82 FR 49704 - Lon F. Alexander, M.D.; Decision and Order
DEPARTMENT OF JUSTICE
Drug Enforcement Administration Federal Register Volume 82, Issue 206 (October 26, 2017)
Drug Enforcement Administration
Federal Register Volume 82, Issue 206 (October 26, 2017)
| Page Range | 49704-49731 | |
| FR Document | 2017-23339 |
[Federal Register Volume 82, Number 206 (Thursday, October 26, 2017)] [Notices] [Pages 49704-49731] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-23339] [[Page 49703]] Vol. 82 Thursday, No. 206 October 26, 2017 Part II Department of Justice ----------------------------------------------------------------------- Drug Enforcement Administration ----------------------------------------------------------------------- Lon F. Alexander, M.D.; Decision and Order; Notice Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices [[Page 49704]] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 16-17] Lon F. Alexander, M.D.; Decision and Order On February 4, 2016, the Deputy Assistant Administrator, of the then Office of Diversion Control, issued an Order to Show Cause to Lon F. Alexander, M.D. (hereinafter, Respondent), of Hattiesburg, Mississippi. ALJ Ex. 1, at 1. The Show Cause Order proposed the denial of Respondent's application for a DEA Certificate of Registration as a practitioner, on the ground that his ``registration is inconsistent with the public interest.'' Id. (citing 21 U.S.C. 823(f)). As for the Agency's jurisdiction, the Show Cause Order alleged that Respondent had previously held a registration which he surrendered for cause on January 16, 2014. Id. The Order further alleged that on January 9, 2015, Respondent applied for a new registration as a practitioner in schedules II through V, at the proposed registered address of 36 Bridgefield Turn, Hattiesburg, Mississippi. Id. As for the substantive grounds for the proceeding, the Show Cause Order raised multiple allegations to the effect that, on numerous occasions in 2011 through 2013, Respondent violated federal and state law by issuing controlled substance prescriptions to his wife ``that were nontherapeutic, were for other than a legitimate medical purpose, and were issued outside of the usual course of [his] professional practice.'' Id. at 1-3. The Show Cause Order alleged that Respondent ``repeatedly issued'' prescriptions for schedule IV controlled substances which included zolpidem tartrate, alprazolam, and diazepam, ``when she was concurrently being issued prescriptions for the same or similar class of drugs by her own psychiatrist, which [he] did without [the] psychiatrist's knowledge or permission.'' Id. The Order further alleged that Respondent's ``actions dramatically increased the chances of [his] wife's dependency, overdose, or diversion of those controlled substances, while also potentially complicating her psychiatric condition.'' Id. (citing 21 CFR 1306.04; Miss. Admin. Code Part 2640, Ch. 1, r. 1.7, 1.10, and 1.16; Miss. Code Ann. Sec. 73-25-29(3) & (13)).\1\ --------------------------------------------------------------------------- \1\ See also ALJ Ex. 1, at ]] 5-6. --------------------------------------------------------------------------- The Show Cause Order also alleged that on various occasions from 2011 through 2013, Respondent violated federal and state law by issuing his wife prescriptions for hydrocodone, then a schedule III narcotic, as well as other controlled substances, which were also nontherapeutic, for other than a legitimate medical purpose, and were outside the usual course of professional practice. Id. at 2-3. Specifically, the Show Cause Order alleged that ``[o]n at least one occasion in 2011,'' Respondent issued prescriptions for hydrocodone and diazepam ``to [his] wife concurrently with another prescription [for clonazepam] issued by her . . . psychiatrist,'' and that he did so ``without her psychiatrist's knowledge or permission.'' Id. at 2. The Order again alleged that Respondent's ``actions dramatically increased the chances of [his] wife's dependency, overdose, or diversion of . . . controlled substance[s], while also potentially complicating her psychiatric condition.'' Id. (citing same authorities as above). Next, the Show Cause Order alleged additional instances of non- therapeutic prescribing by Respondent to his wife in that, ``[o]n at least four different occasions in 2013,'' he ``repeatedly issued . . . prescriptions for hydrocodone . . . zolpidem tartrate . . . and alprazolam . . . when she was concurrently being issued other controlled substances prescriptions for the same or similar drugs, as well as amphetamines, by her . . . psychiatrist, which [he] did without his knowledge or permission.'' Id. at 2-3. As with the previous allegations, the Order alleged that Respondent's ``actions dramatically increased the chances of her dependency, overdose, or diversion of those controlled substances, while also potentially complicating her psychiatric condition.'' Id. at 3 (citing same authorities as above). The Show Cause Order also alleged that ``[o]n at least fifteen different occasions between 2011 and 2013, [Respondent] violated state and federal law by issuing'' to his wife prescriptions for hydrocodone, and/or zolpidem, and/or alprazolam, ``without conducting any examination of [his] wife (or documenting such in her file) or noting the . . . prescriptions in her patient chart.'' Id. (citing same authorities as above). The Show Cause Order then alleged that ``[o]n at least nine occasions between 2011 and 2013, [Respondent] violated state and federal law by issuing'' to his wife prescriptions for these drugs, ``without conducting sufficient examinations of [her] (or documenting such in her file).'' Id. (citing same authorities as above). Finally, the Show Cause Order alleged that Respondent ``engaged in conduct which may threaten public health and safety . . . by attempting to mislead DEA investigators.'' Id. (citing 21 U.S.C. 823(f)(5)). Specifically, the Government alleged that, ``on February 2, 2016, [Respondent] turned over to DEA in response to an administrative subpoena a record purporting to be the patient file'' of his wife. Id. The Order alleged that the file ``contained false entries'' in that it contained ``repeated reference to conversations with and attempts to contact [his wife's] treating psychiatrist'' and that ``DEA's investigation . . . indicate[s] that these statements and others presented as part of the purported patient file are false.'' Id. Following service of the Show Cause Order, Respondent, through his counsel, requested a hearing on the allegations. ALJ Ex. 2. The matter was placed on the docket of the Office of Administrative Law Judges and assigned to ALJ Charles Wm. Dorman. Following pre-hearing procedures, the ALJ conducted an evidentiary hearing in Jackson, Mississippi on June 29-30, 2016, at which both parties elicited testimony from witnesses and submitted various documents for the record. Following the hearing, both parties submitted briefs of their proposed findings of fact, conclusions of law, and argument. On September 20, 2016, the ALJ issued his Recommended Decision. Therein, with respect to Factors Two (Respondent's experience in dispensing controlled substances) and Four (compliance with applicable laws related to controlled substances), the ALJ found that the Government had proved that Respondent violated 21 CFR 1306.04, Mississippi Code Sec. 73-25-29(3) and 73-25-29(13), as well as Mississippi Administrative Rules 1.7, 1.10, and 1.16 when he issued numerous controlled substance prescriptions to his wife. Specifically, the ALJ found that during 2011, Respondent issued nine zolpidem, two alprazolam, seven hydrocodone, and one diazepam prescription(s) in violation of these provisions. R.D. at 39-40. The ALJ also found that during 2012, Respondent issued five alprazolam prescriptions, and that during 2013, he issued 11 alprazolam prescriptions in violation of these provisions. Id. at 41-43. The ALJ further found that in 2013, Respondent issued five hydrocodone prescriptions and one zolpidem prescription in violation of these provisions. Id. at 44. In addition to the above, the ALJ found that between 2011 and 2013, [[Page 49705]] Respondent prescribed hydrocodone 11 times, zolpidem 12 times, and alprazolam five times without documenting the prescriptions or a prior examination in his wife's patient file in violation of various provisions of Mississippi law and administrative rules. Id. at 46. He also found that on nine occasions when Respondent did document a prescription in his wife's file, he failed to include information required by state rules such as a medical history, examination results, or a diagnosis. Id. at 47-48 (citing Miss. Admin. Rule 1.4). The ALJ further concluded that ``nothing in . . . Respondent's file for his wife necessarily indicates that [he] ever conducted any type of physical or mental status examination of his wife prior to prescribing controlled substances to her.'' Id. at 48. He thus found proved the ``allegation that the Respondent failed to conduct examinations and/or lacked adequate documentation of examinations of his wife'' in violation of various provisions of Mississippi law and administrative rules. Id. at 49. Turning to Factor Five (such other conduct which may threaten public health or safety), the ALJ rejected the allegation that Respondent attempted to mislead DEA investigators by providing to them the patient file containing false entries to the effect that he had made his wife's psychiatrist aware of the prescriptions. Id. at 49-52. The ALJ reasoned that it appeared that Respondent created the file ``as he was treating his wife,'' that he ``did nothing more than turn over his file when ordered to do so by the . . . subpoena,'' and that there was ``[n]o evidence . . . that, after the DEA subpoenaed the file, [he] created false entries or altered the file he already maintained.'' Id. at 51. The ALJ nonetheless concluded that ``Factors Two and Four weigh substantially in favor of denying . . . Respondent's application because he prescribed controlled substances to his wife for illegitimate and nontherapeutic purposes, outside the scope of professional practice, and because he did not appropriately document examinations of, any prescriptions to, his wife.'' Id. at 52. The ALJ thus found ``that the Government has made a prima facie case . . . that the Respondent's registration would be inconsistent with the public interest.'' Id. The ALJ acknowledged that ``[t]o rebut the Government's prima facie case, the Respondent must both accept responsibility for his actions and demonstrate that he will not engage in future misconduct.'' Id. (citation omitted). The ALJ explained that a ``[a] respondent must express remorse for all acts of documented misconduct, and may be required to acknowledge the scope of his misconduct.'' R.D. 52 (citations omitted); see also id. at 54. The ALJ also explained that ``[a]cceptance of responsibility and remedial measures are assessed in the context of the egregiousness of the violations and the [DEA's] interest in deterring similar misconduct by [the] Respondent in the future as well as on the part of others.'' Id. at 52 (internal quotations and citations omitted). The ALJ concluded that ``Respondent's misconduct was egregious'' in that he ``repeatedly and wrongfully prescribed addictive, dangerous, and potentially harmful controlled substances to his wife for approximately three years,'' which ``interfered with his wife's treatment and could have caused her to overdose, lose consciousness, or die.'' Id. at 53. The ALJ nonetheless concluded that Respondent had accepted responsibility for his misconduct in prescribing outside the usual course of practice because, by ``[s]imply acknowledging that he failed to properly document his treatment of his wife, [he] admitted to practicing outside the usual scope of professional practice.'' Id. at 54. The ALJ also acknowledged Respondent's testimony ``that he did not think that his actions increased his wife's chances of dependency, overdose, or diversion,'' and that ``[t]he Government's argument that that Respondent did not accept responsibility for putting his wife at risk is also understandable.'' Id. The ALJ reasoned, however, that ``a respondent is not required to admit to every single component of an allegation in order to accept responsibility.'' Id. The ALJ then noted that in a proceeding before the Mississippi Board, ``Respondent acknowledged that his prescriptions were probably hurting his wife and keeping her from getting appropriate treatment.'' Id. As for the