80 FR 71617 - Mark William Andrew Holder, M.D.; Decision and Order
DEPARTMENT OF JUSTICE
Drug Enforcement Administration Federal Register Volume 80, Issue 220 (November 16, 2015)
Drug Enforcement Administration
Federal Register Volume 80, Issue 220 (November 16, 2015)
| Page Range | 71617-71647 | |
| FR Document | 2015-28928 |
[Federal Register Volume 80, Number 220 (Monday, November 16, 2015)] [Notices] [Pages 71617-71647] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-28928] [[Page 71617]] Vol. 80 Monday, No. 220 November 16, 2015 Part IV Department of Justice ----------------------------------------------------------------------- Drug Enforcement Administration ----------------------------------------------------------------------- Mark William Andrew Holder, M.D.; Decision and Order; Notice Federal Register / Vol. 80, No. 220 / Monday, November 16, 2015 / Notices [[Page 71618]] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 14-13] Mark William Andrew Holder, M.D.; Decision and Order On October 9, 2014, Administrative Law Judge Christopher B. McNeil (hereinafter, ALJ) issued the attached Recommended Decision (hereinafter, cited as R.D.). On October 31, 2014, one day after the due date, see 21 CFR 1316.66, Respondent filed Exceptions to the Decision. According to Respondent's counsel, on the day on which his Exceptions were due, her word processing program shut down and while she was able to find a recovered document, ``it was not the most recent version and did not include the final arguments or footnotes.'' Resp. Mot. for the Administrator to Accept and Review the Updated Version of Respondent's Exceptions to the ALJ's Recommendations, at 1. Respondent's counsel represents that she immediately contacted the ALJ's law clerk to request an extension; according to Respondent's counsel, she spoke with the ALJ who stated that she could either submit the document ``as is'' or ``send a motion to the [A]dministrator requesting an extension.'' Id. at 1-2. Respondent's counsel chose to file his Exceptions ``as is.'' Id. at 2. However, according to Respondent's counsel, the document contained ``many errors and . . . was incomplete.'' Id. Respondent's counsel also represented that on the day before the Exceptions were due, she had to deal with a family medical emergency. Id. Accordingly, on November 5, 2015, Respondent's counsel filed the above-referenced motion along with a revised version of his Exceptions. Id. at 1. Having considered Respondent's motion, I find that good cause exists to excuse the untimely filing of his Exceptions and consider them in my review of the record. Having considered the record in its entirety,\1\ I adopt the ALJ's findings of facts and conclusions of law except as discussed throughout this decision. I agree with the ALJ's findings that Respondent (1) unlawfully prescribed controlled substances (Percocet and Xanax) to S.S., see R.D. at 59; (2) unlawfully obtained and self-administered Adderall, see id. at 59; (3) provided inconsistent and misleading accounts of his drug use to DEA Investigators, see id. at 61-62, 65-66; (4) materially falsified his application for a DEA registration; see id. at 62-63; and (5) failed to unequivocally acknowledge his misconduct in issuing unlawful prescriptions to S.S., see id. at 41-42, as well as in materially falsifying his DEA application, id. at 66; and (6) failed to produce sufficient evidence of remediation. Id. at 66-67. Accordingly, I adopt the ALJ's ultimate conclusions of law that Respondent has materially falsified his application for a DEA registration and committed acts which render his registration inconsistent with the public interest, and that he has failed to rebut the Government's prima facie case. See id. at 67. I therefore adopt the ALJ's recommendation that I deny Respondent's application. A discussion of Respondent's Exceptions follows. --------------------------------------------------------------------------- \1\ On November 3, 2014 (which was after the record had closed), Respondent filed a request for me to review an additional document, this being a chemical assessment performed on October 9, 2013 by Ms. Joan Hasper. Resp. Req. for Administrator to Review an Additional Document. Respondent argues that I should review this document because ``[t]here is no way that [he] can prove that he gave [the DI] a copy of the HPSP file without access to the Government's file which would document receipt of the HPSP file,'' and that ``it is necessary in the interest of justice to review the additional assessment which [the DI] testified that she did in fact receive.'' Id. at 3. Given that Ms. Hasper did not perform her assessments as part of the HPSP program, it is not clear why this document impeaches the DI's testimony that Respondent refused to provide releases for the records of his treatment which were maintained by the Florida PRN and the HPSP programs. However, Respondent furthers argues that ``this document shows that [the DI] received diagnosis, prognosis, and treatment [information], it further shows that Dr. Holder provided the necessary release which allowed [the DI] to meet with Ms. Hasper and discuss the process of the evaluation and its contents.'' Id. Respondent then acknowledges that ``this document probably should have been included in the evidence introduced at the hearing.'' Id. I agree. This document does not constitute newly discovered evidence and was obviously available to Respondent at the time of the hearing. I therefore decline to consider it. See Richard A. Herbert, 76 FR 53942, 53944 (2011); see also ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 286 (1987). --------------------------------------------------------------------------- Respondent's Exceptions Respondent takes exception to three of the ALJ's enumerated factual findings (numbers 12, 13, and 14) asserting that they are not supported by the record. He also takes exception to five of the ALJ's conclusions of law (numbers 2, 5, 6, 9, and 13). Exception to Finding of Fact12 In Finding of Fact number 12, the ALJ found: In the course of investigating the circumstances surrounding state medical board action pertaining to Respondent's medical licenses in Florida and Minnesota, DEA Diversion Investigator Virginia McKenna met with or spoke with Respondent on several occasions between July 19, 2012 and August 23, 2013. Throughout this period, Investigator McKenna made repeated requests for Respondent to provide the DEA with copies of monitoring and treatment records reflecting action by the medical boards in Florida and Minnesota. Initially, and for a period extending more than six months, Respondent deferred complying with these requests while assuring Investigator McKenna he would comply. By April 2013, when the records still had not been produced, Investigator McKenna presented Respondent with release forms that would authorize the DEA to receive copies of these reports. Respondent refused to sign the releases, and advised Investigator McKenna that he would not permit the DEA access to the PRN report from Florida, and gave her what appears to be an incomplete set of records reflecting the report from Minnesota. R.D. at 61. Respondent asserts that this finding is not supported by the record, because the Diversion Investigator acknowledged in her testimony that she had received duplicate copies of a physician's report prior to obtaining some 82 pages of documents from Respondent, and that ``[i]n order to receive a duplicate copy she must have received a previous copy of the report.'' Exceptions at 2. Respondent argues that the DI's statement that she did not receive `` `much, if anything' is contradicted by the fact that she acknowledged receipt of 82 pages of information,'' which included ``copies of notes [prepared by his case manager at the Minnesota Health Professionals Services Program (HPSP)], the quarterly reports[,] as well as a toxicology report provided to'' the DI. Id. at 2-3. Respondent also asserts that he provided the results of a chemical assessment, which included the diagnosis, prognosis and recommended treatment, by Ms. Hasper (who he saw outside of the HPSP program), as well as reports from Dr. Albert, a psychologist he saw some fifteen times as part of the HPSP program. Id. at 3 (citing Tr. 481). Respondent then argues that the DI ``intentionally mislead [sic] the court when she stated that she did not receive any documentation of diagnosis, treatment and prognosis'' and this calls ``into question the credibility of the rest of her testimony.'' Id. at 4. While Respondent acknowledges that he did not provide his Florida PRN file to the DI, he argues that he ``provide[d] a copy of his HPSP information which reflected the most recent analysis of his treatment, diagnosis and prognosis'' to the DI and that she did not ``articulate what information she was missing from [[Page 71619]] the HPSP file.'' Id. at 4. He then asserts that the DI, ``[a]fter having [his] HPSP file for months, . . . returned to his place of work to request that he sign a release.'' Id. Respondent asserts that he ``requested his entire file from HPSP and provided that file to [the DI] in January, four months before her visit to his office.'' Id. He then argues that ``[t]here was no reason for him to believe that HPSP records beyond what he provided existed or that signing the release would have provided any additional information than what he had already provided to'' the DI and that ``[t]here was also no reason to believe that providing PRN information would lead to an outcome.'' Id. I do not find Respondent's Exception to establish sufficient reason to reject the ALJ's finding, which was based largely on his assessment of the credibility of the DI and Respondent. As for Respondent's contention that because the DI testified that she received duplicate copies of a physician's report, she must have received the report previously, I do not agree. The DI testified that notwithstanding numerous requests she made of Respondent to provide his HPSP records, including on July 19, 2012 and August 25, 2012, as well as on an unspecified date in November 2012, he did not provide the aforesaid 82 pages, which he represented as being the HPSP records, until the January 4, 2013 meeting. Tr. 464, 469-70, 472-73. Notably, before Government counsel even broached the subject of the January 4, 2013 meeting the DI had with Respondent, Government Counsel asked the DI: ``and did you get the records?'' to which the DI answered: ``I did not.'' Id. at 473. Moreover, Respondent did not cross-examine the DI regarding her testimony that she received ``a duplicate copy'' of a quarterly report by Dr. Albert. Id. at 488-98. Indeed, the DI's testimony does not suggest that she had previously received the documents but that she received duplicate copies of various documents when on January 4, 2013, Respondent provided these documents to her. Id. at 474-75 (testimony of DI that after noting ``three or four pages of notes from'' his case manager, ``the remainder of the information were [sic] duplicate copies of his agreement to work with HPSP, faxes going back and forth showing people submitting quarterly reports but the quarterly reports didn't have a lot of detail. There was a duplicate copy from Dr. Albert on a quarterly report and the third page of that was from a second quarterly report which was almost identical to the first one and then there were a whole bunch of releases that he signed for different entities to receive some of these records'').\2\ --------------------------------------------------------------------------- \2\ As the 82 pages Respondent provided the DI were not submitted as a discrete exhibit (some of the documents may have been submitted as other exhibits), I have no basis to conclude whether the records were complete. However, the quarterly reports submitted as Respondent's Exhibit M (which covered the quarters ending on April 15, 2012 and July 15, 2012) were essentially three page documents, one page being the ``Participant Update,'' the second page being the ``Treatment Provider Report Form,'' and the third page being a letter from the Executive Director of Physicians Serving Physicians attesting to his attendance at various meetings. RX M. As for the Treatment Provider Report Forms, they list the primary and secondary treatment foci, Respondent's symptoms, and then provide a ``diagnostic impression,'' a ``Treatment Plan,'' ``Client/Patient Insight,'' and ``Medications.'' See RX M. While it is certainly true that these forms listed Dr. Albert's diagnosis and recommended treatment, given the brevity of the notes, which did not include a discussion of Respondent's history (including his history of substance abuse) and Dr. Albert's initial evaluation of him, it is understandable that the DI did not believe that Respondent had provided his complete HPSP file. --------------------------------------------------------------------------- As for Respondent's contention that in January 2013, he provided his complete HPSP file, the evidence nonetheless establishes that in August 2013,\3\ the DI, who still believed that Respondent had not provided the full file (indeed, he had not provided any material from the Florida PRN program), went to his place of employment and requested that he provide releases so that the DI could directly obtain his records from the HPSP and PRN programs. Tr. 478. Respondent again asserted that he had provided the DI with ``everything.'' Id. at 479. However, even after the DI told Respondent that she ``needed to obtain [the records] for [her]self in order to be sure that [she] had everything,'' Respondent declined to execute the releases saying that he wanted to talk to his attorney. Id. However, when the DI called him ten days later and asked whether ``he was willing to sign the releases,'' Respondent stated ``that he had already given me all of HPSP's records, that PRN's records were full of inaccuracies, and that it would be inappropriate for me to have that information and to use it at this point.'' Id. --------------------------------------------------------------------------- \3\ While the record establishes that in April 2013, the DI had a further conversation with Respondent about obtaining his records, including those from the Florida PRN program (which she ``hadn't received anything about''), the record does not establish the precise scope of this conversation. Tr. 478. --------------------------------------------------------------------------- It is true that during this phone call, Respondent told the DI that he was going to undergo a chemical assessment by Ms. Hasper, which he did outside of the HSPS, as he had already completed the program. Id. at 480-81. Respondent also apparently agreed to release the contents of his file with Dr. Hasper to the DI. Id. at 480. However, upon reviewing the file, the DI found that it contained notes from Dr. Albert (the psychologist who treated him under the HPSP program) for Respondent's first two visits (when generally a history and evaluation are completed). Id. at 481. According to the DI, she had not previously seen these notes in the documents Respondent submitted. Id. at 482. Thus, contrary to Respondent's Exception that the DI did not ``articulate what she was missing from the HPSP file,'' Exceptions at 4, the DI did identify information that was likely in his HPSP file.\4\ And even if this information was not in the file, I find that the rest of the ALJ's factual finding is supported by a preponderance of the evidence. I therefore reject this exception. --------------------------------------------------------------------------- \4\ As the DI testified, the notes showed that Respondent told Dr. Albert that he had ``used Adderall one time in residency and a total of perhaps five times outside of residency.'' Tr. 482. --------------------------------------------------------------------------- Exception to Finding of Fact 13 In Finding of Fact Number 13, the ALJ found: In meetings and conversations conducted by DEA Diversion Investigator McKenna . . . Henderson, and . . . Capello, Respondent gave evasive and conflicting answers to questions regarding his history of drug abuse, his use and abuse of marijuana and Adderall, the sources supplying him with controlled substances, his ability to recall the events immediately prior to and after the June 13, 2008 crash, the nature and severity of injuries he and his passenger sustained due to the crash, his use of controlled substances while working at MD Now, and his reasons for answering registration application Question Three in the negative. He provided similarly evasive and conflicting answers to questions presented to him by the medical boards in Florida and Minnesota, particularly minimizing the severity of injuries he and his passenger sustained in the June 13, 2008 crash. Respondent continued providing evasive, inconsistent, and deflecting responses during the evidentiary hearing he requested upon his receipt of the pending DEA Order to Show Cause. R.D. at 61-62. In excepting to this finding, Respondent takes issue with the ALJ's credibility findings with respect to multiple witnesses for the Government. These include: (1) The DI whose testimony is discussed above; (2) S.S., who testified, inter alia, that Respondent wrote a fraudulent prescription for Adderall in S.S.'s name, which S.S. filled, and after taking some of the pills, then provided to Respondent, as well as that he provided other drugs such as cocaine and marijuana to Respondent; (3) a [[Page 71620]] paramedic who responded to the scene after Respondent crashed his vehicle; and (4) N.P., a passenger in Respondent's vehicle, who was injured in the crash. Exceptions at 5-14. As for the DI, Respondent raises a further challenge to her credibility. He notes that during her testimony regarding a meeting (on July 19, 2012) with Respondent and his attorney, during which the allegation that he materially falsified Question Three on his application was raised, the DI testified that: He answered on the application no. When I asked him about that, he said that he didn't understand the question, that he wasn't intending to lie, at which time Mr. Harbison interjected, why would he lie when he knew it was public record, but I had no, I don't know why he would or wouldn't do such a thing, so I showed him the application. And then he said that he didn't read the question thoroughly, and that's when I showed him a sample application that I had. Tr. 463. According to Respondent, the DI later admitted that Respondent's ``application was not presented to him at the meeting.'' Exceptions at 6. Respondent based this on the following colloquy during cross examination: Resp. Counsel: And concerning the application, when Mr. Harbison first requested the application, wasn't he told that you all were not able to provide him an application because it was done on the internet? DI: Yes, ma'am. That was my error. I spoke with . . . the section chief for Registration, and I misunderstood what he said. And I relayed that, my misunderstanding. And that's when they went further and were able to produce it. Id. at 495. I do not find this testimony sufficient to support Respondent's contention that the DI gave false testimony in the proceeding. The DI's testimony is simply insufficient to establish that at the July 2012 meeting, she showed the actual application filed by Respondent as opposed to the sample application she referred to in the next sentence. Notably, the DI's testimony that ``so I showed him the application'' does not specify that it was Respondent's actual application which she showed him, and her continuing testimony supports the inference that it was only a sample application.\5\ Accordingly, I reject Respondent's challenge to the DI's credibility. --------------------------------------------------------------------------- \5\ Indeed, if the DI had Respondent's actual application available to her at the time of the meeting, there would have been no need to then show him a sample application, as the actual application would have included the same question. Also, regarding her testimony at Tr. 463, it is not unusual for a witness to offer an answer, which she subsequently clarifies while reflecting on the question. --------------------------------------------------------------------------- Respondent further argues that the ALJ gave inappropriate weight to the testimony of S.S., who, in Respondent's words, ``was willing to make many exaggerations/false statements against [him] for a get out of jail card.'' Exception at 7. Respondent contends that S.S. gave ``internally conflicting testimony that he provided cocaine `sporadically' and marijuana `relatively regularly to Dr. Holder,' '' and ``he used these drugs with Dr. Holder.'' Id. at 7-8. According to Respondent, this is so because at the time of his drug use with Respondent, ``he was on probation'' and subject to drug testing, and yet testified that he did not fail any drug tests when he was living in Palm Beach County. Id. at 8. Respondent argues that this establishes that S.S.'s testimony is not credible because ``how could he use marijuana and cocaine with [Respondent] and evidence of this drug use never reveal itself on any of his drug tests?'' Id. While S.S. testified that he was on probation during the same time- period in which he testified that he ``used cocaine and marijuana with'' Respondent, id. at 198, there is no evidence in the record as to how frequently S.S., who had been on probation for more than two years at this point, id. at 212, was subject to drug testing during this period. Moreover, evidence in the record establishes that following the accident, the Palm Beach County Sheriff's office obtained a blood specimen from Respondent which tested positive for Delta-9-Carboxy THC, see GX 13, a metabolite of THC, thus establishing that Respondent had used marijuana. S.S. further testified that in June 2008, he was smoking marijuana with Respondent at the latter's residence, when Respondent told him that he needed a favor--this being for S.S. to come by the office and fill a prescription for Adderall, which S.S. was to then return to Respondent. Tr. 208. On June 11, 2008, Respondent either called or texted S.S., who went to Respondent's clinic, picked up a prescription for 60 tablets of Adderall 30 mg which was written by Respondent and listed S.S. as the patient. Id. at 208-09. S.S. then went to a Walgreens pharmacy located next to the clinic, filled the prescription, and after taking some pills for himself, gave the rest of the pills to Respondent. Id. at 209-11; see also GX 6. To be sure, as Respondent argues, S.S. gave conflicting testimony as to how many of the Adderall pills he took from the prescription, initially stating that he took one or two pills, which was his ``best recollection,'' before adding that ``[i]t could have been three or four.'' Tr. 213-14. While Respondent argues that S.S. was ``willing to say just about anything,'' Exceptions at 9, the evidence shows that following the accident, the police found in Respondent's car the prescription vial bearing S.S.'s name as the patient and listing the contents as amphetamine 30 mg, along with 41 pink tablets. GX 11, at 1. Moreover, the blood specimen obtained from Respondent following the accident showed that he had ingested amphetamines. GXs 13, 14. Thus, I find no reason to reject the ALJ's finding that S.S. gave credible testimony.\6\ --------------------------------------------------------------------------- \6\ As for the discrepancy between the Palm Beach County EMS report which documented that Respondent had a seizure and the testimony of the paramedic that he did not witness Respondent having a seizure upon arriving at the accident scene or while transporting him to the hospital and that the paramedics ``were just following our protocols [by administering Valium] in case he ha[d] a history,'' Tr. 258, it is unclear why this fact is material in assessing the ALJ's finding that Respondent gave inconsistent testimony regarding the circumstances surrounding the accident. However, even if it is material, I do not find adequate justification to reject the ALJ's credibility determination as to the paramedic's testimony. --------------------------------------------------------------------------- As for N.P.'s testimony, which primarily focused on the scope of the injuries she suffered in the accident, whether she had only minor injuries as Respondent suggests or more serious injuries to include a dislocated elbow, shattered cervical disc, a broken back, and neurologic damage, is of only nominal relevance in resolving whether granting Respondent's application is consistent with the public interest. 21 U.S.C. 823(f). In any event, given that the Government disclosed to Respondent that it intended to elicit testimony from N.P. regarding the injuries she sustained and that the ALJ found her testimony credible, in the absence of medical records refuting her testimony, I find no reason to reject the ALJ's credibility determination. Finally, Respondent takes exception to the ALJ's factual finding that ``[h]e provided similarly evasive and conflicting answers to questions presented to him by the medical boards in Florida and Minnesota, particularly minimizing the severity of injuries he and his passenger sustained in the June 13, 2008 crash.'' R.D. at 62. As evidence for his finding that Respondent provided evasive and conflicting answers to the questions presented by the Florida Board, the ALJ did not cite any evidence in the record.\7\ Moreover, [[Page 71621]] other than Respondent's Petition for Reinstatement, the Record does not include any other evidence establishing what statements Respondent made to the Florida Board. Therefore, I do not find this portion of the ALJ's finding to be supported by substantial evidence. --------------------------------------------------------------------------- \7\ Later in his decision, the ALJ quoted the following statement in Respondent's Petition for Reinstatement: The related criminal matter has been referred for pre-trial intervention and Respondent is currently complying with the requirements for successfully completing the Circuit Court's requirements to avoid prosecution for those criminal charges. These requirements include successful completion of the Comprehensive Alcoholism Rehabilitation Program (CARP) as ordered by the Court. This is a program providing a continuum of care to individuals affected by alcoholism, drug dependency and co-occurring disorders and PRN is monitoring Respondent's participation in the CARP. R.D. at 37 (quoting GX 30, at 12). While the record establishes that Respondent did not complete the program because, in his words, the program was taking too long, there is no evidence that Respondent was not ``currently complying'' with the Drug Court program at the time of his petition. The ALJ did not cite this passage as support for his conclusion that Respondent gave evasive and conflicting answers to the questions of the Florida Board, but rather, only as support for his conclusion that although Respondent ``participated in monitoring by PRN and the CARP program . . . [he] has effectively withheld from the Administrator records showing his treatment in Florida for these disorders.'' R.D. at 37. --------------------------------------------------------------------------- There is, however, substantial evidence that Respondent provided false information on his Minnesota application. Respondent provided a yes answer with the notation to ``Please View Addendum'' to questions regarding: (1) Whether his license to practice medicine in any state had been revoked, suspended, restricted or conditioned; (2) whether he had been notified of any investigation by any state board regarding the practice of medicine; (3) whether any criminal charges had ever been filed against him, regardless of whether they had been expunged; and (4) whether he had ever been charged with DWI or DUI. GX 34, at 6. In the addendum, Respondent wrote that: ``I had a seizure while driving on June 1, 2008. A collision with a sign post followed. Both the passenger and I were in seatbelts and only suffered minor injuries form [sic] airbag deployment.'' Id. at 9. Respondent stated that while he had ``walked out of the car,'' he refused both a neck collar and to lie on a stretcher, after which he was restrained by the police. Id. Respondent then asserted that ``[d]uring this restraining process I was tazed 14 times, and received multiple blows to my face, head and back'' and that he was diagnosed with a ``traumatic head injury (bleeding in three distinct lobes of my brain), multiple contusions in lungs bilaterally, 4 fractured bones in [the] maxillary region of face, complete nasal fracture with deviation of the septum, facial lacerations, lacerations in all extremities, right sides [sic] rotator cuff injury and respiratory failure.'' Id. Respondent represented to the Board that ``[n]o controlled substances were found in my possession or in [the] vehicle (via police report).'' Id. And he further asserted that ``[n]o charges were filed'' until approximately three months after the incident when he was charged with ``possession of a controlled substance without a prescription (Adderall), fraud to acquire a controlled substance, and driving under the influence (sub therapeutic levels of Adderall in blood).'' Id. The evidence also shows that the Minnesota application's question number 12 specifically included charges of disorderly conduct and required that he disclose any charge regardless of whether it had had been expunged or removed from his record by executive pardon. GX 34, at 6. In his testimony, Respondent admitted that that he had been charged with disorderly conduct on another occasion. Tr. 151-52. Yet he failed to disclose this charge on the Minnesota application. GX 34, at 9. Respondent explained the omission, asserting that while his answer to the application question ``may not have been complete . . . it was truthful,'' and that he was truthful about ``the charges that I thought were actually most important'' and that ``the charges were dismissed.'' Tr. 151-52. Respondent did acknowledge that the Florida Board of Medicine suspended his license, but that it had been reinstated. GX 34, at 10. He then wrote: ``Admittedly, I did use Adderall as used for ADHD without a prescription while working long hours. I acquired from a colleague who worked in the Urgent Care where I worked.'' Id. As the record shows, several of these statements were false. These include Respondent's statement that no controlled substances were found in his possession or vehicle,\8\ as well as that he acquired the Adderall from a colleague.\9\ --------------------------------------------------------------------------- \8\ As for Respondent's assertion that this was per the police report, the Offense Report filed by the Sheriff's Office included the Supplemental Report of a crash scene investigator. See GX 46. In his report, the Investigator documented that another Investigator had conducted an inventory search of Respondent's car and found the aforementioned vial of 41 tablets of Adderall bearing a label which listed the patient as S.S. Id. at 6. So too, a further supplemental report prepared by a Detective stated that he learned ``during the at[-]scene investigation,'' that the vial of 41 Adderall tablets was found in Respondent's car and that it listed S.S. as the patient and had been prescribed by Respondent. RX D, at 37 (page 36 of the report). \9\ The record includes the results of a blood test which shows that Respondent's level of amphetamine was 76 ng/ml. GX 14. While there is also testimony by the DI that she read the deposition of the toxicologist who certified the test results taken in the criminal case brought against Respondent, the deposition was not entered into evidence and the DI's testimony does not establish what constitutes a therapeutic level. Tr. 468-69. Of note, the DI testified that Respondent initially claimed that he had taken only one Adderall pill on the night of the accident. Id. at 469. The DI testified that based on her reading of the deposition, it was her ``understanding that a therapeutic level is usually obtained from the regular maintenance on a medication'' and that taking one ``pill on the night of the crash would not be sufficient to provide a therapeutic level.'' Id. When, in a subsequent interview, the DI raised the issue, Respondent stated that he ``might have taken two that night.'' Id. --------------------------------------------------------------------------- After the Minnesota Board's Licensure Committee denied his application, see GX 35, Respondent sought reconsideration of its decision. In his letter to the Board, Respondent's counsel again asserted that ``[o]ne of the possible reasons that the prosecution decided to dismiss the case was that the original police report showed that there were no drugs or alcohol found in the vehicle'' and ``[t]his obviously negated the charges of DWI and illegal possession of drugs.'' GX 37, at 2 (citing Respondent's Affidavit, at ] 5). Respondent's lawyer also asserted that ``[t]he prosecution's dismissal also means that it did not have enough confidence in the charges even to pursue the claim that Dr. Holder somehow had a trace of marijuana in his blood.'' Id. Still later in his letter, Respondent's counsel wrote that ``[h]e certainly acknowledges his bad judgment in obtaining the Adderall tablets, but that was an isolated instance of a questionable thought process.'' Id. at 5. In support of his request for reconsideration by the licensure committee, Respondent submitted an affidavit. Therein, Respondent again asserted that ``[t]he original police report showed that no alcohol or illegal drugs were found in my vehicle.'' Id. at 11 (] 5). He further asserted that he ``definitely did not use or have marijuana as charged in the criminal case'' and ``ha[d] no idea where that claim comes from.'' Id.at 12 (] 8). While Respondent admitted to having used Adderall the day before the accident, he maintained that this was ``because of a stupid error of judgment'' and that he had obtained the drug ``inappropriately from a friend.'' Id. Respondent then asserted that: I obtained the Adderall only for the purpose of helping me stay alert during a period when I was working hard for many hours. I definitely do not have a ``drug problem,'' and have never had a history of anything even close to that. I realize and agree that what I did in obtaining the Adderall was wrong. I had never done that before and will never do it again. [[Page 71622]] Id. at 12 (] 10). However, even if it is true that the ``original'' police report did not state that illegal drugs were found in his vehicle, several of the supplemental police reports establish that the Adderall vial was found in his car. Thus, his statement is nonetheless misleading. Moreover, his statement that he did not use marijuana is refuted by the blood test results. As for his statement as to how he obtained the Adderall, while S.S. may have arguably been ``a friend,'' the statement is nonetheless misleading in that Respondent attempted to minimize his culpability as he actually obtained the drug by writing a fraudulent prescription in S.S.'s name. Finally, Respondent's assertion that he did not have a drug problem is amply refuted by the record, which includes the blood test results following the accident, see GXs 13 & 14, the testimony of S.S. regarding Respondent's use of marijuana and cocaine, see Tr. 196, 198, as well as the evidence showing that while he was subject to the Florida Drug Court program, he tested positive for opiates, missed a drug test, and provided a diluted sample. See GX 18, 19, 20. Thus, there is substantial evidence that Respondent made multiple false statements to the Minnesota Board. In his decision, the ALJ expressed the view ``that Respondent's misrepresentations to these boards calls into question whether the actions taken by these regulators would be the same had they been told the same things [Respondent] reported as true during this administrative process.'' R.D. at 48. Continuing, the ALJ explained that ``[t]he Government's identification of the nature of these misrepresentations accurately reflects the many ways in which the two state medical boards were acting with less than a complete and accurate record due to [Respondent's] duplicity.'' Id. Respondent argues, however, that the Minnesota Board ``had complete information'' and that the Minnesota Board ``conducted [a] hearing[ ] were [sic] [he] was vigorously questioned about his explanation of events.'' \10\ Exceptions at 14-15. Respondent argues that while he was granted a restricted license by the Minnesota Board, ``[a] review of those restrictions suggest that they were in response to improprieties with documenting medical visits or charting and drug use.'' Id. at 15. Respondent thus contends that ``[t]he fact that [he] was granted a conditional license does not indicate that he was dishonest in these meetings, it simply indicates that he communicated his improprieties to both boards and they were willing to give him a chance to prove his trustworthiness.'' Id. --------------------------------------------------------------------------- \10\ While Respondent argues that both the Florida and Minnesota Boards ``had complete information'' and ``conducted hearings'' during which he ``was vigorously questioned about his explanation of events,'' because I do not find that there is substantial evidence to support the ALJ's finding with respect to the Florida Board, I address this argument only with respect to the Minnesota Board proceeding. --------------------------------------------------------------------------- The record thus clearly establishes that Respondent made multiple false statements in both his applications to the Minnesota Board and in his affidavit in support of his request for reconsideration. The record also clearly establishes that on October 20, 2011, Respondent appeared before the Board's ``Licensure Committee and discussed his use of controlled substances that had not been prescribed for him'' and that ``[t]he Committee decided to recommend that Applicant be granted licensure with conditions and restrictions based upon a report of chemical abuse and diversion of controlled substances for his own use.'' GX 39, at 4. The evidence also includes the minutes of the Licensure Committee meeting. See GX 52. However, the minutes are marked as confidential, and in any event, do not offer any detail as to what representations Respondent made to the Board. Id. Moreover, there is no verbatim record of the proceeding and the Government did not call as a witness any person (other than Respondent) who either observed or participated in the proceeding and who could have testified as to the representations made by Respondent.\11\ While the Government questioned Respondent about his appearance before the Committee and what it had asked him about, the Government did not ask Respondent whether he had made the same false statements and failed to disclose various facts to the Committee as he had in his prior submissions to the Board.\12\ Tr. 153- 54. The record of this proceeding thus does not establish whether Respondent made additional false statements when he appeared before the Minnesota Board's Licensure Committee. --------------------------------------------------------------------------- \11\ According to a letter from the Board's Complaint Review Unit to the DI regarding a subpoena duces tecum which sought ``all records, memorandums, notes of Board Members, and audio or video recordings of [Respondent's] appearance'' before the Licensure Committee, ``Committee meetings are not audio or video-recorded.'' GX 52. \12\ During the colloquy, Respondent stated the Committee ``had a lot of questions,'' but when asked by the Government what the Committee had asked about, he initially answered ``I don't know'' before stating: ``I mean, they were asking me about incidences of the same [as] was described here and much of what was talking about, about the issues that happened in Florida. Etcetera. So forth.'' Tr. 153-54. --------------------------------------------------------------------------- Finally, Respondent takes exception to the ALJ's adverse credibility finding with respect to his testimony. He maintains, that ``given his limitations in memory, [he] has made every effort to be upfront and honest about his improprieties.'' Exceptions at 9. He argues that ``[o]rdinarily, it would be difficult to remember specific details of occurrences that occurred over six years ago'' and that he ``is not only impacted by the `normal memory loss' from the passing of time, he experienced a severe brain injury.'' Id. at 10. Respondent points to the testimony of a neurologist who treated him after the accident that he suffered ```post-traumatic amnesia,' where he was in a state of confusion and not able to form new memory.'' Id. (quoting Tr. 510, 515). He further argues that he ``is trying to understand what happened to him'' and that ``[g]iven his prior experiences with law enforcement he does not necessarily trust law enforcement's explanation of this event'' and ``does not believe that all of his injuries were caused by the accident and he has never wavered from this belief.'' Exceptions at 10. However, Respondent's neurologist testified only that the injury affected his ability ``to form new memory'' and that it only ``lasted maybe up to, even up to when he left the rehabilitation center.'' Tr. 510. Respondent's neurologist further explained that: [W]ith the extent of the injury he suffered, I would expect that he would have trouble recalling events even shortly after, and even a while after, because of his problem with what we call encoding. When someone says something to you, particularly when it comes through what we call short-term memory, there is a spot it goes [to] on your brain that allows you to retain it. In his case, he didn't have the ability to use that spot on his brain. Id. at 515. Still later, Respondent's neurologist testified that ``there's a condition'' that is ``very common in people with traumatic brain injury called confabulation.'' Id. at 518. He then explained that ``what happens is'' that a person ``pull[s] information from different parts of the brain in a disorganized manner, but the patient attempts to organize it in a way that makes sense to them, but to other people may not be factual.'' Id. at 519. While this testimony may establish that Respondent had issues with his short-term memory, ultimately, it does not persuade me that Respondent's numerous false statements can be explained by his brain injury rather than his intent to deceive the Agency's Investigators, the ALJ, and this Office. [[Page 71623]] Respondent made the false statements to the DIs four years after the accident, and he made the false statements in this proceeding six years after the accident. At no point, however, did the neurologist offer testimony to support the conclusion that Respondent would still be suffering from memory loss and the inability to piece together accurate information years after the accident. Moreover, even if Respondent's brain injury accounts for the disparity between his testimony and the testimony of the other witnesses (and the various exhibits) regarding the accident, the scope of both his and N.P.'s injuries, and the cause of his extensive injuries, these issues are of only tangential relevance in assessing whether granting his application would be ``consistent with the public interest.'' 21 U.S.C. 823(f). What is relevant is that Respondent materially falsified his application, made false statements to the Agency's Investigators who investigated the application, and gave false testimony in this proceeding. For example, during the investigation, Respondent provided multiple accounts as to how many Adderall tablets he had taken before the crash, initially telling a DI that he took only one tablet the day before the crash (on July 19, 2012). Tr. 465. However, upon being confronted by the DI during a phone call (on August 25, 2012) that one pill would not provide a therapeutic level, Respondent then asserted that he might have taken two pills. Id. at 469. And yet during a subsequent phone conversation (on June 3, 2013) with another Investigator, he then claimed that he took ``between four and six dosage units[,] but more than likely it was five.'' Id. at 328. Likewise, when asked during the July 19, 2012 interview why the police found the Adderall in his car, Respondent asserted that he had no knowledge as to why the drugs were in his car and asserted that the police had planted them. Id. at 461. Still later, in the January 4, 2013 interview, Respondent again claimed that ``[h]e did not know where the pill bottle came from,'' and while he admitted to having ``used Adderall on a few different occasions,'' he claimed that ``he obtained it from a colleague.'' Id. at 475. Moreover, when asked at this interview about the Adderall prescription issued in the name of S.S., Respondent initially said that he had met with S.S. but did not document the prescription in S.S.'s medical record ``because it had already been discussed.'' Id. at 476- 77. Later in the conversation, Respondent then claimed that because ``he had been in a coma'' he did not recall issuing the prescription, only to subsequently revert to his original story that he wrote the prescription but did not do an exam or chart the prescription because it ``was already in the prior record.'' Id. at 477. In the July 19, 2012 interview, Respondent also denied having smoked marijuana, claiming that the blood test result was a false positive. Id. at 461-62. Also, during a November 2012 phone conversation, a DI asked Respondent if he had completed the Florida Drug Court Program. Id. at 471. Respondent initially ``said that he had completed the program and the charges were dropped.'' Id. at 472. However, when confronted by the DI that he had not completed the program, Respondent admitted that ``he withdrew from the program because it was taking too long.'' Id. During the hearing, Respondent testified that the Adderall prescription he wrote (which listed S.S. as the patient but was actually issued to obtain the drugs for his own use) was a refill of a prescription S.S. usually got. R.D. at 28 (quoting Tr. 95). Moreover, while in his testimony Respondent admitted to using Adderall on three or four occasions during the period in which he was working at MD Now (an urgent care clinic), he claimed that he got the drug from a colleague at the clinic, who was a physician's assistant (PA). Tr. 114. He also later testified that ``took no more than four pills . . . when I worked at MD Now,'' and after asserting that this was four pills in total, he then testified that he never took more than one pill at a time.\13\ Id. at 128. While Respondent testified that the PA's first name was William, he maintained that he did not remember William's last name. Id. at 114. Moreover, when asked if he had ever gotten Adderall from anyone other than William, Respondent answered: ``No. Except for when I was in residency.'' Id. at 116-17. --------------------------------------------------------------------------- \13\ As found above, during interviews with DEA Investigators, Respondent provided three different answers when asked how many Adderall pills he took on the night he crashed his car. --------------------------------------------------------------------------- Regarding his marijuana use, Respondent admitted that he had used marijuana in college and ``on occasion on vacation.'' Id. at 129. When asked to explain the positive test for THC, Respondent claimed it was a false positive and asserted that he had not used marijuana in the period before the accident because he had worked ``twelve days . . . in a row'' and that there was ``no time'' to do so. Id. at 131. When then asked how many times he had used marijuana in 2008, Respondent testified that he could not remember, and when asked from whom he got his marijuana, answered: ``I have no idea.'' Id.\14\ --------------------------------------------------------------------------- \14\ As for the drug test results during the Florida Drug Court matter, Respondent asserted that his positive test for opiates was caused by an antibiotic which ``cross react[s] with opiate derivatives.'' Tr. 135. The State Judge apparently did not agree, as he/she ordered Respondent to write a 500 word essay ``on honesty.'' GX 18. As for the diluted drug test, Respondent testified that because he ``didn't have a car'' and had to walk ``approximately six miles'' in ``Florida's hot sun,'' ``I might have drank too much water before I started on my journey.'' Tr. 136. As for the drug test he missed, Respondent testified that he ``forgot to call for one day and I missed that urine.'' Id. While this may be, the State Judge did not find this to be a persuasive excuse and sent him to jail for one day. GX 19. --------------------------------------------------------------------------- Still later, when testifying on his own behalf, Respondent testified that while there are ``a lot of things that I'm very unproud of . . . I cannot remember diverting any medications with S.S. I cannot remember and I honestly cannot remember how the medication got into the car, got into my car, but I do admit completely to using Adderall without prescriptions.'' Id. at 590-91. Contrary to his contention, the record amply establishes that Respondent ``has not made every effort to be upfront and honest about his improprieties.'' Exceptions at 9. I thus find Respondent's Exception is well taken only with respect to the ALJ's finding that ``[h]e provided similarly evasive and conflicting answers to questions presented to him by the'' Florida Medical Board, and only to the extent the ALJ's finding suggests that he gave ``evasive and conflicting answers to questions presented to him by the'' Minnesota's Boards Licensure Committee during his appearance before the Committee.\15\ --------------------------------------------------------------------------- \15\ It is also acknowledged that Respondent asserted that he had a seizure the day before the hearing. To the extent Respondent's argument is that his numerous false statements during this proceeding should be excused because the seizure impacted his recollection of the various events, Exceptions at 23, I reject it as the evidence shows that his false testimony at the hearing was generally consistent with other false statements he made to the DIs, as well as on his Minnesota application and in the affidavit he submitted in support of his request for reconsideration. Notably, Respondent does not claim that he had seizures before his various interactions with the DIs and before he submitted his application and prepared his affidavit. --------------------------------------------------------------------------- Exception to Finding of Fact #14 In his Finding of Fact Number 14, the ALJ discussed Respondent's evidence of remediation. While the ALJ acknowledged that Respondent successfully completed one year of monitoring under the Minnesota Health Professionals Services Program, that he produced letters of support from patients and professional colleagues, and testified that he had changed his lifestyle, learned from his experiences, [[Page 71624]] gotten married and had a daughter, the ALJ ultimately found that Respondent had not presented sufficient ``evidence of remediation to overcome the Government's prima facie case.'' R.D. at 62. As for his reasoning, the ALJ explained that he ``question[ned] the weight that can be attributed to this evidence,'' noting that the monitoring program imposed by the Minnesota Board ``was based on Respondent's material misrepresentation of the nature of the injuries he and his passenger sustained in the June 2008 crash, and his failure to disclose the extent and nature of his history of drug abuse.'' Id. As support for his finding, the ALJ also explained that while the Florida Board ``ordered Respondent to participate in monitoring and a five-year period of probation, which Respondent failed to comply with, [he] surrender[ed] his medical license in that state in order to avoid these remedial requirements.'' Id. With respect to the reasons given by ALJ as to why he gave less weight to the Minnesota Board's Order, Respondent argues that the Order ``specifically states that `. . . Respondent was licensed by the board pursuant to a Stipulation . . . based upon his unprofessional conduct, diversion of drugs for his own use, and disciplinary action taken against his license in another state or jurisdiction.' '' Exceptions at 16. As explained previously, while the record establishes that Respondent made false statements to the Minnesota Board and failed to disclose other information in both his application and the affidavit he submitted in support of his request for reconsideration, the record does not establish whether he made the same false statements, as well as withheld material information, when he appeared before the Licensure Committee to discuss his unprofessional conduct and diversion of drugs for his own use. Of note, while once the Government established its prima facie case, Respondent bore the burden of production on the issue of whether he had engaged in sufficient remedial measures, the Government retained the burden of proof throughout this proceeding. Thus, because there is no evidence in the record as to what statements Respondent made before the Licensure Committee, the ALJ's conclusion that Respondent's compliance with the Minnesota Board's Order is not entitled to weight cannot be sustained on the basis that he failed to fully and truthfully disclose the nature of his drug abuse and misconduct at the Licensure Committee hearing.\16\ --------------------------------------------------------------------------- \16\ The Application (GX 34) states that the ``[f]ailure to answer all questions completely and accurately, omission or falsification of material facts . . . may be cause for denial of your application, or disciplinary action if you are subsequently licensed by the Board.'' GX 34, at 1. The Recommended Decision does not, however, cite any authority from Minnesota which discusses the materiality standard employed by the State. --------------------------------------------------------------------------- Respondent also takes exception to the ALJ's finding that ``the record establishes that Respondent surrender[ed] his [Florida] medical license . . . in order to avoid the[ ] remedial requirements'' imposed by the Florida Board. Exceptions at 17. While I agree with Respondent that this finding is not supported by substantial evidence, ultimately this finding is of no consequence, because Respondent had the burden of production on the issue of whether he has undertaken sufficient remedial measures to demonstrate that he can be entrusted with a new registration. See Medicine Shoppe Jonesborough, 73 FR 364, 387 (2008) (quoting Samuel S. Jackson, 72 FR 23848, 23853 (2007)). The fact remains that less than three months after the Florida Board placed him on probation, Respondent withdrew from the practice of medicine in Florida and did not complete the probation ordered by the Board. Regardless of the reason he left the State, I agree with the ALJ that Respondent's interaction with the Florida Board does not support a finding that he has produced sufficient evidence of remediation to rebut the Government's prima facie case. In Finding of Fact number 14, the ALJ did not rely on Respondent's failure to provide the DI with a release for his HPSP file as one of the reasons he discounted the weight to be given to his compliance with the HPSP. However, the ALJ did decline to consider the testimony of Respondent's case manager as to his ``progress in the HPSP'' because it was unclear whether the Government had ever been provided with a complete record of his treatment. R.D. at 24 (citing 21 CFR 1301.15 \17\). Respondent takes exception to the ALJ's reasoning, arguing that while he ``did not provide a release . . . he did provide the necessary documents,'' and that other evidence in the record, namely the Minnesota Board's Order of Unconditional License (GX 40), establishes that he ``complied with the Minnesota Medical Board['s] conditions [as] well as the terms and conditions of the HPSP monitoring [p]lan.'' Id. at 17. --------------------------------------------------------------------------- \17\ This regulation provides that: [t]he Administrator may require an applicant to submit such documents or written statements of fact relevant to the application as he/she deems necessary to determine whether the application should be granted. The failure of the applicant to provide such documents or statements within a reasonable time after being requested to do so shall be deemed to be a waiver by the applicant of an opportunity to present such documents or facts for consideration by the Administrator in granting or denying the application. 21 CFR 1301.15. --------------------------------------------------------------------------- The Order of Unconditional License does constitute some evidence of Respondent's having undertaken remedial measures. It is also acknowledged that Respondent submitted into evidence various records regarding his treatment with the HPSP. While in his testimony Respondent maintained that he had provided the Agency with the entirety of his HPSP file, even if he had never made a misrepresentation to the Agency, the Investigators were under no obligation to take him at his word that he had provided the entire file to them given his history of abusing controlled substances. As for the records Respondent submitted into evidence, the DI's testimony supports a finding that this is not a complete set of records as it does not include the treatment notes for his first two visits with his psychologist. Tr. 481-82. Absent Respondent's consent to the disclosure of his complete HPSP file, there is no way to assess the adequacy of his remedial measures, as it is unclear what he disclosed to those who evaluated him and whether he disclosed the full extent of his substance abuse to those providers who created his treatment program.\18\ I thus reject Respondent's exception to this factual finding. --------------------------------------------------------------------------- \18\ While it may appear that this is inconsistent with the discussion of the Government's obligation to show that Respondent continued to make the same false statements and failed to disclose material information when he appeared before the Licensure Committee, the difference is that the Government may have had some means of developing evidence as to the statements he made and did not make when he appeared before the Committee. Indeed, the Government could have questioned Respondent on these issues. However, because the Government repeatedly asked Respondent to provide the complete file, as well as to sign a release so that the Government could obtain the information directly from the HPSP, I agree with the ALJ's ruling declining to consider the testimony of his HPSP case manager regarding his compliance with the HPSP program. R.D. 24-25 (citing 21 CFR 1301.15). Indeed, absent provision of the compete file, it is unclear how the Government could have effectively cross-examined his case manager. Finally, Respondent provided copies of the releases he had given to the credentialing departments of various insurers, and a local hospital, allowing them to obtain limited information from the HPSP. See RXs I, J, K, and L. It is not clear what this proves, and in any event, given the Agency's responsibility to ensure that granting Respondent's application would be consistent with the public interest, 21 U.S.C. 823(f), the Agency was entitled to his complete file. --------------------------------------------------------------------------- [[Page 71625]] Exception to the ALJ's Conclusion of Law #2 The ALJ found that the record establishes that Respondent materially falsified his application for a DEA registration because he denied that his medical license had been suspended or restricted and knew this to be a false answer. R.D. at 63. Respondent takes exception to this finding, asserting that he ``did not intent [sic] to provide a false response'' and ``that any false information was due to the fact that he did not read the question correctly.'' Exceptions at 19. Continuing, Respondent argues that ``[i]t would be stupid of [him] to lie about public information and he is not a stupid person.'' Id. The evidence shows that on March 7, 2012, Respondent submitted an application for a DEA registration on which he was required to answer four questions with either a ``yes'' or ``no.'' GX 2, at 1. Question Three asked: ``Has the applicant ever surrendered (for cause) or had a state professional license or controlled substance registration revoked, suspended, denied, restricted or placed on probation, or is any such action pending?'' GX 2, at 3. Respondent answered ``N'' for no, notwithstanding that: (1) On January 26, 2009, the Florida Department of Health had ordered the emergency suspension of his medical license, GX 26, at 10-11; (2) on June 22, 2009, the Florida Board of Medicine had ordered that Respondent's medical license ``be SUSPENDED until such time as he personally appear[ed] before the Board and demonstrate[d] the ability to practice medicine with appropriate skill and safety,'' GX 29, at 1-3; (3) on December 17, 2010, the Florida Board of Medicine granted his petition for reinstatement while placing him on probation for five years, GX 30, at 2-9; and (4) on November 12, 2011, the Minnesota Board of Medicine had grant him a medical license subject to various restrictions and conditions. GX 39. Thus, the evidence clearly shows that Respondent's answer was false. At the hearing, Respondent did not testify regarding the circumstances surrounding his completion of the application. However, a DI testified that during an interview, Respondent asserted that ``he didn't read the question thoroughly'' and that when she provided a copy of an application to him, ``[h]e went through it and underlined the first word, surrender, and stopped.'' Tr. 463. After the DI underlined the rest of the application, she asked Respondent if when he sat for his Boards, he ``just gloss[ed] over the questions or . . . read them thoroughly in order to answer them?'' Id. at 464. Respondent ``said that he didn't gloss over'' the questions. Id. I reject Respondent's contention that he did not intentionally mislead the Agency. Notably, the question is neither lengthy nor ambiguous, and thus, I do not believe his contention that he did not thoroughly read the question. Indeed, even if he had glossed over the question, it is not credible that he did not note that the question asked about other types of state board disciplinary actions, and certainly Respondent was no stranger to state board disciplinary actions.