Lon F. Alexander, M.D.; Decision and Order, 49704-49731 [2017-23339]

Download as PDF 49704 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 16–17] ethrower on DSK3G9T082PROD with NOTICES Lon F. Alexander, M.D.; Decision and Order On February 4, 2016, the Deputy Assistant Administrator, of the then Office of Diversion Control, issued an Order to Show Cause to Lon F. Alexander, M.D. (hereinafter, Respondent), of Hattiesburg, Mississippi. ALJ Ex. 1, at 1. The Show Cause Order proposed the denial of Respondent’s application for a DEA Certificate of Registration as a practitioner, on the ground that his ‘‘registration is inconsistent with the public interest.’’ Id. (citing 21 U.S.C. 823(f)). As for the Agency’s jurisdiction, the Show Cause Order alleged that Respondent had previously held a registration which he surrendered for cause on January 16, 2014. Id. The Order further alleged that on January 9, 2015, Respondent applied for a new registration as a practitioner in schedules II through V, at the proposed registered address of 36 Bridgefield Turn, Hattiesburg, Mississippi. Id. As for the substantive grounds for the proceeding, the Show Cause Order raised multiple allegations to the effect that, on numerous occasions in 2011 through 2013, Respondent violated federal and state law by issuing controlled substance prescriptions to his wife ‘‘that were nontherapeutic, were for other than a legitimate medical purpose, and were issued outside of the usual course of [his] professional practice.’’ Id. at 1–3. The Show Cause Order alleged that Respondent ‘‘repeatedly issued’’ prescriptions for schedule IV controlled substances which included zolpidem tartrate, alprazolam, and diazepam, ‘‘when she was concurrently being issued prescriptions for the same or similar class of drugs by her own psychiatrist, which [he] did without [the] psychiatrist’s knowledge or permission.’’ Id. The Order further alleged that Respondent’s ‘‘actions dramatically increased the chances of [his] wife’s dependency, overdose, or diversion of those controlled substances, while also potentially complicating her psychiatric condition.’’ Id. (citing 21 CFR 1306.04; Miss. Admin. Code Part 2640, Ch. 1, r. 1.7, 1.10, and 1.16; Miss. Code Ann. Sec. 73–25–29(3) & (13)).1 1 See also ALJ Ex. 1, at ¶¶ 5–6. VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 The Show Cause Order also alleged that on various occasions from 2011 through 2013, Respondent violated federal and state law by issuing his wife prescriptions for hydrocodone, then a schedule III narcotic, as well as other controlled substances, which were also nontherapeutic, for other than a legitimate medical purpose, and were outside the usual course of professional practice. Id. at 2–3. Specifically, the Show Cause Order alleged that ‘‘[o]n at least one occasion in 2011,’’ Respondent issued prescriptions for hydrocodone and diazepam ‘‘to [his] wife concurrently with another prescription [for clonazepam] issued by her . . . psychiatrist,’’ and that he did so ‘‘without her psychiatrist’s knowledge or permission.’’ Id. at 2. The Order again alleged that Respondent’s ‘‘actions dramatically increased the chances of [his] wife’s dependency, overdose, or diversion of . . . controlled substance[s], while also potentially complicating her psychiatric condition.’’ Id. (citing same authorities as above). Next, the Show Cause Order alleged additional instances of non-therapeutic prescribing by Respondent to his wife in that, ‘‘[o]n at least four different occasions in 2013,’’ he ‘‘repeatedly issued . . . prescriptions for hydrocodone . . . zolpidem tartrate . . . and alprazolam . . . when she was concurrently being issued other controlled substances prescriptions for the same or similar drugs, as well as amphetamines, by her . . . psychiatrist, which [he] did without his knowledge or permission.’’ Id. at 2–3. As with the previous allegations, the Order alleged that Respondent’s ‘‘actions dramatically increased the chances of her dependency, overdose, or diversion of those controlled substances, while also potentially complicating her psychiatric condition.’’ Id. at 3 (citing same authorities as above). The Show Cause Order also alleged that ‘‘[o]n at least fifteen different occasions between 2011 and 2013, [Respondent] violated state and federal law by issuing’’ to his wife prescriptions for hydrocodone, and/or zolpidem, and/ or alprazolam, ‘‘without conducting any examination of [his] wife (or documenting such in her file) or noting the . . . prescriptions in her patient chart.’’ Id. (citing same authorities as above). The Show Cause Order then alleged that ‘‘[o]n at least nine occasions between 2011 and 2013, [Respondent] violated state and federal law by issuing’’ to his wife prescriptions for these drugs, ‘‘without conducting sufficient examinations of [her] (or PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 documenting such in her file).’’ Id. (citing same authorities as above). Finally, the Show Cause Order alleged that Respondent ‘‘engaged in conduct which may threaten public health and safety . . . by attempting to mislead DEA investigators.’’ Id. (citing 21 U.S.C. 823(f)(5)). Specifically, the Government alleged that, ‘‘on February 2, 2016, [Respondent] turned over to DEA in response to an administrative subpoena a record purporting to be the patient file’’ of his wife. Id. The Order alleged that the file ‘‘contained false entries’’ in that it contained ‘‘repeated reference to conversations with and attempts to contact [his wife’s] treating psychiatrist’’ and that ‘‘DEA’s investigation . . . indicate[s] that these statements and others presented as part of the purported patient file are false.’’ Id. Following service of the Show Cause Order, Respondent, through his counsel, requested a hearing on the allegations. ALJ Ex. 2. The matter was placed on the docket of the Office of Administrative Law Judges and assigned to ALJ Charles Wm. Dorman. Following pre-hearing procedures, the ALJ conducted an evidentiary hearing in Jackson, Mississippi on June 29–30, 2016, at which both parties elicited testimony from witnesses and submitted various documents for the record. Following the hearing, both parties submitted briefs of their proposed findings of fact, conclusions of law, and argument. On September 20, 2016, the ALJ issued his Recommended Decision. Therein, with respect to Factors Two (Respondent’s experience in dispensing controlled substances) and Four (compliance with applicable laws related to controlled substances), the ALJ found that the Government had proved that Respondent violated 21 CFR 1306.04, Mississippi Code Sec. 73–25– 29(3) and 73–25–29(13), as well as Mississippi Administrative Rules 1.7, 1.10, and 1.16 when he issued numerous controlled substance prescriptions to his wife. Specifically, the ALJ found that during 2011, Respondent issued nine zolpidem, two alprazolam, seven hydrocodone, and one diazepam prescription(s) in violation of these provisions. R.D. at 39–40. The ALJ also found that during 2012, Respondent issued five alprazolam prescriptions, and that during 2013, he issued 11 alprazolam prescriptions in violation of these provisions. Id. at 41–43. The ALJ further found that in 2013, Respondent issued five hydrocodone prescriptions and one zolpidem prescription in violation of these provisions. Id. at 44. In addition to the above, the ALJ found that between 2011 and 2013, E:\FR\FM\26OCN2.SGM 26OCN2 ethrower on DSK3G9T082PROD with NOTICES Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices Respondent prescribed hydrocodone 11 times, zolpidem 12 times, and alprazolam five times without documenting the prescriptions or a prior examination in his wife’s patient file in violation of various provisions of Mississippi law and administrative rules. Id. at 46. He also found that on nine occasions when Respondent did document a prescription in his wife’s file, he failed to include information required by state rules such as a medical history, examination results, or a diagnosis. Id. at 47–48 (citing Miss. Admin. Rule 1.4). The ALJ further concluded that ‘‘nothing in . . . Respondent’s file for his wife necessarily indicates that [he] ever conducted any type of physical or mental status examination of his wife prior to prescribing controlled substances to her.’’ Id. at 48. He thus found proved the ‘‘allegation that the Respondent failed to conduct examinations and/or lacked adequate documentation of examinations of his wife’’ in violation of various provisions of Mississippi law and administrative rules. Id. at 49. Turning to Factor Five (such other conduct which may threaten public health or safety), the ALJ rejected the allegation that Respondent attempted to mislead DEA investigators by providing to them the patient file containing false entries to the effect that he had made his wife’s psychiatrist aware of the prescriptions. Id. at 49–52. The ALJ reasoned that it appeared that Respondent created the file ‘‘as he was treating his wife,’’ that he ‘‘did nothing more than turn over his file when ordered to do so by the . . . subpoena,’’ and that there was ‘‘[n]o evidence . . . that, after the DEA subpoenaed the file, [he] created false entries or altered the file he already maintained.’’ Id. at 51. The ALJ nonetheless concluded that ‘‘Factors Two and Four weigh substantially in favor of denying . . . Respondent’s application because he prescribed controlled substances to his wife for illegitimate and nontherapeutic purposes, outside the scope of professional practice, and because he did not appropriately document examinations of, any prescriptions to, his wife.’’ Id. at 52. The ALJ thus found ‘‘that the Government has made a prima facie case . . . that the Respondent’s registration would be inconsistent with the public interest.’’ Id. The ALJ acknowledged that ‘‘[t]o rebut the Government’s prima facie case, the Respondent must both accept responsibility for his actions and demonstrate that he will not engage in future misconduct.’’ Id. (citation omitted). The ALJ explained that a ‘‘[a] VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 respondent must express remorse for all acts of documented misconduct, and may be required to acknowledge the scope of his misconduct.’’ R.D. 52 (citations omitted); see also id. at 54. The ALJ also explained that ‘‘[a]cceptance of responsibility and remedial measures are assessed in the context of the egregiousness of the violations and the [DEA’s] interest in deterring similar misconduct by [the] Respondent in the future as well as on the part of others.’’ Id. at 52 (internal quotations and citations omitted). The ALJ concluded that ‘‘Respondent’s misconduct was egregious’’ in that he ‘‘repeatedly and wrongfully prescribed addictive, dangerous, and potentially harmful controlled substances to his wife for approximately three years,’’ which ‘‘interfered with his wife’s treatment and could have caused her to overdose, lose consciousness, or die.’’ Id. at 53. The ALJ nonetheless concluded that Respondent had accepted responsibility for his misconduct in prescribing outside the usual course of practice because, by ‘‘[s]imply acknowledging that he failed to properly document his treatment of his wife, [he] admitted to practicing outside the usual scope of professional practice.’’ Id. at 54. The ALJ also acknowledged Respondent’s testimony ‘‘that he did not think that his actions increased his wife’s chances of dependency, overdose, or diversion,’’ and that ‘‘[t]he Government’s argument that that Respondent did not accept responsibility for putting his wife at risk is also understandable.’’ Id. The ALJ reasoned, however, that ‘‘a respondent is not required to admit to every single component of an allegation in order to accept responsibility.’’ Id. The ALJ then noted that in a proceeding before the Mississippi Board, ‘‘Respondent acknowledged that his prescriptions were probably hurting his wife and keeping her from getting appropriate treatment.’’ Id. As for the Government’s contention that Respondent did not specifically acknowledge his misconduct in ‘‘failing to conduct examinations and/or conduct insufficient examinations prior to issuing’’ the prescriptions, the ALJ noted that this ‘‘is technically correct.’’ Id. at 54–55. The ALJ, however, rejected the Government’s contention, reasoning that ‘‘the Government overlooks the central concern of this case, which is that the Respondent wrote prescriptions for his wife when he should not have.’’ Id. at 55. The ALJ then explained that ‘‘[i]n his view, the Respondent’s acceptance of responsibility for failing to examine his wife before writing her PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 49705 a prescription is subsumed in his general acceptance of responsibility.’’ Id. While the ALJ acknowledged that Respondent declined ‘‘to admit that he violated federal laws because he did not want to speculate on what statutes he might have violated’’ and ‘‘testif[ied] that he did not know whether the prescriptions were outside the scope of his professional practice as the DEA defines those terms,’’ the ALJ reasoned that Respondent was not required to ‘‘identify the specific federal code provisions he violated, or interpret federal laws and apply them to his circumstances.’’ Id. at 56. The ALJ further explained that he found Respondent’s remorse to be ‘‘sincere and that his commitment to adhere to all regulations governing controlled substances is genuine.’’ Id. at 56–57. The ALJ further found that Respondent had undertaken ‘‘reasonable and appropriate’’ remedial measures. Id. at 59. As for the Agency’s interest in specific deterrence, the ALJ suggested that it ‘‘might be negligible,’’ reasoning that Respondent ‘‘thoroughly understands that if he engages in any further misconduct he will face immediate sanctions from the’’ Physicians Health Program and the State Board ‘‘that will end his medical career.’’ Id. at 59. And while the ALJ noted that ‘‘Respondent’s conduct was egregious,’’ he reasoned that the circumstances were unique because ‘‘every allegation of misconduct . . . involved . . . Respondent prescribing to only his wife.’’ Id. at 60. The ALJ then explained that Respondent’s testimony in a State Board proceeding to the effect that his prescribing ‘‘was not a matter of judgment but a matter of the heart[] merits some consideration.’’ Id. The ALJ thus recommended that Respondent’s application be granted subject to various conditions. Id. at 61–62. The Government filed Exceptions to the Recommended Decision. In its Exceptions, the Government contended that the ALJ committed error in concluding that Respondent has sufficiently accepted responsibility for his misconduct. Exceptions, at 3–15. The Government also contended that the ALJ committed error in concluding that Respondent is entitled to a new registration notwithstanding the egregiousness of his misconduct. Id. at 16–20. The Government thus argues that I should deny Respondent’s application. Id. at 20. Respondent did not file a response to the Government’s Exceptions. Thereafter, the ALJ forwarded the record to me for final agency action. Having considered the record in its E:\FR\FM\26OCN2.SGM 26OCN2 49706 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices entirety including the Recommended Decision, the parties post-hearing briefs and the Government’s Exceptions, I adopt the ALJ’s findings of fact (while making several additional findings as to prescriptions) and legal conclusions with respect to paragraphs two through ten of the Show Cause Order. I conclude, however, that the Government’s Exception to the ALJ’s legal conclusion that Respondent has sufficiently accepted responsibility for his misconduct is well taken. Accordingly, I deny his application. I make the following factual findings. ethrower on DSK3G9T082PROD with NOTICES Findings of Fact Respondent’s Registration and Licensure Status Respondent is a neurosurgeon licensed by the Mississippi State Board of Medical Licensure. R.D. 3 (citing Stipulation of Fact No. 4); Tr. 481–82. Respondent also previously held a DEA Certificate of Registration, pursuant to which he was authorized to dispense schedule II through V controlled substances as a practitioner. GX 1, at 1. However, on January 17, 2014, Respondent surrendered this registration for cause. Id. According to Respondent, he agreed to surrender his registration at the time of the State Board hearing that suspended his medical license. Tr. 485. On January 9, 2015, Respondent applied for a new practitioner’s registration seeking authority to dispense controlled substances in schedules II through V, at a registered address in Hattiesburg, Mississippi. R.D. 3 (citing Stipulation of Fact No. 1). In 2008, Respondent referred himself to the Betty Ford Center, ‘‘when [he] realized [he] had a problem with prescription medicines’’ and spent 90 days in treatment. Tr. 487. According to Respondent, ‘‘[o]nce [he] went to the Betty Ford Center, [he] disclosed to the MPHP [Mississippi Physician’s Health Program] and ultimately the [B]oard of [M]edicine that [he] was now a participant.’’ Id. at 488. In May 2008, Respondent entered into a Recovery Contract Agreement (hereinafter, recovery contract, contract, or RCA) with the MPHP. GE 14, at 13. The RCA’s terms included that he completely abstain from mood-altering addictive substances, that he not treat himself or his family, that he undergo random drug screens, and that he be honest. Id.; see also R.D. at 4.2 2 The ALJ noted that these facts, which are based on the testimony of Dr. Hambleton, the Director of the MPHP, at Respondent’s January 15, 2015 Board Hearing, are ‘‘not necessarily proven by a preponderance of the evidence.’’ R.D. 4. The VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 In March 30, 2012, Respondent tested positive for Tramadol. He then returned to the Betty Ford Center for one month, after which he was discharged with a diagnosis of opioid dependence. GE 14, at 14–16. The MPHP did not, however, withdraw its advocacy on his behalf, and on June 11, 2012, Respondent entered into a new RCA which contained the same terms as the previous RCA, including the prohibition on prescribing to family members. Id. at 16–17. On September 10, 2012, Respondent met with the Mississippi Professionals Health Committee due to its concerns that he had ‘‘missed callings for random drugs screens,’’ had failed to attend Caduceus meetings, failed to continued his aftercare therapy, failed to pay his bill for the drug screen testing, and had ‘‘fail[ed] to turn in his support group attendance records.’’ Id. at 19–20. According to Dr. Hambleton’s testimony at the second State Board hearing, the committee ‘‘warned [Respondent] very carefully that any future noncompliance would result in [the] potential loss of [the] MPHP[’s] advocacy’’ and ‘‘that this was really his last chance to demonstrate that he could do what was necessary to prove that he’s safe.’’ Id. While Respondent was compliant with the issues raised by the committee, the committee was unaware that Respondent had been violating his RCA by writing controlled substance prescriptions for his wife. Id. at 20–21. According to Dr. Hambleton, he did not know that Respondent had been calling in controlled substance prescriptions for his wife until the State Board informed him on October 7, 2013. Id. Dr. Hambleton also testified in the State Board proceeding that Respondent did not disclose this information to his ‘‘treatment providers at Betty Ford, to our committee, or [to] our staff at MPHP.’’ Id. On October 15, 2013, the MPHP, having concluded that Respondent’s ‘‘continued practice of medicine represent[ed] a definite threat to the public health’’ withdrew its advocacy Director was, however, placed under oath in the State Board proceeding. GE 14, at 11. He also testified in this proceeding and explained that with the exception of its duration, the terms of Respondent’s current RCA (which ‘‘is his fourth contract’’) are the same as they were for his previous contracts. Tr. 452. Notably, his current contract requires that, ‘‘[o]ther than cases of medical emergencies, I agree to abstain from the use of any mood-altering, addictive, or potentially addictive prescription medication, including amphetamine preparations, without written permission from MPHP.’’ RX C, at 2. The RCA’s terms also state that ‘‘I agree not to prescribe, dispense or administer to family members or myself any drug having addiction-forming or addictionsustaining liability.’’ Id. PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 on behalf of Respondent. GE 14, at 23. Eight days later, the Board issued Respondent an order of prohibition which barred him from practicing medicine until further notice. GE 13, at 5. Thereafter, Respondent was charged with two counts of violating the State’s Medical Practice Act, including violating an existing Board Order, Stipulation or Agreement, see Miss. Code Ann. Sec. 73–25–29(13), and engaging in unprofessional conduct, by engaging in dishonorable or unethical conduct. GE 14, at 5; see also Miss. Code Ann. Sec. 73–25–29(8)(d) (unprofessional conduct includes ‘‘[b]eing guilty of any dishonorable or unethical conduct likely to deceive, defraud or harm the public’’). On January 16, 2014, the Board held a hearing on the allegations at which Respondent appeared. As the record of the hearing shows, the allegations were based on Respondent’s violations of his RCA, particularly in his prescribing of controlled substances to his wife. Also at issue was his lack of honesty in failing to disclose his prescribing to his treatment providers as well as the MPHP committee and the MPHP’s staff. GE 14, at 21. Following the hearing, the Board found Respondent guilty on both counts and suspended his medical license for one year, after which he was entitled to petition the Board for reinstatement of his license. Id. at 91. The Board ordered that he ‘‘successfully complete multidisciplinary treatment at a treatment facility approved in advance by the MPHP,’’ as well ‘‘establish a provisional contract [and] take those steps necessary to obtain affiliation and advocacy with the MPHP.’’ GE 13, at 7– 8. On January 15, 2015, Respondent appeared before the Board seeking reinstatement. At the hearing, Dr. Hambleton (the MPHP Medical Director) testified in support of Respondent’s petition, stating that he ‘‘complied with all of our requirements and he’s begun the treatment process at Acumen.’’ Id. at 13. Dr. Hambleton further expressed his ‘‘belief . . . that he will comply with his contract.’’ Id. At the conclusion of the testimony, the Board reinstated Respondent’s medical license. Id. at 15. The DEA Investigation At some point not clearly established on the record, a DEA Diversion Investigator (DI) assigned to the Jackson, Mississippi office opened an investigation into Respondent’s E:\FR\FM\26OCN2.SGM 26OCN2 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices ethrower on DSK3G9T082PROD with NOTICES prescribing practices.3 Tr. 31, 90. As the DI explained, Respondent’s ‘‘history with the Medical Board . . . gave us pause, so we began an investigation into . . . his prescribing habits.’’ Id. The DI testified that he had access to the Board’s investigation, Tr. 22 & 32, and obtained reports from the State’s Prescription Monitoring Program showing Respondent’s controlled substance prescribing. Id. at 22–23. Specifically, the DI obtained a ‘‘Prescriber Activity Report’’ showing Respondent’s prescriptions from January 1, 2011 through December 31, 2013. Tr. 24; GX 10. The DI also obtained a PMP report using the various names of Respondent’s wife for the same period. Tr. 29; GX 11. Of note, however, GX 10 contains a number of prescriptions which Respondent issued to his wife which are not listed on GX 11.4 In reviewing the PMP reports, the DI found it suspicious that Respondent was prescribing controlled substances to his wife as ‘‘she was seeing a psychiatrist, Dr. Mark Webb, during that timeframe.’’ Tr. 30. The DI ‘‘noticed multiple prescriptions’’ which Respondent authorized for drugs that his wife ‘‘was receiving’’ from Dr. Webb. Id. at 31. The DI further explained that he was ‘‘aware that [Respondent] was married to . . . Ms. Alexander, so [I] knew there was a pretty good assumption that he was aware that she was receiving these medications, because she had seen Dr. Webb for such a long time.’’ Id. at 32. According to the DI, during a phone conversation with Respondent’s wife ‘‘[s]he advised that she needed the medications’’ and that Respondent had written ‘‘her some prescriptions, but that she didn’t feel like that was a problem.’’ Id. at 33. Respondent’s wife also told the DI that ‘‘she didn’t know if her husband had patient files . . . for her [but] that he did prescribe some prescriptions to her.’’ 5 Id. at 34. 3 Earlier in his testimony, the DI stated that the investigation was prompted by Respondent’s 2015 application. Tr. 31. Yet later in his testimony, the DI stated that the case was opened earlier, after the Board provided DEA ‘‘with documentation regarding his history with them.’’ Tr. 90. The DI explained that ‘‘[w]hen we obtain information from the Medical Board, whether or not somebody’s applied for a DEA license or not, we have to document that information . . . the different allegations that the Board has made[,] or evidence that they may have against a physician.’’ Id. at 90– 91. 4 According to the DI, when calling in the prescriptions, Respondent used ‘‘several different variations of’’ his wife’s name. Tr. 38. 5 According to the DI, during this conversation, he told Respondent’s wife (who holds a DEA registration as a Nurse Practitioner) that she appeared to be obtaining controlled substances ‘‘from multiple doctors, including her husband’’ and that he ‘‘would potentially be asking her to VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 Thereafter, the DI visited Dr. Webb and ‘‘asked him if he was aware’’ that Respondent’s wife was ‘‘receiving these prescriptions from’’ Respondent. Id. Dr. Webb ‘‘said that he was not’’ and asked the DI to ‘‘look into it further.’’ Id. Following the visit, the DI served a subpoena on Dr. Webb and obtained his patient file for Respondent’s wife. Id. at 35; GX 3, at 1–2. Dr. Webb’s file for Respondent’s wife was entered into evidence as GX 5. Tr. 68–75. The DI also obtained some of ‘‘the hard copy prescriptions from several different pharmacies throughout’’ the State.6 Tr. 35–36. The DI presented the prescriptions to Dr. Webb and asked him: ‘‘were these authorized? Did you know?’’ Id. at 36. Dr. Webb ‘‘again maintained that he did not’’ know about the prescriptions. Id. The DI also served a subpoena on Respondent for ‘‘[a]ny and all charts, files and/or documents, written, typed or computerized, relating to’’ his wife. GX 4, at 1. A ten-page exhibit of Respondent’s Medical Progress Notes for his wife was entered into evidence as GX 6. Tr. 67. Dr. Webb’s Testimony The Government called Dr. Mark Webb as a fact witness. Dr. Webb testified that he has practiced psychiatry in Mississippi since 1990 and that Respondent’s wife has been his patient since November 2000. Id. at 102, 105. Dr. Webb acknowledged that he prescribes both controlled and noncontrolled substances and that for most of the patients who are treated with controlled substances, he prescribes only ‘‘two weeks’ worth of medications’’ so that ‘‘it’s a tighter leash.’’ Id. According to Dr. Webb, he has ‘‘known [Respondent] for a long time’’ and the two ‘‘referred patients back and forth in the 90s and the early 2000[s].’’ Id. at 110. Dr. Webb testified that he saw Respondent’s wife at his request. Id. He also testified that during the 2011 through 2013 period, his medication regimen for Respondent’s wife was to prescribe ‘‘an anti-depressant,’’ an Attention Deficit Disorder (ADD) medication such as Adderall XR, a sleeping medication such as Ambien or surrender her DEA license because of that.’’ Tr. 33– 34. The DI testified that shortly after this conversation, he was contacted by Respondent’s counsel, who advised that he was also representing Respondent’s wife and was told ‘‘not to contact her anymore unless there, you know.’’ Id. at 34. The DI did not clarify what conditions Respondent’s counsel asserted during this conversation. Id. The DI did not subsequently speak to Respondent’s wife. Id. 6 According to the DI, he provided the pharmacies with the prescription numbers, Respondent’s wife’s name, and her date of birth. Tr. 38. PO 00000 Frm 00005 Fmt 4701 Sfmt 4703 49707 Restoril, and an anxiety medication such as Xanax or Clonazepam. Id. at 204. Dr. Webb testified that while he and Respondent ‘‘talked a lot in the 90s and the early 2000s,’’ they have ‘‘talked less and less over the last 10 years.’’ Id. at 110. Dr. Webb testified that his records show that he had talked to Respondent ‘‘about four times’’ in the period from January 2011 to December 2013. Id. at 111; see also GX 7, at 1 (memo prepared by Dr. Webb memorializing meeting with DEA noting that he had talked with Respondent on Dec. 20, 2011, Feb. 20, 2012, Sept. 4, 2012, and Aug. 5, 2013). According to Dr. Webb, Respondent ‘‘would call me whenever he felt [his wife] was in a crisis . . . to give me that information and to . . . garner some help from me to her.’’ Tr. 110. Dr. Webb testified that he never had a discussion with Respondent about the latter’s prescribing controlled substances to his wife. Id.; see also id. at 138. When then asked if Respondent had contacted him and told him that he had prescribed because his wife had ‘‘run out’’ and ‘‘need[ed] some’’ medication on a temporary basis, Dr. Webb answered ‘‘no’’ and explained that ‘‘that would not make a lot of sense,’’ because he (Dr.Webb) ‘‘would be the person authorized that needed to call that in.’’ Id. at 111. While Dr. Webb testified that there was an instance during which he ‘‘walked out to the car with [Respondent’s wife] . . . and [Respondent] was in the car with their newborn son,’’ and they ‘‘chit-chatted [for] two seconds,’’ there was no discussion of Respondent’s prescribing of controlled substances to his wife. Id. at 111–12; see also R.D. 16 (ALJ Finding of Fact No. 28). Dr. Webb also testified that he did not have a conversation with Respondent’s wife about Respondent’s prescribing to her until either late in 2015 or 2016. Tr. 174–75. Dr. Webb testified that DEA Investigators showed him the ten pages of notes Respondent created with respect to the prescriptions he issued for his wife and that he compared them with the patient file he maintained on Respondent’s wife. Id. at 116. However, ‘‘none of’’ the dates in the records created by Respondent ‘‘correspond[ed] to [Dr. Webb’s] treatment records.’’ Id. at 16 (quoting GX 9 (memo created by Dr. Webb re: Feb. 25, 2016 meeting with DEA)). In his testimony, Dr. Webb adhered to his statement in the memo that he ‘‘did not speak to [Respondent] on these times in question and certainly would not have authorized him to call in medication for my patient.’’ GX 9; Tr. 117. As he testified, ‘‘[t]here’s no reason for somebody else to call in the E:\FR\FM\26OCN2.SGM 26OCN2 49708 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices prescriptions. That’s my job.’’ Tr. 117. Subsequently, Dr. Webb reiterated that he did not authorize Respondent to issue any prescriptions to his wife during the relevant time frame. Id. at 119. ethrower on DSK3G9T082PROD with NOTICES Respondent’s Prescriptions for His Wife The evidence shows that between January 1, 2011 and October 14, 2013 (when his medical license was suspended), Respondent issued the following controlled substances prescriptions for his wife.7 1. January 9, 2011, eight tablets of alprazolam (Xanax) 1 mg, one tablet to be taken twice day, a four-day supply. GE 10, at 85; GE 11, at 14; GE 29, at 1–2. The record does not establish when Dr. Webb had last prescribed alprazolam to Respondent’s wife.8 Respondent did not document the prescription in the patient file he maintained for his wife. See generally GE 6. Nor did he inform Dr. Webb that he had issued the prescription. 2. January 31, 2011, 30 tablets of zolpidem tartrate (Ambien) 10 mg, a 15day supply. GE 10, at 19; GE 11, at 14. Notably, on January 8, 2011, Respondent’s wife had refilled a prescription issued by Dr. Webb on August 31, 2010 for 60 tablets, this being a 30-day supply. GE 11, at 14. Thus, if taken as directed, the refill of Dr. Webb’s prescription should have last Respondent’s wife until February 7, 2011. On February 3, 2011 (only three days later), Dr. Webb prescribed 60 units of zolpidem 10 to Respondent’s wife. GE 11, at 13. GE 5, at 112. Respondent did not document the prescription in the patient file he maintained for his wife. GE 6. Nor did he inform Dr. Webb that he issued the prescription. 3. February 7, 2011, 20 tablets of hydrocodone/acetaminophen (Lorcet) 7.5–650, a three-day supply. GE 10, at 23; GE 11, at 13; see generally Tr. 373– 74 (testifying that her husband prescribed hydrocodone for her once in 2011). Other than on one occasion in June/July 2013, which is discussed below, Dr. Webb did not prescribe hydrocodone to Respondent’s wife. Moreover, the PMP report does not list any hydrocodone prescriptions that were issued by any other provider until 7 The ‘‘fill dates’’ are used to identify these prescriptions because some of the prescriptions are not dated or bear illegible dates. 8 The ALJ found that this prescription overlapped with a 30-day prescription for zolpidem tartrate (Ambien) from Dr. Webb, which was filled on January 8, 2011. R.D. 16. Given that Dr. Webb testified that he was prescribing both Xanax for anxiety and Ambien for sleep to Respondent’s wife simultaneously, the record does not establish that these were overlapping prescriptions. VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 November 30, 2011. GE 11, 11. Respondent did not document this prescription in the patient file he maintained on his wife. See generally GE 6. He also did not disclose the prescription to Dr. Webb. 4. March 30, 2011, 30 tablets of zolpidem tartrate (Ambien) 10 mg, with a dosing instruction of one tablet at bedtime but ‘‘may repeat for early,’’ a 15–30-day supply. GE 10, at 85; GE 11, at 13; GE 30, at 1–2. Notably, the zolpidem prescription which Dr. Webb issued on February 3, 2011 (RX #949559) provided for multiple refills, as it was refilled by Respondent’s wife on April 9, 2011, May 23, 2011, and July 7, 2011. GE 11, at 13; Tr. 254–55. Respondent did not document the prescription in the patient file he maintained on his wife. GE 6. Nor did he inform Dr. Webb that he issued the prescription. 5. April 8, 2011, 15 tablets of hydrocodone/acetaminophen (Lorcet) 10–650, one tablet every six hours as needed, a three-day supply. GE 10, at 85; GE 11, at 13; GE 31, at 1–2. As explained above, other than in June/July 2013, Dr. Webb did not prescribe this drug to Respondent’s wife, and no other physician prescribed hydrocodone to her until November 30, 2011. Respondent did not document the prescription in the patient file. GE 6. He also did not disclose the prescription to Dr. Webb. 6. May 6, 2011, 30 tablets of zolpidem tartrate (Ambien) 10 mg, one tablet at bedtime but ‘‘may repeat,’’ a 30-day supply. GE 10, at 85; GE 11, at 13; GE 32, at 1–2. As discussed above, Respondent’s wife still had refills available for 60 dosage units based on the prescription issued by Dr. Webb on February 3, 2011, and eventually refilled the prescription on May 23, 2011. GE 11, at 13; Tr. 255. Respondent did not document the prescription in the patient file. See generally GE 6. Nor did he disclose the prescription to Dr. Webb. 7. May 14, 2011, 14 tablets of hydrocodone/acetaminophen (Lorcet) 10–650, a two-day supply. GE 10, at 19; GE 11, at 13. As explained above, other than in June/July 2013, Dr. Webb did not prescribe this drug to Respondent’s wife, and no other physician prescribed hydrocodone to her until November 30, 2011. Respondent did not document the prescription in the patient file. GE 6. Nor did he disclose the prescription to Dr. Webb. 8. June 28, 2011, 30 tablets of zolpidem tartrate (Ambien) 10 mg, a 30day supply. GE 10, at 84; GE 11, at 12. Respondent’s wife still had a refill available for 60 dosage units based on PO 00000 Frm 00006 Fmt 4701 Sfmt 4703 the prescription issued by Dr. Webb on February 3, 2011, and eventually refilled the prescription on July 7, 2011. GE 11, at 12. Respondent did not document the prescription in the patient file. See generally GE 6. Nor did he disclose it to Dr. Webb. 9. July 15, 2011, prescription (assigned RX # 4002009 by the pharmacy) for 28 tablets of hydrocodone-acetaminophen (Lorcet) 10–650, a five-day supply. GE 10, at 64. This prescription also authorized a refill, which Respondent’s wife obtained on July 29, 2011. Id. As explained above, other than in June/July 2013, Dr. Webb did not prescribe this drug to Respondent’s wife, and no other physician prescribed hydrocodone to her until November 30, 2011. Respondent did not document the prescription in the patient file. GE 6. Nor did he disclose the prescription to Dr. Webb. 10. July 31, 2011, 12 tablets of zolpidem 10 mg, one tablet at bedtime, a 12-day supply, with one refill. GE 10, at 84; GE 11, at 12; GE 33, at 1–2. As found above, on July 7, 2011, Respondent’s wife obtained a refill of a prescription for 60 zolpidem issued by Dr. Webb, which, if taken as directed, should have lasted her until August 6, 2011 (this being in addition to the 30 zolpidem prescription Respondent issued on June 28, 2011). GE 11, at 12; Tr. 251–53. Respondent did not document the prescription in the patient file. See generally GE 6. Nor did he disclose the prescription to Dr. Webb. 11. August 13, 2011, 20 tablets of alprazolam (Xanax) 1 mg, one-half to one tablet, to be taken twice a day, a 10– 20-day supply. GE 22, at 1–2.9 Notably, on August 4, 2011, Respondent’s wife had refilled a prescription issued by Dr. Webb for 45 alprazolam 2 mg, a 15 day supply. GE 11, at 12. Thus, if taken as directed, this refill should have lasted Respondent’s wife until August 19, 2011. Moreover, on August 16, 2011, Dr. Webb issued Respondent’s wife a new prescription for 90 alprazolam 2mg, a 30-day supply. Id. Respondent did not document the prescription in his wife’s patient file. See generally GE 6.10 Nor 9 Although this prescription was filled on August 13, 2011, see GE–22, at 2, it does not appear on Mrs. Alexander’s PMP. See GE–11, at 12. However, a copy of the prescription and the fill sticker is in the record. GE 22. 10 The Respondent’s patient file for his wife mentions a prescription for 20 tablets of Xanax, 2 mg, dated July 13, 2011. See GE–6, at 1. The patient file says he prescribed Xanax because ‘‘Jill out of Xanax—in Philadelphia—Has had twitching— [illegible] Dr. Webb has not called back.’’ GE–6, at 1. Dr. Webb, however, had no notes in his file about any attempt by the Respondent to contact him on July 13, 2011. See Tr. 126. However, neither the E:\FR\FM\26OCN2.SGM 26OCN2 ethrower on DSK3G9T082PROD with NOTICES Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices did he disclose the prescription to Dr. Webb. 12. August 28, 2011, 12 tablets of zolpidem tartrate (Ambien) 10 mg, a 12day supply. GE 10, at 19. Notably, on August 16, 2011, Respondent’s wife had obtained and filled a new prescription from Dr. Webb for 60 zolpidem, a 30day supply. GX 11, at 12. If taken as directed, Dr. Webb’s prescription should have lasted Respondent’s wife until September 15, 2011. Moreover, as found above, Respondent had also provided a refill when he issued the July 31, 2011 prescription (RX# 443737), and this refill was still available to his wife on August 28, 2011. GE 11, at 12. Respondent did not document the prescription in the patient file. See generally GE 6. He also did not disclose the prescription to Dr. Webb. 13. September 6, 2011, 12 tablets of zolpidem tartrate (Ambien) 10 mg, a 12day supply, this being a refill authorized by Respondent’s July 31, 2011 prescription. GE 11, at 12. As discussed in the preceding paragraph, Dr. Webb’s August 16, 2011 prescription should have lasted Respondent’s wife until September 15, 2011. In addition, Respondent’s August 28, 2011 prescriptions provided his wife with additional medication in excess of what Dr. Webb had prescribed. As found above, Respondent did not document the original prescription in the patient file nor disclose it to Dr. Webb. See generally GE 6. 14. September 28, 2011, 16 tablets of hydrocodone/apap 10/650, a four-day supply with one refill. See GE 10, at 64. As explained above, other than in June/ July 2013, Dr. Webb did not prescribe this drug to Respondent’s wife, and no other physician prescribed hydrocodone to her until November 30, 2011. Respondent did not document the prescription in the patient file. See GE 6. Nor did he disclose the prescription to Dr. Webb. 15. October 11, 2011, 20 tablets of zolpidem tartrate (Ambien) 10 mg, one tablet at bedtime, a 20-day supply. GE 10, at 84; GE 11, at 11; GE 34, at 1–2; Tr. 249. Of note, on September 19, 2011, Respondent’s wife had refilled Dr. Webb’s August 16, 2011 prescription and obtained 60 tablets, a 30-day supply. GE 11, at 12. If taken as directed, the September 19 refill should have lasted Respondent’s wife until October 19. GE 11, at 12; Tr. 248–49. Respondent did not document the prescription in the patient file. See PMP reports, nor the copies of the prescriptions, support a finding that Respondent issued an alprazolam prescription on or about this date. VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 generally GE 6. Nor did he disclose it to Dr. Webb. 16. October 20, 2011, 16 tablets of hydrocodone-acetaminophen (Lorcet) 10–650, a four-day supply, this being a refill of the September 28, 2011 prescription. GE 10, at 64. As explained above, other than in June/July 2013, Dr. Webb did not prescribe this drug to Respondent’s wife, and no other physician prescribed hydrocodone to her until November 30, 2011. As found above, Respondent did not document the prescription or the refill in the patient file. See GE 6. Nor did he disclose the prescription to Dr. Webb. 17. November 13, 2011, 18 tablets of clonazepam 2mg, a six-day supply. GE 10, at 19. Notably, on November 3, 2011, Respondent’s wife had refilled a prescription issued by Dr. Webb on October 19, 2011 for 45 dosage units, a 15 day supply. GE 11, at 11. If taken as directed, the November 3 refill should have lasted Respondent’s wife until November 18, 2011. Moreover, on November 15, 2011, only two days after filling the prescription she obtained from her husband, Respondent’s wife obtained a further refill of Dr. Webb’s prescription for 45 dosage units of clonazepam. GE 11, at 11. Respondent did not document the prescription in the patient file. See generally GE 6. Nor did he disclose it to Dr. Webb. 18. November 25, 2011, 10 tablets of clonazepam 2 mg, a three-day supply. GE 10, at 63. If taken as directed, by itself, the November 15, 2011 refill should have lasted Respondent’s wife until November 30, 2011. Respondent did not document the prescription in the patient file. GE 6. Nor did he disclose it to Dr. Webb. 19. November 29, 2011, four tablets of hydrocodone/acetaminophen (Lorcet) 10–650 mg, one tablet to be taken four to six times a day, a one-day supply. GE 26. Respondent did not document the prescription in the patient file. GE 6. He also did not disclose the prescription to Dr. Webb. 20. Also on November 29, 2011, one Diastat Acudial, 5–7.5–10 mg kit. GE 10, at 92; GE 11, at 11; GE 28, at 1. Diastat Acudial is a rectal suppository of diazepam, which is also a benzodiazepine and a schedule IV controlled substance.11 Tr. 260–61; 21 CFR 1308.14(c). Respondent did not document the prescription in the patient file. See GX 6. Nor did he disclose it to Dr. Webb. 11 Dr. Chambers, the Government’s Expert testified that this prescription ‘‘is a bit puzzling because it’s clear she’s taking oral meds and usually that’s reserved for people who can’t take’’ the oral form of the drug. Tr. 259. PO 00000 Frm 00007 Fmt 4701 Sfmt 4703 49709 21. December 5, 2011, 10 tablets of hydrocodone-acetaminophen (Lorcet) 10–650, a three-day supply. GE 10, at 63. Respondent did not document the prescription in the patient file. See generally GE 6. Nor did he disclose it to Dr. Webb. 22. December 27, 2011,12 30 tablets of zolpidem tartrate (Ambien) 10 mg, one tablet a day at bedtime, a 30-day supply. GE 10, at 80; GE 21, at 1–2. However, on December 16, 2011, Respondent’s wife had obtained a refill of Dr. Webb’s August 16, 2011 prescription for 60 dosage units, a 30-day supply. GE 11, at 11. Thus, if taken as directed, the December 16 refill should have lasted Respondent’s wife until January 15, 2012. In Respondent’s patient file for his wife, he documented: ‘‘Jill not sleeping. Holiday schedule at Mississippi Neuropsychiatric—stress of house repossession and moving in with mother-in-law. Erratic. Bugs. Ambien 10 mg #30 [one to two orally at bedtime]. No response on-call dr.’’ GE 6, at 1. Respondent did not disclose the prescription to Dr. Webb. 23. January 7, 2012, 28 tablets of zolpidem 10 mg, a 28-day supply. GE 10, at 63. As found above, on December 16, 2011, Respondent’s wife had obtained a refill of Dr. Webb’s prescription and obtained medication that should have lasted her until January 15, 2012. Moreover, on December 27, 2011, she filled the prescription Respondent wrote her for 30 more tablets. Respondent’s patient file for his wife does not document the issuance of a zolpidem prescription on this date, but rather on January 10, 2012. See generally GE 6. That entry states: ‘‘Jill Philadephia at M-I-L house,’’ ‘‘Pills discarded—tension—No vehicles (Bankruptcy).’’ GE 6, at 2. The entry then lists a prescription for 30 Ambien 10 mg, with a dosing instruction of one tablet by mouth per day. Id. Moreover, Respondent did not disclose the prescription to Dr. Webb. 24. January 16, 2012, 30 tablets of alprazolam (Xanax) 2 mg, to be taken ‘‘as directed.’’ 13 GE 23, at 1–2. However, on January 5, 2012, Respondent’s wife had refilled a prescription (Rx# 976879) issued by Dr. Webb for 45 tablets, a 1512 The Government established that this was a Tuesday. Tr. 190. 13 While neither PMP report contains an entry for an alprazolam prescription issued by Respondent for his wife on this date, Government Exhibit 23 contains a copy of the prescription and the fill sticker showing that on January 16, 2012, Respondent issued, and his wife filled a prescription for 30 alprazolam 2 mg. Notwithstanding that the prescription appears to be dated ‘‘1/16/11,’’ the fill sticker states that the prescription was written on ‘‘01/16/12.’’ GX 23, at 1–2. E:\FR\FM\26OCN2.SGM 26OCN2 ethrower on DSK3G9T082PROD with NOTICES 49710 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices day supply, and that prescription had an additional refill remaining which Respondent’s wife obtained on February 14, 2012. GE 11, at 10. In his wife’s patient file, Respondent wrote: ‘‘Dr. Webb wants Jill to come in. Difficult [with] transportation—Will Rx 10 day supply til 1/26/12—Webb aware— Xanax 2 mg #30 [two orally three times a day].’’ GE 6, at 2. Dr. Webb testified, however, that neither Respondent nor Respondent’s wife ever told him about any prescription issued by Respondent.14 Tr. 115–17, 119, 138, 174–75; see also R.D. 16 (Finding of Fact No. 28). 25. February 26, 2012, 20 tablets of diazepam 5 mg, a six-day supply. GX 11, at 10. Of note, on February 23, 2012, Respondent’s wife had obtained and filled a new prescription from Dr. Webb for 45 alprazolam 2 mg, a 15-day supply; this prescription (Rx# 982872) also authorized three refills. Id. at 10– 11. Diazepam and alprazolam are both benzodiazepines and are used to treat anxiety. Tr. 259. Dr. Webb did not prescribe diazepam to Respondent’s wife. See generally GE 11; Tr. 204; GX 5. Respondent did not document the prescriptions in his wife’s patient file. See GE 6. Nor did he disclose the prescription to Dr. Webb. 26. March 4, 2012, 30 tablets of zolpidem10 mg, a 30-day supply. GE 10, at 13; GE 11, at 10. Of note, on February 23, 2012, Respondent’s wife obtained and filled a prescription from Dr. Webb for 30 zolpidem, a 15-day supply. GE 11, at 10. If taken as directed, Dr. Webb’s prescription should have lasted Respondent’s wife until March 9, 2012. Moreover, Dr. Webb’s Feb. 23 prescription provided for two refills, the first of which Respondent’s wife obtained on March 19, 2012, respectively. GE 11, at 10. Respondent did not document the prescription in the patient file. See generally GE 6. Nor did he disclose the prescription to Dr. Webb. 27. March 12, 2012, 12 tablets of alprazolam (Xanax) 2 mg, one tablet to be taken three times a day, a four-day supply. GE 10, at 80; GE 20. As found above, on February 23, 2012, Dr. Webb issued a prescription for 45 tablets of alprazolam 2 mg, a 15-day supply, which authorized three refills. GE 11, at 9–10. In the patient file, Respondent wrote: ‘‘Out of Xaax [sic] x 5 days— Jerky & twitching—feels like Extreme anxiety—digging at arms [-] delusional parasitosis? Will give 4 day supply— [illegible] talk to Dr. Webb—Xaax [sic] 2 mg #12,’’ followed by the dosage instruction of one tablet by mouth, three 14 January 16, 2012 was a Monday. Tr. 190. VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 times a day.’’ GE 6, at 3. Respondent’s wife had available a refill of Dr. Webb’s February 23 prescription which she could have filled on this date (without being early) but which she did not fill until March 19, 2012. GE 11, at 10. Respondent did not disclose the prescription to Dr. Webb. 28. March 12, 2012, 30 tablets of zolpidem 10 mg, 30-day supply. GE 10, at 80. As found above, on March 4, 2012, Respondent prescribed 30 zolpidem (a 30-day supply) for his wife which she filled the same day. GE 11, at 10. If taken as directed, Respondent’s March 4 prescription should have lasted until April 3, 2012. Also, Dr. Webb’s Feb. 23, 2012 prescription (for 30 tablets) authorized multiple refills and Respondent’s wife obtained a refill on March 19, 2012. Id. Respondent did not document the prescription in his wife’s patient file. See GE 6. Nor did he disclose the prescription to Dr. Webb. 29. April 1, 2012, 24 tablets of zolpidem tartrate (Ambien) 10 mg, a 24day supply. GE 10, at 13; GE 11, at 10. Putting aside that Respondent’s March 4 prescription should have lasted through April 3, 2012, as found above, Respondent’s wife obtained 30 tablets on March 12 when she filled his prescription and another 30 tablets on March 19, when she refilled Dr. Webb’s Feb. 2, 2012 prescription. GE 11, at 10. Respondent did not document the prescription in his wife’s patient file. See GE 6. Nor did he disclose the prescription to Dr. Webb. 30. April 2, 2012, 120 units of hydrocodone-homatropine syrup (Hycodan), one teaspoon every four to six hours as needed. GE 19, at 1–2.15 Respondent did not document the prescription in his wife’s patient file. See GE 6. Nor did he disclose the prescription to Dr. Webb. 31. June 18, 2012, 20 tablets of alprazolam (Xanax) 2 mg, one tablet to be taken twice a day, a 10-day supply. GE 10, at 75; GE 11, at 9; GE 15, at 1– 2; Tr. 262. Respondent’s wife still had a refill remaining on Dr. Webb’s Feb. 23, 2012 prescription for 45 alprazolam, which she filled on July 5, 2012. GE 11, at 9. Respondent did not document the prescriptions in his wife’s patient file. See generally GE 6. Nor did he disclose the prescription to Dr. Webb. 32. July 17, 2012, 20 tablets of alprazolam (Xanax) 2 mg, one tablet twice a day, a 10-day supply. GE 10, at 13; GE 11, at 9; see Tr. 262–63. As noted above, on July 5, 2012, Respondent’s 15 Although this prescription does not appear on either of the PMP reports, the Government produced both the prescription and the fill sticker showing that the drug was dispensed on April 2, 2012. See GE 19, at 2. PO 00000 Frm 00008 Fmt 4701 Sfmt 4703 wife obtained 45 tablets (15 days) of alprazolam when she refilled Dr. Webb’s prescription. GE 11, at 9. In a note (dated July 14, 2012) in his wife’s patient file, Respondent wrote: ‘‘she had done very well without medicine—even though extremely stressful living conditions. . . . 