Government's contention that Respondent did not specifically acknowledge his misconduct in ``failing to conduct examinations and/or conduct insufficient examinations prior to issuing'' the prescriptions, the ALJ noted that this ``is technically correct.'' Id. at 54-55. The ALJ, however, rejected the Government's contention, reasoning that ``the Government overlooks the central concern of this case, which is that the Respondent wrote prescriptions for his wife when he should not have.'' Id. at 55. The ALJ then explained that ``[i]n his view, the Respondent's acceptance of responsibility for failing to examine his wife before writing her a prescription is subsumed in his general acceptance of responsibility.'' Id. While the ALJ acknowledged that Respondent declined ``to admit that he violated federal laws because he did not want to speculate on what statutes he might have violated'' and ``testif[ied] that he did not know whether the prescriptions were outside the scope of his professional practice as the DEA defines those terms,'' the ALJ reasoned that Respondent was not required to ``identify the specific federal code provisions he violated, or interpret federal laws and apply them to his circumstances.'' Id. at 56. The ALJ further explained that he found Respondent's remorse to be ``sincere and that his commitment to adhere to all regulations governing controlled substances is genuine.'' Id. at 56-57. The ALJ further found that Respondent had undertaken ``reasonable and appropriate'' remedial measures. Id. at 59. As for the Agency's interest in specific deterrence, the ALJ suggested that it ``might be negligible,'' reasoning that Respondent ``thoroughly understands that if he engages in any further misconduct he will face immediate sanctions from the'' Physicians Health Program and the State Board ``that will end his medical career.'' Id. at 59. And while the ALJ noted that ``Respondent's conduct was egregious,'' he reasoned that the circumstances were unique because ``every allegation of misconduct . . . involved . . . Respondent prescribing to only his wife.'' Id. at 60. The ALJ then explained that Respondent's testimony in a State Board proceeding to the effect that his prescribing ``was not a matter of judgment but a matter of the heart[] merits some consideration.'' Id. The ALJ thus recommended that Respondent's application be granted subject to various conditions. Id. at 61-62. The Government filed Exceptions to the Recommended Decision. In its Exceptions, the Government contended that the ALJ committed error in concluding that Respondent has sufficiently accepted responsibility for his misconduct. Exceptions, at 3-15. The Government also contended that the ALJ committed error in concluding that Respondent is entitled to a new registration notwithstanding the egregiousness of his misconduct. Id. at 16-20. The Government thus argues that I should deny Respondent's application. Id. at 20. Respondent did not file a response to the Government's Exceptions. Thereafter, the ALJ forwarded the record to me for final agency action. Having considered the record in its [[Page 49706]] entirety including the Recommended Decision, the parties post-hearing briefs and the Government's Exceptions, I adopt the ALJ's findings of fact (while making several additional findings as to prescriptions) and legal conclusions with respect to paragraphs two through ten of the Show Cause Order. I conclude, however, that the Government's Exception to the ALJ's legal conclusion that Respondent has sufficiently accepted responsibility for his misconduct is well taken. Accordingly, I deny his application. I make the following factual findings. Findings of Fact Respondent's Registration and Licensure Status Respondent is a neurosurgeon licensed by the Mississippi State Board of Medical Licensure. R.D. 3 (citing Stipulation of Fact No. 4); Tr. 481-82. Respondent also previously held a DEA Certificate of Registration, pursuant to which he was authorized to dispense schedule II through V controlled substances as a practitioner. GX 1, at 1. However, on January 17, 2014, Respondent surrendered this registration for cause. Id. According to Respondent, he agreed to surrender his registration at the time of the State Board hearing that suspended his medical license. Tr. 485. On January 9, 2015, Respondent applied for a new practitioner's registration seeking authority to dispense controlled substances in schedules II through V, at a registered address in Hattiesburg, Mississippi. R.D. 3 (citing Stipulation of Fact No. 1). In 2008, Respondent referred himself to the Betty Ford Center, ``when [he] realized [he] had a problem with prescription medicines'' and spent 90 days in treatment. Tr. 487. According to Respondent, ``[o]nce [he] went to the Betty Ford Center, [he] disclosed to the MPHP [Mississippi Physician's Health Program] and ultimately the [B]oard of [M]edicine that [he] was now a participant.'' Id. at 488. In May 2008, Respondent entered into a Recovery Contract Agreement (hereinafter, recovery contract, contract, or RCA) with the MPHP. GE 14, at 13. The RCA's terms included that he completely abstain from mood-altering addictive substances, that he not treat himself or his family, that he undergo random drug screens, and that he be honest. Id.; see also R.D. at 4.\2\ --------------------------------------------------------------------------- \2\ The ALJ noted that these facts, which are based on the testimony of Dr. Hambleton, the Director of the MPHP, at Respondent's January 15, 2015 Board Hearing, are ``not necessarily proven by a preponderance of the evidence.'' R.D. 4. The Director was, however, placed under oath in the State Board proceeding. GE 14, at 11. He also testified in this proceeding and explained that with the exception of its duration, the terms of Respondent's current RCA (which ``is his fourth contract'') are the same as they were for his previous contracts. Tr. 452. Notably, his current contract requires that, ``[o]ther than cases of medical emergencies, I agree to abstain from the use of any mood-altering, addictive, or potentially addictive prescription medication, including amphetamine preparations, without written permission from MPHP.'' RX C, at 2. The RCA's terms also state that ``I agree not to prescribe, dispense or administer to family members or myself any drug having addiction- forming or addiction-sustaining liability.'' Id. --------------------------------------------------------------------------- In March 30, 2012, Respondent tested positive for Tramadol. He then returned to the Betty Ford Center for one month, after which he was discharged with a diagnosis of opioid dependence. GE 14, at 14-16. The MPHP did not, however, withdraw its advocacy on his behalf, and on June 11, 2012, Respondent entered into a new RCA which contained the same terms as the previous RCA, including the prohibition on prescribing to family members. Id. at 16-17. On September 10, 2012, Respondent met with the Mississippi Professionals Health Committee due to its concerns that he had ``missed callings for random drugs screens,'' had failed to attend Caduceus meetings, failed to continued his aftercare therapy, failed to pay his bill for the drug screen testing, and had ``fail[ed] to turn in his support group attendance records.'' Id. at 19-20. According to Dr. Hambleton's testimony at the second State Board hearing, the committee ``warned [Respondent] very carefully that any future noncompliance would result in [the] potential loss of [the] MPHP['s] advocacy'' and ``that this was really his last chance to demonstrate that he could do what was necessary to prove that he's safe.'' Id. While Respondent was compliant with the issues raised by the committee, the committee was unaware that Respondent had been violating his RCA by writing controlled substance prescriptions for his wife. Id. at 20-21. According to Dr. Hambleton, he did not know that Respondent had been calling in controlled substance prescriptions for his wife until the State Board informed him on October 7, 2013. Id. Dr. Hambleton also testified in the State Board proceeding that Respondent did not disclose this information to his ``treatment providers at Betty Ford, to our committee, or [to] our staff at MPHP.'' Id. On October 15, 2013, the MPHP, having concluded that Respondent's ``continued practice of medicine represent[ed] a definite threat to the public health'' withdrew its advocacy on behalf of Respondent. GE 14, at 23. Eight days later, the Board issued Respondent an order of prohibition which barred him from practicing medicine until further notice. GE 13, at 5. Thereafter, Respondent was charged with two counts of violating the State's Medical Practice Act, including violating an existing Board Order, Stipulation or Agreement, see Miss. Code Ann. Sec. 73-25-29(13), and engaging in unprofessional conduct, by engaging in dishonorable or unethical conduct. GE 14, at 5; see also Miss. Code Ann. Sec. 73-25- 29(8)(d) (unprofessional conduct includes ``[b]eing guilty of any dishonorable or unethical conduct likely to deceive, defraud or harm the public''). On January 16, 2014, the Board held a hearing on the allegations at which Respondent appeared. As the record of the hearing shows, the allegations were based on Respondent's violations of his RCA, particularly in his prescribing of controlled substances to his wife. Also at issue was his lack of honesty in failing to disclose his prescribing to his treatment providers as well as the MPHP committee and the MPHP's staff. GE 14, at 21. Following the hearing, the Board found Respondent guilty on both counts and suspended his medical license for one year, after which he was entitled to petition the Board for reinstatement of his license. Id. at 91. The Board ordered that he ``successfully complete multidisciplinary treatment at a treatment facility approved in advance by the MPHP,'' as well ``establish a provisional contract [and] take those steps necessary to obtain affiliation and advocacy with the MPHP.'' GE 13, at 7-8. On January 15, 2015, Respondent appeared before the Board seeking reinstatement. At the hearing, Dr. Hambleton (the MPHP Medical Director) testified in support of Respondent's petition, stating that he ``complied with all of our requirements and he's begun the treatment process at Acumen.'' Id. at 13. Dr. Hambleton further expressed his ``belief . . . that he will comply with his contract.'' Id. At the conclusion of the testimony, the Board reinstated Respondent's medical license. Id. at 15. The DEA Investigation At some point not clearly established on the record, a DEA Diversion Investigator (DI) assigned to the Jackson, Mississippi office opened an investigation into Respondent's [[Page 49707]] prescribing practices.\3\ Tr. 31, 90. As the DI explained, Respondent's ``history with the Medical Board . . . gave us pause, so we began an investigation into . . . his prescribing habits.'' Id. The DI testified that he had access to the Board's investigation, Tr. 22 & 32, and obtained reports from the State's Prescription Monitoring Program showing Respondent's controlled substance prescribing. Id. at 22-23. Specifically, the DI obtained a ``Prescriber Activity Report'' showing Respondent's prescriptions from January 1, 2011 through December 31, 2013. Tr. 24; GX 10. The DI also obtained a PMP report using the various names of Respondent's wife for the same period. Tr. 29; GX 11. Of note, however, GX 10 contains a number of prescriptions which Respondent issued to his wife which are not listed on GX 11.