3, at 3
(stipulated findings of fact of the March 8, 2013 Board Order).
---------------------------------------------------------------------------
As noted previously, in its Policy Statement, the Board stated that
it ``will judge the validity of the physician's treatment of the
patient based on available documentation'' and that ``[t]he goal is to
control the patient's pain while effectively addressing other aspects
of the patient's functioning, including physical, psychological, social
and work-related factors.'' Policy Statement, at 2 (emphasis added).
Given that Respondent's documentation was confined to the two
superficial notations in the Treatment Objective Evaluation section of
the Treatment Plan and given the emphasis which the Board's Policy
Statement places on the available documentation in judging the validity
of treatment, as well as Respondent's testimony as to the scope of the
questions he would ask, I conclude that Respondent has not refuted Dr.
Owen's testimony that he failed to adequately evaluate whether there
was a medical necessity to prescribe controlled substances to B.B.
In concluding so, I am mindful that while the Board initially
charged Respondent with ``fail[ing] to maintain adequate medical
records to support diagnosis . . . treatment or prescribed medications,
in violation of 59 O.S. Sec. 509(20),'' RX 1, at 4, the Board
ultimately entered into a settlement with him prior to hearing which
did not include a finding that he violated this provision. There is,
however, nothing unusual about prosecutors agreeing to enter settlement
agreements in which they waive meritorious allegations and, as the
voluntary settlement agreement offers no explanation as to why the
Board did not rely on this specific allegation, I place no weight on
the failure of the Board to find that Respondent violated the
provision.
I am also mindful of the CALJ's criticism that Dr. Owen is not
licensed to practice in Oklahoma and has never practiced there, as well
as that Dr. Owen's ``representation that the controlled substance
prescribing standards in his home state of Texas are similar to, but
less restrictive than Oklahoma, is flat out wrong,'' and that this
diminishes the weight to be given to his testimony. R.D. 89 (citing Tr.
87, 94, 105-06).
[[Page 14976]]
It is true that in several respects the Texas Board's standards are
more restrictive than Oklahoma's, and thus, Dr. Owen's testimony that
Texas's standards are less restrictive was erroneous. However, on the
critical issues of the scope of the evaluation of the patient and the
documentation required, as explained previously, I conclude that the
Oklahoma Board's standards on these issues are mandatory. While the
Texas Board uses even more emphatic language to express the mandatory
nature of these requirements, I conclude that there is no material
difference between the standards of Oklahoma and Texas.
Moreover, Dr. Owen provided additional evidence to support the view
that the standards of medical practice require the documentation of
considerably more information than found in B.B.'s progress notes. As
he explained:
the purpose of documentation is for continuity of care. Not only
continuity of care for this same provider from visit to visit but
continuity of care should somebody else assume the care later on
down the road or should you need to get a consultation, that the
consultant can read your notes and understand what was happening
with this patient at this point in time.
Tr. 210.
Notably, Respondent put on no evidence showing that Oklahoma's
standard was materially different than what Dr. Owen testified to on
the issue of the adequacy of the evaluation and required level of
documentation. See United States v. Joseph, 709 F.3d 1082, 1096 (11th
Cir. 2013) (upholding criminal conviction for violation 21 CFR
1306.04(a); ``[e]ven if the district court should have instructed the
jury to evaluate the conduct of the defendants against only a Georgia
standard of medical practice, the defendants failed to offer any proof
that the Georgia standard differs at all from any national standard
that the jury purportedly considered'').
Moreover, while States have the primary responsibility for the
regulation of the medical profession, many of the profession's norms
were created by the profession itself. Thus, on such issues as the
adequacy of a clinical evaluation for a particular pain complaint and
the necessary documentation to support the prescribing of controlled
substances, the standard of medical practice would not seem to vary to
any material degree between States, especially between States that
border each other.
Finally, unlike Respondent, Dr. Owen is board certified in pain
management, is a member of multiple pain management professional
organizations, including the American Academy of Pain Medicine and the
American Academy of Pain Management, has practiced pain management for
more than sixteen years, serves as a peer reviewer on pain medicine for
the Journal of the American Academy of Pain Medicine, and has made
numerous presentations on pain-management. In light of his extensive
professional credentials, I conclude that even though he has not
practiced in Oklahoma, I find persuasive his testimony as to the
inadequacy of Respondent's evaluations of B.B. and Respondent's failure
to establish a medical necessity for the prescriptions. I thus conclude
that the January 19, 2012 Morphine and Opana prescriptions lacked a
legitimate medical purpose and that Respondent acted outside of the
usual course of professional practice in issuing them. 21 CFR
1306.04(a).
The February 13, 2013 Prescriptions
On this date, Respondent issued B.B. new prescriptions for 120
Opana 10 and 90 Morphine Sulfate ER 15. Moreover, by this date,
Respondent likely had the results of the January 19 UDS, which showed
that Morphine Sulfate was not detected and that B.B. had tested
positive for nordiazepam, oxazepam and temazepam (as well as
alprazolam). On the lab report, Respondent wrote that B.B. was
``counsel[led] to only take what is prescribed.'' Respondent did not
require that B.B. appear for an office visit.
Dr. Owen testified that Respondent should have required an office
visit because of B.B.'s previous aberrant drug-taking behaviors and
because Respondent still needed to establish that there was a medical
necessity to prescribe controlled substances and a therapeutic benefit.
Tr. 154. While Dr. Owen acknowledged Respondent's notation that he had
counseled B.B., Dr. Owen testified that this was not an adequate
safeguard to prevent abuse or diversion because this was B.B.'s third
aberrant drug test. Id. Dr. Owen further testified that Respondent
``need[ed] to have a long discussion with [B.B.] about the risk of
addiction'' and obtain a consultation by a specialist in addiction.
In refutation, Respondent maintained that ``the morphine said not
detected, but the oxymorphone was positive, so that was explainable.''
Id. at 335. And he again maintained that ``the lab always said that if
``the Xanax was positive,'' then nordiazepam, oxazepam and Xanax
``could all three be positive.'' Id. Continuing, Respondent testified
that ``temazepam, in our practice, usually didn't show up,'' so he
checked B.B.'s PMP report to see if he had been prescribed Restoril
(the name of the legend drug) but ``couldn't find it on the PMP.'' Id.
Respondent then maintained that ``Dr. Schoelen didn't mind his pain
patient being on Restoril,'' but ``I did, and so I wanted to make sure,
has he been prescribed Restoril.'' Id. at 335-36. Respondent then
testified that he was ``sure'' that he told B.B. that if he had ``an
old Restoril or some other doctor, I do consider that breaking our
rules, and so you can't take it.'' Id. at 336.
The CALJ again rejected the Government's contention that Respondent
violated 21 CFR 1306.04(a) when he issued the prescriptions, reasoning
that ``the record evidence does not support a finding that the August
25 or January 19 UDS results are aberrant.'' R.D. at 54. While the CALJ
again explained that ``it is beyond argument that the June 1 UDS does
present an anomaly, reliance on that event [was] not adequately notice
by the Government in support'' of its contentions regarding these
prescriptions. Id.
In addition, the CALJ found that Respondent ``provided a thoughtful
and reasoned explanation (based on his professional experience and
knowledge of operating Tri-City) of why B.B. may have tested positive
for temazepam despite not having been prescribed it.'' Id. at 54-55.
Taking the January 19 UDS in isolation, the CALJ explained that the
Government did not ``establish that the Respondent's counseling B.B. to
`only take what is prescribed' fell below the standard of care in
Oklahoma.'' Id. at 55. The CALJ then rejected Dr. Owen's testimony that
Respondent should have referred B.B. to an addictionologist, explaining
that ``the existence of the UDS reports that are unavailable to the
Government and/or unsupported by the evidence were integral to that
recommendation, and their absence from a useful role in the record
likewise undermines his testimony in this regards [sic].'' Id.
However, as explained above, even though the June 1 UDS was not
specifically referenced in the Show Cause Order with respect to the
February 13 prescriptions, the issues of the aberrant nature of the
June 1 test (as well as the August 25 test) were litigated by consent.
As for the CALJ's assertion that the record does not support a finding
that the August 25 and January 19 UDS results were aberrant,
Respondent's testimony and the notation he placed on the report of the
January 19 test establish that both tests were aberrant in that B.B.
was taking a medication which Respondent had not prescribed to him and
which was not listed on the PMP reports, including one
[[Page 14977]]
that went back as far as August 27, 2010. Moreover, none of Dr.
Schoelen's progress notes ever mentioned that B.B. was taking Restoril
or temazepam, whether prescribed by Dr. Schoelen or another authorized
prescriber. And while the CALJ noted that Respondent provided a
thoughtful and reasoned explanation as to ``why B.B. may have tested
positive for temazepam,'' the fact of the matter is that in his
testimony, Respondent never maintained that he even asked B.B. if he
had an old prescription for the drug and who prescribed it to him.
Thus, B.B. may have tested positive for the drug because he was
obtaining it without a prescription.