4 month no meds— depressed, crying, jittery—Has been in contact [with] Dr. Webb. . . . She feels self harm—but no SI. Xanax 2 mg #20 6 day supply.’’ GE 6, at 4; Tr. 130. Respondent did not disclose the prescription to Dr. Webb, and Dr. Webb did not talk to the Respondent’s wife on July 14, 2012. See generally GE 5; Tr. 131. Dr. Webb also testified that neither Respondent nor Respondent’s wife ever told him about any prescription issued by Respondent. Tr. 115–17, 119, 138, 174–75; see also R.D. 16 (Finding of Fact No. 28). 33. August 13, 2012, 30 tablets of hydrocodone/acetaminophen, 10–650, one tablet every four hours, a five-day supply. GE 10, at 80; GE 11, at 9; GE 16, at 1. Respondent did not document the prescription in his wife’s patient file. See GE 6. Nor does the PMP report show that any other doctor prescribed hydrocodone to Respondent’s wife between December 22, 2011 and December 16, 2012. GE 11, at 8–10. Respondent did not disclose the prescription to Dr. Webb. 34. October 5, 2012, 12 tablets of alprazolam (Xanax) 2 mg, a four-day supply. GE 10, at 22; GE 11, at 9. On September 24, 2012, Dr. Webb prescribed and Respondent’s wife filled a prescription for 45 alprazolam 2 mg, a 15-day supply, which also provided for two refills. GE 11, at 9. If taken as directed, Dr. Webb’s prescription should have lasted until October 9, 2012. In his wife’s patient file, Respondent wrote: ‘‘Dr. Webb Rx Xanax—She is out 2 days early—Laceration/cutting—severe anxiety & depression—arms excoriated No return call from weekend MD—I have to leave to work out of town Xanax 2 mg #12 Walgreens 3–4 day supply through weekend.’’ GE 6, at 5. While the note also appears to state ‘‘aware -,’’ Dr. Webb did not have any notes in his file regarding any calls from Respondent on October 5, 2012, Tr. 131, and I find that Respondent did not disclose the prescription to Dr. Webb. I also find that Respondent’s wife did not disclose the prescription. Tr. 174–75. 35. December 22, 2012, 15 capsules of Dextroamphetamine-Amphetamine ER 20 mg, a five-day supply. GE 11, at 8. While Dr. Webb had prescribed this drug to Respondent’s wife, see id., Respondent did not disclose the prescription to Dr. Webb. Nor did E:\FR\FM\26OCN2.SGM 26OCN2 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices ethrower on DSK3G9T082PROD with NOTICES Respondent document the prescription in his wife’s patient file. See GE 6. 36. January 11, 2013, 10 tablets of alprazolam (Xanax) 2 mg, a three-day supply. GE 10, at 21; GE 11, at 8. According to the PMP report, on January 10, 2013, Respondent’s wife refilled a prescription issued by Dr. Webb 16 (Rx #996307) for 45 tablets of alprazolam 2 mg, a 15-day supply. Id. If taken as directed, the January 10 refill provided enough medication to last Respondent’s wife until January 25. The PMP report also shows that on December 30, 2012, Respondent’s wife had refilled a different prescription issued by Dr. Webb 17 (RX #2703928) for 45 tablets of alprazolam 2 mg, a 15-day supply. Id. If taken as directed, the December 30 refill provided enough medication to last Respondent’s wife until January 14, 2013. Respondent did not document the prescription in his wife’s patient file. See generally GE 6. Nor did he disclose the prescription to Dr. Webb. 37. January 11, 2013, six capsules of temazepam, a three-day supply. GE 11, at 8. According to the PMP report, on January 10, 2013, Respondent’s wife refilled a prescription issued by Dr. Webb for 30 capsules of the drug, a 30day supply. Id. If taken as directed, the January 10 refill provided enough medication to last Respondent’s wife until February 9, 2013. Respondent did not document the prescription in his wife’s patient file. See GE 6. Nor did he disclose the prescription to Respondent. 38. January 23, 2013, 15 tablets of alprazolam 2 mg, to be taken ‘‘as directed.’’ 18 GE 17; GE 10, at 79; GE 11, at 7. An entry in Respondent’s file (dated January 20, 2013) states ‘‘Jill has opened sore on nose,’’ ‘‘arms—del. parastosis [sic]—arms,’’ ‘‘cutting— Anxiety/depression,’’ ‘‘Out of her Xanax—inconsolable,’’ ‘‘weekend—No return from on-call,’’ ‘‘Xanax #15,’’ ‘‘will contact Dr. Webb in Am,’’ ‘‘No HI/ SI,’’ and a dosing instruction of ‘‘TID prn.’’ GE 6, at 5. Dr. Webb’s patient file for his wife does not document a call from the Respondent on or near this date. See GE 5; Tr. 131–32. I therefore find that Respondent did not disclose the prescription to Dr. Webb. 39. January 23, 2013, 30 tablets of hydrocodone/apap 10–650, a five-day supply. GE 11, at 7. Respondent’s wife had obtained prescriptions on December 16 The prescription was originally issued on July 26, 2012 and provided five refills. GE 11, at 8. 17 The prescription was originally issued on November 6, 2012. GE 11, at 8. 18 Both the prescription label and the PMP report list this as being a 30-day supply. See GE 17; GE 10, at 79. However, according to Respondent’s note in the file, the dosing instruction was take the drug three times a day as needed. VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 16, 2012 for 20 tablets for hydrocodone/ apap 7.5/500 (a two-day supply) and on December 18, 2012 for 20 tablets of hydrocodone/apap 10/500 (a five-day supply) from Dr. Pecunia. GE 11, at 8. However, she was not regularly being prescribed hydrocodone. See generally GE 11. Respondent did not document the prescription in his wife’s patient file. See GE 6. Nor did he disclose the prescription to Dr. Webb. 40. February 5, 2013, eight tablets of alprazolam 2 mg, a two-day supply. GE 10, at 86; GE 11, at 7; GE 40, at 2. In his wife’s patient file, Respondent wrote: ‘‘Agitated—open sore on nose & hair line—Back from attempted trip— weathered out—returned with tons of anxiety—ran out of meds while OOT 19—Minneapolis.’’ GE 6, at 6. The note further states: ‘‘Xanax #8 CVS Hattiesburg Zoloft #7’’ and ‘‘Filled Dr. Webb in on Travel—Jill did.’’ GE 6, at 6. Respondent did not, however, disclose the prescriptions to Dr. Webb. 41. February 27, 2013, 10 tablets of alprazolam 2 mg, a three-day supply. GE 6, at 6; GE 10, at 86; GE 11, at 7. On February 19, 2013, Respondent’s wife filled a prescription written by Dr. Webb for 45 alprazolam 2 mg, a 15-day supply. GE 5, at 70; GE 11, at 7. If taken as directed, Dr. Webb’s prescription should have provided Respondent’s wife with enough medication to last until March 6, 2013. In his wife’s patient file, Respondent wrote: ‘‘Anxious about marital situation—sores on nose/forehead will not heal—No HI/ SI—out of her meds early—Out of Xanax,’’ ‘‘Xanax #10 [one orally three times a day] CVS Hardy St (enough for weekend) (Monday: Dr. Webb refilled for her).’’ GE 6, at 6. 42. March 27, 2013, 14 tablets of alprazolam (Xanax) 2 mg, one tablet to be taken three times a day as needed, a five-day supply, which was filled the next day.20 GE 36; GE 10, at 86; GE 11, at 7. On March 19, 2013, Respondent’s wife had refilled a prescription issued by Dr. Webb for 45 alprazolam 2 mg, a 15-day supply. GE 11, at 7. If taken as directed, the refill of Dr. Webb’s prescription should have provided Respondent’s wife with enough medication to last until April 3, 2013. A note dated ‘‘3/28/13’’ in his wife’s patient file, states: ‘‘Marital/physical/ mental stress. Sky high Marriage Workshop in Montana just accentuated—depilitating hairline— [illegible] meds needs plastic surg[ery] 19 The ALJ presumed, with reason, that ‘‘OOT’’ is an abbreviation for ‘‘out of town.’’ R.D. 22 n.32. 20 Although the PMP entry (as well as Respondent’s note) are dated March 28, 2013, the prescription was written on March 27. See GE 36, at 1. PO 00000 Frm 00009 Fmt 4701 Sfmt 4703 49711 to fix—Out of Xanax early—rebound anxieties—self-harm—Xanax #14—CVS Hardy St.’’ GE 6, at 7. The note also includes the following addendum: ‘‘Dr. Webb aware—he called in Restoril/ Zoloft & the Xanax (3/30/13).’’ Id. Dr. Webb, however, was not aware of this prescription. Tr. 132–33; 174–75. Further, Dr. Webb’s file contains no documentation of any contact by Respondent around March 28 through 30. Tr. 133; see generally GE 5; GE 7– 9. Notably, Respondent did not note what dose of Xanax he prescribed or the dosing instructions. See GE 6, at 7; see Tr. 266, 287–88. 43. May 10, 2013, 14 tablets of alprazolam (Xanax) 2 mg, one tablet to be taken three times a day as needed, a four-day supply. GE 10, at 86; GE 11, at 7; GE 37, at 1–2. On April 30, 2013, Respondent’s wife obtained a refill of a prescription issued by Dr. Webb for 45 alprazolam 2 mg, a 15-day supply. GE 11, at 7; Tr. 267. If taken as directed, the refill of Dr. Webb’s prescription should have provided Respondent’s wife with enough medication to last until May 15, 2013. Respondent did not document the prescription in his wife’s patient file. GE 6. Nor did he disclose the prescription to Dr. Webb. 44. May 13, 2013, 12 tablets of alprazolam (Xanax) 2 mg, one tablet to be taken three times a day, a four-day supply. GE 10, at 21; GE 11, at 7; GE 41, at 1–2. Respondent wrote in his wife’s patient file: ‘‘Out of Xanax 2 days early—she says repeated [illegible] calls—no answer—No healing on face/ arm—repeated re-openings. I am scheduled OOT next 4 days—Xanax #12 [once orally three times a day].’’ GE 6, at 8. Respondent had already prescribed a four-day supply of Xanax to his wife on May 10; additionally, Respondent’s wife still should have had two days’ worth of Xanax left from Dr. Webb’s April 30 refill. GE 11, at 7; Tr. 267. Respondent did not disclose the prescription to Dr. Webb. While the note also states that Respondent prescribed ‘‘Ambien 10 for sleep,’’ GE 6, at 8, the record does not contain a zolpidem prescription with this date. 45. May 20, 2013, 20 tablets of zolpidem 10 mg, one tablet at bedtime, a 20-day supply. GE 10, at 85; GE 11, at 7; GE 38, at 1–2. Respondent’s patient file contains no note for a prescription issued on this date. GE 6, at 8. On May 23, 2013, Dr. Webb prescribed 30 du of another sleep medication, Restoril 30 mg (temazepam), with five refills, to Respondent’s wife. GE 5, at 102; GE 11, at 6; Tr. 133–34. Moreover, the PMP report shows that Dr. Webb had been prescribing temazepam with refills to Respondent’s wife beginning on July 26, E:\FR\FM\26OCN2.SGM 26OCN2 ethrower on DSK3G9T082PROD with NOTICES 49712 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 2012 and had not issued a zolpidem prescription to her since February 23, 2012, which she last refilled more than a year earlier on April 12, 2012. GE 11, at 7–10. Respondent did not discuss the prescription with Dr. Webb. Tr. 133. In an entry dated ‘‘5/23,’’ Respondent wrote: ‘‘Dr Webb—started Zoloft & Buspar—And [R]estoril[.] Ambien discarded—only Restoril.’’ GE 6, at 8. As also found above, Respondent had previously prescribed temazepam for his wife on January 11, 2013. GE 11, at 8. 46. July 1, 2013, 20 tablets of hydrocodone/acetaminophen (Lorcet), 10–650, a five-day supply.21 GE 10, at 93; GE 11, at 6; GE 27, at 1. In his wife’s patient file, Respondent wrote: ‘‘Her mother in hospital in Jackson—dying— in ICU/hospice—she had seizure— injured shoulder/rib finger. Fractured teeth. Would not go to ER—Lorcet 10/ 650 #20,’’ which was followed by illegible handwriting. GE 6, at 9; Tr. 134. Respondent did not discuss those injuries with Dr. Webb at any point; further, Respondent’s wife had an appointment with Dr. Webb on July 1. Tr. 134. While Dr. Webb did not prescribe any medications to Respondent’s wife at this visit, she did fill a prescription for 90 capsules of Adderall XR 20 (amphetamine), which Dr. Webb issued on June 28, 2013. GE 11, at 6; Tr. 273. Also, on June 28, 2013, she had obtained from Dr. Webb and filled new prescriptions for 45 alprazolam 2 mg, a 15-day supply, and 30 temazepam 30 mg, a 30-day supply. GE 11, at 6. 47. July 7, 2013, 12 tablets of alprazolam (Xanax) 2 mg, one tablet to be taken twice a day, a six-day supply. GE 35, at 1–4; see GE 10, at 41; GE 11, at 6; Tr. 268–69. However, if taken as directed, the June 28 alprazolam prescription from Dr. Webb should have provided enough medication to last Respondent’s wife until July 13, 2013. In his wife’s patient file, Respondent wrote: ‘‘She is out of her Xanax early. Dr. Webb is aware of the tremendous stress of her mother’s illness. No return call on-call MS Neuro [illegible] Xanax #12/Lorcet #12 Walgreens.’’ GE 6, at 9; Tr. 135. Dr. Webb’s file for Respondent’s wife does not document a call from Respondent on this date. See generally GE 5; GE 7–9; Tr. 135. 48. July 7, 2013, 12 tablets of hydrocodone/apap 10–650 mg, one tablet to be taken four to six times a day, a two-day supply. Respondent’s note in his wife’s patient file does not discuss his reason for prescribing hydrocodone. 21 See GE–14, at 59 (admitting to calling in a prescription for Lorcet in July). VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 See GE 6, at 9. Respondent did not disclose the prescription to Dr. Webb. 49. July 25, 2013, 12 tablets of hydrocodone/apap, 10–650, one tablet every six hours as needed, a three-day supply. GE 10, at 21; GE 11, at 5; GE 42, at 1–2. Respondent did not document this prescription in his wife’s patient file. See generally GE 6. He also did not disclose the prescription to Dr. Webb. 50. July 29, 2013, eight tablets of alprazolam 2 mg, one tablet to be taken three times a day as needed, a two-day supply. GE 10, at 85; GE 11, at 5; GE 39, at 1–2. The PMP shows that on July 19, 2013, Respondent’s wife had obtained a refill of a prescription issued by Dr. Webb for 45 alprazolam 2 mg, a 15-day supply. GE 11, at 6. If taken as directed, the refill should have provided Respondent’s wife with enough medication to last until August 3, 2017. In his wife’s patient file, Respondent wrote: ‘‘Out of Xanax—buried her mother—funeral—Dr. Webb back Thursday. Xanax #8 [once orally three times a day].’’ GE 6, at 9; Tr. 136. Dr. Webb testified that he did not receive any message or have any contact with Respondent on this day, Tr. 136, and there is nothing in Dr. Webb’s file for Respondent’s wife that indicates that he was contacted by Respondent around July 29, 2013. See GE 5; GE 7–9. I find that Respondent did not disclose the prescription to Dr. Webb. 51. August 15, 2013, 14 tablets of hydrocodone/apap 10–650, one tablet every four to six hours as needed, a twoday supply. GE 10, at 21; GE 11, at 5; GE 43, at 1–2. Respondent did not document the prescription in his wife’s patient file. See generally GE 6. Nor did he disclose the prescription to Dr. Webb. 52. August 22, 2013, 15 tablets of alprazolam (Xanax), 2 mg, one tablet to be taken three times a day, a five-day supply. GE 10, at 67; GE 11, at 5; GE 24, at 1–2. According to the PMP report, Dr. Webb issued his last alprazolam prescription to Respondent’s wife on July 31, 2013 for 45 tablets, a 15-day supply, and the PMP report contains no entry for any refill of this prescription. GE 11, at 1–5. The PMP report further shows that on August 5, 2013, Dr. Webb had re-commenced prescribing clonazepam, a different benzodiazepine. GE 11, at 5; see also GE 5, at 71. In an entry in his wife’s patient file dated ‘‘8/ 24/13,’’ Respondent wrote: ‘‘Following [her mother’s] death, she has been very labile. Dr. Webb has tried multiple medications. Jill is very morose, often cannot stop crying. Denies SI/HI—No self-harm this month.’’ GE 6, at 10. Continuing, the note states: ‘‘Multiple Rx & calls to Dr. Webb. Could not reach PO 00000 Frm 00010 Fmt 4701 Sfmt 4703 this weekend—Rx: Xanax #12 [once orally three times a day]’’ and ‘‘[w]ill update Dr. Webb.’’ GE 6, at 10; Tr. 136– 37. However, there is nothing in Dr. Webb’s file for Respondent’s wife that indicates that he was contacted by the Respondent around August 22, 2013 and Dr. Webb testified that Respondent never disclosed any of the prescriptions. See GE 5; Tr. 137. I find that Respondent did not disclose the prescription to Dr. Webb. 53. September 5, 2013, 24 tablets of alprazolam (Xanax), 2 mg, an eight-day supply. GE 10, at 21; GE 11, at 5. The Respondent recorded in his wife’s patient file: ‘‘Will not leave room— depressed—needs to get back with Dr. Webb—anorexic—very anxious/ depressed—Xanax #20 [once orally three times a day].’’ GE 6, at 10. Respondent did not disclose the prescription to Dr. Webb. Dr. Webb’s Testimony Regarding Respondent’s Prescriptions Asked if there were ‘‘any risks’’ in Respondent’s wife ‘‘receiving prescriptions from someone other’’ than himself, Dr. Webb testified that ‘‘this particular patient . . . has some severe problems[,] and takes a high dose of medication. . . . my concern is that I’m keeping a close tab on it, but if there’s somebody out there writing that I don’t know about, that’s dangerous.’’ Id. at 120. Dr. Webb explained that Respondent’s prescribing was dangerous because ‘‘you’re going above the maximum dose that should be prescribed and more medicines can lead to sedation, more sedation, difficulty, death, loss of balance, falls, poor judgment, things like that.’’ Id. at 121. Dr. Webb also explained that the prescriptions ‘‘interfered with [my] treatment for her, because I wasn’t seeing the real patient, because there’s a ghost writer out there that I don’t know about.’’ Id. Dr. Webb testified that ‘‘I have certain timed prescriptions and if that timed prescription is getting gapped . . . by another prescription, it’s distracting me from my decisionmaking.’’ Id. He also testified that this would ‘‘[m]ost definitely’’ interfere with his decisionmaking, in that ‘‘[if] she was out of . . . my medicines, then I would hear a distressed phone call . . . and I would need to reorient my treatment for her [by] put[ting] her in the hospital.’’ Id. at 122. In a July 13, 2011 entry in Respondent’s wife patient file, which documents a prescription for 20 Xanax 2mg, but for which there is no corresponding prescription in either the PMP reports or the other exhibits, E:\FR\FM\26OCN2.SGM 26OCN2 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices Respondent wrote: ‘‘Dr. Webb has not called back.’’ GX 6, at 1. Regarding this entry, Dr. Webb testified that there are ‘‘five other [ ]’’ practitioners that work at his clinic and the phones are covered 24 hours a day, seven days a week. Tr. 124. Moreover, his clinic has an answering service for after office hours and weekends. Id. at 125. Dr. Webb testified that Respondent’s note did not state what time the call to him had been placed and he maintained that he ‘‘always called patients back.’’ Id. at 126. Dr. Webb further testified that the file did not contain a note ‘‘from the answering service or the secretary that on [this date] a message was left.’’ Id. Dr. Webb then testified that his ‘‘file contains every telephone message notation that is given to our office’’ and that ‘‘the actual notes written by the office staff are kept,’’ and that there are no notes for this date.22 Id. The closest phone message by date are two messages on July 21, 2011 from Respondent’s wife; the earlier message states ‘‘please call asap’’ and the later message states ‘‘urgent out of med.’’ GE 5, at 137. Notably, the PMP shows that on the same day, Dr. Webb issued to Respondent’s wife a new prescription for 45 alprazolam 2 mg. GE 11, at 12. The Government also asked Dr. Webb about Respondent’s note dated ‘‘1/16/ 12’’ (prescription No. 24). The note appears as follows: ethrower on DSK3G9T082PROD with NOTICES Dr. Webb wants Jill to come in Difficult s transportation Will Rx 10 day supply til 1/26/12—Webb aware— Xanax 2 mg # 30 22 On cross-examination, Dr. Webb acknowledged that the clinic’s answering service would not necessarily page the on-call doctor just for a patient ‘‘who needs a normal refill.’’ Tr. 156. However, Dr. Webb maintained that if a patient was out of medicine early and in distress, the answering service would pass this message on to the doctor. Id. at 157, 182. He also testified that ‘‘[i]t’s our policy to call everybody back.’’ Id. at 183. Dr. Webb further testified that to the best of his recollection, all of the phone call messages ‘‘should be’’ in the patient file for Respondent’s wife. Id. at 159. Dr. Webb testified that he did not ‘‘find it odd’’ that there was ‘‘only [in the words of Respondent’s counsel] a handful of . . . call notes in her file.’’ Id. at 160. Putting aside that there are 48 such notes in the patient file, Dr. Webb explained that Respondent’s wife ‘‘typically kept pretty good contact. Knowing that I’d be in the daytime, she’s in the medical field, she knows night time phone calls . . . aren’t very productive . . . [b]ecause you’re unlikely to have your doctor on call.’’ Id. He also testified that Respondent’s wife had not expressed any dissatisfaction with her being able to reach him other than when he was not on call during a weekend. Id. at 184. Dr. Webb further testified that his practice has not received complaints about the clinic’s ‘‘on call service’’ and ‘‘the inability to connect with a doctor’’ or to ‘‘get a request fulfilled by a doctor.’’ Id. at 161. The ALJ specifically found that Dr. Webb’s testimony was credible. R.D. 8. VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 [ ] po TID prn GX 6, at 2, Tr. 126. Dr. Webb testified that he was not sure if the prescription referenced in the note was ‘‘attached to the January 16 or January 26th note.’’ Tr. 127. He then testified that he had no contact with Respondent’s wife on January 16, 2012,23 but that on January 26, 2012, he called in a prescription for 45 Xanax 2 mg, three tablets a day. Id. at 127–28; see also GX 5, at 69. He also had no contact with Respondent on January 26, 2012.24 Tr. 128. The Government also asked Dr. Webb about an entry Respondent made on July 7, 2013, which states in part: ‘‘She’s out of her Xanax early. Dr. Webb is aware of the tremendous stress of her mother’s illness. No return on call.’’ GX 6, at 9; see also Tr. 135. As found above, on this date, Respondent prescribed to his wife 12 Xanax and 12 Lorcet. GX 6, at 9; GX 11, at 6. Notably, the PMP report shows that Respondent’s wife had refilled a prescription issued by Dr. Webb on May 23, 2013 for 45 Xanax (15 day supply) on June 21, 2013, and had obtained and filled a new prescription for 45 Xanax (15 day supply) on June 28, 2013.25 GX 11, at 6. After again noting that there was no record of any call to the clinic or its answering service by Respondent on this date, Dr. Webb testified that the fact that Respondent’s wife was out of her Xanax early would concern him ‘‘[b]ecause it lets me know that she’s using more than prescribed and would . . . ha[ve] me wondering whether we need to put her in the hospital, to monitor her, or [if] there [are] other issues going on.’’ Tr. 135–36. An entry in Respondent’s file dated July 29, 2013 states: ‘‘Out of Xanax— buried her mother—funeral—Dr Webb back Thursday Xanax #8’’ and includes dosing instructions of ‘‘po TID.’’ GX 6, at 9. As found above, the PMP report shows that Respondent issued his wife 23 With respect to Respondent’s wife, Dr. Webb testified that early in his treatment of her, she lost a bottle of Xanax which prompted him ‘‘to shorten the leash and give smaller amounts.’’ Id. at 162. 24 Dr. Webb also identified other instances in which Respondent made notes in his wife’s file documenting phone calls but Dr. Webb’s file contained no record that the call was made to his office. See Tr. 129–33,137. These include notations for Feb. 18, 2012 (‘‘called answering service for Dr. Webb No response—weekend Dr’’); Oct. 5, 2012 (‘‘No return call from weekend doctor’’); Jan. 20, 2013 (‘‘No return from on call’’ and ‘‘Will contact Dr. Webb in AM’’); Mar. 28, 2013 (‘‘Dr. Webb aware.’’); Aug. 24, 2013 (‘‘Will update Dr. Webb’’). The record, however, does not establish whether these notations were intended to document that Respondent or his wife had placed the call and/or notified, or intended to notify Dr. Webb. 25 Respondent’s wife also obtained a refill of the June 28, 2013 prescription for 45 Xanax on July 10, 2013, and a refill of the May 23, 2011 prescription (which also was for 45 Xanax) on July 19, 2013. GX 11, at 6; Tr. 144. PO 00000 Frm 00011 Fmt 4701 Sfmt 4703 49713 a prescription for eight Xanax 2 mg. GX 11, at 5. The PMP report also shows, however, that Respondent’s wife refilled prescriptions for 45 Xanax (15 day supply) issued by Dr. Webb on both July 10 and 19, 2013. GX 11, at 6. Id. Dr. Webb testified that he spoke with Respondent’s wife on July 30, 2013, and prescribed more Xanax to her and referred her to a psychologist. Tr. 136. According to the PMP report, Dr. Webb issued Respondent’s wife a prescription for 45 Xanax on July 31, 2013. GX 11, at 5. Dr. Webb testified that in his view ‘‘gap filling . . . means that there’s a prescription that is used to get [the patient] to the next authorized refill.’’ Tr. 138. Dr. Webb then cited stolen medication as an example of when a gap fill would be appropriate. Id. Dr. Webb also testified that if a doctor sets up a regimen of refills, the patient ‘‘needs to follow that timeline. And so, if they’re short on set refills, that’s a problem.’’ Id. at 139. On cross-examination, Respondent’s counsel asked Dr. Webb about a statement he wrote in a memo he prepared following a January 11, 2016 meeting with DEA personnel in which he noted that Respondent’s ‘‘prescriptions consisted of large quantities of controlled medications such as Xanax, [h]ydrocodone, [and] Ambien.’’ Tr. 151; see also GX 8. Asked how he concluded that the prescriptions were for large quantities, Dr. Webb explained that ‘‘[t]hey appeared to be more than just a day or so’’ and that while ‘‘some were less than 10 . . . my recollection was that more, most of them were more than 10’’ tablets. Tr. 151. Dr. Webb subsequently explained that he had Respondent’s wife ‘‘up to max doses of all prescriptions . . . that I had her on’’ and that ‘‘[a]nything over was a potentially large impact.’’ Id. at 152. He added that ‘‘[m]aybe the number isn’t large, but the potential impact is large.’’ Id. Asked by Respondent’s counsel if he ‘‘agree[d] that compared to [his] prescribing, the number of controlled substances prescribed by [Respondent] was relatively small,’’ Dr. Webb answered ‘‘correct,’’ but then added that it was ‘‘[m]ore than I prescribe and moving into . . . above my max and serious harm.’’ 26 Id. at 152– 53. 26 As found above, the evidence shows that Respondent issued a number of prescriptions, especially for zolpidem, that provided quantities that were for periods considerably longer than two to three days. Specifically, Respondent authorized prescriptions on May 20, 2013, for 20 dosage units (du) of zolpidem (a 20 day supply); on April 1, E:\FR\FM\26OCN2.SGM Continued 26OCN2 49714 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices ethrower on DSK3G9T082PROD with NOTICES Dr. Webb testified that he had been ‘‘very careful in regimenting’’ the prescriptions he issued for Respondent’s wife based on his ‘‘years of working with her’’ and her visit in either 2002 or 2009 (or both years) when ‘‘she went to Sierra Tucson’’ to be evaluated for Xanax abuse. Tr. 146–47. According to Dr. Webb, Sierra Tucson did not diagnose her as being addicted or abusing controlled substances. Id. at 164. While he ‘‘was not aware’’ that she was ‘‘overtly abusing,’’ Dr. Webb testified that she ‘‘[s]he had been early . . . sometimes on her prescriptions.’’ Id. at 185. Dr. Webb also cited ‘‘the severity of her illness’’ as a reason for why he generally limited the prescriptions to 15 days.27 Id. Dr. Webb subsequently testified that ‘‘[s]ince I did not know about the other prescriptions out there, it did not appear to be as big of an issue. She was early a day or two here and there. But, yes, substance dependence was on the radar.’’ Id. at 194. On still further questioning by the Government, Dr. Webb testified that if he had known about Respondent’s prescriptions to his wife during the 2011–2013 period, this ‘‘would have’’ changed his opinion as to whether she was abusing controlled substances. Id. at 196–97. On questioning by the ALJ, Dr. Webb testified that ‘‘[k]nowing what [he] know[s] today . . . I would have suggested’’ that she undergo ‘‘inpatient’’ treatment to address both ‘‘her primary . . . and secondary problem[s].’’ Id. at 197. Asked about the notes he maintained for his phone conversations with Respondent’s wife, which typically were no more than one or two lines, Dr. Webb maintained that he and Respondent’s wife ‘‘always had in-depth conversations’’ and that ‘‘[t]hey were usually fairly long, like 20, 30, 45 minute phone conversations.’’ Id. at 169. He also testified that his notes met the standard for documentation. Dr. Webb acknowledged, however, that he is ‘‘not perfect’’ and that there may have been some phone calls that he had with 2012, for 24 du of zolpidem (24 days); on March 4, 2012, for 30 zolpidem (30 days); on October 11, 2011, for 20 du of zolpidem (20 days); on July 31, 2011, for 12 du (12 days) plus a refill; on June 28, 2011, for 30 du (30 days); on May 6, 2011, for 30 du (30 days); on March 30, 2011, for 30 du (15 days), and on January 31, 2011, also for 30 du (15 days). GX 11, at 7, 10–14. He also authorized prescriptions on July 7, 2013, for 12 du of alprazolam (6 day supply); on March 28, 2013, for 14 du of alprazolam (5 days); and on both July 17, 2012 and June 18, 2012, for 20 du of alprazolam (10 days). GX 11, at 6–7, 11. 27 Dr. Webb testified that he ‘‘feel[s] that . . . she’s primarily a psychiatric disorder first, and then medication difficulty second, rather than the other way around.’’ Id. at 165; id. at 194–95. VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 Respondent’s wife ‘‘that were not noted.’’ Id. at 203. Dr. Webb acknowledged that psychiatrists do not typically prescribe opioids such as hydrocodone; he testified that he had ‘‘written maybe less than five [prescriptions] in my last 20 years.’’ Id. at 170–71. Asked why he issued the June 28, 2013 prescription for 10 tablets of hydrocodone/ acetaminophen 10/650 mg, see GX 11, at 6, Dr. Webb testified that the prescription was filled ‘‘at Beemon, so potentially she had come up from Hattiesburg.’’ Tr. 171. Continuing, Dr. Webb testified: ‘‘[t]hat was right around her mother’s death, mother’s sickness, and maybe she told me she was out of her medicine potentially. I’d want to see my note if I put it in there.’’ Id. Subsequently, Dr. Webb added that Respondent’s wife had undergone a procedure by a different doctor and received hydrocodone about nine or ten days earlier, but he could not otherwise recall the circumstances. Id. at 172. Dr. Webb then admitted that this prescription ‘‘certainly could’’ interfere with the treatment being provided by the other doctor. Id. However, he explained that Respondent’s wife ‘‘was out of town from her treating . . . physician, and out of her opiate for pain relief.’’ Id. at 186. Moreover, this was the only instance in which he prescribed hydrocodone or any other opioid to her. Id. at 200–01. Dr. Webb testified that he did not have a conversation with Respondent’s wife about Respondent’s prescribing controlled substances to her until either late 2015 or 2016, after he was contacted by the Diversion Investigator. Id. at 175. Dr. Webb testified that he ‘‘believe[d] at times’’ that Respondent was trying to help his wife and that ‘‘[t]hey have had lots of difficulty.’’ Id. at 177. Based on the four phone calls he had with Respondent during the 2011 through 2013 period and because Respondent would ‘‘[t]ypically call if there would be a crisis,’’ Dr. Webb acknowledged that Respondent’s wife was often in crisis. Id. at 178. On subsequent questioning, Respondent’s counsel suggested that just as the other doctors in his practice can appropriately prescribe gap fills to his patients because they can access the patient’s file and see ‘‘abuse issues in the patient file . . . someone living with the patient can assess that person.’’ Id. at 196. Dr. Webb took issue with this suggestion, explaining that ‘‘the difficulty with living with someone is that you’re not potentially an expert.’’ Id. Dr. Webb testified that Respondent’s notes did not contain a patient history PO 00000 Frm 00012 Fmt 4701 Sfmt 4703 and specific diagnosis. Id. at 188. As for whether the notes contained evidence of an examination, Dr. Webb explained that, ‘‘other than the subjective notes that are listed, no.’’ Id. The Testimony of the Government’s Expert The Government called R. Andrew Chambers, M.D., to testify as an expert in psychiatry, the proper prescribing of controlled substances and their effects on patients, and on addiction; the ALJ accepted Dr. Chambers as an expert in these areas. Tr. 246. Dr. Chambers obtained his B.S. degree in Chemical Physics from Centre College, Danville, Kentucky in 1991 and his M.D. degree from the Duke University School of Medicine in 1996. GX 12, at 1. Thereafter, he completed a residency in psychiatry at the Yale University School of Medicine in 2002 and a fellowship in addiction psychiatry at the Indiana University (IU) School of Medicine in 2012. Id. From 2002 through 2003, he served as an Assistant Professor of Psychiatry, Division of Substance Abuse at Yale; from 2003 through 2009, he served as an Assistant Professor of Psychiatry at the Indiana University School of Medicine; and since 2010, he has been an Associate Professor of Psychiatry with Tenure at the IU School of Medicine. Id. Also since 2012, Dr. Chambers has been the Director of the Fellowship Training Program in Addiction Psychiatry at the IU School of Medicine. Id. Dr. Chambers has had appointments in the Department of Psychiatry at various hospitals including the West Haven (Connecticut) VA Hospital, Yale New-Haven Hospital, Connecticut Mental Health Center, and Indiana University Health Hospitals. GX 12, at 2. He is board certified in general adult psychiatry and addiction psychiatry. Tr. 227–28. He has also been published in the areas of psychiatry and addiction ‘‘on the order of 50 times’’ in peerreviewed journals, published in multiple textbooks, and made a number of presentations to professional conferences. Id. at 229–30; GX 12, at 3– 7, 11–18. Dr. Chambers testified that treating patients with mental illness and addiction is his ‘‘bread and butter work.’’ Tr. 231. He testified that he is ‘‘familiar with and utilize[s] a broad range of pharmacotherapies for both mental illness and addiction, as well as psychotherapies for both mental illness and addiction’’ and that ‘‘the vast majority of [his] patients have both mental illness and addiction.’’ Id. at 231–32. He testified that he is familiar with the prescribing of controlled E:\FR\FM\26OCN2.SGM 26OCN2 ethrower on DSK3G9T082PROD with NOTICES Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices substances to psychiatric patients, the risks of controlled substances, and the typical practices undertaken by psychiatrists to mitigate the risks or dangers of the diversion of controlled substances. Id. He further testified that he is familiar with the standards for prescribing controlled substances in Mississippi, as well the circumstances under which a doctor may fail to conduct himself in a manner that comports with a legitimate medical purpose or is within the course of proper professional practice. Id. at 233. While Dr. Chambers had never previously testified in a proceeding based on the Mississippi law and the State Board’s rules, id. at 240, he testified that he had reviewed the State’s laws and rules. Id. at 236. He further testified that the Mississippi provisions on prescribing controlled substances are ‘‘fairly universal.’’ Id. at 237. Dr. Chambers explained ‘‘that the codes around the country are informed by the medical profession . . . and there are universal, fairly universal ethical standards, evidence-based standards that are scientific that then inform the code.’’ Id. at 240. Dr. Chambers subsequently cited the Patient Record provisions of the State Board’s Rule 1.4 as one such standard that is accepted across the medical profession. Id. at 244. Turning to Respondent’s October 11, 2011 prescription for 20 zolpidem (No. 15 above), Dr. Chambers noted that the refill obtained by Respondent’s wife on September 19 was for 30 days and should have lasted until October 19. Id. at 249. Dr. Chambers testified that Respondent’s October 11 prescription was ‘‘a problem.’’ Id. As to why, Dr. Chambers explained: ‘‘[t]his is a prescription for a controlled substance that is coming from a separate source that’s occurring on top of a prescription from the primary psychiatrist, and the combination of these kinds of controlled substances could have serious consequences.’’ Id. Dr. Chambers further explained that ‘‘Ambien and other benzoate medications have central nervous system effects that can cause oversedation, memory disturbances, and, if taken in combination with other drugs, especially opioids, death.’’ Id. at 250. While Dr. Chambers testified that 10 milligrams (the dose prescribed by Respondent) ‘‘is not the maximum dose of Ambien that can be prescribed,’’ a patient obtaining the drug from another source ‘‘would be of concern.’’ Id. Dr. Chambers explained that the concern would be driven by the ‘‘the size of the dose, the nature of the drug,’’ as well as ‘‘the fact the primary physician who is prescribing the drug . . . would not . . . necessarily [be] aware’’ that the VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 patient was obtaining the drug ‘‘from a separate source.’’ Id. According to Dr. Chambers, when a patient is obtaining a drug from other sources, ‘‘it can create a great deal of confusion on the part of the primary prescriber about the effects or side effects of the drug and the mental status of the patient.’’ Id. at 250–51. Continuing, Dr. Chambers testified that ‘‘there are also synergistic overdose risks of being on both doses at the same time. . . . It’s obviously not the dose that the primary prescriber wants because they would have prescribed that dose if that’s what they wanted.’’ Id. at 251. Dr. Chambers then explained that ‘‘the same concerns’’ were raised by the zolpidem prescription Respondent wrote on July 31, 2011 because the refill his wife obtained on July 7, 2011 of Dr. Webb’s prescription for 30 days of zolpidem should have lasted for another week. Id. at 252. Dr. Chambers identified several instances in which Dr. Webb’s prescriptions ‘‘overlapped’’ with those of Respondent.28 These included the zolpidem prescription (for 30 tablets/30 days) which Respondent issued on May 6, 2011 and the refills obtained on both April 9, 2011 and May 23, 2011 by Respondent’s wife of Dr. Webb’s Feb. 3, 2011 prescription for 60 tablets (a 30day supply). Tr. 255. Dr. Chambers testified that while ‘‘[t]he one before is a relatively minor overlap[,] about one or two days, which is fairly insignificant, . . . the secondary overlap is more significant.’’ Id. The prescriptions presented the same concerns of danger to the patient and confusion for the doctor. Id. Dr. Chambers subsequently testified that it does not matter whether Dr. Webb’s prescriptions were new prescriptions or refills because the prescription ‘‘is essentially an instruction both to the pharmacist and the patient for the daily dosing and the number of days that the patient should follow that dosing.’’ Id. at 257. Dr. Chambers then testified that ‘‘[r]efills is [sic] just a way to communicate to the patient and the pharmacist . . . that you’re allotting the schedule out in 28 This particular overlap involved Respondent’s zolpidem prescription of March 30, 2011 for 30 tablets (a 15-day supply) (Rx No. 4 above) and an April 9 dispensing of a zolpidem prescription. Tr. 254–55. Dr. Chambers testified that ‘‘on April 9, 2011, Dr. Webb issue[d] the same med for a 30-day supply. So now you have an example of Webb unknowingly overlapping a controlled substance with Dr. Alexander that happened on 3–30.’’ Id. at 255. The PMP report shows, however, that the latter event did not involve the issuance of a new prescriptions but a refill of Dr. Webb’s February 3, 2011 prescription. See GE 11, at 13. Nonetheless, Respondent’s prescription still created an overlap. PO 00000 Frm 00013 Fmt 4701 Sfmt 4703 49715 monthly, usually monthly allotments, and then it starts over.’’ Id. Continuing, Dr. Chambers explained that ‘‘the bottom line is that when the doctor writes the prescription and the pharmacist records it . . . there’s a complete understanding of what’s expected. There should be no haziness on the part of the doctor or the pharmacist or the patient . . . about the expected rate of consumption . . . from the start to finish, whether it be a 30-day supply or a 30-day supply with two refills.’’ Id. at 257–58. Next, the Government questioned Dr. Chambers about the combination of prescriptions/refills that Respondent’s wife filled on November 28–29, 2011. Id. at 258–59. Specifically, on November 28, 2011, she refilled a prescription issued by Dr. Webb for 45 clonazepam (15 days) as well as filled a new prescription issued by Webb for 90 capsules of Adderall. GX 11, at 11. The next day, she filled prescriptions for a one-day supply of Diastat Acudial (a rectal suppository of diazepam) and a one-day supply (four tablets) of hydrocodone/apap 10/650. Id. Dr. Chambers noted that the Diastat prescription ‘‘is a bit puzzling because it’s clear [Respondent’s wife] is taking oral meds and usually [Diastat] [is] reserved for people who can’t take [drugs] oral[ly].’’ Id. He then testified that ‘‘it’s a very high risk and potentially lethal combination one day after receiving a 15-day supply of’’ clonazepam and ‘‘also a stimulant’’ from Dr. Webb. Id. Dr. Chambers then testified that ‘‘[t]he combination of an opioid and a benzodiazepine is causing an unprecedented epidemic of death in the United States . . . because when the two drugs are together they synergistically suppress consciousness and breathing and the central nervous system.’’ Id. Addressing the prescriptions which Respondent issued on both June 18 and July 17, 2012, for 20 du of alprazolam 2 mg (both being for a 10-day supply),29 each of which was filled on the date of issuance, as well as the refill she obtained on July 5, 2012 of Dr. Webb’s prescription for 45 du (15 days), Dr. Chambers testified that the prescriptions had different dosing instructions and overlapped. Id. at 262–63. Dr. Chambers then testified that ‘‘we don’t know what she was actually taking, but if she was actually taking the dose per both doctor’s directions, she would be taking 10 milligrams of [alprazolam] a day . . . which would render me unconscious.’’ Id. at 263. As another example of Respondent’s issuance of an alprazolam 29 See E:\FR\FM\26OCN2.SGM prescription Nos.31 and 32 above. 26OCN2 49716 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices ethrower on DSK3G9T082PROD with NOTICES prescription which resulted in ‘‘nearly a week of overlap of the same dose by two different doctors’’ and raised ‘‘the same concern,’’ Dr. Chambers identified Respondent’s March 28, 2013 prescription for 14 dosage units (three tablets a day), which overlapped with a refill his wife obtained on March 19, 2013 for 45 tablets (also three tablets a day).30 Id. at 266. Addressing Respondent’s July 7, 2013 prescriptions (Nos. 46 and 47) for 12 du of hydrocodone/apap 10/650 (two-day supply) and 12 alprazolam 2 mg (sixday supply), Dr. Chambers characterized the latter prescription as ‘‘remarkable,’’ explaining that ‘‘it’s prescribed at the same time [Respondent] also prescribed hydrocodone, an opioid medication, also on the same day, again introducing the risk of a potentially lethal overdose.’’ Id. at 268–69. Dr. Chambers noted that Respondent’s prescribing was ‘‘also occurring in the context of’’ an amphetamine (Adderall XR) prescription for 30 days issued by Dr. Webb ‘‘six days’’ earlier. Id. at 269. Dr. Chambers then testified that if Respondent’s wife was ‘‘taking as prescribed, she’s doing what street people call a speedball, which is essentially an amphetamine/opioid combination with a . . . benzodiazepine garnish.’’ Id. Dr. Chambers also noted that on July 1, 2013, the same day that Respondent’s wife filled the Adderall 31 30 Other examples of overlapping prescriptions involved Respondent’s May 10 and May 13, 2013 prescriptions (Nos. 43 and 44 above) for 14 and 12 dosage units of alprazolam 2 mg, which overlapped with the refill his wife obtained on April 30, 2013 of Dr. Webb’s prescriptions for 45 du (15 days) of alprazolam 2 mg. Tr. 267. According to Dr. Chambers, even Respondent’s May 10 and May 13 prescriptions overlapped, and that on May 13, ‘‘what you actually have here is a triple compounding of the dosing based on the disposition dates and the way the drugs were instructed to be taken.’’ Id. Dr. Chambers then explained that ‘‘that is a very dangerous dose that would normally never be prescribed outside an intensive care unit.’’ Id. at 267–68. Another such example is Respondent’s July 29, 2013 alprazolam prescription which provided eight tablets (TID). Dr. Chambers testified that Respondent’s prescription provided a dosing instruction of eight milligrams a day, Tr. 271, which is supported by the PMP report which lists the prescription as providing a two-day supply. GE 11, at 5. However, the dosing instruction on the actual prescription was TID, or one tablet, three times a day. GX 39, at 1–2. Nonetheless, the prescription overlapped with the refill Respondent’s wife obtained on July 19, 2013 for Dr. Webb’s prescription for 45 tablets (15 days), and on July 31, 2013, she obtained a new prescription from Dr. Webb for 45 tablets (15 days). GE 11, at 5. However, even if Respondent’s prescription only had a dosing instruction of 3 tablets a day, if she took the medications as prescribed by both Dr. Webb and Respondent for the period in which the prescriptions overlapped, she would have taken six tablets a day or 12 milligrams. Tr. 272. 31 Dr. Chambers explained that while Adderall is ‘‘used for a number of clinical indications, VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 prescription, Respondent had also issued her a prescription for 20 hydrocodone/apap 10/650, which she filled that day. Id. at 269–70. Dr. Chambers noted that this hydrocodone prescription was ‘‘a higher dose than what Dr. Webb did.’’ Id. at 273. He explained that ‘‘there’s a combination of multiple overlaps of multiple classes of addictive substances that can produce overdose and severe psychiatric disturbances from two different physicians who are apparently in no communication.’’ Id. Continuing, he explained that ‘‘in [his] experience, when you see all three of those [classes of] drugs represented and you have multiple physicians contributing to it . . . that indicates a patient who is in serious trouble iatrogenically . . . meaning harmed being caused through medical practice.’’ Id. at 274. Asked if he had ‘‘reach[ed] a conclusion’’ as to whether Respondent’s prescriptions were issued ‘‘within the usual course of professional conduct,’’ Dr. Chambers testified: I did. It is not [the] usual course of clinical conduct for someone with mental illness or someone without mental illness to be prescribed these combinations of drugs and to have these combinations being prescribed by different individuals who—one of who— where there’s not communication or awareness that it’s happening. So it’s not only not usual clinical practice, but the reason it’s not usual is because it’s dangerous for patients and harmful. So it’s actually not only is it not usual, it’s essentially malpractice. Id. at 275. On further questioning, Dr. Chambers testified that the Respondent’s prescribing was not ‘‘legitimate medical practice’’ and the prescriptions were ‘‘non-therapeutic.’’ Id. Dr. Chambers further testified that ‘‘[b]ased on the entirety of the evidence [he] reviewed,’’ Respondent’s prescribing did not comply with either the Controlled Substances Act or the standards of the Mississippi Administrative Code, including the State’s requirements for patient records. Id. at 276, 278. Addressing the patient file Respondent maintained on his wife, Dr. Chambers testified that ‘‘there is a paucity of data to support the diagnosis or the prescription . . . that the note is built around. There’s a lack of physical or mental status exam that normally would be in a note like this to justify and direct the use of controlled substances.’’ Id. at 277. Dr. Chambers further observed that in comparing the including attention deficit disorder [and] narcolepsy . . . [i]t also has significant street value’’ and is ‘‘basically a cousin of methamphetamine.’’ Tr. 270. PO 00000 Frm 00014 Fmt 4701 Sfmt 4703 patient file with the PMP data, ‘‘about 40 percent of the prescriptions’’ had ‘‘no corresponding note at all. There’s no data. There’s no diagnosis, no detailing of what was prescribed.’’ Id. He also observed that ‘‘there are instances where the dosing or type of the drug is left out of the record.’’ Id. at 278. Dr. Chambers identified Respondent’s entry dated January 16, 2012 (Prescription No. 24) as one such example. Tr. 278. As found above, on this date, Respondent prescribed 30 alprazolam 2 mg ‘‘to be taken as directed’’ and wrote in the note: ‘‘Dr. Webb wants Jill to come in. Difficult [with] transportation—will Rx 10 day supply till 1/26/12—Webb aware— Xanax 2 mg’’ with a dosing instruction of ‘‘po TID.’’ GE 6, at 2. Dr. Chambers testified that ‘‘this note does not have a diagnosis. It doesn’t have an examination to justify . . . why that prescription happened at that dose . . . was he aware of what the prescription was from another doctor? Was he continuing? Was there any plan to taper it?’’ Tr. 279. Dr. Chambers added that ‘‘he’s kind of writing as if the reason he’s doing it is because the patient can’t get to Dr. Webb, and he’s documenting that Webb is aware . . . but in review of Webb’s chart, there no indication that Webb was ever aware that this kind of stuff was going on.’’ Id. When then asked if a 10-day supply is ‘‘unusual for . . . a gap fill,’’ Dr. Chambers answered: . . . I think it’s unusual for one doctor to be gap filling another regardless of what the duration is, especially when there’s no knowledge that that’s happening. So any duration is odd, I think. I guess the longer the number of days the more concerning it is because you’re dispensing bigger doses. I mean, she’s got 30 tabs. That’s quite a bit. Id. at 280. Addressing Respondent’s note of February 18, 2012, Dr. Chambers acknowledged that it contained ‘‘a little bit more of what you could call a clinical assessment’’ in that Respondent described his wife’s symptoms. Id. at 281. Dr. Chambers observed, however, that the note did not indicate ‘‘how many he prescribe[d].’’ Id. As for Respondent’s statement that his wife was ‘‘[o]ut of her Xanax for . . . 10 days’’ and ‘‘[o]ut of her Ambien for a week,’’ GE 6, at 3, Dr. Chambers testified: It’s not clear exactly what that means, but I take it to mean that he is prescribing because she’s been out. And so, first of all, why is she out? Is it because she’s using it too rapidly? It’s just not clear. But he is filling the gap with an unclear amount and then suggesting by my read . . . [that] he’s documenting he’s contacting Dr. Webb, E:\FR\FM\26OCN2.SGM 26OCN2 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices ethrower on DSK3G9T082PROD with NOTICES informing them of this gap fill, the best I could tell. But what’s beginning to emerge here in this note and does come in later is that he is becoming—Dr. Alexander is becoming aware that she’s running out and I assume prematurely because when you look at the PDMP data from Dr. Webb, Dr. Webb is not creating gaps. . . . He is not leaving her hanging with no medication a whole lot of times. Id. at 281–82. Continuing on to the next note (March 12, 2012), Dr. Chambers testified that this was ‘‘the first time I’ve seen a diagnosis in the chart.’’ Id at 282. He then explained that ‘‘delusional parasitosis is a non-specific psychotic symptom,’’ and that while it can be caused by ‘‘a primary delusional illness . . . more commonly [it] is a sign of severe drug withdrawal’’ including ‘‘benzodiazepine . . . or even opiate withdrawal.’’ Id. at 282–83. Dr. Chambers testified that the behavior documented in the chart (jerking, twitching, and delusional parasitosis) ‘‘suggests extreme discomfort’’ and ‘‘could suggest vital sign changes [and] impending catastrophic withdrawal.’’ 32 Id. at 283. Dr. Chambers observed, however, that Respondent did not obtain his wife’s blood pressure and pulse or perform a mental status exam. Id. at 284. Respondent’s note of July 14, 2012 documents a prescription for 20 alprazolam 2 mg, a ‘‘6 day supply,’’ and states, among other things, that his wife had been off medications for four months and had been staying with her mother-in-law. GE 6, at 4. Regarding the note, Dr. Chambers testified that ‘‘I don’t know that she’s even around when this prescription happens. It’s just not clear where . . . she [is]. There’s no evidence that she’s even in front of him on July 14, and that’s also a concern.’’ Tr. 285. Dr. Chambers observed that, in the October 5, 2012 note (‘‘[s]he is out 2 days early’’), Respondent documented that his wife was ‘‘actually overusing the prescription that Dr. Webb ha[d] provided her. So he’s documenting evidence that she’s demonstrating abuse of these drugs and then he . . . say[s], ‘[s]he’s lacerating and cutting herself, severe anxiety and depression, arms excoriated. No return call from a weekend doctor. I have to leave to work out of town.’’’ Id. After criticizing Respondent for ‘‘abandoning the patient,’’ who was self-mutilating and in 32 Dr. Chambers further criticized Respondent because ‘‘the standard of care for the treatment of acute withdrawal’’ requires as part of ‘‘the basic response to get a blood pressure or a pulse,’’ and ‘‘[i]f these measures aren’t taken, people die routinely.’’ Id. at 284. VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 a ‘‘potentially life threatening withdrawal,’’ Dr. Chambers testified that Respondent’s ‘‘leaving for the weekend and leaving her with more medication unsupervised’’ is ‘‘of grave concern.’’ Id. Dr. Chambers offered similar testimony regarding Respondent’s May 13, 2012 note. See id. 288 (‘‘So again he’s now creating a track record in his . . . notation that the patient is essentially out of control and abusing Xanax and injuring herself. His response is to attempt to prescribe a combo of Xanax and Ambien . . . .). Respondent’s February 27, 2013 note states that his wife was ‘‘[a]nxious about marital situation.’’ As to the note, Dr. Chambers testified that ‘‘it’s not considered a normal medical practice’’ to treat family members and ‘‘that when it comes to controlled substances it’s a whole different ball game’’ when the prescription is ‘‘for a family member.’’ 33 Id. at 286–87. Dr. Chambers offered similar testimony with respect to Respondent’s March 28, 2012 note, which states: ‘‘Marital/physical/mental stress sky high—Marriage workshop in Montana just accentuated’’ and ‘‘Out of Xanax early—rebound anxiety—self harm.’’ GE 6, at 7. Dr. Chambers testified that he found that entry was ‘‘interesting because the marital, physical and mental stress . . . involves him, and he’s prescribing this medication to somebody who is in acute distress that’s ultimately related to the medication.’’ Tr. 287. Dr. Chambers also testified that Respondent’s notation of a prescription for ‘‘Xanax # 14’’ ‘‘is incomplete’’ because it does not state ‘‘the dose’’ or the patient’s instructions. Id. Subsequently, the Government asked Dr. Chambers to address ‘‘the situation 33 Dr. Chambers also testified that there is a prohibition against a psychiatrist treating a spouse for two reasons. Tr. 293. According to Dr. Chambers, the first reason is that the practice of psychiatry requires ‘‘getting inside the mind of the patient’’ and ‘‘is a very invasive process’’ and that ‘‘romantic and sexual . . . motives will contaminate the clarity of the practitioner. . . . A psychiatrist who is falling in love with his patient will begin to take actions that benefit . . . him or her rather than the patient.’’ Id. at 293–94. The second reason is that ‘‘there is an implicit power differential’’ between ‘‘a psychiatrist and a patient’’ and that ‘‘to exploit that power differential on a patient who’s vulnerable with mental illness through romantic or erotic counter-transference is regarded fairly much as a cardinal sin in psychiatry.’’ Id. at 294. Continuing, Dr. Chambers testified that in ‘‘many cases, these are patients who have already suffered physical and sexual abuse previously’’ and are ‘‘susceptible’’ to more abuse ‘‘later on.’’ Thus, if a ‘‘psychiatrist engages in a sexual relationship with a patient . . . the very real danger is [that] there could . . . be a revictimization . . . of the patient.’’ Id. at 295. Dr. Chambers also testified, however, that ‘‘[t]his standard is actually not true for other branches of medicine’’ such as family practice. Id. at 294. PO 00000 Frm 00015 Fmt 4701 Sfmt 4703 49717 where’’ a primary care doctor is prescribing to a patient who is also being treated by a psychiatrist. Id. at 291. Dr. Chambers testified that in his ‘‘own practice,’’ if a new patient is receiving psychoactive medication from another physician, he ‘‘will call them to stop that because you can’t have two chefs in the kitchen.’’ Id. Dr. Chambers then explained: If you have two chefs in the kitchen, this is the kind of stuff that can happen as you get chaos and harm and polypharmacy and no one understanding what is the illness versus what is [sic] the side effects of the medications, and it can lead to escalation of mental illness, addiction, and even death. Id. Finally, on direct examination, Dr. Chambers testified that ‘‘[a] competent psychiatrist would document [in the patient’s chart] if they knew that another doctor was prescribing controlled substances that were overlapping or representing a threat.’’ Id. at 298. A competent psychiatrist would also ‘‘take action to stop it or to stop their practice.’’ Id. On cross-examination, Dr. Chambers agreed that ‘‘[i]n many cases,’’ Respondent prescribed the same drugs to his wife as were prescribed by Dr. Webb. Id. at 307. Dr. Chambers also acknowledged that he had not examined Respondent’s wife and that ‘‘someone who sees her in person’’ is in a better position to evaluate her than a person who only reads her chart. Id. at 310. After accusing Dr. Chambers of making a ‘‘serious allegation []’’ when he testified that Respondent’s ‘‘wife was going through withdrawal’’ and which ‘‘could be interpreted as she was abusing controlled substances,’’ Respondent’s counsel asked Dr. Chambers whether he or Dr. Webb was in a better position to make that determination. Id. Dr. Chambers answered that Dr. Webb was, but noted that he ‘‘was looking at data from’’ Respondent and ‘‘had the ability to look at two charts.’’ Id. at 310–11; see also id. at 319 (Q. You don’t know if she was exhibiting physical characteristics that correspond to drug addiction. A. I can only go on what I’ve read.’’). Asked by Respondent’s counsel if ‘‘providing gap fills necessarily mean[s] there’s a drug abuse issue,’’ Dr. Chambers answered that ‘‘[i]t can mean.’’ Id. at 311. After Respondent’s counsel asserted that ‘‘[i]t can . . . it’s not definitive,’’ Dr. Chambers answered: ‘‘I don’t see gap filling happen[ing] in this case. There is no gap filling going on. There’s overlaying.’’ Id. After Respondent’s counsel asserted that Dr. Webb ‘‘ha[d] categorized the same E:\FR\FM\26OCN2.SGM 26OCN2 49718 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices ethrower on DSK3G9T082PROD with NOTICES evidence . . . as gap filling,’’ Dr. Chambers testified: ‘‘[i]t would surprise me if he’s seen the same evidence . . . It would surprise me because that’s not what I see in the data.’’ 34 Id. Assuming facts not in evidence, Respondent’s counsel then asked Dr. Chambers if ‘‘somebody who sees [the patient] regularly five or six times a week as a patient 35 or someone who’s paid to review her patient file’’ is ‘‘in a better position’’ to diagnose a patient as a substance abuser. Id. While Dr. Chambers agreed that a psychiatrist who saw the patient is in a better position to evaluate a patient, in response to the question of whether ‘‘it would not surprise [him] that Dr. Webb concluded that [Respondent’s wife] didn’t have a substance abuse issue,’’ Dr. Chambers explained that ‘‘[i]t wouldn’t’’ because Dr. Webb is ‘‘not an addiction psychiatrist.’’ Id. at 312–13. When subsequently asked by Respondent’s counsel if he ‘‘disagree[d] . . . with the doctor that’s seen her for 15 years five to six times a week with his diagnosis,’’ Dr. Chambers answered that he did.36 Id. See also id. at 319 (Q. ‘‘So it’s better to leave it to the psychiatrist who sees her five to six times a week over a 15-year period to make that decision.’’ A. ‘‘Well, not always. Not always, right.’’). Dr. Chambers acknowledged that Respondent’s and Dr. Webb’s dosing of alprazolam were ‘‘often in the same ballpark.’’ Id. at 317. However, Dr. Chambers explained that, while ‘‘taken separately both of the [doctors’] dose ranges might be acceptable, . . . if they’re . . . overlapping, that’s when you get into the danger.’’ Id. Dr. Chambers acknowledged, however, that ‘‘[n]o one’’ knows how much of the drug Respondent’s wife was taking. Id. at 318. Respondent’s counsel then asked Dr. Chambers if ‘‘you’re saying that she was addicted or . . . was abusing controlled substances . . . wouldn’t . . . the individual who prescribed her over 34 As found above, while Dr. Webb testified that gap filling ‘‘means a prescription that is used to get you to the next authorized refill’’ and gave various examples, including ‘‘something that would speak to a need for more medication,’’ his testimony was clear that with the exception of a prescription issued by ‘‘one of my on call doctors,’’ a gap fill by another provider was not appropriate. Tr. 138– 39, 192, 195–96. 35 Dr. Webb’s patient file contains progress notes for 10 visits by Respondent’s wife during the years 2011 through 2013. GX 5, at 42–53. Thus, contrary to the premise of the question, there is no evidence that Dr. Webb saw Respondent’s wife ‘‘five or six times a week as a patient.’’ Tr. 311. 36 While the ALJ admitted only Dr. Webb’s chart for Respondent’s wife during the years 2011 through 2013, Tr. 74, here again, there is no evidence in the entire record that Dr. Webb saw Respondent’s wife five to six times a week. VerDate Sep<11>2014 18:57 Oct 25, 2017 Jkt 244001 1500 doses of controlled substance in one year . . . be more responsible for that versus the individual who prescribed 200 doses of controlled substances a year?’’ Id. at 320. Dr. Chambers answered: ‘‘but what we’re seeing here, that’s not what happened. We’re seeing two people prescribing [to] one person.’’ Id. Continuing, Dr. Chambers explained that ‘‘it could be a totally different picture if . . . only Dr. Webb’’ was prescribing but he had ‘‘no idea what that whole trajectory would look like’’ and whether ‘‘[s]he might be more stable.’’ Id. Dr. Chambers held to his earlier testimony that having two physicians prescribe to Respondent’s wife was ‘‘creating chaos that could actually cause the treatment to get even worse’’ and ‘‘to evolve in the wrong direction.’’ Id. at 321. After Dr. Chambers acknowledged that ‘‘Dr. Webb prescribed a significant amount of controlled substances, Respondent’s counsel asked him if he ‘‘was aware that in 2011 [Respondent] only prescribed 128 dosage units to her?’’ 37 Id. at 321. After answering ‘‘yes,’’ Dr, Chambers added that ‘‘Dr. Alexander prescribed about 20 percent of the controlled prescriptions and Dr. Webb about 70 percent on average over three years. Id. Following questions about the relative amounts of controlled substances prescribed by Dr. Webb and Respondent, Respondent’s counsel asked Dr. Chambers if Respondent’s wife had ‘‘a substance abuse issue, . . . isn’t it logical that Dr. Webb would have as much, if not more, responsibility for that?’’ Id. at 322. Dr. Chambers disagreed, explaining: ‘‘not necessarily because Dr. Webb is not aware that . . . two doctors [were] putting drugs into one person.’’ Id. While Dr. Chambers acknowledged that there is evidence in Dr. Webb’s chart ‘‘that he had discussions’’ with Respondent about his wife, he found ‘‘no evidence at all . . . that [Dr. Webb] knew that [Respondent] was also prescribing controlled substances.’’ Id. 37 This, too, is a misstatement of the evidence. Rather, the evidence shows that during 2011, Respondent issued prescriptions for 206 dosage units of zolpidem, 151 dosage units of hydrocodone, 28 dosage units of clonazepam, 28 dosage units of alprazolam, and one kit of Diastat acudial. Respondent’s counsel also misstated the evidence when he asked Dr. Chambers if he was ‘‘aware [that] in 2012 Dr. Webb prescribed approximately 1720 dosage units of controlled substances versus the 132 that [Respondent] prescribed] to’’ is wife. Tr. 321. Rather, the evidence shows that Respondent prescribed 112 du of zolpidem, 94 du of alprazolam, 20 du of diazepam, 30 du of hydrocodone, 15 du of Adderall, as well as Hycodan cough syrup. PO 00000 Frm 00016 Fmt 4701 Sfmt 4703 Dr. Chambers testified that he did not see any notation in Dr. Webb’s patient file that he was aware that Respondent’s wife ‘‘was running out early and that [Dr. Webb] was filling earlier.’’ Id. at 328. Asked if he would be surprised that Dr. Webb testified that he was aware that Respondent’s wife was getting early refills, Dr. Chambers answered that he ‘‘would be’’ and explained that PMP ‘‘data doesn’t really reflect [that] there was a great deal of early refill activity going on from Webb by himself,’’ and while ‘‘[t]here may be a few instances of it, [it was] not very frequent.’’ Id. at 329. Dr. Chambers explained that Dr. Webb’s ‘‘prescribing shows a relative lack of overlap of his . . . prescriptions for controlled substances. And when I say ‘relative lack,’ I mean maybe a day or two,’’ which is ‘‘not really significant because people have got to go to the pharmacy.’’ Id. Respondent’s counsel then questioned Dr. Chambers about the alprazolam prescriptions which were issued by Dr. Webb and filled by Respondent’s wife on May 14, June 10, July 4, July 21, August 4, and August 16, 2011, and whether the overlap between the prescriptions concerned him. Id. at 331. Dr. Chambers acknowledged that the June 10, 2011 filling created an overlap of three/four days and was ‘‘on the margin’’ as did the August 16, 2011 filling. Id. at 331–32. Dr. Chambers also acknowledged that the July 21 prescription ‘‘would concern me.’’ Id. at 332. Dr. Chambers offered similar testimony with respect to several alprazolam prescriptions that Respondent’s wife filled on February 14 and 23, 2012, finding that the latter fill was ‘‘five days early’’ and ‘‘[t]hat’s when the red flag begins to go up.’’ Id. at 332– 33. Of note, however, several of these fills were actually refills of prescriptions written much earlier, see Tr. 333, and in any event, to the extent that Dr. Webb should have been aware that a previous prescription he issued had provided sufficient refills such that there was no reason to issue a new prescription on a particular date, Dr. Webb is not the respondent in this proceeding.38 Likewise, while Respondent’s counsel raised a series of questions as to whether the pharmacies that filled the prescriptions should not have dispensed various early refills, id. at 334–336, the 38 Specifically, Dr. Webb’s February 3, 2011 alprazolam prescription, which was for a 30-day supply, see GE 5, at 111, authorized five refills, and Respondent’s wife obtained refills which were authorized by this prescription on June 10 and July 4, 2011. See GE 11, at 12. However, on May 2, 2011, Dr. Webb issued Respondent’s wife an additional prescription for 30 days of alprazolam. GE 11, at 13; GE 5, at 111. E:\FR\FM\26OCN2.SGM 26OCN2 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices ALJ properly ruled that the conduct of the pharmacies is irrelevant. Id. at 336. Respondent’s counsel subsequently asked Dr. Chambers if the hydrocodone prescription which Dr. Webb issued on June 28, 2013 concerned him. Id. at 338. Dr. Chambers testified that he did ‘‘have a concern in that [Dr. Webb] is concurrently prescribing two other benzodiazepines at the same time,’’ these being temazepam and alprazolam. Id. at 338–39. Dr. Chambers also acknowledged that the Adderall prescription issued by Dr. Webb on this date created ‘‘a speedball.’’ Id. at 339. Continuing, Dr. Chambers testified: ethrower on DSK3G9T082PROD with NOTICES So that is a concern. When you step back from the record and you look at where—the opiate is the main threat actually, and when you look at the predominance of opiate prescribing over three years, the majority of it came from Dr. Alexander. So the number of opiates that were prescribed were quite rare. The incidents you’re putting in there— you’re pointing out is a concern, but . . . the relative frequency of which Webb did that was much, much, much lower than when Dr. Alexander [did] it, and that’s interesting because, as you pointed out, Dr. Webb is prescribing . . . three or four times more number of prescriptions. So it’s a matter of degree as well. Id. at 340. Asked if it is within the usual course of professional practice for a psychiatrist to prescribe an opiate, Dr. Chambers testified that a psychiatrist ‘‘may treat pain on occasion.’’ Id. at 341. While Dr. Chambers then testified that he was surprised that Dr. Webb had testified that that he had written the June 28, 2013 hydrocodone prescription knowing that another physician was prescribing the drug to Respondent’s wife and did so without consulting that physician, when Respondent’s counsel asked Dr. Chambers if this called into question Dr. Webb’s treatment of her, the ALJ properly sustained the Government’s objection. Id. at 341–42. Addressing the prescription for Diastat Acudial, a rectal suppository form of diazepam, Dr. Chambers testified that while Dr. Webb’s file shows that Respondent’s wife suffers from seizures, he did not see how administering Diastat would ‘‘be consistent with treating someone who was having a seizure.’’ Id. at 345. While Dr. Chambers testified that Valium (diazepam) and benzodiazepines ‘‘can be used to treat seizure disorder[s],’’ he added that these drugs ‘‘can also cause seizure disorders.’’ Id. at 346. Dr. Chambers subsequently testified that a rectal suppository might be used ‘‘to treat a seizure disorder if someone can’t take [the drug] orally, meaning [the patient] would be in status epilepticus, VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 like actively seizing and not conscious.’’ Id. Respondent’s Testimony at the State Board Hearing Regarding His Reasons for Issuing the Prescriptions At the January 2014 Board hearing which resulted in the suspension of his medical license, Respondent was asked to explain why he issued the prescriptions. GE 14, at 56. Respondent explained that his wife has a ‘‘fragile’’ psychiatric condition, which ‘‘became even more fragile’’ in ‘‘about November or December of last year.’’ Id. He testified that while ‘‘[t]here were times [that his wife] would run out of medicine and not decompensate . . . there was never a decompensation where she had her medicines.’’ Id. at 57. Respondent testified that ‘‘[w]ith [his] history, there was no way to call anyone else’’ and ask them to prescribe Xanax to his wife because anyone he knows would ‘‘be immediately suspicious that it was for me.’’ Id. at 58. According to Respondent, ‘‘as regards my wife herself, I would phone in usually a twoor three-day stop gap supply of medicines. And if you’ll look at the numbers dispensed, it’s usually 12, which would be a three-day supply for’’ her. Id. Continuing, Respondent testified that ‘‘[w]e tried to . . . contact [Dr.] Webb, but . . . you can’t get him at night, on weekends, and I don’t blame him. And as he always tells [my wife], this is a matter that she shouldn’t be running out prematurely.’’ Id. Respondent maintained that ‘‘[t]his happened . . . in December, in January, in February. I don’t think it happened in April or May.’’ Id. He further asserted that ‘‘[i]t was sporadic’’ and ‘‘was always for a confined number of pills, a small amount, that bridged her gap between obviously when she was in crisis and didn’t have any medicine.’’ Id. Respondent also testified that ‘‘we’ve got a baby here,’’ ‘‘I may be working out of town,’’ and ‘‘I’ve got to do something to calm this situation down.’’ Id. Respondent added that he ‘‘felt as if [he] was in an emergency situation.’’ Id. Apparently referring to the prescriptions he issued for hydrocodone, Respondent testified that ‘‘[w]hen that changes—there were two occasions in general’’ when he ‘‘called in.’’ Id. Respondent then related that a plastic surgeon had drained an abscess in his wife’s thigh and testified that he ‘‘noticed that there was one prescription for Lorcet then for a few, and it happened again in July of last year’’ when his wife’s mother died and his wife ‘‘had a seizure [and] fell,’’ suffering various injuries. Id. While Respondent PO 00000 Frm 00017 Fmt 4701 Sfmt 4703 49719 testified that ‘‘there was pain medicines [sic] then,’’ he added that ‘‘in general, the majority of the medicine were Xanax, two milligrams, three days’ supply were common.’’ Id. at 59–60. Respondent then maintained that his wife ‘‘would get in with Dr. Webb the following Monday morning, and he will refill everything.’’ Id. He further testified that ‘‘I think the record reflects that I filled in in times where I just didn’t think I had no other choice. I didn’t know what to do.’’ Id. Continuing, Respondent testified that ‘‘I have never denied that I called things in for Jill . . . I always thought that if called to task for it, the context would not speak for itself but would be evidenced by number, etcetera.’’ Id. at 61. Respondent then testified that he was monitored by the Board and that ‘‘[t]here’s not been any diversion. There has not been any suggestion of that and, fortunately, got a lot of urine tests that were negative. I only ever did what I did when I perceived I had no other options having exhausted anything else that I knew to do.’’ Id. Asked about the December 2012 Adderall prescription, Respondent stated that he did not ‘‘recall ever writing’’ the prescription and that his wife ‘‘was in the hospital in Hattiesburg at the time.’’ Id. at 62. Continuing, Respondent stated that ‘‘that one prescription doesn’t seem to fit for me. I don’t think that’s mine, but I would be glad if somebody had a copy of it to look at it.’’ Id. at 62–63. The prescription is, however, in the record of this proceeding. GE 18, at 102. It shows Respondent as the prescriber and Respondent offered no testimony in this proceeding disputing that he issued it. Id. Respondent also told the Board that his prescribing was ‘‘not a matter of judgment’’ but ‘‘a matter of heart.’’ GE 14, at 63. He further told the Board that: I never did anything that I didn’t think at the moment . . . was necessary, and I think if you look at the record you can see that. There can be no more. There can be no more. You know, if I have to call 911 every time, then I am Jill’s husband. I am not—I was never her doctor. I stopped gapped, but I can’t even do that anymore. I mean, I know that is a matter of fact going forward. Id. at 63–64. During cross-examination at the Board proceeding, Respondent admitted that he did not disclose that he had been issuing the prescriptions until he was asked by the Board. Id. at 64–65. He further asserted that he did not ‘‘come up with [his wife’s] regimen,’’ that he ‘‘didn’t change her regime,’’ and that he only ‘‘mirrored what her treating psychiatrist had done.’’ Id. at 65. E:\FR\FM\26OCN2.SGM 26OCN2 ethrower on DSK3G9T082PROD with NOTICES 49720 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices However, after a Board member identified multiple hydrocodone and Xanax prescriptions that he issued in July 2013 and asked if he thought ‘‘that’s wise,’’ Respondent stated that ‘‘I have to alter what I said. She also has a treating neurologist’’ (Dr. Bell) who ‘‘also does musculoskeletal medicine’’ and that when his wife ‘‘had a seizure’’ she saw the neurologist. Id. at 66. Respondent then explained that ‘‘[w]hen I say psychiatrist, that’s what Dr. Bell had given her for pain, and she ran out, and she was sitting constantly in the . . . [h]ospital.’’ Id. Respondent asserted that ‘‘that was an isolated incident there.’’ Id. During the Board proceeding, Respondent acknowledged that he had violated his RCA and an agreement with the Board. Id. at 68. He further asserted that he never issued the prescriptions ‘‘out of defiance[,] . . . self will, power, or arrogance’’ and that ‘‘[i]t was always done in a short stop gap times [sic] when I believed again . . . that there were no other options.’’ Id. at 69. Before the Board, Respondent further asserted that he did not notify Dr. Webb about the prescriptions because his wife ‘‘assured [him] that [Webb] was apprised of every situation.’’ Id. at 78. However, when a Board member noted that ‘‘[c]ommon sense would dictate as a physician [that] the next morning you pick up the phone and call this psychiatri[st] that’s taken care of [her] for 18 years and knows her probably better than any healthcare professional’’ and tell him ‘‘this is what happened last night, and this is what I did,’’ Respondent answered: ‘‘Not with every time.’’ Id. at 79. Asked more specifically why he did not talk to Dr. Webb, Respondent maintained that his wife told him that ‘‘[w]ith your Betty Ford attitude, he’s going to take me off my Xanax’’ and ‘‘I don’t want you to talk to him.’’ Id. at 80. While Respondent testified that he should ‘‘have overridden her concerns and intruded . . . upon her doctor/patient relationship,’’ he then added that ‘‘[i]n retrospect, I should have done that, more than the few times that I did do it. I certainly did it sometimes. I didn’t do it with every issuance herein.’’ Id. The same Board member noted that ‘‘there’s an insinuation that [Dr. Webb] knew something had happened and that weekend or something had happened and that emergency medicine had been called in’’ and asked ‘‘is that correct?’’ Id. Respondent answered: ‘‘I certainly know that certain times he did. I don’t know that at every time he did.’’ Id. Respondent added that he was ‘‘certain that the answering service’s message was, ‘[c]all Dr. Alexander.’ ’’ Id. at 80– VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 81. Respondent subsequently testified that ‘‘no, I didn’t do it every time. I have had the discussion with him.’’ Id. at 81. Respondent testified that when he would call Dr. Webb’s answering service, he would ‘‘ask [ ] for a call back from Dr. Webb or the doctor on call.’’ Id. at 84. When asked if he ‘‘communicate[d] to the answering service the gravity of the situation,’’ he admitted that he did not. Id. at 85. He then explained that ‘‘I think I communicated that it was a medicine shortfall and that we needed someone to remedy that.’’ Id. Respondent’s Case Respondent’s first witness was his wife. Tr. 357–401. Of consequence, the ALJ found ‘‘that her testimony was not helpful in resolving the issues in this case.’’ R.D. 9. Specifically, the ALJ found that ‘‘her testimony was confusing, lacked specificity, and, at times, was internally inconsistent’’ and that ‘‘she could not remember many details of the underlying events about which she was testifying.’’ Id. (citing Tr. 373–74, 376–77, 382, 384, 391). The ALJ also ‘‘found her responses to some questions to be evasive, and her demeanor to be somewhat combative.’’ Id. The ALJ also provided extensive reasons for why he gave ‘‘little credence to her testimony, and where it [was] contradicted by other evidence,’’ he did not find her testimony as credible. These included: She could not recall the number of times she had called Dr. Webb’s answering service and had not received a return phone call. Tr. 360–62. She could not provide an adequate explanation of why she continued to be Dr. Webb’s patient even though she was dissatisfied with his failure to return her phone calls. Tr. 361–62, 382, 391. In explaining her difficulty in recalling details from 2011 to 2013, she said she could not recall because that was ‘‘seven years ago.’’ Tr. 372. She testified that she did not have appointments with Dr. Webb between 2011 and 2013, yet Dr. Webb’s treatment notes document several appointments during that period. Compare GE 5, at 42–46, 49–53, with Tr. 386. She testified that she told Dr. Webb that she would only get her prescriptions from him, and that that had been her practice for the past three years, but later testified that she had this discussion with Dr. Webb in 2016. Tr. 363, 368, 398–99. She testified that she only used one pharmacy, but her PMP report shows she filled prescriptions at numerous pharmacies. GE 11; Tr. 369. She did not give a direct answer to the question of whether she had told Dr. Webb that the Respondent had provided her with prescriptions, and when she provided an example of when she had passed that information to Dr. Webb, the example was outside of the time range of the Respondent’s alleged violations. Tr. 360–63, 398–99. R.D. 9. PO 00000 Frm 00018 Fmt 4701 Sfmt 4703 Respondent’s wife testified that she is known by various names including Mona Jill Graham Alexander, Mona Jill Graham, Mona Jill G. Alexander, and Jill Alexander. Tr. 357–58. She testified that she has been a patient of Dr. Webb for 16 years and she would usually see Dr. Webb three times a year and speak on the phone two to three times a month for 30 minutes to one hour. Id. at 359. Respondent’s wife testified that during the 2011 through 2013 time period, she ‘‘would tell’’ Dr. Webb that Respondent was prescribing controlled substances for her, ‘‘especially if I got out of medication.’’ Id. at 360. I do not find this credible. Nor apparently did the ALJ. R.D. 16 (FoF #28: ‘‘Dr. Webb did not know that the Respondent was simultaneously prescribing controlled substances to Mrs. Alexander.’’) (citations omitted). While Respondent’s wife also testified that when she called after hours, ‘‘[n]o one would ever . . . call me back,’’ that this ‘‘was very frustrating’’ to her, and that she expressed her frustration to Dr. Webb, Tr. 360–61, the ALJ did not find this testimony credible. R.D. 15 n.21. Indeed, the ALJ specifically found credible Dr. Webb’s testimony that Respondent’s wife ‘‘never told [him] that she was dissatisfied with her ability to contact him or his office.’’ R.D. 15 (FOF #23.). I agree with these findings. Respondent’s wife testified that ‘‘[t]he only conversation we [she and Dr. Webb] ever had about [her husband’s prescribing] was to let me be the only one that prescribes you this medicine.’’ Tr. 363. She initially testified that this conversation ‘‘probably [occurred] towards the end’’ of 2013, id. at 391, only to testify that the conversation occurred ‘‘after [she] got discharged from the hospital’’ in March 2016. Id. at 398–99. She also testified that during the 2011 through 2013 time period, she was hurting herself and that to the best of her recollection, she shared this with Dr. Webb. Id. at 364. Regarding the Diastat prescription, Respondent’s wife testified that she uses the drug because she has seizures and because ‘‘I’ve had seizures, I just always try to travel with it and keep some on me.’’ Id. at 366. Asked by the ALJ if she was using this medication in the 2011– 2013 time period, Respondent’s wife answered: ‘‘I always keep it with me. It’s something that I’ll try not to ever run out.’’ Id. She also subsequently testified that the Diastat was not prescribed by Dr. Webb but by her ‘‘neurologist.’’ Id at 393. Respondent’s wife testified that she believed her husband prescribed the controlled substances because he was trying to help her. Id. at 367. She further E:\FR\FM\26OCN2.SGM 26OCN2 ethrower on DSK3G9T082PROD with NOTICES Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices testified that her husband ‘‘never prescribed medicines that weren’t prescribed for [sic] Dr. Webb when I got—until we could get in touch with him.’’ Id. See also id. at 383 (‘‘[B]ut he never prescribed anything that I hadn’t already been prescribed by Dr. Webb.’’). She also testified that when her husband wrote a prescription for her, she was in crisis, and that her husband had never provided her with a controlled substance prescription when she was not in crisis. Id. at 367–68, 376. She further maintained that she ‘‘would try to get in touch with Dr. Webb, and in the interim of a two- or three-day fillin, I did get medicine from’’ my husband. Id. at 371. When later asked why her husband would have to prescribe to her when she was in crisis, she maintained that ‘‘[t]here would be occasional times I might run out a day early on a weekend . . . and he would see me very upset, crying, very emotional, and I feel like his intent was never to harm me. He was just trying to help me.’’ Id. at 379. See also id. at 381 (‘‘I don’t know if I told him I need more or if he just knew that I just needed just two, three, four to get back to Dr. Webb because no one would call us back.’’). However, when asked if Respondent had ever given her a prescription for a longer time period than two to four days, she answered: ‘‘Not to my knowledge. I do not remember.’’ Id. at 384. On cross-examination, she also admitted that Respondent had written a hydrocodone prescription for her but maintained that he did so when her mother ‘‘was dying in the hospital’’ and she developed back pain because she sat at her ‘‘mother’s bedside waiting for her to die.’’ Id. at 374. Respondent’s wife then maintained that she did not recall her husband as having written ‘‘[m]ore than one’’ hydrocodone prescription. Id. However, as found above, Respondent issued numerous hydrocodone prescriptions to her well before Dr. Webb issued the single hydrocodone prescription on June 28, 2013. Also, a substantial number of the prescriptions (especially those for zolpidem) were for quantities that far exceeded the amount necessary to provide medication until she was able to get a new prescription from Dr. Webb. Moreover, in a number of instances, Respondent issued the prescription notwithstanding that his wife had either recently refilled a prescription for the same drug or had refills outstanding which were authorized by an existing prescription issued by Dr. Webb. On questioning by the ALJ, Respondent’s wife maintained that during the period of 2011 and 2013, she VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 ‘‘usually [did] not’’ get a call back from Respondent’s office when she would leave a message. Tr. 387. Not only did the ALJ not find her testimony credible, her medical file contains evidence of only two phone calls she made during this period in which Dr. Webb did not document that he called back or Dr. Webb did not issue a prescription either the same day or the following day.39 Respondent called as a witness Peter Graham, Ph.D. Dr. Graham is a psychologist who works with Acumen Assessments, which provides clinical evaluations of physicians who are referred to it by physician health programs and state boards, and the Acumen Institute, which provides treatment, education and coaching to ‘‘licensed professionals who are in the process of being rehabilitated for one or another professional reason.’’ Tr. 403– 04. Dr. Graham testified that the main focus of Acumen’s evaluations is not whether a physician is competent to practice medicine, but whether the physician’s ‘‘mental status, personality variables, [and] character traits . . . may impact on decision-making, ethical judgment, self-regulation, ability to remain responsible and maintain the duties of licensure.’’ Id. at 416–17. Dr. Graham testified that Respondent was referred to him ‘‘for evaluation of his fitness secondary to having engaged in conduct that was contrary to his [recovery] contract,’’ that being writing the prescriptions for his wife. Id. at 417. According to Dr. Graham, the evaluation determined ‘‘that there was an interaction between certain personality factors that affected his judgment and the way he was deciding to comply or not with his contract, as well as anxiety and situational stress related to’’ his home life that ‘‘affect[ed] his mental status.’’ Id. at 419. The evaluation recommended to the MPHP that Respondent ‘‘undergo treatment designed for professionals who have made ethical misjudgments or engaged in some kind of misconduct . . . with a focus on examining his ethical decision-making’’ and how his ‘‘personality traits’’ affected his behavior. Id. at 420. 39 The first of these was on August 25, 2011. GX 5, at 140. Notably, Respondent’s wife had an office visit with Dr. Webb on August 16, 2011, during which he wrote her prescriptions for 30-day quantities of Adderall 20 mg, zolpidem 10 mg, and 90 alprazolam 2 mg. Id. at 49; GX 11, at 12. While the phone messages states ‘‘Having problems,’’ GX 5, at 140, Respondent did not issue a prescription until August 28, 2011, when he authorized 12 zolpidem. The second of these occurred on July 10, 2013. GX 5, 133. However, the same day, Respondent’s wife refilled a prescription for 45 alprazolam 2 mg (15 days). GX 11, at 6. PO 00000 Frm 00019 Fmt 4701 Sfmt 4703 49721 Respondent subsequently underwent treatment, which included both a threeweek inpatient and one-week follow-up visits at three and six months, individual psychotherapy in his home community, and a three-day wrap up visit at the one-year mark. Id. at 421–22. According to Dr. Graham, Respondent’s treatment team has determined that he can ‘‘return to supervised and monitored practice.’’ Id. at 425. Respondent also called as a witness, Scott Hambleton, M.D., the medical director of the MPHP. Id. at 435–37. Dr. Hambleton testified that ‘‘the heart of [Respondent’s recovery] contract concerns abstinence from any moodaltering or addictive substances, which would increase the risk of a relapse to substance use and active addition.’’ Id. at 443. He further testified that Respondent is subject to random testing approximately 30 times a year for both drug and alcohol use, that he is subject to a workplace monitor, and in the event he needs to take controlled substances, he ‘‘is required to use a medication monitor’’ and all such prescriptions must be approved by the MPHP ‘‘in advance.’’ Id. at 443–44. Dr. Hambleton also testified that Respondent is required to attend 12-step and Caduceus meetings for physicians in recovery. Id. at 445. In addition, according to Dr. Hambleton, a Board investigator visits Respondent on a random basis at least once a quarter to witness a drug screen and evaluate his appearance. Id. at 446– 47. Dr. Hambleton further stated that Respondent’s contract will last for as long as he has an active medical license. Id. at 447. As for how the MPHP monitors the provision in Respondent’s contract that prohibits prescribing to family members and himself, Dr. Hambleton testified that this is done by the Board’s investigators. Id. at 448. Dr. Hambleton testified that if the MPHP found out that Respondent had prescribed controlled substances to himself or a family member it ‘‘would withdraw advocacy immediately.’’ Id. at 449. Dr. Hambleton further testified that he had no reservations about Respondent returning to the unrestricted practice of medicine. Id. at 450. The record does not establish, however, what ‘‘the unrestricted practice of medicine’’ entails in light of Respondent’s recovery contract. On cross-examination, Dr. Hambleton acknowledged that Respondent had violated his first two recovery contracts.40 Id. at 452. He also 40 Dr. Hambleton explained that Respondent had been subject to a ‘‘provisional contract’’ during the period of his license suspension ‘‘to establish a E:\FR\FM\26OCN2.SGM Continued 26OCN2 ethrower on DSK3G9T082PROD with NOTICES 49722 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices acknowledged that at some point when Respondent had a job opportunity in Tennessee, the MPHP had written to that State’s Board recommending against granting a license to Respondent. Id. at 475. Dr. Hambleton testified that he supported Respondent’s return to the unrestricted practice of medicine because the Board’s suspension of his license was ‘‘a profound experience, especially for a neurosurgeon, with that amount of training,’’ and ‘‘[t]hat type of intervention has a powerful effect on the recovery process.’’ Id. at 470. He also testified that ‘‘Acumen has more expertise in dealing with personality issues’’ and ‘‘[s]o that treatment in itself . . . represents a profound event that makes it possible to provide advocacy.’’ Id. at 470–71. Dr. Hambleton further testified that Respondent’s ‘‘treatment has been effective’’ and that ‘‘[h]e’s gaining insight, sensitivity, demonstration of more regard for others, responsibility, authenticity, the markers of recovery.’’ Id. at 471. However, on questioning by the ALJ, Dr. Hambleton testified that his ‘‘frequency of contact’’ with Respondent ‘‘is not what allows me to make that assessment of him.’’ Id. at 472. Rather, Dr. Hambleton explained that his assessment was based on reports he received from other participants in Respondent’s Caduceus group, ‘‘from another facilitator of the group,’’ his cases manager’s reports, and ‘‘watching him interact with other physicians during’’ the MPHP’s ‘‘annual Caduceus retreat.’’ Id. at 472. Dr. Hambleton then acknowledged that when he ‘‘provides advocacy, [his] interaction with participants is very limited’’ and that he ‘‘provide[s] advocacy based on the constellation of collateral sources of information [and] their drug testing’’ results. Id. at 473. Dr. Hambleton testified that ‘‘[i]n the event that there is evidence of substance abuse, we will withdraw advocacy immediately, and it [will] be the end of his medical career.’’ Id. at 477. He also testified that ‘‘[i]n the event that he prescribes inappropriately . . . our medical board investigators will monitor it closely’’ and the Board would ‘‘issue an immediate prohibition on practice.’’ Id. Dr. Hambleton was ‘‘not sure’’ as to how the Board found out about Respondent’s prescribing to his wife, but based on ‘‘conversations’’ he has ‘‘had with investigators,’’ he period of compliance and recovery.’’ Tr. 452. Respondent did not violate this contract, which ended when he entered his current (fourth) contract. Id. at 453. VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 asserted that ‘‘now it is part of their policy to do regular PMP checks’’ on the MPHP’s participants.’’ Id. at 477–78. The MPHP does not, however, have that authority. Id. at 478. Respondent also testified on his own behalf. Id. at 481. After discussing his background, training and current employment, id. at 481–82, Respondent testified that he ‘‘[a]bsolutely’’ prescribed controlled substances to his wife and did so when she was under the care of another physician. Id. at 484. Asked if his prescribing of controlled substances to his wife ‘‘violated his obligations as a licensed doctor in . . . Mississippi,’’ Respondent answered: ‘‘I know it violated my contract with the professionals healthcare program.’’ Id. Asked if he believed that his prescribing ‘‘in the manner that’’ he did ‘‘violated [his] obligations as a DEA registrant,’’ Respondent testified: ‘‘I don’t know the specific legalities of DEA registration, but I’m here to tell you what I did was wrong, period, without any equivocation.’’ Id. Respondent testified that when he testified before the State Board, he accepted responsibility for prescribing to his wife. Id. at 486. He then testified that he is under a lifetime monitoring contract, and that he is monitored by both the MPHP and the Board. Id. Asked why the Agency should entrust him with a DEA registration, Respondent testified: even . . . if I don’t know the letter or spirt of any law that I transgressed, I do know that becoming involved in a loved one’s care is foolish. There is no subjectivity there. I can be Jill’s husband, but that’s all I can be to her, period. There can’t be any clinical judgment, or any family member for that matter. As I testified in my [2014] board hearing . . . , regardless of what it had come from, I thought I’d hit a brick wall. And there are no other options for me. If I can’t practice medicine, conforming to every jot, tittle, to the letter of the law, I can’t practice medicine. There are no more get-out-of-jail cards for me. There aren’t. Id. at 489–90. Continuing, Respondent testified: I have tried to—perhaps I made enough missteps, I can provide a beacon of some sort to younger physicians that might think it’s okay to prescribe outside the bounds of normal patients. I don’t know what else I possibly could do at this point to convince Your Honor what more I could do to be—that I am worthy to be entrusted with a DEA registration. I will do it. If someone suggests something to me, I will gladly do it, but —. Id. at 491. On cross-examination, the Government asked Respondent if he understood that ‘‘DEA is alleging something slightly different than prescribing outside the contract.’’ Id. at PO 00000 Frm 00020 Fmt 4701 Sfmt 4703 494. After the ALJ overruled the objection of Respondent’s counsel that the question was outside the scope of direct examination, Respondent testified that he was ‘‘not certain that [he] understand[s] that fully.’’ Id. at 495. The Government then asked Respondent if he understood that ‘‘DEA is asserting that with respect to the prescriptions you issued for your wife that you violated Mississippi and federal law.’’ Id. Respondent answered: ‘‘I understand that you just asserted that, but my understanding would only stop there.’’ Id. The Government followed-up by asking: ‘‘so . . . you are not admitting that you violated either federal or state law with respect to the prescriptions you issued to your wife?’’ Id. Respondent testified: ‘‘I think my answer is I’m uncertain as to every component, specifically of the federal, to be able to answer that as honestly as I want to.’’ Id. The Government asked Respondent if he understood that what he had been charged with in the DEA proceeding ‘‘had nothing to do with’’ his recovery contract. Id. at 497. Respondent testified: ‘‘I understand that you just represented half of what I understand’’ and added that ‘‘I was found guilty of two things one, violation of a previous order . . . Number two, the unethical behavior, which in my interpretation is subsumed by the number of things that you have cited as far as Mississippi conduct, et cetera.’’ Id. After noting that Respondent was only ‘‘admitting responsibility to what the Board found’’ and that was not what DEA had charged him with, the Government explained that it was ‘‘trying to get a clarification as to what you’re accepting responsibility for?’’ Id. at 497–98. Respondent testified: . . . as I’ve said already . . . I wrote prescriptions. I shouldn’t have written prescriptions. It violated my contract. It violated my duty to my wife. It violated—in this one instance, in all my years of practice, that’s the only time I’ve ever been called into question, but it violated as a layperson everything I think I should have done, regardless of why I thought at the time it might—erroneously thought it could be proper. As far as me as a physician testifying to what statutes I may or may not have transgressed, I can’t. That would be speculative at least on some level for me. Id. After the ALJ sustained Respondent’s objection to the Government’s attempt to question him about both his testimony before the State Board and the patient file he maintained on his wife, the Government asked Respondent if he E:\FR\FM\26OCN2.SGM 26OCN2 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices ‘‘accept[ed] that the prescriptions that you issued to your wife were outside the course of professional practice as defined by the DEA?’’ Id. at 501. Respondent answered: ethrower on DSK3G9T082PROD with NOTICES I think I’ve answered that already. I don’t know precisely how the DEA defines it, and to be scrupulously honest, I can’t. I will once again accept the responsibility that what I did was wrong and I should not have done it. And I have done everything in my power to remediate that. But I do not know again . . . the specifics of the—of what I’m being charged with by DEA now, three years after I have assiduously striven to do everything I can to clean up and do everything right, and then you come along and ask me about new things. What hope is there for any other physician that follows me for redemption if we do everything we can. . . . What more, I mean, that’s—I’m sorry. I’m getting emotional. Id. at 501. Then asked if he had been treated unfairly by DEA, Respondent testified that ‘‘I’m not certain I have a well-founded opinion of that. I know that I have done everything I humanly can and will continue to do so and provide the DEA and every other regulatory body with anything I can to ensure that I am safe for the public.’’ Id. at 502. The Government then attempted to ask Respondent if he accepted responsibility for failing maintain patient files in compliance with Mississippi law. Id. at 502–03. The ALJ disallowed the question, explaining that Respondent’s ‘‘counsel has decided not to ask him if he wants to accept responsibility for that.’’ Id. After both the Government and Respondent’s counsel stated they had ‘‘[n]othing further,’’ the ALJ observed that he was ‘‘was just a little bit puzzled as to [Respondent’s] answer about acceptance of responsibility.’’ Id. at 503. While the ALJ stated that he found Respondent ‘‘generally very credible,’’ he then explained that ‘‘[w]hat puzzles me is how you could come to this hearing without knowing what the charges against you by DEA are?’’ Id. Respondent answered that he ‘‘presumed . . . that they would parallel that which the state charged me with. I mean, I knew we were having a hearing.’’ Id. Respondent then testified that when he ‘‘first applied for reregistration,’’ he was told by a DI that ‘‘it was all about my past history with addiction’’ but that when he ‘‘had the temerity to get an attorney, it morphed into something else,’’ so he ‘‘wasn’t sure if’’ he was to talk about his ‘‘recovery or other things.’’ Id. at 503–04. After the ALJ asked if he had read the Show Cause Order and pointed out that it ‘‘didn’t say anything about [his] failure in recovery,’’ Respondent VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 acknowledged that ‘‘[i]t didn’t’’ and asserted ‘‘that’s why [he] was confused.’’ Id. at 504. Noting that the allegations involved his prescribing to his wife and his failure to make adequate notes in his wife’s record, the ALJ again expressed his puzzlement as to what Respondent was ‘‘accepting responsibility for.’’ Id. at 504–05. Respondent replied that he knew ‘‘exactly what the State . . . said I did’’ and ‘‘I think I believe that the DEA mimicked that . . . [or] paralleled that.’’ Id. at 505. Continuing, Respondent stated: ‘‘And if those two specifications or charges are the same, then, yes, I do accept responsibility for what DEA says.’’ Id. The ALJ then explained that he was not sure what Respondent meant; Respondent stated that it went to his ‘‘understanding of what I was charged and found guilty with by the State,’’ which included violating his Recovery Contract and ‘‘basically unethical behavior.’’ Id. Respondent added that he ‘‘assumed that that was also what DEA was doing here . . . [and] that I was being called to task for the same things.’’ Id. at 506. Thereafter, the ALJ stated to Respondent’s counsel that if he was ‘‘getting into an area that you don’t want me to ask about, don’t hesitate to object because I know I’m going beyond what your direct examination was.’’ Id. The ALJ further stated that he ‘‘want[ed] to respect the relationship between you and your client and your client’s rights in this hearing,’’ and that if he asked a question that Respondent’s counsel ‘‘vigorously object[ed] to,’’ he expected Respondent’s counsel ‘‘to say so.’’ Id. Respondent’s counsel then stated that ‘‘[t]here are lines that I’m concerned about here and based on the history here of whether or not a full-throated, yes, I violated this statute was going to result in, you know additional action against’’ Respondent. Id. The ALJ then offered Respondent’s counsel the opportunity to further question his client. Id. at 507. Respondent’s counsel resumed questioning Respondent and asked him to ‘‘clarify . . . what specific actions [he was] accepting responsibility for?’’ Id. Respondent testified: ‘‘Violating the previous order, right? Writing prescriptions for my wife when I wasn’t a treating physician, which I think is not proper document, not fully proper documentation of those things.’’ Id. Respondent’s counsel then asked if ‘‘it matter[ed] . . . what provisions that the violations fall under?’’ Id. at 508. Respondent answered: . . . I have found me guilty, and so if someone shows me—and perhaps . . . what PO 00000 Frm 00021 Fmt 4701 Sfmt 4703 49723 I was saying that I’m ignorant of the specifics of a DEA charge. But if I meet the criteria and I accept I did it, then I did it. From my hearing in January of 2014, I never said I didn’t. I sat there and said, yes, this is what happened. There are some prescriptions errors in that record, but in general, yes, this is what happened. Id. Respondent further testified on redirect that he was, in the words of his counsel, ‘‘accepting responsibility for inappropriate prescribing practices related to [his] wife.’’ Id. On re-cross, the Government asked Respondent ‘‘[w]hat portion of the prescribing to [his] wife [was] inappropriate?’’ Id. Respondent answered: Through my education with Dr. Webb— well, first of all, prescribing for family members is a bad idea in general. I think the contract specifies it because commonly that means there’s diversion going on, and I’m prescribing for someone, and they’re kicking it back to me, but that’s not a question, and I think my urine tests show that didn’t happen. I think that in general the objectivity required even in exigent circumstances must be called into question when it’s a loved one. Id. at 508–09. Subsequently asked by the Government if ‘‘there [was] anything else wrong with your prescriptions to your wife, aside from the fact that she’s a family member,’’ Respondent answered: Let me think on that a minute. I’m a little almost frightened to answer because at no time do I want anyone in this courtroom thinking, exigent or not, that I’m saying it was right or that you’d have done it too if you were there. There’s not a complete patient file. I mean, is that what you’re asking me? Id. at 510. After the Government again asked Respondent what he thought he ‘‘did wrong with respect to the prescriptions,’’ Respondent answered: ‘‘again, I shouldn’t have written. I violated the contract. Prompt me . . . I’m not trying to minimize anything. I’m blanking, frankly.’’ Id. The Government then asked Respondent if he ‘‘admit[ted] that the prescriptions you issued to your wife were outside the usual course of professional practice?’’ Id. at 511. Respondent answered: As I understand that term of art . . . if the documentation is substandard, that that renders it outside the course of professional practice, then I would accept that, if I’m— any hesitancy previously has been based on that. I mean, you know, as a physician, I don’t understand that term. When you say outside the course of medical practice, it makes me think that someone just gave rat poison or something absurd like that. But when you lay the predicate about proper documentation, for instance, then, yes, I would have to accept that. E:\FR\FM\26OCN2.SGM 26OCN2 49724 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices Id. at 511–12. The Government subsequently asked Respondent if he ‘‘believe[d] that [his] actions increased the chances of [his] wife’s dependency, overdose, or diversion of controlled substances?’’ Id. at 512. Respondent answered ‘‘[n]o.’’ Id. On still a further round of re-direct, Respondent acknowledged that he is ‘‘not a psychiatrist’’ and that ‘‘[t]hese medicines are . . . chiefly used in psychiatric conditions. Id. at 513. Respondent’s counsel further asked him if he understood that the DEA had alleged that he ‘‘prescrib[ed] controlled substances to someone who was under the care of another physician for those same ailments.’’ Id. Respondent testified that he understood that and ‘‘accept[ed] that’’ it was wrong for him to do that. Id. at 513–14. Respondent’s counsel then asked if could ‘‘be trusted to not engage in such prescribing in the future?’’ Id. at 514. Respondent testified: I will first say strongly, absolutely. I have spent the last three years trying to redeem this situation, to show everyone exactly how driven I am. And, Your Honor, I’m not trying to avoid anything. If someone shows me I’ve done something wrong, I will admit it. I’m not even bringing up the subtext. I did wrong. I throw myself upon the mercy of the process. I have done everything that I know to do to try to remedy this situation and I can do no more than give my sworn oath that this will not happen again. Id. Respondent’s counsel concluded his examination by asking Respondent if his acceptance of responsibility included his ‘‘prescribing to [his wife] while she was under the care of another doctor, perhaps providing medications too soon in terms of early refills, providing gap fills, [and] not having an adequate medical file?’’ Id. at 515. Respondent answered ‘‘[y]es.’’ Id. ethrower on DSK3G9T082PROD with NOTICES 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 VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 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 . . . an application for registration [should be] denied.’’ Paul H. Volkman, 73 FR 30630, 30641 (2008) (citing id.), pet. for rev. denied, Volkman v. DEA, 567 F.3d 215, 222 (6th Cir. 2009); see also MacKay v. DEA, 664 F.3d 808, 816 (10th Cir. 2011); 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 Volkman, 567 F.3d at 222 (quoting Hoxie, 419 F.3d at 482)).41 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.42 I further find that 41 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. 42 As to factor one, while the Mississippi Board has taken disciplinary action against Respondent based on his issuance of the prescriptions, 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 subsequent restoration of his medical license without restriction of his controlled PO 00000 Frm 00022 Fmt 4701 Sfmt 4703 Respondent has failed to produce sufficient evidence to rebut the Government’s prima facie case. substance prescribing authority under Mississippi 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 ‘‘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 Mississippi 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. As for factor five, because the Government did not file exceptions to the ALJ’s legal conclusions with respect to this factor, I deem it unnecessary to make any findings. E:\FR\FM\26OCN2.SGM 26OCN2 ethrower on DSK3G9T082PROD with NOTICES Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 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). See also Miss. Code Ann. Sec. 41–29–137 (‘‘a ‘valid prescription’ means a prescription that is issued for a legitimate medical purpose in the usual course of professional practice’’). 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 VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 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)).43 Under the Mississippi Board’s Rule 1.4: Patient Record. A physician who prescribes, dispenses, or administers a controlled substance shall maintain a complete record of his or her examination, evaluation and treatment of the patient which must include documentation of the diagnosis and reasons for prescribing, dispensing or administering of any controlled substance; the name, dose, strength, quantity of the controlled substance and the date that the controlled substance was prescribed, dispensed or administered. The record required by this rule shall be maintained in the patient’s medical records, provided that such medical records are maintained at the office of the physician . . . . No physician shall prescribe, administer or dispense any controlled substance or other drug having addiction-forming or addictionsustaining liability without a good faith prior examination and medical indication therefore. Miss. Admin. Code part 2640, Ch.1 r. 1.4. Continuing, Rule 1.4 explains that: A determination as to whether a ‘‘good faith prior examination and medical indication therefore’’ exists depends upon the facts and circumstances in each case. One of the primary roles of a physician is to elicit detailed information about the signs and symptoms which a patient presents in order that he or she may recommend a course of treatment to relieve the symptoms and cure the patient of his or her ailment or maintain him or her in an apparent state of good health. In order for a physician to achieve a proper diagnosis and treatment plan, a 43 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. ‘‘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). PO 00000 Frm 00023 Fmt 4701 Sfmt 4703 49725 history and physical examination consistent with the nature and complaint are necessary. . . . The paramount importance of a complete medical history in establishing a correct diagnosis is well established. Standards of proper medical practice require that, upon any encounter with a patient, in order to establish proper diagnosis and regimen of treatment, a physician must take three steps: (a) take and record an appropriate medical history, (b) carry out an appropriate physical examination, and (c) record the results. The observance of these principles as a function of the ‘‘course of legitimate professional practice’’ is particularly of importance in cases in which controlled substances are to play a part in the course of treatment. It is the responsibility of the physician to dispense, prescribe or administer such drugs with proper regard for the actual and potential dangers. Id. Rule 1.4 further notes that ‘‘[a] determination of proper ‘medical indication’[ ] also requires a careful examination of the nature of the drug and all circumstances surrounding dispensation.’’ Id. The Rule also specifically notes that ‘‘repeated refills over relatively short periods of time or the issuance of prescriptions at a time when the patient should not have finished taking the same medication from a prior prescription had the prescription directions been properly followed or the correct dosage taken’’ is a factor indicating a lack of good faith on the part of a physician. Id. Also, the Board’s Rule 1.16 specifically provides that ‘‘[t]he prescribing, administering or dispensing of any controlled substance in violation of the above rules shall constitute the administering, dispensing or prescribing of any narcotic drug or other drug having addiction-forming or addiction-sustaining liability otherwise than in the course of legitimate professional practice, in violation of Mississippi Code [ ] Section 73–25– 29(3). ’’ Miss. Admin. Code part 2640, Ch. 1, r. 1.16). Here, the ALJ found that that Respondent acted outside of the usual course of professional practice and lacked a legitimate medical purpose when he issued numerous prescriptions for controlled substances included alprazolam, diazepam, hydrocodone, zolpidem, and Adderall (amphetamine). R.D. 39–44. I agree with the ALJ that Respondent violated 21 CFR 1306.04(a) in issuing the prescriptions. I further find that in issuing each of the prescriptions enumerated above (Nos. 1 through 53), Respondent acted outside of the usual course of professional practice and lacked a legitimate medical purpose in doing so. Dr. Chambers provided unrefuted testimony that it is not within the usual E:\FR\FM\26OCN2.SGM 26OCN2 ethrower on DSK3G9T082PROD with NOTICES 49726 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices course of professional practice to prescribe a controlled substance to a patient with mental illness when the patient is being treated by a primary prescriber and the second physician does not communicate to the primary physician that he has issued the prescription. Tr. 275. Dr. Chambers testified as to the serious risks created by such prescribing, including oversedation, memory disturbance, overdose and potentially death, especially if the patient is also taking opioids. Id. at 250; see also id. at 268– 69. Dr. Chambers also explained that when a patient is obtaining drugs from other sources and the primary prescriber is unaware, this ‘‘can create a great deal of confusion on the part of the primary prescriber about the effects or side effects of the drug and the mental status of the patient.’’ Id. at 251; see also id. at 291 (‘‘If you have two chefs in the kitchen, this is the kind of stuff that can happen as you get chaos and harm and polypharmacy and no one understanding what is the illness versus what is [sic] the side effects of the medications, and it can lead to escalation of mental illness, addiction, and even death.’’). Dr. Chambers also offered unrefuted testimony that Respondent’s prescribing resulted in ‘‘a combination of multiple overlaps of multiple classes of addictive substances that can produce overdose and severe psychiatric disturbances.’’ Id. at 273. And while Respondent is not a psychiatrist, Dr. Chambers offered unrefuted testimony that within the practice of psychiatry, there is a prohibition against treating a spouse. Id. at 293. Dr. Chambers further offered unrefuted testimony that Respondent’s prescribing was not for legitimate medical practice and was nontherapeutic. I thus find that Respondent violated 21 CFR 1306.04(a) with respect to each of the prescriptions set forth above. Respondent’s failure to maintain adequate records to support the prescriptions provides additional support for this conclusion, as well as the conclusion that Respondent violated Mississippi Board Rule 1.4’s provisions with respect to patient records.44 As found above, there was no documentation at all to support 36 of the prescriptions. Moreover, even with respect to the entries Respondent did make, Dr. Chambers found that ‘‘there is a paucity of data to support the diagnosis or the prescriptions . . . that the note is built around. There’s a lack of physical or mental status exam that 44 See supra findings for RXs No. 1–21, 25, 26, 28–31, 33, 35–37, 39, 43, 45, 49, and 51. VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 normally would be in a note like this to justify and direct the use of controlled substances.’’ Tr. 277. Dr. Chambers also observed that ‘‘there are instances where the dosing or type of the drug is left out of the record.’’ Id. at 278. See also GE 6, at 6 (entry for 2/5/13); id. at 7 (entry for 3/28/13); id. at 8 (5/13/13 no dosing for Ambien); id. at 9 (entries for 7/1/13 no dosing for Lorcet and 7/7/13 no dosing for Lorcet and Xanax); id. at 10 (no drug strength for Xanax prescriptions of 8/24/13 and 9/5/13). Before the State Board, Respondent testified that his prescribing ‘‘was sporadic’’ and ‘‘was always for a confined number of pills, a small amount, that bridged her gap between obviously when she was in crisis and didn’t have any medicine.’’ GE 14, at 58. He maintained that ‘‘the majority of the medicine were Xanax, two milligrams, [and that a] three day supply were [sic] common.’’ Id. at 59–60. Also before the State Board, he maintained that ‘‘I think the record reflects that I filled in in times where I just didn’t think I had no other choice.’’ Id. He further asserted that his writing of the prescriptions ‘‘was always done in a short stop gap times [sic] when I believed again . . . that there were no other options.’’ Id. at 69. Although the Government introduced into evidence the transcript of the January 2014 state board proceeding, it did not submit the Board’s order prohibiting him from practice and/or the charging document, any of the exhibits submitted in the Board proceeding which may have shown what prescriptions were at issue in the proceeding, or even the Board’s order suspending his license after the January 2014 proceeding. However, while it may have been the case that Respondent’s explanation as to his reasons for prescribing during the 2014 board proceeding was consistent with the evidence presented at that proceeding, it is not consistent with much of the evidence submitted in this proceeding. As found above, the record contains numerous prescriptions which are not fairly characterized as two to three-day gap fills. With respect to Respondent’s prescribing of zolpidem, they include fourteen prescriptions which clearly were not short-term gap fills. These prescriptions include numbers 2, 4, 6, 8, 22, 26, 28 (each for 30 du 45), 23 (28 du), 29 (24 du), 15, 45 (each for 20 du), and 10, 12, 13 (each for 12 du). 45 While some of Respondent’s prescriptions for 30 du of zolpidem had a dosing instruction of two tablets, the dosing instructions generally provided for one tablet. PO 00000 Frm 00024 Fmt 4701 Sfmt 4703 With respect to Respondent’s prescribing of alprazolam, they include prescription numbers 11 (20 du, a 10 to 20-day supply), 34 (30 du, a 10-day supply 46), 53 (24 du, an eight-day supply), 31, 32 (each for 20 du, each for a 10-day supply), 38, 52 (15 du, a fiveday supply) 42, 43 (14 du, a 4–5 day supply), and 44, 47 (12 du, one a fourday supply, the other a six-day supply). Respondent also issued a prescription for 18 tablets of clonazepam (a six-day supply), 15 capsules of Dextroamphetamine-Amphetamine 5 mg (a five-day supply), and 20 tablets of diazepam (a six-day supply). With respect to the diazepam prescription, Dr. Webb did not even prescribe this drug to Respondent’s wife. Of note, before the State Board, Respondent testified that he did not change his wife’s treatment regimen and only ‘‘mirrored what [Dr. Webb] had done.’’ GE 14, at 65. Likewise before the State Board, Respondent initially offered testimony regarding his prescribing of hydrocodone which addressed only the prescriptions he wrote after a plastic surgeon had drained an abscess in his wife’s thigh and when his wife had a seizure and fell. Moreover, when on cross-examination a Board member identified the multiple hydrocodone prescriptions Respondent issued in July 2013, Respondent testified that ‘‘that was an isolated incident there.’’ Id. at 66. The evidence in this proceeding shows, however, that during 2011, Respondent issued seven hydrocodone prescriptions (Nos. 3, 5, 7, 9, 14, 16, 19) for his wife prior to any other doctor prescribing the drug to her. See GE 11, at 11 (hydrocodone Rx written on Nov. 30, 2011 by Dr. Bell, who Respondent identified as his wife’s neurologist). Respondent has offered no explanation in either proceeding as to why he issued these seven prescriptions, as well as the hydrocodone prescriptions he issued on December 5, 2011 (No. 21), Aug. 13, 2012 (No. 33) and Jan. 23, 2013 (No. 39).47 Also, in a number of instances, Respondent issued prescriptions even though his wife had refills available under prescriptions that were previously issued by Dr. Webb. For example, on March 30, 2011, Respondent issued a prescription for 30 zolpidem. (Rx No. 4). However, Dr. Webb’s February 3, 2011 zolpidem 46 This is based on Respondent’s note for the prescription. 47 While Dr. Bell (his wife’s neurologist) issued hydrocodone prescriptions to Respondent’s wife on November 30, 2011 and June 19, 2013, Respondent’s testimony before the Board addressed only his July 2013 prescriptions. GE 14, at 86. E:\FR\FM\26OCN2.SGM 26OCN2 ethrower on DSK3G9T082PROD with NOTICES Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices provided for multiple refills, which Respondent’s wife filled on April 9, 2011, May 23, 2011, and July 7, 2011. Moreover, Respondent issued new prescriptions for 30 zolpidem to his wife on May 6, 2011 and June 28, 2011 (Rx No. 6 & 8). Respondent’s prescriptions of March 30, May 6, and June 28 were clearly not ‘‘gap fills.’’ Moreover, when Respondent issued the July 31, 2011 prescription for 12 zolpidem, he also authorized a refill, which was available to his wife on August 28, 2011 (which she did not fill until September 6, 2011), when Respondent issued her a new prescription for 12 zolpidem. See Rx No. 10 & 12. (Dr. Webb had also issued a 60 du zolpidem prescription on August 16, 2011 which provided multiple refills.). Even ignoring the prescription she obtained from Dr. Webb, Respondent’s August 28, 2011 prescription was not a gap fill given that she had a refill available on Respondent’s July 31, 2011 prescription. So too, Respondent’s October 11, 2011 prescription for 20 zolpidem, a 20-day supply, (Rx No. 16) was issued notwithstanding that Dr. Webb’s August 16, 2011 zolpidem prescription provided for five refills, one of which his wife filled on October 19, 2011. See GE 11, at 10–12. Even if Respondent’s wife had run out of medication early because she failed to follow Dr. Webb’s dosing instruction, she did not need this quantity of drugs to last her to the day on which she could refill Dr. Webb’s prescription. Another such example involves Respondent’s December 27, 2011 prescription for 30 zolpidem and his January 7, 2012 prescription for 28 zolpidem. (Nos. 22 & 23). Respondent’s wife had obtained a refill of Dr. Webb’s August 16, 2011 prescription for 60 du on December 16, 2011, only 11 days earlier (Dec. 16). Thus, there was no gap to fill. Nor was there a gap to fill on January 7, 2012, when he issued the prescription for an additional 28 dosage units given the quantity of drugs his wife had recently obtained. Still more examples are provided by the zolpidem prescriptions Respondent issued on March 4 and 12 (both for a 30day supply), as well April 1, 2012 (for a 24-day supply). During this period, Respondent’s wife obtained a prescription for 30 du (a 15-day supply) on February 23, 2012, which provided for two refills, the first of which she obtained on March 19, 2012. Here again, the only potential gap was likely created by the failure of Respondent’s wife to follow Dr. Webb’s dosing instructions on the February 23rd prescription. Moreover, the March 12, 2012 VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 prescription was not a gap fill given that Respondent issued the March 4, 2012 prescription, which provided a 30-day supply. Nor was the April 1, 2012 prescription a gap fill given Respondent’s issuance of the March 12 prescription and the refill she obtained on March 19, 2012 pursuant to Dr. Webb’s Feb. 23 prescription. Similarly, the evidence shows that on January 11, 2013, Respondent issued a prescription for 10 du of alprazolam (see No. 36). While this prescription provided only a three-day supply, the evidence shows that Respondent’s wife had refilled a prescription issued by Dr. Webb for 45 du of alprazolam the day before. GE 11, at 8. Thus, this was not a gap fill. Nor was Respondent’s January 11, 2013 temazepam prescription (No. 37) a gap fill as the evidence shows that his wife had also refilled a prescription for a 30-day supply of this drug the day before. GE 11, at 8. As one further example, on May 20, 2013, Respondent issued a prescription for 20 tablets of zolpidem (No. 45). The evidence shows, however, that Dr. Webb had not issued a zolpidem prescription since February 23, 2012, which his wife last refilled in April 2012. Here again, this was not a gap fill. Had Respondent’s prescribing been limited to a few instances of small (two to three day) gap fills, his conduct would be considerably less egregious given the circumstances of his wife’s illness. The evidence shows, however, that his illicit prescribing went on for nearly three years. Even more disturbing is that the evidence shows that many of the prescriptions were not for gap fills at all, let alone for gap fills for two to three day periods as he testified before the State Board. Notably, in this proceeding, Respondent has personally offered no explanation as to why he issued the prescriptions. Moreover, the only evidence he offered was the discredited testimony of his wife that there occasionally were times when she ‘‘might run out a day early on a weekend’’ and only needed a short term supply until Dr. Webb got back to her and that Respondent had never given her a prescription for a time period longer than two to four days. Tr. 379, 381, 384. I thus conclude that the Government’s evidence with respect to Factors Two and Four makes out a prima facie case to deny Respondent’s application as ‘‘inconsistent with the public interest.’’ 21 U.S.C. 823(f). I further find that Respondent’s misconduct was egregious. PO 00000 Frm 00025 Fmt 4701 Sfmt 4703 49727 Sanction Where, as here, 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 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). Moreover, 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 sixmonth 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). 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’ ’’ or an application should be denied. Wesley Pope, 82 FR 14944, 14985 (2017) (quoting 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 E:\FR\FM\26OCN2.SGM 26OCN2 49728 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices ethrower on DSK3G9T082PROD with NOTICES (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 Pope, 82 FR at 14985 (quoting 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’’). The ALJ acknowledged that ‘‘to rebut the Government’s prima facie case, the Respondent must both accept responsibility for his actions and demonstrate that he will not engage in future misconduct.’’ R.D. at 52 (citing Patrick W. Stodola, 74 FR 20727, 20734–35 (2009)). The ALJ then explained that ‘‘[t]he Respondent may accept responsibility by providing evidence of his remorse, his efforts at rehabilitation, and his recognition of the severity of his misconduct.’’ 48 Id. (citing Robert A. Leslie, 68 FR 15227, 15228 (2003)). He also explained that ‘‘[t]o accept responsibility, a respondent must show ‘true remorse’ for wrongful conduct,’’ which includes an ‘‘acknowledgment of wrongdoing.’’ Id. (citing Michael S. Moore, 76 FR 45867, 45877 (2011) and Wesley G. Harline, 65 FR 5665, 5671 (2000)). However, there are also numerous cases, that were not discussed in the Recommended Decision, which hold that where the Government has proved that a respondent committed knowing or intentional misconduct, he must unequivocally acknowledge his misconduct. See Daniel A. Glick, 80 FR 74800, 74800–01 (2015) (rejecting exception to ‘‘CALJ’s conclusion that 48 To the extent the ALJ’s statement suggests that a respondent can satisfy his burden of production on the issue of acceptance of responsibility by only producing evidence of efforts at rehabilitation, this is not the Agency’s rule. Indeed, Leslie makes it clear that it was describing the total showing that is required to refute the Government’s prima facie case. See Leslie, 68 FR at 15228 (discussing previous agency decision involving respondent and stating that ‘‘[t]he agency also found that although he was free to offer evidence that he would never again engage in the sort of conduct that resulted in his conviction, [r]espondent did not avail himself of that opportunity and offered no evidence of remorse for his misconduct, efforts at rehabilitation, or recognition of the severity of his conduct’’). The Agency has explained that where the Government has proved that a respondent has committed knowing or intentional misconduct, a respondent must fully acknowledge the misconduct that has been proved on the record to be deemed to have accepted responsibility, and absent such a showing, his evidence of remedial measures is irrelevant. See Hatem M. Ataya, 81 FR 8221, 8242– 43 (2016) (‘‘the Agency has held that proof of remedial measures is rendered irrelevant where a respondent fails to accept responsibility for his knowing or intentional misconduct’’). VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 [r]espondent has not unequivocally acknowledged his misconduct’’ and holding that ‘‘[a] registrant’s acceptance of responsibility must be unequivocal’’); Annicol Marrocco, 80 FR 28695, 28706 (2015) (denying application, holding that respondent’s ‘‘equivocal testimony provided substantial evidence to support a finding that she does not accept responsibility for her misconduct’’); Arthur H. Bell, 80 FR 50035, 50041 (2015) (denying application finding that physician’s ‘‘acceptance of responsibility is equivocal at best’’ and ‘‘his failure to accept responsibility for [intentional] misconduct is reason alone to conclude that he cannot be entrusted with a new registration’’); Michael A. White, 79 FR 62957, 62598, 62967–68 (2014) (revoking registration adopting ALJ’s finding that physician did not accept responsibility when his ‘‘acceptance of responsibility was tenuous at best,’’ ‘‘not once during the hearing did [he] unequivocally admit fault for his improper . . . prescriptions,’’ and he ‘‘minimized the severity of his misconduct’’); The Medicine Shoppe, 79 FR 59504, 59510 (2014) (revoking registration where respondent ‘‘offered generalized acceptance of responsibility’’ but then denied filling any unlawful prescriptions); Ronald Lynch, 75 FR 78745, 78754 (2010) (revoking registration agreeing with ALJ’s finding that respondent did not accept responsibility noting that he ‘‘repeatedly attempted to minimize his [egregious] misconduct).49 49 More recently, in Roberto Zayas, 82 FR 21410, 21429 (2017), I rejected the reasoning of Jeffrey Martin Ford, 68 FR 10750 (2003), which granted a new registration to a respondent who had a history of substance abuse and had been convicted of several drug felonies. In Zayas, I noted that the Ford ‘‘decision apparently excused the respondent’s failure to unequivocally accept responsibility based on his having attended drug rehabilitation and remained sober for more than 10 years, as well [as] having satisfied the conditions for reinstatement of his state license.’’ 82 FR 21429. I also noted that ‘‘the decision [did] not even address whether [the respondent] accepted responsibility for his criminal conduct.’’ Id. I further explained that I found ‘‘the reasoning of this case unpersuasive, [and] were a case with similarly egregious misconduct presented to me, I would not grant a registration absent a clear and unequivocal acceptance of responsibility for all of the misconduct that was proven on the record.’’ Id. See also Jones Total Health Care, 81 FR 79188, 79200–01 (2016) (‘‘[W]here the Government has proved that a registrant has engaged in intentional or knowing misconduct, revocation is warranted in the absence of the registrant’s unequivocal acceptance of responsibility for its misconduct.’’); Joe W. Morgan, 78 FR 61961, 61963 (2013) (‘‘Given [r]espondent’s multiple statements in which he blamed others for his troubles, that he never once acknowledged that he prescribed in violation of the CSA and Florida law, and that he attempted unpersuasively to minimize his culpability, the overwhelming weight of the evidence fully supports the ALJ’s conclusion that [r]espondent is sorry only because he was caught.’’). PO 00000 Frm 00026 Fmt 4701 Sfmt 4703 I disagree with the ALJ’s conclusion that Respondent is entitled to a finding that he has accepted responsibility for his misconduct. To the contrary, I find that his testimony was equivocal and that he repeatedly attempted to minimize his misconduct. Indeed, even after the ALJ granted Respondent a second chance to explain what he was accepting responsibility for, he still did not unequivocally acknowledge his misconduct. In this matter, Respondent was specifically charged with violating 21 CFR 1306.04(a), the CSA’s prescription regulation which requires that a controlled substance prescription ‘‘be issued for a legitimate medical purpose by [a] practitioner acting in the usual course of professional practice.’’ ALJ Ex. 1, at 1–3 (¶¶ 3–9). Indeed, the Government specifically alleged that the prescriptions ‘‘were nontherapeutic, were for other than a legitimate medical purpose, and were outside the course of professional practice.’’ Id. The Government also alleged that the prescriptions violated the counterpart provision of State law. See id. (citing Board Rule 1.16 and Miss. Code Sec. 73–25–29–(3)). The Government further alleged that Respondent violated provisions of State regulations prohibiting the prescribing of controlled substances ‘‘without conducting any examination of [his] wife (or documenting such in her file) or noting the . . . prescriptions in her patient chart,’’ as well as ‘‘without conducting sufficient examinations of [his] wife (or documenting such in her file).’’ Id. at 3 (citing, inter alia, Board Rules 1.4 and 1.16, Miss. Code Ann. Sec. 73–25– 29(3)). Notwithstanding that the Show Cause Order clearly set forth these violations, and that Dr. Chambers offered unrefuted testimony that Respondent’s prescribing was outside of the ‘‘usual course of clinical conduct,’’ ‘‘was dangerous and harmful,’’ ‘‘non-therapeutic,’’ not for a ‘‘legitimate medical practice,’’ that there was ‘‘a paucity of data to support the diagnosis or the prescriptions’’ and there was ‘‘a lack of physical or mental status exam’’ documented in the noted to justify the prescriptions, Respondent repeatedly refused to acknowledge that he violated 21 CFR 1306.04(a). While Respondent testified that he violated his contract with the State PHP (which was not a charge in this proceeding), when asked by his counsel if he violated his obligations as a DEA registrant, he asserted that he did not ‘‘know the specific legalities of DEA registration’’ but was willing ‘‘to tell you what I did was wrong, . . . without any equivocation.’’ Tr. 484–85. While he E:\FR\FM\26OCN2.SGM 26OCN2 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices ethrower on DSK3G9T082PROD with NOTICES also acknowledged that ‘‘becoming involved in a loved one’s care is foolish,’’ he then stated that he did not ‘‘know the letter or spirit of any law that I transgressed.’’ Id. at 489. And when asked why the Agency should entrust him with a new registration, he testified that ‘‘[i]f I can’t practice medicine, conforming to every jot, tittle, to the letter of the law, I can’t practice medicine,’’ but he offered no explanation as to how he would conform ‘‘to the letter of the law’’ given his acknowledgment that he does not ‘‘know the letter of or spirit of any law that [he] transgressed.’’ Id. at 489–90. Indeed, throughout his testimony, Respondent asserted that he thought the charges in this proceeding simply involved the same charges that he was found guilty of in the State Board proceeding. He doggedly denied that he violated the CSA’s prescription requirement, asserting that that it ‘‘would be speculative . . . on some level’’ for him to testify as ‘‘to what statutes I may or may not have transgressed.’’ Id. at 498. And when asked if he accepted that the prescriptions he issued to his wife ‘‘were outside the course of professional practice,’’ he asserted that he did not know how DEA defined the term ‘‘outside the course of professional practice’’ and maintained that I ‘‘do not know again . . . the specifics of . . . of what I’m being charged with by DEA now.’’ 50 Id. at 501. Given that the Show Cause Order provided fair notice to Respondent that he was charged with violating 21 CFR 1306.04(a) and that he heard the evidence against him and put up no defense, he was not required to speculate as to ‘‘what statutes [he] may or may not have transgressed.’’ Moreover, the CSA’s requirement that ‘‘a prescription for a controlled substance . . . must be issued for a legitimate medical purposes by [a] practitioner acting in the usual course of professional practice’’ is hardly a ‘‘jot’’ or a ‘‘tittle’’ of the Act.51 To the contrary, the rule is one of the Act’s fundamental features, as one of its purposes is to ‘‘ensure [] patients use controlled substances under the supervision of a doctor so as to prevent addiction and recreational abuse.’’ Gonzales, 546 U.S. at 274. 50 Yet in his Pre-hearing Statement, Respondent stated that he ‘‘will acknowledge the allegations raised by DEA in the Order to Show Cause.’’ ALJ Ex. 5, at 3. 51 See Webster’s Third New International Dictionary, at 1221 (1976) (defining ‘‘jot’’ as ‘‘the least bit: IOTA’’); see also id. at 2401(defining ‘‘tittle,’’ in part, as ‘‘a very small part’’). VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 Notably, even after the ALJ repeatedly expressed his puzzlement as to what Respondent was accepting responsibility for, Respondent testified that he was accepting responsibility for what the State said he did and again asserted that he thought the charges in the DEA proceeding were the same as the charges which he was found guilty of by the State Board. Tr. 503–05. While the ALJ subsequently gave Respondent several chances to answer this question, his testimony continued to manifest equivocation, minimization and an unwillingness to acknowledge that he violated the CSA’s prescription requirement. For example, when asked to ‘‘clarify . . . what specific actions [he was] accepting responsibility for,’’ Respondent answered: ‘‘[v]iolating the previous order, right? Writing prescriptions for my wife when I wasn’t a treating physician, which I think is not proper document, not fully proper documentation of those things.’’ Tr. 507. He subsequently testified that ‘‘if someone shows me . . . what I was saying that I’m ignorant of the specifics of a DEA charge. But if I meet the criteria and I accept I did it, then I did it.’’ Id. at 508 (emphasis added). See also id. at 514 (‘‘If someone shows me I’ve done something wrong, I will admit it.’’) However, as found above, the unrefuted evidence, including the testimony of Dr. Chambers, establishes that Respondent’s prescribing did ‘‘meet the criteria’’ for a violation of 21 CFR 1306.04(a). Yet even when confronted with this evidence, Respondent still was unwilling to accept that he ‘‘did it.’’ Id. On further cross-examination, Respondent was again asked what he thought was ‘‘wrong with respect to the prescriptions.’’ Id. at 510. While he answered that ‘‘I shouldn’t have written’’ and ‘‘I violated the contract,’’ he then stated: ‘‘[p]rompt me. I’m not trying to minimizing anything.’’ Id. Minimizing is, however, exactly what Respondent was engaged in. And when the Government again asked Respondent if he was admitting that the prescriptions were issued outside the usual course of professional practice, Respondent maintained that ‘‘as a physician, I don’t understand that term’’ and he was only willing to admit to acting outside of the usual course to the extent that his documentation was ‘‘substandard.’’ Id. at 511. He then denied that his prescribing had increased the chances of his wife’s becoming dependent, overdosing or diverting controlled substances. While it is true that on a still further round of re-direct examination, PO 00000 Frm 00027 Fmt 4701 Sfmt 4703 49729 Respondent testified that it was wrong for him to ‘‘prescribe controlled substances to someone who was under the care of another physician for those same ailments,’’ this is not a full acknowledgment of his illegal behavior. Indeed, the mere fact that a physician prescribes controlled substances to someone who is under care of another physician for the same ailments would not necessarily give rise to liability under 1306.04(a). Such prescribing would be entirely lawful under the CSA in bona fide emergency situations provided the prescriptions were limited to what was medically necessary to treat a patient before the primary physician could resume care. Here, however, Respondent has admitted to acting outside of the usual course of professional practice only to the extent he maintained ‘‘substandard records.’’ Notwithstanding Dr. Chambers’ testimony, Respondent has failed to acknowledge that his prescribing increased the risks of his wife become dependent, overdosing, or diverting controlled substances, his failure to conduct appropriate examinations, as well as his failure to notify Dr. Webb that he had prescribed the drugs. Moreover, before the State Board, Respondent maintained that his prescribing ‘‘was sporadic,’’ ‘‘was always for a confined number of pills,’’ that they were simply short gap fills which ‘‘mirrored what [Dr. Webb] had done.’’ However, as found above, many of the prescriptions provided substantially more medication than was necessary for a two to three-day period. These include 14 zolpidem prescriptions, each of which provided at least a 12-day supply (with 11 of the prescriptions providing 20 to 30 dosage units, most of which for a 20 to 30-day supply) and five of the alprazolam prescriptions, four of which were for a ten-day supply, the other being for an eight-day supply. There were also the seven hydrocodone prescriptions and a diazepam prescription, which although they were for small amounts, did not ‘‘mirror what [Dr. Webb or any other doctor] had done,’’ and are unsupported by the findings of an examination and a diagnosis. Respondent personally offered no explanation in this proceeding (or before the State Board) as to why he issued these prescriptions, which clearly provided more drugs than were medically necessary to address a two- to three-day period.52 Indeed, while 52 In his Pre-hearing Statement, Respondent also stated ‘‘he will discuss the circumstances in which E:\FR\FM\26OCN2.SGM Continued 26OCN2 ethrower on DSK3G9T082PROD with NOTICES 49730 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices Respondent maintained that he could ‘‘absolutely’’ be trusted to not engage in such prescribing in the future, that he was ‘‘not trying to avoid anything’’ and that ‘‘I have done everything that I know to do to try to remedy this situation,’’ he has not been forthcoming in this matter. Thus, I disagree with the ALJ that Respondent has ‘‘express[ed] remorse to the full extent of [his] wrongful conduct.’’ R.D. at 56. The ALJ also gave weight to Respondent’s testimony during the second State Board hearing that he was ‘‘committed to ‘absolute and complete adherence’ to applicable rules and regulations,’’ id. at 55 (citing GE 13, at 9–10), and further asserted ‘‘that his commitment to adhere to all regulations governing controlled substances is genuine.’’ Id. at 56–57. The ALJ did not explain how Respondent would accomplish this given his repeated assertions in this proceeding that he did not ‘‘know the specific legalities of DEA registration,’’ did not ‘‘know the letter or spirit of any law that [he] transgressed,’’ that he does not ‘‘know precisely how the DEA defines’’ the term ‘‘outside the course of professional practice,’’ and ‘‘as a physician, [he does not] understand [the] term.’’ Tr. 511. The ALJ also rejected as only ‘‘technically correct’’ the Government’s argument that Respondent did not accept responsibility for failing to conduct examinations and/or conducting insufficient examinations prior to issuing the prescriptions. R.D. 54–55. While the ALJ found that Respondent did not ‘‘specifically acknowledge that it was wrong of him to issue a prescription without first conducting an examination,’’ the ALJ faulted the Government for not asking this question of Respondent. Id. at 55. The ALJ further reasoned that the Government ‘‘overlook[ed] the central concern of this case, which is that the Respondent wrote prescriptions for his wife when he should not have.’’ Id. In the ALJ’s ‘‘view, the Respondent’s acceptance of responsibility for failing to examine his wife before writing her a prescription is subsumed in his general acceptance of responsibility.’’ Id. (citing Tr. 515). I cannot agree with this reasoning. As for the ALJ’s faulting of the Government for not asking Respondent if he accepted responsibility for his failure to conduct examinations or conducting inadequate examinations, Respondent, and not the Government, had the burden of production on this issue. As for the he prescribed controlled substances to his wife.’’ ALJ Ex. 5, at 3. Respondent, however, offered no such testimony. VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 ALJ’s assertion that ‘‘the central concern of this case . . . is that the Respondent wrote prescriptions for his wife when he should not have,’’ the central concern of this case is what the Government alleged in the Show Cause Order and proved at the hearing.53 The proof fully supported the allegations, which included that he issued controlled substance prescriptions that ‘‘were nontherapeutic, were for other than a legitimate medical purpose, and were outside the usual course of professional practice,’’ that he issued the prescriptions when his wife was ‘‘being issued prescriptions for the same or similar class of drugs by her . . . psychiatrist, which [he] did without her psychiatrist’s knowledge or permission,’’ and that his ‘‘actions dramatically increased the chances of [his] wife’s dependency, overdose or diversion.’’ ALJ Ex. 1, at 1–3 (¶¶ 3–7). Moreover, the Government’s allegations that Respondent violated state and federal law by issuing controlled substance prescriptions ‘‘without conducting any examination,’’ Id. at 3 (¶ 8), or ‘‘without conducting sufficient examinations,’’ id. (¶ 9), were not simply additional factual allegations to support the charges in paragraphs three to seven of the Show Cause Order but were stand-alone charges. With respect to the proven misconduct, Respondent admitted that he acted outside of the usual course of professional practice only to the extent that he failed to maintain proper records. As for the ALJ’s further assertion that his acceptance of responsibility for failing to conduct examinations was ‘‘subsumed in his general acceptance of responsibility,’’ the cited testimony does not support this, as the question, which was asked by his counsel, made no reference to his failing to conduct examinations. Tr. 515. The ALJ acknowledged that ‘‘[i]t is true . . . that Respondent did not plainly and expressly accept responsibility for violating specific federal regulations.’’ R.D. 56. Indeed, at no point did Respondent admit that he violated 21 CFR 1306.04(a) with respect to any of the prescriptions, including those which clearly were not two to three day ‘‘gap fills.’’ Nor did he ever admit that any of the prescriptions were non-therapeutic or lacked a legitimate 53 Based on the Board’s order and his recovery contract, Respondent ‘‘should not have’’ written the prescriptions. Yet, as the ALJ recognized when he expressed his puzzlement (multiple times) at to what Respondent was accepting responsibility for, the Government did not allege that Respondent violated his recovery contract or a Board Order; it alleged specific violations of federal and state laws and regulations. PO 00000 Frm 00028 Fmt 4701 Sfmt 4703 medical purpose. And he denied that his prescribing increased the risks of his wife become dependent, overdosing, or diverting controlled substances. Respondent has therefore failed to ‘‘express remorse to the full extent of [his] wrongful conduct.’’ 54 R.D. 56. The ALJ further explained that he found Respondent’s remorse to be sincere and that his acceptance of responsibility was ‘‘credible.’’ R.D. 56– 57. This case, however, is less about Respondent’s credibility (although there is ample reason to question it given his testimony regarding what he thought he had been charged with in this proceeding) 55 and more about the weight to be given to his testimony. Moreover, the ALJ failed to apply the Agency’s extensive case law which requires that an acceptance of responsibility be unequivocal, as well as that which requires a full acknowledgment of the proven misconduct. While I appreciate that the ALJ closely examined Respondent’s testimony both at this hearing and before the state board (as have I), I find it particularly disturbing that Respondent has never offered an explanation in any proceeding 56 for the 54 Earlier in his Recommended Decision, the ALJ asserted that my decision in Arvinder Singh, 81 FR 8247 (2016), ‘‘states only that a registrant may be required to acknowledge the scope of his misconduct,’’ thus suggesting that a respondent’s acknowledgment of the scope of his misconduct is optional and that he is not required to ‘‘accept responsibility for the consequences of his acts.’’ R.D. 54 (citing 81 FR at 8250–51). This is mistaken, as the case clearly stated that the respondent ‘‘was required to acknowledge . . . the full scope of his criminal behavior and the risk of diversion it created.’’ 81 FR at 8250. The risk of diversion was, of course, a consequence of the respondent’s acts, which involved pre-signing prescriptions for controlled substances which were subsequently issued by nurses who were not lawfully authorized to prescribe controlled substances and the respondent did not see the patients. Id. at 8248–49. The ALJ also gave weight to Respondent’s having ‘‘expressed remorse and accepted responsibility for writing those prescriptions during the first three weeks of his treatment at Acumen’’ as well as his testimony during the second Board hearing. R.D. 55. However, whether Respondent accepted responsibility for writing the prescriptions during his treatment at Acumen is wholly irrelevant. Likewise, because the Agency was not a party in the State Board’s proceedings, the weight to be given to Respondent’s testimony before the Board is substantially diminished. What matters is whether he accepted responsibility for the misconduct alleged and proved in this proceeding. 55 While Respondent professed that he did not understand what he was charged with in this proceeding, the Show Cause Order was clear on its face. Respondent was also represented and if he truly did not understand the allegations, he should have asked his counsel. 56 While I have noted Respondent’s testimony in the State Board proceeding as to why he issued the prescriptions, so that there is no lack of clarity for future matters, a respondent is required to present his evidence in the Agency’s proceeding. E:\FR\FM\26OCN2.SGM 26OCN2 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices ethrower on DSK3G9T082PROD with NOTICES many prescriptions he issued which clearly were not for short-term gap fills, an issue which is not even discussed in the Recommended Decision. Thus, I conclude that Respondent does not recognize the full extent of his misconduct. See MacKay v. DEA, 664 F.3d 808, 820 (10th Cir. 2011); see also Samuel Jackson, 72 FR 23848, 23852 (2007) (noting a respondent’s burden to produce sufficient evidence to assure the Administrator that he/she can be entrusted with the responsibility carried by such a registration’’). I therefore find that Respondent has failed to produce sufficient evidence to support a finding that he accepts VerDate Sep<11>2014 18:25 Oct 25, 2017 Jkt 244001 responsibility for his misconduct. While there are cases in which the Agency has imposed a sanction less than denial or revocation where a respondent has failed to meet his burden on acceptance of responsibility, those cases have involved considerably less egregious misconduct than the knowing and intentional diversion of controlled substances which occurred here. Because Respondent engaged in egregious misconduct which he has failed to fully acknowledge, his evidence of remedial measures cannot rebut the Government’s prima facie showing that his registration ‘‘would be inconsistent with the public interest.’’ PO 00000 Frm 00029 Fmt 4701 Sfmt 9990 49731 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 Lon F. Alexander, M.D., for a DEA Certificate of Registration as a practitioner, be, and it hereby is, denied. This Order is effective immediately. Dated: October 17, 2017. Robert W. Patterson, Acting Administrator. [FR Doc. 2017–23339 Filed 10–25–17; 8:45 am] BILLING CODE 4410–09–P E:\FR\FM\26OCN2.SGM 26OCN2