\19\ Moreover, as demonstrated by his experience with his Minnesota application, Respondent was obviously aware that providing a truthful answer to question three would likely trigger the Agency's scrutiny into why both Boards imposed sanctions on his licenses and lead to the discovery that he was a drug abuser. Accordingly, I agree with the ALJ's finding that Respondent intentionally and materially falsified his application. This conclusion provides reason alone to deny his application. See 21 U.S.C. 824(a)(1); see also Pamela Monterosso, 73 FR 11146, 11148 (2008) (holding that ``the various grounds for revocation or suspension of an existing registration that Congress enumerated in section 304(a), 21 U.S.C. 824(a), are also properly considered in deciding whether to grant or deny an application under section 303'') (citations omitted); Jackson, 72 FR 23848, 23852 (2007). --------------------------------------------------------------------------- \19\ In his Exceptions, Respondent does not dispute whether his false statement was material. It clearly was because the various board orders were imposed based on Respondent's abuse of controlled substances and his unlawful obtaining of controlled substances, and under the public interest standard, the Agency is directed to consider an applicant's compliance with applicable laws related to controlled substances and such other conduct which may threaten public health and safety. 21 U.S.C. 823(f)(4)-(5). Also, the Agency has long held that a practitioner's self-abuse of a controlled substance constitutes actionable misconduct under factor five. See Tony Bui, 75 FR 49979, 49989 (2010) (citing cases). While in his decision, the ALJ correctly noted that ``a false statement is material if it has a natural tendency to influence or was capable of influencing the decision making body to which it is addressed,'' R.D. at 55 (citation omitted), he then explained that `` `[a]nswers to the liability question[s] are always material because DEA relies on the answers to these questions to determine whether it is necessary to conduct an investigation prior to granting an application.' '' Id. (quoting Gov. Br. at 29-30 (quoting Theodore Neujahr, 65 FR 5680, 5681 (2000))). The latter statement, however, is incorrect. See Kungys v. United States, 485 U.S. 759, 771 (1988) (``It has never been the test of materiality that the misrepresentation or concealment would more likely than not have produced an erroneous decision, or even that it would more likely than not have triggered an investigation.'') (quoted in Hoi Y. Kam, 78 FR 62694, 62696 (2013)). Instead, the test is ``whether the misrepresentation or concealment was predictably capable of affecting, i.e., had a natural tendency to affect, the official decision.' '' Id. `` `[T]he ultimate finding of materiality turns on an interpretation of substantive law.' '' Id. at 772 (int. quotations and citations omitted). --------------------------------------------------------------------------- Exception to the ALJ's Conclusion of Law #5 In this legal conclusion, the ALJ addressed the application of factor one under the public interest analysis, specifically--``[t]he recommendation of the appropriate State licensing board or professional disciplinary authority.'' 21 U.S.C. 823(f)(1); see also R.D. at 46. The ALJ correctly noted that neither the Florida nor Minnesota Board has made a recommendation in this matter (whether to support or oppose Respondent's application), and that Agency precedent holds that even where an applicant possesses the requisite state authority, see 21 U.S.C. 802(21), ``the Administrator `possesses a separate oversight responsibility with respect to the handling of controlled substances' and therefore must make an `independent determination as to whether the granting of an application would be in the public interest.' '' R.D. at 46-47 (quoting Mortimer B. Levin, 55 FR 8209 (1990)). While this should have been the end of his discussion, with the conclusion that the factor neither supported nor refuted a finding that granting his application is consistent with the public interest, the ALJ found that ``the actions of state medical regulators in'' both States ``establish a basis for finding that [Respondent's] application should be denied.'' R.D. at 46. The ALJ then explained: My concern with respect to evidence relating to the licensure actions taken by the medical boards in Florida and Minnesota rests not so much with their ultimate decisions, but with the process that led to those decisions being made. The Government is correct, in my view, in proposing that Respondent's misrepresentations to these boards call into question whether the actions taken by these regulators would be the same had they been told the same things [Respondent] reported as true during this administrative process. The Government's identification of the nature of these misrepresentations accurately reflects the many ways in which the two state medical boards were acting with less than a complete and accurate record due to [Respondent's] duplicity. Those misrepresentations regarding [his] ability to recall what happened immediately preceding the June 2008 crash, his description of his history of abusing marijuana and Adderall, and his description of the nature of his injuries and those of his passenger, all threaten the integrity of the administrative process by which the Florida and Minnesota boards performed their assessments of [Respondent's] fitness to practice medicine in those states. Accordingly, nothing in our [[Page 71626]] record supports a finding that the elements of Factor One warrant a conclusion that granting Respondent's application would be consistent with the public interest. R.D. at 48-49.\20\ \20\ There is, of course, a difference between stating that ``the actions of state medical regulators . . . establish a basis for finding that [Respondent's] application should be denied,'' R.D. at 46, and that ``nothing in our record supports a finding [under Factor One] . . . that granting Respondent's application would be consistent with the public interest.'' Id. at 49. While the latter statement suggests that he gave no weight to factor one either way, in his conclusion of law, the ALJ explained that ``the circumstances attendant to the action of these boards constitute evidence tending to establish that Respondent's DEA registration would be inconsistent with the public interest under Factor One.'' Id. at 63- 64. --------------------------------------------------------------------------- Respondent takes exception to the ALJ's conclusion, noting that ``where there is no specific recommendation from the state licensing board for or against an applicant's request for a . . . registration, the factor may not be considered [to] support the denial of'' an application. Exceptions at 20. He then argues that ``the appropriate state licensing board is the Minnesota Medical Board, which has not provided a specific recommendation for or against [Respondent's] request for a DEA registration.'' Id. I agree with Respondent that the appropriate board is Minnesota, because it is the State where Respondent now seeks registration. With respect to the action of the Minnesota Board, I agree that the evidence shows that Respondent made multiple false statements to the Minnesota Board in both his application and his affidavit in support of his request for reconsideration. I also appreciate the ALJ's concern that his misrepresentations ``threaten the integrity of the [State Board's] administrative process.'' I nonetheless respectfully disagree with the ALJ's analysis because it is not supported by the evidence and takes the Agency far beyond the appropriate scope of this factor. As explained above, the record does not establish whether Respondent continued to make the same false statements before the Licensure Committee as he did in his application and affidavit. However, even if Respondent made the same false statements to the Committee, the ALJ's analysis simply assumes--without any evidence-- that the Board would have come to a different result. Notably, it is not even clear why Respondent's misrepresentations regarding [his] ability to recall what happened immediately preceding the June 2008 crash and his description of the nature of his injuries and those of his passenger would have been material to the Board's decision. I therefore conclude that factor one neither supports nor refutes the conclusion that granting Respondent's application would be ``inconsistent with the public interest.'' \21\ 21 U.S.C. 823(f). --------------------------------------------------------------------------- \21\ As for the concerns expressed by both the Government and the ALJ that Respondent made false statements in obtaining his medical licenses which threaten the integrity of the state administrative process, nothing prevents the Government from providing the evidence it obtained in the course of this investigation and proceeding to the respective state boards. --------------------------------------------------------------------------- Exception to Conclusion of Law 6 In this legal conclusion, the ALJ summarized his conclusions regarding the evidence relevant to factor two--Respondent's experience in dispensing controlled substances. Specifically, the ALJ explained that: [w]hile there is some evidence that through the course of his education, training, and employment Respondent has acquired sufficient experience to appropriately fulfill those responsibilities attendant to persons authorized to prescribe controlled substances, the preponderant evidence of Respondent's experience in procuring controlled substances creates material questions regarding the benefit Respondent obtained from his positive experiences, where those experiences should have instilled in Respondent a greater sense of responsibility when procuring and using highly addictive controlled substances. If granted the authority to prescribe often-diverted controlled substances, Respondent's experience . . . would, in the event of relapse constitute a threat to the public interest, particularly where Respondent continues to deny having drug abuse problems notwithstanding a history of abuse. While this risk is attenuated during Respondent's sustained period of stable recovery, it is sufficiently present here, given the absence of any on-going monitoring or treatment, to warrant a finding that granting this application is consistent with the public interest. R.D. at 64. Respondent takes exception to the ALJ's conclusion contending that the ALJ ``minimize[d] [his] experience and training in dispensing controlled substances and assert[ed] that [he] `entered the world of drug dealers, using his association with Patient S.S. to acquire cocaine and marijuana on a regular basis.' '' Exceptions at 21 (quoting R.D. at 51). Respondent argues that ``many medical doctors apply for and are granted a DEA . . . Registration while in the last stages of medical residency of [sic] immediately following the completion of their medical residency program'' and ``have less experience that [his] experience at MD Now [but] that experience is not used against them.'' Id. It is true that the ALJ engaged in a lengthy discussion of Respondent's medical career and his experience in prescribing controlled substances therein. For example, the ALJ found that ``[a]fter successfully completing his residency, [Respondent] continued to gain experience in a clinical practice in fields not generally associated with dispensing controlled substances'' and then listed various activities Respondent engaged in in Liberia which do not appear to have involved clinical practice, let alone the dispensing of controlled substances. R.D. at 50. The ALJ then noted that Respondent's ``most significant post-graduate prescribing experience . . . is that which he obtained while working at MD Now [an urgent care clinic] for seven months and while serving in his family medicine residency at the University of Miami from 2004 to 2007.'' Id. at 51. The ALJ explained that ``while this experience includes training in critical care and emergency medicine (both of which may emphasize the use of controlled substances), the residency reflects a curriculum that was not concentrated in a practice requiring dispensing of controlled substances, including emphases in infectious diseases, pediatrics, `wards' medicine, and women's health.'' Id. The ALJ thus opined that ``while [Respondent's] experiences as an independent contractor at MD Now and parts of his residence [sic] do suggest experience in dispensing controlled substances, the overall arc of his practice has not been one that would support a finding that his experience in dispensing controlled substances is substantial.'' Id. To be sure, the word ``experience'' connotes that the Agency is authorized to conduct an inquiry into the adequacy of a practitioner's training in prescribing controlled substances as well as his/her ``direct observation of or participation in'' prescribing controlled substances. See JM Pharmacy Group, d/b/a Farmacia Nueva and Best Pharma Corp., 80 FR 28667, 28667 n.2 (2015). However, under 21 U.S.C. 823(f), DEA is directed to register an applicant to dispense controlled substances ``if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he[/she] practices.'' Thus, with the exception of those instances in which a practitioner has been shown to have committed violations of the CSA (and in which a practitioner must produce evidence of the remedial measures he/she has undertaken to rebut the Government's prima facie case), in making the public interest determination, DEA does not [[Page 71627]] look beyond the State's determination that the practitioner possesses adequate training to prescribe controlled substances.\22\ --------------------------------------------------------------------------- \22\ While under 21 CFR 1301.18 an applicant, who seeks to conduct research with respect to a schedule I controlled substance, must submit a research protocol which contains his/her ``[q]ualifications, including a curriculum vitae and an appropriate . . .list of publications,'' the CSA requires that the application ``be referred to the Secretary, who shall determine the qualifications and competency of each practitioner requesting registration, as well as the merits of the research protocol.'' 21 U.S.C. 823(f). Cf. id. Sec. 823(g)(1)(A) (``The Attorney General shall register an applicant to dispense narcotic drugs to individuals for maintenance treatment or detoxification treatment . . . if the application is a practitioner who is determined by the Secretary to be qualified (under standards established by the Secretary) to engage in the treatment with respect to which registration is sought[.]''); id Sec. 823(g)(2)(B)(i) & (G)(ii)(VII) (authorizing the Secretary to promulgate by regulation criteria for determining that a ``physician has such other training or experience as the Secretary considers to demonstrate the ability of the physician to treat and manage opiate dependent patients'' by prescribing schedule III through V drugs approved for maintenance or detoxification treatment). --------------------------------------------------------------------------- Here, however, Respondent's experience as a dispenser of controlled substances includes not only the fraudulent June 11, 2008 Adderall prescription listing S.S. as the patient, but also the unlawful prescriptions he issued to S.S. on June 4, 2008 for Percocet (oxycodone) and Xanax (alprazolam), which the ALJ found were ``issued outside the usual course of professional practice and for other than a legitimate medical purpose.'' R.D. at 58-59. Moreover, the evidence shows that Respondent induced S.S. to fill the Adderall prescription as ``a favor'' for his having provided S.S. with the Percocet and Xanax prescriptions. Tr. 207--210-11. As explained above, the ALJ found that Respondent ``us[ed] his experience and his association with Patient S.S. to acquire cocaine and marijuana on a regular basis.'' R.D. at 51. There is, however, no evidence that Respondent used his registration to trade controlled substance prescriptions for street drugs, and as the Agency has previously explained, ``factor two does not call for an inquiry into a practitioner's life experience generally or even his experience related in any manner to controlled substances, but rather, only his ``experience in dispensing . . . controlled substances.'' Abbas E. Sina, 80 FR 53191, 53199 (2015). Nonetheless, the evidence does show that Respondent used his prescription writing authority to induce S.S. to fill the fraudulent Adderall prescription for him. This conduct is relevant in assessing Respondent's experience as a dispenser of controlled substances.\23\ --------------------------------------------------------------------------- \23\ Respondent also takes exception to the ALJ's discussion that Respondent continues to deny that he has a drug abuse problem and presents a risk of relapse ``given the absence of any on-going monitoring or treatment, to warrant a finding that [his] experiences in dispensing controlled substances contradicts a finding that granting this application is consistent with the public interest.'' R.D. at 64. I conclude, however, that the issue of whether Respondent presents an unacceptable risk of relapse does not involve his experience in dispensing, but rather, whether he has produced sufficient evidence to rebut the Government's prima facie case. Accordingly, Respondent's arguments are addressed in that discussion. --------------------------------------------------------------------------- Exception to Conclusion of Law 9 In this conclusion, the ALJ discussed the evidence relevant to factor five--``such other conduct which may threaten public health and safety.'' R.D. at 65; see also 21 U.S.C. 823(f)(5). Specifically, the ALJ found that the record establishes: that Respondent refused without good cause shown to execute releases granting the DEA access to monitoring reports in Minnesota and Florida; provided misleading accounts of the circumstances surrounding the June 13, 2008 motor vehicle crash in reports tendered to medical boards in Florida and Minnesota and in his accounts of the same to DEA investigators; and provided inconsistent and misleading accounts of his history of drug use to the DEA and to medical boards in Florida and Minnesota. R.D. at 65-66. For these reasons, the ALJ found that this factor supports the conclusion that granting Respondent's application ``would be inconsistent with the public interest.'' R.D. at 66. Respondent takes exception to the ALJ's conclusion. According to Respondent, the ALJ's conclusion ``rest [sic] on the testimony of [the DI] and N.P. and ignores the testimony of [Respondent], the undisputed testimony of Dr. Nedd [the neurologist who treated him after the crash] and the fact that . . . the incident which occurred in 2008 occurred over 6 years ago.'' Exceptions at 22-23. Respondent argues that he stipulated to many of the facts outlined in the Government's Pre- Hearing Statements and that at the hearing, he did not dispute paragraphs two through six of the Order to Show Cause. Id. at 23. He further argues that he did not mean ``to be evasive,'' but ``simpl[y] . . . cannot remember the details'' of the accident because he ``suffers from post-traumatic amnesia'' and was ``under stress during the weeks prior to the hearing and had to try to gather pieces about a very traumatic incident he does not remember.'' Id. Finally, he argues that he had a seizure the day before the hearing and that ``[d]uring the hearing [he] was post-ictal and his emotional defenses and skills'' were compromised. Id. For the reasons explained in my discussion of Respondent's exceptions to the ALJ's factual findings numbers 12 and 13, I reject Respondent's exception to the ALJ's conclusions of law with respect to factor five.\24\ Moreover, with respect to factor five, I further find that Respondent made material false statements in this proceeding. These included: (1) When he testified that the Adderall prescription he wrote for S.S. was a refill of a prescription S.S. usually got and that while he had used Adderall, he obtained it from a physician's assistant at the clinic but could not remember the PA's last name; (2) when he testified that he could not ``remember diverting medications with SS'' and could not ``remember how the [Adderall] got into his car,'' (3) when he denied having used marijuana even though he tested positive for the drug following the accident and then asserted that he had ``no idea'' from whom he obtained the marijuana; (4) as well as in his testimony regarding why he tested positive for opiates and provided a diluted sample while subject to the Florida Drug Court program. --------------------------------------------------------------------------- \24\ However, for reasons explained previously, I do not adopt the ALJ's conclusion to the extent it states that Respondent provided misleading accounts of the accident and his history of drug use to the Florida Board. Nor do I adopt the ALJ's conclusion to the extent it suggests that Respondent providing misleading statements when he appeared before the Minnesota Board's licensure committee. --------------------------------------------------------------------------- Accordingly, I reject Respondent's Exception to factor five and conclude that this factor supports the conclusion that granting Respondent's application would be ``inconsistent with the public interest.'' 21 U.S.C. 823(f)(5); Hoxie v. DEA, 419 F.3d 477, 483 (6th Cir. 2005); John v. Scalera, 78 FR 12092, 12100 & n.21 (2013); Robert F. Hunt, 75 FR 49995, 5004 (2010); Rose Mary Jacinta Lewis, 72 FR 4035, 4042 (2007). Exception to Conclusion of Law 13 Finally, Respondent takes exception to the ALJ's legal conclusion that he has failed to produce sufficient evidence to rebut the Government's prima facie showing that granting his application would be inconsistent with the public interest. In this conclusion, the ALJ found that: The record . . . establishes that Respondent has failed to timely provide the DEA with reports of his treatment or monitoring from the Florida Medical Board and PRN and from the Minnesota Board of Medical Practice and HPSP; failed to acknowledge the need to provide forthright, accurate, and complete responses to questions presented regarding his prescription practice and his history of drug [[Page 71628]] abuse; and failed to account for his false statement in making this application[.] R.D. at 66. Moreover, earlier in his discussion of Respondent's evidence of remediation, the ALJ explained that: [t]he most probative evidence of [Respondent's] efforts to address any drug abuse problems he may have had would have come from the reports by monitors in the Florida PRN program and Minnesota's HPSP program. Even as he insists he has and had no drug abuse problem, the evidence of drug abuse associated with the 2008 crash, his abuse of marijuana and cocaine prior to the crash, and his adamant determination to deflect and minimize the adverse impact of his drug use are all both abundant and troubling. [Respondent] has thwarted a complete review of the steps he has taken (or has failed to take) by refusing [the DI's] request for releases that would allow the DEA to see the PRN and HPSP reports. We have what appears to be only part of the report maintained by HPSP, and none of the report by PRN. In the absence of such evidence, I cannot find Respondent has established by at least preponderant evidence that he has accepted responsibility for his wrong-doing and has put in place effective corrective measures that would guard against future misconduct. R.D. at 57-58. Respondent nonetheless contends that at the hearing, he ``took full responsibility for his drug use and diversion of controlled substances.'' Exceptions at 25. He also argues that he acknowledged his use of marijuana and his diversion of Adderall in his first meeting with the DIs, and that Minnesota Board's decision to grant him a conditional license ``is evidence of his acknowledgment of his past drug use and diversion of prescription drugs,'' because the Board noted that it ``discussed [with him] his use of controlled substances that had not been prescribed to him.'' Id. at 24-25. I reject Respondent's contention. His assertion that he acknowledged his use of marijuana at his first meeting with the DI is counterfactual, as Respondent asserted that his positive drug test following the accident ``was a false positive'' and that ``he had not used marijuana in a long time.'' Tr. 462. Moreover, while at the hearing, Respondent admitted to facts which establish that the prescriptions he issued to S.S. for Percocet and Xanax were outside of the usual course of professional practice and which lacked a legitimate medical purpose (see R.D. at 5-7; Tr. 610-11), he continued to deny that he wrote the Adderall prescription in S.S.'s name for the purpose of obtaining the drugs for his own use and that S.S. had given him the filled prescription.\25\ Tr. 612. Moreover, Respondent failed to acknowledge his misconduct in intentionally and materially falsifying his application for his DEA registration. Also, he failed to acknowledge that he made various false statements to the Agency's Investigators. --------------------------------------------------------------------------- \25\ As for his contention that the Minnesota Board's decision to grant him a conditional license ``is evidence of his acknowledgement of his past drug use and diversion of prescription drugs,'' while Respondent may have admitted to some misconduct in that proceeding, it is unclear exactly what he admitted to in that proceeding. Also, under Agency precedent, Respondent is required to acknowledge his misconduct with respect to the full extent of the misconduct proved on the record of this proceeding. See Robert L. Dougherty, 76 FR 16823, 16834 (2011); Jeffrey Patrick Gunderson, 61 FR 26208, 26211 (1996); Prince George Daniels, 60 FR 62884, 62887 (1995). --------------------------------------------------------------------------- Accordingly, I reject Respondent's contention that he accepted responsibility for the full extent of the misconduct which has been proven on this record. See MacKay v. DEA, 664 F.3d 808, 820 (10th Cir. 2011) (``The DEA may properly consider whether a physician admits fault in determining if the physician's registration should be revoked. When faced with evidence that a doctor has a history of distributing controlled substances unlawfully, it is reasonable for the Deputy Administrator to consider whether that doctor will change his . . . behavior in the future. And that consideration is vital to whether continued registration is in the public interest.'') (citing Hoxie v. DEA, 419 F.3d 477, 483 (6th Cir. 2005)). This is reason alone to conclude that Respondent has not rebutted the Government's prima facie showing that granting his application ``would be inconsistent with the public interest.'' 21 U.S.C. 823(f). Respondent nonetheless argues that he has put on ``uncontested evidence of his efforts to rehabilitate his career.'' Exceptions at 25. He argues that he ``participated in all the required programs[,] treatment plan and drug testing,'' and that he has ``met fully every condition and gained the trust of the Minnesota Medical Board, his employer, his peers, and his patients.'' Id. Respondent further argues that ``[t]he fulfillment of these conditions cannot simple [sic] be ignored because [he] did not sign a release for [the DI] to access HPSP directly'' and that he ``provided her with 82 pages of documentation which included the quarterly reports, results of toxicology test [sic], his case manager's notes.'' Id. at 26-27. He also argues that ``[t]here is no justification for not considering the Minnesota Board's Order'' and that ``[t]he argument that [he] did not disclose the extent of his drug use and diversion of controlled substances to the Minnesota Medical Board is not supported by either'' the Board's Order granting him a conditional license or the Order which granted him an unconditional license. Id. at 27. The ALJ did, however, consider the Board's Order as evidence in remediation. See R.D. at 62 (FoF #14) (``Evidence of remediation in this record takes the form of Respondent's successful completion of a one-year period of monitoring under the auspices of the Minnesota Health Professional Services Program.''). He just found it insufficient to satisfy Respondent's burden of production on the issue of the adequacy of his remedial measures. As for Respondent's further contention that ``[t]he fulfillment of these conditions cannot simple [sic] be ignored because [he] did not sign a release for [the DI] to access HPSP directly'' and that he ``provided her with 82 pages of documentation which included the quarterly reports, results of toxicology test [sic], his case manager's notes,'' id. at 26-27, where, as here, the evidence shows that Respondent has a history of abusing controlled substances, the Agency is not required to take him at his word that he provided his complete HPSP file. Here, while Respondent submitted various documents related to his participation in the HPSP program, there is ample reason to believe that these records are incomplete as they do not appear to include the initial evaluation conducted by Dr. Albert (his psychologist),\26\ and thus, it remains unclear what he disclosed to the psychologist regarding his history of substance abuse. Accordingly, I agree with the ALJ's conclusion that Respondent has not produced sufficient evidence of his remedial measures to rebut the Government's prima facie case.\27\ --------------------------------------------------------------------------- \26\ The DI testified that upon receiving a file from Dr. Hasper, it contained notes for Respondent's ``first two visits'' with Dr. Albert, but these notes were not included in the HPSP records that Respondent provided to her. Tr. 481, 497. Notwithstanding that Respondent had the burden of production on the issue of the adequacy of his remedial measures, he did not submit these documents for the record. See generally Resp. Exhibits. Moreover, although the Government was eventually provided with these notes, the fact remains that because Respondent would not agree to release his HPSP file and did not submit these documents, it remains unclear whether he fully disclosed his history of substance abuse to his treating professionals. \27\ As previously noted, in his legal conclusions pertaining to factor two, the ALJ explained that if Respondent was ``granted the authority to prescribe often-diverted controlled substances, [his] experience as demonstrated in this record would, in the event of relapse, constitute a threat to the public interest, particularly where Respondent continues to deny having drug abuse problems notwithstanding a history of abuse.'' R.D. at 64. The ALJ then explained that ``[w]hile this risk is attenuated during [his] sustained period of stable recovery, it is sufficiently present here, given the absence of any on-going monitoring or treatment, to warrant a finding that [his] experience in dispensing controlled substances contradicts a finding that granting this application is consistent with the public interest.'' Id. Respondent argues that ``there is nothing in the record which shows [that he] has a risk of relapse.'' Exceptions at 21. He argues that ``[h]e was not diagnosed with a drug problem,'' but ``with authority conflicts'' and that he ``fully shared his history of drug uses with Dr. Albert'' and ``completed his treatment plan.'' Id. He then argues that if the Board ``believed that he had a risk of relapse they never would have removed the conditions on his medical license'' and that the Government ``did not provide any evidence, testimonial or otherwise, by any professional, serving those with a history of drug abuse, to contradict'' the conclusions of Dr. Albert and the Board. Id. at 22. I agree that there is no evidence establishing what Respondent's risk of relapse is. I conclude, however, that because Respondent would not provide the Government with a release allowing it to obtain his HPSP file directly from the program so that it could verify whether he actually ``fully shared his history of drug use'' with his treating professional, his evidence as to his rehabilitation is insufficient. Of further note, as found above, Respondent also unlawfully distributed Percocet (oxycodone) and Xanax (alprazolam) to S.S. See 21 U.S.C. 841(a)(1); 21 CFR 1306.04(a). While Respondent admitted to the facts which establish the violation, he has failed to produce any evidence of remedial training he had undertaken in the proper prescribing of controlled substances. Thus, Respondent has failed to produce sufficient evidence of remedial measures with respect to these violations. --------------------------------------------------------------------------- [[Page 71629]] Summary The Government has made out a prima facie case to deny Respondent's application based on his material falsification of his DEA application, his diversion of controlled substances to both S.S. and himself, his substance abuse, and the numerous false statements he made to DEA Investigators and in this proceeding. Notably, at most, Respondent has acknowledged his misconduct only with respect to the Percocet and Xanax prescriptions he issued to S.S. While Respondent's failure to acknowledge his misconduct in materially falsifying his application, the circumstances surrounding his issuance of the Adderall prescription, and his false statements to the Investigators, provides reason alone to conclude that he has not rebutted the Government's case, he also failed to produce sufficient evidence in remediation. Because I conclude that Respondent's misconduct is both extensive and egregious, I agree with the ALJ that granting his application ``would be inconsistent with the public interest.'' 21 U.S.C. 823(f). Accordingly, I will adopt the ALJ's recommended order and deny his application. Order Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28 CFR 0.100(b), I order that the application of Mark William Andrew Holder, M.D., for a DEA Certificate of Registration be, and it hereby is, denied. This Order is effective immediately. Dated: November 5, 2015. Chuck Rosenberg, Acting Administrator. Krista Tongring, Esq., for the Government. Yende Anderson, Esq., for the Respondent. Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision of the Administrative Law Judge Nature of the Proceeding Christopher B. McNeil, Administrative Law Judge. These are proceedings before the Drug Enforcement Administration and the United States Department of Justice, under DEA docket number 2014-13, captioned ``In the Matter of Mark William Andrew Holder, M.D.'' The proceedings are being held pursuant to sections 303 and 304 of the Controlled Substances Act, Title 21 United States Code sections 823 and 824. On March 7, 2012, Respondent Mark W.A. Holder, M.D., applied for a DEA Certificate of Registration as a practitioner in Controlled Substance Schedules 2, 2N, 3, 3N, 4 and 5, identifying the business location as 2810 Nicollet Avenue South, Minneapolis, Minnesota 55408- 3160.\1\ After reviewing this application the Drug Enforcement Administrator through her Deputy Assistant Administrator issued an order dated April 11, 2014 extending to Dr. Holder the opportunity to show cause why the Administrator should not deny this application.\2\ In the order, the Administrator alleged that Dr. Holder's registration would be inconsistent with the public interest and thus should be denied pursuant to 21 U.S.C. 823(f); and further alleged that Dr. Holder materially falsified a DEA registration application, warranting the denial of the application pursuant to 21 U.S.C. 824(a)(1) and 824(a)(4).\3\ --------------------------------------------------------------------------- \1\ Gov't Ex. Two at 1. \2\ A.L.J. Ex. One at 1. \3\ Id. --------------------------------------------------------------------------- On May 8, 2014, the Office of Administrative Law Judges for the DEA received Respondent's May 6, 2014 request for a hearing to permit him the opportunity to establish why his application should not be denied. The parties presented evidence during a hearing conducted at the DEA Hearing Facility in Arlington, Virginia, on August 4 and 5, 2014. Summary of the Evidence Prior to the hearing, the parties entered into stipulations,\4\ which will be presented here, along with summaries of testimony taken during two days of hearings conducted in Arlington, Virginia. --------------------------------------------------------------------------- \4\ A.L.J. Ex. 31. --------------------------------------------------------------------------- In articulating the bases upon which the Administrator proposed to deny Dr. Holder's application for a Certificate of Registration, the Deputy Assistant Administrator identified the following: (1) The Government alleged improprieties with respect to Dr. Holder's prescription practice as it concerned Patient S.S. on June 4, 2008.\5\ The Government alleged Dr. Holder prescribed Percocet and Xanax for this patient under conditions that were outside the usual course of professional practice and for other than a legitimate medical purpose.\6\ The Government specifically alleged that Dr. Holder failed to document a complete medical history and physical exam prior to prescribing controlled substances to the patient, failed to determine the nature and intensity of the pain attributed to the patient, failed to determine the patient's true medication history, and failed to provide a legitimate diagnosis to support prescribing controlled substances to this patient, during an office visit on June 4, 2008.\7\ The Administrator further alleged that on June 11, 2008, Dr. Holder issued a handwritten prescription to Patient S.S. for Adderall, a Schedule II controlled substance, without creating any written record of diagnosis or treatment for the prescription.\8\ --------------------------------------------------------------------------- \5\ A.L.J. Ex. One at 1. \6\ Id. at 1-2 . \7\ Id. \8\ Id. at 2. --------------------------------------------------------------------------- (2) With respect to the prescription for Adderall dated June 11, 2008, the Administrator also alleged that Dr. Holder wrote this prescription in order to illegally obtain the medication for his own use; and that after taking control of the medication, Dr. Holder engaged in behavior resulting in a single-vehicle crash on June 13, 2008 that seriously injured Dr. Holder and his passenger, N.P., while Dr. Holder was under the influence of THC and amphetamines.\9\ --------------------------------------------------------------------------- \9\ Id. --------------------------------------------------------------------------- (3) The Administrator further alleged that consequent to the crash involving Dr. Holder and his passenger, the Florida Department of Health indefinitely suspended Dr. Holder's [[Page 71630]] license to practice medicine in that State, and the Minnesota Board of Medical Practice initially recommended the denial of his application to practice in that State, thereafter granting him a restricted, conditional license to practice medicine in Minnesota.\10\ The Administrator alleged that despite his history of proceedings before the boards regulating the practice of medicine in Florida and Minnesota, when asked in his DEA application whether he ever had a state professional license suspended, denied, or restricted, Dr. Holder falsely answered in the negative.\11\ --------------------------------------------------------------------------- \10\ Id. \11\ Id. at 2-3. --------------------------------------------------------------------------- (4) The Administrator alleged that in the course of the investigation into whether Dr. Holder's application should be granted, Dr. Holder engaged in evasive conduct, evinced a lack of candor when responding to investigators, has given inconsistent or evasive reports of his past drug use, has refused requests from the DEA investigators seeking records demonstrating compliance with drug treatment programs in Florida and Minnesota, and has tested positive for prohibited controlled substances during periods of court supervision subsequent to the June 13, 2008 motor vehicle crash.\12\ --------------------------------------------------------------------------- \12\ Id. at 3. --------------------------------------------------------------------------- Background Dr. Holder attended the University of Minnesota and Morehouse School of Medicine, completing his residency from 2004 to 2007 at Jackson Memorial Hospital in Miami, Florida, with a specialty in family medicine.\13\ During his residency, he was trained in critical care, emergency medicine, infectious disease, pediatrics, wards medicine, and women's health.\14\ Shortly after completing that residency program, Dr. Holder accepted employment as an independent contractor at an urgent care facility called MD Now, which has locations throughout southern Florida.\15\ Respondent previously held DEA Certificate of Registration BH9956232, issued on November 21, 2007, with a registered address of 221 164th Street, NE., Suite 329, North Miami Beach, Florida.\16\ This registration expired by its own terms on October 31, 2009.\17\ --------------------------------------------------------------------------- \13\ Tr. at 87. \14\ Gov't Ex. 37 at 59. \15\ Tr. at 88-89; A.L.J. Ex. 31 at 1. \16\ A.L.J. Ex. 31 at 1. \17\ Id. --------------------------------------------------------------------------- In addition to his experience as an urgent care medical doctor, Dr. Holder has evaluated the Cuban health care system to formulate a Student National Medical Association article promoting preventative medicine, and has conducted HIV prevention research and initiated recommended therapy in Accra and Ada, Ghana.\18\ --------------------------------------------------------------------------- \18\ Gov't Ex. 37 at 60. --------------------------------------------------------------------------- When describing why he wanted to go to medical school, Dr. Holder stated: ``I thought that medicine was a good way to kind of give back to the world. And I think there's a huge need for medicine in this nation and all over the world, and I thought this is a good way to use the energies that I had.'' \19\ --------------------------------------------------------------------------- \19\ Tr. at 573. --------------------------------------------------------------------------- Dr. Holder's Prescription Practice Regarding Patient S.S. In his testimony and through stipulation, Dr. Holder admitted that on June 4, 2008, he saw Patient S.S., a 25 year old male, at MD Now's Royal Palm Beach Facility.\20\ This was Dr. Holder's initial encounter with Patient S.S. in a professional capacity, and it was Patient S.S.'s first visit of any kind to MD Now.\21\ At this encounter, Dr. Holder prescribed Percocet and Xanax for Patient S.S., allegedly for back pain.\22\ Percocet 10/235 is the brand name for oxycodone 10mg/ acetaminophen 325 mg and is a Schedule II narcotic controlled substance.\23\ Xanax is a brand name for alprazolam, a Schedule IV controlled substance.\24\ --------------------------------------------------------------------------- \20\ Id. at 610; A.L.J. Ex. 31 at 1-2. \21\ Tr. at 610. \22\ Id. \23\ A.L.J. Ex. 31 at 2. \24\ Id. --------------------------------------------------------------------------- Dr. Holder acknowledged that when he issued these prescriptions, he was acting outside the usual course of his professional practice, and that he did so for other than a legitimate medical purpose.\25\ --------------------------------------------------------------------------- \25\ Tr. at 610. --------------------------------------------------------------------------- Patient S.S. explained the circumstances under which he obtained these prescriptions from Dr. Holder. Patient S.S. testified that in 2007 and 2008, while he had a legitimate job working part-time in a restaurant and running a mortgage branch location, he also earned money as a drug dealer.\26\ He said he was introduced to Dr. Holder by an associate who believed Dr. Holder was a potential client for cocaine and marijuana.\27\ He said this introduction occurred six to twelve months before the 2008 vehicle crash, adding that he was able to recall the date of the crash because he received a phone call around 2:00 a.m. on the day of the crash.\28\ He described selling marijuana to Dr. Holder once or twice a week during this period, and selling cocaine to Dr. Holder sporadically.\29\ He said he would make these transactions either at Dr. Holder's personal residence or at locations that were near to where Dr. Holder was at the time.\30\ --------------------------------------------------------------------------- \26\ Id. at 193. \27\ Id. at 194. \28\ Id. at 195. \29\ Id. at 197. \30\ Id. --------------------------------------------------------------------------- According to Patient S.S., he had been experiencing some pain in his back, and on June 4, 2008, he visited Dr. Holder at MD Now to discuss the matter.\31\ Patient S.S. stated that during this visit, ``[a] very brief examination was done after I filled out all the intake paperwork, from his front office staff. He came in the room, basic examination. [He] wrote me three prescriptions; one was for Xanax for anxiety, one was for Percocet for pain and one was Naproxen which was also used as an anti-inflammatory.'' \32\ He said Dr. Holder took his blood pressure and weight, listened to his breathing, and told him ``he had to make it look like a real examination, so he was going to spend about five to ten minutes with me.'' \33\ --------------------------------------------------------------------------- \31\ Id. at 201, 206. \32\ Id. at 201. \33\ Id. at 204. --------------------------------------------------------------------------- Dr. Holder agreed that the records of this encounter indicated his failure to document a complete medical history and physical examination, as well as his failure to determine either the nature or the intensity of the patient's pain.\34\ He also acknowledged failing to determine the nature of Patient S.S.'s current and past treatments for the pain.\35\ --------------------------------------------------------------------------- \34\ Tr. at 610 and A.L.J. Ex. One at 1. \35\ Tr. at 610 and A.L.J. Ex. One at 2. --------------------------------------------------------------------------- Dr. Holder did not dispute the Government's claim that while Patient S.S. reported that he currently was taking Percocet, Flexeril, and Xanax, the patient's medical records contained no mention of who had prescribed these medications and no indication that Dr. Holder inquired as to the identity of the treating source or sources who prescribed these medications.\36\ He agreed that his brief treatment records for Patient S.S. included a diagnosis of ``disc degeneration,'' despite the complete absence of any indication that he reviewed any imaging studies or prior medical records that would support this diagnosis.\37\ --------------------------------------------------------------------------- \36\ Tr. at 610 and A.L.J. Ex. One at 2. \37\ Tr. at 610. --------------------------------------------------------------------------- Patient S.S. testified that the only narcotic pills he ever distributed to Dr. Holder were those in the prescription for Adderall written by Dr. Holder.\38\ D-amphetamine Salt Combo is the generic substitute for Adderall, the brand name for a stimulant containing a mixture of [[Page 71631]] amphetamine, a Schedule II controlled substance.\39\ --------------------------------------------------------------------------- \38\ Id. at 200. \39\ A.L.J. Ex. 31 at 2. --------------------------------------------------------------------------- Without objection, the Government presented the testimony of Mark Rubenstein, M.D., as an expert medical witness in the standard of care for patients with pain and also as an expert in biomedical engineering.\40\ Drawing from his review of the medical records reflecting Dr. Holder's treatment of Patient S.S. on June 4, 2008 and the subsequent prescription of Adderall on June 11, 2008, Dr. Rubenstein prepared a written report, dated May 30, 2014.\41\ --------------------------------------------------------------------------- \40\ Tr. at 303-04. \41\ Gov't Ex. 42. --------------------------------------------------------------------------- In his report, Dr. Rubenstein cited State of Florida Board of Medicine Rule 64B8-9.003, which requires that the medical record contain ``sufficient information to support the diagnosis [and] justify the treatment,'' in opining that ``there is no evidence that the prescription for Adderall is supported by the medical records.'' \42\ Further, citing the requirement at Board of Medicine Rule 64B8-9.013 that the prescription of controlled substances for pain must be based on ``a complete history and physical exam'' documenting the ``nature and intensity of the pain, current and past treatments for the pain, effect of pain on physical and psychological functioning, etc.,'' Dr. Rubenstein opined that the prescriptions for Percocet, Flexeril, and Xanax attributed to Dr. Holder were not supported by the medical records reviewed.\43\ --------------------------------------------------------------------------- \42\ Id. at 4. \43\ Id. --------------------------------------------------------------------------- Dr. Rubenstein also was present for the direct and cross examination of Dr. Holder in the Government's case in chief. Upon his consideration of the patient records and based on what Dr. Holder testified to during the first day of hearing, Dr. Rubenstein testified that nothing presented during the hearing caused him to change any of the findings set forth in his written report.\44\ He added, with respect to Dr. Holder's decision to prescribe Xanax after Patient S.S.'s initial visit on June 4, 2008, that there was a clear risk of drug diversion presented, explaining that, ``in [the] absence of pre- existing history, pre-existing documentation, or objective correlation, you can't just take necessarily the patient at their word in view of the risk of drug dependence, drug addiction, and drug diversion.'' \45\ He opined similarly that the history taken and the physical examination reported during the office visit on June 4, 2008, would not support Dr. Holder's prescription for Percocet for Patient S.S.\46\ It was Dr. Rubenstein's opinion that Dr. Holder's June 4, 2008 prescriptions for Xanax and Percocet ``cannot be deemed for a legitimate medical purpose''.\47\ Similarly, Dr. Rubenstein opined that the June 11, 2008 prescription for Adderall ``was not provided in compliance with Florida Regulations and Rules . . . and cannot be deemed rendered for a legitimate medical purpose in the usual course of professional practice.'' \48\ --------------------------------------------------------------------------- \44\ Tr. at 305. \45\ Id. at 313. \46\ Id. at 315. \47\ Gov't Ex. 42 at 1-4. \48\ Id. --------------------------------------------------------------------------- The Adderall Prescription and Subsequent Automobile Crash Patient S.S. explained that before June 11, 2008, he and his ex- girlfriend went to Dr. Holder's house on ``multiple occasions'' to drop off marijuana and ``a little bit of cocaine.'' \49\ During the hearing, Patient S.S. described one such occasion: --------------------------------------------------------------------------- \49\ Tr. at 207. [A] couple of days prior [to June 11, 2008], we were sitting on his porch and we were actually smoking marijuana and he said, you know, I need a favor. Is there a chance that you can come by my office? I'll have a prescription for Adderall waiting for you. You're going to meet me around back of the office. I'm going to hand you the prescription, you're going to go get them filled. Bring it back here and I'll pay you for it. And he left the money in his car for, to cover my copay.\50\ --------------------------------------------------------------------------- \50\ Id. at 208. When asked about why Dr. Holder turned to Patient S.S. for this favor, Patient S.S. testified that Dr. Holder told him that ``since I did you a favor, now you owe me one. And the favor was that I come in, see him, pick up the prescriptions and have them filled . . . and release them to him.'' \51\ Patient S.S. said he understood that the ``favor'' Dr. Holder had performed for him was ``[t]he fact that he wrote me prescriptions [for Percocet, Flexeril, and Xanax] without any real background or history . . . aside from what was on the initial patient consultation form.'' \52\ --------------------------------------------------------------------------- \51\ Id. at 211. \52\ Id. --------------------------------------------------------------------------- Patient S.S. stated that as requested, he picked up the Adderall prescription, went next door to Walgreens to fill the prescription, then delivered to Dr. Holder the filled prescription, either leaving it in his Cadillac or handing it to him directly (he could not recall with certainty which), after first retaining two tablets for his own use.\53\ (Patient S.S. later testified that he may have taken as many as four tablets, but it was not more than four because, as he put it, ``I was mostly using cocaine myself.'' \54\) --------------------------------------------------------------------------- \53\ Id. at 209. \54\ Id. at 212-13. --------------------------------------------------------------------------- Dr. Holder agreed that on June 11, 2008, he issued a handwritten prescription to Patient S.S. for 60 tablets of 30 mg Adderall, a Schedule II controlled substance.\55\ He agreed that he issued these prescriptions from MD Now's Lake Worth, Florida facility, located at 4570 Lantana Road; and that the facility has no medical records or any other documentation of Patient S.S.'s visit on June 11, nor is there any record of the issuance of this prescription.\56\ Dr. Holder did not dispute the Government's assertion that he wrote this prescription without conducting an examination of Patient S.S., acknowledging during the hearing that he wrote the prescription without making a diagnosis for any condition necessitating the prescription, and without documenting the fact that he had prescribed Adderall for Patient S.S.\57\ --------------------------------------------------------------------------- \55\ Id. at 611 and A.L.J. Ex. One at 2. \56\ Tr. at 611 and A.L.J. Ex. One at 2. \57\ Tr. at 611 and A.L.J. Ex. One at 2. --------------------------------------------------------------------------- When asked during the hearing how the police found a bottle of Adderall identified as belonging to Patient S.S. in the car Dr. Holder was driving at the time of the crash, Dr. Holder said simply, ``I can't explain that,'' adding that he might have offered an explanation for it in the past, but ``right now, I'm at the place where I cannot explain how it got there. I do not recall how it got there.'' \58\ --------------------------------------------------------------------------- \58\ Tr. at 168. --------------------------------------------------------------------------- When questioned about the presence of the bottle of Adderall found in the Cadillac after the crash, Dr. Holder admitted to DEA Diversion Investigator Virginia McKenna that he used Adderall ``on a few different occasions [and] that he obtained it from a colleague [but] he did not know where the pill bottle came from.'' \59\ --------------------------------------------------------------------------- \59\ Tr. at 475. --------------------------------------------------------------------------- According to Investigator McKenna, when she presented a copy of the Adderall prescription for Patient S.S. written by Dr. Holder, Initially he said that he did meet with SS and provide him the prescription, but it wasn't documented because it had already been discussed. Later during the conversation, he said he didn't recall giving the prescription, that he had been in a coma, and he did not have a good memory of it. And then later in the conversation, he admitted in fact that he did give the prescription and repeated that it was not documented or charted, no exam, because that was already in the prior record. * * * [[Page 71632]] His mother [Dr. Wilhelmina Holder] quite forcefully stated that law enforcement planted it in the car. That's when I turned to Dr. Holder and again asked him, how would law enforcement know to go specifically to that person, knowing that that person received a prescription for Adderall from you just two days prior, to get the bottle to plant. And he said he didn't know, that law enforcement had been looking through his phone and would have found his number.\60\ --------------------------------------------------------------------------- \60\ Tr. at 476-77. The passenger in Dr. Holder's car at the time of the crash, N.P., provided details of what took place on June 13, 2008. Because her testimony was internally consistent, consistent with the evidence generally, and not contradicted by any other testimony or evidence, I found her testimony to be credible and gave it great weight. N.P. testified that she met Dr. Holder in the early morning of June 13, 2008, when Dr. Holder introduced himself to her at a nightclub.\61\ Although N.P. left the club as the passenger in another vehicle, she encountered Dr. Holder while in the other vehicle, at which time Dr. Holder caught her attention, and then arranged to follow the car to N.P.'s home.\62\ Once at her home, N.P. asked Dr. Holder to take her to a 24-hour Walgreens, and the two then departed in Dr. Holder's Cadillac.\63\ --------------------------------------------------------------------------- \61\ Id. at 52. \62\ Id. at 53-54. \63\ Id. at 55. --------------------------------------------------------------------------- While making the five-minute drive from her home to the drug store, N.P. observed that at first Dr. Holder was driving within the speed limit; but that, while engaged in conversation with her, Dr. Holder missed the turn that would have brought them to the drug store.\64\ She said when she brought this to his attention, Dr. Holder ``started moaning and . . . he stiffened up his back. His head was, he threw his head back on the seat and his eyes were rolling back in the back of his head.'' \65\ She said Dr. Holder's foot pressed heavily on the accelerator, ``his arms were stretched out holding the steering wheel,'' and the car was increasing in speed.\66\ --------------------------------------------------------------------------- \64\ Id. at 58. \65\ Id. at 58-59. \66\ Id. at 59-60. --------------------------------------------------------------------------- At this point, N.P. sought to control the vehicle, with one hand reaching for the steering wheel and the other seeking the parking brake.\67\ There was, however, neither braking nor any slowing, when the car hit a concrete signage wall and light pole.\68\ Upon impact, N.P. thought she ``was actually dead, because I couldn't see anything.'' \69\ She then realized the passenger airbag had deployed, and Dr. Holder was slumped over her left shoulder, bleeding profusely.\70\ --------------------------------------------------------------------------- \67\ Id. at 60. \68\ Id. at 61. \69\ Id. at 62. \70\ Id. --------------------------------------------------------------------------- Taking her own condition into account, N.P. testified that she could hardly breathe and was in ``a lot of pain.'' \71\ She had a gash on her left leg, was in great pain, and learned upon being admitted to the hospital that she had a severely dislocated elbow, shattered cervical spinal discs, and a broken back.\72\ According to N.P., however, her treatment at the scene had to be interrupted, as the first responders were diverted when it appeared Dr. Holder was yelling at those who had come to his aid.\73\ She said that after surgery, she now has limited mobility in her neck, with sustained periodic back pain; and has been told to expect an increase in that pain as she ages.\74\ --------------------------------------------------------------------------- \71\ Id. \72\ Id. at 62, 66. \73\ Id. at 64-65. \74\ Id. at 66. --------------------------------------------------------------------------- Also testifying were first responders who encountered Dr. Holder after he crashed his car. Ryan Biramontes is a driver operator and paramedic for the Palm Beach County Fire and Rescue squad, who described responding to a vehicle accident call at approximately 3 a.m. on June 13, 2008.\75\ He described encountering N.P., who was crying and reporting that she was in pain.\76\ He saw Dr. Holder, who appeared to have sustained a head injury, but was not responding to his name.\77\ --------------------------------------------------------------------------- \75\ Id. at 238. \76\ Id. \77\ Id. at 239. --------------------------------------------------------------------------- Mr. Biramontes reviewed reports of the crash, and described his encounters with Dr. Holder after Dr. Holder got out of the vehicle and in an ``altered'' state began ``screaming and stumbling around.'' \78\ He described the steps other responders took to subdue Dr. Holder, generally describing Dr. Holder as ``combative'' and ``resisting.'' \79\ Included in the responses by these responders were multiple attempts to subdue Dr. Holder using a Taser, which proved to be less than effective.\80\ He said that after repeated efforts by a team of responders, they were able to restrain Dr. Holder, administer Valium, and transport him to the Delray Medical Center for treatment.\81\ The toxicology report provided by Delray Center noted that Respondent's blood taken shortly after the accident by law enforcement tested negative for alcohol and positive for the presence of amphetamines and THC, the active ingredient in marijuana.\82\ Respondent admitted that he took amphetamines without a valid prescription on or about June 12, 2008.\83\ --------------------------------------------------------------------------- \78\ Id. at 250. \79\ Id. at 252. \80\ Id. at 254. \81\ Id. at 258, 260. \82\ A.L.J. Ex. 31 at 2. \83\ Id. --------------------------------------------------------------------------- In addition, the Government presented testimony from Palm Beach County Sheriff's Deputy Jesse McCoy, who gave testimony that was substantially the same as that provided by Mr. Biramontes, in that he observed N.P. having sustained a dislocated elbow and finding Dr. Holder with a bloody face, grunting behind the wheel, refusing to acknowledge the deputy's presence.