As for the CALJ's assertion that the Government provided no
evidence that Respondent's action in counseling B.B. to take only what
he was prescribed fell below the standard of care, the CALJ's reasoning
rests on the erroneous premise that this was B.B.'s first aberrant drug
test. However, for reasons explained previously, it was his third
aberrant test in less than eight months, and each of his last three
tests produced an aberrational result.\47\
---------------------------------------------------------------------------
\47\ However, I do not rely on the January 19 UDS result that
morphine was not detected. In contrast to the results which showed
the presence of drugs which B.B. had not been prescribed, B.B. was
five days past 30 days (the number of days the morphine prescription
would have lasted if taken as directed), and the Government put
forward no evidence that morphine would still be detectable five
days later. While B.B.'s having been five days late raises other
issues (such as whether he should have been going through withdrawal
by January 19), the Government elicited no such testimony from Dr.
Owen.
---------------------------------------------------------------------------
In rejecting Dr. Owen's testimony that Respondent needed to obtain
a consultation, the CALJ further asserted that Oklahoma's referral
standard (which uses the language ``may require'') is ``permissive''
and not ``directive.'' R.D. at 55. The provision is, however, more
appropriately read as conferring a degree of discretion which must be
exercised within the bounds of ``sound clinical judgment,'' Policy
Statement, at 2; and which is necessarily dependent on the facts and
circumstances presented by the patient.
Thus, in contrast to the CALJ, I give weight to Dr. Owen's
testimony that based on B.B.'s multiple aberrational tests, Respondent
needed to obtain a consultation with a specialist in addiction.
Moreover, as Respondent did not require an office visit, I also give
weight to Dr. Owen's testimony that Respondent had still not
established medical necessity to justify the continued prescribing of
controlled substances. Accordingly, I conclude that the Opana and
Morphine prescriptions lacked a legitimate medical purpose and that
Respondent acted outside of the usual course of professional practice
in issuing them. 21 CFR 1306.04(a).
The March 13, 2012 Prescriptions
On March 13, 2012, Respondent issued B.B. new prescriptions for
both 120 Opana 10 and 90 Morphine Sulfate ER 15. See GX 5, at 10, 24.
Respondent issued the prescriptions without requiring an office visit
by B.B. Tr. 156; see generally GX 3, at 42-62 (visit notes for B.B.).
Nor is there any notation on any of the visit notes regarding
Respondent's issuance of these prescriptions.\48\
---------------------------------------------------------------------------
\48\ As found above, on the January 27, 2012 visit note,
Respondent had written that on ``2/13/12'' he prescribed ``Zpack,
Prednisone 10 mg # 28, Phenergan.'' GX 3, at 44. The same visit note
contains a further entry for ``2-22-12'' documenting the issuance of
a prescription for 60 tablets of Soma (carisoprodol) 350 mg. Id.
---------------------------------------------------------------------------
Dr. Owen testified that Respondent should have required an office
visit before issuing these prescriptions, reiterating that Respondent
still had not established ``medical necessity for'' prescribing
controlled substances to B.B. Tr. 155. Asked to again identify the
deficiencies which led him to conclude that Respondent had not
established medical necessity, Dr. Owen explained:
Reviewing all the pertinent previous medical records, including
what previous treatments have been performed, an adequate history
and physical exam, consultations as medically appropriate,
establishing a clinically meaningful and objective therapeutic
benefit, and addressing any aberrant drug-taking behaviors.
Id. at 157. Dr. Owen again noted that there were three previous
incidents of aberrant drug-taking behaviors, and that ``[t]he only
treatment plan has been continuing the controlled substances without
medical necessity.'' Id. at 158. And once again, Dr. Owen testified
that the prescriptions lacked a legitimate medical purpose and ``were
not'' issued in the usual course of professional practice. Id.
In his direct testimony, Respondent did not address his reasons for
issuing the March 13 Opana and morphine prescriptions. See Tr. at 338-
39. Instead, the questioning centered on the issue of why he wrote a
prescription on March 14 for Nexium, ``a stomach medicine'' and a non-
controlled drug (``I have no idea'') after which the questioning moved
on to the next set of prescriptions. Id.
Here again, the CALJ concluded that the Government's evidence was
not sufficient to sustain the allegations that Respondent violated 21
CFR 1306.04(a) in issuing the prescriptions. According to the CALJ,
``there [was] no persuasive evidence to support the conclusion that the
absence of an office visit by B.B., standing alone, render[ed] this
prescribing event below the prevailing medical standard in Oklahoma.''
R.D. at 56. Again noting that under 21 CFR 1306.12(b), which allows for
the issuance of multiple schedule II prescriptions to provide up to a
90-day supply provided certain conditions are met, the CALJ concluded
that ``without persuasive expert or state regulatory guidance, evidence
[of] the failure to conduct an in-person office visit does not
establish that this prescribing event fell below the standard of care
required in Oklahoma.'' Id. And in rejecting the allegations, the CALJ
further cited the purported permissive nature of the State's
documentation standard and asserted that ``none of the UDS results
raised by Dr. Owen in his testimony were adequately noticed by the
Government regarding this prescribing event.'' Id.
As for the CALJ's assertion that the UDS results were not
adequately noticed, in the Show Cause Order, the Government alleged
with respect to these prescriptions that Respondent ``once again issued
[B.B.] controlled substance prescriptions . . . without taking
appropriate steps to monitor his controlled substances use despite the
persistent red flags of abuse and diversion he previously presented.''
ALJ Ex. 1, at 5 (] 3h). Even if this was not enough to provide
Respondent with notice that the three UDSs would be at issue with
respect to these prescriptions, Respondent did not object when the
Government asked Dr. Owen: ``[a]re there any aberrant drug-taking
behaviors here?'' and he answered: ``[t]here has [sic] been three
previous.'' Tr. 158. I thus conclude that Respondent consented to the
litigation of the issue.
As for the CALJ's assertion that there is no persuasive evidence
that standing alone, the absence of an office visit rendered these
prescriptions below the prevailing medical standard, the Respondent's
prescribing without requiring an office visit does not stand alone.
Rather, Dr. Owen credibly identified multiple deficiencies in
Respondent's evaluation of B.B.'s pain complaint, including his failure
to perform an adequate history and physical, his failure to properly
evaluate how B.B.'s pain was effecting his ability to function, his
failure to determine if the controlled substances were providing a
therapeutic benefit and to try conservative treatments, and his failure
to address the multiple instances of aberrant behavior. Of further
note, Respondent offered no evidence refuting
[[Page 14978]]
Dr. Owen's testimony regarding these prescriptions. I thus conclude
that these prescriptions lacked a legitimate medical purpose and that
Respondent acted outside of the usual course of professional practice
in issuing them. 21 CFR 1306.04(a).
The April 12 Prescriptions
On April 12, 2012, B.B. saw Respondent for an office visit. GX 3,
at 42. According to the visit note, B.B. ``report[ed] his pain has been
worse,'' that ``[h]e has run out of his medicines; he had them
stolen,'' and that ``[h]e has done fairly well.'' Id. Moreover, on the
Treatment Objective Evaluation section of the Treatment Plan,
Respondent wrote ``fair [rarr] yes'' and made an arrow pointing to
``yes'' in the block for ``Has patient achieved treatment objective?''
and ``6'' in the block for ``Patient Completed . . . update [sic] pain
scale.'' Id. at 28.
In the visit note, Respondent wrote that B.B. ``still has severe
anxiety and depression'' and has been ``exposed to someone with HPV'';
Respondent then wrote: ``[h]e is also wanting to switch his medicines
because he is having trouble finding the OPANA.'' Id. Respondent also
noted: ``[p]ast medical history extensively reviewed and placed in
chart.'' Id.
In his exam findings, Respondent noted ``[l]ow back paraspinal and
spinal tenderness,'' ``[n]egative straight leg raise,'' and ``[n]euro
intact.'' Id. Respondent listed his diagnoses as ``[l]umber disc
disease,'' ``[a]nxiety and depression'' and ``[e]xposure to infectious
disease'' although he ``doubt[ed] that it was HPV.'' Id. Respondent
then changed B.B.'s medications to Opana ER (extended release) 20 mg,
b.i.d. (twice per day) and Percocet 10 mg (q. 12h) p.r.n. (as needed)
for acute pain. Id.; see also Tr. 340. He also prescribed Soma
(carisoprodol) one tablet b.i.d. GX 3, at 42.
Respondent further documented that he discussed the ``[a]ddictive,
dependence, and tolerance nature of the medicines, as well as
alternatives.'' Id. He noted that he ``suggested'' ``[n]on-medicinal
pain and anxiety-relieving modalities.'' Id.
During this visit, Respondent also required B.B. to provide a UDS.
The preliminary screening found that B.B. was negative for opiates and
morphine. And according to the confirmatory testing done by the lab,
which was reported back to Respondent on April 17, 2012, B.B. tested
positive for oxymorphone, which was expected based on Respondent's
having prescribed Opana to him. Id. He also tested positive for
meprobamate, which was expected based on Respondent's having prescribed
carisoprodol to B.B. Id. However, the lab further found that morphine
was ``not detected,'' a result which was ``not expected'' because
Respondent had prescribed morphine sulfate ER to B.B. on March 13,
2012. Id. Dr. Owen also noted that while ``the confirmed . . . drug
test [was] positive for some of these drugs,'' Respondent had reported
that he had run out of his medicines and that there was a ``lack of
documentation of what he ran out of and what he should still be on.''