Agencies

[Federal Register Volume 82, Number 206 (Thursday, October 26, 2017)]
[Notices]
[Pages 49704-49731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23339]



[[Page 49703]]

Vol. 82

Thursday,

No. 206

October 26, 2017

Part II





Department of Justice





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Drug Enforcement Administration





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Lon F. Alexander, M.D.; Decision and Order; Notice

Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / 
Notices

[[Page 49704]]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 16-17]


Lon F. Alexander, M.D.; Decision and Order

    On February 4, 2016, the Deputy Assistant Administrator, of the 
then Office of Diversion Control, issued an Order to Show Cause to Lon 
F. Alexander, M.D. (hereinafter, Respondent), of Hattiesburg, 
Mississippi. ALJ Ex. 1, at 1. The Show Cause Order proposed the denial 
of Respondent's application for a DEA Certificate of Registration as a 
practitioner, on the ground that his ``registration is inconsistent 
with the public interest.'' Id. (citing 21 U.S.C. 823(f)).
    As for the Agency's jurisdiction, the Show Cause Order alleged that 
Respondent had previously held a registration which he surrendered for 
cause on January 16, 2014. Id. The Order further alleged that on 
January 9, 2015, Respondent applied for a new registration as a 
practitioner in schedules II through V, at the proposed registered 
address of 36 Bridgefield Turn, Hattiesburg, Mississippi. Id.
    As for the substantive grounds for the proceeding, the Show Cause 
Order raised multiple allegations to the effect that, on numerous 
occasions in 2011 through 2013, Respondent violated federal and state 
law by issuing controlled substance prescriptions to his wife ``that 
were nontherapeutic, were for other than a legitimate medical purpose, 
and were issued outside of the usual course of [his] professional 
practice.'' Id. at 1-3. The Show Cause Order alleged that Respondent 
``repeatedly issued'' prescriptions for schedule IV controlled 
substances which included zolpidem tartrate, alprazolam, and diazepam, 
``when she was concurrently being issued prescriptions for the same or 
similar class of drugs by her own psychiatrist, which [he] did without 
[the] psychiatrist's knowledge or permission.'' Id. The Order further 
alleged that Respondent's ``actions dramatically increased the chances 
of [his] wife's dependency, overdose, or diversion of those controlled 
substances, while also potentially complicating her psychiatric 
condition.'' Id. (citing 21 CFR 1306.04; Miss. Admin. Code Part 2640, 
Ch. 1, r. 1.7, 1.10, and 1.16; Miss. Code Ann. Sec. 73-25-29(3) & 
(13)).\1\
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    \1\ See also ALJ Ex. 1, at ]] 5-6.
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    The Show Cause Order also alleged that on various occasions from 
2011 through 2013, Respondent violated federal and state law by issuing 
his wife prescriptions for hydrocodone, then a schedule III narcotic, 
as well as other controlled substances, which were also nontherapeutic, 
for other than a legitimate medical purpose, and were outside the usual 
course of professional practice. Id. at 2-3. Specifically, the Show 
Cause Order alleged that ``[o]n at least one occasion in 2011,'' 
Respondent issued prescriptions for hydrocodone and diazepam ``to [his] 
wife concurrently with another prescription [for clonazepam] issued by 
her . . . psychiatrist,'' and that he did so ``without her 
psychiatrist's knowledge or permission.'' Id. at 2. The Order again 
alleged that Respondent's ``actions dramatically increased the chances 
of [his] wife's dependency, overdose, or diversion of . . . controlled 
substance[s], while also potentially complicating her psychiatric 
condition.'' Id. (citing same authorities as above).
    Next, the Show Cause Order alleged additional instances of non-
therapeutic prescribing by Respondent to his wife in that, ``[o]n at 
least four different occasions in 2013,'' he ``repeatedly issued . . . 
prescriptions for hydrocodone . . . zolpidem tartrate . . . and 
alprazolam . . . when she was concurrently being issued other 
controlled substances prescriptions for the same or similar drugs, as 
well as amphetamines, by her . . . psychiatrist, which [he] did without 
his knowledge or permission.'' Id. at 2-3. As with the previous 
allegations, the Order alleged that Respondent's ``actions dramatically 
increased the chances of her dependency, overdose, or diversion of 
those controlled substances, while also potentially complicating her 
psychiatric condition.'' Id. at 3 (citing same authorities as above).
    The Show Cause Order also alleged that ``[o]n at least fifteen 
different occasions between 2011 and 2013, [Respondent] violated state 
and federal law by issuing'' to his wife prescriptions for hydrocodone, 
and/or zolpidem, and/or alprazolam, ``without conducting any 
examination of [his] wife (or documenting such in her file) or noting 
the . . . prescriptions in her patient chart.'' Id. (citing same 
authorities as above). The Show Cause Order then alleged that ``[o]n at 
least nine occasions between 2011 and 2013, [Respondent] violated state 
and federal law by issuing'' to his wife prescriptions for these drugs, 
``without conducting sufficient examinations of [her] (or documenting 
such in her file).'' Id. (citing same authorities as above).
    Finally, the Show Cause Order alleged that Respondent ``engaged in 
conduct which may threaten public health and safety . . . by attempting 
to mislead DEA investigators.'' Id. (citing 21 U.S.C. 823(f)(5)). 
Specifically, the Government alleged that, ``on February 2, 2016, 
[Respondent] turned over to DEA in response to an administrative 
subpoena a record purporting to be the patient file'' of his wife. Id. 
The Order alleged that the file ``contained false entries'' in that it 
contained ``repeated reference to conversations with and attempts to 
contact [his wife's] treating psychiatrist'' and that ``DEA's 
investigation . . . indicate[s] that these statements and others 
presented as part of the purported patient file are false.'' Id.
    Following service of the Show Cause Order, Respondent, through his 
counsel, requested a hearing on the allegations. ALJ Ex. 2. The matter 
was placed on the docket of the Office of Administrative Law Judges and 
assigned to ALJ Charles Wm. Dorman. Following pre-hearing procedures, 
the ALJ conducted an evidentiary hearing in Jackson, Mississippi on 
June 29-30, 2016, at which both parties elicited testimony from 
witnesses and submitted various documents for the record. Following the 
hearing, both parties submitted briefs of their proposed findings of 
fact, conclusions of law, and argument.
    On September 20, 2016, the ALJ issued his Recommended Decision. 
Therein, with respect to Factors Two (Respondent's experience in 
dispensing controlled substances) and Four (compliance with applicable 
laws related to controlled substances), the ALJ found that the 
Government had proved that Respondent violated 21 CFR 1306.04, 
Mississippi Code Sec. 73-25-29(3) and 73-25-29(13), as well as 
Mississippi Administrative Rules 1.7, 1.10, and 1.16 when he issued 
numerous controlled substance prescriptions to his wife.
    Specifically, the ALJ found that during 2011, Respondent issued 
nine zolpidem, two alprazolam, seven hydrocodone, and one diazepam 
prescription(s) in violation of these provisions. R.D. at 39-40. The 
ALJ also found that during 2012, Respondent issued five alprazolam 
prescriptions, and that during 2013, he issued 11 alprazolam 
prescriptions in violation of these provisions. Id. at 41-43. The ALJ 
further found that in 2013, Respondent issued five hydrocodone 
prescriptions and one zolpidem prescription in violation of these 
provisions. Id. at 44.
    In addition to the above, the ALJ found that between 2011 and 2013,

[[Page 49705]]

Respondent prescribed hydrocodone 11 times, zolpidem 12 times, and 
alprazolam five times without documenting the prescriptions or a prior 
examination in his wife's patient file in violation of various 
provisions of Mississippi law and administrative rules. Id. at 46. He 
also found that on nine occasions when Respondent did document a 
prescription in his wife's file, he failed to include information 
required by state rules such as a medical history, examination results, 
or a diagnosis. Id. at 47-48 (citing Miss. Admin. Rule 1.4). The ALJ 
further concluded that ``nothing in . . . Respondent's file for his 
wife necessarily indicates that [he] ever conducted any type of 
physical or mental status examination of his wife prior to prescribing 
controlled substances to her.'' Id. at 48. He thus found proved the 
``allegation that the Respondent failed to conduct examinations and/or 
lacked adequate documentation of examinations of his wife'' in 
violation of various provisions of Mississippi law and administrative 
rules. Id. at 49.
    Turning to Factor Five (such other conduct which may threaten 
public health or safety), the ALJ rejected the allegation that 
Respondent attempted to mislead DEA investigators by providing to them 
the patient file containing false entries to the effect that he had 
made his wife's psychiatrist aware of the prescriptions. Id. at 49-52. 
The ALJ reasoned that it appeared that Respondent created the file ``as 
he was treating his wife,'' that he ``did nothing more than turn over 
his file when ordered to do so by the . . . subpoena,'' and that there 
was ``[n]o evidence . . . that, after the DEA subpoenaed the file, [he] 
created false entries or altered the file he already maintained.'' Id. 
at 51.
    The ALJ nonetheless concluded that ``Factors Two and Four weigh 
substantially in favor of denying . . . Respondent's application 
because he prescribed controlled substances to his wife for 
illegitimate and nontherapeutic purposes, outside the scope of 
professional practice, and because he did not appropriately document 
examinations of, any prescriptions to, his wife.'' Id. at 52. The ALJ 
thus found ``that the Government has made a prima facie case . . . that 
the Respondent's registration would be inconsistent with the public 
interest.'' Id.
    The ALJ acknowledged that ``[t]o rebut the Government's prima facie 
case, the Respondent must both accept responsibility for his actions 
and demonstrate that he will not engage in future misconduct.'' Id. 
(citation omitted). The ALJ explained that a ``[a] respondent must 
express remorse for all acts of documented misconduct, and may be 
required to acknowledge the scope of his misconduct.'' R.D. 52 
(citations omitted); see also id. at 54. The ALJ also explained that 
``[a]cceptance of responsibility and remedial measures are assessed in 
the context of the egregiousness of the violations and the [DEA's] 
interest in deterring similar misconduct by [the] Respondent in the 
future as well as on the part of others.'' Id. at 52 (internal 
quotations and citations omitted).
    The ALJ concluded that ``Respondent's misconduct was egregious'' in 
that he ``repeatedly and wrongfully prescribed addictive, dangerous, 
and potentially harmful controlled substances to his wife for 
approximately three years,'' which ``interfered with his wife's 
treatment and could have caused her to overdose, lose consciousness, or 
die.'' Id. at 53. The ALJ nonetheless concluded that Respondent had 
accepted responsibility for his misconduct in prescribing outside the 
usual course of practice because, by ``[s]imply acknowledging that he 
failed to properly document his treatment of his wife, [he] admitted to 
practicing outside the usual scope of professional practice.'' Id. at 
54.
    The ALJ also acknowledged Respondent's testimony ``that he did not 
think that his actions increased his wife's chances of dependency, 
overdose, or diversion,'' and that ``[t]he Government's argument that 
that Respondent did not accept responsibility for putting his wife at 
risk is also understandable.'' Id. The ALJ reasoned, however, that ``a 
respondent is not required to admit to every single component of an 
allegation in order to accept responsibility.'' Id. The ALJ then noted 
that in a proceeding before the Mississippi Board, ``Respondent 
acknowledged that his prescriptions were probably hurting his wife and 
keeping her from getting appropriate treatment.'' Id.
    As for the Government's contention that Respondent did not 
specifically acknowledge his misconduct in ``failing to conduct 
examinations and/or conduct insufficient examinations prior to 
issuing'' the prescriptions, the ALJ noted that this ``is technically 
correct.'' Id. at 54-55. The ALJ, however, rejected the Government's 
contention, reasoning that ``the Government overlooks the central 
concern of this case, which is that the Respondent wrote prescriptions 
for his wife when he should not have.'' Id. at 55. The ALJ then 
explained that ``[i]n his view, the Respondent's acceptance of 
responsibility for failing to examine his wife before writing her a 
prescription is subsumed in his general acceptance of responsibility.'' 
Id.
    While the ALJ acknowledged that Respondent declined ``to admit that 
he violated federal laws because he did not want to speculate on what 
statutes he might have violated'' and ``testif[ied] that he did not 
know whether the prescriptions were outside the scope of his 
professional practice as the DEA defines those terms,'' the ALJ 
reasoned that Respondent was not required to ``identify the specific 
federal code provisions he violated, or interpret federal laws and 
apply them to his circumstances.'' Id. at 56. The ALJ further explained 
that he found Respondent's remorse to be ``sincere and that his 
commitment to adhere to all regulations governing controlled substances 
is genuine.'' Id. at 56-57.
    The ALJ further found that Respondent had undertaken ``reasonable 
and appropriate'' remedial measures. Id. at 59. As for the Agency's 
interest in specific deterrence, the ALJ suggested that it ``might be 
negligible,'' reasoning that Respondent ``thoroughly understands that 
if he engages in any further misconduct he will face immediate 
sanctions from the'' Physicians Health Program and the State Board 
``that will end his medical career.'' Id. at 59. And while the ALJ 
noted that ``Respondent's conduct was egregious,'' he reasoned that the 
circumstances were unique because ``every allegation of misconduct . . 
. involved . . . Respondent prescribing to only his wife.'' Id. at 60. 
The ALJ then explained that Respondent's testimony in a State Board 
proceeding to the effect that his prescribing ``was not a matter of 
judgment but a matter of the heart[] merits some consideration.'' Id. 
The ALJ thus recommended that Respondent's application be granted 
subject to various conditions. Id. at 61-62.
    The Government filed Exceptions to the Recommended Decision. In its 
Exceptions, the Government contended that the ALJ committed error in 
concluding that Respondent has sufficiently accepted responsibility for 
his misconduct. Exceptions, at 3-15. The Government also contended that 
the ALJ committed error in concluding that Respondent is entitled to a 
new registration notwithstanding the egregiousness of his misconduct. 
Id. at 16-20. The Government thus argues that I should deny 
Respondent's application. Id. at 20. Respondent did not file a response 
to the Government's Exceptions.
    Thereafter, the ALJ forwarded the record to me for final agency 
action. Having considered the record in its

[[Page 49706]]

entirety including the Recommended Decision, the parties post-hearing 
briefs and the Government's Exceptions, I adopt the ALJ's findings of 
fact (while making several additional findings as to prescriptions) and 
legal conclusions with respect to paragraphs two through ten of the 
Show Cause Order. I conclude, however, that the Government's Exception 
to the ALJ's legal conclusion that Respondent has sufficiently accepted 
responsibility for his misconduct is well taken. Accordingly, I deny 
his application. I make the following factual findings.

Findings of Fact

Respondent's Registration and Licensure Status

    Respondent is a neurosurgeon licensed by the Mississippi State 
Board of Medical Licensure. R.D. 3 (citing Stipulation of Fact No. 4); 
Tr. 481-82. Respondent also previously held a DEA Certificate of 
Registration, pursuant to which he was authorized to dispense schedule 
II through V controlled substances as a practitioner. GX 1, at 1. 
However, on January 17, 2014, Respondent surrendered this registration 
for cause. Id. According to Respondent, he agreed to surrender his 
registration at the time of the State Board hearing that suspended his 
medical license. Tr. 485. On January 9, 2015, Respondent applied for a 
new practitioner's registration seeking authority to dispense 
controlled substances in schedules II through V, at a registered 
address in Hattiesburg, Mississippi. R.D. 3 (citing Stipulation of Fact 
No. 1).
    In 2008, Respondent referred himself to the Betty Ford Center, 
``when [he] realized [he] had a problem with prescription medicines'' 
and spent 90 days in treatment. Tr. 487. According to Respondent, 
``[o]nce [he] went to the Betty Ford Center, [he] disclosed to the MPHP 
[Mississippi Physician's Health Program] and ultimately the [B]oard of 
[M]edicine that [he] was now a participant.'' Id. at 488.
    In May 2008, Respondent entered into a Recovery Contract Agreement 
(hereinafter, recovery contract, contract, or RCA) with the MPHP. GE 
14, at 13. The RCA's terms included that he completely abstain from 
mood-altering addictive substances, that he not treat himself or his 
family, that he undergo random drug screens, and that he be honest. 
Id.; see also R.D. at 4.\2\
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    \2\ The ALJ noted that these facts, which are based on the 
testimony of Dr. Hambleton, the Director of the MPHP, at 
Respondent's January 15, 2015 Board Hearing, are ``not necessarily 
proven by a preponderance of the evidence.'' R.D. 4. The Director 
was, however, placed under oath in the State Board proceeding. GE 
14, at 11. He also testified in this proceeding and explained that 
with the exception of its duration, the terms of Respondent's 
current RCA (which ``is his fourth contract'') are the same as they 
were for his previous contracts. Tr. 452. Notably, his current 
contract requires that, ``[o]ther than cases of medical emergencies, 
I agree to abstain from the use of any mood-altering, addictive, or 
potentially addictive prescription medication, including amphetamine 
preparations, without written permission from MPHP.'' RX C, at 2. 
The RCA's terms also state that ``I agree not to prescribe, dispense 
or administer to family members or myself any drug having addiction-
forming or addiction-sustaining liability.'' Id.
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    In March 30, 2012, Respondent tested positive for Tramadol. He then 
returned to the Betty Ford Center for one month, after which he was 
discharged with a diagnosis of opioid dependence. GE 14, at 14-16. The 
MPHP did not, however, withdraw its advocacy on his behalf, and on June 
11, 2012, Respondent entered into a new RCA which contained the same 
terms as the previous RCA, including the prohibition on prescribing to 
family members. Id. at 16-17.
    On September 10, 2012, Respondent met with the Mississippi 
Professionals Health Committee due to its concerns that he had ``missed 
callings for random drugs screens,'' had failed to attend Caduceus 
meetings, failed to continued his aftercare therapy, failed to pay his 
bill for the drug screen testing, and had ``fail[ed] to turn in his 
support group attendance records.'' Id. at 19-20. According to Dr. 
Hambleton's testimony at the second State Board hearing, the committee 
``warned [Respondent] very carefully that any future noncompliance 
would result in [the] potential loss of [the] MPHP['s] advocacy'' and 
``that this was really his last chance to demonstrate that he could do 
what was necessary to prove that he's safe.'' Id.
    While Respondent was compliant with the issues raised by the 
committee, the committee was unaware that Respondent had been violating 
his RCA by writing controlled substance prescriptions for his wife. Id. 
at 20-21. According to Dr. Hambleton, he did not know that Respondent 
had been calling in controlled substance prescriptions for his wife 
until the State Board informed him on October 7, 2013. Id. Dr. 
Hambleton also testified in the State Board proceeding that Respondent 
did not disclose this information to his ``treatment providers at Betty 
Ford, to our committee, or [to] our staff at MPHP.'' Id.
    On October 15, 2013, the MPHP, having concluded that Respondent's 
``continued practice of medicine represent[ed] a definite threat to the 
public health'' withdrew its advocacy on behalf of Respondent. GE 14, 
at 23. Eight days later, the Board issued Respondent an order of 
prohibition which barred him from practicing medicine until further 
notice. GE 13, at 5.
    Thereafter, Respondent was charged with two counts of violating the 
State's Medical Practice Act, including violating an existing Board 
Order, Stipulation or Agreement, see Miss. Code Ann. Sec. 73-25-29(13), 
and engaging in unprofessional conduct, by engaging in dishonorable or 
unethical conduct. GE 14, at 5; see also Miss. Code Ann. Sec. 73-25-
29(8)(d) (unprofessional conduct includes ``[b]eing guilty of any 
dishonorable or unethical conduct likely to deceive, defraud or harm 
the public'').
    On January 16, 2014, the Board held a hearing on the allegations at 
which Respondent appeared. As the record of the hearing shows, the 
allegations were based on Respondent's violations of his RCA, 
particularly in his prescribing of controlled substances to his wife. 
Also at issue was his lack of honesty in failing to disclose his 
prescribing to his treatment providers as well as the MPHP committee 
and the MPHP's staff. GE 14, at 21.
    Following the hearing, the Board found Respondent guilty on both 
counts and suspended his medical license for one year, after which he 
was entitled to petition the Board for reinstatement of his license. 
Id. at 91. The Board ordered that he ``successfully complete 
multidisciplinary treatment at a treatment facility approved in advance 
by the MPHP,'' as well ``establish a provisional contract [and] take 
those steps necessary to obtain affiliation and advocacy with the 
MPHP.'' GE 13, at 7-8.
    On January 15, 2015, Respondent appeared before the Board seeking 
reinstatement. At the hearing, Dr. Hambleton (the MPHP Medical 
Director) testified in support of Respondent's petition, stating that 
he ``complied with all of our requirements and he's begun the treatment 
process at Acumen.'' Id. at 13. Dr. Hambleton further expressed his 
``belief . . . that he will comply with his contract.'' Id. At the 
conclusion of the testimony, the Board reinstated Respondent's medical 
license. Id. at 15.

The DEA Investigation

    At some point not clearly established on the record, a DEA 
Diversion Investigator (DI) assigned to the Jackson, Mississippi office 
opened an investigation into Respondent's

[[Page 49707]]

prescribing practices.\3\ Tr. 31, 90. As the DI explained, Respondent's 
``history with the Medical Board . . . gave us pause, so we began an 
investigation into . . . his prescribing habits.'' Id. The DI testified 
that he had access to the Board's investigation, Tr. 22 & 32, and 
obtained reports from the State's Prescription Monitoring Program 
showing Respondent's controlled substance prescribing. Id. at 22-23. 
Specifically, the DI obtained a ``Prescriber Activity Report'' showing 
Respondent's prescriptions from January 1, 2011 through December 31, 
2013. Tr. 24; GX 10. The DI also obtained a PMP report using the 
various names of Respondent's wife for the same period. Tr. 29; GX 11. 
Of note, however, GX 10 contains a number of prescriptions which 
Respondent issued to his wife which are not listed on GX 11.\4\
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    \3\ Earlier in his testimony, the DI stated that the 
investigation was prompted by Respondent's 2015 application. Tr. 31. 
Yet later in his testimony, the DI stated that the case was opened 
earlier, after the Board provided DEA ``with documentation regarding 
his history with them.'' Tr. 90. The DI explained that ``[w]hen we 
obtain information from the Medical Board, whether or not somebody's 
applied for a DEA license or not, we have to document that 
information . . . the different allegations that the Board has 
made[,] or evidence that they may have against a physician.'' Id. at 
90-91.
    \4\ According to the DI, when calling in the prescriptions, 
Respondent used ``several different variations of'' his wife's name. 
Tr. 38.
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    In reviewing the PMP reports, the DI found it suspicious that 
Respondent was prescribing controlled substances to his wife as ``she 
was seeing a psychiatrist, Dr. Mark Webb, during that timeframe.'' Tr. 
30. The DI ``noticed multiple prescriptions'' which Respondent 
authorized for drugs that his wife ``was receiving'' from Dr. Webb. Id. 
at 31. The DI further explained that he was ``aware that [Respondent] 
was married to . . . Ms. Alexander, so [I] knew there was a pretty good 
assumption that he was aware that she was receiving these medications, 
because she had seen Dr. Webb for such a long time.'' Id. at 32. 
According to the DI, during a phone conversation with Respondent's wife 
``[s]he advised that she needed the medications'' and that Respondent 
had written ``her some prescriptions, but that she didn't feel like 
that was a problem.'' Id. at 33. Respondent's wife also told the DI 
that ``she didn't know if her husband had patient files . . . for her 
[but] that he did prescribe some prescriptions to her.'' \5\ Id. at 34.
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    \5\ According to the DI, during this conversation, he told 
Respondent's wife (who holds a DEA registration as a Nurse 
Practitioner) that she appeared to be obtaining controlled 
substances ``from multiple doctors, including her husband'' and that 
he ``would potentially be asking her to surrender her DEA license 
because of that.'' Tr. 33-34. The DI testified that shortly after 
this conversation, he was contacted by Respondent's counsel, who 
advised that he was also representing Respondent's wife and was told 
``not to contact her anymore unless there, you know.'' Id. at 34. 
The DI did not clarify what conditions Respondent's counsel asserted 
during this conversation. Id. The DI did not subsequently speak to 
Respondent's wife. Id.
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    Thereafter, the DI visited Dr. Webb and ``asked him if he was 
aware'' that Respondent's wife was ``receiving these prescriptions 
from'' Respondent. Id. Dr. Webb ``said that he was not'' and asked the 
DI to ``look into it further.'' Id. Following the visit, the DI served 
a subpoena on Dr. Webb and obtained his patient file for Respondent's 
wife. Id. at 35; GX 3, at 1-2. Dr. Webb's file for Respondent's wife 
was entered into evidence as GX 5. Tr. 68-75.
    The DI also obtained some of ``the hard copy prescriptions from 
several different pharmacies throughout'' the State.\6\ Tr. 35-36. The 
DI presented the prescriptions to Dr. Webb and asked him: ``were these 
authorized? Did you know?'' Id. at 36. Dr. Webb ``again maintained that 
he did not'' know about the prescriptions. Id.
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    \6\ According to the DI, he provided the pharmacies with the 
prescription numbers, Respondent's wife's name, and her date of 
birth. Tr. 38.
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    The DI also served a subpoena on Respondent for ``[a]ny and all 
charts, files and/or documents, written, typed or computerized, 
relating to'' his wife. GX 4, at 1. A ten-page exhibit of Respondent's 
Medical Progress Notes for his wife was entered into evidence as GX 6. 
Tr. 67.

Dr. Webb's Testimony

    The Government called Dr. Mark Webb as a fact witness. Dr. Webb 
testified that he has practiced psychiatry in Mississippi since 1990 
and that Respondent's wife has been his patient since November 2000. 
Id. at 102, 105. Dr. Webb acknowledged that he prescribes both 
controlled and non-controlled substances and that for most of the 
patients who are treated with controlled substances, he prescribes only 
``two weeks' worth of medications'' so that ``it's a tighter leash.'' 
Id.
    According to Dr. Webb, he has ``known [Respondent] for a long 
time'' and the two ``referred patients back and forth in the 90s and 
the early 2000[s].'' Id. at 110. Dr. Webb testified that he saw 
Respondent's wife at his request. Id. He also testified that during the 
2011 through 2013 period, his medication regimen for Respondent's wife 
was to prescribe ``an anti-depressant,'' an Attention Deficit Disorder 
(ADD) medication such as Adderall XR, a sleeping medication such as 
Ambien or Restoril, and an anxiety medication such as Xanax or 
Clonazepam. Id. at 204.
    Dr. Webb testified that while he and Respondent ``talked a lot in 
the 90s and the early 2000s,'' they have ``talked less and less over 
the last 10 years.'' Id. at 110. Dr. Webb testified that his records 
show that he had talked to Respondent ``about four times'' in the 
period from January 2011 to December 2013. Id. at 111; see also GX 7, 
at 1 (memo prepared by Dr. Webb memorializing meeting with DEA noting 
that he had talked with Respondent on Dec. 20, 2011, Feb. 20, 2012, 
Sept. 4, 2012, and Aug. 5, 2013).
    According to Dr. Webb, Respondent ``would call me whenever he felt 
[his wife] was in a crisis . . . to give me that information and to . . 
. garner some help from me to her.'' Tr. 110. Dr. Webb testified that 
he never had a discussion with Respondent about the latter's 
prescribing controlled substances to his wife. Id.; see also id. at 
138. When then asked if Respondent had contacted him and told him that 
he had prescribed because his wife had ``run out'' and ``need[ed] 
some'' medication on a temporary basis, Dr. Webb answered ``no'' and 
explained that ``that would not make a lot of sense,'' because he 
(Dr.Webb) ``would be the person authorized that needed to call that 
in.'' Id. at 111. While Dr. Webb testified that there was an instance 
during which he ``walked out to the car with [Respondent's wife] . . . 
and [Respondent] was in the car with their newborn son,'' and they 
``chit-chatted [for] two seconds,'' there was no discussion of 
Respondent's prescribing of controlled substances to his wife. Id. at 
111-12; see also R.D. 16 (ALJ Finding of Fact No. 28). Dr. Webb also 
testified that he did not have a conversation with Respondent's wife 
about Respondent's prescribing to her until either late in 2015 or 
2016. Tr. 174-75.
    Dr. Webb testified that DEA Investigators showed him the ten pages 
of notes Respondent created with respect to the prescriptions he issued 
for his wife and that he compared them with the patient file he 
maintained on Respondent's wife. Id. at 116. However, ``none of'' the 
dates in the records created by Respondent ``correspond[ed] to [Dr. 
Webb's] treatment records.'' Id. at 16 (quoting GX 9 (memo created by 
Dr. Webb re: Feb. 25, 2016 meeting with DEA)). In his testimony, Dr. 
Webb adhered to his statement in the memo that he ``did not speak to 
[Respondent] on these times in question and certainly would not have 
authorized him to call in medication for my patient.'' GX 9; Tr. 117. 
As he testified, ``[t]here's no reason for somebody else to call in the

[[Page 49708]]

prescriptions. That's my job.'' Tr. 117. Subsequently, Dr. Webb 
reiterated that he did not authorize Respondent to issue any 
prescriptions to his wife during the relevant time frame. Id. at 119.

Respondent's Prescriptions for His Wife

    The evidence shows that between January 1, 2011 and October 14, 
2013 (when his medical license was suspended), Respondent issued the 
following controlled substances prescriptions for his wife.\7\
---------------------------------------------------------------------------

    \7\ The ``fill dates'' are used to identify these prescriptions 
because some of the prescriptions are not dated or bear illegible 
dates.
---------------------------------------------------------------------------

    1. January 9, 2011, eight tablets of alprazolam (Xanax) 1 mg, one 
tablet to be taken twice day, a four-day supply. GE 10, at 85; GE 11, 
at 14; GE 29, at 1-2. The record does not establish when Dr. Webb had 
last prescribed alprazolam to Respondent's wife.\8\ Respondent did not 
document the prescription in the patient file he maintained for his 
wife. See generally GE 6. Nor did he inform Dr. Webb that he had issued 
the prescription.
---------------------------------------------------------------------------

    \8\ The ALJ found that this prescription overlapped with a 30-
day prescription for zolpidem tartrate (Ambien) from Dr. Webb, which 
was filled on January 8, 2011. R.D. 16. Given that Dr. Webb 
testified that he was prescribing both Xanax for anxiety and Ambien 
for sleep to Respondent's wife simultaneously, the record does not 
establish that these were overlapping prescriptions.
---------------------------------------------------------------------------

    2. January 31, 2011, 30 tablets of zolpidem tartrate (Ambien) 10 
mg, a 15-day supply. GE 10, at 19; GE 11, at 14. Notably, on January 8, 
2011, Respondent's wife had refilled a prescription issued by Dr. Webb 
on August 31, 2010 for 60 tablets, this being a 30-day supply. GE 11, 
at 14. Thus, if taken as directed, the refill of Dr. Webb's 
prescription should have last Respondent's wife until February 7, 2011. 
On February 3, 2011 (only three days later), Dr. Webb prescribed 60 
units of zolpidem 10 to Respondent's wife. GE 11, at 13. GE 5, at 112. 
Respondent did not document the prescription in the patient file he 
maintained for his wife. GE 6. Nor did he inform Dr. Webb that he 
issued the prescription.
    3. February 7, 2011, 20 tablets of hydrocodone/acetaminophen 
(Lorcet) 7.5-650, a three-day supply. GE 10, at 23; GE 11, at 13; see 
generally Tr. 373-74 (testifying that her husband prescribed 
hydrocodone for her once in 2011). Other than on one occasion in June/
July 2013, which is discussed below, Dr. Webb did not prescribe 
hydrocodone to Respondent's wife. Moreover, the PMP report does not 
list any hydrocodone prescriptions that were issued by any other 
provider until November 30, 2011. GE 11, 11. Respondent did not 
document this prescription in the patient file he maintained on his 
wife. See generally GE 6. He also did not disclose the prescription to 
Dr. Webb.
    4. March 30, 2011, 30 tablets of zolpidem tartrate (Ambien) 10 mg, 
with a dosing instruction of one tablet at bedtime but ``may repeat for 
early,'' a 15-30-day supply. GE 10, at 85; GE 11, at 13; GE 30, at 1-2. 
Notably, the zolpidem prescription which Dr. Webb issued on February 3, 
2011 (RX #949559) provided for multiple refills, as it was refilled by 
Respondent's wife on April 9, 2011, May 23, 2011, and July 7, 2011. GE 
11, at 13; Tr. 254-55. Respondent did not document the prescription in 
the patient file he maintained on his wife. GE 6. Nor did he inform Dr. 
Webb that he issued the prescription.
    5. April 8, 2011, 15 tablets of hydrocodone/acetaminophen (Lorcet) 
10-650, one tablet every six hours as needed, a three-day supply. GE 
10, at 85; GE 11, at 13; GE 31, at 1-2. As explained above, other than 
in June/July 2013, Dr. Webb did not prescribe this drug to Respondent's 
wife, and no other physician prescribed hydrocodone to her until 
November 30, 2011. Respondent did not document the prescription in the 
patient file. GE 6. He also did not disclose the prescription to Dr. 
Webb.
    6. May 6, 2011, 30 tablets of zolpidem tartrate (Ambien) 10 mg, one 
tablet at bedtime but ``may repeat,'' a 30-day supply. GE 10, at 85; GE 
11, at 13; GE 32, at 1-2. As discussed above, Respondent's wife still 
had refills available for 60 dosage units based on the prescription 
issued by Dr. Webb on February 3, 2011, and eventually refilled the 
prescription on May 23, 2011. GE 11, at 13; Tr. 255. Respondent did not 
document the prescription in the patient file. See generally GE 6. Nor 
did he disclose the prescription to Dr. Webb.
    7. May 14, 2011, 14 tablets of hydrocodone/acetaminophen (Lorcet) 
10-650, a two-day supply. GE 10, at 19; GE 11, at 13. As explained 
above, other than in June/July 2013, Dr. Webb did not prescribe this 
drug to Respondent's wife, and no other physician prescribed 
hydrocodone to her until November 30, 2011. Respondent did not document 
the prescription in the patient file. GE 6. Nor did he disclose the 
prescription to Dr. Webb.
    8. June 28, 2011, 30 tablets of zolpidem tartrate (Ambien) 10 mg, a 
30-day supply. GE 10, at 84; GE 11, at 12. Respondent's wife still had 
a refill available for 60 dosage units based on the prescription issued 
by Dr. Webb on February 3, 2011, and eventually refilled the 
prescription on July 7, 2011. GE 11, at 12. Respondent did not document 
the prescription in the patient file. See generally GE 6. Nor did he 
disclose it to Dr. Webb.
    9. July 15, 2011, prescription (assigned RX # 4002009 by the 
pharmacy) for 28 tablets of hydrocodone-acetaminophen (Lorcet) 10-650, 
a five-day supply. GE 10, at 64. This prescription also authorized a 
refill, which Respondent's wife obtained on July 29, 2011. Id. As 
explained above, other than in June/July 2013, Dr. Webb did not 
prescribe this drug to Respondent's wife, and no other physician 
prescribed hydrocodone to her until November 30, 2011. Respondent did 
not document the prescription in the patient file. GE 6. Nor did he 
disclose the prescription to Dr. Webb.
    10. July 31, 2011, 12 tablets of zolpidem 10 mg, one tablet at 
bedtime, a 12-day supply, with one refill. GE 10, at 84; GE 11, at 12; 
GE 33, at 1-2. As found above, on July 7, 2011, Respondent's wife 
obtained a refill of a prescription for 60 zolpidem issued by Dr. Webb, 
which, if taken as directed, should have lasted her until August 6, 
2011 (this being in addition to the 30 zolpidem prescription Respondent 
issued on June 28, 2011). GE 11, at 12; Tr. 251-53. Respondent did not 
document the prescription in the patient file. See generally GE 6. Nor 
did he disclose the prescription to Dr. Webb.
    11. August 13, 2011, 20 tablets of alprazolam (Xanax) 1 mg, one-
half to one tablet, to be taken twice a day, a 10-20-day supply. GE 22, 
at 1-2.\9\ Notably, on August 4, 2011, Respondent's wife had refilled a 
prescription issued by Dr. Webb for 45 alprazolam 2 mg, a 15 day 
supply. GE 11, at 12. Thus, if taken as directed, this refill should 
have lasted Respondent's wife until August 19, 2011. Moreover, on 
August 16, 2011, Dr. Webb issued Respondent's wife a new prescription 
for 90 alprazolam 2mg, a 30-day supply. Id. Respondent did not document 
the prescription in his wife's patient file. See generally GE 6.\10\ 
Nor

[[Page 49709]]

did he disclose the prescription to Dr. Webb.
---------------------------------------------------------------------------

    \9\ Although this prescription was filled on August 13, 2011, 
see GE-22, at 2, it does not appear on Mrs. Alexander's PMP. See GE-
11, at 12. However, a copy of the prescription and the fill sticker 
is in the record. GE 22.
    \10\ The Respondent's patient file for his wife mentions a 
prescription for 20 tablets of Xanax, 2 mg, dated July 13, 2011. See 
GE-6, at 1. The patient file says he prescribed Xanax because ``Jill 
out of Xanax--in Philadelphia--Has had twitching--[illegible] Dr. 
Webb has not called back.'' GE-6, at 1. Dr. Webb, however, had no 
notes in his file about any attempt by the Respondent to contact him 
on July 13, 2011. See Tr. 126. However, neither the PMP reports, nor 
the copies of the prescriptions, support a finding that Respondent 
issued an alprazolam prescription on or about this date.
---------------------------------------------------------------------------

    12. August 28, 2011, 12 tablets of zolpidem tartrate (Ambien) 10 
mg, a 12-day supply. GE 10, at 19. Notably, on August 16, 2011, 
Respondent's wife had obtained and filled a new prescription from Dr. 
Webb for 60 zolpidem, a 30-day supply. GX 11, at 12. If taken as 
directed, Dr. Webb's prescription should have lasted Respondent's wife 
until September 15, 2011. Moreover, as found above, Respondent had also 
provided a refill when he issued the July 31, 2011 prescription (RX# 
443737), and this refill was still available to his wife on August 28, 
2011. GE 11, at 12. Respondent did not document the prescription in the 
patient file. See generally GE 6. He also did not disclose the 
prescription to Dr. Webb.
    13. September 6, 2011, 12 tablets of zolpidem tartrate (Ambien) 10 
mg, a 12-day supply, this being a refill authorized by Respondent's 
July 31, 2011 prescription. GE 11, at 12. As discussed in the preceding 
paragraph, Dr. Webb's August 16, 2011 prescription should have lasted 
Respondent's wife until September 15, 2011. In addition, Respondent's 
August 28, 2011 prescriptions provided his wife with additional 
medication in excess of what Dr. Webb had prescribed. As found above, 
Respondent did not document the original prescription in the patient 
file nor disclose it to Dr. Webb. See generally GE 6.
    14. September 28, 2011, 16 tablets of hydrocodone/apap 10/650, a 
four-day supply with one refill. See GE 10, at 64. As explained above, 
other than in June/July 2013, Dr. Webb did not prescribe this drug to 
Respondent's wife, and no other physician prescribed hydrocodone to her 
until November 30, 2011. Respondent did not document the prescription 
in the patient file. See GE 6. Nor did he disclose the prescription to 
Dr. Webb.
    15. October 11, 2011, 20 tablets of zolpidem tartrate (Ambien) 10 
mg, one tablet at bedtime, a 20-day supply. GE 10, at 84; GE 11, at 11; 
GE 34, at 1-2; Tr. 249. Of note, on September 19, 2011, Respondent's 
wife had refilled Dr. Webb's August 16, 2011 prescription and obtained 
60 tablets, a 30-day supply. GE 11, at 12. If taken as directed, the 
September 19 refill should have lasted Respondent's wife until October 
19. GE 11, at 12; Tr. 248-49. Respondent did not document the 
prescription in the patient file. See generally GE 6. Nor did he 
disclose it to Dr. Webb.
    16. October 20, 2011, 16 tablets of hydrocodone-acetaminophen 
(Lorcet) 10-650, a four-day supply, this being a refill of the 
September 28, 2011 prescription. GE 10, at 64. As explained above, 
other than in June/July 2013, Dr. Webb did not prescribe this drug to 
Respondent's wife, and no other physician prescribed hydrocodone to her 
until November 30, 2011. As found above, Respondent did not document 
the prescription or the refill in the patient file. See GE 6. Nor did 
he disclose the prescription to Dr. Webb.
    17. November 13, 2011, 18 tablets of clonazepam 2mg, a six-day 
supply. GE 10, at 19. Notably, on November 3, 2011, Respondent's wife 
had refilled a prescription issued by Dr. Webb on October 19, 2011 for 
45 dosage units, a 15 day supply. GE 11, at 11. If taken as directed, 
the November 3 refill should have lasted Respondent's wife until 
November 18, 2011. Moreover, on November 15, 2011, only two days after 
filling the prescription she obtained from her husband, Respondent's 
wife obtained a further refill of Dr. Webb's prescription for 45 dosage 
units of clonazepam. GE 11, at 11. Respondent did not document the 
prescription in the patient file. See generally GE 6. Nor did he 
disclose it to Dr. Webb.
    18. November 25, 2011, 10 tablets of clonazepam 2 mg, a three-day 
supply. GE 10, at 63. If taken as directed, by itself, the November 15, 
2011 refill should have lasted Respondent's wife until November 30, 
2011. Respondent did not document the prescription in the patient file. 
GE 6. Nor did he disclose it to Dr. Webb.
    19. November 29, 2011, four tablets of hydrocodone/acetaminophen 
(Lorcet) 10-650 mg, one tablet to be taken four to six times a day, a 
one-day supply. GE 26. Respondent did not document the prescription in 
the patient file. GE 6. He also did not disclose the prescription to 
Dr. Webb.
    20. Also on November 29, 2011, one Diastat Acudial, 5-7.5-10 mg 
kit. GE 10, at 92; GE 11, at 11; GE 28, at 1. Diastat Acudial is a 
rectal suppository of diazepam, which is also a benzodiazepine and a 
schedule IV controlled substance.\11\ Tr. 260-61; 21 CFR 1308.14(c). 
Respondent did not document the prescription in the patient file. See 
GX 6. Nor did he disclose it to Dr. Webb.
---------------------------------------------------------------------------

    \11\ Dr. Chambers, the Government's Expert testified that this 
prescription ``is a bit puzzling because it's clear she's taking 
oral meds and usually that's reserved for people who can't take'' 
the oral form of the drug. Tr. 259.
---------------------------------------------------------------------------

    21. December 5, 2011, 10 tablets of hydrocodone-acetaminophen 
(Lorcet) 10-650, a three-day supply. GE 10, at 63. Respondent did not 
document the prescription in the patient file. See generally GE 6. Nor 
did he disclose it to Dr. Webb.
    22. December 27, 2011,\12\ 30 tablets of zolpidem tartrate (Ambien) 
10 mg, one tablet a day at bedtime, a 30-day supply. GE 10, at 80; GE 
21, at 1-2. However, on December 16, 2011, Respondent's wife had 
obtained a refill of Dr. Webb's August 16, 2011 prescription for 60 
dosage units, a 30-day supply. GE 11, at 11. Thus, if taken as 
directed, the December 16 refill should have lasted Respondent's wife 
until January 15, 2012. In Respondent's patient file for his wife, he 
documented: ``Jill not sleeping. Holiday schedule at Mississippi 
Neuropsychiatric--stress of house repossession and moving in with 
mother-in-law. Erratic. Bugs. Ambien 10 mg #30 [one to two orally at 
bedtime]. No response on-call dr.'' GE 6, at 1. Respondent did not 
disclose the prescription to Dr. Webb.
---------------------------------------------------------------------------

    \12\ The Government established that this was a Tuesday. Tr. 
190.
---------------------------------------------------------------------------

    23. January 7, 2012, 28 tablets of zolpidem 10 mg, a 28-day supply. 
GE 10, at 63. As found above, on December 16, 2011, Respondent's wife 
had obtained a refill of Dr. Webb's prescription and obtained 
medication that should have lasted her until January 15, 2012. 
Moreover, on December 27, 2011, she filled the prescription Respondent 
wrote her for 30 more tablets. Respondent's patient file for his wife 
does not document the issuance of a zolpidem prescription on this date, 
but rather on January 10, 2012. See generally GE 6. That entry states: 
``Jill Philadephia at M-I-L house,'' ``Pills discarded--tension--No 
vehicles (Bankruptcy).'' GE 6, at 2. The entry then lists a 
prescription for 30 Ambien 10 mg, with a dosing instruction of one 
tablet by mouth per day. Id. Moreover, Respondent did not disclose the 
prescription to Dr. Webb.
    24. January 16, 2012, 30 tablets of alprazolam (Xanax) 2 mg, to be 
taken ``as directed.'' \13\ GE 23, at 1-2. However, on January 5, 2012, 
Respondent's wife had refilled a prescription (Rx# 976879) issued by 
Dr. Webb for 45 tablets, a 15-

[[Page 49710]]

day supply, and that prescription had an additional refill remaining 
which Respondent's wife obtained on February 14, 2012. GE 11, at 10. In 
his wife's patient file, Respondent wrote: ``Dr. Webb wants Jill to 
come in. Difficult [with] transportation--Will Rx 10 day supply til 1/
26/12--Webb aware--Xanax 2 mg #30 [two orally three times a day].'' GE 
6, at 2. Dr. Webb testified, however, that neither Respondent nor 
Respondent's wife ever told him about any prescription issued by 
Respondent.\14\ Tr. 115-17, 119, 138, 174-75; see also R.D. 16 (Finding 
of Fact No. 28).
---------------------------------------------------------------------------

    \13\ While neither PMP report contains an entry for an 
alprazolam prescription issued by Respondent for his wife on this 
date, Government Exhibit 23 contains a copy of the prescription and 
the fill sticker showing that on January 16, 2012, Respondent 
issued, and his wife filled a prescription for 30 alprazolam 2 mg. 
Notwithstanding that the prescription appears to be dated ``1/16/
11,'' the fill sticker states that the prescription was written on 
``01/16/12.'' GX 23, at 1-2.
    \14\ January 16, 2012 was a Monday. Tr. 190.
---------------------------------------------------------------------------

    25. February 26, 2012, 20 tablets of diazepam 5 mg, a six-day 
supply. GX 11, at 10. Of note, on February 23, 2012, Respondent's wife 
had obtained and filled a new prescription from Dr. Webb for 45 
alprazolam 2 mg, a 15-day supply; this prescription (Rx# 982872) also 
authorized three refills. Id. at 10-11. Diazepam and alprazolam are 
both benzodiazepines and are used to treat anxiety. Tr. 259. Dr. Webb 
did not prescribe diazepam to Respondent's wife. See generally GE 11; 
Tr. 204; GX 5. Respondent did not document the prescriptions in his 
wife's patient file. See GE 6. Nor did he disclose the prescription to 
Dr. Webb.
    26. March 4, 2012, 30 tablets of zolpidem10 mg, a 30-day supply. GE 
10, at 13; GE 11, at 10. Of note, on February 23, 2012, Respondent's 
wife obtained and filled a prescription from Dr. Webb for 30 zolpidem, 
a 15-day supply. GE 11, at 10. If taken as directed, Dr. Webb's 
prescription should have lasted Respondent's wife until March 9, 2012. 
Moreover, Dr. Webb's Feb. 23 prescription provided for two refills, the 
first of which Respondent's wife obtained on March 19, 2012, 
respectively. GE 11, at 10. Respondent did not document the 
prescription in the patient file. See generally GE 6. Nor did he 
disclose the prescription to Dr. Webb.
    27. March 12, 2012, 12 tablets of alprazolam (Xanax) 2 mg, one 
tablet to be taken three times a day, a four-day supply. GE 10, at 80; 
GE 20. As found above, on February 23, 2012, Dr. Webb issued a 
prescription for 45 tablets of alprazolam 2 mg, a 15-day supply, which 
authorized three refills. GE 11, at 9-10. In the patient file, 
Respondent wrote: ``Out of Xaax [sic] x 5 days--Jerky & twitching--
feels like Extreme anxiety--digging at arms [-] delusional parasitosis? 
Will give 4 day supply--[illegible] talk to Dr. Webb--Xaax [sic] 2 mg 
#12,'' followed by the dosage instruction of one tablet by mouth, three 
times a day.'' GE 6, at 3. Respondent's wife had available a refill of 
Dr. Webb's February 23 prescription which she could have filled on this 
date (without being early) but which she did not fill until March 19, 
2012. GE 11, at 10. Respondent did not disclose the prescription to Dr. 
Webb.
    28. March 12, 2012, 30 tablets of zolpidem 10 mg, 30-day supply. GE 
10, at 80. As found above, on March 4, 2012, Respondent prescribed 30 
zolpidem (a 30-day supply) for his wife which she filled the same day. 
GE 11, at 10. If taken as directed, Respondent's March 4 prescription 
should have lasted until April 3, 2012. Also, Dr. Webb's Feb. 23, 2012 
prescription (for 30 tablets) authorized multiple refills and 
Respondent's wife obtained a refill on March 19, 2012. Id. Respondent 
did not document the prescription in his wife's patient file. See GE 6. 
Nor did he disclose the prescription to Dr. Webb.
    29. April 1, 2012, 24 tablets of zolpidem tartrate (Ambien) 10 mg, 
a 24-day supply. GE 10, at 13; GE 11, at 10. Putting aside that 
Respondent's March 4 prescription should have lasted through April 3, 
2012, as found above, Respondent's wife obtained 30 tablets on March 12 
when she filled his prescription and another 30 tablets on March 19, 
when she refilled Dr. Webb's Feb. 2, 2012 prescription. GE 11, at 10. 
Respondent did not document the prescription in his wife's patient 
file. See GE 6. Nor did he disclose the prescription to Dr. Webb.
    30. April 2, 2012, 120 units of hydrocodone-homatropine syrup 
(Hycodan), one teaspoon every four to six hours as needed. GE 19, at 1-
2.\15\ Respondent did not document the prescription in his wife's 
patient file. See GE 6. Nor did he disclose the prescription to Dr. 
Webb.
---------------------------------------------------------------------------

    \15\ Although this prescription does not appear on either of the 
PMP reports, the Government produced both the prescription and the 
fill sticker showing that the drug was dispensed on April 2, 2012. 
See GE 19, at 2.
---------------------------------------------------------------------------