\84\ He added that when members of the Fire Rescue team arrived, he saw the members having trouble restraining Dr. Holder so that he could be taken in to the hospital for treatment.\85\ --------------------------------------------------------------------------- \84\ Tr. at 405. \85\ Id. at 407. --------------------------------------------------------------------------- Also called to the scene of the crash, although later in time, after Dr. Holder had departed for the hospital, was Palm Beach Sheriff's Office Investigator Robert Stephan.\86\ Investigator Stephan described the crash scene, noted the condition of the Cadillac's windshield after the crash, and opined that from the spider-webbing fractures and pieces of organic material found on the inside of the driver's side of the windshield, it was likely the driver of the car was not wearing a seatbelt at the time of the crash.\87\ He said this was confirmed during his review of the vehicle's on-board Crash Data Retrieval System report.\88\ --------------------------------------------------------------------------- \86\ Id. at 270-71. \87\ Id. at 286-91. \88\ Id. at 279-81. --------------------------------------------------------------------------- The Government also presented the testimony of Palm Beach County Deputy Sheriff Judith Little, who testified regarding the condition of Dr. Holder's Cadillac on the morning after the crash. Specifically, Deputy Sheriff Little said she discovered the prescription bottle that had been issued to Patient S.S., located inside the vehicle.\89\ She counted the pills inside the vial, and determined there were 41 pills remaining in the 60-pill June 11, 2008 prescription.\90\ Palm Beach County Detective Daniel Morgado, too, testified about his review of the crash scene and vehicle in the morning after the crash.\91\ He said he received the prescription bottle and determined that Dr. Holder had issued the prescription out of MD Now's office for Patient S.S.\92\ There is [[Page 71633]] no direct testimony from Dr. Holder accounting for the nineteen Adderall tablets missing from the prescription bottle found in Dr. Holder's Cadillac after the June 13, 2008 crash, although Patient S.S. acknowledged taking no more than four tablets prior to delivering the vial to Dr. Holder.\93\ --------------------------------------------------------------------------- \89\ Id. at 396. \90\ Id. \91\ Id. at 426-28. \92\ Id. at 429. \93\ Id. at 212-213. --------------------------------------------------------------------------- Respondent subsequently was criminally charged in Palm Beach County with driving under the influence, possession of amphetamines, driving on a suspended license, and obtaining amphetamines by fraud. The State of Florida subsequently issued a nolle prosse for all criminal charges.\94\ --------------------------------------------------------------------------- \94\ A.L.J. Ex. 31 at 2. --------------------------------------------------------------------------- Regarding the crash, Dr. Holder presented the testimony of Kester Jimmy Nedd, M.D., who treated Dr. Holder upon his arrival at the hospital.\95\ Dr. Nedd is a board certified neurologist and is the Medical Director for Neurological Rehabilitation at Jackson Memorial Hospital.\96\ Dr. Nedd testified that from his review of treatment records, he was of the opinion that Dr. Holder ``suffered a severe traumatic brain injury with hemorrhage in the brain'' and that this ``resulted in cognitive impairment.'' \97\ He said Dr. Holder suffered from ``post-traumatic amnesia, where he was in a state of confusion and not able to form new memory. This lasted maybe up to, even up to when he left the rehabilitation center,'' at which point Dr. Nedd followed him at the outpatient center.\98\ --------------------------------------------------------------------------- \95\ Tr. at 509. \96\ Id. at 508-09. \97\ Id. at 510. \98\ Id. --------------------------------------------------------------------------- According to Dr. Nedd, Dr. Holder's ``cognitive symptoms include trouble with judgment, reasoning, [and] executive function.'' \99\ Dr. Nedd testified that even after many years, Dr. Holder ``was still having issues,'' \100\ explaining that ``for many patients with traumatic brain injury, this could be a life-long issue.'' \101\ He added that he ``would expect that [Dr. Holder] would have trouble recalling events'' associated with the 2008 crash.\102\ He added that not only might someone with these symptoms have difficulty remembering the events relating to the crash, such a person might also substitute alternative facts for what actually happened, called ``confabulation,'' where ``the patient actually combines many pieces of information and it's not always truthful.'' \103\ --------------------------------------------------------------------------- \99\ Id. at 510-11. \100\ Id. at 512. \101\ Id. \102\ Id. at 515-16. \103\ Id. at 519. --------------------------------------------------------------------------- The Misrepresentation of Dr. Holder's Record of Suspensions Dr. Holder acknowledged that on January 26, 2009, the Florida Department of Health issued an Emergency Suspension of his license to practice medicine.\104\ He did not dispute that the Departmental action was the result of his illegal and unprofessional conduct surrounding his prescriptions to Patient S.S., as well as his unlawful possession and use of Adderall, and the subsequent traffic crash and DUI arrest.\105\ Further, he acknowledged that on June 19, 2009, the Florida Board of Medicine issued a final order indefinitely suspending his medical license in Florida.\106\ --------------------------------------------------------------------------- \104\ Id. at 614 and A.L.J. Ex. One at 2. \105\ Tr. at 614 and A.L.J. Ex. One at 2. \106\ Tr. at 614 and A.L.J. Ex. One at 2. --------------------------------------------------------------------------- Dr. Holder also acknowledged that on March 25, 2011, he applied for a medical license in Minnesota; and that the licensure committee of the Minnesota Board of Medical Practice initially recommended denial of the application for his failure to show good moral character.\107\ He further agreed that in November 2011, he was granted a restricted and conditional medical license in Minnesota.\108\ --------------------------------------------------------------------------- \107\ Tr. at 614 and A.L.J. Ex. One at 2. \108\ Tr. at 614 and A.L.J. Ex. One at 2. --------------------------------------------------------------------------- The application for a DEA Certificate of Registration requires applicants to answer the following question: ``[h]as the applicant ever surrendered (for cause) or had a state professional license or controlled substance registration revoked, suspended, denied, restricted, or placed on probation, or is any such action pending?'' \109\ Despite holding a restricted and conditional license in Minnesota, and despite having had his Florida license suspended, when asked this question in his application for a DEA Certificate of Registration on March 7, 2012, Dr. Holder answered in the negative.\110\ --------------------------------------------------------------------------- \109\ Gov't Ex. Two at 3. \110\ Id. --------------------------------------------------------------------------- On July 19, 2012, Diversion Investigators McKenna and Joseph Cappello met with Dr. Holder and Dr. Holder's attorney, Kent G. Harbison, of Fredrikson & Byron, P.A., Minneapolis, Minnesota. Investigator McKenna said she questioned Dr. Holder about this response as part of her investigation, prior to the issuance of the Order to Show Cause. According to Investigator McKenna, [Dr. Holder] answered on the application no. When I asked him about that, he said that he didn't understand the question, that he wasn't intending to lie, at which time Mr. Harbison interjected, ``why would he lie when he knew it was public record?'' but I had no, I don't know why he would or wouldn't do such a thing, so I showed him the application. And then he said that he didn't read the question thoroughly, and that's when I showed him a sample application that I had.\111\ --------------------------------------------------------------------------- \111\ Tr. at 463. According to Investigator McKenna, upon being presented with the --------------------------------------------------------------------------- sample application, Dr. Holder: [W]ent through it and he underlined the first word-- ``surrendered''--and stopped. I then went on and underlined the rest: ``Revoked, suspended, denied, restricted or placed on probation, or is any other such action pending?'' MR. LAWSON: So in other words, he was trying to tell you that he answered the question properly because he had never surrendered? MS. MCKENNA: That could have been the suggestion, and I [asked] about his training as a student for medical doctor and sitting for Boards, and I asked him if during those occasions, ``did you just gloss over the questions or did you read them thoroughly in order to answer them?'' And he said he didn't gloss over.\112\ --------------------------------------------------------------------------- \112\ Id. at 463-64. --------------------------------------------------------------------------- Dr. Holder's Lack of Candor in the Investigative Process In its Order to Show Cause, the Government averred the existence of multiple instances in which it appeared Dr. Holder had been other than forthright and honest with state regulators and the DEA.\113\ These instances included the following: --------------------------------------------------------------------------- \113\ A.L.J. Ex. One at 3. --------------------------------------------------------------------------- 1. Dr. Holder provided inconsistent statements with respect to the number of doses of Adderall he consumed prior to the automobile crash, and gave inconsistent statements regarding how he obtained the medication, including a claim that the presence of Adderall (in the bottle bearing the prescription he wrote to Patient S.S.) was the product of Florida law enforcement officers planting the bottle in his car, or, alternatively, had been provided by an unnamed colleague at work.\114\ --------------------------------------------------------------------------- \114\ Id. --------------------------------------------------------------------------- 2. Dr. Holder attributed a positive screen for marijuana to be the result of a false positive, rather than to his own use of the drug.\115\ --------------------------------------------------------------------------- \115\ Id. --------------------------------------------------------------------------- 3. Dr. Holder provided evasive answers to DEA agents regarding his past use of controlled substances, and refused multiple requests from the DEA seeking the release of records showing [[Page 71634]] his participation in court-ordered monitoring in Florida through the Florida Professional Resource Network, and during regulatory monitoring required in Minnesota by the Minnesota Health Professional Services Program.\116\ --------------------------------------------------------------------------- \116\ Id. --------------------------------------------------------------------------- 4. Records of drug screening results during court-ordered monitoring included positive testing for opiates on one occasion, the submission of a diluted urine sample on another, and skipping a call for random sampling on another occasion.\117\ --------------------------------------------------------------------------- \117\ Id. --------------------------------------------------------------------------- Diversion Investigator Jack Henderson testified with respect to the process by which his office evaluated Dr. Holder's March 2012 application for a DEA Certificate of Registration in Minnesota. Investigator Henderson is in charge of the diversion control program for the DEA in the Minneapolis/St. Paul District office.\118\ After the application was received on March 8, 2012, Investigator Henderson's office began the process of reviewing the responses Dr. Holder provided in his application.\119\ By June 3, 2013, Investigator Henderson had determined that it appeared Dr. Holder had provided ``inconsistent and potentially false information'' to the DEA, warranting the issuance of a show cause order regarding the application.\120\ --------------------------------------------------------------------------- \118\ Tr. at 326. \119\ Id. at 326-27. \120\ Id. at 327. --------------------------------------------------------------------------- Asked to provide specific instances that gave rise to his determination, Investigator Henderson noted first a discrepancy regarding the number of dosages of Adderall Dr. Holder admitted to consuming on the evening of the crash.\121\ Investigator Henderson said he understood Dr. Holder acknowledged taking one unit, but when asked about this on June 3, 2013, ``he told me that he could have taken on that evening between four and six dosage units, but more than likely it was five.'' \122\ --------------------------------------------------------------------------- \121\ Id. at 328. \122\ Id. --------------------------------------------------------------------------- Investigator Henderson also identified the business record reflecting the answers provided by Dr. Holder to the questions appearing on the online application Dr. Holder submitted in March 2012.\123\ --------------------------------------------------------------------------- \123\ Id. at 334-35. Note: The print-out of this document has a caption stating ``DEA Form 224--Completed,'' and was identified by Investigator Henderson as a true copy of Dr. Holder's application. Investigator Henderson acknowledged that the document (shown as Government Exhibit 53) bears a header that reads ``Page 1 of 3,'' but testified that to the best of his recollection, the form consists of two pages, not three, and he provided copies of both pages to Dr. Holder's counsel upon receiving a request for the same in July 2014. Tr. at 332-34. --------------------------------------------------------------------------- Also working out of the DEA's Minneapolis/St. Paul district office,\124\ Investigator McKenna was the lead investigator responsible for evaluating Dr. Holder's March 2012 application.\125\ She explained that a registration specialist in the office initially reviewed Dr. Holder's application, then checked to see if there were any records of board orders regarding Dr. Holder's past history.\126\ She said Dr. Holder did not disclose such a history, so when the specialist found evidence that the medical boards in Florida and Minnesota had taken action regarding Dr. Holder's licenses in those states, the file was forwarded to the investigator.\127\ Because her testimony was internally consistent, consistent with the evidence generally, and not contradicted by any other reliable testimony or evidence, I found her testimony to be credible and gave it great weight. --------------------------------------------------------------------------- \124\ Tr. at 440. \125\ Id. at 442. \126\ Id. at 442-43. \127\ Id. at 443-44. Upon inquiry, Investigator McKenna also confirmed testimony by Investigator Henderson regarding the printed copy of this application, stating that the document is two pages long, not three, and that there are no questions presented to the applicant other than those shown on pages three and four of Government Exhibit Two. Tr. at 446. --------------------------------------------------------------------------- The application includes Question Three, which asks ``[h]as the applicant ever surrendered (for cause) or had a state professional license or controlled substance registration revoked, suspended, denied, restricted, or placed on probation, or is any such action pending?'' \128\ In his application, Dr. Holder responded in the negative to this question.\129\ Investigator McKenna then identified documents establishing that Dr. Holder's medical license had been suspended and was currently on probation in Florida, and was restricted in Minnesota.\130\ --------------------------------------------------------------------------- \128\ Gov't Ex. Two at 3. \129\ Id. \130\ Id. at 448 and Gov't Exs. 46 through 50. --------------------------------------------------------------------------- Investigator McKenna said that when assigned to review an application, her first task is to check for orders from state boards, apparently replicating the task attributed to the DEA registration specialist.\131\ Doing so, Investigator McKenna found the record of disciplinary action taken with respect to Dr. Holder's medical licenses in both Florida and Minnesota.\132\ Upon making these findings, she then sought copies of the drug monitoring program reports from Florida (i.e., the Professional Resource Network, or PRN, report), and Minnesota (the Health Professional Services Program, or HPSP, report).\133\ She explained that she needed to see the contents of these reports in order to corroborate what Dr. Holder was telling her.\134\ She said she specifically wanted to learn what Dr. Holder's diagnoses and prognoses were, and whether there were issues relating to his treatment that were being addressed or had been addressed in the past.\135\ --------------------------------------------------------------------------- \131\ Tr. at 453. \132\ Id. at 453-54. \133\ Id. \134\ Id. \135\ Id. --------------------------------------------------------------------------- According to Investigator McKenna, Dr. Holder was not forthcoming with securing these reports: MR. LAWSON: Okay. And if you can remember, what sort of documents were you focused on collecting before you ever spoke with Dr. Holder? MS. MCKENNA: The Board orders, of course. And then I wanted to get the law enforcement file, the police reports, any supporting documentation to get a clearer picture of what the allegations were there. MR. LAWSON: Okay. Now your investigation went on for quite a long time. Is that correct? MS. MCKENNA: Yes, sir. It did. MR. LAWSON: All right. Why did it take so long? MS. MCKENNA: On numerous occasions, I requested the HPSP and PRN records from Dr. Holder in order to afford him the opportunity to present his side, so to speak. On those occasions, I would get, ``I'll get them for you,'' or I would remind him that I was still waiting for them, and I never really received much, if anything.\136\ --------------------------------------------------------------------------- \136\ Id. at 455. Investigator McKenna said she asked for these reports during the meeting on July 19, 2012, at which time Dr. Holder told her he ``would look for them.'' \137\ He failed to produce the records, and when Investigator McKenna repeated the request during a discussion on August 25, 2012, Dr. Holder again offered to provide them.\138\ When that failed, she --------------------------------------------------------------------------- \137\ Id. at 464. \138\ Id. at 469-70. [A]ttempted to subpoena the records and was instructed I would need a court order or a release from Dr. Holder. I then presented him with a release, one each for Florida, one for Minnesota, on August 13th of 2013, I believe it was, and asked him if he would consent to me receiving the records personally. MR. LAWSON: And was August 13th the date that you actually presented, did you actually go ahead and complete, fill out the release forms? MS. MCKENNA: Yes, sir. I had the release forms completed. I brought them to him at his place of business, at, Whittier Clinic, and presented them to him personally.\139\ --------------------------------------------------------------------------- \139\ Id. at 455-57. [[Page 71635]] --------------------------------------------------------------------------- On August 23, 2013, however, Dr. Holder informed Investigator McKenna that he would not sign the release for either set of records.\140\ --------------------------------------------------------------------------- \140\ Id. at 479. --------------------------------------------------------------------------- In the course of her investigation, Investigator McKenna learned of ``three different occasions where [Dr. Holder] either tested positive for opiates, had a diluted [urine] sample, or missed a testing date.'' \141\ When in November 2012 she asked Dr. Holder if he completed the Florida program, Dr. Holder said that he had completed the program.\142\ Investigator McKenna then testified: ``I said `no. In fact, you didn't complete the program.' And that's when he said that he withdrew from the program because it was taking too long.'' \143\ --------------------------------------------------------------------------- \141\ Id. at 471. \142\ Id. at 472. \143\ Id. at 472. --------------------------------------------------------------------------- During this conversation, Dr. Holder again stated he would look for records of his participation in PRN and HPSP, but again failed to provide the requested records, a process that repeated itself when Investigator McKenna met with Dr. Holder in person on January 4, 2013.\144\ At that meeting, Dr. Holder provided 82 pages of records, the most significant of which were five pages of treatment records written by Marilyn Miller, Dr. Holder's contact at HPSP.\145\ --------------------------------------------------------------------------- \144\ Id. at 473. \145\ Id. at 474. --------------------------------------------------------------------------- Evidence of Respondent's Acknowledgement of Wrongdoing and Remediation Testifying on behalf of Dr. Holder, Ms. Miller said she provides case management services at the Health Professionals Services Program (HSPS) in Minnesota.\146\ Due to Dr. Holder's failure to supply a release reflecting Ms. Miller's treatment records, it is unclear whether the records of her services have been fully presented in this proceeding. --------------------------------------------------------------------------- \146\ Id. at 532. --------------------------------------------------------------------------- Pursuant to 21 CFR 1301.15,\147\ the Administrator may require an applicant to submit such documents or written statements of fact relevant to the application as the Administrator deems necessary to determine whether the application should be granted. This regulation provides that ``[t]he failure of the applicant to provide such documents or statements within a reasonable time after being requested to do so shall be deemed to be a waiver by the applicant of an opportunity to present such documents or facts for consideration by the Administrator in granting or denying the application.'' --------------------------------------------------------------------------- \147\ 21 CFR 1301.15 Additional information. The Administrator may require an applicant to submit such documents or written statements of fact relevant to the application as he/she deems necessary to determine whether the application should be granted. The failure of the applicant to provide such documents or statements within a reasonable time after being requested to do so shall be deemed to be a waiver by the applicant of an opportunity to present such documents or facts for consideration by the Administrator in granting or denying the application. --------------------------------------------------------------------------- The record here establishes that Dr. Holder failed to provide a release that would permit Diversion Investigator McKenna to obtain a complete record of monitoring by HPSP, creating an instance where by operation of this regulation, Dr. Holder has waived the opportunity to present HPSP records for consideration in this application. The Government timely objected to the presentation of Ms. Miller's testimony, based on 21 CFR 1301.15.\148\ Finding the objection is well- taken, I limit my use of Ms. Miller's testimony. I do consider as uncontroverted Ms. Miller's description of the purpose of the Minnesota HPSP. The program, according to Ms. Miller, ``is a state program that was created by the Health Licensing Boards in 1994 to monitor health professionals with illnesses that could potentially impair their ability to practice with reasonable skill and safety.'' \149\ According to Ms. Miller, under this program (which is not managed by the state medical board), she monitors participants for ``substance problems, psychiatric problems, and medical conditions.'' \150\ --------------------------------------------------------------------------- \148\ Tr. at 520. \149\ Id. at 523. \150\ Id. --------------------------------------------------------------------------- I do not consider as substantive evidence Ms. Miller's proffer of facts regarding Dr. Holder's progress in the HPSP program. Although Ms. Miller testified that a substance abuse treatment plan has been established for Dr. Holder, and that Dr. Holder complied with that plan, it is not clear from the record before me that a complete record of treatment has ever been produced for the Administrator's consideration. Ms. Miller testified that while Dr. Holder provided releases authorizing potential employers and credentialing agencies to see the full record of monitoring at HPSP, Dr. Holder did not provide a similar release that would have authorized the DEA to see these records.\151\ --------------------------------------------------------------------------- \151\ Id. at 528. --------------------------------------------------------------------------- The evidence establishes that Dr. Holder requested and received from HPSP a copy of his case file as it existed on September 18, 2012,\152\ but it appears this case file has not been provided to the Government and does not appear as part of the record of this proceeding. Given Dr. Holder's explicit determination to withhold from the Administrator the record of his experience at PRN in Florida and his refusal to sign a release allowing the DEA access to the full record of his experience in Minnesota, I give no weight to the balance of Ms. Miller's testimony, including her statement that Dr. Holder has met all of the conditions of monitoring at HPSP.\153\ --------------------------------------------------------------------------- \152\ Id. at 535. \153\ See id. at 526-27. --------------------------------------------------------------------------- Further, I note with concern Ms. Miller's testimony that established June 2008 as Dr. Holder's date of sobriety.\154\ As the Government brought forward during its examination of Ms. Miller, it appears Ms. Miller used this as Dr. Holder's sobriety date without knowing that Dr. Holder tested positive for unprescribed opiate use while a participant in the Florida PRN program, that he submitted a diluted urine sample while in that program, and that these events arose after June 2008.\155\ Accordingly, I give no weight to Ms. Miller's testimony that Dr. Holder has a continuous sobriety date of June 2008. --------------------------------------------------------------------------- \154\ Id. at 532. \155\ Id. at 533. --------------------------------------------------------------------------- As of April 2013, Investigator McKenna still did not have records of treatment from PRN, and renewed her request for those and for records not yet provided from HPSP.\156\ No records were forthcoming, however, so Investigator McKenna went to see Dr. Holder at his workplace, presenting him with releases allowing the release of PRN and HPSP records.\157\ Dr. Holder elected not to sign the releases, telling Investigator McKenna he had given her all of the records and saying that before he approved the releases, he wanted to consult with his sister, who is an attorney.\158\ On August 23, 2013, Investigator McKenna called Dr. Holder regarding the releases. She testified that Dr. Holder said ``he had already given me all of HPSP's records, that PRN's records were full of inaccuracies, and that it would be inappropriate for me to have that information and to use it at this point.'' \159\ As a result, records of Dr. Holder's participation in and withdrawal from the court-ordered monitoring by PRN in Florida are not available for the Administrator's review. --------------------------------------------------------------------------- \156\ Id. at 478. \157\ Id. \158\ Id. at 479. \159\ Id. --------------------------------------------------------------------------- It bears noting that on the day testimony began in this case, Dr. Holder reported that he experienced a seizure of unknown duration the day before, one that came upon him without advance warning, during which he lost [[Page 71636]] consciousness for a few moments and afterwards had ``a little bit of a headache and [was] a bit confused.'' \160\ Dr. Holder explained that he could not anticipate when such a seizure would occur, although he ``attribute[d] a lot of it to like extreme fatigue.'' \161\ He said that he has an unrestricted Minnesota driver license, despite the fact that if he were driving when such a seizure occurred, there would be nothing he could do to safely pull over.\162\ When asked whether the condition could be controlled by medication, Dr. Holder explained that ``[i]t was recommended by a neurologist that I take medication,'' but Dr. Holder has elected not to follow that recommendation and currently takes no medication for this condition.\163\ --------------------------------------------------------------------------- \160\ Id. at 80-81. \161\ Id. at 82. \162\ Id. \163\ Id. at 83. --------------------------------------------------------------------------- Also noteworthy are the impressions created during this administrative proceeding, by the character of Dr. Holder's responses to questions put to him during the evidentiary hearing. In many respects, the material facts presented by the Government in its Order to Show Cause had in one form or another been stipulated to in advance of the hearing, or were not disputed when Dr. Holder was directly questioned about them. In his closing statement, Dr. Holder accurately states that ``at the end of the hearing Dr. Holder . . . acknowledged that there were no factual disputes with respect to paragraph 2-6 of the Government's Notice [sic] to Show Cause.'' \164\ --------------------------------------------------------------------------- \164\ Respondent's Written Closing Statement at 11 (citing Tr. at 611-16). --------------------------------------------------------------------------- Despite having stipulated to key material facts, however, Dr. Holder frequently proved to be either unable or unwilling to respond directly to questions about the evidence that supported those facts. For example, in advance of the hearing the parties stipulated that on June 4, 2008, Respondent saw Patient S.S., a 25 year old male, at MD Now's Royal Palm Beach facility, and that he prescribed Patient S.S. 30 tablet of Percocet 10/325 and 30 tablets of 2 mg Xanax XR (extended release), later orally changed to 60 tablets Xanax (immediate release).\165\ --------------------------------------------------------------------------- \165\ A.L.J. Ex. 31 at 1, Stipulation Three. --------------------------------------------------------------------------- When the Government presented copies of the prescriptions (Government Exhibit 5) to Dr. Holder, however, and asked that he identify them, Dr. Holder's answers were less than direct. MR. LAWSON: Dr. Holder would you just take a look at the documents at Exhibit 5? And those are three prescriptions issued to Patient SS, correct? DR. HOLDER: That's what it appears to be. MR. LAWSON: And is that your signature on those prescriptions? DR. HOLDER: That is my signature. MR. LAWSON: All right. And so you issued those prescriptions to Patient SS on June 4, 2008? DR. HOLDER: Seems like it.\166\ --------------------------------------------------------------------------- \166\ Tr. at 92-93. Similar deflection can be found when Dr. Holder was asked about his decision to prescribe Adderall to Patient S.S. When asked whether there were any factual misstatements appearing in paragraph three in the Order to Show Cause, Dr. Holder answered in the negative.\167\ That paragraph alleges on June 11, 2008 Dr. Holder issued a prescription for 60 tablets of 30 mg Adderall to Patient S.S. without conducting an examination, without making a diagnosis for any condition calling for the prescription, and without making any documentation to support the prescription.\168\ --------------------------------------------------------------------------- \167\ Id. at 611. \168\ A.L.J. Ex. One at 2. --------------------------------------------------------------------------- When the Government asked Dr. Holder to explain why the June 11, 2008 prescription was hand-written when others in the record were computer-generated, however, Dr. Holder offered a different account of the circumstances leading to the issuance of this prescription: MR. LAWSON: Okay. And can you tell me why that is a handwritten prescription versus the electronically generated prescriptions in the previous exhibit? DR. HOLDER: Yes, well what I assume what's going on here is it seems that he came to this visit, which the previous prescriptions were, and if you look, they are dated different dates as well. And then if you look at this one um, which was on 11th, meaning that we, it's not infrequent that people come in after the appointment wanting medications that they usually get and I was refilling those medicines. MR. LAWSON: Sir, are you saying that the prescription you issued on June 11th to SS was a refill of a prescription he usually gets? DR. HOLDER: Yes, I am.\169\ --------------------------------------------------------------------------- \169\ Tr. at 95. Dr. Holder also exhibited a marked tendency not to fully disclose information that may call into question his ability to comply with the law, doing so both in his representations to the Minnesota Board, and in his testimony before me. In the following exchange, Government's counsel brought to Dr. Holder's attention the answers appearing in Dr. Holder's application for licensure in Minnesota, with respect to criminal convictions. The application question, Question 12, provides as follows: Have there ever been any criminal charges filed against you? This includes charges of disorderly conduct, assault or battery, or domestic abuse, whether the charges were misdemeanor, gross misdemeanor, or felony. This also includes any offenses which have been expunged or otherwise removed from your record by executive pardon. If so, give particulars, including the date of conduct, state and local jurisdiction in which the charges were filed.\170\ --------------------------------------------------------------------------- \170\ Gov't Ex. 34 at 6. In the space provided, Dr. Holder wrote ``please view addendum.'' \171\ The addendum describes charges arising from the June 13, 2008 vehicle crash, but no other criminal charges are reported.\172\ When questioned about the true state of his criminal record, Dr. Holder testified as follows: --------------------------------------------------------------------------- \171\ Id. \172\ Id. at 9-10. MR. LAWSON: Okay. And Question 12 asks whether any criminal charges have been filed against you and you circled yes and said, please view addendum, right? DR. HOLDER: Yes. MR. LAWSON: And so your addendum is part of your application, correct? Because you had to give an explanation for positive answers? DR. HOLDER: Yes, it is. MR. LAWSON: And I guess going back to the last question I asked you about, did you in that addendum disclose every instance in which criminal charges had been filed against you? DR. HOLDER: I focused specifically on the incidents of June-- ADMIN. JUDGE MCNEIL: You need to answer yes or no to begin that. DR. HOLDER: Okay. Yes. Well. Yes. MR. LAWSON: So your addendum discloses every instance in your life in which criminal charges have been filed against you? DR. HOLDER: In my life. Perhaps there were charges, maybe filed against me another time that I did not mention. So, so maybe it's no. The answer is no. MR. LAWSON: So the answer then is that you didn't answer that question completely and truthfully on that form? That's a yes or no question, Dr. Holder. DR. HOLDER: I was-- ADMIN. JUDGE MCNEIL: Answer the question, please. Completely and truthfully. So go to completely first. Did you answer it completely? MR. LAWSON: Dr. Holder, did you answer, in your addendum did you completely disclose every instance in which criminal charges have been filed against you? DR. HOLDER: Let me read the question again. What's the question that you are pointing to on the, the Minnesota Board application? Because I'm certain I was truthful. MR. LAWSON: It is Question 12 on Page 6 of the form. And I will specifically point out to you that it says it includes charges of disorderly conduct, assault or battery, or domestic abuse; whether those charges were misdemeanor, gross misdemeanor or felony [[Page 71637]] and includes charges that have been expunged. DR. HOLDER: And also, it may not have been complete, but it was truthful. MR. LAWSON: So you were truthful about the charges you chose to disclose? DR. HOLDER: And the charges that I thought were actually most important. MR. LAWSON: But you had, in fact, you've been charged with other crimes besides the one stemming from the June 13, 2008 accident, correct? DR. HOLDER: I think disorderly conduct before. MR. LAWSON: Right. DR. HOLDER: But this was, the charges were dismissed. MR. LAWSON: Right. They were dismissed, but they were charges for disorderly conduct, correct? DR. HOLDER: I vaguely remember, but you know, I don't know the details about that. Nothing came of that incident. ADMIN. JUDGE MCNEIL: I'll take that as a yes.\173\ \173\ Tr. at 149-52. I also note with concern the question of whether Dr. Holder was forthright in his communication with the medical boards in Florida and Minnesota in other respects. In describing his recollection of events immediately before and after the motor vehicle crash on June 13, 2008, Dr. Holder told me he remembered none of the circumstances of the crash.\174\ He made no similar claim when describing the crash to the Minnesota Board of Medical Practice. --------------------------------------------------------------------------- \174\ Id. at 107. --------------------------------------------------------------------------- In his Minnesota application, dated March 18, 2011, Dr. Holder stated that he had a seizure while driving on June 13, 2008; and that ``[a] collision with a sign post followed. Both the passenger and I were in seatbelts and only suffered minor injuries form [sic] airbag deployment.'' \175\ During this hearing, however, Palm Beach Sheriff's Office Investigator Robert Stephan credibly testified that the evidence gathered at the scene of the crash established the driver of the Cadillac was not wearing a seatbelt at the time of the crash.\176\ Further, passenger N.P. credibly testified that she suffered a serious cut to her leg, dislocation of her elbow, and multiple spinal injuries, and sustained in excess of $100,000 in medical expenses.\177\ Dr. Holder indirectly confirmed the severity of N.P.'s injuries, testifying that his insurer, Progressive Auto, paid in excess of $100,000 to settle N.P.'s civil lawsuit against him.\178\ Dr. Holder's statement to the Minnesota Board, however, made no mention of these details.\179\ Instead, he attributed his injuries to being repeatedly tazed and beaten by seven police officers who responded to the scene of the crash.\180\ He also minimized the injuries sustained by his passenger, reporting only that she ``was treated for an elbow injury on scene,'' without disclosing N.P.'s hospitalization and subsequent treatment for orthopedic dislocation and spinal injuries.\181\ --------------------------------------------------------------------------- \175\ Gov't Ex. 34 at 9. \176\ Tr. at 279-81, 286-91. \177\ Id. at 66-71. \178\ Id. at 147. \179\ Id. \180\ Id. \181\ Id. --------------------------------------------------------------------------- Beyond what appears to be Dr. Holder's tendency to minimize the injuries he and N.P. suffered as a result of this crash, there is also the unresolved inconsistency regarding his capacity to describe N.P.'s condition after the crash. During the hearing, Dr. Holder repeatedly testified that he remembered none of the circumstances of the crash,\182\ at one point claiming that his knowledge of the events at the time of the crash was based on police reports, not his own independent recollection.\183\ Indeed, the thrust of testimony from his treating physician, Dr. Nedd, was that the injuries Dr. Holder sustained in the crash likely impaired his ability to recall what happened at the time of the crash.\184\ Dr. Holder's representations to the Florida and Minnesota medical boards, however, do not reflect the presence of any such cognitive impairment, nor do they indicate that his answers were based on his reliance on police reports; to the contrary, his answers appear to reflect descriptions based on his own knowledge and recollection. --------------------------------------------------------------------------- \182\ Id. at 107, 118. \183\ Id. at 118. \184\ See id. at 510-17. --------------------------------------------------------------------------- Similarly, Dr. Holder's representations to the Minnesota Board differed significantly from what he presented during this administrative hearing with respect to his possession of Adderall at the time of the crash. As noted above, in order to demonstrate that he has accepted responsibility for engaging in the conduct attributed to him in paragraphs two through six in the Order to Show Cause, Dr. Holder ``acknowledged that there were no factual disputes with respect to paragraph 2-6'' of the Order to Show Cause.\185\ In paragraph four of that Order, the Administrator alleged that Dr. Holder issued the Adderall prescription to Patient S.S. ``solely in order to illegally obtain amphetamines for [his] own personal use,'' and not for any legitimate medical purpose.\186\ On the other hand, Dr. Holder withheld from the Minnesota Board any reference to Patient S.S., nor did he mention taking Adderall on the evening of the crash, averring instead that he ``did use Adderall as used for ADHD without a prescription while working long hours. I acquired from a colleague who worked in the Urgent Care where I worked.'' \187\ During the hearing before me, however, when asked whether he had been diagnosed with ADHD, Dr. Holder answered in the negative.\188\ --------------------------------------------------------------------------- \185\ Respondent's Written Closing Statement at 11; A.L.J. Ex. One at 2. \186\ Respondent's Written Closing Statement at 11; A.L.J. Ex. One at 2. \187\ Gov't Ex. 34 at 10. \188\ Tr. at 108. --------------------------------------------------------------------------- Also of concern was Dr. Holder's account of his use of Adderall on the day of the crash. Initially, Dr. Holder told Diversion Investigator McKenna he had taken one tablet of Adderall on the day before the crash.\189\ After receiving the toxicology report from the crash (i.e., the University of Florida Diagnostic Reference Laboratory Report of Dr. Bruce A. Goldberger) \190\ and reviewing Dr. Goldberger's deposition from the criminal case involving Dr. Holder, Investigator McKenna returned to the subject with Dr. Holder during an interview on August 25, 2012.\191\ At that interview, Dr. Holder said ``he thinks he might have taken two [Adderall doses] that night.'' \192\ These accounts, further, are at odds with what Dr. Holder told Diversion Investigator Henderson on June 3, 2013, when ``[Dr. Holder] told me that he could have taken on that evening between four and six dosage units, but more than likely it was five.'' \193\ --------------------------------------------------------------------------- \189\ Id. at 464-65. \190\ Gov't Ex. 14. \191\ Tr. at 469. \192\ Id. \193\ Id. at 328. --------------------------------------------------------------------------- No disclosure of such use appears in his description of the events as presented to the Minnesota Medical Board.\194\ While Dr. Holder does disclose that he was charged with unlawful possession of Adderall, with fraud to acquire a controlled substance, and with driving under a ``sub-therapeutic'' level of Adderall in his blood, he does not acknowledge any misconduct with respect to Adderall.\195\ Instead, he reported that he elected not to appear before the Florida Medical Board, asserting that he was not ``physically or legally'' fit to participate in such a hearing; and that as a result, after he refused to appear before the Florida Board, ``they adopted the charges and incorporated the police report as their findings.'' \196\ --------------------------------------------------------------------------- \194\ Gov't Ex. 34 at 9-10. \195\ Id. \196\ Id. at 10. --------------------------------------------------------------------------- During the hearing before me, Dr. Holder admitted using Adderall [[Page 71638]] immediately after accompanying Patient S.S. to fill the prescription on June 12, 2008, but did so ``because I wanted to stay alert.'' \197\ When asked ``Stay alert for what?'' Dr. Holder responded: ``Seeing patients. I wanted to be alert while I was seeing patients.'' When asked ``[s]o does that indicate to you then that you were in fact working on June 12, 2008 if you were taking Adderall?'' he responded ``If I took it, then I probably was working, yes.'' \198\ When asked to identify by name the source of Adderall other than the prescription he wrote for Patient S.S., Dr. Holder testified that he ``would rather not mention his name,'' and then asserted the source was a medical colleague, a physician's assistant, working at MD Now whose first name is William and whose last name Dr. Holder could no longer recall.\199\ He acknowledged, however, that he has never disclosed to the management at MD Now that they had an employee who was unlawfully distributing controlled substances.\200\ --------------------------------------------------------------------------- \197\ Tr. at 109. \198\ Id. at 109-10. \199\ Id. at 114-15. \200\ Id. at 118. --------------------------------------------------------------------------- When describing her interview of Dr. Holder (in the presence of Dr. Holder's attorney) during a meeting at the DEA on July 19, 2012, Diversion Investigator McKenna said that when she asked Dr. Holder about the bottle of Adderall found in his Cadillac immediately after the crash, [H]e said he said he had no knowledge of how the bottle got there. He suggested that law enforcement planted it. When I asked how would the police know to go to that particular individual and ask for that particular prescription, he said that the law enforcement was rifling through his cell phone and could have found his phone number in it, that he had a criminal history or criminal record. MR. LAWSON: Who had a criminal record? MS. MCKENNA: The patient on the bottle, SS. MR. LAWSON: So, he denied having any knowledge of how that bottle got in his car? MS. MCKENNA: He did deny it.\201\ --------------------------------------------------------------------------- \201\ Id. at 460-61. In a similar manner, Dr. Holder gave what appear to be inconsistent accounts to the Minnesota Medical Board and to me during the hearing, with respect to his past use of Adderall. At the outset, Dr. Holder wanted me to know that while he agreed with the written statement submitted to the Minnesota Board, what was written there was not his own work but was instead written by his attorney.\202\ Justifying his duplicity, Dr. Holder stated ``like I said before, I did not write this document. I signed it. I read it and signed it. So I can't tell you exactly what, you know, I meant on this document.'' \203\ --------------------------------------------------------------------------- \202\ Id. at 176. \203\ Id. --------------------------------------------------------------------------- Dr. Holder then acknowledged that the representation regarding his past use of Adderall appearing in his sworn statement to the Minnesota Board, dated August 8, 2011 was not true.\204\ There is, however, no evidence to date that Dr. Holder has ever brought this error to the attention of the Minnesota Board. --------------------------------------------------------------------------- \204\ Id. at 175-77 and Gov't Ex. 37 at 10-13. --------------------------------------------------------------------------- In his written statement to the Board, Dr. Holder makes reference to his past use of Adderall. Dr. Holder stated the following: It is true that, because of a stupid error of judgment, I did obtain improperly from a friend tablets of Adderall. I obtained Adderall only for the purpose of helping me stay alert during a period when I was working hard for many hours. I definitely do not have a ``drug problem,'' and have never had a history of anything even close to that. I realize and agree that what I did in obtaining the Adderall was wrong. I had never done that before and will never do it again.\205\ --------------------------------------------------------------------------- \205\ Gov't Ex. 37 at 12 (emphasis sic). When asked if he agreed that his statement that he had never used Adderall before was a lie, Dr. Holder first denied it was a lie, then reiterated that ``I don't understand what this things written [sic]. I have a problem with this because I've got, I'm, like I'm mentioning, this is not written by me.'' \206\ --------------------------------------------------------------------------- \206\ Tr. at 176-77. --------------------------------------------------------------------------- Under questioning by his attorney, Dr. Holder stated he knew diversion of prescription medications would be ``misusing my privilege to practice medicine and serve the community that I wish to serve,'' and said he would never divert medicine, under any circumstances.\207\ He said he's a changed man now, living a life that is different than the one he lived in 2008. Elaborating, he stated: --------------------------------------------------------------------------- \207\ Id. at 185. The way I've lived my life back then is very different from my life now, and I think one of the things that this whole opportunity has made me do, is really kind of surrender my will to my creator and I've always believed in, you know, Jesus Christ growing up, because that's what I learned. So as long as I've known myself, I've actually believed that Jesus was the Lord of all, etc. But I've never really surrendered my will, so being a very strong-willed person, I still kind of would do what I wanted to do, even though I would pray or go to church or whatever. And I think in this case, I've had to completely surrender my will and what I've found from this, is I have actually have reached a place of joy, advancement and completion. And going from the place where I lost everything, you know, with my trust and faith, has propelled me to the place where I am right now.\208\ --------------------------------------------------------------------------- \208\ Id. at 186. Dr. Holder explained that he currently works as a doctor practicing urgent care at Whittier Clinic, in a ``family medicine residency.'' \209\ He lives with his wife (who attended much of the evidentiary hearing) and the couple's three-month old daughter, spending a lot of time with them and with his parents, who are part of his ``support system.'' \210\ --------------------------------------------------------------------------- \209\ Id. at 187. \210\ Tr. at 187-88. --------------------------------------------------------------------------- Pursuant to orders from the Florida Board, Dr. Holder participated in monitoring and drug testing by Professional Resource Network, or PRN.\211\ According to Dr. Holder, PRN provides monitoring and testing ``to make sure people are providing competent medicine.'' \212\ The criminal charges arising from the 2008 crash were reinstated for prosecution, but ultimately those charges were dropped.\213\ The Florida Medical Board, however, did not end its inquiry, but instead in June 2009 it issued a final order indefinitely suspending Dr. Holder's license to practice medicine.\214\ Dr. Holder testified that after being enrolled in a court-sponsored drug monitoring program in Florida, he left the program, and has never completed it.\215\ --------------------------------------------------------------------------- \211\ Id. at 143-44. \212\ Id. at 144-45. \213\ Id. at 137-38. \214\ Id. at 139. \215\ Id. at 137. --------------------------------------------------------------------------- Dr. Holder explained that in November 2010 he submitted a petition to the Florida Medical Board, seeking reinstatement of his medical license.\216\ Included in that petition is the following description of Dr. Holder's status at the time of the petition, along with the requirements of PRN-based monitoring: \216\ Id. at 146. The related criminal matter has been referred for pre-trial intervention and Respondent is currently complying with the requirements for successfully completing the Circuit Court's requirements to avoid prosecution for those criminal charges. These requirements include successful completion of the Comprehensive Alcoholism Rehabilitation Program (CARP) as ordered by the Court. This is a program providing a continuum of care to individuals affected by alcoholism, drug dependency and co-occurring disorders and PRN is monitoring Respondent's participation in the CARP.\217\ --------------------------------------------------------------------------- \217\ Id. and Gov't Ex. 30 at 12. [[Page 71639]] --------------------------------------------------------------------------- Although from this description it appears Dr. Holder participated in monitoring by PRN and the CARP program, Dr. Holder elected not to complete the course of monitoring and refused to permit access to these records upon request by DEA Diversion Investigator.\218\ As a result, although he has been identified as a person affected by alcoholism, drug dependence and co-occurring disorders, Dr. Holder has effectively withheld from the Administrator records showing his treatment in Florida for these disorders. --------------------------------------------------------------------------- \218\ Tr. at 472, 479. --------------------------------------------------------------------------- The record reflects that the Florida Board, presumably having the benefit of PRN's full report of Dr. Holder's incomplete participation in CARP, did not grant Dr. Holder's request for an unconditional medical license.\219\ Instead, it required that for one year his practice be under direct supervision by a board certified physician who was to review all of Dr. Holder's prescriptions, and that his license be subject to a five year period of probation.\220\ --------------------------------------------------------------------------- \219\ Id. at 146. \220\ Id. and Gov't Ex. 30 at 2-5. --------------------------------------------------------------------------- Also before me is testimony from Brenda Joyce McGuire, M.D., who spoke in support of Dr. Holder's application. Dr. McGuire's association with Dr. Holder began in 2011, when she and Dr. Holder were volunteers at an organization that was at the time called the African and American Friendship Association for Cooperation and Development.\221\ She testified that she holds Dr. Holder ``in high esteem,'' and that he has always ``shown a lot of caring for the people that he works with, that his medical knowledge is extremely good, and that he's always displayed, you know, good character, integrity, [and] compassion.'' \222\ She added that ``Minnesota is becoming increasingly diverse, with large populations of immigrants and refugees. Dr. Holder, being of African descent, born in Africa and raised in this country, relates well culturally and even linguistically with a lot of the refugees . . . and immigrants that we have here.'' \223\ --------------------------------------------------------------------------- \221\ Tr. at 544. \222\ Id. at 546-47. \223\ Id. at 547. --------------------------------------------------------------------------- Dr. Holder also introduced the testimony of his mother, Wilhelmina Valerie Holder, M.D., a public health physician who currently serves as a community advocate who assists in decreasing ``health disparities'' and improving ``health equity.'' \224\ Dr. Holder described her son's account of the 2008 crash, stating that he ``couldn't remember much, but he remembered when he was getting the seizure, and a police reached in the car and hit him on his nose a couple of times.'' \225\ Given that this account was based on Dr. Wilhelmina Holder's recollection of what her son told her, and given the unreliable nature of Dr. Mark Holder's account of the circumstances attendant to the crash, I find I can give little weight to the testimony of Wilhelmina Holder's account of the crash or its aftermath.\226\ --------------------------------------------------------------------------- \224\ Id. at 552. \225\ Id. at 553. \226\ Id. at 553-54. --------------------------------------------------------------------------- Also testifying on behalf of the Respondent was Cidijah Rodney- Somersall, M.D., a pediatrician with a practice in Atlanta, Georgia.\227\ According to Dr. Somersall, --------------------------------------------------------------------------- \227\ Id. at 557. Mark is a very enthusiastic person who was very passionate about, or he's very passionate about medicine and patient care. He's someone who is, has great bedside manner. He's very charming, he has a love for people, and he always appeared to provide excellent patient care. He was very good in terms of gathering a full history, just finding about the patient, not only their medical problems, but socially. And I mean, I was always impressed by him as a medical student, the kind of care that he provided. He was bright, and he was a great medical student, and seemed to be a very good healthcare professional.\228\ --------------------------------------------------------------------------- \228\ Id. at 559. Also before me is the sworn statement of Jerome Potts, M.D., who is the Department Chief of Family and Community Medicine at the Whittier Clinic, Hennepin County (Minnesota) Medical Center.\229\ Dr. Potts avers Dr. Holder's service as an employee at the clinic in June 2012 has been subject to close monitoring, including random toxicology screening.\230\ Dr. Potts avers that he has personally closely supervised and monitored Dr. Holder, and states that Dr. Holder ``met all the conditions of his employment and at no point has he demonstrated a lapse in judgment or provided substandard care to patients.'' \231\ According to Dr. Potts, Dr. Holder --------------------------------------------------------------------------- \229\ Resp. Ex. T, admitted over Government objection, Tr. at 561-62. \230\ Resp. Ex. T at 1. \231\ Id. at 2. [I]s very diligent in documenting his charts and they are in compliance with all of our policies and procedures. His interaction with other staff and peers can be described as respectful, professional, and kind. I believe that his past issues have made him a more empathetic physician and colleague. He has earned my trust and that of his peers and patients. . . . I continue to trust Dr. Holder and am confident that he will continue to deliver quality medical care that is above reproach and meets all applicable standards.\232\ --------------------------------------------------------------------------- \232\ Id. It is not clear the extent to which Dr. Potts is familiar with Dr. Holder's past, as his statement was received in lieu of live testimony, and as such the Government was not able to cross examine this witness.\233\ Accordingly, while I give weight to Dr. Potts' description of Dr. Holder's current professional demeanor and performance, I cannot give weight to Dr. Potts' report that ``Dr. Holder shared details about the incident in Florida.'' \234\ As a result, while I can and do receive Dr. Potts' statement averring Dr. Holder's successful employment at Whittier Clinic, those statements do not constitute evidence of any acknowledgement of past misconduct by Dr. Holder, nor do they serve as evidence of remediation for that past misconduct. --------------------------------------------------------------------------- \233\ Id. at 561-62. \234\ Resp. Ex. T at 1. --------------------------------------------------------------------------- Dr. Holder presented live testimony of Laurie Kardon, M.D., who spoke in support of his application. Dr. Kardon worked with Dr. Holder at MD Now in 2007 and 2008, and said he had an excellent bedside manner when working there, and that ``[p]atients loved him'' for his ability to provide ``accurate diagnoses and treatment.'' \235\ Dr. Kardon testified: --------------------------------------------------------------------------- \235\ Tr. at 566-67. I trust his medical knowledge, I trust his judgment, I trust his judgment in taking care of patients and his treatment, and his follow-up with patients. I would trust him with my life and with the life of my family. As a person I knew him mostly in a professional capacity prior to his, his accident, and I visited him several times in the hospital, and with him and also got to know his family after his accident, from the hospital on forward, and am just as equally impressed with the hard work that he's done since his accident to regain, first, his life. That he survived that at all is miraculous, and just equally impressed with the work, the hard work that he has done to regain his personal and professional life.\236\ --------------------------------------------------------------------------- \236\ Id. at 568. Although testifying about Dr. Holder's good reputation, Dr. Kardon acknowledged that she was unaware that Dr. Holder admitted to having diverted controlled substances through other employees at MD Now.\237\ Further, her opinion is given less weight after considering the response she made to the Government's inquiry during cross-examination. Government's counsel predicated a question by stating what [[Page 71640]] had been established at this point in the hearing: --------------------------------------------------------------------------- \237\ Id. at 570. Mr. Lawson: I'm telling you that [Dr. Holder has] admitted to [having diverted controlled substances through other employees at MD Now] in court under oath, so you can assume it's true. . . . Does the fact that he's admitted to diverting and using controlled substances unlawfully through his employment at MD Now change your stated opinion as to how much you trust him and value his professional reputation? Dr. Kardon: It does not, because I don't think that's true.