\4\ --------------------------------------------------------------------------- \3\ Earlier in his testimony, the DI stated that the investigation was prompted by Respondent's 2015 application. Tr. 31. Yet later in his testimony, the DI stated that the case was opened earlier, after the Board provided DEA ``with documentation regarding his history with them.'' Tr. 90. The DI explained that ``[w]hen we obtain information from the Medical Board, whether or not somebody's applied for a DEA license or not, we have to document that information . . . the different allegations that the Board has made[,] or evidence that they may have against a physician.'' Id. at 90-91. \4\ According to the DI, when calling in the prescriptions, Respondent used ``several different variations of'' his wife's name. Tr. 38. --------------------------------------------------------------------------- In reviewing the PMP reports, the DI found it suspicious that Respondent was prescribing controlled substances to his wife as ``she was seeing a psychiatrist, Dr. Mark Webb, during that timeframe.'' Tr. 30. The DI ``noticed multiple prescriptions'' which Respondent authorized for drugs that his wife ``was receiving'' from Dr. Webb. Id. at 31. The DI further explained that he was ``aware that [Respondent] was married to . . . Ms. Alexander, so [I] knew there was a pretty good assumption that he was aware that she was receiving these medications, because she had seen Dr. Webb for such a long time.'' Id. at 32. According to the DI, during a phone conversation with Respondent's wife ``[s]he advised that she needed the medications'' and that Respondent had written ``her some prescriptions, but that she didn't feel like that was a problem.'' Id. at 33. Respondent's wife also told the DI that ``she didn't know if her husband had patient files . . . for her [but] that he did prescribe some prescriptions to her.'' \5\ Id. at 34. --------------------------------------------------------------------------- \5\ According to the DI, during this conversation, he told Respondent's wife (who holds a DEA registration as a Nurse Practitioner) that she appeared to be obtaining controlled substances ``from multiple doctors, including her husband'' and that he ``would potentially be asking her to surrender her DEA license because of that.'' Tr. 33-34. The DI testified that shortly after this conversation, he was contacted by Respondent's counsel, who advised that he was also representing Respondent's wife and was told ``not to contact her anymore unless there, you know.'' Id. at 34. The DI did not clarify what conditions Respondent's counsel asserted during this conversation. Id. The DI did not subsequently speak to Respondent's wife. Id. --------------------------------------------------------------------------- Thereafter, the DI visited Dr. Webb and ``asked him if he was aware'' that Respondent's wife was ``receiving these prescriptions from'' Respondent. Id. Dr. Webb ``said that he was not'' and asked the DI to ``look into it further.'' Id. Following the visit, the DI served a subpoena on Dr. Webb and obtained his patient file for Respondent's wife. Id. at 35; GX 3, at 1-2. Dr. Webb's file for Respondent's wife was entered into evidence as GX 5. Tr. 68-75. The DI also obtained some of ``the hard copy prescriptions from several different pharmacies throughout'' the State.\6\ Tr. 35-36. The DI presented the prescriptions to Dr. Webb and asked him: ``were these authorized? Did you know?'' Id. at 36. Dr. Webb ``again maintained that he did not'' know about the prescriptions. Id. --------------------------------------------------------------------------- \6\ According to the DI, he provided the pharmacies with the prescription numbers, Respondent's wife's name, and her date of birth. Tr. 38. --------------------------------------------------------------------------- The DI also served a subpoena on Respondent for ``[a]ny and all charts, files and/or documents, written, typed or computerized, relating to'' his wife. GX 4, at 1. A ten-page exhibit of Respondent's Medical Progress Notes for his wife was entered into evidence as GX 6. Tr. 67. Dr. Webb's Testimony The Government called Dr. Mark Webb as a fact witness. Dr. Webb testified that he has practiced psychiatry in Mississippi since 1990 and that Respondent's wife has been his patient since November 2000. Id. at 102, 105. Dr. Webb acknowledged that he prescribes both controlled and non-controlled substances and that for most of the patients who are treated with controlled substances, he prescribes only ``two weeks' worth of medications'' so that ``it's a tighter leash.'' Id. According to Dr. Webb, he has ``known [Respondent] for a long time'' and the two ``referred patients back and forth in the 90s and the early 2000[s].'' Id. at 110. Dr. Webb testified that he saw Respondent's wife at his request. Id. He also testified that during the 2011 through 2013 period, his medication regimen for Respondent's wife was to prescribe ``an anti-depressant,'' an Attention Deficit Disorder (ADD) medication such as Adderall XR, a sleeping medication such as Ambien or Restoril, and an anxiety medication such as Xanax or Clonazepam. Id. at 204. Dr. Webb testified that while he and Respondent ``talked a lot in the 90s and the early 2000s,'' they have ``talked less and less over the last 10 years.'' Id. at 110. Dr. Webb testified that his records show that he had talked to Respondent ``about four times'' in the period from January 2011 to December 2013. Id. at 111; see also GX 7, at 1 (memo prepared by Dr. Webb memorializing meeting with DEA noting that he had talked with Respondent on Dec. 20, 2011, Feb. 20, 2012, Sept. 4, 2012, and Aug. 5, 2013). According to Dr. Webb, Respondent ``would call me whenever he felt [his wife] was in a crisis . . . to give me that information and to . . . garner some help from me to her.'' Tr. 110. Dr. Webb testified that he never had a discussion with Respondent about the latter's prescribing controlled substances to his wife. Id.; see also id. at 138. When then asked if Respondent had contacted him and told him that he had prescribed because his wife had ``run out'' and ``need[ed] some'' medication on a temporary basis, Dr. Webb answered ``no'' and explained that ``that would not make a lot of sense,'' because he (Dr.Webb) ``would be the person authorized that needed to call that in.'' Id. at 111. While Dr. Webb testified that there was an instance during which he ``walked out to the car with [Respondent's wife] . . . and [Respondent] was in the car with their newborn son,'' and they ``chit-chatted [for] two seconds,'' there was no discussion of Respondent's prescribing of controlled substances to his wife. Id. at 111-12; see also R.D. 16 (ALJ Finding of Fact No. 28). Dr. Webb also testified that he did not have a conversation with Respondent's wife about Respondent's prescribing to her until either late in 2015 or 2016. Tr. 174-75. Dr. Webb testified that DEA Investigators showed him the ten pages of notes Respondent created with respect to the prescriptions he issued for his wife and that he compared them with the patient file he maintained on Respondent's wife. Id. at 116. However, ``none of'' the dates in the records created by Respondent ``correspond[ed] to [Dr. Webb's] treatment records.'' Id. at 16 (quoting GX 9 (memo created by Dr. Webb re: Feb. 25, 2016 meeting with DEA)). In his testimony, Dr. Webb adhered to his statement in the memo that he ``did not speak to [Respondent] on these times in question and certainly would not have authorized him to call in medication for my patient.'' GX 9; Tr. 117. As he testified, ``[t]here's no reason for somebody else to call in the [[Page 49708]] prescriptions. That's my job.'' Tr. 117. Subsequently, Dr. Webb reiterated that he did not authorize Respondent to issue any prescriptions to his wife during the relevant time frame. Id. at 119. Respondent's Prescriptions for His Wife The evidence shows that between January 1, 2011 and October 14, 2013 (when his medical license was suspended), Respondent issued the following controlled substances prescriptions for his wife.\7\ --------------------------------------------------------------------------- \7\ The ``fill dates'' are used to identify these prescriptions because some of the prescriptions are not dated or bear illegible dates. --------------------------------------------------------------------------- 1. January 9, 2011, eight tablets of alprazolam (Xanax) 1 mg, one tablet to be taken twice day, a four-day supply. GE 10, at 85; GE 11, at 14; GE 29, at 1-2. The record does not establish when Dr. Webb had last prescribed alprazolam to Respondent's wife.\8\ Respondent did not document the prescription in the patient file he maintained for his wife. See generally GE 6. Nor did he inform Dr. Webb that he had issued the prescription. --------------------------------------------------------------------------- \8\ The ALJ found that this prescription overlapped with a 30- day prescription for zolpidem tartrate (Ambien) from Dr. Webb, which was filled on January 8, 2011. R.D. 16. Given that Dr. Webb testified that he was prescribing both Xanax for anxiety and Ambien for sleep to Respondent's wife simultaneously, the record does not establish that these were overlapping prescriptions. --------------------------------------------------------------------------- 2. January 31, 2011, 30 tablets of zolpidem tartrate (Ambien) 10 mg, a 15-day supply. GE 10, at 19; GE 11, at 14. Notably, on January 8, 2011, Respondent's wife had refilled a prescription issued by Dr. Webb on August 31, 2010 for 60 tablets, this being a 30-day supply. GE 11, at 14. Thus, if taken as directed, the refill of Dr. Webb's prescription should have last Respondent's wife until February 7, 2011. On February 3, 2011 (only three days later), Dr. Webb prescribed 60 units of zolpidem 10 to Respondent's wife. GE 11, at 13. GE 5, at 112. Respondent did not document the prescription in the patient file he maintained for his wife. GE 6. Nor did he inform Dr. Webb that he issued the prescription. 3. February 7, 2011, 20 tablets of hydrocodone/acetaminophen (Lorcet) 7.5-650, a three-day supply. GE 10, at 23; GE 11, at 13; see generally Tr. 373-74 (testifying that her husband prescribed hydrocodone for her once in 2011). Other than on one occasion in June/ July 2013, which is discussed below, Dr. Webb did not prescribe hydrocodone to Respondent's wife. Moreover, the PMP report does not list any hydrocodone prescriptions that were issued by any other provider until November 30, 2011. GE 11, 11. Respondent did not document this prescription in the patient file he maintained on his wife. See generally GE 6. He also did not disclose the prescription to Dr. Webb. 4. March 30, 2011, 30 tablets of zolpidem tartrate (Ambien) 10 mg, with a dosing instruction of one tablet at bedtime but ``may repeat for early,'' a 15-30-day supply. GE 10, at 85; GE 11, at 13; GE 30, at 1-2. Notably, the zolpidem prescription which Dr. Webb issued on February 3, 2011 (RX #949559) provided for multiple refills, as it was refilled by Respondent's wife on April 9, 2011, May 23, 2011, and July 7, 2011. GE 11, at 13; Tr. 254-55. Respondent did not document the prescription in the patient file he maintained on his wife. GE 6. Nor did he inform Dr. Webb that he issued the prescription. 5. April 8, 2011, 15 tablets of hydrocodone/acetaminophen (Lorcet) 10-650, one tablet every six hours as needed, a three-day supply. GE 10, at 85; GE 11, at 13; GE 31, at 1-2. As explained above, other than in June/July 2013, Dr. Webb did not prescribe this drug to Respondent's wife, and no other physician prescribed hydrocodone to her until November 30, 2011. Respondent did not document the prescription in the patient file. GE 6. He also did not disclose the prescription to Dr. Webb. 6. May 6, 2011, 30 tablets of zolpidem tartrate (Ambien) 10 mg, one tablet at bedtime but ``may repeat,'' a 30-day supply. GE 10, at 85; GE 11, at 13; GE 32, at 1-2. As discussed above, Respondent's wife still had refills available for 60 dosage units based on the prescription issued by Dr. Webb on February 3, 2011, and eventually refilled the prescription on May 23, 2011. GE 11, at 13; Tr. 255. Respondent did not document the prescription in the patient file. See generally GE 6. Nor did he disclose the prescription to Dr. Webb. 7. May 14, 2011, 14 tablets of hydrocodone/acetaminophen (Lorcet) 10-650, a two-day supply. GE 10, at 19; GE 11, at 13. As explained above, other than in June/July 2013, Dr. Webb did not prescribe this drug to Respondent's wife, and no other physician prescribed hydrocodone to her until November 30, 2011. Respondent did not document the prescription in the patient file. GE 6. Nor did he disclose the prescription to Dr. Webb. 8. June 28, 2011, 30 tablets of zolpidem tartrate (Ambien) 10 mg, a 30-day supply. GE 10, at 84; GE 11, at 12. Respondent's wife still had a refill available for 60 dosage units based on the prescription issued by Dr. Webb on February 3, 2011, and eventually refilled the prescription on July 7, 2011. GE 11, at 12. Respondent did not document the prescription in the patient file. See generally GE 6. Nor did he disclose it to Dr. Webb. 9. July 15, 2011, prescription (assigned RX # 4002009 by the pharmacy) for 28 tablets of hydrocodone-acetaminophen (Lorcet) 10-650, a five-day supply. GE 10, at 64. This prescription also authorized a refill, which Respondent's wife obtained on July 29, 2011. Id. As explained above, other than in June/July 2013, Dr. Webb did not prescribe this drug to Respondent's wife, and no other physician prescribed hydrocodone to her until November 30, 2011. Respondent did not document the prescription in the patient file. GE 6. Nor did he disclose the prescription to Dr. Webb. 10. July 31, 2011, 12 tablets of zolpidem 10 mg, one tablet at bedtime, a 12-day supply, with one refill. GE 10, at 84; GE 11, at 12; GE 33, at 1-2. As found above, on July 7, 2011, Respondent's wife obtained a refill of a prescription for 60 zolpidem issued by Dr. Webb, which, if taken as directed, should have lasted her until August 6, 2011 (this being in addition to the 30 zolpidem prescription Respondent issued on June 28, 2011). GE 11, at 12; Tr. 251-53. Respondent did not document the prescription in the patient file. See generally GE 6. Nor did he disclose the prescription to Dr. Webb. 11. August 13, 2011, 20 tablets of alprazolam (Xanax) 1 mg, one- half to one tablet, to be taken twice a day, a 10-20-day supply. GE 22, at 1-2.