Tr. 167.
Dr. Owen found it problematic that B.B. had told Respondent that
his pain was worse, that he had run out of his medicines and had them
stolen. Id. at 159. As he explained:
Well, one, his pain is worse, so why is it worse? Two is he's
run out of his medications, and then he had them stolen. What is it?
Did you run out of them because you self-escalated, or were they
stolen and you ran out of them? It needs clarification. But either
event, self-escalation or having them stolen, is a red flag.
Id.
Regarding B.B.'s report that his medications were stolen, Dr. Owen
testified that because there had ``been the aberrant urine drug tests
before . . . this, there is [sic] enough aberrant behaviors that''
Respondent needed ``to get the person to an addictionologist or a
psychologist, or just stop prescribing these controlled substances
since there's no evidence they're helping this gentleman.'' Id. at 212-
13.
Dr. Owen also found problematic the notations in the visit note
that B.B. reported that ``his pain has been was worse'' and that ``[h]e
has done fairly well.'' Id. at 160. As Dr. Owen testified, the
statement that ``[h]e has done fairly well . . . kind of conflicts with
his pain is worse and the aberrant drug-taking behavior, so that's an
unreliable statement.'' Id. Dr. Owen also explained that B.B.'s having
``severe anxiety and depression . . . are relative contraindications to
prescribing controlled substances . . . [b]ecause it magnifies [the]
perception of pain and disability.'' Id. Dr. Owen then testified that
because of these conditions, Respondent should have requested a
``consultation by a psychologist'' but did not. Id. at 160-61.
Dr. Owen further testified that Respondent ``did not'' address
B.B.'s ``ongoing stress and anxiety issues'' and that ``[h]e did not''
conduct a thorough patient history. Id. at 166. He then testified that
Respondent had changed B.B.'s treatment plan by adding Percocet, but
that Respondent ``change[d] the medications without ever . . .
documenting [a] medical rationale to add any new medication.'' Id.
Asked by the CALJ ``why would someone add Percocet,'' Dr. Owen
testified that it is a short-acting opioid that could be added ``for
break-through pain, if that's not being controlled well.'' Id. at 167.
Dr. Owen reiterated his earlier testimony that the patient record
was ``not adequate'' to establish ``medical necessity'' for prescribing
the controlled substances on this date and that between September 22,
2011 (when he assumed the care of B.B.) and April 12, 2012, Respondent
had never established medical necessity for prescribing controlled
substances to B.B. Id. at 173-74. He then opined that the prescriptions
Respondent issued at this visit were issued outside of the usual course
of professional practice and lacked a legitimate medical purpose. Id.
at 174.
The CALJ sustained the Government's allegations only with respect
to its contention that Respondent ignored the PMP data showing that
B.B. was obtaining early refills of alprazolam and failed to take any
action in response to this information, such as contacting the other
prescribers or cautioning B.B. in response to this information. R.D. at
61-62. For reasons explained previously, the evidence does not support
the contention that B.B. exhibited a pattern of obtaining early refills
as of this visit. I also agree with the CALJ that the evidence does not
support a finding that Respondent provided B.B. with an early refill of
his pain medications.
However, for many of the same reasons previously discussed, the
CALJ rejected the other evidence offered by the Government to prove
that the prescriptions violated 21 CFR 1306.04(a). For example, the
CALJ again reasoned that ``the UDS results prior to the April 12 amino
assay UDS'' were not ``adequately noticed by the Government . . .
regarding this prescribing event [and] are unavailable to support its
expert's opinion here.'' R.D. at 60. And the CALJ further asserted that
the Government could not rely on litigation by consent because it did
``not timely and affirmatively raise[]'' this theory. Id. However, as
discussed previously, paragraph 3 of the Show Cause Order provided
adequate notice that various aberrant drug tests would be at issue
throughout the proceeding.\49\ And even
[[Page 14979]]
if it did not, the record fully supports the conclusion that the issue
was litigated by consent as, given the absence of an objection, the
Government had no obligation to affirmatively raise the argument (which
it did in its Exceptions) until the CALJ issued his Recommended
Decision.
---------------------------------------------------------------------------
\49\ As the Show Cause Order alleged:
From on or about August 25, 2011 through on or about May 9,
2012, you issued controlled substance[] prescriptions to B.B. in
violation of Federal and Oklahoma state law. You were aware on each
of the occasions that you issued controlled substance[]
prescriptions to B.B. that he presented a high risk of abuse and/or
diversion of controlled substances, as evidenced by the red flags
documented in his patient file, such as aberrant urine drug tests, a
request for early refills, and a claim of stolen drugs. You failed
to address and, in fact, ignored these red flags, continuing to
issue B.B. controlled substance prescriptions in the face of
mounting evidence that he was misusing, abusing, and/or diverting
the controlled substances you were prescribing.
ALJ Ex. 1, at 1 ] 3.
---------------------------------------------------------------------------
The CALJ also failed to give weight to Dr. Owen's testimony that
Respondent should have either referred B.B. to a specialist in
addiction or spoken with his mental health professional, asserting that
the Government did ``not establish[ ] that good medical practice in
Oklahoma require[d] that.'' R.D. at 60. However, Dr. Owen is board-
certified in pain management, a member of multiple national
professional societies which focus on pain medicine and is a peer
reviewer on pain medicine for the Journal of Pain Management. As
previously explained, while the Oklahoma referral provision does not
categorically require that a physician refer a patient to a specialist
in addiction or consult with other providers, it clearly contemplates
that a physician will use sound clinical judgment in determining
whether a referral or consultation is necessary. And as to whether
Respondent exercised sound clinical judgment when he neither referred
B.B. to an addictionologist nor consulted with his mental health
providers, Respondent produced no evidence showing that the standard of
care in Oklahoma is materially different from the standard in Texas or
the standard that is generally recognized by pain management
practitioners. See United States v. Joseph, 709 F.3d at 1096.
In rejecting the Government's evidence, the CALJ also explained
that the Government did not establish that ``good medical practice in
Oklahoma require[d]'' that Respondent ``document[] in any specific
level of detail the Respondent's discussion with B.B. about . . . [his]
success on the treatment plan.'' R.D. at 60. Yet the Board's Regulation
directs that ``[t]he physician should periodically review the course of
pain treatment'' and ``[c]ontinuation or modification of controlled
substances for pain management therapy depends on the physician's
evaluation of progress toward treatment objectives. Satisfactory
response to treatment may be indicated by the patient's decreased pain,
increased level of function or improved quality of life. Objective
evidence of improved or diminished function should be monitored . . .
'' Okla. Admin. Code Sec. 435:10-7-11(4). Moreover, another provision
of the regulation requires physicians to ``keep accurate and complete
records to include . . . follow-up evaluations . . . . [and] periodic
reviews.'' Id. Sec. 435:10-7-11(6). And the Board's Policy Statement
explains that ``[a]ll such prescribing must be based on clear
documentation of unrelieved pain'' and that ``the validity of the
physician's treatment of the patient'' will be judged ``based on
available documentation.'' Policy Statement, at 2.
Moreover, even if the Board's rule does not mandate ``any specific
level of detail,'' Dr. Owen offered credible testimony as to why the
standard of care clearly requires more documentation than that made by
Respondent. As he explained, ``the purpose of documentation is for
continuity of care. Not only continuity of care for this same provider
from visit to visit but continuity of care should somebody else assume
the care later on down the road or should you need to get a
consultation, that the consultant can read your notes and understand
what was happening with this patient at this point in time.'' Tr. 210.
Notably, while B.B.'s treatment objective was to return to work
without pain, B.B. had not returned to work as of the April 12 visit
(and never did during the course of Respondent's prescribing) and yet
in the box for documenting whether he was meeting his treatment
objective, Respondent wrote the words ``fair'' and ``yes.'' Yet at the
hearing, Respondent did not recall why he wrote ``yes,'' just as he was
``unsure'' as to why he had written ``fair'' in the box at previous
visits. As Respondent could not even explain why he made these entries,
it is clear that no other physician who subsequently took over B.B.'s
care could ``understand what was happening with'' B.B. at various
points. So too, as Respondent could not explain the inconsistency
between his having noted in B.B.'s progress note that ``his pain was
worse'' while B.B. reported a decrease in his numeric pain rating and
that ``he has done fairly well,'' I give weight to Dr. Owen's testimony
that Respondent's notes fell below the standard of care.
Finally, the CALJ declined to give weight to Dr. Owen's testimony
regarding Respondent's failure to address the aberrant immunoassay drug
test result once again asserting that the Board's regulations ``contain
no specific directive to mandate such a notation.'' R.D. at 61.