\238\ --------------------------------------------------------------------------- \238\ Id. at 569-70. Testifying on his own behalf, Dr. Holder sought to relate his history of conflicts with law enforcement officials, including his being repeatedly being shocked by a Taser during his encounter with first responders after the crash in 2008, and raising the claim that he had been arrested for trespassing in Minnesota under conditions he felt indicated improper police conduct.\239\ He also wanted to express how adversely he had been affected by the crash in 2008, fearing that he ``may never be able to function again'' but that, eschewing surgeries after the crash, he prayed, ``and I was delivered by all of them, step by step.'' \240\ --------------------------------------------------------------------------- \239\ Id. at 574-75; see also Gov't Ex. 37 at 10-11. \240\ Tr. at 578. --------------------------------------------------------------------------- Dr. Holder admitted to his past use of Adderall without a prescription, and to his past use of marijuana, but did so without providing specifics and without identifying a time period for this conduct.\241\ When asked whether he took responsibility for what happened in Florida, Dr. Holder again equivocated with respect to diversion of controlled substances: --------------------------------------------------------------------------- \241\ Id. at 579. I do take responsibility for the situation that happened in Florida. And there's a lot of things that I'm very unproud of, and the thing is, is I cannot remember diverting any medications with SS. I cannot remember and I honestly cannot remember how the medications got into the car, got into my car, but I do admit completely to using Adderall without prescriptions. And like I said, there's also a lot of my life that I'm not proud of, but I think that from there to now I've gone a long way, and I believe that I've displayed it through my actions.\242\ --------------------------------------------------------------------------- \242\ Id. at 590-91. Dr. Holder also pointed to his completion of the requirements imposed by the Minnesota Medical Board, but offered no apologies for failing to complete the PRN monitoring program in Florida--other than to assert that ``I really could not support myself in Florida anymore because the restrictions I had on my license.'' \243\ --------------------------------------------------------------------------- \243\ Id. at 581. --------------------------------------------------------------------------- Dr. Holder said one of the restrictions still in place at the clinic in Minnesota was imposed by his employer, in that his current employer has the right to drug test him for five years, adding that he has never failed a test since beginning at this place of employment.\244\ The record is silent, however, with respect to the presence of any other monitoring requirements. --------------------------------------------------------------------------- \244\ Id. at 588-89. --------------------------------------------------------------------------- Dr. Holder stated that if he had his DEA certificate of registration, ``I'd be able to moonlight'' and would not have the financial problems he currently is facing.\245\ When asked why I should recommend the DEA grant his application, Dr. Holder stated: --------------------------------------------------------------------------- \245\ Id. at 591. For one, I think that it's clear to me, and I want to make it clear to the Court again, that I've done some wrong things in the past and I've made some errors in the past, and I'm taking responsibility for the errors I've done. And since I've made these errors, I've worked diligently to the point where I am right now, complying with the things that I needed to comply with to get to this point. And so I deserve my DEA registration. I put the work in school, I'm a Board-Certified Family Medicine physician, and I've worked towards these things to this point. Number two, I think that the community actually needs me. I think that there's a need for family physicians and not only family physicians, but people that care for people, and I fall into that category where I care for people and I'll do the best job that I can to help people. And number three, partly because of this situation as well, I am at no risk of diverting medicines, and I will be clear to say that I would never, in no circumstance would I divert medications to anybody else or myself.\246\ --------------------------------------------------------------------------- \246\ Id. at 592-93. --------------------------------------------------------------------------- Analysis Four material factual premises compel the ultimate finding required in this case. First, the record now before the Administrator demonstrates that Dr. Holder has a history of noncompliance with laws regulating controlled substances renders restoring to him a DEA Certificate of Registration inconsistent with the public interest. Second, Dr. Holder's history of false representation to professional boards and law enforcement authorities calls into question whether he can be entrusted with the authority to prescribe controlled substances. Third, there is substantial evidence that Dr. Holder made a material misstatement when applying for his DEA Certificate of Registration in 2012. And fourth, while there is some evidence of Dr. Holder's efforts at remediation, that evidence does not, by at least preponderance, overcome the Government's demonstration that granting a Certificate of Registration would be inconsistent with the public interest. Much of what has been presented by the Administrator in the Order to Show Cause is uncontroverted. Dr. Holder acknowledged that there were no factual disputes regarding the facts appearing in paragraphs two through six of the Order.\247\ Independent of Respondent's admissions, the Government presented preponderant evidence establishing that Dr. Holder improperly prescribed Percocet and Xanax to Patient S.S., then used Patient S.S. in order to illegally obtain sixty Adderall tablets, then, while under the influence of marijuana and amphetamines, caused an automobile crash that seriously injured himself and his passenger. --------------------------------------------------------------------------- \247\ Respondent's Written Closing Statement at 11. --------------------------------------------------------------------------- The Government further established a history of professional disciplinary action against Dr. Holder in Florida and Minnesota, throughout which Dr. Holder gave false and misleading information to the state investigators, and followed that by providing a materially false answer regarding that history when applying for a Certificate of Registration from the DEA. Throughout the proceedings before me, Dr. Holder has provided inconsistent and evasive responses to questions presented by the Government, calling into question whether even now the Administrator has a complete record of Dr. Holder's history of misconduct. There is substantial evidence that Dr. Holder obtained the restoration of his unrestricted state medical license by providing incomplete and misleading evidence to the Minnesota Board of Medical Practice. There is also evidence that Dr. Holder unilaterally terminated his participation in a monitoring program required of him by the Florida Board of Medicine, without completing the five-year period of Board-ordered probation and without completing the steps required by that Board to ensure his rehabilitation prior to his return to practice in Florida. Similarly, evidence of rehabilitation in the program established in Minnesota is lacking, as that program was based on a less than forthright description of Dr. Holder's illegal and improper conduct in Florida. Elements of a Prima Facie Case This administrative action began when the DEA's Administrator, through her Deputy Administrator, issued an Order proposing to deny Dr. Holder's application for a DEA Certificate of [[Page 71641]] Registration.\248\ The Order alleged that granting Dr. Holder's application would be inconsistent with the public interest, as that term is used in sections 823(f) of Chapter 21 of the United States Code.\249\ Independent of this basis for denying the application, the Government also proposes to deny the application pursuant to sections 824(a)(1) and 824(a)(4) of Chapter 21 of the United States Code,\250\ based on the material misrepresentation appearing in the March 7, 2012 application regarding whether Dr. Holder's professional license has ever been suspended or limited.\251\ Thus, in order to deny Dr. Holder's application, the Government has the burden of establishing, by at least a preponderance of the evidence, that either (1) allowing Dr. Holder to issue prescriptions for controlled substances would be contrary to the public interest; or (2) Dr. Holder submitted an application for a Certificate of Registration that included a material misrepresentation of fact; or both.\252\ --------------------------------------------------------------------------- \248\ A.L.J. Ex. One. \249\ 21 U.S.C. 823. \250\ 21 U.S.C. 824 Denial, revocation, or suspension of registration (a) Grounds--a registration pursuant to section 823 of this title to manufacture, distribute, or dispense a controlled substance or a list I chemical may be suspended or revoked by the Attorney General upon a finding that the registrant--(1) has materially falsified any application filed pursuant to or required by this subchapter or subchapter II of this chapter; . . . [or] (4) has committed such acts as would render his registration under section 823 of this title inconsistent with the public interest. \251\ A.L.J. Ex. One at 1. \252\ 21 U.S.C. 823(f); 21 CFR 1301.44(d)-(e); see also Steadman v. SEC, 450 U.S. 91, 100-01 (1981). --------------------------------------------------------------------------- While the burden of establishing that granting a Certificate of Registration application would contravene the public interest never shifts from the Government, once the Government meets this burden, Dr. Holder has the opportunity to present evidence that he accepts responsibility for his misconduct, and has taken appropriate steps to prevent misconduct in the future.\253\ --------------------------------------------------------------------------- \253\ Marc G. Medinnus, D.D.S., 78 FR 62683-01, 62691-93 (DEA October 22, 2013). --------------------------------------------------------------------------- Regarding the first of these two bases for denying Respondent's application, under the registration requirements found in 21 U.S.C. 823(f), the Administrator is expected to consider five factors in determining the public interest when presented with the actions of a physician seeking to prescribe controlled substances These factors are: (1) The recommendation of the appropriate State licensing board or professional disciplinary authority. (2) The applicant's experience in dispensing, or conducting research with respect to controlled substances. (3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances. (4) Compliance with applicable State, Federal, or local laws relating to controlled substances. (5) Such other conduct which may threaten the public health and safety.\254\ --------------------------------------------------------------------------- \254\ 21 U.S.C. 823(f). Any one of these factors may constitute a sufficient basis for denying an application for a Certificate of Registration.\255\ Any one or a combination of factors may be relied upon, and when exercising authority as an impartial adjudicator, the Administrator may properly give each factor whatever weight she deems appropriate in determining whether an application should be rejected.\256\ Moreover, although the Administrator is obliged to consider all five of the public interest factors, she is ``not required to make findings as to all of the factors.'' \257\ The Administrator also is not required to discuss each factor in equal detail, or even every factor in any given level of detail.\258\ The balancing of the public interest factors ``is not a contest in which score is kept; the Agency is not required to mechanically count up the factors and determine how many favor the Government and how many favor the registrant. Rather, it is an inquiry which focuses on protecting the public interest.'' \259\ --------------------------------------------------------------------------- \255\ Robert A. Leslie, M.D., 68 FR 15227-01, 15230 (DEA March 28, 2003). \256\ Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005); JLB, Inc., d/b/a Boyd Drugs, 53 FR 43945-02, 43947 (DEA October 31, 1988); see also David E. Trawick, D.D.S., 53 FR 5326-01, 5327 (DEA February 23, 1988); see also David E. Trawick, D.D.S., 53 FR 5326- 01, 5327 (DEA February 23, 1988). \257\ Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see also Morall v. DEA, 412 F.3d at 173-74 (D.C. Cir. 2005). \258\ Trawick v. DEA, 861 F.2d 72, 76 (4th Cir. 1988). \259\ Jayam Krishna-Iyer, M.D., 74 FR 459-01, 462 (DEA January 6, 2009). --------------------------------------------------------------------------- Factor One--Recommendations of the State Licensing Board In its post-hearing brief, the Government argues that ``Factors One, Two, Four and Five militate against the issuance of a DEA Registration to Respondent.'' \260\ It then modifies this argument slightly, asserting only that when considering the evidence under Factor One, ``the decisions of the Florida and Minnesota Medical Boards should be given nominal weight.'' \261\ --------------------------------------------------------------------------- \260\ Government's Proposed Findings of Fact and Conclusions of Law at 29. \261\ Id. at 34. --------------------------------------------------------------------------- I find the actions of state medical regulators in Minnesota and Florida, although not cast as ``recommendation[s],'' establish a basis for finding that Dr. Holder's application should be denied. Factor One considers ``[t]he recommendation of the appropriate State licensing board or professional disciplinary authority.'' \262\ Although the recommendation of the applicable state medical board is probative of Factor One, the Administrator possesses ``a separate oversight responsibility with respect to the handling of controlled substances'' and therefore must make an ``independent determination as to whether the granting [or revocation] of [a registration] would be in the public interest.'' \263\ In the exercise of that ``separate oversight responsibility,'' the Administrator may regard as probative of the public interest an applicant's experience before state medical boards. --------------------------------------------------------------------------- \262\ 21 U.S.C. 823(f). \263\ Mortimer B. Levin, D.O., 55 FR 8209-01, 8210 (DEA March 7, 1990). --------------------------------------------------------------------------- I note the legal premise, presented by the Government in its post- hearing brief, that the decisions of state medical boards regarding a licensee's ability to practice medicine in the jurisdiction of those boards ``are not in any sense an official recommendation regarding this proceeding's outcome.'' \264\ I agree. There is in this record no express recommendation directed to the DEA by any medical board, either in support of or in opposition to, granting Respondent a DEA Certificate of Registration. --------------------------------------------------------------------------- \264\ Government's Proposed Findings of Fact and Conclusions of Law at 30 (quoting Gregory D. Owens, D.D.S., 74 FR 36751-01, 36755 (DEA July 24, 2009)). --------------------------------------------------------------------------- Instead, the parties have acknowledged by stipulation that the Florida Department of Health issued an Emergency Suspension of Respondent's license to practice medicine on January 26, 2009 and filed an Administrative Complaint against Respondent on February 13, 2009.\265\ The Florida Board of Medicine issued a final Order indefinitely suspending Respondent's medical license on June 19, 2009.\266\ The parties further stipulated that Respondent filed for reinstatement of his Florida medical license on November 8, 2010, and the Florida Board of Medicine reinstated Respondent's medical license pursuant to numerous restrictions, terms and conditions on December 16, 2010, but that thereafter, Respondent voluntarily [[Page 71642]] surrendered his Florida medical license on March 3, 2011.\267\ --------------------------------------------------------------------------- \265\ A.L.J. Ex. 31 at 2. \266\ Id. \267\ Id. --------------------------------------------------------------------------- Also before me is the parties' stipulation that on March 25, 2011, Respondent applied for a medical license from the Minnesota Board of Medical Practice (BMP); that by letter dated June 21, 2011, Respondent was informed that the BMP's Licensure committee intended to recommend denial of Respondent's application.\268\ By letter dated August 9, 2011, Respondent's then-counsel requested reconsideration before the BMP.\269\ This letter included an affidavit from respondent as well as several enclosures.\270\ By letter dated September 26, 2011, the Minnesota BMP requested Respondent's personal appearance before the Licensure Committee to discuss his application to practice medicine, and after Respondent appeared before the Licensure Committee and discussed his use of controlled substances that had not been prescribed for him, on November 12, 2011, Respondent was granted a restricted, conditional license to practice in Minnesota, and one year later Respondent was granted an unrestricted license to practice medicine in Minnesota.\271\ --------------------------------------------------------------------------- \268\ Id. \269\ Id. at 3. \270\ Id. \271\ Id. --------------------------------------------------------------------------- My concern with respect to evidence relating to the licensure actions taken by the medical boards in Florida and Minnesota rests not so much with their ultimate decisions, but with the process that led to those decisions being made. The Government is correct, in my view, in proposing that Respondent's misrepresentations to these boards call into question whether the actions taken by these regulators would be the same had they been told the same things Dr. Holder reported as true during this administrative process. The Government's identification of the nature of these misrepresentations accurately reflects the many ways in which the two state medical boards were acting with less than a complete and accurate record due to Dr. Holder's duplicity.\272\ Those misrepresentations regarding Dr. Holder's ability to recall what happened immediately preceding the June 2008 crash, his description of his history of abusing marijuana and Adderall, and his description of the nature of his injuries and those of his passenger, all threaten the integrity of the administrative process by which the Florida and Minnesota boards performed their assessments of Dr. Holder's fitness to practice medicine in those states. Accordingly, nothing in our record supports a finding that the elements of Factor One warrant a conclusion that granting Respondent's application would be consistent with the public interest. --------------------------------------------------------------------------- \272\ See Government's Proposed Findings of Fact and Conclusions of Law at 31-33 and citations to the record therein. --------------------------------------------------------------------------- Factor Two--Dispensing Experience With respect to Factors Two and Four, the Government in its post- hearing brief addresses both factors together.\273\ I think the better practice is to examine Factors Two and Four separately. Under 21 U.S.C. 823(f)(2) (Factor Two), the Administrator is required to consider ``experience in dispensing, or conducting research with respect to controlled substances.'' \274\ --------------------------------------------------------------------------- \273\ Id. at 34-35. \274\ In this context, ``dispensing'' is defined as ``deliver[ing] a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance and the packaging, labeling or compounding necessary to prepare the substance for such delivery. The term `dispenser' means a practitioner who so delivers a controlled substance to an ultimate user or research subject.'' 21 U.S.C.A. Sec. 802(10). --------------------------------------------------------------------------- This provision calls for an examination of a prescription writer's familiarity with the complexities associated with dispensing controlled substances under the Controlled Substances Act. Where, from the evidence, it appears a prescribing source's conduct, training, or credentials (i.e., his or her experience) creates in the Administrator's mind a substantial concern regarding the source's prescription practice, Factor Two requires the Administrator to examine such conduct, training and credentials. The purpose of such an examination is not limited to only those instances where the source violated a provision of controlled substance law. Were that the purpose of 21 U.S.C. 823(f)(2), Factors Two and Four would be duplicative, and Factor Two would have no meaning distinct from that of Factor Four. By Factor Two's plain language, Congress called for more than a mere consideration of violations of controlled substance laws when the Administrator engages in a review under Factor Two. In my view, evidence of deficiencies in an applicant's conduct, training, or credentials could support a finding that the public interest would not be well-served by permitting the applicant to prescribe controlled substances, even if there was no showing that the conduct amounted to a violation of laws relating to the distribution of controlled substances. Accordingly, in the analysis that follows, evidence pertaining to Factors Two and Four will be addressed separately. The record before me includes very little evidence regarding Dr. Holder's experience dispensing controlled substances. By training, he noted experience in clinical settings here and abroad that suggest a deep understanding of the medical needs of the poor. As Dr. Kardon noted in her correspondence with the Minnesota Board of Medical Practice, Dr. Holder ``is committed to the humanitarian goal of improving healthcare for the poor and underserved.'' \275\ --------------------------------------------------------------------------- \275\ Gov't Ex. 37 at 5. --------------------------------------------------------------------------- Most of his reported experience to date, however, appears to have had little to do with prescribing controlled substances. After successfully completing his residency, Dr. Holder continued to gain experience in a clinical practice in fields not generally associated with dispensing controlled substances, including service as the program coordinator for African and American Friendship Association for Cooperation and Development, which involved planning and implementing curriculum for the Foreign Trained Health Care Professional--Medical English program; service as the founder of Land Pilot, Inc. in Crozierville, Liberia, developing ``a conglomerate of various enterprises recognized for superior quality of services and products in Liberia'' in 2009; service as founder of M.B.H. Wellness Report, which developed ``a holistic approach to increase both the quantity and quality of life in a nontraditional medical setting'' in 2009; service as founder of Liberian Initiative for Enrichment in Monrovia, Liberia, where he developed an institution that ``conducts clinical research specifically for African American pollution globally''; service from 2009 to 2010 as chairman of the board of Bentol Development Association, ``assisting in the economic, medical, and social planning for the development'' of his mother's hometown in Liberia; and service from 2006 to 2008 as founder and president of Mperial Health PA in Miami, Florida, ``operating healthcare consultation and providing medical services through emergency home visits, urgent care centers, and wellness training.''\276\ --------------------------------------------------------------------------- \276\ Id. at 29. --------------------------------------------------------------------------- From this record, the most significant post-graduate prescribing experience attributed to Dr. Holder is that which he obtained while working at MD Now for seven months \277\ and while serving in [[Page 71643]] his family medicine residency at the University of Miami from 2004 to 2007. Even here, however, while this experience includes training in critical care and emergency medicine (both of which may emphasize the use of controlled substances), the residency reflects a curriculum that was not concentrated in a practice requiring the dispensation of controlled substances, including emphases in infectious diseases, pediatrics, ``wards'' medicine, and women's health. Thus, while Dr. Holder's experiences as an independent contractor at MD Now and parts of his residence do suggest experience in dispensing controlled substances, the overall arc of his practice has not been one that would support a finding that his experience in dispensing controlled substances is substantial. --------------------------------------------------------------------------- \277\ Tr. at 120. --------------------------------------------------------------------------- The record also establishes, through the testimony of Dr. Holder and Patient S.S., that Dr. Holder entered the world of drug dealers, using his experience and his association with Patient S.S. to acquire cocaine and marijuana on a regular basis. As a result of his association with Patient S.S., Dr. Holder is not only knowledgeable in the ways and means used to acquire illicit controlled substances; he is now personally experienced in those ways and means. Coupling this character of experience with the negative features of his experience arising out of his improper prescription practice, discussed below in the analysis of Factor Four, I find the Government has presented under Factor Two preponderant evidence establishing that granting Respondent a DEA Certificate of Registration would be inconsistent with the public interest. Factor Three--Conviction Record Under Factor Three the Administrator is to consider an applicant's conviction record under federal or state laws relating to the manufacture, distribution, or dispensing of controlled substances.\278\ Neither the Government nor Respondent has raised any claims pertaining to Factor Three, and there is no evidence that Dr. Holder has been convicted of any laws related to dispensing controlled substances. Accordingly, Factor Three does not serve as a basis for granting or denying Respondent's application for a DEA Certificate of Registration. --------------------------------------------------------------------------- \278\ 21 U.S.C. 823(f)(3). --------------------------------------------------------------------------- Factor Four--Compliance With Applicable Laws Under Factor Four, the Administrator may consider evidence regarding ``[c]ompliance with applicable state, federal, or local laws relating to controlled substances.'' \279\ ``A prescription for a controlled substance is unlawful unless it has been issued for a legitimate medical purpose by an individual practitioner acting in the usual course of professional practice.'' \280\ Departing from the usual course of professional practice can have profound negative consequences. Here, by acknowledging the truth of those facts appearing in paragraphs two through six in the Order to Show Cause, Dr. Holder has acknowledged in his post-hearing brief that the record establishes by preponderant evidence that he failed to comply with applicable law relating to controlled substances.\281\ Upon such evidence the Government has demonstrated that granting Respondent's application would not be in the public interest, and has therefore established a legally sufficient basis for the Administrator to deny this application under Factor Four. --------------------------------------------------------------------------- \279\ 21 U.S.C. 823(f)(4). \280\ Sun & Lake Pharmacy, Inc., D.B.A. The Medicine Shoppe, 76 FR 24523-02, 23530 (DEA May 2, 2011). \281\ Respondent's Written Closing Statement at 11. --------------------------------------------------------------------------- Factor Five--Other Conduct In its post-hearing brief, the Government urges that the Administrator make an adverse finding under Factor Five, based on Dr. Holder's ``complete and utter lack of candor'' to the DEA and to state regulators.\282\ Factor Five calls for the Administrator to consider the public interest in the context of ``[s]uch other conduct which may threaten the public health and safety.'' \283\ A history of substance abuse, coupled with a pattern of obstructing and misleading governmental officials when the abuse created significant problems for Dr. Holder, is evidence of conduct that may threaten the public health and safety. --------------------------------------------------------------------------- \282\ Government's Proposed Findings of Fact and Conclusions of Law at 37. \283\ 21 U.S.C. 823(f)(5). --------------------------------------------------------------------------- In discussing Factor Five, I exclude for the moment my assessment of the evidence pertaining to the DEA application filed by Dr. Holder. Making a material misrepresentation in a DEA application is conduct that falls within the scope of 21 U.S.C. 824(a)(1), and as such it is beyond the scope of Factor Five and will be addressed below. The Factor Five concerns that are raised in this record arise when we examine Dr. Holder's conduct before the state medical boards, his behavior during the DEA investigation into his application, and his conduct before me during the evidentiary hearing. If I accept as true Dr. Holder's claim that because of his injuries he recalled none of the details of the 2008 automobile crash, I can only conclude Dr. Holder intentionally misled the Minnesota Medical Board when he stated, under oath, that neither he nor his passenger ``was seriously hurt from the accident.'' \284\ Nothing from the records pertaining to that crash, including the police report and records created in N.P.'s lawsuit seeking damages for injuries she sustained in that crash, would have supported Dr. Holder's description of the consequences of the crash. --------------------------------------------------------------------------- \284\ Gov't Ex. 37 at 10. --------------------------------------------------------------------------- Similarly, his inconsistent testimony regarding his history of drug use, his professed inability to recall where he obtained illicit supplies of controlled substances, his use of deflection and non- responsive answers during the hearing, and his refusal to provide DEA Diversion Investigator McKenna complete copies of his treatment and monitoring at PRN and HPSP after repeated requests for the same, all constitute preponderant evidence of ``other behavior'' warranting a finding that registration would be inconsistent with the public interest under Factor Five. Material Falsification of a DEA Registration Application The record establishes that when he submitted his DEA application for registration on March 7, 2012, Dr. Holder falsely represented his medical licenses had never been suspended, denied, or restricted. ``Just as materially falsifying an application provides a basis for revoking an existing registration without proof of any other misconduct, see 21 U.S.C. 824(a)(1), it also provides an independent and adequate ground for denying an application.'' \285\ Thus, I can and do recommend denying Dr. Holder's application based on the false information he provided in his March 7, 2012 application, irrespective of the Government's claim that his registration is not consistent with the public interest. --------------------------------------------------------------------------- \285\ The Medicine Shoppe Pharmacy, 74334-01, 74338 (DEA December 31, 2007). --------------------------------------------------------------------------- In his post-hearing brief, Dr. Holder argues that the misrepresentation was not ``material,'' and that as such there was no violation of 21 U.S.C. 824(a)(1).\286\ In support, Dr. Holder asserts that the false answer ``was not capable of influencing the agency. Answering the liability questions in the negative does not grant an applicant a favorable response; it leads to [[Page 71644]] verification by a registration specialist. It is the findings of the registration specialist that has the capacity to influence the agency.'' \287\ --------------------------------------------------------------------------- \286\ Respondent's Written Closing Statement at 6. \287\ Id. at 7. --------------------------------------------------------------------------- The factual predicate for this argument is that when an application is filed with the DEA, a registration specialist employed by the DEA checks to see if the applicant's medical license has been subject to adverse action by any state medical licensing board. Dr. Holder correctly notes that in her testimony, Diversion Investigator McKenna explained that when her office receives an application for registration, a registration specialist working at the office queries the state boards to determine if there any board actions present online.\288\ Because the office she works at covers Minnesota and North Dakota, the specialist used the Internet to check the records maintained by the medical boards of those two states.\289\ When the specialist discovered board action in Minnesota, she was, by internal office policy, unable to proceed on her own, and instead had to forward the application to a Diversion Investigator to investigate.\290\ --------------------------------------------------------------------------- \288\ Tr. at 444. \289\ Id. \290\ Id. --------------------------------------------------------------------------- According to Investigator McKenna, when Dr. Holder's application was brought to her attention (after the specialist determined there was a disciplinary record regarding Dr. Holder in the records of the Minnesota Board), she too checked the Board's online records.\291\ In this way, she not only found evidence of Board action in Minnesota, but those records referred to Board action in Florida, leading Investigator McKenna to learn about the Florida Board's suspension of Dr. Holder's license and his subsequent surrender of the same.\292\ --------------------------------------------------------------------------- \291\ Id. at 453. \292\ Id. at 453-54. --------------------------------------------------------------------------- In his argument, Dr. Holder correctly posits that the Government ``has to show that the applicant provided false information in his/her application and that the false information provided is material.'' \293\ He also correctly posits that a false statement is ```material' if it has a natural tendency to influence or was capable of influencing the decision making body to which it is addressed.'' \294\ I reject as without merit his conclusion, however, that because a registration specialist reviews these applications, it was only the specialist who has ``the capacity to influence the agency,'' \295\ and that Dr. Holder's false response to Question Three was therefore not material. --------------------------------------------------------------------------- \293\ Respondent's Written Closing Statement at 6. \294\ Id. (citing The Medicine Shoppe Pharmacy, 72 FR 74334-01, 74338 (DEA December 31 2007)). \295\ Respondent's Written Closing Statement at 6-7. --------------------------------------------------------------------------- As the Government sufficiently points out in its post-hearing brief, ``[a]nswers to the liability question[s] are always material because DEA relies on the answers to these questions to determine whether it is necessary to conduct an investigation prior to granting an application.'' \296\ I find substantial evidence supports the factual premise presented by the Government, that Respondent's false answer to Question Three was ``designed to shield Respondent's DEA application from the same troubling scrutiny that his application for a Minnesota medical license was subject to.'' \297\ Put differently, when Dr. Holder's former attorney, Mr. Harbison, asked Investigator McKenna the rhetorical question, ``why would [Dr. Holder] lie when he knew it was public record?'', the answer is that by doing so, Dr. Holder could hope to obtain a DEA Certificate of Registration, if no one at the DEA checked to confirm the truth of his answers.\298\ --------------------------------------------------------------------------- \296\ Government's Proposed Findings of Fact and Conclusions of Law at 29-30 (emphasis added sic) (quoting Theodore Neujahr, D.V.M., 65 FR 5680-01, 5681 (DEA February 4, 2000)). \297\ Government's Proposed Findings of Fact and Conclusions of Law at 30. \298\ Tr. at 463. --------------------------------------------------------------------------- The evidence further establishes that Dr. Holder's decision to answer Question Three in the negative was intentional. When given the opportunity to explain his response to this question during Investigator McKenna's meeting with him, Dr. Holder reviewed the language in Question Three, and underlined the first word, ``surrendered'' to indicate he answered in the negative after reading just this part of the question.\299\ There is, however, no evidence suggesting he was unaware of the rest of the words in the question, nor that he sought any guidance with respect to the meaning of the words used in the question. The question is not of such complexity that a person of ordinary intelligence would have difficulty understanding each of its terms; and the circumstances attendant to filling out such an application are not so alien as to suggest persons filling out the application would not know they needed to read the entire text of each question before answering the same. From the testimony presented and the documentary evidence now before me, I find substantial preponderant evidence establishing Dr. Holder submitted an application for registration that he knew contained materially false information. --------------------------------------------------------------------------- \299\ Id. at 463-64. --------------------------------------------------------------------------- I am mindful that denial of an application may be appropriate based on an unintentional falsification, as noted in Dr. Holder's post- hearing brief.\300\ Thus, if the Administrator were persuaded that the record before her does not support a finding of intentional falsification, denial of the application would still be available, provided she recognize that ``intent to deceive is a relevant consideration in determining whether a registrant or applicant should possess a DEA registration.'' \301\ I find this step to be superfluous, given that from the evidence before me I find Dr. Holder purposefully answered as he did, intending on obtaining his best chance at securing a DEA registration without disclosing his past disciplinary experiences. --------------------------------------------------------------------------- \300\ Respondent's Written Closing Statement at 6 (citing Darryl J. Mohr, M.D., 77 FR 34998 (DEA June 12, 2012)). \301\ Respondent's Written Closing Statement at 6 (citing Darryl J. Mohr, M.D., 77 FR 34998-01, [35013] (DEA June 12, 2012)) (quoting Rosalind A. Cropper, M.D., 66 FR 41040-02, 41048 (DEA August 6, 2001)). --------------------------------------------------------------------------- Evidence of Remediation Where the Government has established by at least a preponderance of the evidence that granting an application for a Certificate of Registration is not in the public interest, the applicant has the ability to present evidence of remediation. Mitigating evidence relevant to these proceedings generally includes two elements: An acknowledgement of responsibility by the applicant, and evidence of corrective measures taken by the applicant. From the evidence before me, however, I find insufficient evidence to establish the presence of remediation efforts that would mitigate adverse findings based on Factors One, Two, Four and Five. Dr. Holder testified that ``I've had to completely surrender my will and what I've found from this, is I have actually have reached a place of joy, advancement and completion.'' \302\ I have no reason to doubt this claim, but neither can I use this claim to support a recommendation in Dr. Holder's favor. --------------------------------------------------------------------------- \302\ Tr. at 187. --------------------------------------------------------------------------- The most probative evidence of Dr. Holder's efforts to address any drug abuse problems he may have had would have come from the reports by monitors in the Florida PRN program and Minnesota's HPSP program. Even as he insists he has and had no drug abuse problem, the evidence of drug abuse associated with the 2008 crash, his abuse of marijuana and cocaine prior to [[Page 71645]] the crash, and his adamant determination to deflect and minimize the adverse impact of his drug use are all both abundant and troubling. Dr. Holder has thwarted a complete review of the steps he has taken (or has failed to take) by refusing Investigator McKenna's request for releases that would allow the DEA to see the PRN and HPSP reports. We have what appears to be only part of the report maintained by HPSP, and none of the report by PRN. In the absence of such evidence, I cannot find Respondent has established by at least preponderant evidence that he has accepted responsibility for his wrong-doing and has put in place effective corrective measures that would guard against future misconduct. Findings of Fact 1. On March 7, 2012, Respondent, Mark William Andrew Holder, M.D., submitted an application for a DEA Certificate of Registration to handle controlled substances. 2. Respondent previously held DEA Certificate of Registration BH9956232, issued on November 21, 2007, with a registered address of 221 164th Street NE., Suite 329, North Miami Beach, Florida. This registration expired by its own terms on October 31, 2009. 3. On June 4, 2008, Respondent saw Patient S.S., a 25 year old male, at the MD Now Urgent Care Centers Royal Palm Beach facility. This was Patient S.S.'s initial encounter with Respondent in Respondent's professional capacity and Patient S.S.'s first visit of any kind to MD Now. Respondent prescribed Patient S.S. Percocet and Xanax, allegedly for back pain. The records of this visit indicate that Respondent failed to document a complete medical history and physical examination and that he failed to determine either the nature or the intensity of the patient's pain and the nature of the patient's current and past treatment for pain. Patient S.S. reported to Respondent that he was currently taking Percocet, Flexeril, and Xanax, yet the records contained no indication that Respondent inquired as to the identity of who previously treated and prescribed to the patient for his alleged back pain and anxiety issues. Respondent's brief treatment records indicate a diagnosis of ``disc degeneration'' despite the complete absence of any indication that Respondent reviewed any imaging studies or prior medical records to support this diagnosis. 4. Respondent's prescriptions for Percocet and Xanax issued on June 4, 2008 to Patient S.S. were issued outside the usual course of professional practice and for other than a legitimate medical purpose. 5. On June 11, 2008, Respondent issued a handwritten prescription to Patient S.S. for 60 tablets of 30 mg Adderall, a Schedule II controlled substance. The prescription indicates that Respondent issued the prescription from MD Now's Lake Worth, Florida facility, located at 4570 Lantana Road. MN Now has no medical records or any other documentation of Patient S.S.'s visit on June 11, 2008, nor is there any record of the issuance of this prescription. Respondent wrote the prescription without conducting an examination, without making a diagnosis for any condition necessitating the prescription, and without documenting the fact that Respondent had prescribed Adderall for this patient. 6. Respondent's prescription for Adderall issued on June 11, 2008 to Patient S.S. was issued outside the usual course of professional practice and for other than a legitimate medical purpose. 7. Respondent directed Patient S.S. to deliver the filled Adderall prescription back to him, for his own personal use. Patient S.S. complied with this direction, diverting the prescription to Respondent, who then exercised control over the filled prescription. 8. On June 13, 2008, at approximately 2:57 a.m., Respondent drove his Cadillac over a median, across three lanes of oncoming traffic into a street sign and concrete light pole, severely injuring himself and a passenger, N.P. The vial of Adderall Patient S.S. obtained from the prescription Respondent issued was located in Respondent's vehicle, with 41 of the 60 tablets remaining. Respondent's blood subsequently tested positive for amphetamines and marijuana, resulting in Respondent's arrest for driving under the influence of amphetamines and marijuana, driving on a suspended license, and obtaining amphetamines by fraud. 9. By an Order of Emergency Suspension dated January 26, 2009, the State of Florida Department of Health suspended Respondent's license to practice medicine in Florida. It did so after finding Respondent violated Section 458.331(1)(r), Florida Statutes, which prohibited Respondent from prescribing or administering controlled substances to himself. It also found Respondent violated Section 458.331(1)(q), Florida Statutes, which prohibited Respondent from prescribing Adderall to a patient without conducting an examination, without making a diagnosis for any condition necessitating the prescription, and without documenting that he had prescribed Adderall for the patient or providing a justification for the prescription. It also found Respondent violated Section 458.311(1)(cc), Florida Statutes, by prescribing Adderall for purposes other than those authorized by that Section, after determining that Respondent wrote an Adderall prescription for Patient S.S., who then filled the prescription and upon being reimbursed for the cost of the prescription delivered to Respondent the filled prescription for Respondent's own use. 10. By a Stipulation and Order dated November 12, 2011, the Minnesota Board of Medical Practice issued a restricted medical license to Respondent, upon its review of a report of chemical abuse and diversion of controlled substances for Respondent's own use. Under the terms of the Stipulation and Order, Respondent was authorized to practice medicine in Minnesota only upon agreeing to (1) participate in the Health Professionals Services Program for at least one year and complying with all of the requirements of that program; (2) submit to a minimum of six unannounced biological fluid screens per quarter; (3) execute a release authorizing the Program to release a copy of Respondent's monitoring plan to the Board; (4) practice only in a setting approved in advance by the Board; and (5) obtain a supervising physician who shall provide quarterly reports to the Board. 11. On March 7, 2012, Respondent submitted the application for a DEA Certificate of Registration to handle controlled substances under Schedules 2, 2N, 3, 3N, 4 and 5, identifying the business location as 2810 Nicollet Avenue South, Minneapolis, Minnesota 55408-3160. In this application, when asked ``Has the applicant ever surrendered (for cause) or had a state professional license or controlled substance registration revoked, suspended, denied, restricted, or placed on probation, or is any such action pending?'' Respondent falsely answered ``No'' to this question. 12. In the course of investigating the circumstances surrounding state medical board action pertaining to Respondent's medical licenses in Florida and Minnesota, DEA Diversion Investigator Virginia McKenna met with or spoke with Respondent on several occasions between July 19, 2012 and August 23, 2013. Throughout this period, Investigator McKenna made repeated requests for Respondent to provide the DEA with copies of [[Page 71646]] monitoring and treatment records reflecting action by the medical boards in Florida and Minnesota. Initially, and for a period extending more than six months, Respondent deferred complying with these requests while assuring Investigator McKenna he would comply. By April 2013, when the records still had not been produced, Investigator McKenna presented Respondent with release forms that would authorize the DEA to receive copies of these reports. Respondent refused to sign the releases, and advised Investigator McKenna that he would not permit the DEA access to the PRN report from Florida, and gave her what appears to be an incomplete set of records reflecting the report from Minnesota. 13. In meetings and conversations conducted by DEA Diversion Investigators McKenna, Jack Henderson, and Joseph Cappello, Respondent gave evasive and conflicting answers to questions regarding his history of drug abuse, his use and abuse of marijuana and Adderall, the sources supplying him with controlled substances, his ability to recall the events immediately prior to and after the June 13, 2008 crash, the nature and severity of injuries he and his passenger sustained due to the crash, his use of controlled substances while working at MD Now, and his reasons for answering registration application Question Three in the negative. He provided similarly evasive and conflicting answers to questions presented to him by the medical boards in Florida and Minnesota, particularly minimizing the severity of injuries he and his passenger sustained in the June 13, 2008 crash. Respondent continued providing evasive, inconsistent, and deflecting responses during the evidentiary hearing he requested upon his receipt of the pending DEA Order to Show Cause. 14. Evidence of remediation in this record takes the form of Respondent's successful completion of a one-year period of monitoring under the auspices of the Minnesota Health Professional Services Program; letters expressing support by family members, professional colleagues and patients; and Respondent's testimony averring that he has changed his lifestyle, gotten married, produced a daughter, and learned from his experiences. Circumstances calling into question the weight that can be attributed to this evidence include the fact that the monitoring program established by the Minnesota Board was based on Respondent's material misrepresentation of the nature of the injuries he and his passenger sustained in the June 2008 crash, and his failure to disclose the extent and nature of his history of drug abuse. Further, the record establishes that upon its inquiry into Respondent's actions relating to the June 13, 2008 automobile crash, medical regulators in Florida ordered Respondent to participate in monitoring and a five-year period of probation, which Respondent failed to comply with, surrendering his medical license in that state in order to avoid these remedial requirements. There is thus insufficient evidence of remediation to overcome the Government's prima facie case. Conclusions of Law 1. When it proposes to deny a new application for a DEA Certificate of Registration pursuant to U.S.C. 824(a)(1), the Government is required to establish by at least a preponderance of the evidence that Respondent materially falsified a DEA registration application. 2. Where preponderant evidence establishes, as is the case here, that Respondent denied having a license to practice medicine either suspended or restricted, knowing that this was a false answer, the Government has established sufficient proof of Respondent materially falsifying a DEA registration application to warrant denial of the application. 3. When it proposes to deny a new application for a DEA Certificate of Registration pursuant to U.S.C. 824(a)(4), the Government is required to establish by at least a preponderance of the evidence that the applicant's registration is inconsistent with the public interest.\303\ --------------------------------------------------------------------------- \303\ 21 U.S.C. 823(f) and 824(a)(4); 21 CFR 1301.44(d). --------------------------------------------------------------------------- 4. Pursuant to U.S.C. 823(f), five factors must be considered when determining the public interest in this case pursuant to U.S.C. 824(a)(4): (1) The recommendation of the appropriate state licensing board or professional disciplinary authority. (2) The applicant's experience in dispensing, or conducting research with respect to controlled substances. (3) The applicant's conviction record under federal or state laws relating to the manufacture, distribution, or dispensing of controlled substances. (3) Compliance with applicable state, federal, or local laws relating to controlled substances. (4) Such other conduct which may threaten the public health and safety.\304\ --------------------------------------------------------------------------- \304\ 21 U.S.C. 823(f). --------------------------------------------------------------------------- 5. Under 21 U.S.C. 823(f)(1) (Factor One), where the record establishes a history of Respondent's license being first suspended by the Florida Department of Health and then voluntarily surrendered for cause, based on Respondent's decision not to participate in further monitoring by the Florida Department of Health; and a history of Respondent's license being restricted by the Minnesota Medical Board and then restored based on Respondent's false and misleading statements of his history of drug abuse and the circumstances surrounding a motor vehicle crash that had precipitated the action of the Florida Department of Health, the circumstances attendant to the action of these boards constitute evidence tending to establish that Respondent's DEA registration would be inconsistent with the public interest under Factor One. 6. In order to establish a basis for denying an application for a Certificate of Registration based on the provisions of 21 U.S.C. 823(f)(2) (Factor Two), the Government must present preponderant evidence establishing that Respondent's experience in dispensing controlled substances is of such character and quality that his registration would be inconsistent with the public interest. While there is some evidence that through the course of his education, training, and employment Respondent has acquired sufficient experience to appropriately fulfill those responsibilities attendant to persons authorized to prescribe controlled substances, the preponderant evidence of Respondent's experience in procuring controlled substances creates material questions regarding the benefit Respondent obtained from his positive experiences, where those experiences should have instilled in Respondent a greater sense of responsibility when procuring and using highly addictive controlled substances. If granted the authority to prescribe often-diverted controlled substances, Respondent's experience as demonstrated in this record would, in the event of relapse, constitute a threat to the public interest, particularly where Respondent continues to deny having drug abuse problems notwithstanding a history of abuse. While this risk is attenuated during Respondent's sustained period of stable recovery, it is sufficiently present here, given the absence of any on-going monitoring or treatment, to warrant a finding that Respondent's experience in dispensing controlled substances contradicts a finding that granting this application is consistent with the public interest. Accordingly, the Government has met its burden of establishing that registration would be inconsistent with the public interest under Factor Two. [[Page 71647]] 7. In order to establish a basis for denying an application for a Certificate of Registration based on the provisions of 21 U.S.C. 823(f)(3) (Factor Three), the Government must present evidence of Respondent's conviction record under federal or state laws relating to the manufacture, distribution, or dispensing of controlled substances. As this Factor is neither alleged by the Government nor suggested by the evidence, this Factor may not be considered to support the denial of Respondent's application for a DEA Certificate of Registration. 8. Under 21 U.S.C. 823(f)(4) (Factor Four), the Administrator is to consider the Respondent's compliance with applicable state, federal, or local laws relating to controlled substances. Federal law relating to controlled substances includes the requirement that all prescriptions for controlled substances must be for a legitimate medical purpose and must be issued in the ordinary course of a professional medical practice.\305\ Where the preponderant evidence establishes Respondent unlawfully prescribed Percocet and Xanax to Patient S.S. on June 4, 2008, and unlawfully obtained and self-administered Adderall on June 11, 2008, the Government has demonstrated a basis for finding that granting this application would be inconsistent with the public interest, under Factor Four. --------------------------------------------------------------------------- \305\ Sun & Lake Pharmacy, 76 FR 24523-02, 24530 (DEA May 2, 2011) (quoting 21 CFR 1306.04(a)); George C. Aycock, M.D., 74 FR 17529-01, 17541 (DEA April 15, 2009). --------------------------------------------------------------------------- 9. Under 21 U.S.C. 823(f)(5) (Factor Five), the Administrator is to consider, ``[s]uch other conduct which may threaten the public health and safety.'' Respondent's actions or omissions that threaten the public interest may constitute a basis for denying an application for a DEA registration under Factor Five, where the conduct is not within the scope of Factors One through Four.\306\ Where by at least a preponderance of the evidence the Government establishes, as is the case here, that Respondent refused without good cause shown to execute releases granting the DEA access to monitoring reports in Minnesota and Florida; provided misleading accounts of the circumstances surrounding the June 13, 2008 motor vehicle crash in reports tendered to medical boards in Florida and Minnesota and in his accounts of the same to DEA investigators; and provided inconsistent and misleading accounts of his history of drug use to the DEA and to medical boards in Florida and Minnesota, the Government has met its burden of demonstrating that granting Respondent's application for a DEA registration would be inconsistent with the public interest under Factor Five. --------------------------------------------------------------------------- \306\ 21 U.S.C. 823(f)(5). --------------------------------------------------------------------------- 10. Upon such evidence, the Government has met its burden and has made a prima facie case in support of the proposed order denying Respondent's application for a DEA Certificate of Registration. 11. Where the Government has made out its prima facie case supporting the denial of an application, Respondent has the opportunity to demonstrate by preponderant evidence that through acknowledgement and remediation, granting Respondent's application for a DEA Certificate of Registration would be consistent with the public interest. 12. Because ``past performance is the best predictor of future performance,'' \307\ where an applicant has committed acts inconsistent with the public interest, the applicant must accept responsibility for his or her actions and demonstrate that he or she will not engage in future misconduct.\308\ Further, admitting fault is ``properly consider[ed]'' by DEA to be an ``important factor [ ]'' in the public interest determination.\309\ --------------------------------------------------------------------------- \307\ Medicine Shoppe-Jonesborough, 73 FR 364-01, 387 (DEA January 2, 2008) (quoting ALRA Labs., Inc., v. DEA, 54 F.3d 450, 452 (7th Cir. 1995)). \308\ Medicine Shoppe-Jonesborough, 73 FR at 387 (citing Samuel S. Jackson, 72 FR 23848-01, 23853 (DEA May 1, 2007)); John H. Kennedy, 71 FR 35705-01, 35709 (DEA June 21, 2006); Prince George Daniels, 60 FR 62884-01, 62887 (DEA December 7, 1995). \309\ Medicine Shoppe-Jonesborough, supra, 73 FR at 387 (quoting Hoxie v. DEA, 419 F.3d 477, 483 (6th Cir. 2005)). --------------------------------------------------------------------------- 13. The record now before the Administrator establishes that Respondent has failed to timely provide the DEA with reports of his treatment or monitoring from the Florida Medical Board and PRN and from the Minnesota Board of Medical Practice and HPSP; failed to acknowledge the need to provide forthright, accurate, and complete responses to questions presented regarding his prescription practice and his history of drug abuse; and failed to account for his false statement in making this application for DEA registration. Upon such evidence, Respondent has not rebutted the Government's prima facie case. Accordingly, the Government has established cause to deny this application. Recommendation As the Government has pursuant to 21 U.S.C. 824(a)(1) established by preponderant evidence that Respondent has materially falsified an application filed pursuant to subchapters I or II of Chapter 13 of Title 21, United States Code; and as the Government has pursuant to 21 U.S.C. 824(a)(4) established by preponderant evidence that granting a DEA Certificate of Registration to Respondent would be inconsistent with the public interest, and as Respondent has failed to rebut the case presented by the Government, Respondent's application for a DEA Certificate of Registration should be DENIED. Dated: October 9, 2014. s/ CHRISTOPHER B. MCNEIL Administrative Law Judge [FR Doc. 2015-28928 Filed 11-13-15; 8:45 am] BILLING CODE 4410-09-P
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DEPARTMENT OF JUSTICE facts and conclusions of law except as DEA Diversion Investigator Virginia
discussed throughout this decision. I McKenna met with or spoke with
Drug Enforcement Administration agree with the ALJ’s findings that Respondent on several occasions between
Respondent (1) unlawfully prescribed July 19, 2012 and August 23, 2013.