    31. June 18, 2012, 20 tablets of alprazolam (Xanax) 2 mg, one 
tablet to be taken twice a day, a 10-day supply. GE 10, at 75; GE 11, 
at 9; GE 15, at 1-2; Tr. 262. Respondent's wife still had a refill 
remaining on Dr. Webb's Feb. 23, 2012 prescription for 45 alprazolam, 
which she filled on July 5, 2012. GE 11, at 9. Respondent did not 
document the prescriptions in his wife's patient file. See generally GE 
6. Nor did he disclose the prescription to Dr. Webb.
    32. July 17, 2012, 20 tablets of alprazolam (Xanax) 2 mg, one 
tablet twice a day, a 10-day supply. GE 10, at 13; GE 11, at 9; see Tr. 
262-63. As noted above, on July 5, 2012, Respondent's wife obtained 45 
tablets (15 days) of alprazolam when she refilled Dr. Webb's 
prescription. GE 11, at 9. In a note (dated July 14, 2012) in his 
wife's patient file, Respondent wrote: ``she had done very well without 
medicine--even though extremely stressful living conditions. . . . 4 
month no meds--depressed, crying, jittery--Has been in contact [with] 
Dr. Webb. . . . She feels self harm--but no SI. Xanax 2 mg #20 6 day 
supply.'' GE 6, at 4; Tr. 130. Respondent did not disclose the 
prescription to Dr. Webb, and Dr. Webb did not talk to the Respondent's 
wife on July 14, 2012. See generally GE 5; Tr. 131. Dr. Webb also 
testified that neither Respondent nor Respondent's wife ever told him 
about any prescription issued by Respondent. Tr. 115-17, 119, 138, 174-
75; see also R.D. 16 (Finding of Fact No. 28).
    33. August 13, 2012, 30 tablets of hydrocodone/acetaminophen, 10-
650, one tablet every four hours, a five-day supply. GE 10, at 80; GE 
11, at 9; GE 16, at 1. Respondent did not document the prescription in 
his wife's patient file. See GE 6. Nor does the PMP report show that 
any other doctor prescribed hydrocodone to Respondent's wife between 
December 22, 2011 and December 16, 2012. GE 11, at 8-10. Respondent did 
not disclose the prescription to Dr. Webb.
    34. October 5, 2012, 12 tablets of alprazolam (Xanax) 2 mg, a four-
day supply. GE 10, at 22; GE 11, at 9. On September 24, 2012, Dr. Webb 
prescribed and Respondent's wife filled a prescription for 45 
alprazolam 2 mg, a 15-day supply, which also provided for two refills. 
GE 11, at 9. If taken as directed, Dr. Webb's prescription should have 
lasted until October 9, 2012. In his wife's patient file, Respondent 
wrote: ``Dr. Webb Rx Xanax--She is out 2 days early--Laceration/
cutting--severe anxiety & depression--arms excoriated No return call 
from weekend MD--I have to leave to work out of town Xanax 2 mg #12 
Walgreens 3-4 day supply through weekend.'' GE 6, at 5. While the note 
also appears to state ``aware -,'' Dr. Webb did not have any notes in 
his file regarding any calls from Respondent on October 5, 2012, Tr. 
131, and I find that Respondent did not disclose the prescription to 
Dr. Webb. I also find that Respondent's wife did not disclose the 
prescription. Tr. 174-75.
    35. December 22, 2012, 15 capsules of Dextroamphetamine-Amphetamine 
ER 20 mg, a five-day supply. GE 11, at 8. While Dr. Webb had prescribed 
this drug to Respondent's wife, see id., Respondent did not disclose 
the prescription to Dr. Webb. Nor did

[[Page 49711]]

Respondent document the prescription in his wife's patient file. See GE 
6.
    36. January 11, 2013, 10 tablets of alprazolam (Xanax) 2 mg, a 
three-day supply. GE 10, at 21; GE 11, at 8. According to the PMP 
report, on January 10, 2013, Respondent's wife refilled a prescription 
issued by Dr. Webb \16\ (Rx #996307) for 45 tablets of alprazolam 2 mg, 
a 15-day supply. Id. If taken as directed, the January 10 refill 
provided enough medication to last Respondent's wife until January 25. 
The PMP report also shows that on December 30, 2012, Respondent's wife 
had refilled a different prescription issued by Dr. Webb \17\ (RX 
#2703928) for 45 tablets of alprazolam 2 mg, a 15-day supply. Id. If 
taken as directed, the December 30 refill provided enough medication to 
last Respondent's wife until January 14, 2013. Respondent did not 
document the prescription in his wife's patient file. See generally GE 
6. Nor did he disclose the prescription to Dr. Webb.
---------------------------------------------------------------------------

    \16\ The prescription was originally issued on July 26, 2012 and 
provided five refills. GE 11, at 8.
    \17\ The prescription was originally issued on November 6, 2012. 
GE 11, at 8.
---------------------------------------------------------------------------

    37. January 11, 2013, six capsules of temazepam, a three-day 
supply. GE 11, at 8. According to the PMP report, on January 10, 2013, 
Respondent's wife refilled a prescription issued by Dr. Webb for 30 
capsules of the drug, a 30-day supply. Id. If taken as directed, the 
January 10 refill provided enough medication to last Respondent's wife 
until February 9, 2013. Respondent did not document the prescription in 
his wife's patient file. See GE 6. Nor did he disclose the prescription 
to Respondent.
    38. January 23, 2013, 15 tablets of alprazolam 2 mg, to be taken 
``as directed.'' \18\ GE 17; GE 10, at 79; GE 11, at 7. An entry in 
Respondent's file (dated January 20, 2013) states ``Jill has opened 
sore on nose,'' ``arms--del. parastosis [sic]--arms,'' ``cutting--
Anxiety/depression,'' ``Out of her Xanax--inconsolable,'' ``weekend--No 
return from on-call,'' ``Xanax #15,'' ``will contact Dr. Webb in Am,'' 
``No HI/SI,'' and a dosing instruction of ``TID prn.'' GE 6, at 5. Dr. 
Webb's patient file for his wife does not document a call from the 
Respondent on or near this date. See GE 5; Tr. 131-32. I therefore find 
that Respondent did not disclose the prescription to Dr. Webb.
---------------------------------------------------------------------------

    \18\ Both the prescription label and the PMP report list this as 
being a 30-day supply. See GE 17; GE 10, at 79. However, according 
to Respondent's note in the file, the dosing instruction was take 
the drug three times a day as needed.
---------------------------------------------------------------------------

    39. January 23, 2013, 30 tablets of hydrocodone/apap 10-650, a 
five-day supply. GE 11, at 7. Respondent's wife had obtained 
prescriptions on December 16, 2012 for 20 tablets for hydrocodone/apap 
7.5/500 (a two-day supply) and on December 18, 2012 for 20 tablets of 
hydrocodone/apap 10/500 (a five-day supply) from Dr. Pecunia. GE 11, at 
8. However, she was not regularly being prescribed hydrocodone. See 
generally GE 11. Respondent did not document the prescription in his 
wife's patient file. See GE 6. Nor did he disclose the prescription to 
Dr. Webb.
    40. February 5, 2013, eight tablets of alprazolam 2 mg, a two-day 
supply. GE 10, at 86; GE 11, at 7; GE 40, at 2. In his wife's patient 
file, Respondent wrote: ``Agitated--open sore on nose & hair line--Back 
from attempted trip--weathered out--returned with tons of anxiety--ran 
out of meds while OOT \19\--Minneapolis.'' GE 6, at 6. The note further 
states: ``Xanax #8 CVS Hattiesburg Zoloft #7'' and ``Filled Dr. Webb in 
on Travel--Jill did.'' GE 6, at 6. Respondent did not, however, 
disclose the prescriptions to Dr. Webb.
---------------------------------------------------------------------------

    \19\ The ALJ presumed, with reason, that ``OOT'' is an 
abbreviation for ``out of town.'' R.D. 22 n.32.
---------------------------------------------------------------------------

    41. February 27, 2013, 10 tablets of alprazolam 2 mg, a three-day 
supply. GE 6, at 6; GE 10, at 86; GE 11, at 7. On February 19, 2013, 
Respondent's wife filled a prescription written by Dr. Webb for 45 
alprazolam 2 mg, a 15-day supply. GE 5, at 70; GE 11, at 7. If taken as 
directed, Dr. Webb's prescription should have provided Respondent's 
wife with enough medication to last until March 6, 2013. In his wife's 
patient file, Respondent wrote: ``Anxious about marital situation--
sores on nose/forehead will not heal--No HI/SI--out of her meds early--
Out of Xanax,'' ``Xanax #10 [one orally three times a day] CVS Hardy St 
(enough for weekend) (Monday: Dr. Webb refilled for her).'' GE 6, at 6.
    42. March 27, 2013, 14 tablets of alprazolam (Xanax) 2 mg, one 
tablet to be taken three times a day as needed, a five-day supply, 
which was filled the next day.\20\ GE 36; GE 10, at 86; GE 11, at 7. On 
March 19, 2013, Respondent's wife had refilled a prescription issued by 
Dr. Webb for 45 alprazolam 2 mg, a 15-day supply. GE 11, at 7. If taken 
as directed, the refill of Dr. Webb's prescription should have provided 
Respondent's wife with enough medication to last until April 3, 2013. A 
note dated ``3/28/13'' in his wife's patient file, states: ``Marital/
physical/mental stress. Sky high Marriage Workshop in Montana just 
accentuated--depilitating hairline--[illegible] meds needs plastic 
surg[ery] to fix--Out of Xanax early--rebound anxieties--self-harm--
Xanax #14--CVS Hardy St.'' GE 6, at 7. The note also includes the 
following addendum: ``Dr. Webb aware--he called in Restoril/Zoloft & 
the Xanax (3/30/13).'' Id. Dr. Webb, however, was not aware of this 
prescription. Tr. 132-33; 174-75. Further, Dr. Webb's file contains no 
documentation of any contact by Respondent around March 28 through 30. 
Tr. 133; see generally GE 5; GE 7-9. Notably, Respondent did not note 
what dose of Xanax he prescribed or the dosing instructions. See GE 6, 
at 7; see Tr. 266, 287-88.
---------------------------------------------------------------------------

    \20\ Although the PMP entry (as well as Respondent's note) are 
dated March 28, 2013, the prescription was written on March 27. See 
GE 36, at 1.
---------------------------------------------------------------------------

    43. May 10, 2013, 14 tablets of alprazolam (Xanax) 2 mg, one tablet 
to be taken three times a day as needed, a four-day supply. GE 10, at 
86; GE 11, at 7; GE 37, at 1-2. On April 30, 2013, Respondent's wife 
obtained a refill of a prescription issued by Dr. Webb for 45 
alprazolam 2 mg, a 15-day supply. GE 11, at 7; Tr. 267. If taken as 
directed, the refill of Dr. Webb's prescription should have provided 
Respondent's wife with enough medication to last until May 15, 2013. 
Respondent did not document the prescription in his wife's patient 
file. GE 6. Nor did he disclose the prescription to Dr. Webb.
    44. May 13, 2013, 12 tablets of alprazolam (Xanax) 2 mg, one tablet 
to be taken three times a day, a four-day supply. GE 10, at 21; GE 11, 
at 7; GE 41, at 1-2. Respondent wrote in his wife's patient file: ``Out 
of Xanax 2 days early--she says repeated [illegible] calls--no answer--
No healing on face/arm--repeated re-openings. I am scheduled OOT next 4 
days--Xanax #12 [once orally three times a day].'' GE 6, at 8. 
Respondent had already prescribed a four-day supply of Xanax to his 
wife on May 10; additionally, Respondent's wife still should have had 
two days' worth of Xanax left from Dr. Webb's April 30 refill. GE 11, 
at 7; Tr. 267. Respondent did not disclose the prescription to Dr. 
Webb. While the note also states that Respondent prescribed ``Ambien 10 
for sleep,'' GE 6, at 8, the record does not contain a zolpidem 
prescription with this date.
    45. May 20, 2013, 20 tablets of zolpidem 10 mg, one tablet at 
bedtime, a 20-day supply. GE 10, at 85; GE 11, at 7; GE 38, at 1-2. 
Respondent's patient file contains no note for a prescription issued on 
this date. GE 6, at 8. On May 23, 2013, Dr. Webb prescribed 30 du of 
another sleep medication, Restoril 30 mg (temazepam), with five 
refills, to Respondent's wife. GE 5, at 102; GE 11, at 6; Tr. 133-34. 
Moreover, the PMP report shows that Dr. Webb had been prescribing 
temazepam with refills to Respondent's wife beginning on July 26,

[[Page 49712]]

2012 and had not issued a zolpidem prescription to her since February 
23, 2012, which she last refilled more than a year earlier on April 12, 
2012. GE 11, at 7-10. Respondent did not discuss the prescription with 
Dr. Webb. Tr. 133. In an entry dated ``5/23,'' Respondent wrote: ``Dr 
Webb--started Zoloft & Buspar--And [R]estoril[.] Ambien discarded--only 
Restoril.'' GE 6, at 8. As also found above, Respondent had previously 
prescribed temazepam for his wife on January 11, 2013. GE 11, at 8.
    46. July 1, 2013, 20 tablets of hydrocodone/acetaminophen (Lorcet), 
10-650, a five-day supply.\21\ GE 10, at 93; GE 11, at 6; GE 27, at 1. 
In his wife's patient file, Respondent wrote: ``Her mother in hospital 
in Jackson--dying--in ICU/hospice--she had seizure--injured shoulder/
rib finger. Fractured teeth. Would not go to ER--Lorcet 10/650 #20,'' 
which was followed by illegible handwriting. GE 6, at 9; Tr. 134. 
Respondent did not discuss those injuries with Dr. Webb at any point; 
further, Respondent's wife had an appointment with Dr. Webb on July 1. 
Tr. 134. While Dr. Webb did not prescribe any medications to 
Respondent's wife at this visit, she did fill a prescription for 90 
capsules of Adderall XR 20 (amphetamine), which Dr. Webb issued on June 
28, 2013. GE 11, at 6; Tr. 273. Also, on June 28, 2013, she had 
obtained from Dr. Webb and filled new prescriptions for 45 alprazolam 2 
mg, a 15-day supply, and 30 temazepam 30 mg, a 30-day supply. GE 11, at 
6.
---------------------------------------------------------------------------

    \21\ See GE-14, at 59 (admitting to calling in a prescription 
for Lorcet in July).
---------------------------------------------------------------------------

    47. July 7, 2013, 12 tablets of alprazolam (Xanax) 2 mg, one tablet 
to be taken twice a day, a six-day supply. GE 35, at 1-4; see GE 10, at 
41; GE 11, at 6; Tr. 268-69. However, if taken as directed, the June 28 
alprazolam prescription from Dr. Webb should have provided enough 
medication to last Respondent's wife until July 13, 2013. In his wife's 
patient file, Respondent wrote: ``She is out of her Xanax early. Dr. 
Webb is aware of the tremendous stress of her mother's illness. No 
return call on-call MS Neuro [illegible] Xanax #12/Lorcet #12 
Walgreens.'' GE 6, at 9; Tr. 135. Dr. Webb's file for Respondent's wife 
does not document a call from Respondent on this date. See generally GE 
5; GE 7-9; Tr. 135.
    48. July 7, 2013, 12 tablets of hydrocodone/apap 10-650 mg, one 
tablet to be taken four to six times a day, a two-day supply. 
Respondent's note in his wife's patient file does not discuss his 
reason for prescribing hydrocodone. See GE 6, at 9. Respondent did not 
disclose the prescription to Dr. Webb.
    49. July 25, 2013, 12 tablets of hydrocodone/apap, 10-650, one 
tablet every six hours as needed, a three-day supply. GE 10, at 21; GE 
11, at 5; GE 42, at 1-2. Respondent did not document this prescription 
in his wife's patient file. See generally GE 6. He also did not 
disclose the prescription to Dr. Webb.
    50. July 29, 2013, eight tablets of alprazolam 2 mg, one tablet to 
be taken three times a day as needed, a two-day supply. GE 10, at 85; 
GE 11, at 5; GE 39, at 1-2. The PMP shows that on July 19, 2013, 
Respondent's wife had obtained a refill of a prescription issued by Dr. 
Webb for 45 alprazolam 2 mg, a 15-day supply. GE 11, at 6. If taken as 
directed, the refill should have provided Respondent's wife with enough 
medication to last until August 3, 2017. In his wife's patient file, 
Respondent wrote: ``Out of Xanax--buried her mother--funeral--Dr. Webb 
back Thursday. Xanax #8 [once orally three times a day].'' GE 6, at 9; 
Tr. 136. Dr. Webb testified that he did not receive any message or have 
any contact with Respondent on this day, Tr. 136, and there is nothing 
in Dr. Webb's file for Respondent's wife that indicates that he was 
contacted by Respondent around July 29, 2013. See GE 5; GE 7-9. I find 
that Respondent did not disclose the prescription to Dr. Webb.
    51. August 15, 2013, 14 tablets of hydrocodone/apap 10-650, one 
tablet every four to six hours as needed, a two-day supply. GE 10, at 
21; GE 11, at 5; GE 43, at 1-2. Respondent did not document the 
prescription in his wife's patient file. See generally GE 6. Nor did he 
disclose the prescription to Dr. Webb.
    52. August 22, 2013, 15 tablets of alprazolam (Xanax), 2 mg, one 
tablet to be taken three times a day, a five-day supply. GE 10, at 67; 
GE 11, at 5; GE 24, at 1-2. According to the PMP report, Dr. Webb 
issued his last alprazolam prescription to Respondent's wife on July 
31, 2013 for 45 tablets, a 15-day supply, and the PMP report contains 
no entry for any refill of this prescription. GE 11, at 1-5. The PMP 
report further shows that on August 5, 2013, Dr. Webb had re-commenced 
prescribing clonazepam, a different benzodiazepine. GE 11, at 5; see 
also GE 5, at 71. In an entry in his wife's patient file dated ``8/24/
13,'' Respondent wrote: ``Following [her mother's] death, she has been 
very labile. Dr. Webb has tried multiple medications. Jill is very 
morose, often cannot stop crying. Denies SI/HI--No self-harm this 
month.'' GE 6, at 10. Continuing, the note states: ``Multiple Rx & 
calls to Dr. Webb. Could not reach this weekend--Rx: Xanax #12 [once 
orally three times a day]'' and ``[w]ill update Dr. Webb.'' GE 6, at 
10; Tr. 136-37. However, there is nothing in Dr. Webb's file for 
Respondent's wife that indicates that he was contacted by the 
Respondent around August 22, 2013 and Dr. Webb testified that 
Respondent never disclosed any of the prescriptions. See GE 5; Tr. 137. 
I find that Respondent did not disclose the prescription to Dr. Webb.
    53. September 5, 2013, 24 tablets of alprazolam (Xanax), 2 mg, an 
eight-day supply. GE 10, at 21; GE 11, at 5. The Respondent recorded in 
his wife's patient file: ``Will not leave room--depressed--needs to get 
back with Dr. Webb--anorexic--very anxious/depressed--Xanax #20 [once 
orally three times a day].'' GE 6, at 10. Respondent did not disclose 
the prescription to Dr. Webb.

Dr. Webb's Testimony Regarding Respondent's Prescriptions

    Asked if there were ``any risks'' in Respondent's wife ``receiving 
prescriptions from someone other'' than himself, Dr. Webb testified 
that ``this particular patient . . . has some severe problems[,] and 
takes a high dose of medication. . . . my concern is that I'm keeping a 
close tab on it, but if there's somebody out there writing that I don't 
know about, that's dangerous.'' Id. at 120. Dr. Webb explained that 
Respondent's prescribing was dangerous because ``you're going above the 
maximum dose that should be prescribed and more medicines can lead to 
sedation, more sedation, difficulty, death, loss of balance, falls, 
poor judgment, things like that.'' Id. at 121.
    Dr. Webb also explained that the prescriptions ``interfered with 
[my] treatment for her, because I wasn't seeing the real patient, 
because there's a ghost writer out there that I don't know about.'' Id. 
Dr. Webb testified that ``I have certain timed prescriptions and if 
that timed prescription is getting gapped . . . by another 
prescription, it's distracting me from my decisionmaking.'' Id. He also 
testified that this would ``[m]ost definitely'' interfere with his 
decisionmaking, in that ``[if] she was out of . . . my medicines, then 
I would hear a distressed phone call . . . and I would need to reorient 
my treatment for her [by] put[ting] her in the hospital.'' Id. at 122.
    In a July 13, 2011 entry in Respondent's wife patient file, which 
documents a prescription for 20 Xanax 2mg, but for which there is no 
corresponding prescription in either the PMP reports or the other 
exhibits,

[[Page 49713]]

Respondent wrote: ``Dr. Webb has not called back.'' GX 6, at 1. 
Regarding this entry, Dr. Webb testified that there are ``five other [ 
]'' practitioners that work at his clinic and the phones are covered 24 
hours a day, seven days a week. Tr. 124. Moreover, his clinic has an 
answering service for after office hours and weekends. Id. at 125. Dr. 
Webb testified that Respondent's note did not state what time the call 
to him had been placed and he maintained that he ``always called 
patients back.'' Id. at 126.
    Dr. Webb further testified that the file did not contain a note 
``from the answering service or the secretary that on [this date] a 
message was left.'' Id. Dr. Webb then testified that his ``file 
contains every telephone message notation that is given to our office'' 
and that ``the actual notes written by the office staff are kept,'' and 
that there are no notes for this date.\22\ Id. The closest phone 
message by date are two messages on July 21, 2011 from Respondent's 
wife; the earlier message states ``please call asap'' and the later 
message states ``urgent out of med.'' GE 5, at 137. Notably, the PMP 
shows that on the same day, Dr. Webb issued to Respondent's wife a new 
prescription for 45 alprazolam 2 mg. GE 11, at 12.
---------------------------------------------------------------------------

    \22\ On cross-examination, Dr. Webb acknowledged that the 
clinic's answering service would not necessarily page the on-call 
doctor just for a patient ``who needs a normal refill.'' Tr. 156. 
However, Dr. Webb maintained that if a patient was out of medicine 
early and in distress, the answering service would pass this message 
on to the doctor. Id. at 157, 182. He also testified that ``[i]t's 
our policy to call everybody back.'' Id. at 183.
     Dr. Webb further testified that to the best of his 
recollection, all of the phone call messages ``should be'' in the 
patient file for Respondent's wife. Id. at 159. Dr. Webb testified 
that he did not ``find it odd'' that there was ``only [in the words 
of Respondent's counsel] a handful of . . . call notes in her 
file.'' Id. at 160. Putting aside that there are 48 such notes in 
the patient file, Dr. Webb explained that Respondent's wife 
``typically kept pretty good contact. Knowing that I'd be in the 
daytime, she's in the medical field, she knows night time phone 
calls . . . aren't very productive . . . [b]ecause you're unlikely 
to have your doctor on call.'' Id. He also testified that 
Respondent's wife had not expressed any dissatisfaction with her 
being able to reach him other than when he was not on call during a 
weekend. Id. at 184.
     Dr. Webb further testified that his practice has not received 
complaints about the clinic's ``on call service'' and ``the 
inability to connect with a doctor'' or to ``get a request fulfilled 
by a doctor.'' Id. at 161. The ALJ specifically found that Dr. 
Webb's testimony was credible. R.D. 8.
---------------------------------------------------------------------------

    The Government also asked Dr. Webb about Respondent's note dated 
``1/16/12'' (prescription No. 24). The note appears as follows:

Dr. Webb wants Jill to come in
Difficult s transportation
Will Rx 10 day supply til
1/26/12--Webb aware--
 Xanax 2 mg # 30
[ ] po TID prn

    GX 6, at 2, Tr. 126. Dr. Webb testified that he was not sure if the 
prescription referenced in the note was ``attached to the January 16 or 
January 26th note.'' Tr. 127. He then testified that he had no contact 
with Respondent's wife on January 16, 2012,\23\ but that on January 26, 
2012, he called in a prescription for 45 Xanax 2 mg, three tablets a 
day. Id. at 127-28; see also GX 5, at 69. He also had no contact with 
Respondent on January 26, 2012.\24\ Tr. 128.
---------------------------------------------------------------------------

    \23\ With respect to Respondent's wife, Dr. Webb testified that 
early in his treatment of her, she lost a bottle of Xanax which 
prompted him ``to shorten the leash and give smaller amounts.'' Id. 
at 162.
    \24\ Dr. Webb also identified other instances in which 
Respondent made notes in his wife's file documenting phone calls but 
Dr. Webb's file contained no record that the call was made to his 
office. See Tr. 129-33,137. These include notations for Feb. 18, 
2012 (``called answering service for Dr. Webb No response--weekend 
Dr''); Oct. 5, 2012 (``No return call from weekend doctor''); Jan. 
20, 2013 (``No return from on call'' and ``Will contact Dr. Webb in 
AM''); Mar. 28, 2013 (``Dr. Webb aware.''); Aug. 24, 2013 (``Will 
update Dr. Webb''). The record, however, does not establish whether 
these notations were intended to document that Respondent or his 
wife had placed the call and/or notified, or intended to notify Dr. 
Webb.
---------------------------------------------------------------------------

    The Government also asked Dr. Webb about an entry Respondent made 
on July 7, 2013, which states in part: ``She's out of her Xanax early. 
Dr. Webb is aware of the tremendous stress of her mother's illness. No 
return on call.'' GX 6, at 9; see also Tr. 135. As found above, on this 
date, Respondent prescribed to his wife 12 Xanax and 12 Lorcet. GX 6, 
at 9; GX 11, at 6. Notably, the PMP report shows that Respondent's wife 
had refilled a prescription issued by Dr. Webb on May 23, 2013 for 45 
Xanax (15 day supply) on June 21, 2013, and had obtained and filled a 
new prescription for 45 Xanax (15 day supply) on June 28, 2013.\25\ GX 
11, at 6. After again noting that there was no record of any call to 
the clinic or its answering service by Respondent on this date, Dr. 
Webb testified that the fact that Respondent's wife was out of her 
Xanax early would concern him ``[b]ecause it lets me know that she's 
using more than prescribed and would . . . ha[ve] me wondering whether 
we need to put her in the hospital, to monitor her, or [if] there [are] 
other issues going on.'' Tr. 135-36.
---------------------------------------------------------------------------

    \25\ Respondent's wife also obtained a refill of the June 28, 
2013 prescription for 45 Xanax on July 10, 2013, and a refill of the 
May 23, 2011 prescription (which also was for 45 Xanax) on July 19, 
2013. GX 11, at 6; Tr. 144.
---------------------------------------------------------------------------

    An entry in Respondent's file dated July 29, 2013 states: ``Out of 
Xanax--buried her mother--funeral--Dr Webb back Thursday Xanax #8'' and 
includes dosing instructions of ``po TID.'' GX 6, at 9. As found above, 
the PMP report shows that Respondent issued his wife a prescription for 
eight Xanax 2 mg. GX 11, at 5. The PMP report also shows, however, that 
Respondent's wife refilled prescriptions for 45 Xanax (15 day supply) 
issued by Dr. Webb on both July 10 and 19, 2013. GX 11, at 6. Id. Dr. 
Webb testified that he spoke with Respondent's wife on July 30, 2013, 
and prescribed more Xanax to her and referred her to a psychologist. 
Tr. 136. According to the PMP report, Dr. Webb issued Respondent's wife 
a prescription for 45 Xanax on July 31, 2013. GX 11, at 5.
    Dr. Webb testified that in his view ``gap filling . . . means that 
there's a prescription that is used to get [the patient] to the next 
authorized refill.'' Tr. 138. Dr. Webb then cited stolen medication as 
an example of when a gap fill would be appropriate. Id. Dr. Webb also 
testified that if a doctor sets up a regimen of refills, the patient 
``needs to follow that timeline. And so, if they're short on set 
refills, that's a problem.'' Id. at 139.
    On cross-examination, Respondent's counsel asked Dr. Webb about a 
statement he wrote in a memo he prepared following a January 11, 2016 
meeting with DEA personnel in which he noted that Respondent's 
``prescriptions consisted of large quantities of controlled medications 
such as Xanax, [h]ydrocodone, [and] Ambien.'' Tr. 151; see also GX 8. 
Asked how he concluded that the prescriptions were for large 
quantities, Dr. Webb explained that ``[t]hey appeared to be more than 
just a day or so'' and that while ``some were less than 10 . . . my 
recollection was that more, most of them were more than 10'' tablets. 
Tr. 151.
    Dr. Webb subsequently explained that he had Respondent's wife ``up 
to max doses of all prescriptions . . . that I had her on'' and that 
``[a]nything over was a potentially large impact.'' Id. at 152. He 
added that ``[m]aybe the number isn't large, but the potential impact 
is large.'' Id. Asked by Respondent's counsel if he ``agree[d] that 
compared to [his] prescribing, the number of controlled substances 
prescribed by [Respondent] was relatively small,'' Dr. Webb answered 
``correct,'' but then added that it was ``[m]ore than I prescribe and 
moving into . . . above my max and serious harm.'' \26\ Id. at 152-53.
---------------------------------------------------------------------------

    \26\ As found above, the evidence shows that Respondent issued a 
number of prescriptions, especially for zolpidem, that provided 
quantities that were for periods considerably longer than two to 
three days. Specifically, Respondent authorized prescriptions on May 
20, 2013, for 20 dosage units (du) of zolpidem (a 20 day supply); on 
April 1, 2012, for 24 du of zolpidem (24 days); on March 4, 2012, 
for 30 zolpidem (30 days); on October 11, 2011, for 20 du of 
zolpidem (20 days); on July 31, 2011, for 12 du (12 days) plus a 
refill; on June 28, 2011, for 30 du (30 days); on May 6, 2011, for 
30 du (30 days); on March 30, 2011, for 30 du (15 days), and on 
January 31, 2011, also for 30 du (15 days). GX 11, at 7, 10-14. He 
also authorized prescriptions on July 7, 2013, for 12 du of 
alprazolam (6 day supply); on March 28, 2013, for 14 du of 
alprazolam (5 days); and on both July 17, 2012 and June 18, 2012, 
for 20 du of alprazolam (10 days). GX 11, at 6-7, 11.

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

[[Page 49714]]

    Dr. Webb testified that he had been ``very careful in regimenting'' 
the prescriptions he issued for Respondent's wife based on his ``years 
of working with her'' and her visit in either 2002 or 2009 (or both 
years) when ``she went to Sierra Tucson'' to be evaluated for Xanax 
abuse. Tr. 146-47. According to Dr. Webb, Sierra Tucson did not 
diagnose her as being addicted or abusing controlled substances. Id. at 
164. While he ``was not aware'' that she was ``overtly abusing,'' Dr. 
Webb testified that she ``[s]he had been early . . . sometimes on her 
prescriptions.'' Id. at 185. Dr. Webb also cited ``the severity of her 
illness'' as a reason for why he generally limited the prescriptions to 
15 days.\27\ Id.
---------------------------------------------------------------------------

    \27\ Dr. Webb testified that he ``feel[s] that . . . she's 
primarily a psychiatric disorder first, and then medication 
difficulty second, rather than the other way around.'' Id. at 165; 
id. at 194-95.
---------------------------------------------------------------------------

    Dr. Webb subsequently testified that ``[s]ince I did not know about 
the other prescriptions out there, it did not appear to be as big of an 
issue. She was early a day or two here and there. But, yes, substance 
dependence was on the radar.'' Id. at 194. On still further questioning 
by the Government, Dr. Webb testified that if he had known about 
Respondent's prescriptions to his wife during the 2011-2013 period, 
this ``would have'' changed his opinion as to whether she was abusing 
controlled substances. Id. at 196-97. On questioning by the ALJ, Dr. 
Webb testified that ``[k]nowing what [he] know[s] today . . . I would 
have suggested'' that she undergo ``in-patient'' treatment to address 
both ``her primary . . . and secondary problem[s].'' Id. at 197.
    Asked about the notes he maintained for his phone conversations 
with Respondent's wife, which typically were no more than one or two 
lines, Dr. Webb maintained that he and Respondent's wife ``always had 
in-depth conversations'' and that ``[t]hey were usually fairly long, 
like 20, 30, 45 minute phone conversations.'' Id. at 169. He also 
testified that his notes met the standard for documentation. Dr. Webb 
acknowledged, however, that he is ``not perfect'' and that there may 
have been some phone calls that he had with Respondent's wife ``that 
were not noted.'' Id. at 203.
    Dr. Webb acknowledged that psychiatrists do not typically prescribe 
opioids such as hydrocodone; he testified that he had ``written maybe 
less than five [prescriptions] in my last 20 years.'' Id. at 170-71. 
Asked why he issued the June 28, 2013 prescription for 10 tablets of 
hydrocodone/acetaminophen 10/650 mg, see GX 11, at 6, Dr. Webb 
testified that the prescription was filled ``at Beemon, so potentially 
she had come up from Hattiesburg.'' Tr. 171. Continuing, Dr. Webb 
testified: ``[t]hat was right around her mother's death, mother's 
sickness, and maybe she told me she was out of her medicine 
potentially. I'd want to see my note if I put it in there.'' Id. 
Subsequently, Dr. Webb added that Respondent's wife had undergone a 
procedure by a different doctor and received hydrocodone about nine or 
ten days earlier, but he could not otherwise recall the circumstances. 
Id. at 172. Dr. Webb then admitted that this prescription ``certainly 
could'' interfere with the treatment being provided by the other 
doctor. Id. However, he explained that Respondent's wife ``was out of 
town from her treating . . . physician, and out of her opiate for pain 
relief.'' Id. at 186. Moreover, this was the only instance in which he 
prescribed hydrocodone or any other opioid to her. Id. at 200-01.
    Dr. Webb testified that he did not have a conversation with 
Respondent's wife about Respondent's prescribing controlled substances 
to her until either late 2015 or 2016, after he was contacted by the 
Diversion Investigator. Id. at 175. Dr. Webb testified that he 
``believe[d] at times'' that Respondent was trying to help his wife and 
that ``[t]hey have had lots of difficulty.'' Id. at 177. Based on the 
four phone calls he had with Respondent during the 2011 through 2013 
period and because Respondent would ``[t]ypically call if there would 
be a crisis,'' Dr. Webb acknowledged that Respondent's wife was often 
in crisis. Id. at 178.
    On subsequent questioning, Respondent's counsel suggested that just 
as the other doctors in his practice can appropriately prescribe gap 
fills to his patients because they can access the patient's file and 
see ``abuse issues in the patient file . . . someone living with the 
patient can assess that person.'' Id. at 196. Dr. Webb took issue with 
this suggestion, explaining that ``the difficulty with living with 
someone is that you're not potentially an expert.'' Id.
    Dr. Webb testified that Respondent's notes did not contain a 
patient history and specific diagnosis. Id. at 188. As for whether the 
notes contained evidence of an examination, Dr. Webb explained that, 
``other than the subjective notes that are listed, no.'' Id.

The Testimony of the Government's Expert

    The Government called R. Andrew Chambers, M.D., to testify as an 
expert in psychiatry, the proper prescribing of controlled substances 
and their effects on patients, and on addiction; the ALJ accepted Dr. 
Chambers as an expert in these areas. Tr. 246. Dr. Chambers obtained 
his B.S. degree in Chemical Physics from Centre College, Danville, 
Kentucky in 1991 and his M.D. degree from the Duke University School of 
Medicine in 1996. GX 12, at 1. Thereafter, he completed a residency in 
psychiatry at the Yale University School of Medicine in 2002 and a 
fellowship in addiction psychiatry at the Indiana University (IU) 
School of Medicine in 2012. Id. From 2002 through 2003, he served as an 
Assistant Professor of Psychiatry, Division of Substance Abuse at Yale; 
from 2003 through 2009, he served as an Assistant Professor of 
Psychiatry at the Indiana University School of Medicine; and since 
2010, he has been an Associate Professor of Psychiatry with Tenure at 
the IU School of Medicine. Id. Also since 2012, Dr. Chambers has been 
the Director of the Fellowship Training Program in Addiction Psychiatry 
at the IU School of Medicine. Id.
    Dr. Chambers has had appointments in the Department of Psychiatry 
at various hospitals including the West Haven (Connecticut) VA 
Hospital, Yale New-Haven Hospital, Connecticut Mental Health Center, 
and Indiana University Health Hospitals. GX 12, at 2. He is board 
certified in general adult psychiatry and addiction psychiatry. Tr. 
227-28. He has also been published in the areas of psychiatry and 
addiction ``on the order of 50 times'' in peer-reviewed journals, 
published in multiple textbooks, and made a number of presentations to 
professional conferences. Id. at 229-30; GX 12, at 3-7, 11-18.
    Dr. Chambers testified that treating patients with mental illness 
and addiction is his ``bread and butter work.'' Tr. 231. He testified 
that he is ``familiar with and utilize[s] a broad range of 
pharmacotherapies for both mental illness and addiction, as well as 
psychotherapies for both mental illness and addiction'' and that ``the 
vast majority of [his] patients have both mental illness and 
addiction.'' Id. at 231-32. He testified that he is familiar with the 
prescribing of controlled

[[Page 49715]]

substances to psychiatric patients, the risks of controlled substances, 
and the typical practices undertaken by psychiatrists to mitigate the 
risks or dangers of the diversion of controlled substances. Id. He 
further testified that he is familiar with the standards for 
prescribing controlled substances in Mississippi, as well the 
circumstances under which a doctor may fail to conduct himself in a 
manner that comports with a legitimate medical purpose or is within the 
course of proper professional practice. Id. at 233.
    While Dr. Chambers had never previously testified in a proceeding 
based on the Mississippi law and the State Board's rules, id. at 240, 
he testified that he had reviewed the State's laws and rules. Id. at 
236. He further testified that the Mississippi provisions on 
prescribing controlled substances are ``fairly universal.'' Id. at 237. 
Dr. Chambers explained ``that the codes around the country are informed 
by the medical profession . . . and there are universal, fairly 
universal ethical standards, evidence-based standards that are 
scientific that then inform the code.'' Id. at 240. Dr. Chambers 
subsequently cited the Patient Record provisions of the State Board's 
Rule 1.4 as one such standard that is accepted across the medical 
profession. Id. at 244.
    Turning to Respondent's October 11, 2011 prescription for 20 
zolpidem (No. 15 above), Dr. Chambers noted that the refill obtained by 
Respondent's wife on September 19 was for 30 days and should have 
lasted until October 19. Id. at 249. Dr. Chambers testified that 
Respondent's October 11 prescription was ``a problem.'' Id. As to why, 
Dr. Chambers explained: ``[t]his is a prescription for a controlled 
substance that is coming from a separate source that's occurring on top 
of a prescription from the primary psychiatrist, and the combination of 
these kinds of controlled substances could have serious consequences.'' 
Id. Dr. Chambers further explained that ``Ambien and other benzoate 
medications have central nervous system effects that can cause 
oversedation, memory disturbances, and, if taken in combination with 
other drugs, especially opioids, death.'' Id. at 250. While Dr. 
Chambers testified that 10 milligrams (the dose prescribed by 
Respondent) ``is not the maximum dose of Ambien that can be 
prescribed,'' a patient obtaining the drug from another source ``would 
be of concern.'' Id. Dr. Chambers explained that the concern would be 
driven by the ``the size of the dose, the nature of the drug,'' as well 
as ``the fact the primary physician who is prescribing the drug . . . 
would not . . . necessarily [be] aware'' that the patient was obtaining 
the drug ``from a separate source.'' Id.
    According to Dr. Chambers, when a patient is obtaining a drug from 
other sources, ``it can create a great deal of confusion on the part of 
the primary prescriber about the effects or side effects of the drug 
and the mental status of the patient.'' Id. at 250-51. Continuing, Dr. 
Chambers testified that ``there are also synergistic overdose risks of 
being on both doses at the same time. . . . It's obviously not the dose 
that the primary prescriber wants because they would have prescribed 
that dose if that's what they wanted.'' Id. at 251. Dr. Chambers then 
explained that ``the same concerns'' were raised by the zolpidem 
prescription Respondent wrote on July 31, 2011 because the refill his 
wife obtained on July 7, 2011 of Dr. Webb's prescription for 30 days of 
zolpidem should have lasted for another week. Id. at 252.
    Dr. Chambers identified several instances in which Dr. Webb's 
prescriptions ``overlapped'' with those of Respondent.\28\ These 
included the zolpidem prescription (for 30 tablets/30 days) which 
Respondent issued on May 6, 2011 and the refills obtained on both April 
9, 2011 and May 23, 2011 by Respondent's wife of Dr. Webb's Feb. 3, 
2011 prescription for 60 tablets (a 30-day supply). Tr. 255. Dr. 
Chambers testified that while ``[t]he one before is a relatively minor 
overlap[,] about one or two days, which is fairly insignificant, . . . 
the secondary overlap is more significant.'' Id. The prescriptions 
presented the same concerns of danger to the patient and confusion for 
the doctor. Id.
---------------------------------------------------------------------------

    \28\ This particular overlap involved Respondent's zolpidem 
prescription of March 30, 2011 for 30 tablets (a 15-day supply) (Rx 
No. 4 above) and an April 9 dispensing of a zolpidem prescription. 
Tr. 254-55. Dr. Chambers testified that ``on April 9, 2011, Dr. Webb 
issue[d] the same med for a 30-day supply. So now you have an 
example of Webb unknowingly overlapping a controlled substance with 
Dr. Alexander that happened on 3-30.'' Id. at 255. The PMP report 
shows, however, that the latter event did not involve the issuance 
of a new prescriptions but a refill of Dr. Webb's February 3, 2011 
prescription. See GE 11, at 13. Nonetheless, Respondent's 
prescription still created an overlap.
---------------------------------------------------------------------------

    Dr. Chambers subsequently testified that it does not matter whether 
Dr. Webb's prescriptions were new prescriptions or refills because the 
prescription ``is essentially an instruction both to the pharmacist and 
the patient for the daily dosing and the number of days that the 
patient should follow that dosing.'' Id. at 257. Dr. Chambers then 
testified that ``[r]efills is [sic] just a way to communicate to the 
patient and the pharmacist . . . that you're allotting the schedule out 
in monthly, usually monthly allotments, and then it starts over.'' Id. 
Continuing, Dr. Chambers explained that ``the bottom line is that when 
the doctor writes the prescription and the pharmacist records it . . . 
there's a complete understanding of what's expected. There should be no 
haziness on the part of the doctor or the pharmacist or the patient . . 
. about the expected rate of consumption . . . from the start to 
finish, whether it be a 30-day supply or a 30-day supply with two 
refills.'' Id. at 257-58.
    Next, the Government questioned Dr. Chambers about the combination 
of prescriptions/refills that Respondent's wife filled on November 28-
29, 2011. Id. at 258-59. Specifically, on November 28, 2011, she 
refilled a prescription issued by Dr. Webb for 45 clonazepam (15 days) 
as well as filled a new prescription issued by Webb for 90 capsules of 
Adderall. GX 11, at 11. The next day, she filled prescriptions for a 
one-day supply of Diastat Acudial (a rectal suppository of diazepam) 
and a one-day supply (four tablets) of hydrocodone/apap 10/650. Id.
    Dr. Chambers noted that the Diastat prescription ``is a bit 
puzzling because it's clear [Respondent's wife] is taking oral meds and 
usually [Diastat] [is] reserved for people who can't take [drugs] 
oral[ly].'' Id. He then testified that ``it's a very high risk and 
potentially lethal combination one day after receiving a 15-day supply 
of'' clonazepam and ``also a stimulant'' from Dr. Webb. Id. Dr. 
Chambers then testified that ``[t]he combination of an opioid and a 
benzodiazepine is causing an unprecedented epidemic of death in the 
United States . . . because when the two drugs are together they 
synergistically suppress consciousness and breathing and the central 
nervous system.'' Id.
    Addressing the prescriptions which Respondent issued on both June 
18 and July 17, 2012, for 20 du of alprazolam 2 mg (both being for a 
10-day supply),\29\ each of which was filled on the date of issuance, 
as well as the refill she obtained on July 5, 2012 of Dr. Webb's 
prescription for 45 du (15 days), Dr. Chambers testified that the 
prescriptions had different dosing instructions and overlapped. Id. at 
262-63. Dr. Chambers then testified that ``we don't know what she was 
actually taking, but if she was actually taking the dose per both 
doctor's directions, she would be taking 10 milligrams of [alprazolam] 
a day . . . which would render me unconscious.'' Id. at 263. As another 
example of Respondent's issuance of an alprazolam

[[Page 49716]]

prescription which resulted in ``nearly a week of overlap of the same 
dose by two different doctors'' and raised ``the same concern,'' Dr. 
Chambers identified Respondent's March 28, 2013 prescription for 14 
dosage units (three tablets a day), which overlapped with a refill his 
wife obtained on March 19, 2013 for 45 tablets (also three tablets a 
day).\30\ Id. at 266.
---------------------------------------------------------------------------

    \29\ See prescription Nos.31 and 32 above.
    \30\ Other examples of overlapping prescriptions involved 
Respondent's May 10 and May 13, 2013 prescriptions (Nos. 43 and 44 
above) for 14 and 12 dosage units of alprazolam 2 mg, which 
overlapped with the refill his wife obtained on April 30, 2013 of 
Dr. Webb's prescriptions for 45 du (15 days) of alprazolam 2 mg. Tr. 
267. According to Dr. Chambers, even Respondent's May 10 and May 13 
prescriptions overlapped, and that on May 13, ``what you actually 
have here is a triple compounding of the dosing based on the 
disposition dates and the way the drugs were instructed to be 
taken.'' Id. Dr. Chambers then explained that ``that is a very 
dangerous dose that would normally never be prescribed outside an 
intensive care unit.'' Id. at 267-68.
     Another such example is Respondent's July 29, 2013 alprazolam 
prescription which provided eight tablets (TID). Dr. Chambers 
testified that Respondent's prescription provided a dosing 
instruction of eight milligrams a day, Tr. 271, which is supported 
by the PMP report which lists the prescription as providing a two-
day supply. GE 11, at 5. However, the dosing instruction on the 
actual prescription was TID, or one tablet, three times a day. GX 
39, at 1-2. Nonetheless, the prescription overlapped with the refill 
Respondent's wife obtained on July 19, 2013 for Dr. Webb's 
prescription for 45 tablets (15 days), and on July 31, 2013, she 
obtained a new prescription from Dr. Webb for 45 tablets (15 days). 
GE 11, at 5. However, even if Respondent's prescription only had a 
dosing instruction of 3 tablets a day, if she took the medications 
as prescribed by both Dr. Webb and Respondent for the period in 
which the prescriptions overlapped, she would have taken six tablets 
a day or 12 milligrams. Tr. 272.
---------------------------------------------------------------------------

    Addressing Respondent's July 7, 2013 prescriptions (Nos. 46 and 47) 
for 12 du of hydrocodone/apap 10/650 (two-day supply) and 12 alprazolam 
2 mg (six-day supply), Dr. Chambers characterized the latter 
prescription as ``remarkable,'' explaining that ``it's prescribed at 
the same time [Respondent] also prescribed hydrocodone, an opioid 
medication, also on the same day, again introducing the risk of a 
potentially lethal overdose.'' Id. at 268-69. Dr. Chambers noted that 
Respondent's prescribing was ``also occurring in the context of'' an 
amphetamine (Adderall XR) prescription for 30 days issued by Dr. Webb 
``six days'' earlier. Id. at 269. Dr. Chambers then testified that if 
Respondent's wife was ``taking as prescribed, she's doing what street 
people call a speedball, which is essentially an amphetamine/opioid 
combination with a . . . benzodiazepine garnish.'' Id. Dr. Chambers 
also noted that on July 1, 2013, the same day that Respondent's wife 
filled the Adderall \31\ prescription, Respondent had also issued her a 
prescription for 20 hydrocodone/apap 10/650, which she filled that day. 
Id. at 269-70. Dr. Chambers noted that this hydrocodone prescription 
was ``a higher dose than what Dr. Webb did.'' Id. at 273. He explained 
that ``there's a combination of multiple overlaps of multiple classes 
of addictive substances that can produce overdose and severe 
psychiatric disturbances from two different physicians who are 
apparently in no communication.'' Id. Continuing, he explained that 
``in [his] experience, when you see all three of those [classes of] 
drugs represented and you have multiple physicians contributing to it . 
. . that indicates a patient who is in serious trouble iatrogenically . 
. . meaning harmed being caused through medical practice.'' Id. at 274.
---------------------------------------------------------------------------

    \31\ Dr. Chambers explained that while Adderall is ``used for a 
number of clinical indications, including attention deficit disorder 
[and] narcolepsy . . . [i]t also has significant street value'' and 
is ``basically a cousin of methamphetamine.'' Tr. 270.
---------------------------------------------------------------------------

    Asked if he had ``reach[ed] a conclusion'' as to whether 
Respondent's prescriptions were issued ``within the usual course of 
professional conduct,'' Dr. Chambers testified:

    I did. It is not [the] usual course of clinical conduct for 
someone with mental illness or someone without mental illness to be 
prescribed these combinations of drugs and to have these 
combinations being prescribed by different individuals who--one of 
who--where there's not communication or awareness that it's 
happening. So it's not only not usual clinical practice, but the 
reason it's not usual is because it's dangerous for patients and 
harmful. So it's actually not only is it not usual, it's essentially 
malpractice.