\9\ Notably, on August 4, 2011, Respondent's wife had refilled a prescription issued by Dr. Webb for 45 alprazolam 2 mg, a 15 day supply. GE 11, at 12. Thus, if taken as directed, this refill should have lasted Respondent's wife until August 19, 2011. Moreover, on August 16, 2011, Dr. Webb issued Respondent's wife a new prescription for 90 alprazolam 2mg, a 30-day supply. Id. Respondent did not document the prescription in his wife's patient file. See generally GE 6.\10\ Nor [[Page 49709]] did he disclose the prescription to Dr. Webb. --------------------------------------------------------------------------- \9\ Although this prescription was filled on August 13, 2011, see GE-22, at 2, it does not appear on Mrs. Alexander's PMP. See GE- 11, at 12. However, a copy of the prescription and the fill sticker is in the record. GE 22. \10\ The Respondent's patient file for his wife mentions a prescription for 20 tablets of Xanax, 2 mg, dated July 13, 2011. See GE-6, at 1. The patient file says he prescribed Xanax because ``Jill out of Xanax--in Philadelphia--Has had twitching--[illegible] Dr. Webb has not called back.'' GE-6, at 1. Dr. Webb, however, had no notes in his file about any attempt by the Respondent to contact him on July 13, 2011. See Tr. 126. However, neither the PMP reports, nor the copies of the prescriptions, support a finding that Respondent issued an alprazolam prescription on or about this date. --------------------------------------------------------------------------- 12. August 28, 2011, 12 tablets of zolpidem tartrate (Ambien) 10 mg, a 12-day supply. GE 10, at 19. Notably, on August 16, 2011, Respondent's wife had obtained and filled a new prescription from Dr. Webb for 60 zolpidem, a 30-day supply. GX 11, at 12. If taken as directed, Dr. Webb's prescription should have lasted Respondent's wife until September 15, 2011. Moreover, as found above, Respondent had also provided a refill when he issued the July 31, 2011 prescription (RX# 443737), and this refill was still available to his wife on August 28, 2011. GE 11, at 12. Respondent did not document the prescription in the patient file. See generally GE 6. He also did not disclose the prescription to Dr. Webb. 13. September 6, 2011, 12 tablets of zolpidem tartrate (Ambien) 10 mg, a 12-day supply, this being a refill authorized by Respondent's July 31, 2011 prescription. GE 11, at 12. As discussed in the preceding paragraph, Dr. Webb's August 16, 2011 prescription should have lasted Respondent's wife until September 15, 2011. In addition, Respondent's August 28, 2011 prescriptions provided his wife with additional medication in excess of what Dr. Webb had prescribed. As found above, Respondent did not document the original prescription in the patient file nor disclose it to Dr. Webb. See generally GE 6. 14. September 28, 2011, 16 tablets of hydrocodone/apap 10/650, a four-day supply with one refill. See GE 10, at 64. As explained above, other than in June/July 2013, Dr. Webb did not prescribe this drug to Respondent's wife, and no other physician prescribed hydrocodone to her until November 30, 2011. Respondent did not document the prescription in the patient file. See GE 6. Nor did he disclose the prescription to Dr. Webb. 15. October 11, 2011, 20 tablets of zolpidem tartrate (Ambien) 10 mg, one tablet at bedtime, a 20-day supply. GE 10, at 84; GE 11, at 11; GE 34, at 1-2; Tr. 249. Of note, on September 19, 2011, Respondent's wife had refilled Dr. Webb's August 16, 2011 prescription and obtained 60 tablets, a 30-day supply. GE 11, at 12. If taken as directed, the September 19 refill should have lasted Respondent's wife until October 19. GE 11, at 12; Tr. 248-49. Respondent did not document the prescription in the patient file. See generally GE 6. Nor did he disclose it to Dr. Webb. 16. October 20, 2011, 16 tablets of hydrocodone-acetaminophen (Lorcet) 10-650, a four-day supply, this being a refill of the September 28, 2011 prescription. GE 10, at 64. As explained above, other than in June/July 2013, Dr. Webb did not prescribe this drug to Respondent's wife, and no other physician prescribed hydrocodone to her until November 30, 2011. As found above, Respondent did not document the prescription or the refill in the patient file. See GE 6. Nor did he disclose the prescription to Dr. Webb. 17. November 13, 2011, 18 tablets of clonazepam 2mg, a six-day supply. GE 10, at 19. Notably, on November 3, 2011, Respondent's wife had refilled a prescription issued by Dr. Webb on October 19, 2011 for 45 dosage units, a 15 day supply. GE 11, at 11. If taken as directed, the November 3 refill should have lasted Respondent's wife until November 18, 2011. Moreover, on November 15, 2011, only two days after filling the prescription she obtained from her husband, Respondent's wife obtained a further refill of Dr. Webb's prescription for 45 dosage units of clonazepam. GE 11, at 11. Respondent did not document the prescription in the patient file. See generally GE 6. Nor did he disclose it to Dr. Webb. 18. November 25, 2011, 10 tablets of clonazepam 2 mg, a three-day supply. GE 10, at 63. If taken as directed, by itself, the November 15, 2011 refill should have lasted Respondent's wife until November 30, 2011. Respondent did not document the prescription in the patient file. GE 6. Nor did he disclose it to Dr. Webb. 19. November 29, 2011, four tablets of hydrocodone/acetaminophen (Lorcet) 10-650 mg, one tablet to be taken four to six times a day, a one-day supply. GE 26. Respondent did not document the prescription in the patient file. GE 6. He also did not disclose the prescription to Dr. Webb. 20. Also on November 29, 2011, one Diastat Acudial, 5-7.5-10 mg kit. GE 10, at 92; GE 11, at 11; GE 28, at 1. Diastat Acudial is a rectal suppository of diazepam, which is also a benzodiazepine and a schedule IV controlled substance.\11\ Tr. 260-61; 21 CFR 1308.14(c). Respondent did not document the prescription in the patient file. See GX 6. Nor did he disclose it to Dr. Webb. --------------------------------------------------------------------------- \11\ Dr. Chambers, the Government's Expert testified that this prescription ``is a bit puzzling because it's clear she's taking oral meds and usually that's reserved for people who can't take'' the oral form of the drug. Tr. 259. --------------------------------------------------------------------------- 21. December 5, 2011, 10 tablets of hydrocodone-acetaminophen (Lorcet) 10-650, a three-day supply. GE 10, at 63. Respondent did not document the prescription in the patient file. See generally GE 6. Nor did he disclose it to Dr. Webb. 22. December 27, 2011,\12\ 30 tablets of zolpidem tartrate (Ambien) 10 mg, one tablet a day at bedtime, a 30-day supply. GE 10, at 80; GE 21, at 1-2. However, on December 16, 2011, Respondent's wife had obtained a refill of Dr. Webb's August 16, 2011 prescription for 60 dosage units, a 30-day supply. GE 11, at 11. Thus, if taken as directed, the December 16 refill should have lasted Respondent's wife until January 15, 2012. In Respondent's patient file for his wife, he documented: ``Jill not sleeping. Holiday schedule at Mississippi Neuropsychiatric--stress of house repossession and moving in with mother-in-law. Erratic. Bugs. Ambien 10 mg #30 [one to two orally at bedtime]. No response on-call dr.'' GE 6, at 1. Respondent did not disclose the prescription to Dr. Webb. --------------------------------------------------------------------------- \12\ The Government established that this was a Tuesday. Tr. 190. --------------------------------------------------------------------------- 23. January 7, 2012, 28 tablets of zolpidem 10 mg, a 28-day supply. GE 10, at 63. As found above, on December 16, 2011, Respondent's wife had obtained a refill of Dr. Webb's prescription and obtained medication that should have lasted her until January 15, 2012. Moreover, on December 27, 2011, she filled the prescription Respondent wrote her for 30 more tablets. Respondent's patient file for his wife does not document the issuance of a zolpidem prescription on this date, but rather on January 10, 2012. See generally GE 6. That entry states: ``Jill Philadephia at M-I-L house,'' ``Pills discarded--tension--No vehicles (Bankruptcy).'' GE 6, at 2. The entry then lists a prescription for 30 Ambien 10 mg, with a dosing instruction of one tablet by mouth per day. Id. Moreover, Respondent did not disclose the prescription to Dr. Webb. 24. January 16, 2012, 30 tablets of alprazolam (Xanax) 2 mg, to be taken ``as directed.'' \13\ GE 23, at 1-2. However, on January 5, 2012, Respondent's wife had refilled a prescription (Rx# 976879) issued by Dr. Webb for 45 tablets, a 15- [[Page 49710]] day supply, and that prescription had an additional refill remaining which Respondent's wife obtained on February 14, 2012. GE 11, at 10. In his wife's patient file, Respondent wrote: ``Dr. Webb wants Jill to come in. Difficult [with] transportation--Will Rx 10 day supply til 1/ 26/12--Webb aware--Xanax 2 mg #30 [two orally three times a day].'' GE 6, at 2. Dr. Webb testified, however, that neither Respondent nor Respondent's wife ever told him about any prescription issued by Respondent.\14\ Tr. 115-17, 119, 138, 174-75; see also R.D. 16 (Finding of Fact No. 28). --------------------------------------------------------------------------- \13\ While neither PMP report contains an entry for an alprazolam prescription issued by Respondent for his wife on this date, Government Exhibit 23 contains a copy of the prescription and the fill sticker showing that on January 16, 2012, Respondent issued, and his wife filled a prescription for 30 alprazolam 2 mg. Notwithstanding that the prescription appears to be dated ``1/16/ 11,'' the fill sticker states that the prescription was written on ``01/16/12.'' GX 23, at 1-2. \14\ January 16, 2012 was a Monday. Tr. 190. --------------------------------------------------------------------------- 25. February 26, 2012, 20 tablets of diazepam 5 mg, a six-day supply. GX 11, at 10. Of note, on February 23, 2012, Respondent's wife had obtained and filled a new prescription from Dr. Webb for 45 alprazolam 2 mg, a 15-day supply; this prescription (Rx# 982872) also authorized three refills. Id. at 10-11. Diazepam and alprazolam are both benzodiazepines and are used to treat anxiety. Tr. 259. Dr. Webb did not prescribe diazepam to Respondent's wife. See generally GE 11; Tr. 204; GX 5. Respondent did not document the prescriptions in his wife's patient file. See GE 6. Nor did he disclose the prescription to Dr. Webb. 26. March 4, 2012, 30 tablets of zolpidem10 mg, a 30-day supply. GE 10, at 13; GE 11, at 10. Of note, on February 23, 2012, Respondent's wife obtained and filled a prescription from Dr. Webb for 30 zolpidem, a 15-day supply. GE 11, at 10. If taken as directed, Dr. Webb's prescription should have lasted Respondent's wife until March 9, 2012. Moreover, Dr. Webb's Feb. 23 prescription provided for two refills, the first of which Respondent's wife obtained on March 19, 2012, respectively. GE 11, at 10. Respondent did not document the prescription in the patient file. See generally GE 6. Nor did he disclose the prescription to Dr. Webb. 27. March 12, 2012, 12 tablets of alprazolam (Xanax) 2 mg, one tablet to be taken three times a day, a four-day supply. GE 10, at 80; GE 20. As found above, on February 23, 2012, Dr. Webb issued a prescription for 45 tablets of alprazolam 2 mg, a 15-day supply, which authorized three refills. GE 11, at 9-10. In the patient file, Respondent wrote: ``Out of Xaax [sic] x 5 days--Jerky & twitching-- feels like Extreme anxiety--digging at arms [-] delusional parasitosis? Will give 4 day supply--[illegible] talk to Dr. Webb--Xaax [sic] 2 mg #12,'' followed by the dosage instruction of one tablet by mouth, three times a day.'' GE 6, at 3. Respondent's wife had available a refill of Dr. Webb's February 23 prescription which she could have filled on this date (without being early) but which she did not fill until March 19, 2012. GE 11, at 10. Respondent did not disclose the prescription to Dr. Webb. 28. March 12, 2012, 30 tablets of zolpidem 10 mg, 30-day supply. GE 10, at 80. As found above, on March 4, 2012, Respondent prescribed 30 zolpidem (a 30-day supply) for his wife which she filled the same day. GE 11, at 10. If taken as directed, Respondent's March 4 prescription should have lasted until April 3, 2012. Also, Dr. Webb's Feb. 23, 2012 prescription (for 30 tablets) authorized multiple refills and Respondent's wife obtained a refill on March 19, 2012. Id. Respondent did not document the prescription in his wife's patient file. See GE 6. Nor did he disclose the prescription to Dr. Webb. 29. April 1, 2012, 24 tablets of zolpidem tartrate (Ambien) 10 mg, a 24-day supply. GE 10, at 13; GE 11, at 10. Putting aside that Respondent's March 4 prescription should have lasted through April 3, 2012, as found above, Respondent's wife obtained 30 tablets on March 12 when she filled his prescription and another 30 tablets on March 19, when she refilled Dr. Webb's Feb. 2, 2012 prescription. GE 11, at 10. Respondent did not document the prescription in his wife's patient file. See GE 6. Nor did he disclose the prescription to Dr. Webb. 30. April 2, 2012, 120 units of hydrocodone-homatropine syrup (Hycodan), one teaspoon every four to six hours as needed. GE 19, at 1- 2.