[Docket No. 14–13] Throughout this period, Investigator
controlled substances (Percocet and McKenna made repeated requests for
Mark William Andrew Holder, M.D.; Xanax) to S.S., see R.D. at 59; (2) Respondent to provide the DEA with copies
Decision and Order unlawfully obtained and self- of monitoring and treatment records
administered Adderall, see id. at 59; (3) reflecting action by the medical boards in
On October 9, 2014, Administrative provided inconsistent and misleading Florida and Minnesota. Initially, and for a
Law Judge Christopher B. McNeil accounts of his drug use to DEA period extending more than six months,
(hereinafter, ALJ) issued the attached Investigators, see id. at 61–62, 65–66; (4) Respondent deferred complying with these
Recommended Decision (hereinafter, materially falsified his application for a requests while assuring Investigator
cited as R.D.). On October 31, 2014, one DEA registration; see id. at 62–63; and McKenna he would comply. By April 2013,
when the records still had not been
day after the due date, see 21 CFR (5) failed to unequivocally acknowledge
produced, Investigator McKenna presented
1316.66, Respondent filed Exceptions to his misconduct in issuing unlawful Respondent with release forms that would
the Decision. prescriptions to S.S., see id. at 41–42, as authorize the DEA to receive copies of these
According to Respondent’s counsel, well as in materially falsifying his DEA reports. Respondent refused to sign the
on the day on which his Exceptions application, id. at 66; and (6) failed to releases, and advised Investigator McKenna
were due, her word processing program produce sufficient evidence of that he would not permit the DEA access to
shut down and while she was able to remediation. Id. at 66–67. Accordingly, the PRN report from Florida, and gave her
find a recovered document, ‘‘it was not I adopt the ALJ’s ultimate conclusions what appears to be an incomplete set of
the most recent version and did not of law that Respondent has materially records reflecting the report from Minnesota.
include the final arguments or falsified his application for a DEA R.D. at 61.
footnotes.’’ Resp. Mot. for the registration and committed acts which Respondent asserts that this finding is
Administrator to Accept and Review the render his registration inconsistent with not supported by the record, because the
Updated Version of Respondent’s the public interest, and that he has Diversion Investigator acknowledged in
Exceptions to the ALJ’s failed to rebut the Government’s prima her testimony that she had received
Recommendations, at 1. Respondent’s facie case. See id. at 67. I therefore duplicate copies of a physician’s report
counsel represents that she immediately adopt the ALJ’s recommendation that I prior to obtaining some 82 pages of
contacted the ALJ’s law clerk to request deny Respondent’s application. A documents from Respondent, and that
an extension; according to Respondent’s discussion of Respondent’s Exceptions ‘‘[i]n order to receive a duplicate copy
counsel, she spoke with the ALJ who follows. she must have received a previous copy
stated that she could either submit the of the report.’’ Exceptions at 2.
Respondent’s Exceptions
document ‘‘as is’’ or ‘‘send a motion to Respondent argues that the DI’s
the [A]dministrator requesting an Respondent takes exception to three
statement that she did not receive
extension.’’ Id. at 1–2. of the ALJ’s enumerated factual findings
‘‘ ‘much, if anything’ is contradicted by
Respondent’s counsel chose to file his (numbers 12, 13, and 14) asserting that
the fact that she acknowledged receipt
Exceptions ‘‘as is.’’ Id. at 2. However, they are not supported by the record. He
of 82 pages of information,’’ which
according to Respondent’s counsel, the also takes exception to five of the ALJ’s
included ‘‘copies of notes [prepared by
document contained ‘‘many errors and conclusions of law (numbers 2, 5, 6, 9,
his case manager at the Minnesota
. . . was incomplete.’’ Id. Respondent’s and 13).
Health Professionals Services Program
counsel also represented that on the day Exception to Finding of Fact #12 (HPSP)], the quarterly reports[,] as well
before the Exceptions were due, she had as a toxicology report provided to’’ the
to deal with a family medical In Finding of Fact number 12, the ALJ
found: DI. Id. at 2–3.
emergency. Id. Accordingly, on Respondent also asserts that he
November 5, 2015, Respondent’s In the course of investigating the provided the results of a chemical
counsel filed the above-referenced circumstances surrounding state medical
board action pertaining to Respondent’s assessment, which included the
motion along with a revised version of diagnosis, prognosis and recommended
medical licenses in Florida and Minnesota,
his Exceptions. Id. at 1. Having treatment, by Ms. Hasper (who he saw
considered Respondent’s motion, I find outside of the HPSP program), as well
not perform her assessments as part of the HPSP
that good cause exists to excuse the program, it is not clear why this document as reports from Dr. Albert, a
untimely filing of his Exceptions and impeaches the DI’s testimony that Respondent psychologist he saw some fifteen times
consider them in my review of the refused to provide releases for the records of his
as part of the HPSP program. Id. at 3
record. treatment which were maintained by the Florida
PRN and the HPSP programs. (citing Tr. 481). Respondent then argues
Having considered the record in its However, Respondent furthers argues that ‘‘this that the DI ‘‘intentionally mislead [sic]
entirety,1 I adopt the ALJ’s findings of document shows that [the DI] received diagnosis, the court when she stated that she did
prognosis, and treatment [information], it further not receive any documentation of
1 On November 3, 2014 (which was after the shows that Dr. Holder provided the necessary
record had closed), Respondent filed a request for release which allowed [the DI] to meet with Ms. diagnosis, treatment and prognosis’’ and
me to review an additional document, this being a Hasper and discuss the process of the evaluation this calls ‘‘into question the credibility
chemical assessment performed on October 9, 2013 and its contents.’’ Id. Respondent then of the rest of her testimony.’’ Id. at 4.
mstockstill on DSK4VPTVN1PROD with NOTICES2
by Ms. Joan Hasper. Resp. Req. for Administrator acknowledges that ‘‘this document probably should While Respondent acknowledges that
to Review an Additional Document. Respondent have been included in the evidence introduced at
argues that I should review this document because the hearing.’’ Id. he did not provide his Florida PRN file
‘‘[t]here is no way that [he] can prove that he gave I agree. This document does not constitute newly to the DI, he argues that he ‘‘provide[d]
[the DI] a copy of the HPSP file without access to discovered evidence and was obviously available to a copy of his HPSP information which
the Government’s file which would document Respondent at the time of the hearing. I therefore reflected the most recent analysis of his
receipt of the HPSP file,’’ and that ‘‘it is necessary decline to consider it. See Richard A. Herbert, 76
in the interest of justice to review the additional FR 53942, 53944 (2011); see also ICC v.
treatment, diagnosis and prognosis’’ to
assessment which [the DI] testified that she did in Brotherhood of Locomotive Engineers, 482 U.S. 270, the DI and that she did not ‘‘articulate
fact receive.’’ Id. at 3. Given that Ms. Hasper did 286 (1987). what information she was missing from
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![Federal Register / Vol. 80, No. 220 / Monday, November 16, 2015 / Notices 71619
the HPSP file.’’ Id. at 4. He then asserts were a whole bunch of releases that he contents of his file with Dr. Hasper to
that the DI, ‘‘[a]fter having [his] HPSP signed for different entities to receive the DI. Id. at 480. However, upon
file for months, . . . returned to his some of these records’’).2 reviewing the file, the DI found that it
place of work to request that he sign a As for Respondent’s contention that contained notes from Dr. Albert (the
release.’’ Id. Respondent asserts that he in January 2013, he provided his psychologist who treated him under the
‘‘requested his entire file from HPSP complete HPSP file, the evidence HPSP program) for Respondent’s first
and provided that file to [the DI] in nonetheless establishes that in August two visits (when generally a history and
January, four months before her visit to 2013,3 the DI, who still believed that evaluation are completed). Id. at 481.
his office.’’ Id. He then argues that Respondent had not provided the full According to the DI, she had not
‘‘[t]here was no reason for him to file (indeed, he had not provided any previously seen these notes in the
believe that HPSP records beyond what material from the Florida PRN program), documents Respondent submitted. Id. at
he provided existed or that signing the went to his place of employment and 482.
release would have provided any requested that he provide releases so Thus, contrary to Respondent’s
additional information than what he that the DI could directly obtain his Exception that the DI did not ‘‘articulate
had already provided to’’ the DI and that records from the HPSP and PRN what she was missing from the HPSP
‘‘[t]here was also no reason to believe programs. Tr. 478. Respondent again file,’’ Exceptions at 4, the DI did identify
that providing PRN information would asserted that he had provided the DI information that was likely in his HPSP
lead to an outcome.’’ Id. with ‘‘everything.’’ Id. at 479. However, file.4 And even if this information was
I do not find Respondent’s Exception even after the DI told Respondent that not in the file, I find that the rest of the
to establish sufficient reason to reject she ‘‘needed to obtain [the records] for ALJ’s factual finding is supported by a
the ALJ’s finding, which was based [her]self in order to be sure that [she] preponderance of the evidence. I
largely on his assessment of the had everything,’’ Respondent declined therefore reject this exception.
credibility of the DI and Respondent. As to execute the releases saying that he
wanted to talk to his attorney. Id. Exception to Finding of Fact #13
for Respondent’s contention that
However, when the DI called him ten In Finding of Fact Number 13, the ALJ
because the DI testified that she
days later and asked whether ‘‘he was found:
received duplicate copies of a
physician’s report, she must have willing to sign the releases,’’ In meetings and conversations conducted
received the report previously, I do not Respondent stated ‘‘that he had already by DEA Diversion Investigator McKenna . . .
agree. The DI testified that given me all of HPSP’s records, that Henderson, and . . . Capello, Respondent
PRN’s records were full of inaccuracies, gave evasive and conflicting answers to
notwithstanding numerous requests she questions regarding his history of drug abuse,
made of Respondent to provide his and that it would be inappropriate for
me to have that information and to use his use and abuse of marijuana and Adderall,
HPSP records, including on July 19, the sources supplying him with controlled
2012 and August 25, 2012, as well as on it at this point.’’ Id. substances, his ability to recall the events
an unspecified date in November 2012, It is true that during this phone call, immediately prior to and after the June 13,
he did not provide the aforesaid 82 Respondent told the DI that he was 2008 crash, the nature and severity of injuries
pages, which he represented as being going to undergo a chemical assessment he and his passenger sustained due to the
the HPSP records, until the January 4, by Ms. Hasper, which he did outside of crash, his use of controlled substances while
2013 meeting. Tr. 464, 469–70, 472–73. the HSPS, as he had already completed working at MD Now, and his reasons for
the program. Id. at 480–81. Respondent answering registration application Question
Notably, before Government counsel Three in the negative. He provided similarly
even broached the subject of the January also apparently agreed to release the
evasive and conflicting answers to questions
4, 2013 meeting the DI had with 2 As the 82 pages Respondent provided the DI
presented to him by the medical boards in
Respondent, Government Counsel asked were not submitted as a discrete exhibit (some of Florida and Minnesota, particularly
the DI: ‘‘and did you get the records?’’ the documents may have been submitted as other minimizing the severity of injuries he and his
to which the DI answered: ‘‘I did not.’’ exhibits), I have no basis to conclude whether the passenger sustained in the June 13, 2008
Id. at 473. Moreover, Respondent did records were complete. However, the quarterly crash. Respondent continued providing
reports submitted as Respondent’s Exhibit M evasive, inconsistent, and deflecting
not cross-examine the DI regarding her (which covered the quarters ending on April 15, responses during the evidentiary hearing he
testimony that she received ‘‘a duplicate 2012 and July 15, 2012) were essentially three page requested upon his receipt of the pending
copy’’ of a quarterly report by Dr. documents, one page being the ‘‘Participant DEA Order to Show Cause.
Albert. Id. at 488–98. Indeed, the DI’s Update,’’ the second page being the ‘‘Treatment
Provider Report Form,’’ and the third page being a R.D. at 61–62.
testimony does not suggest that she had letter from the Executive Director of Physicians
previously received the documents but Serving Physicians attesting to his attendance at
In excepting to this finding,
that she received duplicate copies of various meetings. RX M. As for the Treatment Respondent takes issue with the ALJ’s
various documents when on January 4, Provider Report Forms, they list the primary and credibility findings with respect to
secondary treatment foci, Respondent’s symptoms, multiple witnesses for the Government.
2013, Respondent provided these and then provide a ‘‘diagnostic impression,’’ a
documents to her. Id. at 474–75 ‘‘Treatment Plan,’’ ‘‘Client/Patient Insight,’’ and
These include: (1) The DI whose
(testimony of DI that after noting ‘‘three ‘‘Medications.’’ See RX M. While it is certainly true testimony is discussed above; (2) S.S.,
or four pages of notes from’’ his case that these forms listed Dr. Albert’s diagnosis and who testified, inter alia, that
recommended treatment, given the brevity of the Respondent wrote a fraudulent
manager, ‘‘the remainder of the notes, which did not include a discussion of
information were [sic] duplicate copies Respondent’s history (including his history of
prescription for Adderall in S.S.’s name,
of his agreement to work with HPSP, substance abuse) and Dr. Albert’s initial evaluation which S.S. filled, and after taking some
of the pills, then provided to
mstockstill on DSK4VPTVN1PROD with NOTICES2
faxes going back and forth showing of him, it is understandable that the DI did not
believe that Respondent had provided his complete Respondent, as well as that he provided
people submitting quarterly reports but HPSP file.
the quarterly reports didn’t have a lot of 3 While the record establishes that in April 2013,
other drugs such as cocaine and
detail. There was a duplicate copy from the DI had a further conversation with Respondent marijuana to Respondent; (3) a
Dr. Albert on a quarterly report and the about obtaining his records, including those from
the Florida PRN program (which she ‘‘hadn’t 4 As the DI testified, the notes showed that
third page of that was from a second received anything about’’), the record does not Respondent told Dr. Albert that he had ‘‘used
quarterly report which was almost establish the precise scope of this conversation. Tr. Adderall one time in residency and a total of
identical to the first one and then there 478. perhaps five times outside of residency.’’ Tr. 482.
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paramedic who responded to the scene Respondent’s challenge to the DI’s ‘‘best recollection,’’ before adding that
after Respondent crashed his vehicle; credibility. ‘‘[i]t could have been three or four.’’ Tr.
and (4) N.P., a passenger in Respondent further argues that the 213–14. While Respondent argues that
Respondent’s vehicle, who was injured ALJ gave inappropriate weight to the S.S. was ‘‘willing to say just about
in the crash. Exceptions at 5–14. testimony of S.S., who, in Respondent’s anything,’’ Exceptions at 9, the evidence
As for the DI, Respondent raises a words, ‘‘was willing to make many shows that following the accident, the
further challenge to her credibility. He exaggerations/false statements against police found in Respondent’s car the
notes that during her testimony [him] for a get out of jail card.’’ prescription vial bearing S.S.’s name as
regarding a meeting (on July 19, 2012) Exception at 7. Respondent contends the patient and listing the contents as
with Respondent and his attorney, that S.S. gave ‘‘internally conflicting amphetamine 30 mg, along with 41 pink
during which the allegation that he testimony that he provided cocaine tablets. GX 11, at 1. Moreover, the blood
materially falsified Question Three on ‘sporadically’ and marijuana ‘relatively specimen obtained from Respondent
his application was raised, the DI regularly to Dr. Holder,’ ’’ and ‘‘he used following the accident showed that he
testified that: these drugs with Dr. Holder.’’ Id. at 7– had ingested amphetamines. GXs 13, 14.
8. According to Respondent, this is so Thus, I find no reason to reject the ALJ’s
He answered on the application no. When
because at the time of his drug use with finding that S.S. gave credible
I asked him about that, he said that he didn’t
understand the question, that he wasn’t Respondent, ‘‘he was on probation’’ and testimony.6
intending to lie, at which time Mr. Harbison subject to drug testing, and yet testified As for N.P.’s testimony, which
interjected, why would he lie when he knew that he did not fail any drug tests when primarily focused on the scope of the
it was public record, but I had no, I don’t he was living in Palm Beach County. Id. injuries she suffered in the accident,
know why he would or wouldn’t do such a at 8. Respondent argues that this whether she had only minor injuries as
thing, so I showed him the application. And establishes that S.S.’s testimony is not Respondent suggests or more serious
then he said that he didn’t read the question credible because ‘‘how could he use injuries to include a dislocated elbow,
thoroughly, and that’s when I showed him a marijuana and cocaine with
sample application that I had.
shattered cervical disc, a broken back,
[Respondent] and evidence of this drug and neurologic damage, is of only
Tr. 463. According to Respondent, the use never reveal itself on any of his drug nominal relevance in resolving whether
DI later admitted that Respondent’s tests?’’ Id. granting Respondent’s application is
‘‘application was not presented to him While S.S. testified that he was on consistent with the public interest. 21
at the meeting.’’ Exceptions at 6. probation during the same time-period U.S.C. 823(f). In any event, given that
Respondent based this on the following in which he testified that he ‘‘used the Government disclosed to
colloquy during cross examination: cocaine and marijuana with’’ Respondent that it intended to elicit
Respondent, id. at 198, there is no testimony from N.P. regarding the
Resp. Counsel: And concerning the
evidence in the record as to how injuries she sustained and that the ALJ
application, when Mr. Harbison first
requested the application, wasn’t he told that frequently S.S., who had been on found her testimony credible, in the
you all were not able to provide him an probation for more than two years at absence of medical records refuting her
application because it was done on the this point, id. at 212, was subject to drug testimony, I find no reason to reject the
internet? testing during this period. Moreover, ALJ’s credibility determination.
DI: Yes, ma’am. That was my error. I spoke evidence in the record establishes that Finally, Respondent takes exception
with . . . the section chief for Registration, following the accident, the Palm Beach
and I misunderstood what he said. And I
to the ALJ’s factual finding that ‘‘[h]e
County Sheriff’s office obtained a blood provided similarly evasive and
relayed that, my misunderstanding. And specimen from Respondent which
that’s when they went further and were able conflicting answers to questions
tested positive for Delta-9-Carboxy THC, presented to him by the medical boards
to produce it.
see GX 13, a metabolite of THC, thus
in Florida and Minnesota, particularly
Id. at 495. establishing that Respondent had used
minimizing the severity of injuries he
I do not find this testimony sufficient marijuana.
S.S. further testified that in June 2008, and his passenger sustained in the June
to support Respondent’s contention that 13, 2008 crash.’’ R.D. at 62. As evidence
the DI gave false testimony in the he was smoking marijuana with
Respondent at the latter’s residence, for his finding that Respondent
proceeding. The DI’s testimony is provided evasive and conflicting
simply insufficient to establish that at when Respondent told him that he
needed a favor—this being for S.S. to answers to the questions presented by
the July 2012 meeting, she showed the the Florida Board, the ALJ did not cite
actual application filed by Respondent come by the office and fill a prescription
for Adderall, which S.S. was to then any evidence in the record.7 Moreover,
as opposed to the sample application
she referred to in the next sentence. return to Respondent. Tr. 208. On June 6 As for the discrepancy between the Palm Beach
Notably, the DI’s testimony that ‘‘so I 11, 2008, Respondent either called or County EMS report which documented that
showed him the application’’ does not texted S.S., who went to Respondent’s Respondent had a seizure and the testimony of the
specify that it was Respondent’s actual clinic, picked up a prescription for 60 paramedic that he did not witness Respondent
tablets of Adderall 30 mg which was having a seizure upon arriving at the accident scene
application which she showed him, and or while transporting him to the hospital and that
her continuing testimony supports the written by Respondent and listed S.S. as the paramedics ‘‘were just following our protocols
inference that it was only a sample the patient. Id. at 208–09. S.S. then went [by administering Valium] in case he ha[d] a
application.5 Accordingly, I reject to a Walgreens pharmacy located next to history,’’ Tr. 258, it is unclear why this fact is
the clinic, filled the prescription, and material in assessing the ALJ’s finding that
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Respondent gave inconsistent testimony regarding
5 Indeed, if the DI had Respondent’s actual
after taking some pills for himself, gave the circumstances surrounding the accident.
application available to her at the time of the the rest of the pills to Respondent. Id. However, even if it is material, I do not find
meeting, there would have been no need to then at 209–11; see also GX 6. adequate justification to reject the ALJ’s credibility
show him a sample application, as the actual To be sure, as Respondent argues, S.S. determination as to the paramedic’s testimony.
7 Later in his decision, the ALJ quoted the
application would have included the same gave conflicting testimony as to how
question. Also, regarding her testimony at Tr. 463, following statement in Respondent’s Petition for
it is not unusual for a witness to offer an answer,
many of the Adderall pills he took from Reinstatement:
which she subsequently clarifies while reflecting on the prescription, initially stating that he The related criminal matter has been referred for
the question. took one or two pills, which was his pre-trial intervention and Respondent is currently
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other than Respondent’s Petition for all extremities, right sides [sic] rotator After the Minnesota Board’s Licensure
Reinstatement, the Record does not cuff injury and respiratory failure.’’ Id. Committee denied his application, see
include any other evidence establishing Respondent represented to the Board GX 35, Respondent sought
what statements Respondent made to that ‘‘[n]o controlled substances were reconsideration of its decision. In his
the Florida Board. Therefore, I do not found in my possession or in [the] letter to the Board, Respondent’s
find this portion of the ALJ’s finding to vehicle (via police report).’’ Id. And he counsel again asserted that ‘‘[o]ne of the
be supported by substantial evidence. further asserted that ‘‘[n]o charges were possible reasons that the prosecution
There is, however, substantial filed’’ until approximately three months decided to dismiss the case was that the
evidence that Respondent provided after the incident when he was charged original police report showed that there
false information on his Minnesota with ‘‘possession of a controlled were no drugs or alcohol found in the
application. Respondent provided a yes substance without a prescription vehicle’’ and ‘‘[t]his obviously negated
answer with the notation to ‘‘Please (Adderall), fraud to acquire a controlled the charges of DWI and illegal
View Addendum’’ to questions substance, and driving under the possession of drugs.’’ GX 37, at 2 (citing
regarding: (1) Whether his license to influence (sub therapeutic levels of Respondent’s Affidavit, at ¶ 5).
practice medicine in any state had been Adderall in blood).’’ Id. Respondent’s lawyer also asserted that
revoked, suspended, restricted or The evidence also shows that the ‘‘[t]he prosecution’s dismissal also
conditioned; (2) whether he had been Minnesota application’s question means that it did not have enough
notified of any investigation by any state number 12 specifically included charges confidence in the charges even to
board regarding the practice of of disorderly conduct and required that pursue the claim that Dr. Holder
medicine; (3) whether any criminal he disclose any charge regardless of somehow had a trace of marijuana in his
charges had ever been filed against him, whether it had had been expunged or blood.’’ Id. Still later in his letter,
regardless of whether they had been removed from his record by executive Respondent’s counsel wrote that ‘‘[h]e
expunged; and (4) whether he had ever pardon. GX 34, at 6. In his testimony, certainly acknowledges his bad
been charged with DWI or DUI. GX 34, Respondent admitted that that he had judgment in obtaining the Adderall
at 6. been charged with disorderly conduct tablets, but that was an isolated instance
In the addendum, Respondent wrote on another occasion. Tr. 151–52. Yet he of a questionable thought process.’’ Id.
that: ‘‘I had a seizure while driving on failed to disclose this charge on the at 5.
June 1, 2008. A collision with a sign Minnesota application. GX 34, at 9. In support of his request for
post followed. Both the passenger and I Respondent explained the omission, reconsideration by the licensure
were in seatbelts and only suffered asserting that while his answer to the committee, Respondent submitted an
minor injuries form [sic] airbag application question ‘‘may not have affidavit. Therein, Respondent again
deployment.’’ Id. at 9. Respondent been complete . . . it was truthful,’’ and asserted that ‘‘[t]he original police
stated that while he had ‘‘walked out of that he was truthful about ‘‘the charges report showed that no alcohol or illegal
the car,’’ he refused both a neck collar that I thought were actually most drugs were found in my vehicle.’’ Id. at
and to lie on a stretcher, after which he important’’ and that ‘‘the charges were 11 (¶ 5). He further asserted that he
was restrained by the police. Id. dismissed.’’ Tr. 151–52. ‘‘definitely did not use or have
Respondent then asserted that ‘‘[d]uring Respondent did acknowledge that the marijuana as charged in the criminal
this restraining process I was tazed 14 Florida Board of Medicine suspended case’’ and ‘‘ha[d] no idea where that
times, and received multiple blows to his license, but that it had been claim comes from.’’ Id.at 12 (¶ 8). While
my face, head and back’’ and that he reinstated. GX 34, at 10. He then wrote: Respondent admitted to having used
was diagnosed with a ‘‘traumatic head ‘‘Admittedly, I did use Adderall as used Adderall the day before the accident, he
injury (bleeding in three distinct lobes for ADHD without a prescription while maintained that this was ‘‘because of a
of my brain), multiple contusions in working long hours. I acquired from a stupid error of judgment’’ and that he
lungs bilaterally, 4 fractured bones in colleague who worked in the Urgent had obtained the drug ‘‘inappropriately
[the] maxillary region of face, complete Care where I worked.’’ Id. from a friend.’’ Id. Respondent then
nasal fracture with deviation of the As the record shows, several of these asserted that:
septum, facial lacerations, lacerations in statements were false. These include I obtained the Adderall only for the
Respondent’s statement that no purpose of helping me stay alert during a
complying with the requirements for successfully controlled substances were found in his period when I was working hard for many
completing the Circuit Court’s requirements to possession or vehicle,8 as well as that he hours. I definitely do not have a ‘‘drug
avoid prosecution for those criminal charges. These problem,’’ and have never had a history of
requirements include successful completion of the acquired the Adderall from a colleague.9
anything even close to that. I realize and
Comprehensive Alcoholism Rehabilitation Program
agree that what I did in obtaining the
(CARP) as ordered by the Court. This is a program 8 As for Respondent’s assertion that this was per
providing a continuum of care to individuals the police report, the Offense Report filed by the Adderall was wrong. I had never done that
affected by alcoholism, drug dependency and co- Sheriff’s Office included the Supplemental Report before and will never do it again.
occurring disorders and PRN is monitoring of a crash scene investigator. See GX 46. In his
Respondent’s participation in the CARP. report, the Investigator documented that another results taken in the criminal case brought against
R.D. at 37 (quoting GX 30, at 12). While the Investigator had conducted an inventory search of Respondent, the deposition was not entered into
record establishes that Respondent did not Respondent’s car and found the aforementioned evidence and the DI’s testimony does not establish
complete the program because, in his words, the vial of 41 tablets of Adderall bearing a label which what constitutes a therapeutic level. Tr. 468–69. Of
program was taking too long, there is no evidence listed the patient as S.S. Id. at 6. So too, a further note, the DI testified that Respondent initially
that Respondent was not ‘‘currently complying’’ supplemental report prepared by a Detective stated claimed that he had taken only one Adderall pill
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with the Drug Court program at the time of his that he learned ‘‘during the at[-]scene on the night of the accident. Id. at 469. The DI
petition. The ALJ did not cite this passage as investigation,’’ that the vial of 41 Adderall tablets testified that based on her reading of the deposition,
support for his conclusion that Respondent gave was found in Respondent’s car and that it listed S.S. it was her ‘‘understanding that a therapeutic level
evasive and conflicting answers to the questions of as the patient and had been prescribed by is usually obtained from the regular maintenance on
the Florida Board, but rather, only as support for Respondent. RX D, at 37 (page 36 of the report). a medication’’ and that taking one ‘‘pill on the night
his conclusion that although Respondent 9 The record includes the results of a blood test of the crash would not be sufficient to provide a
‘‘participated in monitoring by PRN and the CARP which shows that Respondent’s level of therapeutic level.’’ Id. When, in a subsequent
program . . . [he] has effectively withheld from the amphetamine was 76 ng/ml. GX 14. While there is interview, the DI raised the issue, Respondent
Administrator records showing his treatment in also testimony by the DI that she read the stated that he ‘‘might have taken two that night.’’
Florida for these disorders.’’ R.D. at 37. deposition of the toxicologist who certified the test Id.
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Id. at 12 (¶ 10). they were in response to improprieties before the Minnesota Board’s Licensure
However, even if it is true that the with documenting medical visits or Committee.
‘‘original’’ police report did not state charting and drug use.’’ Id. at 15. Finally, Respondent takes exception
that illegal drugs were found in his Respondent thus contends that ‘‘[t]he to the ALJ’s adverse credibility finding
vehicle, several of the supplemental fact that [he] was granted a conditional with respect to his testimony. He
police reports establish that the license does not indicate that he was maintains, that ‘‘given his limitations in
Adderall vial was found in his car. dishonest in these meetings, it simply memory, [he] has made every effort to
Thus, his statement is nonetheless indicates that he communicated his be upfront and honest about his
misleading. Moreover, his statement improprieties to both boards and they improprieties.’’ Exceptions at 9. He
that he did not use marijuana is refuted were willing to give him a chance to argues that ‘‘[o]rdinarily, it would be
by the blood test results. As for his prove his trustworthiness.’’ Id. difficult to remember specific details of
statement as to how he obtained the The record thus clearly establishes occurrences that occurred over six years
Adderall, while S.S. may have arguably that Respondent made multiple false ago’’ and that he ‘‘is not only impacted
been ‘‘a friend,’’ the statement is statements in both his applications to by the ‘normal memory loss’ from the
nonetheless misleading in that the Minnesota Board and in his affidavit passing of time, he experienced a severe
Respondent attempted to minimize his in support of his request for brain injury.’’ Id. at 10. Respondent
culpability as he actually obtained the reconsideration. The record also clearly points to the testimony of a neurologist
drug by writing a fraudulent establishes that on October 20, 2011, who treated him after the accident that
prescription in S.S.’s name. Finally, Respondent appeared before the Board’s he suffered ‘‘‘post-traumatic amnesia,’
Respondent’s assertion that he did not ‘‘Licensure Committee and discussed where he was in a state of confusion and
have a drug problem is amply refuted by his use of controlled substances that had not able to form new memory.’’ Id.
the record, which includes the blood not been prescribed for him’’ and that (quoting Tr. 510, 515). He further argues
test results following the accident, see ‘‘[t]he Committee decided to that he ‘‘is trying to understand what
GXs 13 & 14, the testimony of S.S. recommend that Applicant be granted happened to him’’ and that ‘‘[g]iven his
regarding Respondent’s use of marijuana licensure with conditions and prior experiences with law enforcement
and cocaine, see Tr. 196, 198, as well as restrictions based upon a report of he does not necessarily trust law
the evidence showing that while he was chemical abuse and diversion of enforcement’s explanation of this event’’
subject to the Florida Drug Court controlled substances for his own use.’’ and ‘‘does not believe that all of his
program, he tested positive for opiates, GX 39, at 4. injuries were caused by the accident
missed a drug test, and provided a The evidence also includes the and he has never wavered from this
diluted sample. See GX 18, 19, 20. Thus, minutes of the Licensure Committee belief.’’ Exceptions at 10.
meeting. See GX 52. However, the However, Respondent’s neurologist
there is substantial evidence that
minutes are marked as confidential, and testified only that the injury affected his
Respondent made multiple false
in any event, do not offer any detail as ability ‘‘to form new memory’’ and that
statements to the Minnesota Board.
In his decision, the ALJ expressed the to what representations Respondent it only ‘‘lasted maybe up to, even up to
view ‘‘that Respondent’s made to the Board. Id. Moreover, there when he left the rehabilitation center.’’
misrepresentations to these boards calls is no verbatim record of the proceeding Tr. 510. Respondent’s neurologist
into question whether the actions taken and the Government did not call as a further explained that:
by these regulators would be the same witness any person (other than [W]ith the extent of the injury he suffered,
Respondent) who either observed or I would expect that he would have trouble
had they been told the same things
participated in the proceeding and who recalling events even shortly after, and even
[Respondent] reported as true during
could have testified as to the a while after, because of his problem with
this administrative process.’’ R.D. at 48.
representations made by Respondent.11 what we call encoding. When someone says
Continuing, the ALJ explained that something to you, particularly when it comes
While the Government questioned
‘‘[t]he Government’s identification of through what we call short-term memory,
Respondent about his appearance before
the nature of these misrepresentations there is a spot it goes [to] on your brain that
the Committee and what it had asked
accurately reflects the many ways in allows you to retain it. In his case, he didn’t
him about, the Government did not ask have the ability to use that spot on his brain.
which the two state medical boards
Respondent whether he had made the
were acting with less than a complete Id. at 515.
same false statements and failed to
and accurate record due to disclose various facts to the Committee Still later, Respondent’s neurologist
[Respondent’s] duplicity.’’ Id. as he had in his prior submissions to the testified that ‘‘there’s a condition’’ that
Respondent argues, however, that the is ‘‘very common in people with
Board.12 Tr. 153–54. The record of this
Minnesota Board ‘‘had complete traumatic brain injury called
proceeding thus does not establish
information’’ and that the Minnesota confabulation.’’ Id. at 518. He then
whether Respondent made additional
Board ‘‘conducted [a] hearing[ ] were explained that ‘‘what happens is’’ that a
false statements when he appeared
[sic] [he] was vigorously questioned person ‘‘pull[s] information from
about his explanation of events.’’ 10 11 According to a letter from the Board’s different parts of the brain in a
Exceptions at 14–15. Respondent argues Complaint Review Unit to the DI regarding a disorganized manner, but the patient
that while he was granted a restricted subpoena duces tecum which sought ‘‘all records,
attempts to organize it in a way that
license by the Minnesota Board, ‘‘[a] memorandums, notes of Board Members, and audio
or video recordings of [Respondent’s] appearance’’ makes sense to them, but to other
review of those restrictions suggest that before the Licensure Committee, ‘‘Committee people may not be factual.’’ Id. at 519.
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meetings are not audio or video-recorded.’’ GX 52. While this testimony may establish
10 While Respondent argues that both the Florida 12 During the colloquy, Respondent stated the
and Minnesota Boards ‘‘had complete information’’
that Respondent had issues with his
Committee ‘‘had a lot of questions,’’ but when asked
and ‘‘conducted hearings’’ during which he ‘‘was by the Government what the Committee had asked short-term memory, ultimately, it does
vigorously questioned about his explanation of about, he initially answered ‘‘I don’t know’’ before not persuade me that Respondent’s
events,’’ because I do not find that there is stating: ‘‘I mean, they were asking me about numerous false statements can be
substantial evidence to support the ALJ’s finding incidences of the same [as] was described here and
with respect to the Florida Board, I address this much of what was talking about, about the issues
explained by his brain injury rather than
argument only with respect to the Minnesota Board that happened in Florida. Etcetera. So forth.’’ Tr. his intent to deceive the Agency’s
proceeding. 153–54. Investigators, the ALJ, and this Office.
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Respondent made the false statements to prescription, only to subsequently revert he got his marijuana, answered: ‘‘I have
the DIs four years after the accident, and to his original story that he wrote the no idea.’’ Id.14
he made the false statements in this prescription but did not do an exam or Still later, when testifying on his own
proceeding six years after the accident. chart the prescription because it ‘‘was behalf, Respondent testified that while
At no point, however, did the already in the prior record.’’ Id. at 477. there are ‘‘a lot of things that I’m very
neurologist offer testimony to support In the July 19, 2012 interview, unproud of . . . I cannot remember
the conclusion that Respondent would Respondent also denied having smoked diverting any medications with S.S. I
still be suffering from memory loss and marijuana, claiming that the blood test cannot remember and I honestly cannot
the inability to piece together accurate result was a false positive. Id. at 461–62. remember how the medication got into
information years after the accident. Also, during a November 2012 phone the car, got into my car, but I do admit
Moreover, even if Respondent’s brain conversation, a DI asked Respondent if completely to using Adderall without
injury accounts for the disparity he had completed the Florida Drug prescriptions.’’ Id. at 590–91.
between his testimony and the Court Program. Id. at 471. Respondent Contrary to his contention, the record
testimony of the other witnesses (and initially ‘‘said that he had completed the amply establishes that Respondent ‘‘has
the various exhibits) regarding the program and the charges were not made every effort to be upfront and
accident, the scope of both his and dropped.’’ Id. at 472. However, when honest about his improprieties.’’
N.P.’s injuries, and the cause of his confronted by the DI that he had not Exceptions at 9. I thus find
extensive injuries, these issues are of completed the program, Respondent Respondent’s Exception is well taken
only tangential relevance in assessing admitted that ‘‘he withdrew from the only with respect to the ALJ’s finding
whether granting his application would program because it was taking too long.’’ that ‘‘[h]e provided similarly evasive
be ‘‘consistent with the public interest.’’ Id. and conflicting answers to questions
21 U.S.C. 823(f). What is relevant is that During the hearing, Respondent presented to him by the’’ Florida
Respondent materially falsified his testified that the Adderall prescription Medical Board, and only to the extent
application, made false statements to he wrote (which listed S.S. as the the ALJ’s finding suggests that he gave
the Agency’s Investigators who patient but was actually issued to obtain ‘‘evasive and conflicting answers to
investigated the application, and gave the drugs for his own use) was a refill questions presented to him by the’’
false testimony in this proceeding. of a prescription S.S. usually got. R.D. Minnesota’s Boards Licensure
For example, during the investigation, at 28 (quoting Tr. 95). Moreover, while Committee during his appearance before
Respondent provided multiple accounts in his testimony Respondent admitted the Committee.15
as to how many Adderall tablets he had to using Adderall on three or four Exception to Finding of Fact #14
taken before the crash, initially telling a occasions during the period in which he
DI that he took only one tablet the day In his Finding of Fact Number 14, the
was working at MD Now (an urgent care
before the crash (on July 19, 2012). Tr. ALJ discussed Respondent’s evidence of
clinic), he claimed that he got the drug
465. However, upon being confronted remediation. While the ALJ
from a colleague at the clinic, who was
by the DI during a phone call (on acknowledged that Respondent
a physician’s assistant (PA). Tr. 114. He
August 25, 2012) that one pill would not successfully completed one year of
also later testified that ‘‘took no more
provide a therapeutic level, Respondent monitoring under the Minnesota Health
than four pills . . . when I worked at
then asserted that he might have taken Professionals Services Program, that he
MD Now,’’ and after asserting that this
two pills. Id. at 469. And yet during a produced letters of support from
was four pills in total, he then testified
subsequent phone conversation (on June patients and professional colleagues,
that he never took more than one pill at
3, 2013) with another Investigator, he and testified that he had changed his
a time.13 Id. at 128. While Respondent
then claimed that he took ‘‘between four lifestyle, learned from his experiences,
testified that the PA’s first name was
and six dosage units[,] but more than
William, he maintained that he did not
likely it was five.’’ Id. at 328. 14 As for the drug test results during the Florida
Likewise, when asked during the July remember William’s last name. Id. at Drug Court matter, Respondent asserted that his
19, 2012 interview why the police found 114. Moreover, when asked if he had positive test for opiates was caused by an antibiotic
ever gotten Adderall from anyone other which ‘‘cross react[s] with opiate derivatives.’’ Tr.
the Adderall in his car, Respondent 135. The State Judge apparently did not agree, as
asserted that he had no knowledge as to than William, Respondent answered: he/she ordered Respondent to write a 500 word
why the drugs were in his car and ‘‘No. Except for when I was in essay ‘‘on honesty.’’ GX 18. As for the diluted drug
asserted that the police had planted residency.’’ Id. at 116–17. test, Respondent testified that because he ‘‘didn’t
Regarding his marijuana use, have a car’’ and had to walk ‘‘approximately six
them. Id. at 461. Still later, in the miles’’ in ‘‘Florida’s hot sun,’’ ‘‘I might have drank
January 4, 2013 interview, Respondent Respondent admitted that he had used too much water before I started on my journey.’’ Tr.
again claimed that ‘‘[h]e did not know marijuana in college and ‘‘on occasion 136. As for the drug test he missed, Respondent
where the pill bottle came from,’’ and on vacation.’’ Id. at 129. When asked to testified that he ‘‘forgot to call for one day and I
explain the positive test for THC, missed that urine.’’ Id. While this may be, the State
while he admitted to having ‘‘used Judge did not find this to be a persuasive excuse
Adderall on a few different occasions,’’ Respondent claimed it was a false and sent him to jail for one day. GX 19.
he claimed that ‘‘he obtained it from a positive and asserted that he had not 15 It is also acknowledged that Respondent
colleague.’’ Id. at 475. used marijuana in the period before the asserted that he had a seizure the day before the
Moreover, when asked at this accident because he had worked hearing. To the extent Respondent’s argument is
‘‘twelve days . . . in a row’’ and that that his numerous false statements during this
interview about the Adderall proceeding should be excused because the seizure
prescription issued in the name of S.S., there was ‘‘no time’’ to do so. Id. at 131. impacted his recollection of the various events,
When then asked how many times he
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Respondent initially said that he had Exceptions at 23, I reject it as the evidence shows
met with S.S. but did not document the had used marijuana in 2008, that his false testimony at the hearing was generally
Respondent testified that he could not consistent with other false statements he made to
prescription in S.S.’s medical record the DIs, as well as on his Minnesota application and
‘‘because it had already been remember, and when asked from whom in the affidavit he submitted in support of his
discussed.’’ Id. at 476–77. Later in the request for reconsideration. Notably, Respondent
13 As found above, during interviews with DEA does not claim that he had seizures before his
conversation, Respondent then claimed Investigators, Respondent provided three different various interactions with the DIs and before he
that because ‘‘he had been in a coma’’ answers when asked how many Adderall pills he submitted his application and prepared his
he did not recall issuing the took on the night he crashed his car. affidavit.