However, as the CALJ noted, ``Respondent did not address this issue in
his testimony'' and thus, there is no dispute that he took no action
other than to send the specimen in for confirmatory testing. While it
is true that Dr. Owen testified that the immunoassay test has
reliability problems and thus, by sending the specimen to the lab for
further testing ``it could not be said that [Respondent] took no
action,'' what is notable is that Respondent offered no testimony that
he ever asked B.B. which drugs had been purportedly stolen and when
they had been stolen. Obviously, without determining and documenting
what drugs had been stolen, Respondent could not evaluate whether the
lab's finding (using GC-MS testing) that B.B. had tested negative for
morphine was aberrational.\50\
---------------------------------------------------------------------------
\50\ While Respondent offered testimony to the effect that pain
patients will maintain ``a stash'' of controlled substances in the
event their medications are stolen, and asserted that B.B. did this
as well, he offered no explanation as to how B.B. could have
accumulated a stash of extended release medications (such as
Morphine Sulfate ER, the drug which was not detected) while still
managing pain.
---------------------------------------------------------------------------
Moreover, even crediting Respondent's testimony regarding the
notation that B.B. wanted to switch medications because he was having
troubling finding immediate release Opana, his testimony regarding the
limitations imposed by the Medicaid formulary, and his explanation for
why he provided B.B. with Percocet, I still conclude that the
Government has proved that Respondent violated 21 CFR 1306.04(a) when
he issued the Opana 20 ER and Percocet 10 prescriptions at this visit.
As Dr. Owen testified, Respondent still had not done a thorough patient
history and evaluation of B.B.'s pain complaint; failed to properly
address multiple instances of aberrant behavior including the three
previous UDSs and the other red flags he presented (i.e., the claims of
stolen medications and having run out of them); never consulted with
B.B.'s mental health providers notwithstanding Respondent's finding
that B.B. had severe anxiety and depression and that these are relative
contraindications to prescribing controlled substances; never
determined which drugs were stolen from B.B. or which drugs he ran out
of thus rendering the UDS he obtained at this visit useless; never
resolved inconsistencies in B.B.'s report of pain; and never
established that the controlled substances provided a therapeutic
benefit and that there was a
[[Page 14980]]
medical necessity for the prescriptions. Also, while Dr. Owen did not
specifically cite Respondent's failure to try conservative treatments
such as physical therapy when he testified regarding these two
prescriptions, the evidence shows that Respondent never referred B.B.
for physical therapy.
Of further note, Respondent could not explain why he made the
entries of ``fair'' and ``yes'' for whether B.B. was meeting his
treatment objective, when he acknowledged that B.B.'s treatment
objective was to return to work but never did so. And while he
essentially agreed with Dr. Owen's testimony that a patient with
depression and anxiety has a higher perception of pain and is at
greater risk of self-escalating his use of controlled substances, he
nonetheless maintained that while ``[i]n every other field but mental
health we do'' consult with the patient's other practitioners,
consulting with mental health practitioners who are ``also prescribing
controlled substances . . . [t]hat doesn't happen very often.'' Tr.
410. I thus conclude that Respondent acted outside of the usual course
of professional practice and lacked a legitimate medical purpose when,
on this date, he issued the Opana and Percocet prescriptions to B.B. 21
CFR 1306.04(a).
The April 25 Prescriptions
On April 25, 2012, Respondent provided B.B. with a prescription for
30 Roxicodone (oxycodone) 15 mg. GX 5, at 4. B.B.'s file contains no
documentation that there was an office visit, and notwithstanding that
this was a change in medication from what Respondent had prescribed at
the previous visit, there is no notation in the progress notes as to
why he changed the prescription. See generally GX 3; see also Tr. 174-
75. Moreover, while Respondent testified that he would ``routinely''
make an entry in the Treatment Objective Evaluation section of the Pain
Management Treatment Plan ``if we were making a change in a
medication,'' Tr. 357, no such entry was made on this date. See GX 3,
at 28. Nor is there any documentation in the patient file that
Respondent addressed with B.B. the aberrant drug test result (the non-
detection of morphine) which had been reported to him on April 17. See
generally GX 3.
According to Dr. Owen, when adding a new drug to a patient's
regimen of pain medications, a physician ``would have to establish
medical necessity with some type of note, using sound medical
rationale.'' Tr. 175. Dr. Owen further testified that making such a
notation is ``a standard of care, and it's part of the documentation
guidelines that are issued across every state for the most part.'' Id.
Asked if he could think of a reason why a physician ``would add a drug
for the first time without seeing a patient,'' Dr. Owen answered: ``No.
Or at least documenting the medical rationale and establishing medical
necessity.'' Id. at 176. Dr. Owen then testified that Respondent did
not take appropriate steps to establish medical necessity for the
prescription, reiterating his earlier testimony that Respondent had not
demonstrated that conservative care had been tried and been
unsuccessful, as well as that there was a ``clinically meaningful and
objective therapeutic benefit from the previous use of controlled
substances.'' Id. He again opined that the prescription was not issued
in the usual course of professional practice and lacked a legitimate
medical purpose. Id.
Regarding the Roxicodone prescription, Respondent asserted that he
``was just doing a two-week trial, trying to figure out his dose, and
at the time, most likely the patient didn't have any punches on his
card left, and Roxicodone is much cheaper than Percocet, and it's the
same medication.'' Id. at 355. However, Respondent did not document any
of this in B.B.'s record. Nor did he explain why he failed to follow
his routine of making an entry in the Treatment Objective Evaluation
section of the Pain Management Treatment Plan given that he had changed
B.B.'s medication.
As for the April 12 UDS lab report, which he had obtained prior to
issuing the prescription and which found that morphine was not detected
and that this result was not expected based on the prescribed
medications, Respondent testified that in his opinion the result was
not aberrant. Respondent did not explain whether this was based on his
previous claim that the oxymorphone is a metabolite of morphine or
because B.B. had reported that his medications were stolen. Tr. 364-66.
As Respondent offered no testimony that he asked B.B which of his
drugs were stolen and was told that it was the morphine, B.B.'s claim
of stolen drugs does not render the test non-aberrant. Moreover, the
lab reports noted various instances in which the presence of various
metabolites was consistent with prescribed medications and that the
particular substances were metabolites of prescribed drugs but included
no such notation with respect to oxymorphone and morphine. Finally,
Respondent's testimony is contradicted by science and he offered no
evidence which would support a finding that he had a good faith but
mistaken belief that oxymorphone is a metabolite of morphine. Based on
these reasons, I find that the April 12 UDS was aberrant and that
Respondent knew it to be.
While the CALJ concluded that the Government could not rely on the
four UDS reports, he nonetheless found that the evidence supported the
Government's contention that Respondent acted outside of the usual
course of professional practice in issuing the prescriptions. R.D. at
64. While the CALJ accepted Respondent's assertion that Percocet and
Roxicodone are similar drugs in that they both contain oxycodone
(although he noted that Roxicodone does not contain acetaminophen and
contains only oxycodone), id. at n.119, he explained that Respondent
did not merely provide a refill but was changing B.B.'s medications.
Id. at 63-64. While the CALJ then noted Dr. Owen's opinion that the
standard of care required the ``establish[ment] of medical necessity
with some type of note, using sound medical rationale,'' the CALJ then
explained that ``it is not the documentation of the medical
determination that carries the day here. Rather, it is whether the
evidence or record supports the Respondent's proposition that he made
such a determination; and it does not.'' Id. at 64. And while again
asserting erroneously that the Oklahoma regulation stating that ``[t]he
medical record . . . should document the presence of one or more
recognized medical indications for the use of a controlled substance''
is permissive, id. (emphasis added by CALJ), he concluded that
Respondent acted outside of the usual course of professional practice
because he neither documented an indication for a medication change nor
could ``remember it in a way that is persuasive.'' \51\ Id.
---------------------------------------------------------------------------
\51\ Unexplained by the CALJ is why he did not apply the same
reasoning to Respondent's testimony that he was ``unsure'' as to
why, on various occasions, he wrote ``fair'' in the block for noting
whether B.B. had achieved his treatment objective as well as to why
he wrote ``yes'' when B.B never returned to work during the course
of Respondent's prescribing to him.
---------------------------------------------------------------------------
While I agree with the CALJ that Respondent's testimony was
unpersuasive, I also give weight to Dr. Owen's testimony that
Respondent had not established medical necessity for prescribing
controlled substances by demonstrating that conservative treatments had
been tried and been unsuccessful and by establishing an ``objective
therapeutic benefit from the previous use of controlled substances.''
Tr. 176. Moreover, Dr. Owen's testimony as to the other reasons why
[[Page 14981]]
the Respondent did not establish a medical necessity for the previous
prescriptions likewise applies to the Roxicodone prescription issued on
this date. Finally, once again B.B. provided an aberrant drug test
which Respondent ignored (and could not properly evaluate). I therefore
conclude that Respondent acted outside of the usual course of
professional practice and lacked a legitimate medical purpose when he
prescribed Roxicodone to B.B. on this date.