\15\ Respondent did not document the prescription in his wife's patient file. See GE 6. Nor did he disclose the prescription to Dr. Webb. --------------------------------------------------------------------------- \15\ Although this prescription does not appear on either of the PMP reports, the Government produced both the prescription and the fill sticker showing that the drug was dispensed on April 2, 2012. See GE 19, at 2. --------------------------------------------------------------------------- 31. June 18, 2012, 20 tablets of alprazolam (Xanax) 2 mg, one tablet to be taken twice a day, a 10-day supply. GE 10, at 75; GE 11, at 9; GE 15, at 1-2; Tr. 262. Respondent's wife still had a refill remaining on Dr. Webb's Feb. 23, 2012 prescription for 45 alprazolam, which she filled on July 5, 2012. GE 11, at 9. Respondent did not document the prescriptions in his wife's patient file. See generally GE 6. Nor did he disclose the prescription to Dr. Webb. 32. July 17, 2012, 20 tablets of alprazolam (Xanax) 2 mg, one tablet twice a day, a 10-day supply. GE 10, at 13; GE 11, at 9; see Tr. 262-63. As noted above, on July 5, 2012, Respondent's wife obtained 45 tablets (15 days) of alprazolam when she refilled Dr. Webb's prescription. GE 11, at 9. In a note (dated July 14, 2012) in his wife's patient file, Respondent wrote: ``she had done very well without medicine--even though extremely stressful living conditions. . . . 4 month no meds--depressed, crying, jittery--Has been in contact [with] Dr. Webb. . . . She feels self harm--but no SI. Xanax 2 mg #20 6 day supply.'' GE 6, at 4; Tr. 130. Respondent did not disclose the prescription to Dr. Webb, and Dr. Webb did not talk to the Respondent's wife on July 14, 2012. See generally GE 5; Tr. 131. Dr. Webb also testified that neither Respondent nor Respondent's wife ever told him about any prescription issued by Respondent. Tr. 115-17, 119, 138, 174- 75; see also R.D. 16 (Finding of Fact No. 28). 33. August 13, 2012, 30 tablets of hydrocodone/acetaminophen, 10- 650, one tablet every four hours, a five-day supply. GE 10, at 80; GE 11, at 9; GE 16, at 1. Respondent did not document the prescription in his wife's patient file. See GE 6. Nor does the PMP report show that any other doctor prescribed hydrocodone to Respondent's wife between December 22, 2011 and December 16, 2012. GE 11, at 8-10. Respondent did not disclose the prescription to Dr. Webb. 34. October 5, 2012, 12 tablets of alprazolam (Xanax) 2 mg, a four- day supply. GE 10, at 22; GE 11, at 9. On September 24, 2012, Dr. Webb prescribed and Respondent's wife filled a prescription for 45 alprazolam 2 mg, a 15-day supply, which also provided for two refills. GE 11, at 9. If taken as directed, Dr. Webb's prescription should have lasted until October 9, 2012. In his wife's patient file, Respondent wrote: ``Dr. Webb Rx Xanax--She is out 2 days early--Laceration/ cutting--severe anxiety & depression--arms excoriated No return call from weekend MD--I have to leave to work out of town Xanax 2 mg #12 Walgreens 3-4 day supply through weekend.'' GE 6, at 5. While the note also appears to state ``aware -,'' Dr. Webb did not have any notes in his file regarding any calls from Respondent on October 5, 2012, Tr. 131, and I find that Respondent did not disclose the prescription to Dr. Webb. I also find that Respondent's wife did not disclose the prescription. Tr. 174-75. 35. December 22, 2012, 15 capsules of Dextroamphetamine-Amphetamine ER 20 mg, a five-day supply. GE 11, at 8. While Dr. Webb had prescribed this drug to Respondent's wife, see id., Respondent did not disclose the prescription to Dr. Webb. Nor did [[Page 49711]] Respondent document the prescription in his wife's patient file. See GE 6. 36. January 11, 2013, 10 tablets of alprazolam (Xanax) 2 mg, a three-day supply. GE 10, at 21; GE 11, at 8. According to the PMP report, on January 10, 2013, Respondent's wife refilled a prescription issued by Dr. Webb \16\ (Rx #996307) for 45 tablets of alprazolam 2 mg, a 15-day supply. Id. If taken as directed, the January 10 refill provided enough medication to last Respondent's wife until January 25. The PMP report also shows that on December 30, 2012, Respondent's wife had refilled a different prescription issued by Dr. Webb \17\ (RX #2703928) for 45 tablets of alprazolam 2 mg, a 15-day supply. Id. If taken as directed, the December 30 refill provided enough medication to last Respondent's wife until January 14, 2013. Respondent did not document the prescription in his wife's patient file. See generally GE 6. Nor did he disclose the prescription to Dr. Webb. --------------------------------------------------------------------------- \16\ The prescription was originally issued on July 26, 2012 and provided five refills. GE 11, at 8. \17\ The prescription was originally issued on November 6, 2012. GE 11, at 8. --------------------------------------------------------------------------- 37. January 11, 2013, six capsules of temazepam, a three-day supply. GE 11, at 8. According to the PMP report, on January 10, 2013, Respondent's wife refilled a prescription issued by Dr. Webb for 30 capsules of the drug, a 30-day supply. Id. If taken as directed, the January 10 refill provided enough medication to last Respondent's wife until February 9, 2013. Respondent did not document the prescription in his wife's patient file. See GE 6. Nor did he disclose the prescription to Respondent. 38. January 23, 2013, 15 tablets of alprazolam 2 mg, to be taken ``as directed.'' \18\ GE 17; GE 10, at 79; GE 11, at 7. An entry in Respondent's file (dated January 20, 2013) states ``Jill has opened sore on nose,'' ``arms--del. parastosis [sic]--arms,'' ``cutting-- Anxiety/depression,'' ``Out of her Xanax--inconsolable,'' ``weekend--No return from on-call,'' ``Xanax #15,'' ``will contact Dr. Webb in Am,'' ``No HI/SI,'' and a dosing instruction of ``TID prn.'' GE 6, at 5. Dr. Webb's patient file for his wife does not document a call from the Respondent on or near this date. See GE 5; Tr. 131-32. I therefore find that Respondent did not disclose the prescription to Dr. Webb. --------------------------------------------------------------------------- \18\ Both the prescription label and the PMP report list this as being a 30-day supply. See GE 17; GE 10, at 79. However, according to Respondent's note in the file, the dosing instruction was take the drug three times a day as needed. --------------------------------------------------------------------------- 39. January 23, 2013, 30 tablets of hydrocodone/apap 10-650, a five-day supply. GE 11, at 7. Respondent's wife had obtained prescriptions on December 16, 2012 for 20 tablets for hydrocodone/apap 7.5/500 (a two-day supply) and on December 18, 2012 for 20 tablets of hydrocodone/apap 10/500 (a five-day supply) from Dr. Pecunia. GE 11, at 8. However, she was not regularly being prescribed hydrocodone. See generally GE 11. Respondent did not document the prescription in his wife's patient file. See GE 6. Nor did he disclose the prescription to Dr. Webb. 40. February 5, 2013, eight tablets of alprazolam 2 mg, a two-day supply. GE 10, at 86; GE 11, at 7; GE 40, at 2. In his wife's patient file, Respondent wrote: ``Agitated--open sore on nose & hair line--Back from attempted trip--weathered out--returned with tons of anxiety--ran out of meds while OOT \19\--Minneapolis.'' GE 6, at 6. The note further states: ``Xanax #8 CVS Hattiesburg Zoloft #7'' and ``Filled Dr. Webb in on Travel--Jill did.'' GE 6, at 6. Respondent did not, however, disclose the prescriptions to Dr. Webb. --------------------------------------------------------------------------- \19\ The ALJ presumed, with reason, that ``OOT'' is an abbreviation for ``out of town.'' R.D. 22 n.32. --------------------------------------------------------------------------- 41. February 27, 2013, 10 tablets of alprazolam 2 mg, a three-day supply. GE 6, at 6; GE 10, at 86; GE 11, at 7. On February 19, 2013, Respondent's wife filled a prescription written by Dr. Webb for 45 alprazolam 2 mg, a 15-day supply. GE 5, at 70; GE 11, at 7. If taken as directed, Dr. Webb's prescription should have provided Respondent's wife with enough medication to last until March 6, 2013. In his wife's patient file, Respondent wrote: ``Anxious about marital situation-- sores on nose/forehead will not heal--No HI/SI--out of her meds early-- Out of Xanax,'' ``Xanax #10 [one orally three times a day] CVS Hardy St (enough for weekend) (Monday: Dr. Webb refilled for her).'' GE 6, at 6. 42. March 27, 2013, 14 tablets of alprazolam (Xanax) 2 mg, one tablet to be taken three times a day as needed, a five-day supply, which was filled the next day.\20\ GE 36; GE 10, at 86; GE 11, at 7. On March 19, 2013, Respondent's wife had refilled a prescription issued by Dr. Webb for 45 alprazolam 2 mg, a 15-day supply. GE 11, at 7. If taken as directed, the refill of Dr. Webb's prescription should have provided Respondent's wife with enough medication to last until April 3, 2013. A note dated ``3/28/13'' in his wife's patient file, states: ``Marital/ physical/mental stress. Sky high Marriage Workshop in Montana just accentuated--depilitating hairline--[illegible] meds needs plastic surg[ery] to fix--Out of Xanax early--rebound anxieties--self-harm-- Xanax #14--CVS Hardy St.'' GE 6, at 7. The note also includes the following addendum: ``Dr. Webb aware--he called in Restoril/Zoloft & the Xanax (3/30/13).'' Id. Dr. Webb, however, was not aware of this prescription. Tr. 132-33; 174-75. Further, Dr. Webb's file contains no documentation of any contact by Respondent around March 28 through 30. Tr. 133; see generally GE 5; GE 7-9. Notably, Respondent did not note what dose of Xanax he prescribed or the dosing instructions. See GE 6, at 7; see Tr. 266, 287-88. --------------------------------------------------------------------------- \20\ Although the PMP entry (as well as Respondent's note) are dated March 28, 2013, the prescription was written on March 27. See GE 36, at 1. --------------------------------------------------------------------------- 43. May 10, 2013, 14 tablets of alprazolam (Xanax) 2 mg, one tablet to be taken three times a day as needed, a four-day supply. GE 10, at 86; GE 11, at 7; GE 37, at 1-2. On April 30, 2013, Respondent's wife obtained a refill of a prescription issued by Dr. Webb for 45 alprazolam 2 mg, a 15-day supply. GE 11, at 7; Tr. 267. If taken as directed, the refill of Dr. Webb's prescription should have provided Respondent's wife with enough medication to last until May 15, 2013. Respondent did not document the prescription in his wife's patient file. GE 6. Nor did he disclose the prescription to Dr. Webb. 44. May 13, 2013, 12 tablets of alprazolam (Xanax) 2 mg, one tablet to be taken three times a day, a four-day supply. GE 10, at 21; GE 11, at 7; GE 41, at 1-2. Respondent wrote in his wife's patient file: ``Out of Xanax 2 days early--she says repeated [illegible] calls--no answer-- No healing on face/arm--repeated re-openings. I am scheduled OOT next 4 days--Xanax #12 [once orally three times a day].'' GE 6, at 8. Respondent had already prescribed a four-day supply of Xanax to his wife on May 10; additionally, Respondent's wife still should have had two days' worth of Xanax left from Dr. Webb's April 30 refill. GE 11, at 7; Tr. 267. Respondent did not disclose the prescription to Dr. Webb. While the note also states that Respondent prescribed ``Ambien 10 for sleep,'' GE 6, at 8, the record does not contain a zolpidem prescription with this date. 45. May 20, 2013, 20 tablets of zolpidem 10 mg, one tablet at bedtime, a 20-day supply. GE 10, at 85; GE 11, at 7; GE 38, at 1-2. Respondent's patient file contains no note for a prescription issued on this date. GE 6, at 8. On May 23, 2013, Dr. Webb prescribed 30 du of another sleep medication, Restoril 30 mg (temazepam), with five refills, to Respondent's wife. GE 5, at 102; GE 11, at 6; Tr. 133-34. Moreover, the PMP report shows that Dr. Webb had been prescribing temazepam with refills to Respondent's wife beginning on July 26, [[Page 49712]] 2012 and had not issued a zolpidem prescription to her since February 23, 2012, which she last refilled more than a year earlier on April 12, 2012. GE 11, at 7-10. Respondent did not discuss the prescription with Dr. Webb. Tr. 133. In an entry dated ``5/23,'' Respondent wrote: ``Dr Webb--started Zoloft & Buspar--And [R]estoril[.] Ambien discarded--only Restoril.'' GE 6, at 8. As also found above, Respondent had previously prescribed temazepam for his wife on January 11, 2013. GE 11, at 8. 