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gotten married and had a daughter, the of his drug abuse and misconduct at the that other evidence in the record,
ALJ ultimately found that Respondent Licensure Committee hearing.16 namely the Minnesota Board’s Order of
had not presented sufficient ‘‘evidence Respondent also takes exception to Unconditional License (GX 40),
of remediation to overcome the the ALJ’s finding that ‘‘the record establishes that he ‘‘complied with the
Government’s prima facie case.’’ R.D. at establishes that Respondent Minnesota Medical Board[’s] conditions
62. surrender[ed] his [Florida] medical [as] well as the terms and conditions of
license . . . in order to avoid the[ ] the HPSP monitoring [p]lan.’’ Id. at 17.
As for his reasoning, the ALJ remedial requirements’’ imposed by the
explained that he ‘‘question[ned] the Florida Board. Exceptions at 17. While The Order of Unconditional License
weight that can be attributed to this I agree with Respondent that this does constitute some evidence of
evidence,’’ noting that the monitoring finding is not supported by substantial Respondent’s having undertaken
program imposed by the Minnesota evidence, ultimately this finding is of no remedial measures. It is also
Board ‘‘was based on Respondent’s consequence, because Respondent had acknowledged that Respondent
material misrepresentation of the nature the burden of production on the issue of submitted into evidence various records
of the injuries he and his passenger whether he has undertaken sufficient regarding his treatment with the HPSP.
sustained in the June 2008 crash, and remedial measures to demonstrate that While in his testimony Respondent
his failure to disclose the extent and he can be entrusted with a new maintained that he had provided the
nature of his history of drug abuse.’’ Id. registration. See Medicine Shoppe Agency with the entirety of his HPSP
As support for his finding, the ALJ also Jonesborough, 73 FR 364, 387 (2008) file, even if he had never made a
explained that while the Florida Board (quoting Samuel S. Jackson, 72 FR misrepresentation to the Agency, the
‘‘ordered Respondent to participate in 23848, 23853 (2007)). The fact remains Investigators were under no obligation
monitoring and a five-year period of that less than three months after the to take him at his word that he had
probation, which Respondent failed to Florida Board placed him on probation, provided the entire file to them given
Respondent withdrew from the practice
comply with, [he] surrender[ed] his his history of abusing controlled
of medicine in Florida and did not
medical license in that state in order to substances. As for the records
complete the probation ordered by the
avoid these remedial requirements.’’ Id. Board. Regardless of the reason he left Respondent submitted into evidence,
With respect to the reasons given by the State, I agree with the ALJ that the DI’s testimony supports a finding
ALJ as to why he gave less weight to the Respondent’s interaction with the that this is not a complete set of records
Minnesota Board’s Order, Respondent Florida Board does not support a as it does not include the treatment
argues that the Order ‘‘specifically states finding that he has produced sufficient notes for his first two visits with his
that ‘. . . Respondent was licensed by evidence of remediation to rebut the psychologist. Tr. 481–82. Absent
the board pursuant to a Stipulation . . . Government’s prima facie case. Respondent’s consent to the disclosure
based upon his unprofessional conduct, In Finding of Fact number 14, the ALJ of his complete HPSP file, there is no
diversion of drugs for his own use, and did not rely on Respondent’s failure to way to assess the adequacy of his
disciplinary action taken against his provide the DI with a release for his remedial measures, as it is unclear what
license in another state or HPSP file as one of the reasons he he disclosed to those who evaluated
discounted the weight to be given to his him and whether he disclosed the full
jurisdiction.’ ’’ Exceptions at 16. As
compliance with the HPSP. However, extent of his substance abuse to those
explained previously, while the record
the ALJ did decline to consider the providers who created his treatment
establishes that Respondent made false testimony of Respondent’s case manager
statements to the Minnesota Board and program.18 I thus reject Respondent’s
as to his ‘‘progress in the HPSP’’ exception to this factual finding.
failed to disclose other information in because it was unclear whether the
both his application and the affidavit he Government had ever been provided 18 While it may appear that this is inconsistent
submitted in support of his request for with a complete record of his treatment. with the discussion of the Government’s obligation
reconsideration, the record does not R.D. at 24 (citing 21 CFR 1301.15 17). to show that Respondent continued to make the
establish whether he made the same Respondent takes exception to the ALJ’s same false statements and failed to disclose material
false statements, as well as withheld reasoning, arguing that while he ‘‘did information when he appeared before the Licensure
Committee, the difference is that the Government
material information, when he appeared not provide a release . . . he did may have had some means of developing evidence
before the Licensure Committee to provide the necessary documents,’’ and as to the statements he made and did not make
discuss his unprofessional conduct and when he appeared before the Committee. Indeed,
diversion of drugs for his own use. Of 16 The Application (GX 34) states that the the Government could have questioned Respondent
‘‘[f]ailure to answer all questions completely and on these issues. However, because the Government
note, while once the Government accurately, omission or falsification of material facts repeatedly asked Respondent to provide the
established its prima facie case, . . . may be cause for denial of your application, complete file, as well as to sign a release so that
Respondent bore the burden of or disciplinary action if you are subsequently the Government could obtain the information
licensed by the Board.’’ GX 34, at 1. The directly from the HPSP, I agree with the ALJ’s
production on the issue of whether he Recommended Decision does not, however, cite any ruling declining to consider the testimony of his
had engaged in sufficient remedial authority from Minnesota which discusses the HPSP case manager regarding his compliance with
measures, the Government retained the materiality standard employed by the State. the HPSP program. R.D. 24–25 (citing 21 CFR
burden of proof throughout this 17 This regulation provides that: 1301.15). Indeed, absent provision of the compete
[t]he Administrator may require an applicant to file, it is unclear how the Government could have
proceeding. Thus, because there is no submit such documents or written statements of effectively cross-examined his case manager.
evidence in the record as to what
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fact relevant to the application as he/she deems Finally, Respondent provided copies of the
statements Respondent made before the necessary to determine whether the application releases he had given to the credentialing
Licensure Committee, the ALJ’s should be granted. The failure of the applicant to departments of various insurers, and a local
provide such documents or statements within a hospital, allowing them to obtain limited
conclusion that Respondent’s reasonable time after being requested to do so shall information from the HPSP. See RXs I, J, K, and L.
compliance with the Minnesota Board’s be deemed to be a waiver by the applicant of an It is not clear what this proves, and in any event,
Order is not entitled to weight cannot be opportunity to present such documents or facts for given the Agency’s responsibility to ensure that
consideration by the Administrator in granting or granting Respondent’s application would be
sustained on the basis that he failed to denying the application. consistent with the public interest, 21 U.S.C. 823(f),
fully and truthfully disclose the nature 21 CFR 1301.15. the Agency was entitled to his complete file.
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Exception to the ALJ’s Conclusion of in order to answer them?’’ Id. at 464. properly considered in deciding
Law #2 Respondent ‘‘said that he didn’t gloss whether to grant or deny an application
The ALJ found that the record over’’ the questions. Id. under section 303’’) (citations omitted);
establishes that Respondent materially I reject Respondent’s contention that Jackson, 72 FR 23848, 23852 (2007).
falsified his application for a DEA he did not intentionally mislead the
Exception to the ALJ’s Conclusion of
registration because he denied that his Agency. Notably, the question is neither
Law #5
medical license had been suspended or lengthy nor ambiguous, and thus, I do
not believe his contention that he did In this legal conclusion, the ALJ
restricted and knew this to be a false
not thoroughly read the question. addressed the application of factor one
answer. R.D. at 63. Respondent takes
Indeed, even if he had glossed over the under the public interest analysis,
exception to this finding, asserting that
question, it is not credible that he did specifically—‘‘[t]he recommendation of
he ‘‘did not intent [sic] to provide a false
not note that the question asked about the appropriate State licensing board or
response’’ and ‘‘that any false
other types of state board disciplinary professional disciplinary authority.’’ 21
information was due to the fact that he
actions, and certainly Respondent was U.S.C. 823(f)(1); see also R.D. at 46. The
did not read the question correctly.’’
no stranger to state board disciplinary ALJ correctly noted that neither the
Exceptions at 19. Continuing,
actions.19 Moreover, as demonstrated by Florida nor Minnesota Board has made
Respondent argues that ‘‘[i]t would be
his experience with his Minnesota a recommendation in this matter
stupid of [him] to lie about public
application, Respondent was obviously (whether to support or oppose
information and he is not a stupid
aware that providing a truthful answer Respondent’s application), and that
person.’’ Id.
to question three would likely trigger Agency precedent holds that even
The evidence shows that on March 7,
the Agency’s scrutiny into why both where an applicant possesses the
2012, Respondent submitted an
Boards imposed sanctions on his requisite state authority, see 21 U.S.C.
application for a DEA registration on
licenses and lead to the discovery that 802(21), ‘‘the Administrator ‘possesses a
which he was required to answer four
he was a drug abuser. Accordingly, I separate oversight responsibility with
questions with either a ‘‘yes’’ or ‘‘no.’’
agree with the ALJ’s finding that respect to the handling of controlled
GX 2, at 1. Question Three asked: ‘‘Has
Respondent intentionally and materially substances’ and therefore must make an
the applicant ever surrendered (for
falsified his application. This ‘independent determination as to
cause) or had a state professional license
conclusion provides reason alone to whether the granting of an application
or controlled substance registration
deny his application. See 21 U.S.C. would be in the public interest.’ ’’ R.D.
revoked, suspended, denied, restricted
824(a)(1); see also Pamela Monterosso, at 46–47 (quoting Mortimer B. Levin, 55
or placed on probation, or is any such
73 FR 11146, 11148 (2008) (holding that FR 8209 (1990)). While this should have
action pending?’’ GX 2, at 3. Respondent
‘‘the various grounds for revocation or been the end of his discussion, with the
answered ‘‘N’’ for no, notwithstanding
suspension of an existing registration conclusion that the factor neither
that: (1) On January 26, 2009, the
that Congress enumerated in section supported nor refuted a finding that
Florida Department of Health had
304(a), 21 U.S.C. 824(a), are also granting his application is consistent
ordered the emergency suspension of
with the public interest, the ALJ found
his medical license, GX 26, at 10–11; (2)
19 In his Exceptions, Respondent does not dispute that ‘‘the actions of state medical
on June 22, 2009, the Florida Board of whether his false statement was material. It clearly regulators in’’ both States ‘‘establish a
Medicine had ordered that Respondent’s was because the various board orders were imposed basis for finding that [Respondent’s]
medical license ‘‘be SUSPENDED until based on Respondent’s abuse of controlled
substances and his unlawful obtaining of controlled application should be denied.’’ R.D. at
such time as he personally appear[ed]
substances, and under the public interest standard, 46. The ALJ then explained:
before the Board and demonstrate[d] the the Agency is directed to consider an applicant’s
ability to practice medicine with compliance with applicable laws related to
My concern with respect to evidence
appropriate skill and safety,’’ GX 29, at controlled substances and such other conduct relating to the licensure actions taken by the
1–3; (3) on December 17, 2010, the which may threaten public health and safety. 21 medical boards in Florida and Minnesota
U.S.C. 823(f)(4)–(5). Also, the Agency has long held rests not so much with their ultimate
Florida Board of Medicine granted his that a practitioner’s self-abuse of a controlled decisions, but with the process that led to
petition for reinstatement while placing substance constitutes actionable misconduct under those decisions being made. The Government
him on probation for five years, GX 30, factor five. See Tony Bui, 75 FR 49979, 49989 is correct, in my view, in proposing that
at 2–9; and (4) on November 12, 2011, (2010) (citing cases). Respondent’s misrepresentations to these
the Minnesota Board of Medicine had While in his decision, the ALJ correctly noted boards call into question whether the actions
that ‘‘a false statement is material if it has a natural
grant him a medical license subject to tendency to influence or was capable of influencing
taken by these regulators would be the same
various restrictions and conditions. GX the decision making body to which it is addressed,’’ had they been told the same things
39. Thus, the evidence clearly shows R.D. at 55 (citation omitted), he then explained that [Respondent] reported as true during this
that Respondent’s answer was false. ‘‘ ‘[a]nswers to the liability question[s] are always administrative process.
At the hearing, Respondent did not material because DEA relies on the answers to these The Government’s identification of the
questions to determine whether it is necessary to nature of these misrepresentations accurately
testify regarding the circumstances conduct an investigation prior to granting an reflects the many ways in which the two state
surrounding his completion of the application.’ ’’ Id. (quoting Gov. Br. at 29–30 medical boards were acting with less than a
application. However, a DI testified that (quoting Theodore Neujahr, 65 FR 5680, 5681
(2000))). The latter statement, however, is incorrect.
complete and accurate record due to
during an interview, Respondent See Kungys v. United States, 485 U.S. 759, 771 [Respondent’s] duplicity. Those
asserted that ‘‘he didn’t read the (1988) (‘‘It has never been the test of materiality that misrepresentations regarding [his] ability to
question thoroughly’’ and that when she the misrepresentation or concealment would more recall what happened immediately preceding
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provided a copy of an application to likely than not have produced an erroneous the June 2008 crash, his description of his
decision, or even that it would more likely than not history of abusing marijuana and Adderall,
him, ‘‘[h]e went through it and have triggered an investigation.’’) (quoted in Hoi Y.
underlined the first word, surrender, and his description of the nature of his
Kam, 78 FR 62694, 62696 (2013)). Instead, the test injuries and those of his passenger, all
and stopped.’’ Tr. 463. After the DI is ‘‘whether the misrepresentation or concealment
threaten the integrity of the administrative
underlined the rest of the application, was predictably capable of affecting, i.e., had a
natural tendency to affect, the official decision.’ ’’ process by which the Florida and Minnesota
she asked Respondent if when he sat for Id. ‘‘ ‘[T]he ultimate finding of materiality turns on boards performed their assessments of
his Boards, he ‘‘just gloss[ed] over the an interpretation of substantive law.’ ’’ Id. at 772 [Respondent’s] fitness to practice medicine in
questions or . . . read them thoroughly (int. quotations and citations omitted). those states. Accordingly, nothing in our
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record supports a finding that the elements of his injuries and those of his passenger It is true that the ALJ engaged in a
of Factor One warrant a conclusion that would have been material to the Board’s lengthy discussion of Respondent’s
granting Respondent’s application would be decision. I therefore conclude that factor medical career and his experience in
consistent with the public interest.
one neither supports nor refutes the prescribing controlled substances
R.D. at 48-49.20 conclusion that granting Respondent’s therein. For example, the ALJ found that
Respondent takes exception to the application would be ‘‘inconsistent with ‘‘[a]fter successfully completing his
ALJ’s conclusion, noting that ‘‘where the public interest.’’ 21 21 U.S.C. 823(f). residency, [Respondent] continued to
there is no specific recommendation gain experience in a clinical practice in
from the state licensing board for or Exception to Conclusion of Law #6
fields not generally associated with
against an applicant’s request for a . . . In this legal conclusion, the ALJ dispensing controlled substances’’ and
registration, the factor may not be summarized his conclusions regarding then listed various activities
considered [to] support the denial of’’ the evidence relevant to factor two— Respondent engaged in in Liberia which
an application. Exceptions at 20. He Respondent’s experience in dispensing do not appear to have involved clinical
then argues that ‘‘the appropriate state controlled substances. Specifically, the practice, let alone the dispensing of
licensing board is the Minnesota ALJ explained that: controlled substances. R.D. at 50. The
Medical Board, which has not provided [w]hile there is some evidence that through ALJ then noted that Respondent’s ‘‘most
a specific recommendation for or against the course of his education, training, and significant post-graduate prescribing
[Respondent’s] request for a DEA employment Respondent has acquired experience . . . is that which he
registration.’’ Id. sufficient experience to appropriately fulfill obtained while working at MD Now [an
I agree with Respondent that the those responsibilities attendant to persons
authorized to prescribe controlled urgent care clinic] for seven months and
appropriate board is Minnesota, because while serving in his family medicine
it is the State where Respondent now substances, the preponderant evidence of
Respondent’s experience in procuring residency at the University of Miami
seeks registration. With respect to the
controlled substances creates material from 2004 to 2007.’’ Id. at 51. The ALJ
action of the Minnesota Board, I agree questions regarding the benefit Respondent explained that ‘‘while this experience
that the evidence shows that obtained from his positive experiences, includes training in critical care and
Respondent made multiple false where those experiences should have emergency medicine (both of which
statements to the Minnesota Board in instilled in Respondent a greater sense of
responsibility when procuring and using
may emphasize the use of controlled
both his application and his affidavit in
highly addictive controlled substances. If substances), the residency reflects a
support of his request for
granted the authority to prescribe often- curriculum that was not concentrated in
reconsideration. I also appreciate the
diverted controlled substances, Respondent’s a practice requiring dispensing of
ALJ’s concern that his
experience . . . would, in the event of controlled substances, including
misrepresentations ‘‘threaten the relapse constitute a threat to the public
integrity of the [State Board’s] emphases in infectious diseases,
interest, particularly where Respondent pediatrics, ‘wards’ medicine, and
administrative process.’’ I nonetheless continues to deny having drug abuse
respectfully disagree with the ALJ’s women’s health.’’ Id. The ALJ thus
problems notwithstanding a history of abuse.
analysis because it is not supported by While this risk is attenuated during opined that ‘‘while [Respondent’s]
the evidence and takes the Agency far Respondent’s sustained period of stable experiences as an independent
beyond the appropriate scope of this recovery, it is sufficiently present here, given contractor at MD Now and parts of his
factor. the absence of any on-going monitoring or residence [sic] do suggest experience in
treatment, to warrant a finding that granting dispensing controlled substances, the
As explained above, the record does this application is consistent with the public
not establish whether Respondent overall arc of his practice has not been
interest. one that would support a finding that
continued to make the same false
statements before the Licensure R.D. at 64. his experience in dispensing controlled
Committee as he did in his application Respondent takes exception to the substances is substantial.’’ Id.
and affidavit. However, even if ALJ’s conclusion contending that the To be sure, the word ‘‘experience’’
Respondent made the same false ALJ ‘‘minimize[d] [his] experience and connotes that the Agency is authorized
statements to the Committee, the ALJ’s training in dispensing controlled to conduct an inquiry into the adequacy
analysis simply assumes—without any substances and assert[ed] that [he] of a practitioner’s training in prescribing
evidence—that the Board would have ‘entered the world of drug dealers, using controlled substances as well as his/her
come to a different result. Notably, it is his association with Patient S.S. to ‘‘direct observation of or participation
not even clear why Respondent’s acquire cocaine and marijuana on a in’’ prescribing controlled substances.
misrepresentations regarding [his] regular basis.’ ’’ Exceptions at 21 See JM Pharmacy Group, d/b/a
ability to recall what happened (quoting R.D. at 51). Respondent argues Farmacia Nueva and Best Pharma
immediately preceding the June 2008 that ‘‘many medical doctors apply for Corp., 80 FR 28667, 28667 n.2 (2015).
crash and his description of the nature and are granted a DEA . . . Registration
However, under 21 U.S.C. 823(f), DEA is
while in the last stages of medical
directed to register an applicant to
residency of [sic] immediately following
20 There is, of course, a difference between stating
dispense controlled substances ‘‘if the
that ‘‘the actions of state medical regulators . . . the completion of their medical
applicant is authorized to dispense . . .
establish a basis for finding that [Respondent’s] residency program’’ and ‘‘have less
application should be denied,’’ R.D. at 46, and that controlled substances under the laws of
experience that [his] experience at MD
‘‘nothing in our record supports a finding [under the State in which he[/she] practices.’’
Now [but] that experience is not used
Factor One] . . . that granting Respondent’s Thus, with the exception of those
against them.’’ Id.
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application would be consistent with the public instances in which a practitioner has
interest.’’ Id. at 49. While the latter statement
suggests that he gave no weight to factor one either 21 As for the concerns expressed by both the
been shown to have committed
way, in his conclusion of law, the ALJ explained Government and the ALJ that Respondent made violations of the CSA (and in which a
that ‘‘the circumstances attendant to the action of false statements in obtaining his medical licenses practitioner must produce evidence of
these boards constitute evidence tending to which threaten the integrity of the state the remedial measures he/she has
establish that Respondent’s DEA registration would administrative process, nothing prevents the
be inconsistent with the public interest under Government from providing the evidence it
undertaken to rebut the Government’s
Factor One.’’ Id. at 63–64. obtained in the course of this investigation and prima facie case), in making the public
proceeding to the respective state boards. interest determination, DEA does not
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look beyond the State’s determination assessing Respondent’s experience as a and his emotional defenses and skills’’
that the practitioner possesses adequate dispenser of controlled substances.23 were compromised. Id.
training to prescribe controlled For the reasons explained in my
Exception to Conclusion of Law #9 discussion of Respondent’s exceptions
substances.22
In this conclusion, the ALJ discussed to the ALJ’s factual findings numbers 12
Here, however, Respondent’s the evidence relevant to factor five— and 13, I reject Respondent’s exception
experience as a dispenser of controlled ‘‘such other conduct which may to the ALJ’s conclusions of law with
substances includes not only the threaten public health and safety.’’ R.D. respect to factor five.24 Moreover, with
fraudulent June 11, 2008 Adderall at 65; see also 21 U.S.C. 823(f)(5). respect to factor five, I further find that
prescription listing S.S. as the patient, Specifically, the ALJ found that the Respondent made material false
but also the unlawful prescriptions he record establishes: statements in this proceeding. These
issued to S.S. on June 4, 2008 for that Respondent refused without good cause included: (1) When he testified that the
Percocet (oxycodone) and Xanax shown to execute releases granting the DEA Adderall prescription he wrote for S.S.
(alprazolam), which the ALJ found were access to monitoring reports in Minnesota was a refill of a prescription S.S. usually
‘‘issued outside the usual course of and Florida; provided misleading accounts of got and that while he had used
professional practice and for other than the circumstances surrounding the June 13, Adderall, he obtained it from a
a legitimate medical purpose.’’ R.D. at 2008 motor vehicle crash in reports tendered physician’s assistant at the clinic but
to medical boards in Florida and Minnesota
58–59. Moreover, the evidence shows could not remember the PA’s last name;
and in his accounts of the same to DEA
that Respondent induced S.S. to fill the investigators; and provided inconsistent and (2) when he testified that he could not
Adderall prescription as ‘‘a favor’’ for misleading accounts of his history of drug ‘‘remember diverting medications with
his having provided S.S. with the use to the DEA and to medical boards in SS’’ and could not ‘‘remember how the
Percocet and Xanax prescriptions. Tr. Florida and Minnesota. [Adderall] got into his car,’’ (3) when he
207—210–11. R.D. at 65–66. For these reasons, the ALJ denied having used marijuana even
found that this factor supports the though he tested positive for the drug
As explained above, the ALJ found following the accident and then asserted
that Respondent ‘‘us[ed] his experience conclusion that granting Respondent’s
application ‘‘would be inconsistent with that he had ‘‘no idea’’ from whom he
and his association with Patient S.S. to obtained the marijuana; (4) as well as in
acquire cocaine and marijuana on a the public interest.’’ R.D. at 66.
Respondent takes exception to the his testimony regarding why he tested
regular basis.’’ R.D. at 51. There is, positive for opiates and provided a
ALJ’s conclusion. According to
however, no evidence that Respondent Respondent, the ALJ’s conclusion ‘‘rest diluted sample while subject to the
used his registration to trade controlled [sic] on the testimony of [the DI] and Florida Drug Court program.
substance prescriptions for street drugs, N.P. and ignores the testimony of Accordingly, I reject Respondent’s
and as the Agency has previously [Respondent], the undisputed testimony Exception to factor five and conclude
explained, ‘‘factor two does not call for of Dr. Nedd [the neurologist who treated that this factor supports the conclusion
an inquiry into a practitioner’s life him after the crash] and the fact that that granting Respondent’s application
experience generally or even his . . . the incident which occurred in would be ‘‘inconsistent with the public
experience related in any manner to 2008 occurred over 6 years ago.’’ interest.’’ 21 U.S.C. 823(f)(5); Hoxie v.
controlled substances, but rather, only Exceptions at 22–23. Respondent argues DEA, 419 F.3d 477, 483 (6th Cir. 2005);
his ‘‘experience in dispensing . . . that he stipulated to many of the facts John v. Scalera, 78 FR 12092, 12100 &
controlled substances.’’ Abbas E. Sina, outlined in the Government’s Pre- n.21 (2013); Robert F. Hunt, 75 FR
80 FR 53191, 53199 (2015). Nonetheless, Hearing Statements and that at the 49995, 5004 (2010); Rose Mary Jacinta
the evidence does show that hearing, he did not dispute paragraphs Lewis, 72 FR 4035, 4042 (2007).
Respondent used his prescription two through six of the Order to Show Exception to Conclusion of Law #13
writing authority to induce S.S. to fill Cause. Id. at 23. He further argues that Finally, Respondent takes exception
the fraudulent Adderall prescription for he did not mean ‘‘to be evasive,’’ but to the ALJ’s legal conclusion that he has
him. This conduct is relevant in ‘‘simpl[y] . . . cannot remember the failed to produce sufficient evidence to
details’’ of the accident because he rebut the Government’s prima facie
22 While under 21 CFR 1301.18 an applicant, who ‘‘suffers from post-traumatic amnesia’’ showing that granting his application
seeks to conduct research with respect to a schedule and was ‘‘under stress during the weeks would be inconsistent with the public
I controlled substance, must submit a research prior to the hearing and had to try to
protocol which contains his/her ‘‘[q]ualifications, interest. In this conclusion, the ALJ
including a curriculum vitae and an appropriate gather pieces about a very traumatic found that:
. . .list of publications,’’ the CSA requires that the incident he does not remember.’’ Id.
application ‘‘be referred to the Secretary, who shall Finally, he argues that he had a seizure The record . . . establishes that
determine the qualifications and competency of Respondent has failed to timely provide the
the day before the hearing and that DEA with reports of his treatment or
each practitioner requesting registration, as well as
the merits of the research protocol.’’ 21 U.S.C. ‘‘[d]uring the hearing [he] was post-ictal monitoring from the Florida Medical Board
823(f). Cf. id. § 823(g)(1)(A) (‘‘The Attorney General and PRN and from the Minnesota Board of
shall register an applicant to dispense narcotic 23 Respondent also takes exception to the ALJ’s
Medical Practice and HPSP; failed to
drugs to individuals for maintenance treatment or discussion that Respondent continues to deny that acknowledge the need to provide forthright,
detoxification treatment . . . if the application is a he has a drug abuse problem and presents a risk of accurate, and complete responses to
practitioner who is determined by the Secretary to relapse ‘‘given the absence of any on-going
questions presented regarding his
be qualified (under standards established by the monitoring or treatment, to warrant a finding that
prescription practice and his history of drug
mstockstill on DSK4VPTVN1PROD with NOTICES2
Secretary) to engage in the treatment with respect [his] experiences in dispensing controlled
to which registration is sought[.]’’); id § substances contradicts a finding that granting this
823(g)(2)(B)(i) & (G)(ii)(VII) (authorizing the application is consistent with the public interest.’’ 24 However, for reasons explained previously, I
Secretary to promulgate by regulation criteria for R.D. at 64. I conclude, however, that the issue of do not adopt the ALJ’s conclusion to the extent it
determining that a ‘‘physician has such other whether Respondent presents an unacceptable risk states that Respondent provided misleading
training or experience as the Secretary considers to of relapse does not involve his experience in accounts of the accident and his history of drug use
demonstrate the ability of the physician to treat and dispensing, but rather, whether he has produced to the Florida Board. Nor do I adopt the ALJ’s
manage opiate dependent patients’’ by prescribing sufficient evidence to rebut the Government’s prima conclusion to the extent it suggests that Respondent
schedule III through V drugs approved for facie case. Accordingly, Respondent’s arguments providing misleading statements when he appeared
maintenance or detoxification treatment). are addressed in that discussion. before the Minnesota Board’s licensure committee.
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abuse; and failed to account for his false prescription.25 Tr. 612. Moreover, substances to the Minnesota Medical
statement in making this application[.] Respondent failed to acknowledge his Board is not supported by either’’ the
R.D. at 66. misconduct in intentionally and Board’s Order granting him a
materially falsifying his application for conditional license or the Order which
Moreover, earlier in his discussion of
his DEA registration. Also, he failed to granted him an unconditional license.
Respondent’s evidence of remediation,
acknowledge that he made various false Id. at 27.
the ALJ explained that: The ALJ did, however, consider the
statements to the Agency’s Investigators.
[t]he most probative evidence of Accordingly, I reject Respondent’s Board’s Order as evidence in
[Respondent’s] efforts to address any drug contention that he accepted remediation. See R.D. at 62 (FoF #14)
abuse problems he may have had would have responsibility for the full extent of the (‘‘Evidence of remediation in this record
come from the reports by monitors in the
misconduct which has been proven on takes the form of Respondent’s
Florida PRN program and Minnesota’s HPSP
program. Even as he insists he has and had this record. See MacKay v. DEA, 664 successful completion of a one-year
no drug abuse problem, the evidence of drug F.3d 808, 820 (10th Cir. 2011) (‘‘The period of monitoring under the auspices
abuse associated with the 2008 crash, his DEA may properly consider whether a of the Minnesota Health Professional
abuse of marijuana and cocaine prior to the physician admits fault in determining if Services Program.’’). He just found it
crash, and his adamant determination to the physician’s registration should be insufficient to satisfy Respondent’s
deflect and minimize the adverse impact of revoked. When faced with evidence that burden of production on the issue of the
his drug use are all both abundant and a doctor has a history of distributing adequacy of his remedial measures.
troubling. [Respondent] has thwarted a controlled substances unlawfully, it is As for Respondent’s further
complete review of the steps he has taken (or contention that ‘‘[t]he fulfillment of
has failed to take) by refusing [the DI’s]
reasonable for the Deputy Administrator
request for releases that would allow the DEA to consider whether that doctor will these conditions cannot simple [sic] be
to see the PRN and HPSP reports. We have change his . . . behavior in the future. ignored because [he] did not sign a
what appears to be only part of the report And that consideration is vital to release for [the DI] to access HPSP
maintained by HPSP, and none of the report whether continued registration is in the directly’’ and that he ‘‘provided her
by PRN. In the absence of such evidence, I public interest.’’) (citing Hoxie v. DEA, with 82 pages of documentation which
cannot find Respondent has established by at 419 F.3d 477, 483 (6th Cir. 2005)). included the quarterly reports, results of
least preponderant evidence that he has This is reason alone to conclude that toxicology test [sic], his case manager’s
accepted responsibility for his wrong-doing Respondent has not rebutted the notes,’’ id. at 26–27, where, as here, the
and has put in place effective corrective evidence shows that Respondent has a
Government’s prima facie showing that
measures that would guard against future
misconduct. granting his application ‘‘would be history of abusing controlled
inconsistent with the public interest.’’ substances, the Agency is not required
R.D. at 57–58. 21 U.S.C. 823(f). Respondent to take him at his word that he provided
Respondent nonetheless contends that nonetheless argues that he has put on his complete HPSP file. Here, while
at the hearing, he ‘‘took full ‘‘uncontested evidence of his efforts to Respondent submitted various
responsibility for his drug use and rehabilitate his career.’’ Exceptions at documents related to his participation
diversion of controlled substances.’’ 25. He argues that he ‘‘participated in all in the HPSP program, there is ample
Exceptions at 25. He also argues that he the required programs[,] treatment plan reason to believe that these records are
acknowledged his use of marijuana and and drug testing,’’ and that he has ‘‘met incomplete as they do not appear to
his diversion of Adderall in his first fully every condition and gained the include the initial evaluation conducted
meeting with the DIs, and that trust of the Minnesota Medical Board, by Dr. Albert (his psychologist),26 and
Minnesota Board’s decision to grant him his employer, his peers, and his thus, it remains unclear what he
a conditional license ‘‘is evidence of his patients.’’ Id. Respondent further argues disclosed to the psychologist regarding
acknowledgment of his past drug use that ‘‘[t]he fulfillment of these his history of substance abuse.
and diversion of prescription drugs,’’ conditions cannot simple [sic] be Accordingly, I agree with the ALJ’s
because the Board noted that it ignored because [he] did not sign a conclusion that Respondent has not
‘‘discussed [with him] his use of release for [the DI] to access HPSP produced sufficient evidence of his
controlled substances that had not been directly’’ and that he ‘‘provided her remedial measures to rebut the
prescribed to him.’’ Id. at 24–25. with 82 pages of documentation which Government’s prima facie case.27
I reject Respondent’s contention. His included the quarterly reports, results of
26 The DI testified that upon receiving a file from
assertion that he acknowledged his use toxicology test [sic], his case manager’s
Dr. Hasper, it contained notes for Respondent’s
of marijuana at his first meeting with notes.’’ Id. at 26–27. He also argues that ‘‘first two visits’’ with Dr. Albert, but these notes
the DI is counterfactual, as Respondent ‘‘[t]here is no justification for not were not included in the HPSP records that
asserted that his positive drug test considering the Minnesota Board’s Respondent provided to her. Tr. 481, 497.
following the accident ‘‘was a false Order’’ and that ‘‘[t]he argument that Notwithstanding that Respondent had the burden of
production on the issue of the adequacy of his
positive’’ and that ‘‘he had not used [he] did not disclose the extent of his remedial measures, he did not submit these
marijuana in a long time.’’ Tr. 462. drug use and diversion of controlled documents for the record. See generally Resp.
Moreover, while at the hearing, Exhibits. Moreover, although the Government was
Respondent admitted to facts which 25 As for his contention that the Minnesota eventually provided with these notes, the fact
Board’s decision to grant him a conditional license remains that because Respondent would not agree
establish that the prescriptions he ‘‘is evidence of his acknowledgement of his past to release his HPSP file and did not submit these
issued to S.S. for Percocet and Xanax drug use and diversion of prescription drugs,’’ documents, it remains unclear whether he fully
mstockstill on DSK4VPTVN1PROD with NOTICES2
were outside of the usual course of while Respondent may have admitted to some disclosed his history of substance abuse to his
professional practice and which lacked misconduct in that proceeding, it is unclear exactly treating professionals.
what he admitted to in that proceeding. Also, under 27 As previously noted, in his legal conclusions
a legitimate medical purpose (see R.D. at Agency precedent, Respondent is required to pertaining to factor two, the ALJ explained that if
5–7; Tr. 610–11), he continued to deny acknowledge his misconduct with respect to the Respondent was ‘‘granted the authority to prescribe
that he wrote the Adderall prescription full extent of the misconduct proved on the record often-diverted controlled substances, [his]
in S.S.’s name for the purpose of of this proceeding. See Robert L. Dougherty, 76 FR experience as demonstrated in this record would,
16823, 16834 (2011); Jeffrey Patrick Gunderson, 61 in the event of relapse, constitute a threat to the
obtaining the drugs for his own use and FR 26208, 26211 (1996); Prince George Daniels, 60 public interest, particularly where Respondent
that S.S. had given him the filled FR 62884, 62887 (1995). continues to deny having drug abuse problems
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![Federal Register / Vol. 80, No. 220 / Monday, November 16, 2015 / Notices 71629
hearing conducted at the DEA Hearing
Facility in Arlington, Virginia, on
Summary Order
August 4 and 5, 2014.
The Government has made out a Pursuant to the authority vested in me
prima facie case to deny Respondent’s by 21 U.S.C. 823(f) and 28 CFR 0.100(b), Summary of the Evidence
application based on his material I order that the application of Mark Prior to the hearing, the parties
falsification of his DEA application, his William Andrew Holder, M.D., for a entered into stipulations,4 which will be
diversion of controlled substances to DEA Certificate of Registration be, and presented here, along with summaries of
both S.S. and himself, his substance it hereby is, denied. This Order is testimony taken during two days of
abuse, and the numerous false effective immediately. hearings conducted in Arlington,
statements he made to DEA Dated: November 5, 2015. Virginia.
Investigators and in this proceeding. Chuck Rosenberg, In articulating the bases upon which
Notably, at most, Respondent has the Administrator proposed to deny Dr.
Acting Administrator.
acknowledged his misconduct only with Holder’s application for a Certificate of
respect to the Percocet and Xanax Krista Tongring, Esq., for the Government. Registration, the Deputy Assistant
prescriptions he issued to S.S. While Yende Anderson, Esq., for the Respondent.
Administrator identified the following:
Respondent’s failure to acknowledge his Recommended Rulings, Findings of (1) The Government alleged
misconduct in materially falsifying his Fact, Conclusions of Law, and Decision improprieties with respect to Dr.
application, the circumstances of the Administrative Law Judge Holder’s prescription practice as it
surrounding his issuance of the concerned Patient S.S. on June 4, 2008.5
Adderall prescription, and his false Nature of the Proceeding
The Government alleged Dr. Holder
statements to the Investigators, provides Christopher B. McNeil, prescribed Percocet and Xanax for this
reason alone to conclude that he has not Administrative Law Judge. These are patient under conditions that were
rebutted the Government’s case, he also proceedings before the Drug outside the usual course of professional
failed to produce sufficient evidence in Enforcement Administration and the practice and for other than a legitimate
remediation. Because I conclude that United States Department of Justice, medical purpose.6 The Government
Respondent’s misconduct is both under DEA docket number 2014–13, specifically alleged that Dr. Holder
extensive and egregious, I agree with the captioned ‘‘In the Matter of Mark failed to document a complete medical
ALJ that granting his application William Andrew Holder, M.D.’’ The history and physical exam prior to
‘‘would be inconsistent with the public proceedings are being held pursuant to prescribing controlled substances to the
interest.’’ 21 U.S.C. 823(f). Accordingly, sections 303 and 304 of the Controlled patient, failed to determine the nature
I will adopt the ALJ’s recommended Substances Act, Title 21 United States and intensity of the pain attributed to
order and deny his application. Code sections 823 and 824. the patient, failed to determine the
On March 7, 2012, Respondent Mark patient’s true medication history, and
notwithstanding a history of abuse.’’ R.D. at 64. The W.A. Holder, M.D., applied for a DEA failed to provide a legitimate diagnosis
ALJ then explained that ‘‘[w]hile this risk is Certificate of Registration as a
attenuated during [his] sustained period of stable to support prescribing controlled
recovery, it is sufficiently present here, given the practitioner in Controlled Substance substances to this patient, during an
absence of any on-going monitoring or treatment, to Schedules 2, 2N, 3, 3N, 4 and 5, office visit on June 4, 2008.7 The
warrant a finding that [his] experience in identifying the business location as Administrator further alleged that on
dispensing controlled substances contradicts a 2810 Nicollet Avenue South,
finding that granting this application is consistent June 11, 2008, Dr. Holder issued a
with the public interest.’’ Id. Minneapolis, Minnesota 55408–3160.1 handwritten prescription to Patient S.S.
Respondent argues that ‘‘there is nothing in the After reviewing this application the for Adderall, a Schedule II controlled
record which shows [that he] has a risk of relapse.’’ Drug Enforcement Administrator substance, without creating any written
Exceptions at 21. He argues that ‘‘[h]e was not through her Deputy Assistant
diagnosed with a drug problem,’’ but ‘‘with record of diagnosis or treatment for the
authority conflicts’’ and that he ‘‘fully shared his Administrator issued an order dated prescription.8
history of drug uses with Dr. Albert’’ and April 11, 2014 extending to Dr. Holder (2) With respect to the prescription for
‘‘completed his treatment plan.’’ Id. He then argues the opportunity to show cause why the Adderall dated June 11, 2008, the
that if the Board ‘‘believed that he had a risk of Administrator should not deny this
relapse they never would have removed the Administrator also alleged that Dr.
conditions on his medical license’’ and that the application.2 In the order, the Holder wrote this prescription in order
Government ‘‘did not provide any evidence, Administrator alleged that Dr. Holder’s to illegally obtain the medication for his
testimonial or otherwise, by any professional, registration would be inconsistent with own use; and that after taking control of
serving those with a history of drug abuse, to the public interest and thus should be
contradict’’ the conclusions of Dr. Albert and the the medication, Dr. Holder engaged in
Board. Id. at 22. denied pursuant to 21 U.S.C. 823(f); and behavior resulting in a single-vehicle
I agree that there is no evidence establishing what further alleged that Dr. Holder crash on June 13, 2008 that seriously
Respondent’s risk of relapse is. I conclude, materially falsified a DEA registration injured Dr. Holder and his passenger,
however, that because Respondent would not application, warranting the denial of the
provide the Government with a release allowing it N.P., while Dr. Holder was under the
to obtain his HPSP file directly from the program
application pursuant to 21 U.S.C. influence of THC and amphetamines.9
so that it could verify whether he actually ‘‘fully 824(a)(1) and 824(a)(4).3 (3) The Administrator further alleged
shared his history of drug use’’ with his treating On May 8, 2014, the Office of that consequent to the crash involving
professional, his evidence as to his rehabilitation is Administrative Law Judges for the DEA
insufficient. Dr. Holder and his passenger, the
received Respondent’s May 6, 2014 Florida Department of Health
mstockstill on DSK4VPTVN1PROD with NOTICES2
Of further note, as found above, Respondent also
unlawfully distributed Percocet (oxycodone) and request for a hearing to permit him the indefinitely suspended Dr. Holder’s
Xanax (alprazolam) to S.S. See 21 U.S.C. 841(a)(1); opportunity to establish why his
21 CFR 1306.04(a). While Respondent admitted to application should not be denied. The 4 A.L.J. Ex. 31.
the facts which establish the violation, he has failed parties presented evidence during a 5 A.L.J. Ex. One at 1.
to produce any evidence of remedial training he 6 Id. at 1–2 .
had undertaken in the proper prescribing of
1 Gov’t Ex. Two at 1. 7 Id.
controlled substances. Thus, Respondent has failed
2 A.L.J. Ex. One at 1. 8 Id. at 2.
to produce sufficient evidence of remedial measures
with respect to these violations. 3 Id. 9 Id.
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license to practice medicine in that Medical Association article promoting period, and selling cocaine to Dr. Holder
State, and the Minnesota Board of preventative medicine, and has sporadically.29 He said he would make
Medical Practice initially recommended conducted HIV prevention research and these transactions either at Dr. Holder’s
the denial of his application to practice initiated recommended therapy in Accra personal residence or at locations that
in that State, thereafter granting him a and Ada, Ghana.18 were near to where Dr. Holder was at
restricted, conditional license to When describing why he wanted to go the time.30
practice medicine in Minnesota.10 The to medical school, Dr. Holder stated: ‘‘I According to Patient S.S., he had been
Administrator alleged that despite his thought that medicine was a good way experiencing some pain in his back, and
history of proceedings before the boards to kind of give back to the world. And on June 4, 2008, he visited Dr. Holder
regulating the practice of medicine in I think there’s a huge need for medicine at MD Now to discuss the matter.31
Florida and Minnesota, when asked in in this nation and all over the world, Patient S.S. stated that during this visit,
his DEA application whether he ever and I thought this is a good way to use ‘‘[a] very brief examination was done
had a state professional license the energies that I had.’’ 19 after I filled out all the intake
suspended, denied, or restricted, Dr. paperwork, from his front office staff.
Dr. Holder’s Prescription Practice
Holder falsely answered in the He came in the room, basic
Regarding Patient S.S.
negative.11 examination. [He] wrote me three
(4) The Administrator alleged that in In his testimony and through prescriptions; one was for Xanax for
the course of the investigation into stipulation, Dr. Holder admitted that on anxiety, one was for Percocet for pain
whether Dr. Holder’s application should June 4, 2008, he saw Patient S.S., a 25 and one was Naproxen which was also
be granted, Dr. Holder engaged in year old male, at MD Now’s Royal Palm used as an anti-inflammatory.’’ 32 He
evasive conduct, evinced a lack of Beach Facility.20 This was Dr. Holder’s said Dr. Holder took his blood pressure
candor when responding to initial encounter with Patient S.S. in a and weight, listened to his breathing,
investigators, has given inconsistent or professional capacity, and it was Patient and told him ‘‘he had to make it look
evasive reports of his past drug use, has S.S.’s first visit of any kind to MD like a real examination, so he was going
refused requests from the DEA Now.21 At this encounter, Dr. Holder to spend about five to ten minutes with
investigators seeking records prescribed Percocet and Xanax for me.’’ 33
demonstrating compliance with drug Patient S.S., allegedly for back pain.22 Dr. Holder agreed that the records of
treatment programs in Florida and Percocet 10/235 is the brand name for this encounter indicated his failure to
Minnesota, and has tested positive for oxycodone 10mg/acetaminophen 325 document a complete medical history
prohibited controlled substances during mg and is a Schedule II narcotic and physical examination, as well as his
periods of court supervision subsequent controlled substance.23 Xanax is a brand failure to determine either the nature or
to the June 13, 2008 motor vehicle name for alprazolam, a Schedule IV the intensity of the patient’s pain.34 He
crash.12 controlled substance.24 also acknowledged failing to determine
Dr. Holder acknowledged that when the nature of Patient S.S.’s current and
Background he issued these prescriptions, he was past treatments for the pain.35
Dr. Holder attended the University of acting outside the usual course of his Dr. Holder did not dispute the
Minnesota and Morehouse School of professional practice, and that he did so Government’s claim that while Patient
Medicine, completing his residency for other than a legitimate medical S.S. reported that he currently was
from 2004 to 2007 at Jackson Memorial purpose.25 taking Percocet, Flexeril, and Xanax, the
Hospital in Miami, Florida, with a Patient S.S. explained the patient’s medical records contained no
specialty in family medicine.13 During circumstances under which he obtained mention of who had prescribed these
his residency, he was trained in critical these prescriptions from Dr. Holder. medications and no indication that Dr.
care, emergency medicine, infectious Patient S.S. testified that in 2007 and Holder inquired as to the identity of the
disease, pediatrics, wards medicine, and 2008, while he had a legitimate job treating source or sources who
women’s health.14 Shortly after working part-time in a restaurant and prescribed these medications.36 He
completing that residency program, Dr. running a mortgage branch location, he agreed that his brief treatment records
Holder accepted employment as an also earned money as a drug dealer.26 for Patient S.S. included a diagnosis of
independent contractor at an urgent care He said he was introduced to Dr. Holder ‘‘disc degeneration,’’ despite the
facility called MD Now, which has by an associate who believed Dr. Holder complete absence of any indication that
locations throughout southern Florida.15 was a potential client for cocaine and he reviewed any imaging studies or
Respondent previously held DEA marijuana.27 He said this introduction prior medical records that would
Certificate of Registration BH9956232, occurred six to twelve months before support this diagnosis.37
issued on November 21, 2007, with a the 2008 vehicle crash, adding that he Patient S.S. testified that the only
registered address of 221 164th Street, was able to recall the date of the crash narcotic pills he ever distributed to Dr.