The May 9, 2012 Prescriptions
On May 9, 2012, Respondent wrote B.B. a prescription for 60 Opana
ER 20 mg. GX 3, at 93; GX 5, at 27. Respondent did not require an
office visit, and he made no notations in the progress notes regarding
the prescription. See generally GX 3; see also Tr. 177-78. Regarding
the prescription, Dr. Owen again testified that Respondent ``needed to
establish medical necessity for continuation of controlled substances''
and ``did not.'' Id. at 178.
Asked to provide his opinion as to Respondent's prescribing of
controlled substances from September 2011 through May 9, 2012, Dr. Owen
opined that Respondent did not adequately review B.B.'s medical
history. Id. He further opined that the treatment plan ``would have the
logic behind the treatment'' and would have ``establish[ed] that
conservative care has not been helpful and that [an] objective and
clinically meaningful therapeutic benefit from the use of controlled
substances has been established, if [they] ha[d] previously been
used.'' Id. Dr. Owen then testified that none of the controlled
substance prescriptions Respondent issued to B.B. were issued in the
usual course of professional practice and for a legitimate medical
purpose. Id. at 178-79.
Asked why he refilled the prescriptions,\52\ Respondent testified
that ``I got a phone call that he was wanting his medicines refilled
and that the [R]oxicodone had worked for him and et cetera, so we were
converting him back into the one-month prescriptions in the Schedule
IIs and going back to this three-month office visit.'' Tr. 356.
Respondent offered no testimony addressing Dr. Owen's criticism that he
still had not established that there was a medical necessity for
prescribing controlled substances, which included the Opana. See
generally id. at 356-57.
---------------------------------------------------------------------------
\52\ In her questioning of Respondent, Respondent's counsel
referred to a Roxicodone prescription as having been issued on May
9, 2012, and in his testimony regarding the prescriptions he wrote
on that date, Respondent referred to both a Roxicodone prescription
and an Opana ER 20 mg prescription. Tr. 356. While GX 5 contains a
legible copy of the May 9, 2012 Opana ER prescription, see GX 5, at
27, it does not contain a copy of a Roxicodone prescription, and as
for GX 3, the copy of the purported Roxicodone prescription is
illegible. GX 3, at 93.
Moreover, at no point did the Government put in issue whether
Respondent violated 21 CFR 1306.04(a) when he issued the Roxicodone
prescription. The Government did not mention this prescription in
the specific allegation it made in the Show Cause Order regarding
the events of May 9, 2012, see ALJ Ex. 1, at 6 ] 3(j); it did not
mention the prescription in its Pre-hearing Statement, see ALJ Ex.
5, at 21; it did not question Dr. Owen about this prescription, see
Tr. 177-78; and even after Respondent testified about it, the
Government did not argue in its post-hearing brief that Respondent
issued this Roxicodone prescription in violation of 21 CFR
1306.04(a). Thus, I do not consider the prescription.
---------------------------------------------------------------------------
The CALJ found that because he ``had PMP data indicating that B.B.
had previously engaged in a pattern of procuring early refills from
multiple prescribers,'' Respondent's issuance of the prescription was
``a breach of [his] obligation as a registrant to guard against the
diversion of controlled substances.'' R.D. at 67-68. The CALJ thus
concluded that Respondent acted outside of the course of professional
practice in issuing the Opana prescription.\53\ Id. at 68.
---------------------------------------------------------------------------
\53\ In his decision, the CALJ explained that ``[a]lthough the
Government's pleadings do not specifically refer to the early
refills in support of this prescribing event, the [Show Cause Order]
alleges that the prescribing was effected `despite previous
indications that B.B. was at risk for abuse or diversion of
controlled substance[s].''' R.D. 67-68 n.124 (quoting ALJ Ex. 1, at
6). The CALJ also noted that ``[t]he Government Prehearing Statement
alleges that the prescription for Opana was issued `despite previous
indications that B.B. was at risk for abuse or diversion of
controlled substances[s] . . . .''' Id. (quoting ALJ Ex. 5, at 21).
The CALJ then explained that ``[t]hese broadly-worded phrases supply
sufficient notice . . . to constitute sufficient notice to use the
PMP early refill evidence in support of this prescribing event.''
Id.
I am, however, left to wonder why the same reasoning did not
apply to the multiple instances in which the CALJ asserted that the
Government did not provide sufficient notice that it intended to
rely on the various UDSs. Notably, paragraph 3 of the Show Cause
Order alleged that:
[f]rom on or about August 25, 2011 through on or about May 9,
2012, you issued controlled substance[] prescriptions to B.B. in
violation of Federal and Oklahoma state law. You were aware on each
of the occasions that you issued controlled substance[]
prescriptions to B.B. that he presented a high risk of abuse and/or
diversion of controlled substances, as evidenced by the red flags
documented in his patient file, such as aberrant urine drug tests. .
. . You failed to address and, in fact, ignored these red flags,
continuing to issue B.B. controlled substance prescriptions in the
face of mounting evidence that he was misusing, abusing, and/or
diverting the controlled substances you were prescribing.
ALJ Ex. 1, at 1. See also, e.g., id. at 3 (Sept. 22, 2011 Rxs:
``You did not address with B.B. the now second aberrant drug screen
in an approximately three month period'' and ``[y]ou took no other
steps to monitor B.B's controlled substance use, such as requiring
him [to] take another drug screen due to the two failed ones''); id.
at 4 (Nov. 18 and Dec. 15 Rxs: alleging that ``you did not take any
steps to monitor [B.B.'s] controlled substances use despite his
history of misusing, abusing, or diverting controlled substances'');
id. at 5 (Mar. 13, 2012 Rxs: ``you once again issued him controlled
substance[] prescriptions . . . without taking appropriate steps to
monitor his controlled substance use despite the persistent red
flags of abuse and diversion he previously presented'').
---------------------------------------------------------------------------
While I agree with the CALJ that Respondent violated 21 CFR
1306.04(a) in issuing the prescription, I do so for reasons other than
that B.B. had ``engaged in a pattern of early refills.'' As Respondent
did not see B.B. on this date, I give weight to Dr. Owen's testimony
that Respondent did not establish medical necessity for the
prescription (or any of the prescriptions for that matter) for the
reasons he explained throughout his testimony as well as for the other
reasons discussed in this Decision.
* * *
In his Recommended Decision, the CALJ alleges that the Agency ``has
been engaged in a deliberate winnowing of the scope of Factor 2, to the
extent that . . . it now largely mirrors the considerations found in
Factor 4.'' R.D. 77. He further asserts that the Agency's rejection of
dicta which has appeared in various recommended decisions to the effect
that Factor 2 ``manifests Congress's acknowledgement that . . . the
quantitative volume in which an applicant has engaged in the dispensing
of controlled substances may be [a] significant factor'' in the public
interest determination, see JM Pharmacy Group, Inc., 80 FR 28667, 28684
(2015), is inconsistent with the plain meaning of Factor 2. R.D. 77-81.
Congress did not, however, define the term ``experience'' in the
CSA, and as the Administrator has explained at length, the word has
multiple meanings, none of which ``compels the conclusion that Congress
acknowledged that the quantitative volume of an applicant's dispensing
may be a significant consideration under this factor, and certainly
none [of these definitions] suggests that the Agency is required to
count up the number of times an applicant or registrant has dispensed
controlled substances,'' JM Pharmacy Group, 80 FR at 28667 n.1, let
alone compare the number of lawful dispensings against those shown to
be unlawful, as some registrants have argued. See, e.g., Syed-Jawed
Akhtar-Zaidi, 80 FR 42961, 42967 (2015) (arguing that physician was
denied a ``fair adjudication'' where the Government based its case only
on undercover visits but had seized 400 patient files from physician's
office and yet ``failed to present any evidence . . .
[[Page 14982]]
that the treatment of those patients failed to meet the standard of
care,'' as well as any evidence regarding the treatment of ``over 400
additional patients''' whose charts were not seized), pet. for rev.
denied, 841 F.3d 707, 713 (6th Cir. 2016).
Notably, the CALJ does not cite to any of the sources typically
invoked by the courts in cases which have held that a statute has a
plain meaning.\54\ See, e.g.,Williams v. Taylor, 529 U.S. 420, 431-32
(2000) (giving statutory text its ``ordinary, contemporary, common
meaning'' based on definitions from Webster's New International
Dictionary and Black's Law Dictionary); United States v. Labonte, 520
U.S. 751, 757-58 (1997) (giving statutory text ordinary meaning by
reference to same dictionaries); Levorsen v. Octapharma Plasma, Inc.,
828 F.3d 1227, 1231 (10th Cir. 2016) (relying on Webster's Third New
International Dictionary for meaning of statutory terms). And while
``[t]he plainness or ambiguity of statutory language is [also]
determined by reference to the . . . specific context in which that
language is used, and the broader context of the statute as a whole,''
Yates v. United States, 135 S.Ct. 1074, 1082 (2015), nothing in the
context of providing factors for determining the public interest
supports the notion that the term ``experience'' requires a
consideration of the quantitative volume of an applicant's dispensing.