46. July 1, 2013, 20 tablets of hydrocodone/acetaminophen (Lorcet), 10-650, a five-day supply.\21\ GE 10, at 93; GE 11, at 6; GE 27, at 1. In his wife's patient file, Respondent wrote: ``Her mother in hospital in Jackson--dying--in ICU/hospice--she had seizure--injured shoulder/ rib finger. Fractured teeth. Would not go to ER--Lorcet 10/650 #20,'' which was followed by illegible handwriting. GE 6, at 9; Tr. 134. Respondent did not discuss those injuries with Dr. Webb at any point; further, Respondent's wife had an appointment with Dr. Webb on July 1. Tr. 134. While Dr. Webb did not prescribe any medications to Respondent's wife at this visit, she did fill a prescription for 90 capsules of Adderall XR 20 (amphetamine), which Dr. Webb issued on June 28, 2013. GE 11, at 6; Tr. 273. Also, on June 28, 2013, she had obtained from Dr. Webb and filled new prescriptions for 45 alprazolam 2 mg, a 15-day supply, and 30 temazepam 30 mg, a 30-day supply. GE 11, at 6. --------------------------------------------------------------------------- \21\ See GE-14, at 59 (admitting to calling in a prescription for Lorcet in July). --------------------------------------------------------------------------- 47. July 7, 2013, 12 tablets of alprazolam (Xanax) 2 mg, one tablet to be taken twice a day, a six-day supply. GE 35, at 1-4; see GE 10, at 41; GE 11, at 6; Tr. 268-69. However, if taken as directed, the June 28 alprazolam prescription from Dr. Webb should have provided enough medication to last Respondent's wife until July 13, 2013. In his wife's patient file, Respondent wrote: ``She is out of her Xanax early. Dr. Webb is aware of the tremendous stress of her mother's illness. No return call on-call MS Neuro [illegible] Xanax #12/Lorcet #12 Walgreens.'' GE 6, at 9; Tr. 135. Dr. Webb's file for Respondent's wife does not document a call from Respondent on this date. See generally GE 5; GE 7-9; Tr. 135. 48. July 7, 2013, 12 tablets of hydrocodone/apap 10-650 mg, one tablet to be taken four to six times a day, a two-day supply. Respondent's note in his wife's patient file does not discuss his reason for prescribing hydrocodone. See GE 6, at 9. Respondent did not disclose the prescription to Dr. Webb. 49. July 25, 2013, 12 tablets of hydrocodone/apap, 10-650, one tablet every six hours as needed, a three-day supply. GE 10, at 21; GE 11, at 5; GE 42, at 1-2. Respondent did not document this prescription in his wife's patient file. See generally GE 6. He also did not disclose the prescription to Dr. Webb. 50. July 29, 2013, eight tablets of alprazolam 2 mg, one tablet to be taken three times a day as needed, a two-day supply. GE 10, at 85; GE 11, at 5; GE 39, at 1-2. The PMP shows that on July 19, 2013, Respondent's wife had obtained a refill of a prescription issued by Dr. Webb for 45 alprazolam 2 mg, a 15-day supply. GE 11, at 6. If taken as directed, the refill should have provided Respondent's wife with enough medication to last until August 3, 2017. In his wife's patient file, Respondent wrote: ``Out of Xanax--buried her mother--funeral--Dr. Webb back Thursday. Xanax #8 [once orally three times a day].'' GE 6, at 9; Tr. 136. Dr. Webb testified that he did not receive any message or have any contact with Respondent on this day, Tr. 136, and there is nothing in Dr. Webb's file for Respondent's wife that indicates that he was contacted by Respondent around July 29, 2013. See GE 5; GE 7-9. I find that Respondent did not disclose the prescription to Dr. Webb. 51. August 15, 2013, 14 tablets of hydrocodone/apap 10-650, one tablet every four to six hours as needed, a two-day supply. GE 10, at 21; GE 11, at 5; GE 43, at 1-2. Respondent did not document the prescription in his wife's patient file. See generally GE 6. Nor did he disclose the prescription to Dr. Webb. 52. August 22, 2013, 15 tablets of alprazolam (Xanax), 2 mg, one tablet to be taken three times a day, a five-day supply. GE 10, at 67; GE 11, at 5; GE 24, at 1-2. According to the PMP report, Dr. Webb issued his last alprazolam prescription to Respondent's wife on July 31, 2013 for 45 tablets, a 15-day supply, and the PMP report contains no entry for any refill of this prescription. GE 11, at 1-5. The PMP report further shows that on August 5, 2013, Dr. Webb had re-commenced prescribing clonazepam, a different benzodiazepine. GE 11, at 5; see also GE 5, at 71. In an entry in his wife's patient file dated ``8/24/ 13,'' Respondent wrote: ``Following [her mother's] death, she has been very labile. Dr. Webb has tried multiple medications. Jill is very morose, often cannot stop crying. Denies SI/HI--No self-harm this month.'' GE 6, at 10. Continuing, the note states: ``Multiple Rx & calls to Dr. Webb. Could not reach this weekend--Rx: Xanax #12 [once orally three times a day]'' and ``[w]ill update Dr. Webb.'' GE 6, at 10; Tr. 136-37. However, there is nothing in Dr. Webb's file for Respondent's wife that indicates that he was contacted by the Respondent around August 22, 2013 and Dr. Webb testified that Respondent never disclosed any of the prescriptions. See GE 5; Tr. 137. I find that Respondent did not disclose the prescription to Dr. Webb. 53. September 5, 2013, 24 tablets of alprazolam (Xanax), 2 mg, an eight-day supply. GE 10, at 21; GE 11, at 5. The Respondent recorded in his wife's patient file: ``Will not leave room--depressed--needs to get back with Dr. Webb--anorexic--very anxious/depressed--Xanax #20 [once orally three times a day].'' GE 6, at 10. Respondent did not disclose the prescription to Dr. Webb. Dr. Webb's Testimony Regarding Respondent's Prescriptions Asked if there were ``any risks'' in Respondent's wife ``receiving prescriptions from someone other'' than himself, Dr. Webb testified that ``this particular patient . . . has some severe problems[,] and takes a high dose of medication. . . . my concern is that I'm keeping a close tab on it, but if there's somebody out there writing that I don't know about, that's dangerous.'' Id. at 120. Dr. Webb explained that Respondent's prescribing was dangerous because ``you're going above the maximum dose that should be prescribed and more medicines can lead to sedation, more sedation, difficulty, death, loss of balance, falls, poor judgment, things like that.'' Id. at 121. Dr. Webb also explained that the prescriptions ``interfered with [my] treatment for her, because I wasn't seeing the real patient, because there's a ghost writer out there that I don't know about.'' Id. Dr. Webb testified that ``I have certain timed prescriptions and if that timed prescription is getting gapped . . . by another prescription, it's distracting me from my decisionmaking.'' Id. He also testified that this would ``[m]ost definitely'' interfere with his decisionmaking, in that ``[if] she was out of . . . my medicines, then I would hear a distressed phone call . . . and I would need to reorient my treatment for her [by] put[ting] her in the hospital.'' Id. at 122. In a July 13, 2011 entry in Respondent's wife patient file, which documents a prescription for 20 Xanax 2mg, but for which there is no corresponding prescription in either the PMP reports or the other exhibits, [[Page 49713]] Respondent wrote: ``Dr. Webb has not called back.'' GX 6, at 1. Regarding this entry, Dr. Webb testified that there are ``five other [ ]'' practitioners that work at his clinic and the phones are covered 24 hours a day, seven days a week. Tr. 124. Moreover, his clinic has an answering service for after office hours and weekends. Id. at 125. Dr. Webb testified that Respondent's note did not state what time the call to him had been placed and he maintained that he ``always called patients back.'' Id. at 126. Dr. Webb further testified that the file did not contain a note ``from the answering service or the secretary that on [this date] a message was left.'' Id. Dr. Webb then testified that his ``file contains every telephone message notation that is given to our office'' and that ``the actual notes written by the office staff are kept,'' and that there are no notes for this date.\22\ Id. The closest phone message by date are two messages on July 21, 2011 from Respondent's wife; the earlier message states ``please call asap'' and the later message states ``urgent out of med.'' GE 5, at 137. Notably, the PMP shows that on the same day, Dr. Webb issued to Respondent's wife a new prescription for 45 alprazolam 2 mg. GE 11, at 12. --------------------------------------------------------------------------- \22\ On cross-examination, Dr. Webb acknowledged that the clinic's answering service would not necessarily page the on-call doctor just for a patient ``who needs a normal refill.'' Tr. 156. However, Dr. Webb maintained that if a patient was out of medicine early and in distress, the answering service would pass this message on to the doctor. Id. at 157, 182. He also testified that ``[i]t's our policy to call everybody back.'' Id. at 183. Dr. Webb further testified that to the best of his recollection, all of the phone call messages ``should be'' in the patient file for Respondent's wife. Id. at 159. Dr. Webb testified that he did not ``find it odd'' that there was ``only [in the words of Respondent's counsel] a handful of . . . call notes in her file.'' Id. at 160. Putting aside that there are 48 such notes in the patient file, Dr. Webb explained that Respondent's wife ``typically kept pretty good contact. Knowing that I'd be in the daytime, she's in the medical field, she knows night time phone calls . . . aren't very productive . . . [b]ecause you're unlikely to have your doctor on call.'' Id. He also testified that Respondent's wife had not expressed any dissatisfaction with her being able to reach him other than when he was not on call during a weekend. Id. at 184. Dr. Webb further testified that his practice has not received complaints about the clinic's ``on call service'' and ``the inability to connect with a doctor'' or to ``get a request fulfilled by a doctor.'' Id. at 161. The ALJ specifically found that Dr. Webb's testimony was credible. R.D. 8. --------------------------------------------------------------------------- The Government also asked Dr. Webb about Respondent's note dated ``1/16/12'' (prescription No. 24). The note appears as follows: Dr. Webb wants Jill to come in Difficult s transportation Will Rx 10 day supply til 1/26/12--Webb aware-- Xanax 2 mg # 30 [ ] po TID prn GX 6, at 2, Tr. 126. Dr. Webb testified that he was not sure if the prescription referenced in the note was ``attached to the January 16 or January 26th note.'' Tr. 127. He then testified that he had no contact with Respondent's wife on January 16, 2012,\23\ but that on January 26, 2012, he called in a prescription for 45 Xanax 2 mg, three tablets a day. Id. at 127-28; see also GX 5, at 69. He also had no contact with Respondent on January 26, 2012.