NE., Suite 329, North Miami Beach, because he received a phone call around Holder were those in the prescription
Florida.16 This registration expired by 2:00 a.m. on the day of the crash.28 He for Adderall written by Dr. Holder.38 D-
its own terms on October 31, 2009.17 described selling marijuana to Dr. amphetamine Salt Combo is the generic
In addition to his experience as an Holder once or twice a week during this substitute for Adderall, the brand name
urgent care medical doctor, Dr. Holder for a stimulant containing a mixture of
has evaluated the Cuban health care 18 Gov’t Ex. 37 at 60.
system to formulate a Student National 19 Tr. at 573. 29 Id. at 197.
mstockstill on DSK4VPTVN1PROD with NOTICES2
20 Id. at 610; A.L.J. Ex. 31 at 1–2. 30 Id.
10 Id. 21 Tr. at 610. 31 Id. at 201, 206.
11 Id. 22 Id. 32 Id. at 201.
at 2–3.
12 Id. at 3. 23 A.L.J. Ex. 31 at 2. 33 Id. at 204.
13 Tr. at 87. 24 Id. 34 Tr. at 610 and A.L.J. Ex. One at 1.
14 Gov’t Ex. 37 at 59. 25 Tr. at 610. 35 Tr. at 610 and A.L.J. Ex. One at 2.
15 Tr. at 88–89; A.L.J. Ex. 31 at 1. 26 Id. at 193. 36 Tr. at 610 and A.L.J. Ex. One at 2.
16 A.L.J. Ex. 31 at 1. 27 Id. at 194. 37 Tr. at 610.
17 Id. 28 Id. at 195. 38 Id. at 200.
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amphetamine, a Schedule II controlled 4, 2008, would not support Dr. Holder’s many as four tablets, but it was not more
substance.39 prescription for Percocet for Patient than four because, as he put it, ‘‘I was
Without objection, the Government S.S.46 It was Dr. Rubenstein’s opinion mostly using cocaine myself.’’ 54)
presented the testimony of Mark that Dr. Holder’s June 4, 2008 Dr. Holder agreed that on June 11,
Rubenstein, M.D., as an expert medical prescriptions for Xanax and Percocet 2008, he issued a handwritten
witness in the standard of care for ‘‘cannot be deemed for a legitimate prescription to Patient S.S. for 60 tablets
patients with pain and also as an expert medical purpose’’.47 Similarly, Dr. of 30 mg Adderall, a Schedule II
in biomedical engineering.40 Drawing Rubenstein opined that the June 11, controlled substance.55 He agreed that
from his review of the medical records 2008 prescription for Adderall ‘‘was not he issued these prescriptions from MD
reflecting Dr. Holder’s treatment of provided in compliance with Florida Now’s Lake Worth, Florida facility,
Patient S.S. on June 4, 2008 and the Regulations and Rules . . . and cannot located at 4570 Lantana Road; and that
subsequent prescription of Adderall on be deemed rendered for a legitimate the facility has no medical records or
June 11, 2008, Dr. Rubenstein prepared medical purpose in the usual course of any other documentation of Patient
a written report, dated May 30, 2014.41 professional practice.’’ 48 S.S.’s visit on June 11, nor is there any
In his report, Dr. Rubenstein cited record of the issuance of this
The Adderall Prescription and
State of Florida Board of Medicine Rule prescription.56 Dr. Holder did not
Subsequent Automobile Crash
64B8–9.003, which requires that the dispute the Government’s assertion that
medical record contain ‘‘sufficient Patient S.S. explained that before June he wrote this prescription without
information to support the diagnosis 11, 2008, he and his ex-girlfriend went conducting an examination of Patient
[and] justify the treatment,’’ in opining to Dr. Holder’s house on ‘‘multiple S.S., acknowledging during the hearing
that ‘‘there is no evidence that the occasions’’ to drop off marijuana and ‘‘a that he wrote the prescription without
prescription for Adderall is supported little bit of cocaine.’’ 49 During the making a diagnosis for any condition
by the medical records.’’ 42 Further, hearing, Patient S.S. described one such necessitating the prescription, and
citing the requirement at Board of occasion: without documenting the fact that he
Medicine Rule 64B8–9.013 that the [A] couple of days prior [to June 11, 2008], had prescribed Adderall for Patient
prescription of controlled substances for we were sitting on his porch and we were S.S.57
pain must be based on ‘‘a complete actually smoking marijuana and he said, you When asked during the hearing how
history and physical exam’’ know, I need a favor. Is there a chance that the police found a bottle of Adderall
documenting the ‘‘nature and intensity you can come by my office? I’ll have a identified as belonging to Patient S.S. in
prescription for Adderall waiting for you.
of the pain, current and past treatments the car Dr. Holder was driving at the
You’re going to meet me around back of the
for the pain, effect of pain on physical office. I’m going to hand you the time of the crash, Dr. Holder said
and psychological functioning, etc.,’’ Dr. prescription, you’re going to go get them simply, ‘‘I can’t explain that,’’ adding
Rubenstein opined that the filled. Bring it back here and I’ll pay you for that he might have offered an
prescriptions for Percocet, Flexeril, and it. And he left the money in his car for, to explanation for it in the past, but ‘‘right
Xanax attributed to Dr. Holder were not cover my copay.50 now, I’m at the place where I cannot
supported by the medical records When asked about why Dr. Holder explain how it got there. I do not recall
reviewed.43 turned to Patient S.S. for this favor, how it got there.’’ 58
Dr. Rubenstein also was present for Patient S.S. testified that Dr. Holder told When questioned about the presence
the direct and cross examination of Dr. him that ‘‘since I did you a favor, now of the bottle of Adderall found in the
Holder in the Government’s case in you owe me one. And the favor was that Cadillac after the crash, Dr. Holder
chief. Upon his consideration of the I come in, see him, pick up the admitted to DEA Diversion Investigator
patient records and based on what Dr. prescriptions and have them filled . . . Virginia McKenna that he used Adderall
Holder testified to during the first day and release them to him.’’ 51 Patient S.S. ‘‘on a few different occasions [and] that
of hearing, Dr. Rubenstein testified that said he understood that the ‘‘favor’’ Dr. he obtained it from a colleague [but] he
nothing presented during the hearing Holder had performed for him was did not know where the pill bottle came
caused him to change any of the ‘‘[t]he fact that he wrote me from.’’ 59
findings set forth in his written report.44 prescriptions [for Percocet, Flexeril, and According to Investigator McKenna,
He added, with respect to Dr. Holder’s Xanax] without any real background or when she presented a copy of the
decision to prescribe Xanax after Patient history . . . aside from what was on the Adderall prescription for Patient S.S.
S.S.’s initial visit on June 4, 2008, that initial patient consultation form.’’ 52 written by Dr. Holder,
there was a clear risk of drug diversion Patient S.S. stated that as requested, Initially he said that he did meet with SS
presented, explaining that, ‘‘in [the] he picked up the Adderall prescription, and provide him the prescription, but it
absence of pre-existing history, pre- went next door to Walgreens to fill the wasn’t documented because it had already
existing documentation, or objective prescription, then delivered to Dr. been discussed. Later during the
correlation, you can’t just take conversation, he said he didn’t recall giving
Holder the filled prescription, either
necessarily the patient at their word in the prescription, that he had been in a coma,
leaving it in his Cadillac or handing it and he did not have a good memory of it.
view of the risk of drug dependence, to him directly (he could not recall with And then later in the conversation, he
drug addiction, and drug diversion.’’ 45 certainty which), after first retaining two admitted in fact that he did give the
He opined similarly that the history tablets for his own use.53 (Patient S.S. prescription and repeated that it was not
taken and the physical examination later testified that he may have taken as documented or charted, no exam, because
reported during the office visit on June
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that was already in the prior record.
46 Id. at 315. * * *
39 A.L.J. Ex. 31 at 2. 47 Gov’t Ex. 42 at 1–4.
40 Tr. at 303–04. 48 Id. 54 Id. at 212–13.
41 Gov’t Ex. 42. 49 Tr. at 207. 55 Id. at 611 and A.L.J. Ex. One at 2.
42 Id. at 4. 50 Id. at 208. 56 Tr. at 611 and A.L.J. Ex. One at 2.
43 Id. 51 Id. at 211. 57 Tr. at 611 and A.L.J. Ex. One at 2.
44 Tr. at 305. 52 Id. 58 Tr. at 168.
45 Id. at 313. 53 Id. at 209. 59 Tr. at 475.
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His mother [Dr. Wilhelmina Holder] quite passenger airbag had deployed, and Dr. THC, the active ingredient in
forcefully stated that law enforcement Holder was slumped over her left marijuana.82 Respondent admitted that
planted it in the car. That’s when I turned to shoulder, bleeding profusely.70 he took amphetamines without a valid
Dr. Holder and again asked him, how would Taking her own condition into prescription on or about June 12,
law enforcement know to go specifically to
that person, knowing that that person
account, N.P. testified that she could 2008.83
received a prescription for Adderall from you hardly breathe and was in ‘‘a lot of In addition, the Government
just two days prior, to get the bottle to plant. pain.’’ 71 She had a gash on her left leg, presented testimony from Palm Beach
And he said he didn’t know, that law was in great pain, and learned upon County Sheriff’s Deputy Jesse McCoy,
enforcement had been looking through his being admitted to the hospital that she who gave testimony that was
phone and would have found his number.60 had a severely dislocated elbow, substantially the same as that provided
The passenger in Dr. Holder’s car at shattered cervical spinal discs, and a by Mr. Biramontes, in that he observed
the time of the crash, N.P., provided broken back.72 According to N.P., N.P. having sustained a dislocated
details of what took place on June 13, however, her treatment at the scene had elbow and finding Dr. Holder with a
2008. Because her testimony was to be interrupted, as the first responders bloody face, grunting behind the wheel,
internally consistent, consistent with were diverted when it appeared Dr. refusing to acknowledge the deputy’s
the evidence generally, and not Holder was yelling at those who had presence.84 He added that when
contradicted by any other testimony or come to his aid.73 She said that after members of the Fire Rescue team
evidence, I found her testimony to be surgery, she now has limited mobility in arrived, he saw the members having
credible and gave it great weight. her neck, with sustained periodic back trouble restraining Dr. Holder so that he
N.P. testified that she met Dr. Holder pain; and has been told to expect an could be taken in to the hospital for
in the early morning of June 13, 2008, increase in that pain as she ages.74 treatment.85
when Dr. Holder introduced himself to Also testifying were first responders Also called to the scene of the crash,
her at a nightclub.61 Although N.P. left who encountered Dr. Holder after he although later in time, after Dr. Holder
the club as the passenger in another crashed his car. Ryan Biramontes is a had departed for the hospital, was Palm
vehicle, she encountered Dr. Holder driver operator and paramedic for the Beach Sheriff’s Office Investigator
while in the other vehicle, at which Palm Beach County Fire and Rescue Robert Stephan.86 Investigator Stephan
time Dr. Holder caught her attention, squad, who described responding to a described the crash scene, noted the
and then arranged to follow the car to vehicle accident call at approximately 3 condition of the Cadillac’s windshield
N.P.’s home.62 Once at her home, N.P. a.m. on June 13, 2008.75 He described after the crash, and opined that from the
asked Dr. Holder to take her to a 24-hour encountering N.P., who was crying and spider-webbing fractures and pieces of
Walgreens, and the two then departed in reporting that she was in pain.76 He saw organic material found on the inside of
Dr. Holder’s Cadillac.63 Dr. Holder, who appeared to have the driver’s side of the windshield, it
While making the five-minute drive sustained a head injury, but was not was likely the driver of the car was not
from her home to the drug store, N.P. responding to his name.77 wearing a seatbelt at the time of the
observed that at first Dr. Holder was Mr. Biramontes reviewed reports of crash.87 He said this was confirmed
driving within the speed limit; but that, the crash, and described his encounters during his review of the vehicle’s on-
while engaged in conversation with her, with Dr. Holder after Dr. Holder got out board Crash Data Retrieval System
Dr. Holder missed the turn that would of the vehicle and in an ‘‘altered’’ state report.88
have brought them to the drug store.64 began ‘‘screaming and stumbling The Government also presented the
She said when she brought this to his around.’’ 78 He described the steps other testimony of Palm Beach County Deputy
attention, Dr. Holder ‘‘started moaning responders took to subdue Dr. Holder, Sheriff Judith Little, who testified
and . . . he stiffened up his back. His generally describing Dr. Holder as regarding the condition of Dr. Holder’s
head was, he threw his head back on the ‘‘combative’’ and ‘‘resisting.’’ 79 Cadillac on the morning after the crash.
seat and his eyes were rolling back in Included in the responses by these Specifically, Deputy Sheriff Little said
the back of his head.’’ 65 She said Dr. responders were multiple attempts to she discovered the prescription bottle
Holder’s foot pressed heavily on the subdue Dr. Holder using a Taser, which that had been issued to Patient S.S.,
accelerator, ‘‘his arms were stretched proved to be less than effective.80 He located inside the vehicle.89 She
out holding the steering wheel,’’ and the said that after repeated efforts by a team counted the pills inside the vial, and
car was increasing in speed.66 of responders, they were able to restrain determined there were 41 pills
At this point, N.P. sought to control Dr. Holder, administer Valium, and remaining in the 60-pill June 11, 2008
the vehicle, with one hand reaching for transport him to the Delray Medical prescription.90 Palm Beach County
the steering wheel and the other seeking Center for treatment.81 The toxicology Detective Daniel Morgado, too, testified
the parking brake.67 There was, report provided by Delray Center noted about his review of the crash scene and
however, neither braking nor any that Respondent’s blood taken shortly vehicle in the morning after the crash.91
slowing, when the car hit a concrete after the accident by law enforcement He said he received the prescription
signage wall and light pole.68 Upon tested negative for alcohol and positive bottle and determined that Dr. Holder
impact, N.P. thought she ‘‘was actually for the presence of amphetamines and had issued the prescription out of MD
dead, because I couldn’t see Now’s office for Patient S.S.92 There is
anything.’’ 69 She then realized the 70 Id.
71 Id. 82 A.L.J. Ex. 31 at 2.
60 Tr. 72 Id. at 62, 66. 83 Id.
at 476–77.
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61 Id. at 52. 73 Id. at 64–65. 84 Tr. at 405.
62 Id. at 53–54. 74 Id. at 66. 85 Id. at 407.
63 Id. at 55. 75 Id. at 238. 86 Id. at 270–71.
64 Id. at 58. 76 Id. 87 Id. at 286–91.
65 Id. at 58–59. 77 Id. at 239. 88 Id. at 279–81.
66 Id. at 59–60. 78 Id. at 250. 89 Id. at 396.
67 Id. at 60. 79 Id. at 252. 90 Id.
68 Id. at 61. 80 Id. at 254. 91 Id. at 426–28.
69 Id. at 62. 81 Id. at 258, 260. 92 Id. at 429.
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![Federal Register / Vol. 80, No. 220 / Monday, November 16, 2015 / Notices 71633
no direct testimony from Dr. Holder information and it’s not always [Dr. Holder] answered on the application
accounting for the nineteen Adderall truthful.’’ 103 no. When I asked him about that, he said that
tablets missing from the prescription he didn’t understand the question, that he
The Misrepresentation of Dr. Holder’s wasn’t intending to lie, at which time Mr.
bottle found in Dr. Holder’s Cadillac
Record of Suspensions Harbison interjected, ‘‘why would he lie
after the June 13, 2008 crash, although when he knew it was public record?’’ but I
Patient S.S. acknowledged taking no Dr. Holder acknowledged that on had no, I don’t know why he would or
more than four tablets prior to January 26, 2009, the Florida wouldn’t do such a thing, so I showed him
delivering the vial to Dr. Holder.93 Department of Health issued an the application. And then he said that he
Respondent subsequently was Emergency Suspension of his license to didn’t read the question thoroughly, and
practice medicine.104 He did not dispute that’s when I showed him a sample
criminally charged in Palm Beach application that I had.111
County with driving under the that the Departmental action was the
influence, possession of amphetamines, result of his illegal and unprofessional According to Investigator McKenna,
driving on a suspended license, and conduct surrounding his prescriptions upon being presented with the sample
obtaining amphetamines by fraud. The to Patient S.S., as well as his unlawful application, Dr. Holder:
State of Florida subsequently issued a possession and use of Adderall, and the [W]ent through it and he underlined the
nolle prosse for all criminal charges.94 subsequent traffic crash and DUI first word—‘‘surrendered’’—and stopped. I
arrest.105 Further, he acknowledged that then went on and underlined the rest:
Regarding the crash, Dr. Holder on June 19, 2009, the Florida Board of ‘‘Revoked, suspended, denied, restricted or
presented the testimony of Kester Jimmy Medicine issued a final order placed on probation, or is any other such
Nedd, M.D., who treated Dr. Holder indefinitely suspending his medical action pending?’’
upon his arrival at the hospital.95 Dr. license in Florida.106 MR. LAWSON: So in other words, he was
Nedd is a board certified neurologist trying to tell you that he answered the
and is the Medical Director for Dr. Holder also acknowledged that on question properly because he had never
Neurological Rehabilitation at Jackson March 25, 2011, he applied for a surrendered?
Memorial Hospital.96 Dr. Nedd testified medical license in Minnesota; and that MS. MCKENNA: That could have been the
that from his review of treatment the licensure committee of the suggestion, and I [asked] about his training as
records, he was of the opinion that Dr. Minnesota Board of Medical Practice a student for medical doctor and sitting for
initially recommended denial of the Boards, and I asked him if during those
Holder ‘‘suffered a severe traumatic occasions, ‘‘did you just gloss over the
brain injury with hemorrhage in the application for his failure to show good
moral character.107 He further agreed questions or did you read them thoroughly in
brain’’ and that this ‘‘resulted in order to answer them?’’ And he said he
cognitive impairment.’’ 97 He said Dr. that in November 2011, he was granted didn’t gloss over.112
Holder suffered from ‘‘post-traumatic a restricted and conditional medical
amnesia, where he was in a state of license in Minnesota.108 Dr. Holder’s Lack of Candor in the
confusion and not able to form new The application for a DEA Certificate Investigative Process
memory. This lasted maybe up to, even of Registration requires applicants to In its Order to Show Cause, the
up to when he left the rehabilitation answer the following question: ‘‘[h]as Government averred the existence of
center,’’ at which point Dr. Nedd the applicant ever surrendered (for multiple instances in which it appeared
followed him at the outpatient center.98 cause) or had a state professional license Dr. Holder had been other than
According to Dr. Nedd, Dr. Holder’s or controlled substance registration forthright and honest with state
‘‘cognitive symptoms include trouble revoked, suspended, denied, restricted, regulators and the DEA.113 These
with judgment, reasoning, [and] or placed on probation, or is any such instances included the following:
executive function.’’ 99 Dr. Nedd action pending?’’ 109 Despite holding a 1. Dr. Holder provided inconsistent
testified that even after many years, Dr. restricted and conditional license in statements with respect to the number
Holder ‘‘was still having issues,’’ 100 Minnesota, and despite having had his of doses of Adderall he consumed prior
explaining that ‘‘for many patients with Florida license suspended, when asked to the automobile crash, and gave
traumatic brain injury, this could be a this question in his application for a inconsistent statements regarding how
life-long issue.’’ 101 He added that he DEA Certificate of Registration on he obtained the medication, including a
‘‘would expect that [Dr. Holder] would March 7, 2012, Dr. Holder answered in claim that the presence of Adderall (in
have trouble recalling events’’ the negative.110 the bottle bearing the prescription he
associated with the 2008 crash.102 He On July 19, 2012, Diversion wrote to Patient S.S.) was the product of
added that not only might someone with Investigators McKenna and Joseph Florida law enforcement officers
these symptoms have difficulty Cappello met with Dr. Holder and Dr. planting the bottle in his car, or,
remembering the events relating to the Holder’s attorney, Kent G. Harbison, of alternatively, had been provided by an
crash, such a person might also Fredrikson & Byron, P.A., Minneapolis, unnamed colleague at work.114
substitute alternative facts for what Minnesota. Investigator McKenna said 2. Dr. Holder attributed a positive
actually happened, called she questioned Dr. Holder about this screen for marijuana to be the result of
‘‘confabulation,’’ where ‘‘the patient response as part of her investigation, a false positive, rather than to his own
actually combines many pieces of prior to the issuance of the Order to use of the drug.115
Show Cause. According to Investigator 3. Dr. Holder provided evasive
93 Id. at 212–213. McKenna, answers to DEA agents regarding his
past use of controlled substances, and
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94 A.L.J. Ex. 31 at 2.
95 Tr. at 509. 103 Id. at 519. refused multiple requests from the DEA
96 Id. at 508–09. 104 Id. at 614 and A.L.J. Ex. One at 2. seeking the release of records showing
97 Id. at 510. 105 Tr. at 614 and A.L.J. Ex. One at 2.
98 Id. 106 Tr. at 614 and A.L.J. Ex. One at 2. 111 Tr. at 463.
99 Id. at 510–11. 107 Tr. at 614 and A.L.J. Ex. One at 2. 112 Id. at 463–64.
100 Id. at 512. 108 Tr. at 614 and A.L.J. Ex. One at 2. 113 A.L.J. Ex. One at 3.
101 Id. 109 Gov’t Ex. Two at 3. 114 Id.
102 Id. at 515–16. 110 Id. 115 Id.
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his participation in court-ordered Also working out of the DEA’s Minnesota (the Health Professional
monitoring in Florida through the Minneapolis/St. Paul district office,124 Services Program, or HPSP, report).133
Florida Professional Resource Network, Investigator McKenna was the lead She explained that she needed to see the
and during regulatory monitoring investigator responsible for evaluating contents of these reports in order to
required in Minnesota by the Minnesota Dr. Holder’s March 2012 application.125 corroborate what Dr. Holder was telling
Health Professional Services She explained that a registration her.134 She said she specifically wanted
Program.116 specialist in the office initially reviewed to learn what Dr. Holder’s diagnoses and
4. Records of drug screening results Dr. Holder’s application, then checked prognoses were, and whether there were
during court-ordered monitoring to see if there were any records of board issues relating to his treatment that were
included positive testing for opiates on orders regarding Dr. Holder’s past being addressed or had been addressed
one occasion, the submission of a history.126 She said Dr. Holder did not in the past.135
diluted urine sample on another, and disclose such a history, so when the According to Investigator McKenna,
skipping a call for random sampling on specialist found evidence that the Dr. Holder was not forthcoming with
another occasion.117 medical boards in Florida and securing these reports:
Diversion Investigator Jack Henderson Minnesota had taken action regarding
MR. LAWSON: Okay. And if you can
testified with respect to the process by Dr. Holder’s licenses in those states, the
remember, what sort of documents were you
which his office evaluated Dr. Holder’s file was forwarded to the investigator.127 focused on collecting before you ever spoke
March 2012 application for a DEA Because her testimony was internally with Dr. Holder?
Certificate of Registration in Minnesota. consistent, consistent with the evidence MS. MCKENNA: The Board orders, of
Investigator Henderson is in charge of generally, and not contradicted by any course. And then I wanted to get the law
the diversion control program for the other reliable testimony or evidence, I enforcement file, the police reports, any
DEA in the Minneapolis/St. Paul found her testimony to be credible and supporting documentation to get a clearer
District office.118 After the application gave it great weight. picture of what the allegations were there.
was received on March 8, 2012, The application includes Question MR. LAWSON: Okay. Now your
Investigator Henderson’s office began Three, which asks ‘‘[h]as the applicant investigation went on for quite a long time.
Is that correct?
the process of reviewing the responses ever surrendered (for cause) or had a
MS. MCKENNA: Yes, sir. It did.
Dr. Holder provided in his state professional license or controlled MR. LAWSON: All right. Why did it take
application.119 By June 3, 2013, substance registration revoked, so long?
Investigator Henderson had determined suspended, denied, restricted, or placed MS. MCKENNA: On numerous occasions,
that it appeared Dr. Holder had on probation, or is any such action I requested the HPSP and PRN records from
provided ‘‘inconsistent and potentially pending?’’ 128 In his application, Dr. Dr. Holder in order to afford him the
false information’’ to the DEA, Holder responded in the negative to this opportunity to present his side, so to speak.
warranting the issuance of a show cause question.129 Investigator McKenna then On those occasions, I would get, ‘‘I’ll get
order regarding the application.120 identified documents establishing that them for you,’’ or I would remind him that
I was still waiting for them, and I never really
Asked to provide specific instances Dr. Holder’s medical license had been
received much, if anything.136
that gave rise to his determination, suspended and was currently on
Investigator Henderson noted first a probation in Florida, and was restricted Investigator McKenna said she asked
discrepancy regarding the number of in Minnesota.130 for these reports during the meeting on
dosages of Adderall Dr. Holder admitted Investigator McKenna said that when July 19, 2012, at which time Dr. Holder
to consuming on the evening of the assigned to review an application, her told her he ‘‘would look for them.’’ 137
crash.121 Investigator Henderson said he first task is to check for orders from state He failed to produce the records, and
understood Dr. Holder acknowledged boards, apparently replicating the task when Investigator McKenna repeated
taking one unit, but when asked about attributed to the DEA registration the request during a discussion on
this on June 3, 2013, ‘‘he told me that specialist.131 Doing so, Investigator August 25, 2012, Dr. Holder again
he could have taken on that evening McKenna found the record of offered to provide them.138 When that
between four and six dosage units, but disciplinary action taken with respect to failed, she
more than likely it was five.’’ 122 Dr. Holder’s medical licenses in both
[A]ttempted to subpoena the records and
Investigator Henderson also identified Florida and Minnesota.132 Upon making was instructed I would need a court order or
the business record reflecting the these findings, she then sought copies of a release from Dr. Holder. I then presented
answers provided by Dr. Holder to the the drug monitoring program reports him with a release, one each for Florida, one
questions appearing on the online from Florida (i.e., the Professional for Minnesota, on August 13th of 2013, I
application Dr. Holder submitted in Resource Network, or PRN, report), and believe it was, and asked him if he would
March 2012.123 consent to me receiving the records
receiving a request for the same in July 2014. Tr. personally.
116 Id. at 332–34. MR. LAWSON: And was August 13th the
117 Id. 124 Tr. at 440. date that you actually presented, did you
118 Tr. at 326.
125 Id. at 442. actually go ahead and complete, fill out the
119 Id. at 326–27.
126 Id. at 442–43. release forms?
120 Id. at 327. 127 Id. at 443–44. Upon inquiry, Investigator MS. MCKENNA: Yes, sir. I had the release
121 Id. at 328. McKenna also confirmed testimony by Investigator forms completed. I brought them to him at
122 Id. Henderson regarding the printed copy of this his place of business, at, Whittier Clinic, and
application, stating that the document is two pages presented them to him personally.139
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123 Id. at 334–35. Note: The print-out of this
long, not three, and that there are no questions
document has a caption stating ‘‘DEA Form 224— presented to the applicant other than those shown
Completed,’’ and was identified by Investigator on pages three and four of Government Exhibit 133 Id.
Henderson as a true copy of Dr. Holder’s Two. Tr. at 446. 134 Id.
application. Investigator Henderson acknowledged 128 Gov’t Ex. Two at 3. 135 Id.
that the document (shown as Government Exhibit 129 Id. 136 Id.
53) bears a header that reads ‘‘Page 1 of 3,’’ but at 455.
130 Id. at 448 and Gov’t Exs. 46 through 50. 137 Id. at 464.
testified that to the best of his recollection, the form
131 Tr. at 453. 138 Id. at 469–70.
consists of two pages, not three, and he provided
copies of both pages to Dr. Holder’s counsel upon 132 Id. at 453–54. 139 Id. at 455–57.
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On August 23, 2013, however, Dr. the applicant to provide such Given Dr. Holder’s explicit
Holder informed Investigator McKenna documents or statements within a determination to withhold from the
that he would not sign the release for reasonable time after being requested to Administrator the record of his
either set of records.140 do so shall be deemed to be a waiver by experience at PRN in Florida and his
In the course of her investigation, the applicant of an opportunity to refusal to sign a release allowing the
Investigator McKenna learned of ‘‘three present such documents or facts for DEA access to the full record of his
different occasions where [Dr. Holder] consideration by the Administrator in experience in Minnesota, I give no
either tested positive for opiates, had a granting or denying the application.’’ weight to the balance of Ms. Miller’s
diluted [urine] sample, or missed a The record here establishes that Dr. testimony, including her statement that
testing date.’’ 141 When in November Holder failed to provide a release that Dr. Holder has met all of the conditions
2012 she asked Dr. Holder if he would permit Diversion Investigator of monitoring at HPSP.153
completed the Florida program, Dr. McKenna to obtain a complete record of Further, I note with concern Ms.
Holder said that he had completed the monitoring by HPSP, creating an Miller’s testimony that established June
program.142 Investigator McKenna then instance where by operation of this 2008 as Dr. Holder’s date of sobriety.154
testified: ‘‘I said ‘no. In fact, you didn’t regulation, Dr. Holder has waived the As the Government brought forward
complete the program.’ And that’s when opportunity to present HPSP records for during its examination of Ms. Miller, it
he said that he withdrew from the consideration in this application. The appears Ms. Miller used this as Dr.
program because it was taking too Government timely objected to the Holder’s sobriety date without knowing
long.’’ 143 presentation of Ms. Miller’s testimony, that Dr. Holder tested positive for
During this conversation, Dr. Holder based on 21 CFR 1301.15.148 Finding unprescribed opiate use while a
again stated he would look for records the objection is well-taken, I limit my participant in the Florida PRN program,
of his participation in PRN and HPSP, use of Ms. Miller’s testimony. I do that he submitted a diluted urine
but again failed to provide the requested consider as uncontroverted Ms. Miller’s sample while in that program, and that
records, a process that repeated itself description of the purpose of the these events arose after June 2008.155
when Investigator McKenna met with Minnesota HPSP. The program, Accordingly, I give no weight to Ms.
Dr. Holder in person on January 4, according to Ms. Miller, ‘‘is a state Miller’s testimony that Dr. Holder has a
2013.144 At that meeting, Dr. Holder program that was created by the Health continuous sobriety date of June 2008.
provided 82 pages of records, the most Licensing Boards in 1994 to monitor As of April 2013, Investigator
significant of which were five pages of health professionals with illnesses that McKenna still did not have records of
treatment records written by Marilyn could potentially impair their ability to treatment from PRN, and renewed her
Miller, Dr. Holder’s contact at HPSP.145 practice with reasonable skill and request for those and for records not yet
Evidence of Respondent’s safety.’’ 149 According to Ms. Miller, provided from HPSP.156 No records
Acknowledgement of Wrongdoing and under this program (which is not were forthcoming, however, so
Remediation managed by the state medical board), Investigator McKenna went to see Dr.
she monitors participants for ‘‘substance Holder at his workplace, presenting him
Testifying on behalf of Dr. Holder, Ms.
problems, psychiatric problems, and with releases allowing the release of
Miller said she provides case
medical conditions.’’ 150 PRN and HPSP records.157 Dr. Holder
management services at the Health I do not consider as substantive
Professionals Services Program (HSPS) elected not to sign the releases, telling
evidence Ms. Miller’s proffer of facts Investigator McKenna he had given her
in Minnesota.146 Due to Dr. Holder’s regarding Dr. Holder’s progress in the
failure to supply a release reflecting Ms. all of the records and saying that before
HPSP program. Although Ms. Miller he approved the releases, he wanted to
Miller’s treatment records, it is unclear testified that a substance abuse
whether the records of her services have consult with his sister, who is an
treatment plan has been established for attorney.158 On August 23, 2013,
been fully presented in this proceeding.
Dr. Holder, and that Dr. Holder Investigator McKenna called Dr. Holder
Pursuant to 21 CFR 1301.15,147 the
Administrator may require an applicant complied with that plan, it is not clear regarding the releases. She testified that
to submit such documents or written from the record before me that a Dr. Holder said ‘‘he had already given
statements of fact relevant to the complete record of treatment has ever me all of HPSP’s records, that PRN’s
application as the Administrator deems been produced for the Administrator’s records were full of inaccuracies, and
necessary to determine whether the consideration. Ms. Miller testified that that it would be inappropriate for me to
application should be granted. This while Dr. Holder provided releases have that information and to use it at
regulation provides that ‘‘[t]he failure of authorizing potential employers and this point.’’ 159 As a result, records of Dr.
credentialing agencies to see the full Holder’s participation in and
140 Id. at 479.
record of monitoring at HPSP, Dr. withdrawal from the court-ordered
141 Id. at 471. Holder did not provide a similar release monitoring by PRN in Florida are not
142 Id. at 472. that would have authorized the DEA to available for the Administrator’s review.
143 Id. at 472. see these records.151 It bears noting that on the day
144 Id. at 473. The evidence establishes that Dr. testimony began in this case, Dr. Holder
145 Id. at 474.
Holder requested and received from reported that he experienced a seizure
146 Id. at 532.
HPSP a copy of his case file as it existed of unknown duration the day before,
147 21 CFR 1301.15 Additional information. The
on September 18, 2012,152 but it appears one that came upon him without
Administrator may require an applicant to submit
this case file has not been provided to advance warning, during which he lost
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such documents or written statements of fact
relevant to the application as he/she deems the Government and does not appear as
necessary to determine whether the application part of the record of this proceeding. 153 See id. at 526–27.
should be granted. The failure of the applicant to 154 Id. at 532.
provide such documents or statements within a 148 Tr. at 520. 155 Id. at 533.
reasonable time after being requested to do so shall 149 Id.
be deemed to be a waiver by the applicant of an at 523. 156 Id. at 478.
150 Id. 157 Id.
opportunity to present such documents or facts for
151 Id. at 528. 158 Id. at 479.
consideration by the Administrator in granting or
denying the application. 152 Id. at 535. 159 Id.
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consciousness for a few moments and DR. HOLDER: That’s what it appears to be. Have there ever been any criminal charges
afterwards had ‘‘a little bit of a headache MR. LAWSON: And is that your signature filed against you? This includes charges of
and [was] a bit confused.’’ 160 Dr. Holder on those prescriptions? disorderly conduct, assault or battery, or
DR. HOLDER: That is my signature. domestic abuse, whether the charges were
explained that he could not anticipate
MR. LAWSON: All right. And so you misdemeanor, gross misdemeanor, or felony.
when such a seizure would occur, issued those prescriptions to Patient SS on This also includes any offenses which have
although he ‘‘attribute[d] a lot of it to June 4, 2008? been expunged or otherwise removed from
like extreme fatigue.’’ 161 He said that he DR. HOLDER: Seems like it.166 your record by executive pardon. If so, give
has an unrestricted Minnesota driver particulars, including the date of conduct,
license, despite the fact that if he were Similar deflection can be found when state and local jurisdiction in which the
driving when such a seizure occurred, Dr. Holder was asked about his decision charges were filed.170
there would be nothing he could do to to prescribe Adderall to Patient S.S.
When asked whether there were any In the space provided, Dr. Holder
safely pull over.162 When asked whether wrote ‘‘please view addendum.’’ 171 The
the condition could be controlled by factual misstatements appearing in
paragraph three in the Order to Show addendum describes charges arising
medication, Dr. Holder explained that from the June 13, 2008 vehicle crash,
‘‘[i]t was recommended by a neurologist Cause, Dr. Holder answered in the
negative.167 That paragraph alleges on but no other criminal charges are
that I take medication,’’ but Dr. Holder reported.172 When questioned about the
has elected not to follow that June 11, 2008 Dr. Holder issued a
prescription for 60 tablets of 30 mg true state of his criminal record, Dr.
recommendation and currently takes no Holder testified as follows:
medication for this condition.163 Adderall to Patient S.S. without
Also noteworthy are the impressions conducting an examination, without MR. LAWSON: Okay. And Question 12
created during this administrative making a diagnosis for any condition asks whether any criminal charges have been
calling for the prescription, and without filed against you and you circled yes and
proceeding, by the character of Dr. said, please view addendum, right?
Holder’s responses to questions put to making any documentation to support
DR. HOLDER: Yes.
him during the evidentiary hearing. In the prescription.168 MR. LAWSON: And so your addendum is
many respects, the material facts When the Government asked Dr. part of your application, correct? Because
presented by the Government in its Holder to explain why the June 11, 2008 you had to give an explanation for positive
Order to Show Cause had in one form prescription was hand-written when answers?
or another been stipulated to in advance others in the record were computer- DR. HOLDER: Yes, it is.
of the hearing, or were not disputed generated, however, Dr. Holder offered MR. LAWSON: And I guess going back to
when Dr. Holder was directly a different account of the circumstances the last question I asked you about, did you
questioned about them. In his closing leading to the issuance of this in that addendum disclose every instance in
which criminal charges had been filed
statement, Dr. Holder accurately states prescription:
against you?
that ‘‘at the end of the hearing Dr. MR. LAWSON: Okay. And can you tell me DR. HOLDER: I focused specifically on the
Holder . . . acknowledged that there why that is a handwritten prescription versus incidents of June—
were no factual disputes with respect to the electronically generated prescriptions in ADMIN. JUDGE MCNEIL: You need to
paragraph 2–6 of the Government’s the previous exhibit? answer yes or no to begin that.
Notice [sic] to Show Cause.’’ 164 DR. HOLDER: Yes, well what I assume DR. HOLDER: Okay. Yes. Well. Yes.
Despite having stipulated to key what’s going on here is it seems that he came MR. LAWSON: So your addendum
material facts, however, Dr. Holder to this visit, which the previous prescriptions discloses every instance in your life in which
frequently proved to be either unable or were, and if you look, they are dated different criminal charges have been filed against you?
unwilling to respond directly to dates as well. And then if you look at this DR. HOLDER: In my life. Perhaps there
one um, which was on 11th, meaning that were charges, maybe filed against me another
questions about the evidence that
we, it’s not infrequent that people come in time that I did not mention. So, so maybe it’s
supported those facts. For example, in after the appointment wanting medications no. The answer is no.
advance of the hearing the parties that they usually get and I was refilling those MR. LAWSON: So the answer then is that
stipulated that on June 4, 2008, medicines. you didn’t answer that question completely
Respondent saw Patient S.S., a 25 year MR. LAWSON: Sir, are you saying that the and truthfully on that form? That’s a yes or
old male, at MD Now’s Royal Palm prescription you issued on June 11th to SS no question, Dr. Holder.
Beach facility, and that he prescribed was a refill of a prescription he usually gets? DR. HOLDER: I was—
Patient S.S. 30 tablet of Percocet 10/325 DR. HOLDER: Yes, I am.169 ADMIN. JUDGE MCNEIL: Answer the
and 30 tablets of 2 mg Xanax XR question, please. Completely and truthfully.
Dr. Holder also exhibited a marked
(extended release), later orally changed So go to completely first. Did you answer it
tendency not to fully disclose completely?
to 60 tablets Xanax (immediate information that may call into question MR. LAWSON: Dr. Holder, did you
release).165 his ability to comply with the law, answer, in your addendum did you
When the Government presented doing so both in his representations to completely disclose every instance in which
copies of the prescriptions (Government the Minnesota Board, and in his criminal charges have been filed against you?
Exhibit 5) to Dr. Holder, however, and testimony before me. DR. HOLDER: Let me read the question
asked that he identify them, Dr. Holder’s In the following exchange, again. What’s the question that you are
answers were less than direct. Government’s counsel brought to Dr. pointing to on the, the Minnesota Board
MR. LAWSON: Dr. Holder would you just application? Because I’m certain I was
Holder’s attention the answers
take a look at the documents at Exhibit 5? truthful.
appearing in Dr. Holder’s application for MR. LAWSON: It is Question 12 on Page
And those are three prescriptions issued to licensure in Minnesota, with respect to
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Patient SS, correct? 6 of the form. And I will specifically point
criminal convictions. The application out to you that it says it includes charges of
160 Id. at 80–81.
question, Question 12, provides as disorderly conduct, assault or battery, or
161 Id. at 82. follows: domestic abuse; whether those charges were
162 Id. misdemeanor, gross misdemeanor or felony
163 Id. 166 Tr. at 92–93.
at 83.
164 Respondent’s 167 Id. at 611. 170 Gov’t Ex. 34 at 6.
Written Closing Statement at 11
(citing Tr. at 611–16). 168 A.L.J. Ex. One at 2. 171 Id.
165 A.L.J. Ex. 31 at 1, Stipulation Three. 169 Tr. at 95. 172 Id. at 9-10.
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and includes charges that have been his injuries to being repeatedly tazed from the Minnesota Board any reference
expunged. and beaten by seven police officers who to Patient S.S., nor did he mention
DR. HOLDER: And also, it may not have responded to the scene of the crash.180 taking Adderall on the evening of the
been complete, but it was truthful.
He also minimized the injuries crash, averring instead that he ‘‘did use
MR. LAWSON: So you were truthful about
the charges you chose to disclose? sustained by his passenger, reporting Adderall as used for ADHD without a
DR. HOLDER: And the charges that I only that she ‘‘was treated for an elbow prescription while working long hours.
thought were actually most important. injury on scene,’’ without disclosing I acquired from a colleague who worked
MR. LAWSON: But you had, in fact, you’ve N.P.’s hospitalization and subsequent in the Urgent Care where I worked.’’ 187
been charged with other crimes besides the treatment for orthopedic dislocation and During the hearing before me, however,
one stemming from the June 13, 2008 spinal injuries.181 when asked whether he had been
accident, correct? Beyond what appears to be Dr. diagnosed with ADHD, Dr. Holder
DR. HOLDER: I think disorderly conduct Holder’s tendency to minimize the answered in the negative.188
before.
MR. LAWSON: Right.
injuries he and N.P. suffered as a result Also of concern was Dr. Holder’s
DR. HOLDER: But this was, the charges of this crash, there is also the account of his use of Adderall on the
were dismissed. unresolved inconsistency regarding his day of the crash. Initially, Dr. Holder
MR. LAWSON: Right. They were capacity to describe N.P.’s condition told Diversion Investigator McKenna he
dismissed, but they were charges for after the crash. During the hearing, Dr. had taken one tablet of Adderall on the
disorderly conduct, correct? Holder repeatedly testified that he day before the crash.189 After receiving
DR. HOLDER: I vaguely remember, but you remembered none of the circumstances the toxicology report from the crash
know, I don’t know the details about that. of the crash,182 at one point claiming (i.e., the University of Florida
Nothing came of that incident.
ADMIN. JUDGE MCNEIL: I’ll take that as
that his knowledge of the events at the Diagnostic Reference Laboratory Report
a yes.173 time of the crash was based on police of Dr. Bruce A. Goldberger) 190 and
reports, not his own independent reviewing Dr. Goldberger’s deposition
I also note with concern the question recollection.183 Indeed, the thrust of from the criminal case involving Dr.
of whether Dr. Holder was forthright in testimony from his treating physician, Holder, Investigator McKenna returned
his communication with the medical Dr. Nedd, was that the injuries Dr. to the subject with Dr. Holder during an
boards in Florida and Minnesota in Holder sustained in the crash likely interview on August 25, 2012.191 At that
other respects. In describing his impaired his ability to recall what interview, Dr. Holder said ‘‘he thinks he
recollection of events immediately happened at the time of the crash.184 Dr. might have taken two [Adderall doses]
before and after the motor vehicle crash Holder’s representations to the Florida that night.’’ 192 These accounts, further,
on June 13, 2008, Dr. Holder told me he and Minnesota medical boards, are at odds with what Dr. Holder told
remembered none of the circumstances however, do not reflect the presence of Diversion Investigator Henderson on
of the crash.174 He made no similar any such cognitive impairment, nor do June 3, 2013, when ‘‘[Dr. Holder] told
claim when describing the crash to the they indicate that his answers were me that he could have taken on that
Minnesota Board of Medical Practice. based on his reliance on police reports; evening between four and six dosage
In his Minnesota application, dated to the contrary, his answers appear to units, but more than likely it was
March 18, 2011, Dr. Holder stated that reflect descriptions based on his own five.’’ 193
he had a seizure while driving on June knowledge and recollection. No disclosure of such use appears in
13, 2008; and that ‘‘[a] collision with a Similarly, Dr. Holder’s his description of the events as
sign post followed. Both the passenger representations to the Minnesota Board presented to the Minnesota Medical
and I were in seatbelts and only suffered differed significantly from what he Board.194 While Dr. Holder does
minor injuries form [sic] airbag presented during this administrative disclose that he was charged with
deployment.’’ 175 During this hearing, hearing with respect to his possession of unlawful possession of Adderall, with
however, Palm Beach Sheriff’s Office Adderall at the time of the crash. As fraud to acquire a controlled substance,
Investigator Robert Stephan credibly noted above, in order to demonstrate and with driving under a ‘‘sub-
testified that the evidence gathered at that he has accepted responsibility for therapeutic’’ level of Adderall in his
the scene of the crash established the engaging in the conduct attributed to blood, he does not acknowledge any
driver of the Cadillac was not wearing him in paragraphs two through six in misconduct with respect to Adderall.195
a seatbelt at the time of the crash.176 the Order to Show Cause, Dr. Holder Instead, he reported that he elected not
Further, passenger N.P. credibly ‘‘acknowledged that there were no to appear before the Florida Medical
testified that she suffered a serious cut factual disputes with respect to Board, asserting that he was not
to her leg, dislocation of her elbow, and paragraph 2–6’’ of the Order to Show ‘‘physically or legally’’ fit to participate
multiple spinal injuries, and sustained Cause.185 In paragraph four of that in such a hearing; and that as a result,
in excess of $100,000 in medical Order, the Administrator alleged that after he refused to appear before the
expenses.177 Dr. Holder indirectly Dr. Holder issued the Adderall Florida Board, ‘‘they adopted the
confirmed the severity of N.P.’s injuries, prescription to Patient S.S. ‘‘solely in charges and incorporated the police
testifying that his insurer, Progressive order to illegally obtain amphetamines report as their findings.’’ 196
Auto, paid in excess of $100,000 to for [his] own personal use,’’ and not for During the hearing before me, Dr.
settle N.P.’s civil lawsuit against him.178 any legitimate medical purpose.186 On Holder admitted using Adderall
Dr. Holder’s statement to the Minnesota the other hand, Dr. Holder withheld
Board, however, made no mention of 187 Gov’t Ex. 34 at 10.
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these details.179 Instead, he attributed 180 Id. 188 Tr. at 108.
181 Id. 189 Id. at 464–65.
173 Tr. at 149–52. 182 Id. 190 Gov’t Ex. 14.
at 107, 118.
174 Id. at 107. 183 Id. 191 Tr. at 469.
at 118.
175 Gov’t Ex. 34 at 9. 184 See id. at 510–17. 192 Id.
176 Tr. at 279–81, 286–91. 185 Respondent’s Written Closing Statement at 11; 193 Id. at 328.
177 Id. at 66–71. 194 Gov’t Ex. 34 at 9–10.
A.L.J. Ex. One at 2.