---------------------------------------------------------------------------
\54\ As the Administrator noted in JM Pharmacy, the word
``experience'' has multiple meanings. Among those most relevant in
assessing its meaning as used in the context of Factor Two are: (1)
The ``direct observation of or participation in events as a basis
for knowledge,'' (2) ``the fact or state of having been affected by
or gained knowledge through direct observation or participation,''
(3) ``practical knowledge, skill, or practice derived from direct
observation of or participation in events or in a particular
activity,'' and (4) ``the length of such participation.'' See
Merriam-Webster's Collegiate Dictionary 409 (10th ed. 1998); see
also The Random House Dictionary of the English Language 681 (2d ed.
1987) (defining experience to include ``the process or fact of
personally observing encountering, or undergoing something,'' ``the
observing, encountering, or undergoing of things generally as they
occur in the course of time,'' ``knowledge or practical wisdom
gained from what one has observed, encountered, or undergone'').
---------------------------------------------------------------------------
As previously explained, Congress enacted the public interest
standard to provide DEA with additional authority to address the
diversion of controlled substances because prior to the 1984 amendment
of section 823(f), the Agency's authority to deny an application or
revoke a registration was limited to cases in which a practitioner: (1)
Had materially falsified an application, (2) had been convicted of a
State or Federal felony offense related to controlled substances, or
(3) had his State license or registration suspended, revoked, or
denied. See S. Rep. No. 98-225, at 266 (1983), as reprinted in 1984
U.S.C.C.A.N. 3182, 3448. Finding that the ``[i]mproper diversion of
controlled substances'' was ``one of the most serious aspects of the
drug abuse problem,'' and yet ``effective Federal action against
practitioners ha[d] been severely inhibited by the [then] limited
authority to deny or revoke practitioner registrations,'' id., Congress
concluded that ``the overly limited bases in current law for denial or
revocation of a practitioner's registration do not operate in the
public interest.'' Id.
The Senate Report thus explained that ``the bill would amend 21
U.S.C. 824(f) [sic] to expand the authority of the Attorney General to
deny a practitioner's registration application.'' Id. The Report
further explained that ``in those cases in which registration is
clearly contrary to the public interest, the amendment would allow a
swift and sure response to the danger posed to the public health and
safety by the registration of the practitioner in question.'' Id. at
267, as reprinted in 1984 U.S.C.C.A.N. at 3449. Accordingly, section
823(f) was amended to provide the Agency with authority to deny an
application based upon a finding that the issuance of a registration
``would be inconsistent with the public interest,'' upon consideration
of the five public interest factors, including the experience factor.
Id. See also 21 U.S.C. 824(a)(4). Nowhere in the Report's discussion of
the amendments to sections 823 and 824 is there any support for the
notion that Congress deemed the quantitative volume of a practitioner's
dispensings to be a significant consideration in making findings under
the experience factor.\55\
---------------------------------------------------------------------------
\55\ As the CALJ noted, one of the House Reports explained that
``[t]he second factor shall not, of course, be construed in anyway
to hinder registration of recent graduates of professional schools
who may have no professional experience dispensing or conducting
research with controlled substances.'' H.R. Rep. No. 98-835, Pt. 1,
at 14. Obviously, if Factor Two's meaning was so plain, the
Judiciary Committee had no need to express that it should not be
construed to deny registrations to newly-licensed practitioners,
most of whom can point to no volume of dispensings other than by
observing a physician during clinical rotations. Thus, the
Committee's direction refutes the notion that the quantitative
volume of an applicant's dispensings may be a significant
consideration under the factor.
---------------------------------------------------------------------------
Indeed, as Krishna-Iyer explained, because the CSA limits
registration to those practitioners who possess authority under state
law to dispense controlled substances in the course of professional
practice, and patients with legitimate medical conditions routinely
seek treatment from licensed medical professionals, every registrant
can undoubtedly point to an extensive body of legitimate prescribing
over the course of his professional career. See Krishna-Iyer, 459 FR at
463. Thus, in past cases, this Agency has given no more than nominal
weight to a practitioner's evidence that he has dispensed controlled
substances to thousands of patients in circumstances which did not
involve diversion. See, e.g., Caragine, 63 FR at 51599 (``[T]he
Government does not dispute that during Respondent's 20 years in
practice he has seen over 15,000 patients. At issue in this proceeding
is Respondent's controlled substance prescribing to 18 patients.'');
id. at 51600 (``[E]ven though the patients at issue are only a small
portion of Respondent's patient population, his prescribing of
controlled substances to these individuals raises serious concerns
regarding [his] ability to responsibly handle controlled substances in
the future.''); see also Medicine Shoppe--Jonesborough, 73 FR 364, 386
& n.56 (2008) (noting that pharmacy ``had 17,000 patients,'' but that
``[n]o amount of legitimate dispensings can render . . . flagrant
violations [acts which are] `consistent with the public interest.'''),
pet. for review denied, Medicine Shoppe-Jonesborough v. DEA, slip. op.
at 11 (6th Cir. Nov. 13, 2008).
As in past cases, the parties may continue to introduce evidence as
to the extent of both a practitioner's lawful or unlawful dispensing
activities. However, under Agency precedent, proof of a single act of
intentional or knowing diversion remains sufficient to satisfy the
Government's prima facie burden and to impose on a respondent the
obligation to produce evidence to show that it can be entrusted with a
registration. See Krishna-Iyer, 74 FR 459, 463 (2009); see also Alan H.
Olefsky, 57 FR 928, 928-29 (1992) (revoking registration based on
physician's presentation of two fraudulent prescriptions to pharmacy
and noting that the respondent ``refuses to accept responsibility for
his actions and does not even acknowledge the criminality of his
behavior'').
The CALJ further alleges that on remand in Krishna-Iyer, the Agency
failed to follow the Eleventh Circuit's unpublished decision, in which
the Administrator was directed to consider 12 additional patient files
as well as the ``entire corpus'' of the physician's controlled
substance dispensing for evidence of the physician's ``positive
experience'' in dispensing controlled substances. R.D. 79. However, the
Administrator carefully reviewed those files, and noted that the files
``included
[[Page 14983]]
numerous instances in which [the physician] appear[ed] to have ignored
warning signs that the patient was either abusing or diverting
controlled substance''; she also made findings with respect to multiple
incidents. 74 FR at 460-61 n.3. And as for the ``entire corpus'' of the
physician's prescribing, notwithstanding the physician had not
introduced any evidence as to the propriety of her prescribing to the
``thousands of other patients'' she had treated, the Administrator
assumed that every one of those prescriptions was lawfully issued. Id.
at 461. However, as the Administrator explained, even if those
prescriptions were lawfully issued, they did not negate the
Government's prima facie showing that the physician had knowingly
diverted drugs to others. Id. at 462-63. And while the Administrator
granted the physician a new registration, she made clear that had the
physician not acknowledged her misconduct, she would have again revoked
the physician's registration. Id. at 463.
Not mentioned by the CALJ is that several years later, the exact
same arguments were raised before the Eleventh Circuit by two different
physicians and rejected without any discussion. In Lynch v. DEA, a
physician whose registration was revoked by the Agency for unlawful
prescribing,\56\ argued that the Agency's Decision arbitrarily
``limited its consideration of [his] experience to only ten
prescriptions issued to out of state patients, the two undercover
patients, and the use of a rubber stamp on nine prescriptions . . . and
did not consider the evidence that he had been dispensing controlled
substances for over twenty years,'' and thus ``fail[ed] to consider the
overwhelming evidence of positive experience.'' See Brief of Petitioner
31-32, Lynch v. DEA, No. 11-10207-EE (11th Cir. 2011) (citing Krishna-
Iyer, M.D., v. DEA, 249 Fed. Appx. 159, 161 (11th Cir. 2007)
(unpublished)). Notably, the Eleventh Circuit denied the physician's
petition for review, holding that the revocation of the physician's
registration ``was not arbitrary, capricious, an abuse of discretion or
contrary to law.'' Lynch v. DEA, Slip. Op. at 4 (11th Cir. May 22,
2012) (per curiam). Indeed, the Court of Appeals did not even deem the
respondent's argument to warrant discussion. See id. at 2-4.
---------------------------------------------------------------------------
\56\ See Ronald Lynch, 75 FR 78745 (2010).
---------------------------------------------------------------------------
So too, in McNichol v. DEA, another physician whose registration
was revoked for issuing unlawful prescriptions to four undercover
officers relied on Krishna-Iyer to argue that the Agency's final
decision was arbitrary and capricious because the investigation
``failed to take into account any positive conduct on [his] part'' and
``intentionally ignored any evidence not specifically related to the
undercover patients.'' Brief of Petitioner 21-23, McNichol v. DEA, No.
12-15292 (11th Cir. 2013) (citing Krishna-Iyer, 249 Fed. Appx. at 161).
Of note, the Agency's Decision specifically rejected the ALJ's
assertion that the Government was required to review the patient charts
for patients other than the undercover officers and look for evidence
of the physician's ``positive prescribing practices'' so as to
``develop evidence to enlighten the administrative record.'' T.J.