\24\ Tr. 128. --------------------------------------------------------------------------- \23\ With respect to Respondent's wife, Dr. Webb testified that early in his treatment of her, she lost a bottle of Xanax which prompted him ``to shorten the leash and give smaller amounts.'' Id. at 162. \24\ Dr. Webb also identified other instances in which Respondent made notes in his wife's file documenting phone calls but Dr. Webb's file contained no record that the call was made to his office. See Tr. 129-33,137. These include notations for Feb. 18, 2012 (``called answering service for Dr. Webb No response--weekend Dr''); Oct. 5, 2012 (``No return call from weekend doctor''); Jan. 20, 2013 (``No return from on call'' and ``Will contact Dr. Webb in AM''); Mar. 28, 2013 (``Dr. Webb aware.''); Aug. 24, 2013 (``Will update Dr. Webb''). The record, however, does not establish whether these notations were intended to document that Respondent or his wife had placed the call and/or notified, or intended to notify Dr. Webb. --------------------------------------------------------------------------- The Government also asked Dr. Webb about an entry Respondent made on July 7, 2013, which states in part: ``She's out of her Xanax early. Dr. Webb is aware of the tremendous stress of her mother's illness. No return on call.'' GX 6, at 9; see also Tr. 135. As found above, on this date, Respondent prescribed to his wife 12 Xanax and 12 Lorcet. GX 6, at 9; GX 11, at 6. Notably, the PMP report shows that Respondent's wife had refilled a prescription issued by Dr. Webb on May 23, 2013 for 45 Xanax (15 day supply) on June 21, 2013, and had obtained and filled a new prescription for 45 Xanax (15 day supply) on June 28, 2013.\25\ GX 11, at 6. After again noting that there was no record of any call to the clinic or its answering service by Respondent on this date, Dr. Webb testified that the fact that Respondent's wife was out of her Xanax early would concern him ``[b]ecause it lets me know that she's using more than prescribed and would . . . ha[ve] me wondering whether we need to put her in the hospital, to monitor her, or [if] there [are] other issues going on.'' Tr. 135-36. --------------------------------------------------------------------------- \25\ Respondent's wife also obtained a refill of the June 28, 2013 prescription for 45 Xanax on July 10, 2013, and a refill of the May 23, 2011 prescription (which also was for 45 Xanax) on July 19, 2013. GX 11, at 6; Tr. 144. --------------------------------------------------------------------------- An entry in Respondent's file dated July 29, 2013 states: ``Out of Xanax--buried her mother--funeral--Dr Webb back Thursday Xanax #8'' and includes dosing instructions of ``po TID.'' GX 6, at 9. As found above, the PMP report shows that Respondent issued his wife a prescription for eight Xanax 2 mg. GX 11, at 5. The PMP report also shows, however, that Respondent's wife refilled prescriptions for 45 Xanax (15 day supply) issued by Dr. Webb on both July 10 and 19, 2013. GX 11, at 6. Id. Dr. Webb testified that he spoke with Respondent's wife on July 30, 2013, and prescribed more Xanax to her and referred her to a psychologist. Tr. 136. According to the PMP report, Dr. Webb issued Respondent's wife a prescription for 45 Xanax on July 31, 2013. GX 11, at 5. Dr. Webb testified that in his view ``gap filling . . . means that there's a prescription that is used to get [the patient] to the next authorized refill.'' Tr. 138. Dr. Webb then cited stolen medication as an example of when a gap fill would be appropriate. Id. Dr. Webb also testified that if a doctor sets up a regimen of refills, the patient ``needs to follow that timeline. And so, if they're short on set refills, that's a problem.'' Id. at 139. On cross-examination, Respondent's counsel asked Dr. Webb about a statement he wrote in a memo he prepared following a January 11, 2016 meeting with DEA personnel in which he noted that Respondent's ``prescriptions consisted of large quantities of controlled medications such as Xanax, [h]ydrocodone, [and] Ambien.'' Tr. 151; see also GX 8. Asked how he concluded that the prescriptions were for large quantities, Dr. Webb explained that ``[t]hey appeared to be more than just a day or so'' and that while ``some were less than 10 . . . my recollection was that more, most of them were more than 10'' tablets. Tr. 151. Dr. Webb subsequently explained that he had Respondent's wife ``up to max doses of all prescriptions . . . that I had her on'' and that ``[a]nything over was a potentially large impact.'' Id. at 152. He added that ``[m]aybe the number isn't large, but the potential impact is large.'' Id. Asked by Respondent's counsel if he ``agree[d] that compared to [his] prescribing, the number of controlled substances prescribed by [Respondent] was relatively small,'' Dr. Webb answered ``correct,'' but then added that it was ``[m]ore than I prescribe and moving into . . . above my max and serious harm.'' \26\ Id. at 152-53. --------------------------------------------------------------------------- \26\ As found above, the evidence shows that Respondent issued a number of prescriptions, especially for zolpidem, that provided quantities that were for periods considerably longer than two to three days. Specifically, Respondent authorized prescriptions on May 20, 2013, for 20 dosage units (du) of zolpidem (a 20 day supply); on April 1, 2012, for 24 du of zolpidem (24 days); on March 4, 2012, for 30 zolpidem (30 days); on October 11, 2011, for 20 du of zolpidem (20 days); on July 31, 2011, for 12 du (12 days) plus a refill; on June 28, 2011, for 30 du (30 days); on May 6, 2011, for 30 du (30 days); on March 30, 2011, for 30 du (15 days), and on January 31, 2011, also for 30 du (15 days). GX 11, at 7, 10-14. He also authorized prescriptions on July 7, 2013, for 12 du of alprazolam (6 day supply); on March 28, 2013, for 14 du of alprazolam (5 days); and on both July 17, 2012 and June 18, 2012, for 20 du of alprazolam (10 days). GX 11, at 6-7, 11. --------------------------------------------------------------------------- [[Page 49714]] Dr. Webb testified that he had been ``very careful in regimenting'' the prescriptions he issued for Respondent's wife based on his ``years of working with her'' and her visit in either 2002 or 2009 (or both years) when ``she went to Sierra Tucson'' to be evaluated for Xanax abuse. Tr. 146-47. According to Dr. Webb, Sierra Tucson did not diagnose her as being addicted or abusing controlled substances. Id. at 164. While he ``was not aware'' that she was ``overtly abusing,'' Dr. Webb testified that she ``[s]he had been early . . . sometimes on her prescriptions.'' Id. at 185. Dr. Webb also cited ``the severity of her illness'' as a reason for why he generally limited the prescriptions to 15 days.\27\ Id. --------------------------------------------------------------------------- \27\ Dr. Webb testified that he ``feel[s] that . . . she's primarily a psychiatric disorder first, and then medication difficulty second, rather than the other way around.'' Id. at 165; id. at 194-95. --------------------------------------------------------------------------- Dr. Webb subsequently testified that ``[s]ince I did not know about the other prescriptions out there, it did not appear to be as big of an issue. She was early a day or two here and there. But, yes, substance dependence was on the radar.'' Id. at 194. On still further questioning by the Government, Dr. Webb testified that if he had known about Respondent's prescriptions to his wife during the 2011-2013 period, this ``would have'' changed his opinion as to whether she was abusing controlled substances. Id. at 196-97. On questioning by the ALJ, Dr. Webb testified that ``[k]nowing what [he] know[s] today . . . I would have suggested'' that she undergo ``in-patient'' treatment to address both ``her primary . . . and secondary problem[s].'' Id. at 197. Asked about the notes he maintained for his phone conversations with Respondent's wife, which typically were no more than one or two lines, Dr. Webb maintained that he and Respondent's wife ``always had in-depth conversations'' and that ``[t]hey were usually fairly long, like 20, 30, 45 minute phone conversations.'' Id. at 169. He also testified that his notes met the standard for documentation. Dr. Webb acknowledged, however, that he is ``not perfect'' and that there may have been some phone calls that he had with Respondent's wife ``that were not noted.'' Id. at 203. Dr. Webb acknowledged that psychiatrists do not typically prescribe opioids such as hydrocodone; he testified that he had ``written maybe less than five [prescriptions] in my last 20 years.'' Id. at 170-71. Asked why he issued the June 28, 2013 prescription for 10 tablets of hydrocodone/acetaminophen 10/650 mg, see GX 11, at 6, Dr. Webb testified that the prescription was filled ``at Beemon, so potentially she had come up from Hattiesburg.'' Tr. 171. Continuing, Dr. Webb testified: ``[t]hat was right around her mother's death, mother's sickness, and maybe she told me she was out of her medicine potentially. I'd want to see my note if I put it in there.'' Id. Subsequently, Dr. Webb added that Respondent's wife had undergone a procedure by a different doctor and received hydrocodone about nine or ten days earlier, but he could not otherwise recall the circumstances. Id. at 172. Dr. Webb then admitted that this prescription ``certainly could'' interfere with the treatment being provided by the other doctor. Id. However, he explained that Respondent's wife ``was out of town from her treating . . . physician, and out of her opiate for pain relief.'' Id. at 186. Moreover, this was the only instance in which he prescribed hydrocodone or any other opioid to her. Id. at 200-01. Dr. Webb testified that he did not have a conversation with Respondent's wife about Respondent's prescribing controlled substances to her until either late 2015 or 2016, after he was contacted by the Diversion Investigator. Id. at 175. Dr. Webb testified that he ``believe[d] at times'' that Respondent was trying to help his wife and that ``[t]hey have had lots of difficulty.'' Id. at 177. Based on the four phone calls he had with Respondent during the 2011 through 2013 period and because Respondent would ``[t]ypically call if there would be a crisis,'' Dr. Webb acknowledged that Respondent's wife was often in crisis. Id. at 178. On subsequent questioning, Respondent's counsel suggested that just as the other doctors in his practice can appropriately prescribe gap fills to his patients because they can access the patient's file and see ``abuse issues in the patient file . . . someone living with the patient can assess that person.'' Id. at 196. Dr. Webb took issue with this suggestion, explaining that ``the difficulty with living with someone is that you're not potentially an expert.'' Id. Dr. Webb testified that Respondent's notes did not contain a patient history and specific diagnosis. Id. at 188. As for whether the notes contained evidence of an examination, Dr. Webb explained that, ``other than the subjective notes that are listed, no.'' Id. The Testimony of the Government's Expert The Government called R. Andrew Chambers, M.D., to testify as an expert in psychiatry, the proper prescribing of controlled substances and their effects on patients, and on addiction; the ALJ accepted Dr. Chambers as an expert in these areas. Tr. 246. Dr. Chambers obtained his B.S. degree in Chemical Physics from Centre College, Danville, Kentucky in 1991 and his M.D. degree from the Duke University School of Medicine in 1996. GX 12, at 1. Thereafter, he completed a residency in psychiatry at the Yale University School of Medicine in 2002 and a fellowship in addiction psychiatry at the Indiana University (IU) School of Medicine in 2012. Id. From 2002 through 2003, he served as an Assistant Professor of Psychiatry, Division of Substance Abuse at Yale; from 2003 through 2009, he served as an Assistant Professor of Psychiatry at the Indiana University School of Medicine; and since 2010, he has been an Associate Professor of Psychiatry with Tenure at the IU School of Medicine. Id. Also since 2012, Dr. Chambers has been the Director of the Fellowship Training Program in Addiction Psychiatry at the IU School of Medicine. Id. Dr. Chambers has had appointments in the Department of Psychiatry at various hospitals including the West Haven (Connecticut) VA Hospital, Yale New-Haven Hospital, Connecticut Mental Health Center, and Indiana University Health Hospitals. GX 12, at 2. He is board certified in general adult psychiatry and addiction psychiatry. Tr. 227-28. He has also been published in the areas of psychiatry and addiction ``on the order of 50 times'' in peer-reviewed journals, published in