Lon F. Alexander, M.D.; Decision and Order, 49704-49731 [2017-23339]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 16–17]
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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.
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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
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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,
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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]
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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
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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
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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.
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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
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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
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.
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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
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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
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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.
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.
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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
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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.
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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.
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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
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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
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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,
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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).
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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
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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,
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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:
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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.
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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.
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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,
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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.
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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
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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
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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
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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.
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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
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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,
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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.
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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,
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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.
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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.
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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
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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.
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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.
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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.
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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:
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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,
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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
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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.
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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–
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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.
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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
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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
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‘‘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.
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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
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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.
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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
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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
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‘‘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:
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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
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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
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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.
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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.
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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
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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
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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.
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Factors Two and Four—Respondent’s
Experience in Dispensing Controlled
Substances and Record of Compliance
With Applicable Controlled Substance
Laws
Under a longstanding DEA regulation,
a prescription for a controlled substance
is not ‘‘effective’’ unless it is ‘‘issued for
a legitimate medical purpose by an
individual practitioner acting in the
usual course of his professional
practice.’’ 21 CFR 1306.04(a). 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
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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).
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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
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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.
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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.
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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.
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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
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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.
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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
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(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’’).
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[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.’’).
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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
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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’’).
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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,
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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
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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
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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\
---------------------------------------------------------------------------
\1\ See also ALJ Ex. 1, at ]] 5-6.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
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\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.
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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.
---------------------------------------------------------------------------
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