178 Id. at 147. 186 Respondent’s Written Closing Statement at 11; 195 Id.
179 Id. A.L.J. Ex. One at 2. 196 Id. at 10.
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immediately after accompanying Patient duplicity, Dr. Holder stated ‘‘like I said reached a place of joy, advancement and
S.S. to fill the prescription on June 12, before, I did not write this document. I completion. And going from the place where
2008, but did so ‘‘because I wanted to signed it. I read it and signed it. So I I lost everything, you know, with my trust
and faith, has propelled me to the place
stay alert.’’ 197 When asked ‘‘Stay alert can’t tell you exactly what, you know,
where I am right now.208
for what?’’ Dr. Holder responded: I meant on this document.’’ 203
‘‘Seeing patients. I wanted to be alert Dr. Holder then acknowledged that Dr. Holder explained that he currently
while I was seeing patients.’’ When the representation regarding his past use works as a doctor practicing urgent care
asked ‘‘[s]o does that indicate to you of Adderall appearing in his sworn at Whittier Clinic, in a ‘‘family medicine
then that you were in fact working on statement to the Minnesota Board, dated residency.’’ 209 He lives with his wife
June 12, 2008 if you were taking August 8, 2011 was not true.204 There is, (who attended much of the evidentiary
Adderall?’’ he responded ‘‘If I took it, however, no evidence to date that Dr. hearing) and the couple’s three-month
then I probably was working, yes.’’ 198 Holder has ever brought this error to the old daughter, spending a lot of time
When asked to identify by name the attention of the Minnesota Board. with them and with his parents, who are
source of Adderall other than the In his written statement to the Board, part of his ‘‘support system.’’ 210
prescription he wrote for Patient S.S., Dr. Holder makes reference to his past
Pursuant to orders from the Florida
Dr. Holder testified that he ‘‘would use of Adderall. Dr. Holder stated the
Board, Dr. Holder participated in
rather not mention his name,’’ and then following:
monitoring and drug testing by
asserted the source was a medical It is true that, because of a stupid error of Professional Resource Network, or
colleague, a physician’s assistant, judgment, I did obtain improperly from a PRN.211 According to Dr. Holder, PRN
working at MD Now whose first name friend tablets of Adderall. I obtained
Adderall only for the purpose of helping me provides monitoring and testing ‘‘to
is William and whose last name Dr. make sure people are providing
Holder could no longer recall.199 He stay alert during a period when I was
working hard for many hours. I definitely do competent medicine.’’ 212 The criminal
acknowledged, however, that he has not have a ‘‘drug problem,’’ and have never charges arising from the 2008 crash
never disclosed to the management at had a history of anything even close to that. were reinstated for prosecution, but
MD Now that they had an employee I realize and agree that what I did in ultimately those charges were
who was unlawfully distributing obtaining the Adderall was wrong. I had dropped.213 The Florida Medical Board,
controlled substances.200 never done that before and will never do it
again.205
however, did not end its inquiry, but
When describing her interview of Dr.
instead in June 2009 it issued a final
Holder (in the presence of Dr. Holder’s When asked if he agreed that his order indefinitely suspending Dr.
attorney) during a meeting at the DEA statement that he had never used Holder’s license to practice medicine.214
on July 19, 2012, Diversion Investigator Adderall before was a lie, Dr. Holder Dr. Holder testified that after being
McKenna said that when she asked Dr. first denied it was a lie, then reiterated enrolled in a court-sponsored drug
Holder about the bottle of Adderall that ‘‘I don’t understand what this monitoring program in Florida, he left
found in his Cadillac immediately after things written [sic]. I have a problem the program, and has never completed
the crash, with this because I’ve got, I’m, like I’m it.215
[H]e said he said he had no knowledge of mentioning, this is not written by
Dr. Holder explained that in
how the bottle got there. He suggested that me.’’ 206
law enforcement planted it. When I asked Under questioning by his attorney, Dr. November 2010 he submitted a petition
how would the police know to go to that Holder stated he knew diversion of to the Florida Medical Board, seeking
particular individual and ask for that prescription medications would be reinstatement of his medical license.216
particular prescription, he said that the law
‘‘misusing my privilege to practice Included in that petition is the
enforcement was rifling through his cell
medicine and serve the community that following description of Dr. Holder’s
phone and could have found his phone status at the time of the petition, along
number in it, that he had a criminal history I wish to serve,’’ and said he would
never divert medicine, under any with the requirements of PRN-based
or criminal record.
circumstances.207 He said he’s a monitoring:
MR. LAWSON: Who had a criminal
record? changed man now, living a life that is The related criminal matter has been
MS. MCKENNA: The patient on the bottle, different than the one he lived in 2008. referred for pre-trial intervention and
SS. Elaborating, he stated: Respondent is currently complying with the
MR. LAWSON: So, he denied having any requirements for successfully completing the
knowledge of how that bottle got in his car? The way I’ve lived my life back then is Circuit Court’s requirements to avoid
MS. MCKENNA: He did deny it.201 very different from my life now, and I think prosecution for those criminal charges. These
one of the things that this whole opportunity requirements include successful completion
In a similar manner, Dr. Holder gave has made me do, is really kind of surrender of the Comprehensive Alcoholism
what appear to be inconsistent accounts my will to my creator and I’ve always Rehabilitation Program (CARP) as ordered by
to the Minnesota Medical Board and to believed in, you know, Jesus Christ growing the Court. This is a program providing a
me during the hearing, with respect to up, because that’s what I learned. So as long continuum of care to individuals affected by
his past use of Adderall. At the outset, as I’ve known myself, I’ve actually believed alcoholism, drug dependency and co-
Dr. Holder wanted me to know that that Jesus was the Lord of all, etc. But I’ve occurring disorders and PRN is monitoring
never really surrendered my will, so being a Respondent’s participation in the CARP.217
while he agreed with the written very strong-willed person, I still kind of
statement submitted to the Minnesota would do what I wanted to do, even though
Board, what was written there was not I would pray or go to church or whatever.
208 Id. at 186.
209 Id. at 187.
his own work but was instead written
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And I think in this case, I’ve had to
210 Tr. at 187–88.
by his attorney.202 Justifying his completely surrender my will and what I’ve
211 Id. at 143–44.
found from this, is I have actually have
212 Id. at 144–45.
197 Tr. at 109. 213 Id. at 137–38.
198 Id. at 109–10. 203 Id.
214 Id. at 139.
199 Id. at 114–15. 204 Id. at 175–77 and Gov’t Ex. 37 at 10–13. 215 Id. at 137.
200 Id. at 118. 205 Gov’t Ex. 37 at 12 (emphasis sic).
201 Id. at 460–61. 206 Tr. at 176–77. 216 Id. at 146.
202 Id. at 176. 207 Id. at 185. 217 Id. and Gov’t Ex. 30 at 12.
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Although from this description it when he was getting the seizure, and a reproach and meets all applicable
appears Dr. Holder participated in police reached in the car and hit him on standards.232
monitoring by PRN and the CARP his nose a couple of times.’’ 225 Given
It is not clear the extent to which Dr.
program, Dr. Holder elected not to that this account was based on Dr.
Potts is familiar with Dr. Holder’s past,
complete the course of monitoring and Wilhelmina Holder’s recollection of
as his statement was received in lieu of
refused to permit access to these records what her son told her, and given the
live testimony, and as such the
upon request by DEA Diversion unreliable nature of Dr. Mark Holder’s
Government was not able to cross
Investigator.218 As a result, although he account of the circumstances attendant
examine this witness.233 Accordingly,
has been identified as a person affected to the crash, I find I can give little
while I give weight to Dr. Potts’
by alcoholism, drug dependence and co- weight to the testimony of Wilhelmina
description of Dr. Holder’s current
occurring disorders, Dr. Holder has Holder’s account of the crash or its
professional demeanor and
effectively withheld from the aftermath.226
performance, I cannot give weight to Dr.
Administrator records showing his Also testifying on behalf of the Potts’ report that ‘‘Dr. Holder shared
treatment in Florida for these disorders. Respondent was Cidijah Rodney-
The record reflects that the Florida details about the incident in
Somersall, M.D., a pediatrician with a Florida.’’ 234 As a result, while I can and
Board, presumably having the benefit of practice in Atlanta, Georgia.227
PRN’s full report of Dr. Holder’s do receive Dr. Potts’ statement averring
According to Dr. Somersall, Dr. Holder’s successful employment at
incomplete participation in CARP, did
Mark is a very enthusiastic person who Whittier Clinic, those statements do not
not grant Dr. Holder’s request for an was very passionate about, or he’s very
unconditional medical license.219 constitute evidence of any
passionate about medicine and patient care. acknowledgement of past misconduct
Instead, it required that for one year his He’s someone who is, has great bedside
practice be under direct supervision by by Dr. Holder, nor do they serve as
manner. He’s very charming, he has a love for
a board certified physician who was to people, and he always appeared to provide
evidence of remediation for that past
review all of Dr. Holder’s prescriptions, excellent patient care. misconduct.
and that his license be subject to a five He was very good in terms of gathering a Dr. Holder presented live testimony of
year period of probation.220 full history, just finding about the patient, Laurie Kardon, M.D., who spoke in
Also before me is testimony from not only their medical problems, but socially. support of his application. Dr. Kardon
And I mean, I was always impressed by him
Brenda Joyce McGuire, M.D., who spoke worked with Dr. Holder at MD Now in
as a medical student, the kind of care that he
in support of Dr. Holder’s application. provided. He was bright, and he was a great 2007 and 2008, and said he had an
Dr. McGuire’s association with Dr. medical student, and seemed to be a very excellent bedside manner when working
Holder began in 2011, when she and Dr. good healthcare professional.228 there, and that ‘‘[p]atients loved him’’
Holder were volunteers at an for his ability to provide ‘‘accurate
organization that was at the time called Also before me is the sworn statement diagnoses and treatment.’’ 235 Dr.
the African and American Friendship of Jerome Potts, M.D., who is the Kardon testified:
Association for Cooperation and Department Chief of Family and
I trust his medical knowledge, I trust his
Development.221 She testified that she Community Medicine at the Whittier
judgment, I trust his judgment in taking care
holds Dr. Holder ‘‘in high esteem,’’ and Clinic, Hennepin County (Minnesota) of patients and his treatment, and his follow-
that he has always ‘‘shown a lot of Medical Center.229 Dr. Potts avers Dr. up with patients. I would trust him with my
caring for the people that he works with, Holder’s service as an employee at the life and with the life of my family.
that his medical knowledge is extremely clinic in June 2012 has been subject to As a person I knew him mostly in a
good, and that he’s always displayed, close monitoring, including random professional capacity prior to his, his
you know, good character, integrity, toxicology screening.230 Dr. Potts avers accident, and I visited him several times in
[and] compassion.’’ 222 She added that that he has personally closely the hospital, and with him and also got to
supervised and monitored Dr. Holder, know his family after his accident, from the
‘‘Minnesota is becoming increasingly
and states that Dr. Holder ‘‘met all the hospital on forward, and am just as equally
diverse, with large populations of impressed with the hard work that he’s done
immigrants and refugees. Dr. Holder, conditions of his employment and at no
point has he demonstrated a lapse in since his accident to regain, first, his life.
being of African descent, born in Africa That he survived that at all is miraculous,
and raised in this country, relates well judgment or provided substandard care
and just equally impressed with the work,
culturally and even linguistically with a to patients.’’ 231 According to Dr. Potts, the hard work that he has done to regain his
lot of the refugees . . . and immigrants Dr. Holder personal and professional life.236
that we have here.’’ 223 [I]s very diligent in documenting his charts
Dr. Holder also introduced the and they are in compliance with all of our Although testifying about Dr. Holder’s
testimony of his mother, Wilhelmina policies and procedures. His interaction with good reputation, Dr. Kardon
Valerie Holder, M.D., a public health other staff and peers can be described as acknowledged that she was unaware
physician who currently serves as a respectful, professional, and kind. I believe that Dr. Holder admitted to having
that his past issues have made him a more diverted controlled substances through
community advocate who assists in empathetic physician and colleague. He has other employees at MD Now.237 Further,
decreasing ‘‘health disparities’’ and earned my trust and that of his peers and
improving ‘‘health equity.’’ 224 Dr. her opinion is given less weight after
patients. . . . I continue to trust Dr. Holder
Holder described her son’s account of and am confident that he will continue to
considering the response she made to
the 2008 crash, stating that he ‘‘couldn’t deliver quality medical care that is above the Government’s inquiry during cross-
remember much, but he remembered examination. Government’s counsel
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225 Id. at 553.
predicated a question by stating what
218 Tr. at 472, 479. 226 Id. at 553–54.
219 Id. at 146. 227 Id. at 557. 232 Id.
220 Id. and Gov’t Ex. 30 at 2–5. 228 Id. at 559. 233 Id. at 561–62.
221 Tr. at 544. 229 Resp. Ex. T, admitted over Government 234 Resp. Ex. T at 1.
222 Id. at 546–47. objection, Tr. at 561–62. 235 Tr. at 566–67.
223 Id. at 547. 230 Resp. Ex. T at 1. 236 Id. at 568.
224 Id. at 552. 231 Id. at 2. 237 Id. at 570.
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had been established at this point in the Dr. Holder said one of the restrictions does not, by at least preponderance,
hearing: still in place at the clinic in Minnesota overcome the Government’s
Mr. Lawson: I’m telling you that [Dr. was imposed by his employer, in that demonstration that granting a Certificate
Holder has] admitted to [having diverted his current employer has the right to of Registration would be inconsistent
controlled substances through other drug test him for five years, adding that with the public interest.
employees at MD Now] in court under oath, he has never failed a test since Much of what has been presented by
so you can assume it’s true. . . . Does the beginning at this place of the Administrator in the Order to Show
fact that he’s admitted to diverting and using employment.244 The record is silent, Cause is uncontroverted. Dr. Holder
controlled substances unlawfully through his however, with respect to the presence of acknowledged that there were no factual
employment at MD Now change your stated
opinion as to how much you trust him and
any other monitoring requirements. disputes regarding the facts appearing in
value his professional reputation? Dr. Holder stated that if he had his paragraphs two through six of the
Dr. Kardon: It does not, because I don’t DEA certificate of registration, ‘‘I’d be Order.247 Independent of Respondent’s
think that’s true.238 able to moonlight’’ and would not have admissions, the Government presented
the financial problems he currently is preponderant evidence establishing that
Testifying on his own behalf, Dr.
facing.245 When asked why I should Dr. Holder improperly prescribed
Holder sought to relate his history of
recommend the DEA grant his Percocet and Xanax to Patient S.S., then
conflicts with law enforcement officials,
application, Dr. Holder stated: used Patient S.S. in order to illegally
including his being repeatedly being
shocked by a Taser during his encounter For one, I think that it’s clear to me, and obtain sixty Adderall tablets, then,
with first responders after the crash in I want to make it clear to the Court again, that while under the influence of marijuana
2008, and raising the claim that he had I’ve done some wrong things in the past and and amphetamines, caused an
I’ve made some errors in the past, and I’m automobile crash that seriously injured
been arrested for trespassing in taking responsibility for the errors I’ve done.
Minnesota under conditions he felt himself and his passenger.
And since I’ve made these errors, I’ve worked The Government further established a
indicated improper police conduct.239 diligently to the point where I am right now,
He also wanted to express how complying with the things that I needed to
history of professional disciplinary
adversely he had been affected by the comply with to get to this point. action against Dr. Holder in Florida and
crash in 2008, fearing that he ‘‘may And so I deserve my DEA registration. I put Minnesota, throughout which Dr.
never be able to function again’’ but the work in school, I’m a Board-Certified Holder gave false and misleading
that, eschewing surgeries after the crash, Family Medicine physician, and I’ve worked information to the state investigators,
he prayed, ‘‘and I was delivered by all towards these things to this point. and followed that by providing a
Number two, I think that the community materially false answer regarding that
of them, step by step.’’ 240 actually needs me. I think that there’s a need
Dr. Holder admitted to his past use of history when applying for a Certificate
for family physicians and not only family of Registration from the DEA.
Adderall without a prescription, and to physicians, but people that care for people,
his past use of marijuana, but did so and I fall into that category where I care for
Throughout the proceedings before me,
without providing specifics and without people and I’ll do the best job that I can to Dr. Holder has provided inconsistent
identifying a time period for this help people. and evasive responses to questions
conduct.241 When asked whether he And number three, partly because of this presented by the Government, calling
took responsibility for what happened situation as well, I am at no risk of diverting into question whether even now the
in Florida, Dr. Holder again equivocated medicines, and I will be clear to say that I Administrator has a complete record of
would never, in no circumstance would I Dr. Holder’s history of misconduct.
with respect to diversion of controlled
divert medications to anybody else or There is substantial evidence that Dr.
substances: myself.246
Holder obtained the restoration of his
I do take responsibility for the situation
that happened in Florida. And there’s a lot unrestricted state medical license by
of things that I’m very unproud of, and the Analysis providing incomplete and misleading
thing is, is I cannot remember diverting any Four material factual premises compel evidence to the Minnesota Board of
medications with SS. I cannot remember and the ultimate finding required in this Medical Practice. There is also evidence
I honestly cannot remember how the case. First, the record now before the that Dr. Holder unilaterally terminated
medications got into the car, got into my car, his participation in a monitoring
Administrator demonstrates that Dr.
but I do admit completely to using Adderall program required of him by the Florida
without prescriptions. And like I said, there’s Holder has a history of noncompliance
with laws regulating controlled Board of Medicine, without completing
also a lot of my life that I’m not proud of,
substances renders restoring to him a the five-year period of Board-ordered
but I think that from there to now I’ve gone
a long way, and I believe that I’ve displayed DEA Certificate of Registration probation and without completing the
it through my actions.242 inconsistent with the public interest. steps required by that Board to ensure
Second, Dr. Holder’s history of false his rehabilitation prior to his return to
Dr. Holder also pointed to his practice in Florida. Similarly, evidence
completion of the requirements imposed representation to professional boards
and law enforcement authorities calls of rehabilitation in the program
by the Minnesota Medical Board, but established in Minnesota is lacking, as
offered no apologies for failing to into question whether he can be
entrusted with the authority to prescribe that program was based on a less than
complete the PRN monitoring program forthright description of Dr. Holder’s
in Florida—other than to assert that ‘‘I controlled substances. Third, there is
substantial evidence that Dr. Holder illegal and improper conduct in Florida.
really could not support myself in
Florida anymore because the restrictions made a material misstatement when Elements of a Prima Facie Case
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I had on my license.’’ 243 applying for his DEA Certificate of
Registration in 2012. And fourth, while This administrative action began
238 Id. there is some evidence of Dr. Holder’s when the DEA’s Administrator, through
at 569–70.
239 Id. efforts at remediation, that evidence her Deputy Administrator, issued an
at 574–75; see also Gov’t Ex. 37 at 10–11.
240 Tr. at 578. Order proposing to deny Dr. Holder’s
241 Id. at 579. 244 Id. at 588–89. application for a DEA Certificate of
242 Id. at 590–91. 245 Id. at 591.
243 Id. at 581. 246 Id. at 592–93. 247 Respondent’s Written Closing Statement at 11.
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Registration.248 The Order alleged that (2) The applicant’s experience in I find the actions of state medical
granting Dr. Holder’s application would dispensing, or conducting research with regulators in Minnesota and Florida,
be inconsistent with the public interest, respect to controlled substances.
although not cast as
(3) The applicant’s conviction record under
as that term is used in sections 823(f) of Federal or State laws relating to the ‘‘recommendation[s],’’ establish a basis
Chapter 21 of the United States Code.249 manufacture, distribution, or dispensing of for finding that Dr. Holder’s application
Independent of this basis for denying controlled substances. should be denied. Factor One considers
the application, the Government also (4) Compliance with applicable State, ‘‘[t]he recommendation of the
proposes to deny the application Federal, or local laws relating to controlled appropriate State licensing board or
pursuant to sections 824(a)(1) and substances.
(5) Such other conduct which may threaten
professional disciplinary authority.’’ 262
824(a)(4) of Chapter 21 of the United Although the recommendation of the
the public health and safety.254
States Code,250 based on the material applicable state medical board is
misrepresentation appearing in the Any one of these factors may
probative of Factor One, the
March 7, 2012 application regarding constitute a sufficient basis for denying
Administrator possesses ‘‘a separate
whether Dr. Holder’s professional an application for a Certificate of
Registration.255 Any one or a oversight responsibility with respect to
license has ever been suspended or
combination of factors may be relied the handling of controlled substances’’
limited.251 Thus, in order to deny Dr.
upon, and when exercising authority as and therefore must make an
Holder’s application, the Government
an impartial adjudicator, the ‘‘independent determination as to
has the burden of establishing, by at
Administrator may properly give each whether the granting [or revocation] of
least a preponderance of the evidence,
that either (1) allowing Dr. Holder to factor whatever weight she deems [a registration] would be in the public
issue prescriptions for controlled appropriate in determining whether an interest.’’ 263 In the exercise of that
substances would be contrary to the application should be rejected.256 ‘‘separate oversight responsibility,’’ the
public interest; or (2) Dr. Holder Moreover, although the Administrator is Administrator may regard as probative
submitted an application for a obliged to consider all five of the public of the public interest an applicant’s
Certificate of Registration that included interest factors, she is ‘‘not required to experience before state medical boards.
a material misrepresentation of fact; or make findings as to all of the I note the legal premise, presented by
both.252 factors.’’ 257 The Administrator also is the Government in its post-hearing brief,
While the burden of establishing that not required to discuss each factor in that the decisions of state medical
granting a Certificate of Registration equal detail, or even every factor in any boards regarding a licensee’s ability to
application would contravene the given level of detail.258 The balancing of practice medicine in the jurisdiction of
public interest never shifts from the the public interest factors ‘‘is not a
those boards ‘‘are not in any sense an
Government, once the Government contest in which score is kept; the
official recommendation regarding this
meets this burden, Dr. Holder has the Agency is not required to mechanically
count up the factors and determine how proceeding’s outcome.’’ 264 I agree.
opportunity to present evidence that he There is in this record no express
accepts responsibility for his many favor the Government and how
many favor the registrant. Rather, it is recommendation directed to the DEA by
misconduct, and has taken appropriate any medical board, either in support of
steps to prevent misconduct in the an inquiry which focuses on protecting
the public interest.’’ 259 or in opposition to, granting Respondent
future.253 a DEA Certificate of Registration.
Regarding the first of these two bases Factor One—Recommendations of the
for denying Respondent’s application, State Licensing Board Instead, the parties have
under the registration requirements acknowledged by stipulation that the
In its post-hearing brief, the Florida Department of Health issued an
found in 21 U.S.C. 823(f), the Government argues that ‘‘Factors One,
Administrator is expected to consider Emergency Suspension of Respondent’s
Two, Four and Five militate against the license to practice medicine on January
five factors in determining the public issuance of a DEA Registration to
interest when presented with the 26, 2009 and filed an Administrative
Respondent.’’ 260 It then modifies this
actions of a physician seeking to Complaint against Respondent on
argument slightly, asserting only that
prescribe controlled substances These when considering the evidence under February 13, 2009.265 The Florida Board
factors are: Factor One, ‘‘the decisions of the of Medicine issued a final Order
(1) The recommendation of the appropriate Florida and Minnesota Medical Boards indefinitely suspending Respondent’s
State licensing board or professional should be given nominal weight.’’ 261 medical license on June 19, 2009.266
disciplinary authority. The parties further stipulated that
254 21 U.S.C. 823(f). Respondent filed for reinstatement of
248 A.L.J. Ex. One. 255 Robert A. Leslie, M.D., 68 FR 15227–01, 15230 his Florida medical license on
249 21 U.S.C. 823. (DEA March 28, 2003). November 8, 2010, and the Florida
256 Morall v. DEA, 412 F.3d 165, 173–74 (D.C. Cir.
250 21 U.S.C. 824 Denial, revocation, or
Board of Medicine reinstated
suspension of registration (a) Grounds—a 2005); JLB, Inc., d/b/a Boyd Drugs, 53 FR 43945–
02, 43947 (DEA October 31, 1988); see also David Respondent’s medical license pursuant
registration pursuant to section 823 of this title to
manufacture, distribute, or dispense a controlled E. Trawick, D.D.S., 53 FR 5326–01, 5327 (DEA to numerous restrictions, terms and
substance or a list I chemical may be suspended or February 23, 1988); see also David E. Trawick, conditions on December 16, 2010, but
revoked by the Attorney General upon a finding D.D.S., 53 FR 5326–01, 5327 (DEA February 23,
1988).
that thereafter, Respondent voluntarily
that the registrant—(1) has materially falsified any
257 Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir.
application filed pursuant to or required by this
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subchapter or subchapter II of this chapter; . . . [or] 2005); see also Morall v. DEA, 412 F.3d at 173–74 262 21 U.S.C. 823(f).
(4) has committed such acts as would render his (D.C. Cir. 2005). 263 Mortimer B. Levin, D.O., 55 FR 8209–01, 8210
registration under section 823 of this title 258 Trawick v. DEA, 861 F.2d 72, 76 (4th Cir. (DEA March 7, 1990).
inconsistent with the public interest. 1988). 264 Government’s Proposed Findings of Fact and
251 A.L.J. Ex. One at 1. 259 Jayam Krishna-Iyer, M.D., 74 FR 459–01, 462 Conclusions of Law at 30 (quoting Gregory D.
252 21 U.S.C. 823(f); 21 CFR 1301.44(d)–(e); see (DEA January 6, 2009). Owens, D.D.S., 74 FR 36751–01, 36755 (DEA July
also Steadman v. SEC, 450 U.S. 91, 100–01 (1981). 260 Government’s Proposed Findings of Fact and 24, 2009)).
253 Marc G. Medinnus, D.D.S., 78 FR 62683–01, Conclusions of Law at 29. 265 A.L.J. Ex. 31 at 2.
62691–93 (DEA October 22, 2013). 261 Id. at 34. 266 Id.
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surrendered his Florida medical license Florida and Minnesota boards substances. Accordingly, in the analysis
on March 3, 2011.267 performed their assessments of Dr. that follows, evidence pertaining to
Also before me is the parties’ Holder’s fitness to practice medicine in Factors Two and Four will be addressed
stipulation that on March 25, 2011, those states. Accordingly, nothing in our separately.
Respondent applied for a medical record supports a finding that the The record before me includes very
license from the Minnesota Board of elements of Factor One warrant a little evidence regarding Dr. Holder’s
Medical Practice (BMP); that by letter conclusion that granting Respondent’s experience dispensing controlled
dated June 21, 2011, Respondent was application would be consistent with substances. By training, he noted
informed that the BMP’s Licensure the public interest. experience in clinical settings here and
committee intended to recommend abroad that suggest a deep
denial of Respondent’s application.268 Factor Two—Dispensing Experience understanding of the medical needs of
By letter dated August 9, 2011, With respect to Factors Two and Four, the poor. As Dr. Kardon noted in her
Respondent’s then-counsel requested the Government in its post-hearing brief correspondence with the Minnesota
reconsideration before the BMP.269 This addresses both factors together.273 I Board of Medical Practice, Dr. Holder
letter included an affidavit from think the better practice is to examine ‘‘is committed to the humanitarian goal
respondent as well as several Factors Two and Four separately. Under of improving healthcare for the poor and
enclosures.270 By letter dated September 21 U.S.C. 823(f)(2) (Factor Two), the underserved.’’ 275
26, 2011, the Minnesota BMP requested Administrator is required to consider Most of his reported experience to
Respondent’s personal appearance ‘‘experience in dispensing, or date, however, appears to have had little
before the Licensure Committee to conducting research with respect to to do with prescribing controlled
discuss his application to practice controlled substances.’’ 274 substances. After successfully
medicine, and after Respondent This provision calls for an completing his residency, Dr. Holder
appeared before the Licensure examination of a prescription writer’s continued to gain experience in a
Committee and discussed his use of familiarity with the complexities clinical practice in fields not generally
controlled substances that had not been associated with dispensing controlled associated with dispensing controlled
prescribed for him, on November 12, substances under the Controlled substances, including service as the
2011, Respondent was granted a Substances Act. Where, from the program coordinator for African and
restricted, conditional license to evidence, it appears a prescribing American Friendship Association for
practice in Minnesota, and one year source’s conduct, training, or Cooperation and Development, which
later Respondent was granted an credentials (i.e., his or her experience) involved planning and implementing
unrestricted license to practice creates in the Administrator’s mind a curriculum for the Foreign Trained
medicine in Minnesota.271 substantial concern regarding the Health Care Professional—Medical
My concern with respect to evidence source’s prescription practice, Factor English program; service as the founder
relating to the licensure actions taken by Two requires the Administrator to of Land Pilot, Inc. in Crozierville,
the medical boards in Florida and examine such conduct, training and Liberia, developing ‘‘a conglomerate of
Minnesota rests not so much with their credentials. The purpose of such an various enterprises recognized for
ultimate decisions, but with the process examination is not limited to only those superior quality of services and
that led to those decisions being made. instances where the source violated a products in Liberia’’ in 2009; service as
The Government is correct, in my view, provision of controlled substance law. founder of M.B.H. Wellness Report,
in proposing that Respondent’s Were that the purpose of 21 U.S.C. which developed ‘‘a holistic approach
misrepresentations to these boards call 823(f)(2), Factors Two and Four would to increase both the quantity and quality
into question whether the actions taken be duplicative, and Factor Two would of life in a nontraditional medical
by these regulators would be the same have no meaning distinct from that of setting’’ in 2009; service as founder of
had they been told the same things Dr. Factor Four. Liberian Initiative for Enrichment in
Holder reported as true during this By Factor Two’s plain language, Monrovia, Liberia, where he developed
administrative process. Congress called for more than a mere an institution that ‘‘conducts clinical
The Government’s identification of consideration of violations of controlled research specifically for African
the nature of these misrepresentations substance laws when the Administrator American pollution globally’’; service
accurately reflects the many ways in engages in a review under Factor Two. from 2009 to 2010 as chairman of the
which the two state medical boards In my view, evidence of deficiencies in board of Bentol Development
were acting with less than a complete an applicant’s conduct, training, or Association, ‘‘assisting in the economic,
and accurate record due to Dr. Holder’s credentials could support a finding that medical, and social planning for the
duplicity.272 Those misrepresentations the public interest would not be well- development’’ of his mother’s
regarding Dr. Holder’s ability to recall served by permitting the applicant to hometown in Liberia; and service from
what happened immediately preceding prescribe controlled substances, even if 2006 to 2008 as founder and president
the June 2008 crash, his description of there was no showing that the conduct of Mperial Health PA in Miami, Florida,
his history of abusing marijuana and amounted to a violation of laws relating ‘‘operating healthcare consultation and
Adderall, and his description of the to the distribution of controlled providing medical services through
nature of his injuries and those of his emergency home visits, urgent care
passenger, all threaten the integrity of 273 Id. at 34–35. centers, and wellness training.’’276
the administrative process by which the 274 In this context, ‘‘dispensing’’ is defined as From this record, the most significant
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‘‘deliver[ing] a controlled substance to an ultimate
user or research subject by, or pursuant to the post-graduate prescribing experience
267 Id.
268 Id.
lawful order of, a practitioner, including the attributed to Dr. Holder is that which he
269 Id.
prescribing and administering of a controlled obtained while working at MD Now for
at 3. substance and the packaging, labeling or
270 Id. seven months 277 and while serving in
compounding necessary to prepare the substance
271 Id.
for such delivery. The term ‘dispenser’ means a
272 See Government’s Proposed Findings of Fact 275 Gov’t Ex. 37 at 5.
practitioner who so delivers a controlled substance
276 Id. at 29.
and Conclusions of Law at 31–33 and citations to to an ultimate user or research subject.’’ 21 U.S.C.A.
the record therein. § 802(10). 277 Tr. at 120.
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his family medicine residency at the federal, or local laws relating to because of his injuries he recalled none
University of Miami from 2004 to 2007. controlled substances.’’ 279 ‘‘A of the details of the 2008 automobile
Even here, however, while this prescription for a controlled substance crash, I can only conclude Dr. Holder
experience includes training in critical is unlawful unless it has been issued for intentionally misled the Minnesota
care and emergency medicine (both of a legitimate medical purpose by an Medical Board when he stated, under
which may emphasize the use of individual practitioner acting in the oath, that neither he nor his passenger
controlled substances), the residency usual course of professional ‘‘was seriously hurt from the
reflects a curriculum that was not practice.’’ 280 Departing from the usual accident.’’ 284 Nothing from the records
concentrated in a practice requiring the course of professional practice can have pertaining to that crash, including the
dispensation of controlled substances, profound negative consequences. Here, police report and records created in
including emphases in infectious by acknowledging the truth of those N.P.’s lawsuit seeking damages for
diseases, pediatrics, ‘‘wards’’ medicine, facts appearing in paragraphs two injuries she sustained in that crash,
and women’s health. Thus, while Dr. through six in the Order to Show Cause, would have supported Dr. Holder’s
Holder’s experiences as an independent Dr. Holder has acknowledged in his description of the consequences of the
contractor at MD Now and parts of his post-hearing brief that the record crash.
residence do suggest experience in establishes by preponderant evidence Similarly, his inconsistent testimony
dispensing controlled substances, the that he failed to comply with applicable regarding his history of drug use, his
overall arc of his practice has not been law relating to controlled substances.281 professed inability to recall where he
one that would support a finding that Upon such evidence the Government obtained illicit supplies of controlled
his experience in dispensing controlled has demonstrated that granting substances, his use of deflection and
substances is substantial. Respondent’s application would not be non-responsive answers during the
The record also establishes, through in the public interest, and has therefore hearing, and his refusal to provide DEA
the testimony of Dr. Holder and Patient established a legally sufficient basis for Diversion Investigator McKenna
S.S., that Dr. Holder entered the world the Administrator to deny this complete copies of his treatment and
of drug dealers, using his experience application under Factor Four. monitoring at PRN and HPSP after
and his association with Patient S.S. to repeated requests for the same, all
Factor Five—Other Conduct
acquire cocaine and marijuana on a constitute preponderant evidence of
regular basis. As a result of his In its post-hearing brief, the ‘‘other behavior’’ warranting a finding
association with Patient S.S., Dr. Holder Government urges that the that registration would be inconsistent
is not only knowledgeable in the ways Administrator make an adverse finding with the public interest under Factor
and means used to acquire illicit under Factor Five, based on Dr. Holder’s Five.
controlled substances; he is now ‘‘complete and utter lack of candor’’ to
personally experienced in those ways the DEA and to state regulators.282 Material Falsification of a DEA
and means. Factor Five calls for the Administrator Registration Application
Coupling this character of experience to consider the public interest in the The record establishes that when he
with the negative features of his context of ‘‘[s]uch other conduct which submitted his DEA application for
experience arising out of his improper may threaten the public health and registration on March 7, 2012, Dr.
prescription practice, discussed below safety.’’ 283 A history of substance abuse, Holder falsely represented his medical
in the analysis of Factor Four, I find the coupled with a pattern of obstructing licenses had never been suspended,
Government has presented under Factor and misleading governmental officials denied, or restricted. ‘‘Just as materially
Two preponderant evidence when the abuse created significant falsifying an application provides a
establishing that granting Respondent a problems for Dr. Holder, is evidence of basis for revoking an existing
DEA Certificate of Registration would be conduct that may threaten the public registration without proof of any other
inconsistent with the public interest. health and safety. misconduct, see 21 U.S.C. 824(a)(1), it
In discussing Factor Five, I exclude also provides an independent and
Factor Three—Conviction Record for the moment my assessment of the adequate ground for denying an
Under Factor Three the Administrator evidence pertaining to the DEA application.’’ 285 Thus, I can and do
is to consider an applicant’s conviction application filed by Dr. Holder. Making recommend denying Dr. Holder’s
record under federal or state laws a material misrepresentation in a DEA application based on the false
relating to the manufacture, application is conduct that falls within information he provided in his March 7,
distribution, or dispensing of controlled the scope of 21 U.S.C. 824(a)(1), and as 2012 application, irrespective of the
substances.278 Neither the Government such it is beyond the scope of Factor Government’s claim that his registration
nor Respondent has raised any claims Five and will be addressed below. is not consistent with the public
pertaining to Factor Three, and there is The Factor Five concerns that are
interest.
no evidence that Dr. Holder has been raised in this record arise when we In his post-hearing brief, Dr. Holder
convicted of any laws related to examine Dr. Holder’s conduct before the argues that the misrepresentation was
dispensing controlled substances. state medical boards, his behavior not ‘‘material,’’ and that as such there
Accordingly, Factor Three does not during the DEA investigation into his was no violation of 21 U.S.C.
serve as a basis for granting or denying application, and his conduct before me 824(a)(1).286 In support, Dr. Holder
Respondent’s application for a DEA during the evidentiary hearing. If I asserts that the false answer ‘‘was not
Certificate of Registration. accept as true Dr. Holder’s claim that capable of influencing the agency.
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Factor Four—Compliance With 279 21
Answering the liability questions in the
U.S.C. 823(f)(4).
Applicable Laws 280 Sun & Lake Pharmacy, Inc., D.B.A. The
negative does not grant an applicant a
Medicine Shoppe, 76 FR 24523–02, 23530 (DEA favorable response; it leads to
Under Factor Four, the Administrator May 2, 2011).
may consider evidence regarding 281 Respondent’s Written Closing Statement at 11. 284 Gov’tEx. 37 at 10.
‘‘[c]ompliance with applicable state, 282 Government’s Proposed Findings of Fact and 285 The Medicine Shoppe Pharmacy, 74334–01,
Conclusions of Law at 37. 74338 (DEA December 31, 2007).
278 21 U.S.C. 823(f)(3). 283 21 U.S.C. 823(f)(5). 286 Respondent’s Written Closing Statement at 6.
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verification by a registration specialist. agency,’’ 295 and that Dr. Holder’s false application for registration that he knew
It is the findings of the registration response to Question Three was contained materially false information.
specialist that has the capacity to therefore not material. I am mindful that denial of an
influence the agency.’’ 287 As the Government sufficiently points application may be appropriate based
The factual predicate for this out in its post-hearing brief, ‘‘[a]nswers on an unintentional falsification, as
argument is that when an application is to the liability question[s] are always noted in Dr. Holder’s post-hearing
filed with the DEA, a registration material because DEA relies on the brief.300 Thus, if the Administrator were
specialist employed by the DEA checks answers to these questions to determine persuaded that the record before her
to see if the applicant’s medical license whether it is necessary to conduct an does not support a finding of intentional
has been subject to adverse action by investigation prior to granting an falsification, denial of the application
any state medical licensing board. Dr. application.’’ 296 I find substantial would still be available, provided she
Holder correctly notes that in her evidence supports the factual premise recognize that ‘‘intent to deceive is a
testimony, Diversion Investigator presented by the Government, that relevant consideration in determining
McKenna explained that when her Respondent’s false answer to Question whether a registrant or applicant should
office receives an application for Three was ‘‘designed to shield possess a DEA registration.’’ 301 I find
registration, a registration specialist Respondent’s DEA application from the this step to be superfluous, given that
working at the office queries the state same troubling scrutiny that his from the evidence before me I find Dr.
boards to determine if there any board application for a Minnesota medical Holder purposefully answered as he
actions present online.288 Because the license was subject to.’’ 297 Put did, intending on obtaining his best
office she works at covers Minnesota differently, when Dr. Holder’s former chance at securing a DEA registration
and North Dakota, the specialist used attorney, Mr. Harbison, asked without disclosing his past disciplinary
the Internet to check the records Investigator McKenna the rhetorical experiences.
maintained by the medical boards of question, ‘‘why would [Dr. Holder] lie
those two states.289 When the specialist when he knew it was public record?’’, Evidence of Remediation
discovered board action in Minnesota, the answer is that by doing so, Dr. Where the Government has
she was, by internal office policy, Holder could hope to obtain a DEA established by at least a preponderance
unable to proceed on her own, and Certificate of Registration, if no one at of the evidence that granting an
instead had to forward the application the DEA checked to confirm the truth of application for a Certificate of
to a Diversion Investigator to his answers.298 Registration is not in the public interest,
investigate.290 The evidence further establishes that the applicant has the ability to present
According to Investigator McKenna, Dr. Holder’s decision to answer evidence of remediation. Mitigating
when Dr. Holder’s application was Question Three in the negative was evidence relevant to these proceedings
brought to her attention (after the intentional. When given the opportunity generally includes two elements: An
specialist determined there was a to explain his response to this question acknowledgement of responsibility by
disciplinary record regarding Dr. Holder during Investigator McKenna’s meeting the applicant, and evidence of
in the records of the Minnesota Board), with him, Dr. Holder reviewed the corrective measures taken by the
she too checked the Board’s online language in Question Three, and applicant.
records.291 In this way, she not only underlined the first word, From the evidence before me,
found evidence of Board action in ‘‘surrendered’’ to indicate he answered however, I find insufficient evidence to
Minnesota, but those records referred to in the negative after reading just this establish the presence of remediation
Board action in Florida, leading part of the question.299 There is, efforts that would mitigate adverse
Investigator McKenna to learn about the however, no evidence suggesting he was findings based on Factors One, Two,
Florida Board’s suspension of Dr. unaware of the rest of the words in the Four and Five. Dr. Holder testified that
Holder’s license and his subsequent question, nor that he sought any ‘‘I’ve had to completely surrender my
surrender of the same.292 guidance with respect to the meaning of will and what I’ve found from this, is I
In his argument, Dr. Holder correctly the words used in the question. The have actually have reached a place of
posits that the Government ‘‘has to question is not of such complexity that joy, advancement and completion.’’ 302 I
show that the applicant provided false a person of ordinary intelligence would have no reason to doubt this claim, but
information in his/her application and have difficulty understanding each of its neither can I use this claim to support
that the false information provided is terms; and the circumstances attendant a recommendation in Dr. Holder’s favor.
material.’’ 293 He also correctly posits to filling out such an application are not The most probative evidence of Dr.
that a false statement is ‘‘‘material’ if it so alien as to suggest persons filling out Holder’s efforts to address any drug
has a natural tendency to influence or the application would not know they abuse problems he may have had would
was capable of influencing the decision needed to read the entire text of each have come from the reports by monitors
making body to which it is question before answering the same. in the Florida PRN program and
addressed.’’ 294 I reject as without merit From the testimony presented and the Minnesota’s HPSP program. Even as he
his conclusion, however, that because a documentary evidence now before me, I insists he has and had no drug abuse
registration specialist reviews these find substantial preponderant evidence problem, the evidence of drug abuse
applications, it was only the specialist establishing Dr. Holder submitted an associated with the 2008 crash, his
who has ‘‘the capacity to influence the abuse of marijuana and cocaine prior to
295 Respondent’s Written Closing Statement at 6–
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287 Id. at 7. 7. 300 Respondent’s Written Closing Statement at 6
288 Tr. at 444. 296 Government’sProposed Findings of Fact and
289 Id.
(citing Darryl J. Mohr, M.D., 77 FR 34998 (DEA June
Conclusions of Law at 29–30 (emphasis added sic) 12, 2012)).
290 Id.
(quoting Theodore Neujahr, D.V.M., 65 FR 5680–01, 301 Respondent’s Written Closing Statement at 6
291 Id. at 453. 5681 (DEA February 4, 2000)). (citing Darryl J. Mohr, M.D., 77 FR 34998–01,
292 Id. at 453–54. 297 Government’s Proposed Findings of Fact and
[35013] (DEA June 12, 2012)) (quoting Rosalind A.
293 Respondent’s Written Closing Statement at 6. Conclusions of Law at 30. Cropper, M.D., 66 FR 41040–02, 41048 (DEA August
294 Id. (citing The Medicine Shoppe Pharmacy, 72 298 Tr. at 463. 6, 2001)).
FR 74334–01, 74338 (DEA December 31 2007)). 299 Id. at 463–64. 302 Tr. at 187.
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![Federal Register / Vol. 80, No. 220 / Monday, November 16, 2015 / Notices 71647
7. In order to establish a basis for preponderance of the evidence the Further, admitting fault is ‘‘properly
denying an application for a Certificate Government establishes, as is the case consider[ed]’’ by DEA to be an
of Registration based on the provisions here, that Respondent refused without ‘‘important factor [ ]’’ in the public
of 21 U.S.C. 823(f)(3) (Factor Three), the good cause shown to execute releases interest determination.309
Government must present evidence of granting the DEA access to monitoring 13. The record now before the
Respondent’s conviction record under reports in Minnesota and Florida; Administrator establishes that
federal or state laws relating to the provided misleading accounts of the Respondent has failed to timely provide
manufacture, distribution, or dispensing circumstances surrounding the June 13, the DEA with reports of his treatment or
of controlled substances. As this Factor 2008 motor vehicle crash in reports monitoring from the Florida Medical
is neither alleged by the Government tendered to medical boards in Florida Board and PRN and from the Minnesota
nor suggested by the evidence, this and Minnesota and in his accounts of Board of Medical Practice and HPSP;
Factor may not be considered to support the same to DEA investigators; and failed to acknowledge the need to
the denial of Respondent’s application provided inconsistent and misleading provide forthright, accurate, and
for a DEA Certificate of Registration. accounts of his history of drug use to the complete responses to questions
8. Under 21 U.S.C. 823(f)(4) (Factor DEA and to medical boards in Florida presented regarding his prescription
Four), the Administrator is to consider and Minnesota, the Government has met practice and his history of drug abuse;
the Respondent’s compliance with its burden of demonstrating that and failed to account for his false
applicable state, federal, or local laws granting Respondent’s application for a statement in making this application for
relating to controlled substances. DEA registration would be inconsistent DEA registration. Upon such evidence,
Federal law relating to controlled with the public interest under Factor Respondent has not rebutted the
substances includes the requirement Five. Government’s prima facie case.
that all prescriptions for controlled 10. Upon such evidence, the Accordingly, the Government has
substances must be for a legitimate Government has met its burden and has established cause to deny this
medical purpose and must be issued in made a prima facie case in support of application.
the ordinary course of a professional the proposed order denying
Respondent’s application for a DEA Recommendation
medical practice.305 Where the
preponderant evidence establishes Certificate of Registration. As the Government has pursuant to 21
Respondent unlawfully prescribed 11. Where the Government has made U.S.C. 824(a)(1) established by
Percocet and Xanax to Patient S.S. on out its prima facie case supporting the preponderant evidence that Respondent
June 4, 2008, and unlawfully obtained denial of an application, Respondent has materially falsified an application
and self-administered Adderall on June has the opportunity to demonstrate by filed pursuant to subchapters I or II of
11, 2008, the Government has preponderant evidence that through Chapter 13 of Title 21, United States
demonstrated a basis for finding that acknowledgement and remediation, Code; and as the Government has
granting this application would be granting Respondent’s application for a pursuant to 21 U.S.C. 824(a)(4)
inconsistent with the public interest, DEA Certificate of Registration would be established by preponderant evidence
under Factor Four. consistent with the public interest. that granting a DEA Certificate of
9. Under 21 U.S.C. 823(f)(5) (Factor 12. Because ‘‘past performance is the Registration to Respondent would be
Five), the Administrator is to consider, best predictor of future inconsistent with the public interest,
‘‘[s]uch other conduct which may performance,’’ 307 where an applicant and as Respondent has failed to rebut
threaten the public health and safety.’’ has committed acts inconsistent with the case presented by the Government,
Respondent’s actions or omissions that the public interest, the applicant must Respondent’s application for a DEA
threaten the public interest may accept responsibility for his or her Certificate of Registration should be
constitute a basis for denying an actions and demonstrate that he or she DENIED.
application for a DEA registration under will not engage in future misconduct.308
Dated: October 9, 2014.
Factor Five, where the conduct is not s/ CHRISTOPHER B. MCNEIL
307 Medicine Shoppe-Jonesborough, 73 FR 364–
within the scope of Factors One through Administrative Law Judge
01, 387 (DEA January 2, 2008) (quoting ALRA Labs.,
Four.306 Where by at least a Inc., v. DEA, 54 F.3d 450, 452 (7th Cir. 1995)). [FR Doc. 2015–28928 Filed 11–13–15; 8:45 am]
308 Medicine Shoppe-Jonesborough, 73 FR at 387
305 Sun & Lake Pharmacy, 76 FR 24523–02, 24530 (citing Samuel S. Jackson, 72 FR 23848–01, 23853 BILLING CODE 4410–09–P
(DEA May 2, 2011) (quoting 21 CFR 1306.04(a)); (DEA May 1, 2007)); John H. Kennedy, 71 FR
George C. Aycock, M.D., 74 FR 17529–01, 17541 35705–01, 35709 (DEA June 21, 2006); Prince 309 Medicine Shoppe-Jonesborough, supra, 73 FR
(DEA April 15, 2009). George Daniels, 60 FR 62884–01, 62887 (DEA at 387 (quoting Hoxie v. DEA, 419 F.3d 477, 483
306 21 U.S.C. 823(f)(5). December 7, 1995). (6th Cir. 2005)).
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Document Created: 2015-12-14 14:12:46
Document Modified: 2015-12-14 14:12:46
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| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
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| FR Citation | 80 FR 71617 |
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