Id. at 275. On further questioning, Dr. Chambers testified that the 
Respondent's prescribing was not ``legitimate medical practice'' and 
the prescriptions were ``non-therapeutic.'' Id. Dr. Chambers further 
testified that ``[b]ased on the entirety of the evidence [he] 
reviewed,'' Respondent's prescribing did not comply with either the 
Controlled Substances Act or the standards of the Mississippi 
Administrative Code, including the State's requirements for patient 
records. Id. at 276, 278.
    Addressing the patient file Respondent maintained on his wife, Dr. 
Chambers testified that ``there is a paucity of data to support the 
diagnosis or the prescription . . . that the note is built around. 
There's a lack of physical or mental status exam that normally would be 
in a note like this to justify and direct the use of controlled 
substances.'' Id. at 277. Dr. Chambers further observed that in 
comparing the patient file with the PMP data, ``about 40 percent of the 
prescriptions'' had ``no corresponding note at all. There's no data. 
There's no diagnosis, no detailing of what was prescribed.'' Id. He 
also observed that ``there are instances where the dosing or type of 
the drug is left out of the record.'' Id. at 278.
    Dr. Chambers identified Respondent's entry dated January 16, 2012 
(Prescription No. 24) as one such example. Tr. 278. As found above, on 
this date, Respondent prescribed 30 alprazolam 2 mg ``to be taken as 
directed'' and wrote in the note: ``Dr. Webb wants Jill to come in. 
Difficult [with] transportation--will Rx 10 day supply till 1/26/12--
Webb aware--Xanax 2 mg'' with a dosing instruction of ``po TID.'' GE 6, 
at 2.
    Dr. Chambers testified that ``this note does not have a diagnosis. 
It doesn't have an examination to justify . . . why that prescription 
happened at that dose . . . was he aware of what the prescription was 
from another doctor? Was he continuing? Was there any plan to taper 
it?'' Tr. 279. Dr. Chambers added that ``he's kind of writing as if the 
reason he's doing it is because the patient can't get to Dr. Webb, and 
he's documenting that Webb is aware . . . but in review of Webb's 
chart, there no indication that Webb was ever aware that this kind of 
stuff was going on.'' Id. When then asked if a 10-day supply is 
``unusual for . . . a gap fill,'' Dr. Chambers answered:

. . . I think it's unusual for one doctor to be gap filling another 
regardless of what the duration is, especially when there's no 
knowledge that that's happening. So any duration is odd, I think. I 
guess the longer the number of days the more concerning it is 
because you're dispensing bigger doses. I mean, she's got 30 tabs. 
That's quite a bit.

Id. at 280.
    Addressing Respondent's note of February 18, 2012, Dr. Chambers 
acknowledged that it contained ``a little bit more of what you could 
call a clinical assessment'' in that Respondent described his wife's 
symptoms. Id. at 281. Dr. Chambers observed, however, that the note did 
not indicate ``how many he prescribe[d].'' Id. As for Respondent's 
statement that his wife was ``[o]ut of her Xanax for . . . 10 days'' 
and ``[o]ut of her Ambien for a week,'' GE 6, at 3, Dr. Chambers 
testified:

    It's not clear exactly what that means, but I take it to mean 
that he is prescribing because she's been out. And so, first of all, 
why is she out? Is it because she's using it too rapidly? It's just 
not clear. But he is filling the gap with an unclear amount and then 
suggesting by my read . . . [that] he's documenting he's contacting 
Dr. Webb,

[[Page 49717]]

informing them of this gap fill, the best I could tell.
    But what's beginning to emerge here in this note and does come 
in later is that he is becoming--Dr. Alexander is becoming aware 
that she's running out and I assume prematurely because when you 
look at the PDMP data from Dr. Webb, Dr. Webb is not creating gaps. 
. . . He is not leaving her hanging with no medication a whole lot 
of times.

Id. at 281-82.
    Continuing on to the next note (March 12, 2012), Dr. Chambers 
testified that this was ``the first time I've seen a diagnosis in the 
chart.'' Id at 282. He then explained that ``delusional parasitosis is 
a non-specific psychotic symptom,'' and that while it can be caused by 
``a primary delusional illness . . . more commonly [it] is a sign of 
severe drug withdrawal'' including ``benzodiazepine . . . or even 
opiate withdrawal.'' Id. at 282-83. Dr. Chambers testified that the 
behavior documented in the chart (jerking, twitching, and delusional 
parasitosis) ``suggests extreme discomfort'' and ``could suggest vital 
sign changes [and] impending catastrophic withdrawal.'' \32\ Id. at 
283. Dr. Chambers observed, however, that Respondent did not obtain his 
wife's blood pressure and pulse or perform a mental status exam. Id. at 
284.
---------------------------------------------------------------------------

    \32\ Dr. Chambers further criticized Respondent because ``the 
standard of care for the treatment of acute withdrawal'' requires as 
part of ``the basic response to get a blood pressure or a pulse,'' 
and ``[i]f these measures aren't taken, people die routinely.'' Id. 
at 284.
---------------------------------------------------------------------------

    Respondent's note of July 14, 2012 documents a prescription for 20 
alprazolam 2 mg, a ``6 day supply,'' and states, among other things, 
that his wife had been off medications for four months and had been 
staying with her mother-in-law. GE 6, at 4. Regarding the note, Dr. 
Chambers testified that ``I don't know that she's even around when this 
prescription happens. It's just not clear where . . . she [is]. There's 
no evidence that she's even in front of him on July 14, and that's also 
a concern.'' Tr. 285.
    Dr. Chambers observed that, in the October 5, 2012 note (``[s]he is 
out 2 days early''), Respondent documented that his wife was ``actually 
overusing the prescription that Dr. Webb ha[d] provided her. So he's 
documenting evidence that she's demonstrating abuse of these drugs and 
then he . . . say[s], `[s]he's lacerating and cutting herself, severe 
anxiety and depression, arms excoriated. No return call from a weekend 
doctor. I have to leave to work out of town.''' Id. After criticizing 
Respondent for ``abandoning the patient,'' who was self-mutilating and 
in a ``potentially life threatening withdrawal,'' Dr. Chambers 
testified that Respondent's ``leaving for the weekend and leaving her 
with more medication unsupervised'' is ``of grave concern.'' Id.
    Dr. Chambers offered similar testimony regarding Respondent's May 
13, 2012 note. See id. 288 (``So again he's now creating a track record 
in his . . . notation that the patient is essentially out of control 
and abusing Xanax and injuring herself. His response is to attempt to 
prescribe a combo of Xanax and Ambien . . . .).
    Respondent's February 27, 2013 note states that his wife was 
``[a]nxious about marital situation.'' As to the note, Dr. Chambers 
testified that ``it's not considered a normal medical practice'' to 
treat family members and ``that when it comes to controlled substances 
it's a whole different ball game'' when the prescription is ``for a 
family member.'' \33\ Id. at 286-87.
---------------------------------------------------------------------------

    \33\ Dr. Chambers also testified that there is a prohibition 
against a psychiatrist treating a spouse for two reasons. Tr. 293. 
According to Dr. Chambers, the first reason is that the practice of 
psychiatry requires ``getting inside the mind of the patient'' and 
``is a very invasive process'' and that ``romantic and sexual . . . 
motives will contaminate the clarity of the practitioner. . . . A 
psychiatrist who is falling in love with his patient will begin to 
take actions that benefit . . . him or her rather than the 
patient.'' Id. at 293-94. The second reason is that ``there is an 
implicit power differential'' between ``a psychiatrist and a 
patient'' and that ``to exploit that power differential on a patient 
who's vulnerable with mental illness through romantic or erotic 
counter-transference is regarded fairly much as a cardinal sin in 
psychiatry.'' Id. at 294. Continuing, Dr. Chambers testified that in 
``many cases, these are patients who have already suffered physical 
and sexual abuse previously'' and are ``susceptible'' to more abuse 
``later on.'' Thus, if a ``psychiatrist engages in a sexual 
relationship with a patient . . . the very real danger is [that] 
there could . . . be a revictimization . . . of the patient.'' Id. 
at 295.
    Dr. Chambers also testified, however, that ``[t]his standard is 
actually not true for other branches of medicine'' such as family 
practice. Id. at 294.
---------------------------------------------------------------------------

    Dr. Chambers offered similar testimony with respect to Respondent's 
March 28, 2012 note, which states: ``Marital/physical/mental stress sky 
high--Marriage workshop in Montana just accentuated'' and ``Out of 
Xanax early--rebound anxiety--self harm.'' GE 6, at 7. Dr. Chambers 
testified that he found that entry was ``interesting because the 
marital, physical and mental stress . . . involves him, and he's 
prescribing this medication to somebody who is in acute distress that's 
ultimately related to the medication.'' Tr. 287. Dr. Chambers also 
testified that Respondent's notation of a prescription for ``Xanax # 
14'' ``is incomplete'' because it does not state ``the dose'' or the 
patient's instructions. Id.
    Subsequently, the Government asked Dr. Chambers to address ``the 
situation where'' a primary care doctor is prescribing to a patient who 
is also being treated by a psychiatrist. Id. at 291. Dr. Chambers 
testified that in his ``own practice,'' if a new patient is receiving 
psychoactive medication from another physician, he ``will call them to 
stop that because you can't have two chefs in the kitchen.'' Id. Dr. 
Chambers then explained:

    If you have two chefs in the kitchen, this is the kind of stuff 
that can happen as you get chaos and harm and polypharmacy and no 
one understanding what is the illness versus what is [sic] the side 
effects of the medications, and it can lead to escalation of mental 
illness, addiction, and even death.

Id.

    Finally, on direct examination, Dr. Chambers testified that ``[a] 
competent psychiatrist would document [in the patient's chart] if they 
knew that another doctor was prescribing controlled substances that 
were overlapping or representing a threat.'' Id. at 298. A competent 
psychiatrist would also ``take action to stop it or to stop their 
practice.'' Id.
    On cross-examination, Dr. Chambers agreed that ``[i]n many cases,'' 
Respondent prescribed the same drugs to his wife as were prescribed by 
Dr. Webb. Id. at 307. Dr. Chambers also acknowledged that he had not 
examined Respondent's wife and that ``someone who sees her in person'' 
is in a better position to evaluate her than a person who only reads 
her chart. Id. at 310. After accusing Dr. Chambers of making a 
``serious allegation []'' when he testified that Respondent's ``wife 
was going through withdrawal'' and which ``could be interpreted as she 
was abusing controlled substances,'' Respondent's counsel asked Dr. 
Chambers whether he or Dr. Webb was in a better position to make that 
determination. Id. Dr. Chambers answered that Dr. Webb was, but noted 
that he ``was looking at data from'' Respondent and ``had the ability 
to look at two charts.'' Id. at 310-11; see also id. at 319 (Q. You 
don't know if she was exhibiting physical characteristics that 
correspond to drug addiction. A. I can only go on what I've read.'').
    Asked by Respondent's counsel if ``providing gap fills necessarily 
mean[s] there's a drug abuse issue,'' Dr. Chambers answered that ``[i]t 
can mean.'' Id. at 311. After Respondent's counsel asserted that ``[i]t 
can . . . it's not definitive,'' Dr. Chambers answered: ``I don't see 
gap filling happen[ing] in this case. There is no gap filling going on. 
There's overlaying.'' Id. After Respondent's counsel asserted that Dr. 
Webb ``ha[d] categorized the same

[[Page 49718]]

evidence . . . as gap filling,'' Dr. Chambers testified: ``[i]t would 
surprise me if he's seen the same evidence . . . It would surprise me 
because that's not what I see in the data.'' \34\ Id.
---------------------------------------------------------------------------

    \34\ As found above, while Dr. Webb testified that gap filling 
``means a prescription that is used to get you to the next 
authorized refill'' and gave various examples, including ``something 
that would speak to a need for more medication,'' his testimony was 
clear that with the exception of a prescription issued by ``one of 
my on call doctors,'' a gap fill by another provider was not 
appropriate. Tr. 138-39, 192, 195-96.
---------------------------------------------------------------------------

    Assuming facts not in evidence, Respondent's counsel then asked Dr. 
Chambers if ``somebody who sees [the patient] regularly five or six 
times a week as a patient \35\ or someone who's paid to review her 
patient file'' is ``in a better position'' to diagnose a patient as a 
substance abuser. Id. While Dr. Chambers agreed that a psychiatrist who 
saw the patient is in a better position to evaluate a patient, in 
response to the question of whether ``it would not surprise [him] that 
Dr. Webb concluded that [Respondent's wife] didn't have a substance 
abuse issue,'' Dr. Chambers explained that ``[i]t wouldn't'' because 
Dr. Webb is ``not an addiction psychiatrist.'' Id. at 312-13. When 
subsequently asked by Respondent's counsel if he ``disagree[d] . . . 
with the doctor that's seen her for 15 years five to six times a week 
with his diagnosis,'' Dr. Chambers answered that he did.\36\ Id. See 
also id. at 319 (Q. ``So it's better to leave it to the psychiatrist 
who sees her five to six times a week over a 15-year period to make 
that decision.'' A. ``Well, not always. Not always, right.'').
---------------------------------------------------------------------------

    \35\ Dr. Webb's patient file contains progress notes for 10 
visits by Respondent's wife during the years 2011 through 2013. GX 
5, at 42-53. Thus, contrary to the premise of the question, there is 
no evidence that Dr. Webb saw Respondent's wife ``five or six times 
a week as a patient.'' Tr. 311.
    \36\ While the ALJ admitted only Dr. Webb's chart for 
Respondent's wife during the years 2011 through 2013, Tr. 74, here 
again, there is no evidence in the entire record that Dr. Webb saw 
Respondent's wife five to six times a week.
---------------------------------------------------------------------------

    Dr. Chambers acknowledged that Respondent's and Dr. Webb's dosing 
of alprazolam were ``often in the same ballpark.'' Id. at 317. However, 
Dr. Chambers explained that, while ``taken separately both of the 
[doctors'] dose ranges might be acceptable, . . . if they're . . . 
overlapping, that's when you get into the danger.'' Id. Dr. Chambers 
acknowledged, however, that ``[n]o one'' knows how much of the drug 
Respondent's wife was taking. Id. at 318.
    Respondent's counsel then asked Dr. Chambers if ``you're saying 
that she was addicted or . . . was abusing controlled substances . . . 
wouldn't . . . the individual who prescribed her over 1500 doses of 
controlled substance in one year . . . be more responsible for that 
versus the individual who prescribed 200 doses of controlled substances 
a year?'' Id. at 320. Dr. Chambers answered: ``but what we're seeing 
here, that's not what happened. We're seeing two people prescribing 
[to] one person.'' Id. Continuing, Dr. Chambers explained that ``it 
could be a totally different picture if . . . only Dr. Webb'' was 
prescribing but he had ``no idea what that whole trajectory would look 
like'' and whether ``[s]he might be more stable.'' Id. Dr. Chambers 
held to his earlier testimony that having two physicians prescribe to 
Respondent's wife was ``creating chaos that could actually cause the 
treatment to get even worse'' and ``to evolve in the wrong direction.'' 
Id. at 321.
    After Dr. Chambers acknowledged that ``Dr. Webb prescribed a 
significant amount of controlled substances, Respondent's counsel asked 
him if he ``was aware that in 2011 [Respondent] only prescribed 128 
dosage units to her?'' \37\ Id. at 321. After answering ``yes,'' Dr, 
Chambers added that ``Dr. Alexander prescribed about 20 percent of the 
controlled prescriptions and Dr. Webb about 70 percent on average over 
three years. Id.
---------------------------------------------------------------------------

    \37\ This, too, is a misstatement of the evidence. Rather, the 
evidence shows that during 2011, Respondent issued prescriptions for 
206 dosage units of zolpidem, 151 dosage units of hydrocodone, 28 
dosage units of clonazepam, 28 dosage units of alprazolam, and one 
kit of Diastat acudial.
     Respondent's counsel also misstated the evidence when he asked 
Dr. Chambers if he was ``aware [that] in 2012 Dr. Webb prescribed 
approximately 1720 dosage units of controlled substances versus the 
132 that [Respondent] prescribed] to'' is wife. Tr. 321. Rather, the 
evidence shows that Respondent prescribed 112 du of zolpidem, 94 du 
of alprazolam, 20 du of diazepam, 30 du of hydrocodone, 15 du of 
Adderall, as well as Hycodan cough syrup.
---------------------------------------------------------------------------

    Following questions about the relative amounts of controlled 
substances prescribed by Dr. Webb and Respondent, Respondent's counsel 
asked Dr. Chambers if Respondent's wife had ``a substance abuse issue, 
. . . isn't it logical that Dr. Webb would have as much, if not more, 
responsibility for that?'' Id. at 322. Dr. Chambers disagreed, 
explaining: ``not necessarily because Dr. Webb is not aware that . . . 
two doctors [were] putting drugs into one person.'' Id. While Dr. 
Chambers acknowledged that there is evidence in Dr. Webb's chart ``that 
he had discussions'' with Respondent about his wife, he found ``no 
evidence at all . . . that [Dr. Webb] knew that [Respondent] was also 
prescribing controlled substances.'' Id.
    Dr. Chambers testified that he did not see any notation in Dr. 
Webb's patient file that he was aware that Respondent's wife ``was 
running out early and that [Dr. Webb] was filling earlier.'' Id. at 
328. Asked if he would be surprised that Dr. Webb testified that he was 
aware that Respondent's wife was getting early refills, Dr. Chambers 
answered that he ``would be'' and explained that PMP ``data doesn't 
really reflect [that] there was a great deal of early refill activity 
going on from Webb by himself,'' and while ``[t]here may be a few 
instances of it, [it was] not very frequent.'' Id. at 329. Dr. Chambers 
explained that Dr. Webb's ``prescribing shows a relative lack of 
overlap of his . . . prescriptions for controlled substances. And when 
I say `relative lack,' I mean maybe a day or two,'' which is ``not 
really significant because people have got to go to the pharmacy.'' Id.
    Respondent's counsel then questioned Dr. Chambers about the 
alprazolam prescriptions which were issued by Dr. Webb and filled by 
Respondent's wife on May 14, June 10, July 4, July 21, August 4, and 
August 16, 2011, and whether the overlap between the prescriptions 
concerned him. Id. at 331. Dr. Chambers acknowledged that the June 10, 
2011 filling created an overlap of three/four days and was ``on the 
margin'' as did the August 16, 2011 filling. Id. at 331-32. Dr. 
Chambers also acknowledged that the July 21 prescription ``would 
concern me.'' Id. at 332. Dr. Chambers offered similar testimony with 
respect to several alprazolam prescriptions that Respondent's wife 
filled on February 14 and 23, 2012, finding that the latter fill was 
``five days early'' and ``[t]hat's when the red flag begins to go up.'' 
Id. at 332-33. Of note, however, several of these fills were actually 
refills of prescriptions written much earlier, see Tr. 333, and in any 
event, to the extent that Dr. Webb should have been aware that a 
previous prescription he issued had provided sufficient refills such 
that there was no reason to issue a new prescription on a particular 
date, Dr. Webb is not the respondent in this proceeding.\38\ Likewise, 
while Respondent's counsel raised a series of questions as to whether 
the pharmacies that filled the prescriptions should not have dispensed 
various early refills, id. at 334-336, the

[[Page 49719]]

ALJ properly ruled that the conduct of the pharmacies is irrelevant. 
Id. at 336.
---------------------------------------------------------------------------

    \38\ Specifically, Dr. Webb's February 3, 2011 alprazolam 
prescription, which was for a 30-day supply, see GE 5, at 111, 
authorized five refills, and Respondent's wife obtained refills 
which were authorized by this prescription on June 10 and July 4, 
2011. See GE 11, at 12. However, on May 2, 2011, Dr. Webb issued 
Respondent's wife an additional prescription for 30 days of 
alprazolam. GE 11, at 13; GE 5, at 111.
---------------------------------------------------------------------------

    Respondent's counsel subsequently asked Dr. Chambers if the 
hydrocodone prescription which Dr. Webb issued on June 28, 2013 
concerned him. Id. at 338. Dr. Chambers testified that he did ``have a 
concern in that [Dr. Webb] is concurrently prescribing two other 
benzodiazepines at the same time,'' these being temazepam and 
alprazolam. Id. at 338-39. Dr. Chambers also acknowledged that the 
Adderall prescription issued by Dr. Webb on this date created ``a 
speedball.'' Id. at 339. Continuing, Dr. Chambers testified:

    So that is a concern. When you step back from the record and you 
look at where--the opiate is the main threat actually, and when you 
look at the predominance of opiate prescribing over three years, the 
majority of it came from Dr. Alexander. So the number of opiates 
that were prescribed were quite rare. The incidents you're putting 
in there--you're pointing out is a concern, but . . . the relative 
frequency of which Webb did that was much, much, much lower than 
when Dr. Alexander [did] it, and that's interesting because, as you 
pointed out, Dr. Webb is prescribing . . . three or four times more 
number of prescriptions. So it's a matter of degree as well.

Id. at 340.
    Asked if it is within the usual course of professional practice for 
a psychiatrist to prescribe an opiate, Dr. Chambers testified that a 
psychiatrist ``may treat pain on occasion.'' Id. at 341. While Dr. 
Chambers then testified that he was surprised that Dr. Webb had 
testified that that he had written the June 28, 2013 hydrocodone 
prescription knowing that another physician was prescribing the drug to 
Respondent's wife and did so without consulting that physician, when 
Respondent's counsel asked Dr. Chambers if this called into question 
Dr. Webb's treatment of her, the ALJ properly sustained the 
Government's objection. Id. at 341-42.
    Addressing the prescription for Diastat Acudial, a rectal 
suppository form of diazepam, Dr. Chambers testified that while Dr. 
Webb's file shows that Respondent's wife suffers from seizures, he did 
not see how administering Diastat would ``be consistent with treating 
someone who was having a seizure.'' Id. at 345. While Dr. Chambers 
testified that Valium (diazepam) and benzodiazepines ``can be used to 
treat seizure disorder[s],'' he added that these drugs ``can also cause 
seizure disorders.'' Id. at 346. Dr. Chambers subsequently testified 
that a rectal suppository might be used ``to treat a seizure disorder 
if someone can't take [the drug] orally, meaning [the patient] would be 
in status epilepticus, like actively seizing and not conscious.'' Id.

Respondent's Testimony at the State Board Hearing Regarding His Reasons 
for Issuing the Prescriptions

    At the January 2014 Board hearing which resulted in the suspension 
of his medical license, Respondent was asked to explain why he issued 
the prescriptions. GE 14, at 56. Respondent explained that his wife has 
a ``fragile'' psychiatric condition, which ``became even more fragile'' 
in ``about November or December of last year.'' Id. He testified that 
while ``[t]here were times [that his wife] would run out of medicine 
and not decompensate . . . there was never a decompensation where she 
had her medicines.'' Id. at 57. Respondent testified that ``[w]ith 
[his] history, there was no way to call anyone else'' and ask them to 
prescribe Xanax to his wife because anyone he knows would ``be 
immediately suspicious that it was for me.'' Id. at 58. According to 
Respondent, ``as regards my wife herself, I would phone in usually a 
two- or three-day stop gap supply of medicines. And if you'll look at 
the numbers dispensed, it's usually 12, which would be a three-day 
supply for'' her. Id.
    Continuing, Respondent testified that ``[w]e tried to . . . contact 
[Dr.] Webb, but . . . you can't get him at night, on weekends, and I 
don't blame him. And as he always tells [my wife], this is a matter 
that she shouldn't be running out prematurely.'' Id. Respondent 
maintained that ``[t]his happened . . . in December, in January, in 
February. I don't think it happened in April or May.'' Id. He further 
asserted that ``[i]t was sporadic'' and ``was always for a confined 
number of pills, a small amount, that bridged her gap between obviously 
when she was in crisis and didn't have any medicine.'' Id. Respondent 
also testified that ``we've got a baby here,'' ``I may be working out 
of town,'' and ``I've got to do something to calm this situation 
down.'' Id. Respondent added that he ``felt as if [he] was in an 
emergency situation.'' Id.
    Apparently referring to the prescriptions he issued for 
hydrocodone, Respondent testified that ``[w]hen that changes--there 
were two occasions in general'' when he ``called in.'' Id. Respondent 
then related that a plastic surgeon had drained an abscess in his 
wife's thigh and testified that he ``noticed that there was one 
prescription for Lorcet then for a few, and it happened again in July 
of last year'' when his wife's mother died and his wife ``had a seizure 
[and] fell,'' suffering various injuries. Id. While Respondent 
testified that ``there was pain medicines [sic] then,'' he added that 
``in general, the majority of the medicine were Xanax, two milligrams, 
three days' supply were common.'' Id. at 59-60. Respondent then 
maintained that his wife ``would get in with Dr. Webb the following 
Monday morning, and he will refill everything.'' Id. He further 
testified that ``I think the record reflects that I filled in in times 
where I just didn't think I had no other choice. I didn't know what to 
do.'' Id.
    Continuing, Respondent testified that ``I have never denied that I 
called things in for Jill . . . I always thought that if called to task 
for it, the context would not speak for itself but would be evidenced 
by number, etcetera.'' Id. at 61. Respondent then testified that he was 
monitored by the Board and that ``[t]here's not been any diversion. 
There has not been any suggestion of that and, fortunately, got a lot 
of urine tests that were negative. I only ever did what I did when I 
perceived I had no other options having exhausted anything else that I 
knew to do.'' Id.
    Asked about the December 2012 Adderall prescription, Respondent 
stated that he did not ``recall ever writing'' the prescription and 
that his wife ``was in the hospital in Hattiesburg at the time.'' Id. 
at 62. Continuing, Respondent stated that ``that one prescription 
doesn't seem to fit for me. I don't think that's mine, but I would be 
glad if somebody had a copy of it to look at it.'' Id. at 62-63. The 
prescription is, however, in the record of this proceeding. GE 18, at 
102. It shows Respondent as the prescriber and Respondent offered no 
testimony in this proceeding disputing that he issued it. Id.
    Respondent also told the Board that his prescribing was ``not a 
matter of judgment'' but ``a matter of heart.'' GE 14, at 63. He 
further told the Board that:

    I never did anything that I didn't think at the moment . . . was 
necessary, and I think if you look at the record you can see that. 
There can be no more. There can be no more. You know, if I have to 
call 911 every time, then I am Jill's husband. I am not--I was never 
her doctor. I stopped gapped, but I can't even do that anymore. I 
mean, I know that is a matter of fact going forward.

Id. at 63-64.
    During cross-examination at the Board proceeding, Respondent 
admitted that he did not disclose that he had been issuing the 
prescriptions until he was asked by the Board. Id. at 64-65. He further 
asserted that he did not ``come up with [his wife's] regimen,'' that he 
``didn't change her regime,'' and that he only ``mirrored what her 
treating psychiatrist had done.'' Id. at 65.

[[Page 49720]]

However, after a Board member identified multiple hydrocodone and Xanax 
prescriptions that he issued in July 2013 and asked if he thought 
``that's wise,'' Respondent stated that ``I have to alter what I said. 
She also has a treating neurologist'' (Dr. Bell) who ``also does 
musculoskeletal medicine'' and that when his wife ``had a seizure'' she 
saw the neurologist. Id. at 66. Respondent then explained that ``[w]hen 
I say psychiatrist, that's what Dr. Bell had given her for pain, and 
she ran out, and she was sitting constantly in the . . . [h]ospital.'' 
Id. Respondent asserted that ``that was an isolated incident there.'' 
Id.
    During the Board proceeding, Respondent acknowledged that he had 
violated his RCA and an agreement with the Board. Id. at 68. He further 
asserted that he never issued the prescriptions ``out of defiance[,] . 
. . self will, power, or arrogance'' and that ``[i]t was always done in 
a short stop gap times [sic] when I believed again . . . that there 
were no other options.'' Id. at 69.
    Before the Board, Respondent further asserted that he did not 
notify Dr. Webb about the prescriptions because his wife ``assured 
[him] that [Webb] was apprised of every situation.'' Id. at 78. 
However, when a Board member noted that ``[c]ommon sense would dictate 
as a physician [that] the next morning you pick up the phone and call 
this psychiatri[st] that's taken care of [her] for 18 years and knows 
her probably better than any healthcare professional'' and tell him 
``this is what happened last night, and this is what I did,'' 
Respondent answered: ``Not with every time.'' Id. at 79. Asked more 
specifically why he did not talk to Dr. Webb, Respondent maintained 
that his wife told him that ``[w]ith your Betty Ford attitude, he's 
going to take me off my Xanax'' and ``I don't want you to talk to 
him.'' Id. at 80. While Respondent testified that he should ``have 
overridden her concerns and intruded . . . upon her doctor/patient 
relationship,'' he then added that ``[i]n retrospect, I should have 
done that, more than the few times that I did do it. I certainly did it 
sometimes. I didn't do it with every issuance herein.'' Id.
    The same Board member noted that ``there's an insinuation that [Dr. 
Webb] knew something had happened and that weekend or something had 
happened and that emergency medicine had been called in'' and asked 
``is that correct?'' Id. Respondent answered: ``I certainly know that 
certain times he did. I don't know that at every time he did.'' Id. 
Respondent added that he was ``certain that the answering service's 
message was, `[c]all Dr. Alexander.' '' Id. at 80-81. Respondent 
subsequently testified that ``no, I didn't do it every time. I have had 
the discussion with him.'' Id. at 81.
    Respondent testified that when he would call Dr. Webb's answering 
service, he would ``ask [ ] for a call back from Dr. Webb or the doctor 
on call.'' Id. at 84. When asked if he ``communicate[d] to the 
answering service the gravity of the situation,'' he admitted that he 
did not. Id. at 85. He then explained that ``I think I communicated 
that it was a medicine shortfall and that we needed someone to remedy 
that.'' Id.

Respondent's Case

    Respondent's first witness was his wife. Tr. 357-401. Of 
consequence, the ALJ found ``that her testimony was not helpful in 
resolving the issues in this case.'' R.D. 9. Specifically, the ALJ 
found that ``her testimony was confusing, lacked specificity, and, at 
times, was internally inconsistent'' and that ``she could not remember 
many details of the underlying events about which she was testifying.'' 
Id. (citing Tr. 373-74, 376-77, 382, 384, 391). The ALJ also ``found 
her responses to some questions to be evasive, and her demeanor to be 
somewhat combative.'' Id. The ALJ also provided extensive reasons for 
why he gave ``little credence to her testimony, and where it [was] 
contradicted by other evidence,'' he did not find her testimony as 
credible.
    These included:

    She could not recall the number of times she had called Dr. 
Webb's answering service and had not received a return phone call. 
Tr. 360-62. She could not provide an adequate explanation of why she 
continued to be Dr. Webb's patient even though she was dissatisfied 
with his failure to return her phone calls. Tr. 361-62, 382, 391. In 
explaining her difficulty in recalling details from 2011 to 2013, 
she said she could not recall because that was ``seven years ago.'' 
Tr. 372. She testified that she did not have appointments with Dr. 
Webb between 2011 and 2013, yet Dr. Webb's treatment notes document 
several appointments during that period. Compare GE 5, at 42-46, 49-
53, with Tr. 386. She testified that she told Dr. Webb that she 
would only get her prescriptions from him, and that that had been 
her practice for the past three years, but later testified that she 
had this discussion with Dr. Webb in 2016. Tr. 363, 368, 398-99. She 
testified that she only used one pharmacy, but her PMP report shows 
she filled prescriptions at numerous pharmacies. GE 11; Tr. 369. She 
did not give a direct answer to the question of whether she had told 
Dr. Webb that the Respondent had provided her with prescriptions, 
and when she provided an example of when she had passed that 
information to Dr. Webb, the example was outside of the time range 
of the Respondent's alleged violations. Tr. 360-63, 398-99.

R.D. 9.
    Respondent's wife testified that she is known by various names 
including Mona Jill Graham Alexander, Mona Jill Graham, Mona Jill G. 
Alexander, and Jill Alexander. Tr. 357-58. She testified that she has 
been a patient of Dr. Webb for 16 years and she would usually see Dr. 
Webb three times a year and speak on the phone two to three times a 
month for 30 minutes to one hour. Id. at 359.
    Respondent's wife testified that during the 2011 through 2013 time 
period, she ``would tell'' Dr. Webb that Respondent was prescribing 
controlled substances for her, ``especially if I got out of 
medication.'' Id. at 360. I do not find this credible. Nor apparently 
did the ALJ. R.D. 16 (FoF #28: ``Dr. Webb did not know that the 
Respondent was simultaneously prescribing controlled substances to Mrs. 
Alexander.'') (citations omitted). While Respondent's wife also 
testified that when she called after hours, ``[n]o one would ever . . . 
call me back,'' that this ``was very frustrating'' to her, and that she 
expressed her frustration to Dr. Webb, Tr. 360-61, the ALJ did not find 
this testimony credible. R.D. 15 n.21. Indeed, the ALJ specifically 
found credible Dr. Webb's testimony that Respondent's wife ``never told 
[him] that she was dissatisfied with her ability to contact him or his 
office.'' R.D. 15 (FOF #23.). I agree with these findings.
    Respondent's wife testified that ``[t]he only conversation we [she 
and Dr. Webb] ever had about [her husband's prescribing] was to let me 
be the only one that prescribes you this medicine.'' Tr. 363. She 
initially testified that this conversation ``probably [occurred] 
towards the end'' of 2013, id. at 391, only to testify that the 
conversation occurred ``after [she] got discharged from the hospital'' 
in March 2016. Id. at 398-99. She also testified that during the 2011 
through 2013 time period, she was hurting herself and that to the best 
of her recollection, she shared this with Dr. Webb. Id. at 364.
    Regarding the Diastat prescription, Respondent's wife testified 
that she uses the drug because she has seizures and because ``I've had 
seizures, I just always try to travel with it and keep some on me.'' 
Id. at 366. Asked by the ALJ if she was using this medication in the 
2011-2013 time period, Respondent's wife answered: ``I always keep it 
with me. It's something that I'll try not to ever run out.'' Id. She 
also subsequently testified that the Diastat was not prescribed by Dr. 
Webb but by her ``neurologist.'' Id at 393.
    Respondent's wife testified that she believed her husband 
prescribed the controlled substances because he was trying to help her. 
Id. at 367. She further

[[Page 49721]]

testified that her husband ``never prescribed medicines that weren't 
prescribed for [sic] Dr. Webb when I got--until we could get in touch 
with him.'' Id. See also id. at 383 (``[B]ut he never prescribed 
anything that I hadn't already been prescribed by Dr. Webb.'').
    She also testified that when her husband wrote a prescription for 
her, she was in crisis, and that her husband had never provided her 
with a controlled substance prescription when she was not in crisis. 
Id. at 367-68, 376. She further maintained that she ``would try to get 
in touch with Dr. Webb, and in the interim of a two- or three-day fill-
in, I did get medicine from'' my husband. Id. at 371. When later asked 
why her husband would have to prescribe to her when she was in crisis, 
she maintained that ``[t]here would be occasional times I might run out 
a day early on a weekend . . . and he would see me very upset, crying, 
very emotional, and I feel like his intent was never to harm me. He was 
just trying to help me.'' Id. at 379. See also id. at 381 (``I don't 
know if I told him I need more or if he just knew that I just needed 
just two, three, four to get back to Dr. Webb because no one would call 
us back.''). However, when asked if Respondent had ever given her a 
prescription for a longer time period than two to four days, she 
answered: ``Not to my knowledge. I do not remember.'' Id. at 384.
    On cross-examination, she also admitted that Respondent had written 
a hydrocodone prescription for her but maintained that he did so when 
her mother ``was dying in the hospital'' and she developed back pain 
because she sat at her ``mother's bedside waiting for her to die.'' Id. 
at 374. Respondent's wife then maintained that she did not recall her 
husband as having written ``[m]ore than one'' hydrocodone prescription. 
Id.
    However, as found above, Respondent issued numerous hydrocodone 
prescriptions to her well before Dr. Webb issued the single hydrocodone 
prescription on June 28, 2013. Also, a substantial number of the 
prescriptions (especially those for zolpidem) were for quantities that 
far exceeded the amount necessary to provide medication until she was 
able to get a new prescription from Dr. Webb. Moreover, in a number of 
instances, Respondent issued the prescription notwithstanding that his 
wife had either recently refilled a prescription for the same drug or 
had refills outstanding which were authorized by an existing 
prescription issued by Dr. Webb.
    On questioning by the ALJ, Respondent's wife maintained that during 
the period of 2011 and 2013, she ``usually [did] not'' get a call back 
from Respondent's office when she would leave a message. Tr. 387. Not 
only did the ALJ not find her testimony credible, her medical file 
contains evidence of only two phone calls she made during this period 
in which Dr. Webb did not document that he called back or Dr. Webb did 
not issue a prescription either the same day or the following day.\39\
---------------------------------------------------------------------------

    \39\ The first of these was on August 25, 2011. GX 5, at 140. 
Notably, Respondent's wife had an office visit with Dr. Webb on 
August 16, 2011, during which he wrote her prescriptions for 30-day 
quantities of Adderall 20 mg, zolpidem 10 mg, and 90 alprazolam 2 
mg. Id. at 49; GX 11, at 12. While the phone messages states 
``Having problems,'' GX 5, at 140, Respondent did not issue a 
prescription until August 28, 2011, when he authorized 12 zolpidem.
     The second of these occurred on July 10, 2013. GX 5, 133. 
However, the same day, Respondent's wife refilled a prescription for 
45 alprazolam 2 mg (15 days). GX 11, at 6.
---------------------------------------------------------------------------

    Respondent called as a witness Peter Graham, Ph.D. Dr. Graham is a 
psychologist who works with Acumen Assessments, which provides clinical 
evaluations of physicians who are referred to it by physician health 
programs and state boards, and the Acumen Institute, which provides 
treatment, education and coaching to ``licensed professionals who are 
in the process of being rehabilitated for one or another professional 
reason.'' Tr. 403-04. Dr. Graham testified that the main focus of 
Acumen's evaluations is not whether a physician is competent to 
practice medicine, but whether the physician's ``mental status, 
personality variables, [and] character traits . . . may impact on 
decision-making, ethical judgment, self-regulation, ability to remain 
responsible and maintain the duties of licensure.'' Id. at 416-17.
    Dr. Graham testified that Respondent was referred to him ``for 
evaluation of his fitness secondary to having engaged in conduct that 
was contrary to his [recovery] contract,'' that being writing the 
prescriptions for his wife. Id. at 417. According to Dr. Graham, the 
evaluation determined ``that there was an interaction between certain 
personality factors that affected his judgment and the way he was 
deciding to comply or not with his contract, as well as anxiety and 
situational stress related to'' his home life that ``affect[ed] his 
mental status.'' Id. at 419. The evaluation recommended to the MPHP 
that Respondent ``undergo treatment designed for professionals who have 
made ethical misjudgments or engaged in some kind of misconduct . . . 
with a focus on examining his ethical decision-making'' and how his 
``personality traits'' affected his behavior. Id. at 420.
    Respondent subsequently underwent treatment, which included both a 
three-week inpatient and one-week follow-up visits at three and six 
months, individual psychotherapy in his home community, and a three-day 
wrap up visit at the one-year mark. Id. at 421-22. According to Dr. 
Graham, Respondent's treatment team has determined that he can ``return 
to supervised and monitored practice.'' Id. at 425.
    Respondent also called as a witness, Scott Hambleton, M.D., the 
medical director of the MPHP. Id. at 435-37. Dr. Hambleton testified 
that ``the heart of [Respondent's recovery] contract concerns 
abstinence from any mood-altering or addictive substances, which would 
increase the risk of a relapse to substance use and active addition.'' 
Id. at 443. He further testified that Respondent is subject to random 
testing approximately 30 times a year for both drug and alcohol use, 
that he is subject to a workplace monitor, and in the event he needs to 
take controlled substances, he ``is required to use a medication 
monitor'' and all such prescriptions must be approved by the MPHP ``in 
advance.'' Id. at 443-44. Dr. Hambleton also testified that Respondent 
is required to attend 12-step and Caduceus meetings for physicians in 
recovery. Id. at 445. In addition, according to Dr. Hambleton, a Board 
investigator visits Respondent on a random basis at least once a 
quarter to witness a drug screen and evaluate his appearance. Id. at 
446-47. Dr. Hambleton further stated that Respondent's contract will 
last for as long as he has an active medical license. Id. at 447.
    As for how the MPHP monitors the provision in Respondent's contract 
that prohibits prescribing to family members and himself, Dr. Hambleton 
testified that this is done by the Board's investigators. Id. at 448. 
Dr. Hambleton testified that if the MPHP found out that Respondent had 
prescribed controlled substances to himself or a family member it 
``would withdraw advocacy immediately.'' Id. at 449. Dr. Hambleton 
further testified that he had no reservations about Respondent 
returning to the unrestricted practice of medicine. Id. at 450. The 
record does not establish, however, what ``the unrestricted practice of 
medicine'' entails in light of Respondent's recovery contract.
    On cross-examination, Dr. Hambleton acknowledged that Respondent 
had violated his first two recovery contracts.\40\ Id. at 452. He also

[[Page 49722]]

acknowledged that at some point when Respondent had a job opportunity 
in Tennessee, the MPHP had written to that State's Board recommending 
against granting a license to Respondent. Id. at 475.
---------------------------------------------------------------------------

    \40\ Dr. Hambleton explained that Respondent had been subject to 
a ``provisional contract'' during the period of his license 
suspension ``to establish a period of compliance and recovery.'' Tr. 
452. Respondent did not violate this contract, which ended when he 
entered his current (fourth) contract. Id. at 453.
---------------------------------------------------------------------------

    Dr. Hambleton testified that he supported Respondent's return to 
the unrestricted practice of medicine because the Board's suspension of 
his license was ``a profound experience, especially for a neurosurgeon, 
with that amount of training,'' and ``[t]hat type of intervention has a 
powerful effect on the recovery process.'' Id. at 470. He also 
testified that ``Acumen has more expertise in dealing with personality 
issues'' and ``[s]o that treatment in itself . . . represents a 
profound event that makes it possible to provide advocacy.'' Id. at 
470-71.
    Dr. Hambleton further testified that Respondent's ``treatment has 
been effective'' and that ``[h]e's gaining insight, sensitivity, 
demonstration of more regard for others, responsibility, authenticity, 
the markers of recovery.'' Id. at 471.
    However, on questioning by the ALJ, Dr. Hambleton testified that 
his ``frequency of contact'' with Respondent ``is not what allows me to 
make that assessment of him.'' Id. at 472. Rather, Dr. Hambleton 
explained that his assessment was based on reports he received from 
other participants in Respondent's Caduceus group, ``from another 
facilitator of the group,'' his cases manager's reports, and ``watching 
him interact with other physicians during'' the MPHP's ``annual 
Caduceus retreat.'' Id. at 472. Dr. Hambleton then acknowledged that 
when he ``provides advocacy, [his] interaction with participants is 
very limited'' and that he ``provide[s] advocacy based on the 
constellation of collateral sources of information [and] their drug 
testing'' results. Id. at 473.
    Dr. Hambleton testified that ``[i]n the event that there is 
evidence of substance abuse, we will withdraw advocacy immediately, and 
it [will] be the end of his medical career.'' Id. at 477. He also 
testified that ``[i]n the event that he prescribes inappropriately . . 
. our medical board investigators will monitor it closely'' and the 
Board would ``issue an immediate prohibition on practice.'' Id. Dr. 
Hambleton was ``not sure'' as to how the Board found out about 
Respondent's prescribing to his wife, but based on ``conversations'' he 
has ``had with investigators,'' he asserted that ``now it is part of 
their policy to do regular PMP checks'' on the MPHP's participants.'' 
Id. at 477-78. The MPHP does not, however, have that authority. Id. at 
478.
    Respondent also testified on his own behalf. Id. at 481. After 
discussing his background, training and current employment, id. at 481-
82, Respondent testified that he ``[a]bsolutely'' prescribed controlled 
substances to his wife and did so when she was under the care of 
another physician. Id. at 484.
    Asked if his prescribing of controlled substances to his wife 
``violated his obligations as a licensed doctor in . . . Mississippi,'' 
Respondent answered: ``I know it violated my contract with the 
professionals healthcare program.'' Id. Asked if he believed that his 
prescribing ``in the manner that'' he did ``violated [his] obligations 
as a DEA registrant,'' Respondent testified: ``I don't know the 
specific legalities of DEA registration, but I'm here to tell you what 
I did was wrong, period, without any equivocation.'' Id.
    Respondent testified that when he testified before the State Board, 
he accepted responsibility for prescribing to his wife. Id. at 486. He 
then testified that he is under a lifetime monitoring contract, and 
that he is monitored by both the MPHP and the Board. Id.
    Asked why the Agency should entrust him with a DEA registration, 
Respondent testified:

even . . . if I don't know the letter or spirt of any law that I 
transgressed, I do know that becoming involved in a loved one's care 
is foolish. There is no subjectivity there. I can be Jill's husband, 
but that's all I can be to her, period. There can't be any clinical 
judgment, or any family member for that matter.
    As I testified in my [2014] board hearing . . . , regardless of 
what it had come from, I thought I'd hit a brick wall. And there are 
no other options for me. If I can't practice medicine, conforming to 
every jot, tittle, to the letter of the law, I can't practice 
medicine. There are no more get-out-of-jail cards for me. There 
aren't.

Id. at 489-90. Continuing, Respondent testified:

    I have tried to--perhaps I made enough missteps, I can provide a 
beacon of some sort to younger physicians that might think it's okay 
to prescribe outside the bounds of normal patients. I don't know 
what else I possibly could do at this point to convince Your Honor 
what more I could do to be--that I am worthy to be entrusted with a 
DEA registration. I will do it. If someone suggests something to me, 
I will gladly do it, but --.

Id. at 491.
    On cross-examination, the Government asked Respondent if he 
understood that ``DEA is alleging something slightly different than 
prescribing outside the contract.'' Id. at 494. After the ALJ overruled 
the objection of Respondent's counsel that the question was outside the 
scope of direct examination, Respondent testified that he was ``not 
certain that [he] understand[s] that fully.'' Id. at 495. The 
Government then asked Respondent if he understood that ``DEA is 
asserting that with respect to the prescriptions you issued for your 
wife that you violated Mississippi and federal law.'' Id. Respondent 
answered: ``I understand that you just asserted that, but my 
understanding would only stop there.'' Id.
    The Government followed-up by asking: ``so . . . you are not 
admitting that you violated either federal or state law with respect to 
the prescriptions you issued to your wife?'' Id. Respondent testified: 
``I think my answer is I'm uncertain as to every component, 
specifically of the federal, to be able to answer that as honestly as I 
want to.'' Id.
    The Government asked Respondent if he understood that what he had 
been charged with in the DEA proceeding ``had nothing to do with'' his 
recovery contract. Id. at 497. Respondent testified: ``I understand 
that you just represented half of what I understand'' and added that 
``I was found guilty of two things one, violation of a previous order . 
. . Number two, the unethical behavior, which in my interpretation is 
subsumed by the number of things that you have cited as far as 
Mississippi conduct, et cetera.'' Id.
    After noting that Respondent was only ``admitting responsibility to 
what the Board found'' and that was not what DEA had charged him with, 
the Government explained that it was ``trying to get a clarification as 
to what you're accepting responsibility for?'' Id. at 497-98. 
Respondent testified:

. . . as I've said already . . . I wrote prescriptions. I shouldn't 
have written prescriptions. It violated my contract. It violated my 
duty to my wife. It violated--in this one instance, in all my years 
of practice, that's the only time I've ever been called into 
question, but it violated as a layperson everything I think I should 
have done, regardless of why I thought at the time it might--
erroneously thought it could be proper.
    As far as me as a physician testifying to what statutes I may or 
may not have transgressed, I can't. That would be speculative at 
least on some level for me.

Id.

    After the ALJ sustained Respondent's objection to the Government's 
attempt to question him about both his testimony before the State Board 
and the patient file he maintained on his wife, the Government asked 
Respondent if he

[[Page 49723]]

``accept[ed] that the prescriptions that you issued to your wife were 
outside the course of professional practice as defined by the DEA?'' 
Id. at 501. Respondent answered:

    I think I've answered that already. I don't know precisely how 
the DEA defines it, and to be scrupulously honest, I can't. I will 
once again accept the responsibility that what I did was wrong and I 
should not have done it. And I have done everything in my power to 
remediate that. But I do not know again . . . the specifics of the--
of what I'm being charged with by DEA now, three years after I have 
assiduously striven to do everything I can to clean up and do 
everything right, and then you come along and ask me about new 
things.
    What hope is there for any other physician that follows me for 
redemption if we do everything we can. . . . What more, I mean, 
that's--I'm sorry. I'm getting emotional.