McNichol, 77 FR 57133, 57146 (2012). The Administrator further
explained that ``[h]aving garnered evidence of what it believed to be
unlawful prescriptions issued to the four undercover officers, the
Government was entitled to go to hearing with that evidence.'' Id.
Again, the Eleventh Circuit denied the physician's petition for
review, holding that ``the record supports that the administrator
considered all aspects of the evidence in light of the applicable
statutory factors and . . . [her] decision was not arbitrary and
capricious. . . . [w]e also agree with the administrator's conclusion
that [the physician's] continued registration would be inconsistent
with the public interest.'' McNichol v. DEA, Slip. Op. at 4 (11th Cir.
Oct. 17, 2013) (per curiam). Here again, the Court did not deem
Respondent's argument to warrant discussion.
The CALJ also dismisses the published decision of the Tenth Circuit
in MacKay v. DEA, 664 F.3d 808 (10th Cir. 2011), asserting that ``the
Agency's view of Factor 2 was not a focus of the court's decision.''
R.D. 80 (emphasis added). Therein, after the Agency revoked the
physician's registration based on his unlawful prescribing to two
patients, the physician argued on review that:
The DEA must consider the totality of the experiences a
physician has, including: the interaction reflected in each of the
medical charts of patients that were seized by the DEA, the
``thousands of other patients . . . [and] positive experience'' with
dispensing controlled substances and not merely the testimony of
people trying to make a case against the physician.
The DEA, in fact, flat out disregarded the substantial
experience Dr. MacKay has had with dispensing controlled substances.
The law requires the DEA to consider evidence that reflects that the
physician is not a danger to the public and delineates how the DEA
must do so.
Brief of Petitioner, 13-14, MacKay v. DEA. Moreover, after
discussing the affidavits of several patients who testified that Dr.
MacKay had provided medically appropriate, and in some instances,
beneficial treatment for their pain, Respondent argued that ``[t]he DEA
decision is based only on the medical charts of a few patients out of
thousands Dr. MacKay has successfully treated over the years. In fact .
. . the DEA's expert only reviewed twelve patient files and testified
about even fewer.'' Id. at 20.
Notwithstanding that the Agency's decision was based entirely on
the evidence with respect to two patients (K.R. and M.R.), see Dewey C.
MacKay, 75 FR 49956, 49972 (2009); the Tenth Circuit rejected
Respondent's contention that the Agency had failed to consider his
``positive experience'' evidence. As the Court of Appeals explained:
Despite Dr. MacKay's claim to the contrary, the Deputy
Administrator considered the entire record, including the evidence
in Dr. MacKay's favor. She determined, however, that none of Dr.
MacKay's evidence negated the DEA's prima facie showing that Dr.
MacKay had intentionally diverted drugs to K.D. and M.R. Indeed, she
found that even if Dr. MacKay had provided proper medical care to
all of his other patients, that fact would not overcome the
government's evidence with regard to M.R. and K.D.
None of the evidence presented by Dr. MacKay undermines the
evidence relating to M.R. and K.D. Although numerous patients and
colleagues of Dr. MacKay related their positive experiences with
him, none had any personal knowledge regarding his treatment of M.R.
and K.D. Notably, Dr. MacKay's medical expert . . . failed to
specifically discuss and justify Dr. MacKay's treatment of M.R. and
K.D. As a result, none of Dr. MacKay's evidence contradicts the
testimony and evidence presented by the DEA relating to the knowing
diversion of drugs to these two patients.
664 F.3d at 819.
The Court of Appeals then rejected MacKay's contention that the
Deputy Administrator had misweighed the public interest factors. As the
Court explained: ``[i]n light of Dr. MacKay's misconduct relating to
factors two and four, the government made a prima facie showing that
[his] continued registration is inconsistent with the public
interest.'' Id. (citing 75 FR at 49977). And the Court further
explained that ``[a]lthough Dr. MacKay may have engaged in the
legitimate practice of pain medicine for many of his patients, the
conduct found by the Deputy Administrator with respect to K.D. and M.R.
is sufficient to support her determination that his continued
registration is inconsistent with the public interest.'' Id.
[[Page 14984]]
The CALJ further asserts that ``to the extent that the ever-
widening range of activity that the Agency considers `positive
experience' is banned, Factor 2 analysis, in the majority of Agency
cases, will largely consist of a reprise of evidence also considered
under Factor 4.'' R.D. 81. Continuing, the CALJ contends that ``[t]he
Government's ability to introduce alleged acts of malfeasance will
warrant double consideration under Factor 2 and again under Factor 4,
but respondents will remain unable to demonstrate that a transgression
constituted an isolated occurrence when compared with even many years
of compliant practice as a registrant.'' Id.
The CALJ is mistaken. As JM Pharmacy made clear, ``[a]s in past
cases, the parties may continue to introduce evidence as to the extent
of both a practitioner's lawful or unlawful dispensing activities.'' 80
FR at 28668 n.2. Indeed, in these proceedings, the Agency will assume,
without requiring the production of any evidence by a respondent, that
the practitioner has lawfully issued every prescription other than
those alleged by the Government to be unlawful. And contrary to the
CALJ's understanding, notwithstanding the Agency's rejection of the
notion that ``the plain meaning'' of Factor 2 mandates the
consideration of ``the quantitative volume'' of a respondent's
dispensing, a respondent may still argue that his conduct was ``an
isolated occurrence when compared with even many years of compliant
practice'' or an ``aberration.'' R.D. 81-82.
Equally misplaced is the CALJ's assertion that the Government's
evidence of unlawful prescribing will hence be given double
consideration in the public interest determination. Id. at 82. While
evidence of a respondent's unlawful prescribing is clearly relevant in
assessing both his/her experience in dispensing controlled substances
and compliance with applicable laws related to controlled substances
and thus typically discussed under both factors--indeed, because of the
overlap between the factors, the Agency has long discussed both factors
together--this does not mean that the prescriptions have been double
weighted. See, e.g., Albert Lepis, 51 FR 17555, 17555-56 (1986).
As the Agency's decision on remand in Krishna-Iyer explained,
``[w]hether this conduct is evaluated under factor two . . . or factor
four, or both [factors], is of no legal consequence. In establishing
[the Government's] prima facie case, the fundamental question is
whether [a] [r]espondent `has committed such acts as would render [his]
registration inconsistent with the public interest.' '' \57\ 74 FR at
462 (quoting 21 U.S.C. 824(a)(4)). Moreover, as both the Agency and
federal courts have recognized, findings under a single factor can
support the denial of an application or the revocation of a
registration. See MacKay, 664 F.3d at 821 (quoting Krishna-Iyer, 74 FR
at 462).
---------------------------------------------------------------------------
\57\ While Krishna-Iyer involved a revocation proceeding, the
public interest inquiry is essentially the same where the Agency
proposes the denial of an application.
---------------------------------------------------------------------------
While the Agency has explained that proof of a single act of
intentional or knowing diversion remains sufficient to satisfy the
Government's prima facie burden and to impose on a respondent the
obligation to produce evidence to show that he can be entrusted with a
registration, this is not the result of double weighting the
misconduct. See Krishna-Iyer, 74 FR at 463; see also MacKay, 664 F.3d
at 819. Rather, it is based on the recognition that a violation of the
prescription requirement (21 CFR 1306.04(a)) ``strikes at the CSA's
core purpose of preventing the abuse and diversion of controlled
substances.'' Samuel Mintlow, 80 FR 3630, 3653 (2015); accord David A.
Ruben, 78 FR 38363, 38386 (2013). Accordingly, the Agency has held that
where the Government proves that a practitioner has engaged in knowing
or intentional diversion, a respondent is not entitled to be registered
(or maintain an existing registration) absent a credible acceptance of
responsibility.\58\ As the Tenth Circuit has recognized:
---------------------------------------------------------------------------
\58\ In Krishna-Iyer, the Agency explained that ``while some
isolated decisions . . . may suggest that a practitioner who
committed only a few acts of diversion was entitled to regain his
registration even without having to accept responsibility for his
misconduct, see Anant N. Mauskar, 63 FR 13687, 13689 (1998), the
great weight of the Agency's decisions are to the contrary.'' 74 FR
at 464. Noting that ``[t]he diversion of controlled substances has
become an increasingly grave threat to this nation's public health
and safety,'' the Agency clarified its policy and explained that
``[t]o the extent Mauskar, or any other decision of this Agency
suggests otherwise, it [wa]s overruled.'' Id. at 464 n.9.
Continuing, the Agency explained that because of the grave and
increasing harm to public health and safety caused by the diversion
of prescription controlled substances, even where the Agency's proof
establishes that a practitioner has committed only a few acts of
knowing or intentional diversion, this Agency will not grant or
continue the practitioner's registration unless he accepts
responsibility for his misconduct. Id. at 464.
. . . 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 . . .
Administrator to consider whether that doctor will change his or her
behavior in the future. And that consideration is vital to whether
continued registration is in the public interest. Without Dr.
MacKay's testimony, the Deputy Administrator had no evidence that
Dr. MacKay recognized the extent of his misconduct and was prepared
---------------------------------------------------------------------------
to remedy his prescribing practices.