Id. at 501. Then asked if he had been treated unfairly by DEA, 
Respondent testified that ``I'm not certain I have a well-founded 
opinion of that. I know that I have done everything I humanly can and 
will continue to do so and provide the DEA and every other regulatory 
body with anything I can to ensure that I am safe for the public.'' Id. 
at 502.
    The Government then attempted to ask Respondent if he accepted 
responsibility for failing maintain patient files in compliance with 
Mississippi law. Id. at 502-03. The ALJ disallowed the question, 
explaining that Respondent's ``counsel has decided not to ask him if he 
wants to accept responsibility for that.'' Id.
    After both the Government and Respondent's counsel stated they had 
``[n]othing further,'' the ALJ observed that he was ``was just a little 
bit puzzled as to [Respondent's] answer about acceptance of 
responsibility.'' Id. at 503. While the ALJ stated that he found 
Respondent ``generally very credible,'' he then explained that ``[w]hat 
puzzles me is how you could come to this hearing without knowing what 
the charges against you by DEA are?'' Id. Respondent answered that he 
``presumed . . . that they would parallel that which the state charged 
me with. I mean, I knew we were having a hearing.'' Id. Respondent then 
testified that when he ``first applied for re-registration,'' he was 
told by a DI that ``it was all about my past history with addiction'' 
but that when he ``had the temerity to get an attorney, it morphed into 
something else,'' so he ``wasn't sure if'' he was to talk about his 
``recovery or other things.'' Id. at 503-04.
    After the ALJ asked if he had read the Show Cause Order and pointed 
out that it ``didn't say anything about [his] failure in recovery,'' 
Respondent acknowledged that ``[i]t didn't'' and asserted ``that's why 
[he] was confused.'' Id. at 504. Noting that the allegations involved 
his prescribing to his wife and his failure to make adequate notes in 
his wife's record, the ALJ again expressed his puzzlement as to what 
Respondent was ``accepting responsibility for.'' Id. at 504-05. 
Respondent replied that he knew ``exactly what the State . . . said I 
did'' and ``I think I believe that the DEA mimicked that . . . [or] 
paralleled that.'' Id. at 505. Continuing, Respondent stated: ``And if 
those two specifications or charges are the same, then, yes, I do 
accept responsibility for what DEA says.'' Id.
    The ALJ then explained that he was not sure what Respondent meant; 
Respondent stated that it went to his ``understanding of what I was 
charged and found guilty with by the State,'' which included violating 
his Recovery Contract and ``basically unethical behavior.'' Id. 
Respondent added that he ``assumed that that was also what DEA was 
doing here . . . [and] that I was being called to task for the same 
things.'' Id. at 506.
    Thereafter, the ALJ stated to Respondent's counsel that if he was 
``getting into an area that you don't want me to ask about, don't 
hesitate to object because I know I'm going beyond what your direct 
examination was.'' Id. The ALJ further stated that he ``want[ed] to 
respect the relationship between you and your client and your client's 
rights in this hearing,'' and that if he asked a question that 
Respondent's counsel ``vigorously object[ed] to,'' he expected 
Respondent's counsel ``to say so.'' Id. Respondent's counsel then 
stated that ``[t]here are lines that I'm concerned about here and based 
on the history here of whether or not a full-throated, yes, I violated 
this statute was going to result in, you know additional action 
against'' Respondent. Id. The ALJ then offered Respondent's counsel the 
opportunity to further question his client. Id. at 507.
    Respondent's counsel resumed questioning Respondent and asked him 
to ``clarify . . . what specific actions [he was] accepting 
responsibility for?'' Id. Respondent testified: ``Violating the 
previous order, right? Writing prescriptions for my wife when I wasn't 
a treating physician, which I think is not proper document, not fully 
proper documentation of those things.'' Id. Respondent's counsel then 
asked if ``it matter[ed] . . . what provisions that the violations fall 
under?'' Id. at 508. Respondent answered:

. . . I have found me guilty, and so if someone shows me--and 
perhaps . . . what I was saying that I'm ignorant of the specifics 
of a DEA charge. But if I meet the criteria and I accept I did it, 
then I did it. From my hearing in January of 2014, I never said I 
didn't. I sat there and said, yes, this is what happened. There are 
some prescriptions errors in that record, but in general, yes, this 
is what happened.

Id. Respondent further testified on re-direct that he was, in the words 
of his counsel, ``accepting responsibility for inappropriate 
prescribing practices related to [his] wife.'' Id.
    On re-cross, the Government asked Respondent ``[w]hat portion of 
the prescribing to [his] wife [was] inappropriate?'' Id. Respondent 
answered:

    Through my education with Dr. Webb--well, first of all, 
prescribing for family members is a bad idea in general. I think the 
contract specifies it because commonly that means there's diversion 
going on, and I'm prescribing for someone, and they're kicking it 
back to me, but that's not a question, and I think my urine tests 
show that didn't happen.
    I think that in general the objectivity required even in exigent 
circumstances must be called into question when it's a loved one.

Id. at 508-09.
    Subsequently asked by the Government if ``there [was] anything else 
wrong with your prescriptions to your wife, aside from the fact that 
she's a family member,'' Respondent answered:

    Let me think on that a minute. I'm a little almost frightened to 
answer because at no time do I want anyone in this courtroom 
thinking, exigent or not, that I'm saying it was right or that you'd 
have done it too if you were there. There's not a complete patient 
file. I mean, is that what you're asking me?

Id. at 510. After the Government again asked Respondent what he thought 
he ``did wrong with respect to the prescriptions,'' Respondent 
answered: ``again, I shouldn't have written. I violated the contract. 
Prompt me . . . I'm not trying to minimize anything. I'm blanking, 
frankly.'' Id.
    The Government then asked Respondent if he ``admit[ted] that the 
prescriptions you issued to your wife were outside the usual course of 
professional practice?'' Id. at 511. Respondent answered:

    As I understand that term of art . . . if the documentation is 
substandard, that that renders it outside the course of professional 
practice, then I would accept that, if I'm--any hesitancy previously 
has been based on that. I mean, you know, as a physician, I don't 
understand that term. When you say outside the course of medical 
practice, it makes me think that someone just gave rat poison or 
something absurd like that. But when you lay the predicate about 
proper documentation, for instance, then, yes, I would have to 
accept that.


[[Page 49724]]


Id. at 511-12. The Government subsequently asked Respondent if he 
``believe[d] that [his] actions increased the chances of [his] wife's 
dependency, overdose, or diversion of controlled substances?'' Id. at 
512. Respondent answered ``[n]o.'' Id.
    On still a further round of re-direct, Respondent acknowledged that 
he is ``not a psychiatrist'' and that ``[t]hese medicines are . . . 
chiefly used in psychiatric conditions. Id. at 513. Respondent's 
counsel further asked him if he understood that the DEA had alleged 
that he ``prescrib[ed] controlled substances to someone who was under 
the care of another physician for those same ailments.'' Id. Respondent 
testified that he understood that and ``accept[ed] that'' it was wrong 
for him to do that. Id. at 513-14.
    Respondent's counsel then asked if could ``be trusted to not engage 
in such prescribing in the future?'' Id. at 514. Respondent testified:

    I will first say strongly, absolutely. I have spent the last 
three years trying to redeem this situation, to show everyone 
exactly how driven I am. And, Your Honor, I'm not trying to avoid 
anything. If someone shows me I've done something wrong, I will 
admit it. I'm not even bringing up the subtext. I did wrong. I throw 
myself upon the mercy of the process. I have done everything that I 
know to do to try to remedy this situation and I can do no more than 
give my sworn oath that this will not happen again.

Id.
    Respondent's counsel concluded his examination by asking Respondent 
if his acceptance of responsibility included his ``prescribing to [his 
wife] while she was under the care of another doctor, perhaps providing 
medications too soon in terms of early refills, providing gap fills, 
[and] not having an adequate medical file?'' Id. at 515. Respondent 
answered ``[y]es.'' Id.

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 . . . 
an application for registration [should be] denied.'' Paul H. Volkman, 
73 FR 30630, 30641 (2008) (citing id.), pet. for rev. denied, Volkman 
v. DEA, 567 F.3d 215, 222 (6th Cir. 2009); see also MacKay v. DEA, 664 
F.3d 808, 816 (10th Cir. 2011); 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 Volkman, 567 F.3d at 222 (quoting Hoxie, 419 
F.3d at 482)).\41\
---------------------------------------------------------------------------

    \41\ 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.\42\ I further find that 
Respondent has failed to produce sufficient evidence to rebut the 
Government's prima facie case.
---------------------------------------------------------------------------

    \42\ As to factor one, while the Mississippi Board has taken 
disciplinary action against Respondent based on his issuance of the 
prescriptions, 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 subsequent restoration of his 
medical license without restriction of his controlled substance 
prescribing authority under Mississippi 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 ``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 
Mississippi 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.
     As for factor five, because the Government did not file 
exceptions to the ALJ's legal conclusions with respect to this 
factor, I deem it unnecessary to make any findings.

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

[[Page 49725]]

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). See 
also Miss. Code Ann. Sec. 41-29-137 (``a `valid prescription' means a 
prescription that is issued for a legitimate medical purpose in the 
usual course of professional practice'').
    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)).\43\
---------------------------------------------------------------------------

    \43\ 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.
     ``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).
---------------------------------------------------------------------------

    Under the Mississippi Board's Rule 1.4:

    Patient Record. A physician who prescribes, dispenses, or 
administers a controlled substance shall maintain a complete record 
of his or her examination, evaluation and treatment of the patient 
which must include documentation of the diagnosis and reasons for 
prescribing, dispensing or administering of any controlled 
substance; the name, dose, strength, quantity of the controlled 
substance and the date that the controlled substance was prescribed, 
dispensed or administered. The record required by this rule shall be 
maintained in the patient's medical records, provided that such 
medical records are maintained at the office of the physician . . . 
.
    No physician shall prescribe, administer or dispense any 
controlled substance or other drug having addiction-forming or 
addiction-sustaining liability without a good faith prior 
examination and medical indication therefore.

Miss. Admin. Code part 2640, Ch.1 r. 1.4. Continuing, Rule 1.4 
explains that:

    A determination as to whether a ``good faith prior examination 
and medical indication therefore'' exists depends upon the facts and 
circumstances in each case. One of the primary roles of a physician 
is to elicit detailed information about the signs and symptoms which 
a patient presents in order that he or she may recommend a course of 
treatment to relieve the symptoms and cure the patient of his or her 
ailment or maintain him or her in an apparent state of good health. 
In order for a physician to achieve a proper diagnosis and treatment 
plan, a history and physical examination consistent with the nature 
and complaint are necessary. . . . The paramount importance of a 
complete medical history in establishing a correct diagnosis is well 
established. Standards of proper medical practice require that, upon 
any encounter with a patient, in order to establish proper diagnosis 
and regimen of treatment, a physician must take three steps: (a) 
take and record an appropriate medical history, (b) carry out an 
appropriate physical examination, and (c) record the results. The 
observance of these principles as a function of the ``course of 
legitimate professional practice'' is particularly of importance in 
cases in which controlled substances are to play a part in the 
course of treatment. It is the responsibility of the physician to 
dispense, prescribe or administer such drugs with proper regard for 
the actual and potential dangers.

Id.
    Rule 1.4 further notes that ``[a] determination of proper `medical 
indication'[ ] also requires a careful examination of the nature of the 
drug and all circumstances surrounding dispensation.'' Id. The Rule 
also specifically notes that ``repeated refills over relatively short 
periods of time or the issuance of prescriptions at a time when the 
patient should not have finished taking the same medication from a 
prior prescription had the prescription directions been properly 
followed or the correct dosage taken'' is a factor indicating a lack of 
good faith on the part of a physician. Id. Also, the Board's Rule 1.16 
specifically provides that ``[t]he prescribing, administering or 
dispensing of any controlled substance in violation of the above rules 
shall constitute the administering, dispensing or prescribing of any 
narcotic drug or other drug having addiction-forming or addiction-
sustaining liability otherwise than in the course of legitimate 
professional practice, in violation of Mississippi Code [ ] Section 73-
25-29(3). '' Miss. Admin. Code part 2640, Ch. 1, r. 1.16).
    Here, the ALJ found that that Respondent acted outside of the usual 
course of professional practice and lacked a legitimate medical purpose 
when he issued numerous prescriptions for controlled substances 
included alprazolam, diazepam, hydrocodone, zolpidem, and Adderall 
(amphetamine). R.D. 39-44. I agree with the ALJ that Respondent 
violated 21 CFR 1306.04(a) in issuing the prescriptions. I further find 
that in issuing each of the prescriptions enumerated above (Nos. 1 
through 53), Respondent acted outside of the usual course of 
professional practice and lacked a legitimate medical purpose in doing 
so.
    Dr. Chambers provided unrefuted testimony that it is not within the 
usual

[[Page 49726]]

course of professional practice to prescribe a controlled substance to 
a patient with mental illness when the patient is being treated by a 
primary prescriber and the second physician does not communicate to the 
primary physician that he has issued the prescription. Tr. 275. Dr. 
Chambers testified as to the serious risks created by such prescribing, 
including oversedation, memory disturbance, overdose and potentially 
death, especially if the patient is also taking opioids. Id. at 250; 
see also id. at 268-69. Dr. Chambers also explained that when a patient 
is obtaining drugs from other sources and the primary prescriber is 
unaware, this ``can create a great deal of confusion on the part of the 
primary prescriber about the effects or side effects of the drug and 
the mental status of the patient.'' Id. at 251; see also id. at 291 
(``If you have two chefs in the kitchen, this is the kind of stuff that 
can happen as you get chaos and harm and polypharmacy and no one 
understanding what is the illness versus what is [sic] the side effects 
of the medications, and it can lead to escalation of mental illness, 
addiction, and even death.'').
    Dr. Chambers also offered unrefuted testimony that Respondent's 
prescribing resulted in ``a combination of multiple overlaps of 
multiple classes of addictive substances that can produce overdose and 
severe psychiatric disturbances.'' Id. at 273. And while Respondent is 
not a psychiatrist, Dr. Chambers offered unrefuted testimony that 
within the practice of psychiatry, there is a prohibition against 
treating a spouse. Id. at 293. Dr. Chambers further offered unrefuted 
testimony that Respondent's prescribing was not for legitimate medical 
practice and was non-therapeutic. I thus find that Respondent violated 
21 CFR 1306.04(a) with respect to each of the prescriptions set forth 
above.
    Respondent's failure to maintain adequate records to support the 
prescriptions provides additional support for this conclusion, as well 
as the conclusion that Respondent violated Mississippi Board Rule 1.4's 
provisions with respect to patient records.\44\ As found above, there 
was no documentation at all to support 36 of the prescriptions. 
Moreover, even with respect to the entries Respondent did make, Dr. 
Chambers found that ``there is a paucity of data to support the 
diagnosis or the prescriptions . . . that the note is built around. 
There's a lack of physical or mental status exam that normally would be 
in a note like this to justify and direct the use of controlled 
substances.'' Tr. 277. Dr. Chambers also observed that ``there are 
instances where the dosing or type of the drug is left out of the 
record.'' Id. at 278. See also GE 6, at 6 (entry for 2/5/13); id. at 7 
(entry for 3/28/13); id. at 8 (5/13/13 no dosing for Ambien); id. at 9 
(entries for 7/1/13 no dosing for Lorcet and 7/7/13 no dosing for 
Lorcet and Xanax); id. at 10 (no drug strength for Xanax prescriptions 
of 8/24/13 and 9/5/13).
---------------------------------------------------------------------------

    \44\ See supra findings for RXs No. 1-21, 25, 26, 28-31, 33, 35-
37, 39, 43, 45, 49, and 51.
---------------------------------------------------------------------------

    Before the State Board, Respondent testified that his prescribing 
``was sporadic'' and ``was always for a confined number of pills, a 
small amount, that bridged her gap between obviously when she was in 
crisis and didn't have any medicine.'' GE 14, at 58. He maintained that 
``the majority of the medicine were Xanax, two milligrams, [and that a] 
three day supply were [sic] common.'' Id. at 59-60. Also before the 
State Board, he maintained that ``I think the record reflects that I 
filled in in times where I just didn't think I had no other choice.'' 
Id. He further asserted that his writing of the prescriptions ``was 
always done in a short stop gap times [sic] when I believed again . . . 
that there were no other options.'' Id. at 69.
    Although the Government introduced into evidence the transcript of 
the January 2014 state board proceeding, it did not submit the Board's 
order prohibiting him from practice and/or the charging document, any 
of the exhibits submitted in the Board proceeding which may have shown 
what prescriptions were at issue in the proceeding, or even the Board's 
order suspending his license after the January 2014 proceeding. 
However, while it may have been the case that Respondent's explanation 
as to his reasons for prescribing during the 2014 board proceeding was 
consistent with the evidence presented at that proceeding, it is not 
consistent with much of the evidence submitted in this proceeding.
    As found above, the record contains numerous prescriptions which 
are not fairly characterized as two to three-day gap fills. With 
respect to Respondent's prescribing of zolpidem, they include fourteen 
prescriptions which clearly were not short-term gap fills. These 
prescriptions include numbers 2, 4, 6, 8, 22, 26, 28 (each for 30 du 
\45\), 23 (28 du), 29 (24 du), 15, 45 (each for 20 du), and 10, 12, 13 
(each for 12 du).
---------------------------------------------------------------------------

    \45\ While some of Respondent's prescriptions for 30 du of 
zolpidem had a dosing instruction of two tablets, the dosing 
instructions generally provided for one tablet.
---------------------------------------------------------------------------

    With respect to Respondent's prescribing of alprazolam, they 
include prescription numbers 11 (20 du, a 10 to 20-day supply), 34 (30 
du, a 10-day supply \46\), 53 (24 du, an eight-day supply), 31, 32 
(each for 20 du, each for a 10-day supply), 38, 52 (15 du, a five-day 
supply) 42, 43 (14 du, a 4-5 day supply), and 44, 47 (12 du, one a 
four-day supply, the other a six-day supply). Respondent also issued a 
prescription for 18 tablets of clonazepam (a six-day supply), 15 
capsules of Dextroamphetamine-Amphetamine 5 mg (a five-day supply), and 
20 tablets of diazepam (a six-day supply). With respect to the diazepam 
prescription, Dr. Webb did not even prescribe this drug to Respondent's 
wife. Of note, before the State Board, Respondent testified that he did 
not change his wife's treatment regimen and only ``mirrored what [Dr. 
Webb] had done.'' GE 14, at 65.
---------------------------------------------------------------------------

    \46\ This is based on Respondent's note for the prescription.
---------------------------------------------------------------------------

    Likewise before the State Board, Respondent initially offered 
testimony regarding his prescribing of hydrocodone which addressed only 
the prescriptions he wrote after a plastic surgeon had drained an 
abscess in his wife's thigh and when his wife had a seizure and fell. 
Moreover, when on cross-examination a Board member identified the 
multiple hydrocodone prescriptions Respondent issued in July 2013, 
Respondent testified that ``that was an isolated incident there.'' Id. 
at 66. The evidence in this proceeding shows, however, that during 
2011, Respondent issued seven hydrocodone prescriptions (Nos. 3, 5, 7, 
9, 14, 16, 19) for his wife prior to any other doctor prescribing the 
drug to her. See GE 11, at 11 (hydrocodone Rx written on Nov. 30, 2011 
by Dr. Bell, who Respondent identified as his wife's neurologist). 
Respondent has offered no explanation in either proceeding as to why he 
issued these seven prescriptions, as well as the hydrocodone 
prescriptions he issued on December 5, 2011 (No. 21), Aug. 13, 2012 
(No. 33) and Jan. 23, 2013 (No. 39).\47\
---------------------------------------------------------------------------

    \47\ While Dr. Bell (his wife's neurologist) issued hydrocodone 
prescriptions to Respondent's wife on November 30, 2011 and June 19, 
2013, Respondent's testimony before the Board addressed only his 
July 2013 prescriptions. GE 14, at 86.
---------------------------------------------------------------------------

    Also, in a number of instances, Respondent issued prescriptions 
even though his wife had refills available under prescriptions that 
were previously issued by Dr. Webb. For example, on March 30, 2011, 
Respondent issued a prescription for 30 zolpidem. (Rx No. 4). However, 
Dr. Webb's February 3, 2011 zolpidem

[[Page 49727]]

provided for multiple refills, which Respondent's wife filled on April 
9, 2011, May 23, 2011, and July 7, 2011. Moreover, Respondent issued 
new prescriptions for 30 zolpidem to his wife on May 6, 2011 and June 
28, 2011 (Rx No. 6 & 8). Respondent's prescriptions of March 30, May 6, 
and June 28 were clearly not ``gap fills.''
    Moreover, when Respondent issued the July 31, 2011 prescription for 
12 zolpidem, he also authorized a refill, which was available to his 
wife on August 28, 2011 (which she did not fill until September 6, 
2011), when Respondent issued her a new prescription for 12 zolpidem. 
See Rx No. 10 & 12. (Dr. Webb had also issued a 60 du zolpidem 
prescription on August 16, 2011 which provided multiple refills.). Even 
ignoring the prescription she obtained from Dr. Webb, Respondent's 
August 28, 2011 prescription was not a gap fill given that she had a 
refill available on Respondent's July 31, 2011 prescription.
    So too, Respondent's October 11, 2011 prescription for 20 zolpidem, 
a 20-day supply, (Rx No. 16) was issued notwithstanding that Dr. Webb's 
August 16, 2011 zolpidem prescription provided for five refills, one of 
which his wife filled on October 19, 2011. See GE 11, at 10-12. Even if 
Respondent's wife had run out of medication early because she failed to 
follow Dr. Webb's dosing instruction, she did not need this quantity of 
drugs to last her to the day on which she could refill Dr. Webb's 
prescription.
    Another such example involves Respondent's December 27, 2011 
prescription for 30 zolpidem and his January 7, 2012 prescription for 
28 zolpidem. (Nos. 22 & 23). Respondent's wife had obtained a refill of 
Dr. Webb's August 16, 2011 prescription for 60 du on December 16, 2011, 
only 11 days earlier (Dec. 16). Thus, there was no gap to fill. Nor was 
there a gap to fill on January 7, 2012, when he issued the prescription 
for an additional 28 dosage units given the quantity of drugs his wife 
had recently obtained.
    Still more examples are provided by the zolpidem prescriptions 
Respondent issued on March 4 and 12 (both for a 30-day supply), as well 
April 1, 2012 (for a 24-day supply). During this period, Respondent's 
wife obtained a prescription for 30 du (a 15-day supply) on February 
23, 2012, which provided for two refills, the first of which she 
obtained on March 19, 2012. Here again, the only potential gap was 
likely created by the failure of Respondent's wife to follow Dr. Webb's 
dosing instructions on the February 23rd prescription. Moreover, the 
March 12, 2012 prescription was not a gap fill given that Respondent 
issued the March 4, 2012 prescription, which provided a 30-day supply. 
Nor was the April 1, 2012 prescription a gap fill given Respondent's 
issuance of the March 12 prescription and the refill she obtained on 
March 19, 2012 pursuant to Dr. Webb's Feb. 23 prescription.
    Similarly, the evidence shows that on January 11, 2013, Respondent 
issued a prescription for 10 du of alprazolam (see No. 36). While this 
prescription provided only a three-day supply, the evidence shows that 
Respondent's wife had refilled a prescription issued by Dr. Webb for 45 
du of alprazolam the day before. GE 11, at 8. Thus, this was not a gap 
fill. Nor was Respondent's January 11, 2013 temazepam prescription (No. 
37) a gap fill as the evidence shows that his wife had also refilled a 
prescription for a 30-day supply of this drug the day before. GE 11, at 
8.
    As one further example, on May 20, 2013, Respondent issued a 
prescription for 20 tablets of zolpidem (No. 45). The evidence shows, 
however, that Dr. Webb had not issued a zolpidem prescription since 
February 23, 2012, which his wife last refilled in April 2012. Here 
again, this was not a gap fill.
    Had Respondent's prescribing been limited to a few instances of 
small (two to three day) gap fills, his conduct would be considerably 
less egregious given the circumstances of his wife's illness. The 
evidence shows, however, that his illicit prescribing went on for 
nearly three years. Even more disturbing is that the evidence shows 
that many of the prescriptions were not for gap fills at all, let alone 
for gap fills for two to three day periods as he testified before the 
State Board.
    Notably, in this proceeding, Respondent has personally offered no 
explanation as to why he issued the prescriptions. Moreover, the only 
evidence he offered was the discredited testimony of his wife that 
there occasionally were times when she ``might run out a day early on a 
weekend'' and only needed a short term supply until Dr. Webb got back 
to her and that Respondent had never given her a prescription for a 
time period longer than two to four days. Tr. 379, 381, 384.
    I thus conclude that the Government's evidence with respect to 
Factors Two and Four makes out a prima facie case to deny Respondent's 
application as ``inconsistent with the public interest.'' 21 U.S.C. 
823(f). I further find that Respondent's misconduct was egregious.

Sanction

    Where, as here, 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).
    Moreover, 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).
    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' '' or an application should be 
denied. Wesley Pope, 82 FR 14944, 14985 (2017) (quoting 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

[[Page 49728]]

(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 Pope, 82 FR at 14985 (quoting 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'').
    The ALJ acknowledged that ``to rebut the Government's prima facie 
case, the Respondent must both accept responsibility for his actions 
and demonstrate that he will not engage in future misconduct.'' R.D. at 
52 (citing Patrick W. Stodola, 74 FR 20727, 20734-35 (2009)). The ALJ 
then explained that ``[t]he Respondent may accept responsibility by 
providing evidence of his remorse, his efforts at rehabilitation, and 
his recognition of the severity of his misconduct.'' \48\ Id. (citing 
Robert A. Leslie, 68 FR 15227, 15228 (2003)). He also explained that 
``[t]o accept responsibility, a respondent must show `true remorse' for 
wrongful conduct,'' which includes an ``acknowledgment of wrongdoing.'' 
Id. (citing Michael S. Moore, 76 FR 45867, 45877 (2011) and Wesley G. 
Harline, 65 FR 5665, 5671 (2000)).
---------------------------------------------------------------------------

    \48\ To the extent the ALJ's statement suggests that a 
respondent can satisfy his burden of production on the issue of 
acceptance of responsibility by only producing evidence of efforts 
at rehabilitation, this is not the Agency's rule. Indeed, Leslie 
makes it clear that it was describing the total showing that is 
required to refute the Government's prima facie case. See Leslie, 68 
FR at 15228 (discussing previous agency decision involving 
respondent and stating that ``[t]he agency also found that although 
he was free to offer evidence that he would never again engage in 
the sort of conduct that resulted in his conviction, [r]espondent 
did not avail himself of that opportunity and offered no evidence of 
remorse for his misconduct, efforts at rehabilitation, or 
recognition of the severity of his conduct'').
     The Agency has explained that where the Government has proved 
that a respondent has committed knowing or intentional misconduct, a 
respondent must fully acknowledge the misconduct that has been 
proved on the record to be deemed to have accepted responsibility, 
and absent such a showing, his evidence of remedial measures is 
irrelevant. See Hatem M. Ataya, 81 FR 8221, 8242-43 (2016) (``the 
Agency has held that proof of remedial measures is rendered 
irrelevant where a respondent fails to accept responsibility for his 
knowing or intentional misconduct'').
---------------------------------------------------------------------------

    However, there are also numerous cases, that were not discussed in 
the Recommended Decision, which hold that where the Government has 
proved that a respondent committed knowing or intentional misconduct, 
he must unequivocally acknowledge his misconduct. See Daniel A. Glick, 
80 FR 74800, 74800-01 (2015) (rejecting exception to ``CALJ's 
conclusion that [r]espondent has not unequivocally acknowledged his 
misconduct'' and holding that ``[a] registrant's acceptance of 
responsibility must be unequivocal''); Annicol Marrocco, 80 FR 28695, 
28706 (2015) (denying application, holding that respondent's 
``equivocal testimony provided substantial evidence to support a 
finding that she does not accept responsibility for her misconduct''); 
Arthur H. Bell, 80 FR 50035, 50041 (2015) (denying application finding 
that physician's ``acceptance of responsibility is equivocal at best'' 
and ``his failure to accept responsibility for [intentional] misconduct 
is reason alone to conclude that he cannot be entrusted with a new 
registration''); Michael A. White, 79 FR 62957, 62598, 62967-68 (2014) 
(revoking registration adopting ALJ's finding that physician did not 
accept responsibility when his ``acceptance of responsibility was 
tenuous at best,'' ``not once during the hearing did [he] unequivocally 
admit fault for his improper . . . prescriptions,'' and he ``minimized 
the severity of his misconduct''); The Medicine Shoppe, 79 FR 59504, 
59510 (2014) (revoking registration where respondent ``offered 
generalized acceptance of responsibility'' but then denied filling any 
unlawful prescriptions); Ronald Lynch, 75 FR 78745, 78754 (2010) 
(revoking registration agreeing with ALJ's finding that respondent did 
not accept responsibility noting that he ``repeatedly attempted to 
minimize his [egregious] misconduct).\49\
---------------------------------------------------------------------------

    \49\ More recently, in Roberto Zayas, 82 FR 21410, 21429 (2017), 
I rejected the reasoning of Jeffrey Martin Ford, 68 FR 10750 (2003), 
which granted a new registration to a respondent who had a history 
of substance abuse and had been convicted of several drug felonies. 
In Zayas, I noted that the Ford ``decision apparently excused the 
respondent's failure to unequivocally accept responsibility based on 
his having attended drug rehabilitation and remained sober for more 
than 10 years, as well [as] having satisfied the conditions for 
reinstatement of his state license.'' 82 FR 21429. I also noted that 
``the decision [did] not even address whether [the respondent] 
accepted responsibility for his criminal conduct.'' Id. I further 
explained that I found ``the reasoning of this case unpersuasive, 
[and] were a case with similarly egregious misconduct presented to 
me, I would not grant a registration absent a clear and unequivocal 
acceptance of responsibility for all of the misconduct that was 
proven on the record.'' Id. See also Jones Total Health Care, 81 FR 
79188, 79200-01 (2016) (``[W]here the Government has proved that a 
registrant has engaged in intentional or knowing misconduct, 
revocation is warranted in the absence of the registrant's 
unequivocal acceptance of responsibility for its misconduct.''); Joe 
W. Morgan, 78 FR 61961, 61963 (2013) (``Given [r]espondent's 
multiple statements in which he blamed others for his troubles, that 
he never once acknowledged that he prescribed in violation of the 
CSA and Florida law, and that he attempted unpersuasively to 
minimize his culpability, the overwhelming weight of the evidence 
fully supports the ALJ's conclusion that [r]espondent is sorry only 
because he was caught.'').
---------------------------------------------------------------------------

    I disagree with the ALJ's conclusion that Respondent is entitled to 
a finding that he has accepted responsibility for his misconduct. To 
the contrary, I find that his testimony was equivocal and that he 
repeatedly attempted to minimize his misconduct. Indeed, even after the 
ALJ granted Respondent a second chance to explain what he was accepting 
responsibility for, he still did not unequivocally acknowledge his 
misconduct.
    In this matter, Respondent was specifically charged with violating 
21 CFR 1306.04(a), the CSA's prescription regulation which requires 
that a controlled substance prescription ``be issued for a legitimate 
medical purpose by [a] practitioner acting in the usual course of 
professional practice.'' ALJ Ex. 1, at 1-3 (]] 3-9). Indeed, the 
Government specifically alleged that the prescriptions ``were 
nontherapeutic, were for other than a legitimate medical purpose, and 
were outside the course of professional practice.'' Id. The Government 
also alleged that the prescriptions violated the counterpart provision 
of State law. See id. (citing Board Rule 1.16 and Miss. Code Sec. 73-
25-29-(3)). The Government further alleged that Respondent violated 
provisions of State regulations prohibiting the prescribing of 
controlled substances ``without conducting any examination of [his] 
wife (or documenting such in her file) or noting the . . . 
prescriptions in her patient chart,'' as well as ``without conducting 
sufficient examinations of [his] wife (or documenting such in her 
file).'' Id. at 3 (citing, inter alia, Board Rules 1.4 and 1.16, Miss. 
Code Ann. Sec. 73-25-29(3)).
    Notwithstanding that the Show Cause Order clearly set forth these 
violations, and that Dr. Chambers offered unrefuted testimony that 
Respondent's prescribing was outside of the ``usual course of clinical 
conduct,'' ``was dangerous and harmful,'' ``non-therapeutic,'' not for 
a ``legitimate medical practice,'' that there was ``a paucity of data 
to support the diagnosis or the prescriptions'' and there was ``a lack 
of physical or mental status exam'' documented in the noted to justify 
the prescriptions, Respondent repeatedly refused to acknowledge that he 
violated 21 CFR 1306.04(a).
    While Respondent testified that he violated his contract with the 
State PHP (which was not a charge in this proceeding), when asked by 
his counsel if he violated his obligations as a DEA registrant, he 
asserted that he did not ``know the specific legalities of DEA 
registration'' but was willing ``to tell you what I did was wrong, . . 
. without any equivocation.'' Tr. 484-85. While he

[[Page 49729]]

also acknowledged that ``becoming involved in a loved one's care is 
foolish,'' he then stated that he did not ``know the letter or spirit 
of any law that I transgressed.'' Id. at 489. And when asked why the 
Agency should entrust him with a new registration, he testified that 
``[i]f I can't practice medicine, conforming to every jot, tittle, to 
the letter of the law, I can't practice medicine,'' but he offered no 
explanation as to how he would conform ``to the letter of the law'' 
given his acknowledgment that he does not ``know the letter of or 
spirit of any law that [he] transgressed.'' Id. at 489-90.
    Indeed, throughout his testimony, Respondent asserted that he 
thought the charges in this proceeding simply involved the same charges 
that he was found guilty of in the State Board proceeding. He doggedly 
denied that he violated the CSA's prescription requirement, asserting 
that that it ``would be speculative . . . on some level'' for him to 
testify as ``to what statutes I may or may not have transgressed.'' Id. 
at 498. And when asked if he accepted that the prescriptions he issued 
to his wife ``were outside the course of professional practice,'' he 
asserted that he did not know how DEA defined the term ``outside the 
course of professional practice'' and maintained that I ``do not know 
again . . . the specifics of . . . of what I'm being charged with by 
DEA now.'' \50\ Id. at 501.
---------------------------------------------------------------------------

    \50\ Yet in his Pre-hearing Statement, Respondent stated that he 
``will acknowledge the allegations raised by DEA in the Order to 
Show Cause.'' ALJ Ex. 5, at 3.
---------------------------------------------------------------------------

    Given that the Show Cause Order provided fair notice to Respondent 
that he was charged with violating 21 CFR 1306.04(a) and that he heard 
the evidence against him and put up no defense, he was not required to 
speculate as to ``what statutes [he] may or may not have 
transgressed.'' Moreover, the CSA's requirement that ``a prescription 
for a controlled substance . . . must be issued for a legitimate 
medical purposes by [a] practitioner acting in the usual course of 
professional practice'' is hardly a ``jot'' or a ``tittle'' of the 
Act.\51\ To the contrary, the rule is one of the Act's fundamental 
features, as one of its purposes is to ``ensure [] patients use 
controlled substances under the supervision of a doctor so as to 
prevent addiction and recreational abuse.'' Gonzales, 546 U.S. at 274.
---------------------------------------------------------------------------

    \51\ See Webster's Third New International Dictionary, at 1221 
(1976) (defining ``jot'' as ``the least bit: IOTA''); see also id. 
at 2401(defining ``tittle,'' in part, as ``a very small part'').
---------------------------------------------------------------------------

    Notably, even after the ALJ repeatedly expressed his puzzlement as 
to what Respondent was accepting responsibility for, Respondent 
testified that he was accepting responsibility for what the State said 
he did and again asserted that he thought the charges in the DEA 
proceeding were the same as the charges which he was found guilty of by 
the State Board. Tr. 503-05. While the ALJ subsequently gave Respondent 
several chances to answer this question, his testimony continued to 
manifest equivocation, minimization and an unwillingness to acknowledge 
that he violated the CSA's prescription requirement.
    For example, when asked to ``clarify . . . what specific actions 
[he was] accepting responsibility for,'' Respondent answered: 
``[v]iolating the previous order, right? Writing prescriptions for my 
wife when I wasn't a treating physician, which I think is not proper 
document, not fully proper documentation of those things.'' Tr. 507. He 
subsequently testified that ``if someone shows me . . . what I was 
saying that I'm ignorant of the specifics of a DEA charge. But if I 
meet the criteria and I accept I did it, then I did it.'' Id. at 508 
(emphasis added). See also id. at 514 (``If someone shows me I've done 
something wrong, I will admit it.'')
    However, as found above, the unrefuted evidence, including the 
testimony of Dr. Chambers, establishes that Respondent's prescribing 
did ``meet the criteria'' for a violation of 21 CFR 1306.04(a). Yet 
even when confronted with this evidence, Respondent still was unwilling 
to accept that he ``did it.'' Id.
    On further cross-examination, Respondent was again asked what he 
thought was ``wrong with respect to the prescriptions.'' Id. at 510. 
While he answered that ``I shouldn't have written'' and ``I violated 
the contract,'' he then stated: ``[p]rompt me. I'm not trying to 
minimizing anything.'' Id.
    Minimizing is, however, exactly what Respondent was engaged in. And 
when the Government again asked Respondent if he was admitting that the 
prescriptions were issued outside the usual course of professional 
practice, Respondent maintained that ``as a physician, I don't 
understand that term'' and he was only willing to admit to acting 
outside of the usual course to the extent that his documentation was 
``substandard.'' Id. at 511. He then denied that his prescribing had 
increased the chances of his wife's becoming dependent, overdosing or 
diverting controlled substances.
    While it is true that on a still further round of re-direct 
examination, Respondent testified that it was wrong for him to 
``prescribe controlled substances to someone who was under the care of 
another physician for those same ailments,'' this is not a full 
acknowledgment of his illegal behavior. Indeed, the mere fact that a 
physician prescribes controlled substances to someone who is under care 
of another physician for the same ailments would not necessarily give 
rise to liability under 1306.04(a). Such prescribing would be entirely 
lawful under the CSA in bona fide emergency situations provided the 
prescriptions were limited to what was medically necessary to treat a 
patient before the primary physician could resume care.
    Here, however, Respondent has admitted to acting outside of the 
usual course of professional practice only to the extent he maintained 
``substandard records.'' Notwithstanding Dr. Chambers' testimony, 
Respondent has failed to acknowledge that his prescribing increased the 
risks of his wife become dependent, overdosing, or diverting controlled 
substances, his failure to conduct appropriate examinations, as well as 
his failure to notify Dr. Webb that he had prescribed the drugs.
    Moreover, before the State Board, Respondent maintained that his 
prescribing ``was sporadic,'' ``was always for a confined number of 
pills,'' that they were simply short gap fills which ``mirrored what 
[Dr. Webb] had done.'' However, as found above, many of the 
prescriptions provided substantially more medication than was necessary 
for a two to three-day period. These include 14 zolpidem prescriptions, 
each of which provided at least a 12-day supply (with 11 of the 
prescriptions providing 20 to 30 dosage units, most of which for a 20 
to 30-day supply) and five of the alprazolam prescriptions, four of 
which were for a ten-day supply, the other being for an eight-day 
supply. There were also the seven hydrocodone prescriptions and a 
diazepam prescription, which although they were for small amounts, did 
not ``mirror what [Dr. Webb or any other doctor] had done,'' and are 
unsupported by the findings of an examination and a diagnosis.
    Respondent personally offered no explanation in this proceeding (or 
before the State Board) as to why he issued these prescriptions, which 
clearly provided more drugs than were medically necessary to address a 
two- to three-day period.\52\ Indeed, while

[[Page 49730]]

Respondent maintained that he could ``absolutely'' be trusted to not 
engage in such prescribing in the future, that he was ``not trying to 
avoid anything'' and that ``I have done everything that I know to do to 
try to remedy this situation,'' he has not been forthcoming in this 
matter. Thus, I disagree with the ALJ that Respondent has ``express[ed] 
remorse to the full extent of [his] wrongful conduct.'' R.D. at 56.
---------------------------------------------------------------------------

    \52\ In his Pre-hearing Statement, Respondent also stated ``he 
will discuss the circumstances in which he prescribed controlled 
substances to his wife.'' ALJ Ex. 5, at 3. Respondent, however, 
offered no such testimony.
---------------------------------------------------------------------------

    The ALJ also gave weight to Respondent's testimony during the 
second State Board hearing that he was ``committed to `absolute and 
complete adherence' to applicable rules and regulations,'' id. at 55 
(citing GE 13, at 9-10), and further asserted ``that his commitment to 
adhere to all regulations governing controlled substances is genuine.'' 
Id. at 56-57. The ALJ did not explain how Respondent would accomplish 
this given his repeated assertions in this proceeding that he did not 
``know the specific legalities of DEA registration,'' did not ``know 
the letter or spirit of any law that [he] transgressed,'' that he does 
not ``know precisely how the DEA defines'' the term ``outside the 
course of professional practice,'' and ``as a physician, [he does not] 
understand [the] term.'' Tr. 511.
    The ALJ also rejected as only ``technically correct'' the 
Government's argument that Respondent did not accept responsibility for 
failing to conduct examinations and/or conducting insufficient 
examinations prior to issuing the prescriptions. R.D. 54-55. While the 
ALJ found that Respondent did not ``specifically acknowledge that it 
was wrong of him to issue a prescription without first conducting an 
examination,'' the ALJ faulted the Government for not asking this 
question of Respondent. Id. at 55. The ALJ further reasoned that the 
Government ``overlook[ed] the central concern of this case, which is 
that the Respondent wrote prescriptions for his wife when he should not 
have.'' Id. In the ALJ's ``view, the Respondent's acceptance of 
responsibility for failing to examine his wife before writing her a 
prescription is subsumed in his general acceptance of responsibility.'' 
Id. (citing Tr. 515).
    I cannot agree with this reasoning. As for the ALJ's faulting of 
the Government for not asking Respondent if he accepted responsibility 
for his failure to conduct examinations or conducting inadequate 
examinations, Respondent, and not the Government, had the burden of 
production on this issue. As for the ALJ's assertion that ``the central 
concern of this case . . . is that the Respondent wrote prescriptions 
for his wife when he should not have,'' the central concern of this 
case is what the Government alleged in the Show Cause Order and proved 
at the hearing.\53\ The proof fully supported the allegations, which 
included that he issued controlled substance prescriptions that ``were 
nontherapeutic, were for other than a legitimate medical purpose, and 
were outside the usual course of professional practice,'' that he 
issued the prescriptions when his wife was ``being issued prescriptions 
for the same or similar class of drugs by her . . . psychiatrist, which 
[he] did without her psychiatrist's knowledge or permission,'' and that 
his ``actions dramatically increased the chances of [his] wife's 
dependency, overdose or diversion.'' ALJ Ex. 1, at 1-3 (]] 3-7). 
Moreover, the Government's allegations that Respondent violated state 
and federal law by issuing controlled substance prescriptions ``without 
conducting any examination,'' Id. at 3 (] 8), or ``without conducting 
sufficient examinations,'' id. (] 9), were not simply additional 
factual allegations to support the charges in paragraphs three to seven 
of the Show Cause Order but were stand-alone charges.
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    \53\ Based on the Board's order and his recovery contract, 
Respondent ``should not have'' written the prescriptions. Yet, as 
the ALJ recognized when he expressed his puzzlement (multiple times) 
at to what Respondent was accepting responsibility for, the 
Government did not allege that Respondent violated his recovery 
contract or a Board Order; it alleged specific violations of federal 
and state laws and regulations.
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    With respect to the proven misconduct, Respondent admitted that he 
acted outside of the usual course of professional practice only to the 
extent that he failed to maintain proper records. As for the ALJ's 
further assertion that his acceptance of responsibility for failing to 
conduct examinations was ``subsumed in his general acceptance of 
responsibility,'' the cited testimony does not support this, as the 
question, which was asked by his counsel, made no reference to his 
failing to conduct examinations. Tr. 515.
    The ALJ acknowledged that ``[i]t is true . . . that Respondent did 
not plainly and expressly accept responsibility for violating specific 
federal regulations.'' R.D. 56. Indeed, at no point did Respondent 
admit that he violated 21 CFR 1306.04(a) with respect to any of the 
prescriptions, including those which clearly were not two to three day 
``gap fills.'' Nor did he ever admit that any of the prescriptions were 
non-therapeutic or lacked a legitimate medical purpose. And he denied 
that his prescribing increased the risks of his wife become dependent, 
overdosing, or diverting controlled substances. Respondent has 
therefore failed to ``express remorse to the full extent of [his] 
wrongful conduct.'' \54\ R.D. 56.
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    \54\ Earlier in his Recommended Decision, the ALJ asserted that 
my decision in Arvinder Singh, 81 FR 8247 (2016), ``states only that 
a registrant may be required to acknowledge the scope of his 
misconduct,'' thus suggesting that a respondent's acknowledgment of 
the scope of his misconduct is optional and that he is not required 
to ``accept responsibility for the consequences of his acts.'' R.D. 
54 (citing 81 FR at 8250-51). This is mistaken, as the case clearly 
stated that the respondent ``was required to acknowledge . . . the 
full scope of his criminal behavior and the risk of diversion it 
created.'' 81 FR at 8250. The risk of diversion was, of course, a 
consequence of the respondent's acts, which involved pre-signing 
prescriptions for controlled substances which were subsequently 
issued by nurses who were not lawfully authorized to prescribe 
controlled substances and the respondent did not see the patients. 
Id. at 8248-49.
     The ALJ also gave weight to Respondent's having ``expressed 
remorse and accepted responsibility for writing those prescriptions 
during the first three weeks of his treatment at Acumen'' as well as 
his testimony during the second Board hearing. R.D. 55. However, 
whether Respondent accepted responsibility for writing the 
prescriptions during his treatment at Acumen is wholly irrelevant. 
Likewise, because the Agency was not a party in the State Board's 
proceedings, the weight to be given to Respondent's testimony before 
the Board is substantially diminished. What matters is whether he 
accepted responsibility for the misconduct alleged and proved in 
this proceeding.
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    The ALJ further explained that he found Respondent's remorse to be 
sincere and that his acceptance of responsibility was ``credible.'' 
R.D. 56-57. This case, however, is less about Respondent's credibility 
(although there is ample reason to question it given his testimony 
regarding what he thought he had been charged with in this proceeding) 
\55\ and more about the weight to be given to his testimony. Moreover, 
the ALJ failed to apply the Agency's extensive case law which requires 
that an acceptance of responsibility be unequivocal, as well as that 
which requires a full acknowledgment of the proven misconduct.
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    \55\ While Respondent professed that he did not understand what 
he was charged with in this proceeding, the Show Cause Order was 
clear on its face. Respondent was also represented and if he truly 
did not understand the allegations, he should have asked his 
counsel.
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    While I appreciate that the ALJ closely examined Respondent's 
testimony both at this hearing and before the state board (as have I), 
I find it particularly disturbing that Respondent has never offered an 
explanation in any proceeding \56\ for the

[[Page 49731]]

many prescriptions he issued which clearly were not for short-term gap 
fills, an issue which is not even discussed in the Recommended 
Decision. Thus, I conclude that Respondent does not recognize the full 
extent of his misconduct. See MacKay v. DEA, 664 F.3d 808, 820 (10th 
Cir. 2011); see also Samuel Jackson, 72 FR 23848, 23852 (2007) (noting 
a respondent's burden to produce sufficient evidence to assure the 
Administrator that he/she can be entrusted with the responsibility 
carried by such a registration'').
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    \56\ While I have noted Respondent's testimony in the State 
Board proceeding as to why he issued the prescriptions, so that 
there is no lack of clarity for future matters, a respondent is 
required to present his evidence in the Agency's proceeding.
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    I therefore find that Respondent has failed to produce sufficient 
evidence to support a finding that he accepts responsibility for his 
misconduct. While there are cases in which the Agency has imposed a 
sanction less than denial or revocation where a respondent has failed 
to meet his burden on acceptance of responsibility, those cases have 
involved considerably less egregious misconduct than the knowing and 
intentional diversion of controlled substances which occurred here. 
Because Respondent engaged in egregious misconduct which he has failed 
to fully acknowledge, his evidence of remedial measures cannot rebut 
the Government's prima facie showing that his registration ``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 Lon F. Alexander, M.D., 
for a DEA Certificate of Registration as a practitioner, be, and it 
hereby is, denied. This Order is effective immediately.

    Dated: October 17, 2017.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2017-23339 Filed 10-25-17; 8:45 am]
 BILLING CODE 4410-09-P