MacKay, 664 F.3d at 820 (citing Hoxie v. DEA, 419 F.3d 477, 483
(2005)).
Thus, contrary to the CALJ's understanding, a respondent can still
argue (as he/she always could) that his/her misconduct in knowingly or
intentionally diverting controlled substances was ``an isolated
occurrence'' or an ``aberration'' in his/her years of otherwise
compliant professional practice. However, one cannot argue that his/her
conduct was ``an isolated occurrence'' or ``an aberration'' without
first acknowledging that he/she has engaged in unlawful conduct.\59\
And in any case, Respondent has made no such argument.
---------------------------------------------------------------------------
\59\ The CALJ also asserts that in JM Pharmacy, ``the Agency
determined in clear terms that it will no longer consider whether
established misconduct presented an isolated piece of an applicant's
record, irrespective of whether the misconduct is intentional or
otherwise.'' R.D. at 82 (emphasis added). To the contrary, in JM
Pharmacy, the Administrator denied two applications for pharmacy
registrations, expressly adopting the CALJ's conclusion that the
owner of the two pharmacies had ``knowingly and materially falsified
the applications he submitted.'' 80 FR at 28669; see also id. at
28683 (CALJ's Recommended Decision: ``It is clear that the
Respondents, through their common owner . . . knew or should have
known that the answers provided to Question 2 were false, and that
their . . . applications contained material falsifications. The
absence of any logical basis for confusion and the past experience
of [their owner] as a registrant holder and pharmacist
preponderantly support a finding that the misrepresentations were
intentional, not negligent. . . . [E]ven standing alone, the denial
of the Respondent's . . . applications is adequately supported on
this record based on the material falsifications set forth in the
filed applications.'') (emphasis added); id. at 28689 (CALJ noting
that owner's ``insistence that his false response to an application
query . . . was simply not credible and defeats the Respondents'
efforts to meet the Government's case. The false
misrepresentation[s] . . . are sufficiently egregious on their face
to warrant sanction''). Thus, JM Pharmacy does not support the
CALJ's assertion that the Agency does not consider a respondent's
level of culpability in committing misconduct.
---------------------------------------------------------------------------
Summary of Factors Two and Four
While Respondent put on no evidence as to the lawfulness of his
controlled substance prescribing to patients other than B.B., I have
assumed that every other prescription he has issued in the course of
his professional career complied with 21 CFR 1306.04(a).\60\
Nonetheless, as found above,
[[Page 14985]]
Respondent issued multiple prescriptions for various schedule II
narcotics outside the course of professional practice and which lacked
a legitimate medical purpose. 21 CFR 1306.04(a). Moreover, the evidence
in no sense shows that Respondent was merely neglectful, but rather
supports a finding that Respondent acted with knowledge that B.B. was
abusing and/or diverting the controlled substances he prescribed. And
while the evidence of record does not support a finding that Respondent
unlawfully prescribed to any other patient, it is significant that his
misconduct went on for eight months and involved 19 prescriptions for
schedule II narcotics alone. Thus, I conclude that Respondent has
engaged in egregious misconduct which supports the denial of his
registration. See MacKay, 75 FR at 49997; Krishna-Iyer, 74 FR at 463;
Olefsky, 57 FR at 928-29.
---------------------------------------------------------------------------
\60\ This assumption may actually be more favorable to
Respondent than what is warranted with respect to his experience in
dispensing controlled substances. In 2008, Respondent was sanctioned
by the Board for ``prescribing controlled dangerous substances''
over the course of a three-year period to a patient with whom he had
sexual relations. RX 3, at 2.
---------------------------------------------------------------------------
I therefore hold that the Government has established its prima
facie case that Respondent's registration ``would be inconsistent with
the public interest.'' 21 U.S.C. 823(f).
Sanction
Where, as here,\61\ the Government has met its prima facie burden
of showing that issuing a new registration to the applicant would be
inconsistent with the public interest, a respondent must come forward
with `````sufficient mitigating evidence''''' to show why he can be
entrusted with a new registration. Medicine Shoppe-Jonesborough, 73 FR
364, 387 (2008) (quoting Samuel S. Jackson, 72 FR 23848, 23853 (2007)
(quoting Leo R. Miller, 53 FR 21931, 21932 (1988))). ``Moreover,
because `past performance is the best predictor of future performance,'
ALRA Labs, Inc. v. DEA, 54 F.3d 450, 452 (7th Cir.1995), [DEA] has
repeatedly held that where a registrant has committed acts inconsistent
with the public interest, the registrant must accept responsibility for
[his] actions and demonstrate that [he] will not engage in future
misconduct.'' Medicine Shoppe, 73 FR at 387; see also Jackson, 72 FR at
23853; John H. Kennedy, 71 FR 35705, 35709 (2006); Prince George
Daniels, 60 FR 62884, 62887 (1995). See also MacKay v. DEA, 664 F.3d at
820; Hoxie v. DEA, 419 F.3d at 483 (``admitting fault'' is ``properly
consider[ed]'' by DEA to be an ``important factor[]'' in the public
interest determination).
---------------------------------------------------------------------------
\61\ So too, the egregiousness and extent of a registrant's
misconduct are significant factors in determining the appropriate
sanction. See Jacobo Dreszer, 76 FR 19386, 19387-88 (2011)
(explaining that a respondent can ``argue that even though the
Government has made out a prima facie case, his conduct was not so
egregious as to warrant revocation''); Paul H. Volkman, 73 FR 30630,
30644 (2008); see also Paul Weir Battershell, 76 FR 44359, 44369
(2011) (imposing six-month suspension, noting that the evidence was
not limited to security and recordkeeping violations found at first
inspection and ``manifested a disturbing pattern of indifference on
the part of [r]espondent to his obligations as a registrant'');
Gregory D. Owens, 74 FR 36751, 36757 n.22 (2009). As explained
above, Respondent's misconduct in knowingly issuing multiple
prescriptions in violation of 21 CFR 1306.04(a) is egregious and
supports the denial of his registration and not the issuance of a
registration subject to conditions. Indeed, this is not a close
call.
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Finally, the Agency has also held that ```[n]either Jackson, nor
any other agency decision, holds . . . that the Agency cannot consider
the deterrent value of a sanction in deciding whether a registration
should be [suspended or] revoked.''' Joseph Gaudio, 74 FR 10083, 10094
(2009) (quoting Southwood Pharmaceuticals, Inc., 72 FR 36487, 36504
(2007)); see also Robert Raymond Reppy, 76 FR 61154, 61158 (2011);
Michael S. Moore, 76 FR 45867, 45868 (2011). This is so, both with
respect to the respondent in a particular case and the community of
registrants. See Gaudio, 74 FR at 10095 (quoting Southwood, 71 FR at
36503). Cf. McCarthy v. SEC, 406 F.3d 179, 188-89 (2d Cir. 2005)
(upholding SEC's express adoptions of ``deterrence, both specific and
general, as a component in analyzing the remedial efficacy of
sanctions'').
Even with respect to the violations which he found proven, the CALJ
found that ``one clear and consistent aspect of the record is the
Respondent's almost dogged determination to accept no responsibility
for his actions.'' R.D. 92. This holds equally true with respect to
each of the controlled substance prescriptions he issued in violation
of 21 CFR 1306.04(a), as other than his meager acknowledgement that his
documentation on certain progress notes could have been better,
Respondent has not accepted responsibility for his misconduct with
respect to any of the controlled substance prescriptions he unlawfully
issued to B.B. beginning on September 22, 2011 and ending on May 9,
2012. And as explained above, the evidence supports the conclusion that
Respondent was not merely neglectful, but that he engaged in knowing
misconduct when he issued the prescriptions. As the Tenth Circuit has
recognized, Respondent's failure to acknowledge his misconduct
establishes that he is not prepared to remedy his unlawful prescribing
practices. MacKay, 664 F.3d at 820. This alone supports the conclusion
that he cannot be entrusted with a new registration.\62\
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\62\ Even if Respondent had credibly accepted responsibility for
his misconduct, he has offered no evidence of any remedial training
he has undertaken in controlled substance prescribing. While the CSA
does not impose a time bar on a practitioner's ability to reapply
for a registration, the rules of the Agency are clear. Thus, to
obtain favorable consideration of any new application, Respondent
must both credibly acknowledge his misconduct in prescribing to B.B.
and provide evidence of remedial training he has undertaken in the
proper prescribing of controlled substances.
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So too, while the Agency's interest in specific deterrence is not
triggered (because I deny his application), as found above,
Respondent's misconduct is egregious and the Agency has a manifest
interest in deterring similar misconduct by other practitioners. This
interest would be compelling even if it was not the case that the
nation was confronting an epidemic of opioid abuse. I therefore
conclude that granting Respondent's application ``would be inconsistent
with the public interest.'' 21 U.S.C. 823(f). Accordingly, I will 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 Wesley Pope, M.D., for a
DEA Certificate of Registration as a practitioner, be, and it hereby
is, denied. This Order is effective immediately.
Dated: March 16, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-05676 Filed 3-22-17; 8:45 am]
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