multiple textbooks, and made a number of presentations to professional conferences. Id. at 229-30; GX 12, at 3-7, 11-18. Dr. Chambers testified that treating patients with mental illness and addiction is his ``bread and butter work.'' Tr. 231. He testified that he is ``familiar with and utilize[s] a broad range of pharmacotherapies for both mental illness and addiction, as well as psychotherapies for both mental illness and addiction'' and that ``the vast majority of [his] patients have both mental illness and addiction.'' Id. at 231-32. He testified that he is familiar with the prescribing of controlled [[Page 49715]] substances to psychiatric patients, the risks of controlled substances, and the typical practices undertaken by psychiatrists to mitigate the risks or dangers of the diversion of controlled substances. Id. He further testified that he is familiar with the standards for prescribing controlled substances in Mississippi, as well the circumstances under which a doctor may fail to conduct himself in a manner that comports with a legitimate medical purpose or is within the course of proper professional practice. Id. at 233. While Dr. Chambers had never previously testified in a proceeding based on the Mississippi law and the State Board's rules, id. at 240, he testified that he had reviewed the State's laws and rules. Id. at 236. He further testified that the Mississippi provisions on prescribing controlled substances are ``fairly universal.'' Id. at 237. Dr. Chambers explained ``that the codes around the country are informed by the medical profession . . . and there are universal, fairly universal ethical standards, evidence-based standards that are scientific that then inform the code.'' Id. at 240. Dr. Chambers subsequently cited the Patient Record provisions of the State Board's Rule 1.4 as one such standard that is accepted across the medical profession. Id. at 244. Turning to Respondent's October 11, 2011 prescription for 20 zolpidem (No. 15 above), Dr. Chambers noted that the refill obtained by Respondent's wife on September 19 was for 30 days and should have lasted until October 19. Id. at 249. Dr. Chambers testified that Respondent's October 11 prescription was ``a problem.'' Id. As to why, Dr. Chambers explained: ``[t]his is a prescription for a controlled substance that is coming from a separate source that's occurring on top of a prescription from the primary psychiatrist, and the combination of these kinds of controlled substances could have serious consequences.'' Id. Dr. Chambers further explained that ``Ambien and other benzoate medications have central nervous system effects that can cause oversedation, memory disturbances, and, if taken in combination with other drugs, especially opioids, death.'' Id. at 250. While Dr. Chambers testified that 10 milligrams (the dose prescribed by Respondent) ``is not the maximum dose of Ambien that can be prescribed,'' a patient obtaining the drug from another source ``would be of concern.'' Id. Dr. Chambers explained that the concern would be driven by the ``the size of the dose, the nature of the drug,'' as well as ``the fact the primary physician who is prescribing the drug . . . would not . . . necessarily [be] aware'' that the patient was obtaining the drug ``from a separate source.'' Id. According to Dr. Chambers, when a patient is obtaining a drug from other sources, ``it can create a great deal of confusion on the part of the primary prescriber about the effects or side effects of the drug and the mental status of the patient.'' Id. at 250-51. Continuing, Dr. Chambers testified that ``there are also synergistic overdose risks of being on both doses at the same time. . . . It's obviously not the dose that the primary prescriber wants because they would have prescribed that dose if that's what they wanted.'' Id. at 251. Dr. Chambers then explained that ``the same concerns'' were raised by the zolpidem prescription Respondent wrote on July 31, 2011 because the refill his wife obtained on July 7, 2011 of Dr. Webb's prescription for 30 days of zolpidem should have lasted for another week. Id. at 252. Dr. Chambers identified several instances in which Dr. Webb's prescriptions ``overlapped'' with those of Respondent.\28\ These included the zolpidem prescription (for 30 tablets/30 days) which Respondent issued on May 6, 2011 and the refills obtained on both April 9, 2011 and May 23, 2011 by Respondent's wife of Dr. Webb's Feb. 3, 2011 prescription for 60 tablets (a 30-day supply). Tr. 255. Dr. Chambers testified that while ``[t]he one before is a relatively minor overlap[,] about one or two days, which is fairly insignificant, . . . the secondary overlap is more significant.'' Id. The prescriptions presented the same concerns of danger to the patient and confusion for the doctor. Id. --------------------------------------------------------------------------- \28\ This particular overlap involved Respondent's zolpidem prescription of March 30, 2011 for 30 tablets (a 15-day supply) (Rx No. 4 above) and an April 9 dispensing of a zolpidem prescription. Tr. 254-55. Dr. Chambers testified that ``on April 9, 2011, Dr. Webb issue[d] the same med for a 30-day supply. So now you have an example of Webb unknowingly overlapping a controlled substance with Dr. Alexander that happened on 3-30.'' Id. at 255. The PMP report shows, however, that the latter event did not involve the issuance of a new prescriptions but a refill of Dr. Webb's February 3, 2011 prescription. See GE 11, at 13. Nonetheless, Respondent's prescription still created an overlap. --------------------------------------------------------------------------- Dr. Chambers subsequently testified that it does not matter whether Dr. Webb's prescriptions were new prescriptions or refills because the prescription ``is essentially an instruction both to the pharmacist and the patient for the daily dosing and the number of days that the patient should follow that dosing.'' Id. at 257. Dr. Chambers then testified that ``[r]efills is [sic] just a way to communicate to the patient and the pharmacist . . . that you're allotting the schedule out in monthly, usually monthly allotments, and then it starts over.'' Id. Continuing, Dr. Chambers explained that ``the bottom line is that when the doctor writes the prescription and the pharmacist records it . . . there's a complete understanding of what's expected. There should be no haziness on the part of the doctor or the pharmacist or the patient . . . about the expected rate of consumption . . . from the start to finish, whether it be a 30-day supply or a 30-day supply with two refills.'' Id. at 257-58. Next, the Government questioned Dr. Chambers about the combination of prescriptions/refills that Respondent's wife filled on November 28- 29, 2011. Id. at 258-59. Specifically, on November 28, 2011, she refilled a prescription issued by Dr. Webb for 45 clonazepam (15 days) as well as filled a new prescription issued by Webb for 90 capsules of Adderall. GX 11, at 11. The next day, she filled prescriptions for a one-day supply of Diastat Acudial (a rectal suppository of diazepam) and a one-day supply (four tablets) of hydrocodone/apap 10/650. Id. Dr. Chambers noted that the Diastat prescription ``is a bit puzzling because it's clear [Respondent's wife] is taking oral meds and usually [Diastat] [is] reserved for people who can't take [drugs] oral[ly].'' Id. He then testified that ``it's a very high risk and potentially lethal combination one day after receiving a 15-day supply of'' clonazepam and ``also a stimulant'' from Dr. Webb. Id. Dr. Chambers then testified that ``[t]he combination of an opioid and a benzodiazepine is causing an unprecedented epidemic of death in the United States . . . because when the two drugs are together they synergistically suppress consciousness and breathing and the central nervous system.'' Id. Addressing the prescriptions which Respondent issued on both June 18 and July 17, 2012, for 20 du of alprazolam 2 mg (both being for a 10-day supply),\29\ each of which was filled on the date of issuance, as well as the refill she obtained on July 5, 2012 of Dr. Webb's prescription for 45 du (15 days), Dr. Chambers testified that the prescriptions had different dosing instructions and overlapped. Id. at 262-63. Dr. Chambers then testified that ``we don't know what she was actually taking, but if she was actually taking the dose per both doctor's directions, she would be taking 10 milligrams of [alprazolam] a day . . . which would render me unconscious.'' Id. at 263. As another example of Respondent's issuance of an alprazolam [[Page 49716]] prescription which resulted in ``nearly a week of overlap of the same dose by two different doctors'' and raised ``the same concern,'' Dr. Chambers identified Respondent's March 28, 2013 prescription for 14 dosage units (three tablets a day), which overlapped with a refill his wife obtained on March 19, 2013 for 45 tablets (also three tablets a day).\30\ Id. at 266. --------------------------------------------------------------------------- \29\ See prescription Nos.31 and 32 above. \30\ Other examples of overlapping prescriptions involved Respondent's May 10 and May 13, 2013 prescriptions (Nos. 43 and 44 above) for 14 and 12 dosage units of alprazolam 2 mg, which overlapped with the refill his wife obtained on April 30, 2013 of Dr. Webb's prescriptions for 45 du (15 days) of alprazolam 2 mg. Tr. 267. According to Dr. Chambers, even Respondent's May 10 and May 13 prescriptions overlapped, and that on May 13, ``what you actually have here is a triple compounding of the dosing based on the disposition dates and the way the drugs were instructed to be taken.'' Id. Dr. Chambers then explained that ``that is a very dangerous dose that would normally never be prescribed outside an intensive care unit.'' Id. at 267-68. Another such example is Respondent's July 29, 2013 alprazolam prescription which provided eight tablets (TID). Dr. Chambers testified that Respondent's prescription provided a dosing instruction of eight milligrams a day, Tr. 271, which is supported by the PMP report which lists the prescription as providing a two- day supply. GE 11, at 5. However, the dosing instruction on the actual prescription was TID, or one tablet, three times a day. GX 39, at 1-2. Nonetheless, the prescription overlapped with the refill Respondent's wife obtained on July 19, 2013 for Dr. Webb's prescription for 45 tablets (15 days), and on July 31, 2013, she obtained a new prescription from Dr. Webb for 45 tablets (15 days). GE 11, at 5. However, even if Respondent's prescription only had a dosing instruction of 3 tablets a day, if she took the medications as prescribed by both Dr. Webb and Respondent for the period in which the prescriptions overlapped, she would have taken six tablets a day or 12 milligrams. Tr. 272. --------------------------------------------------------------------------- Addressing Respondent's July 7, 2013 prescriptions (Nos. 46 and 47) for 12 du of hydrocodone/apap 10/650 (two-day supply) and 12 alprazolam 2 mg (six-day supply), Dr. Chambers characterized the latter prescription as ``remarkable,'' explaining that ``it's prescribed at the same time [Respondent] also prescribed hydrocodone, an opioid medication, also on the same day, again introducing the risk of a potentially lethal overdose.'' Id. at 268-69. Dr. Chambers noted that Respondent's prescribing was ``also occurring in the context of'' an amphetamine (Adderall XR) prescription for 30 days issued by Dr. Webb ``six days'' earlier. Id. at 269. Dr. Chambers then testified that if Respondent's wife was ``taking as prescribed, she's doing what street people call a speedball, which is essentially an amphetamine/opioid combination with a . . . benzodiazepine garnish.'' Id. Dr. Chambers also noted that on July 1, 2013, the same day that Respondent's wife filled the Adderall \31\ prescription, Respondent had also issued her a prescription for 20 hydrocodone/apap 10/650, which she filled that day. Id. at 269-70. Dr. Chambers noted that this hydrocodone prescription was ``a higher dose than what Dr. Webb did.'' Id. at 273. He explained that ``there's a combination of multiple overlaps of multiple classes of addictive substances that can produce overdose and severe psychiatric disturbances from two different physicians who are apparently in no communication.'' Id. Continuing, he explained that ``in [his] experience, when you see all three of those [classes of] drugs represented and you have multiple physicians contributing to it . . . that indicates a patient who is in serious trouble iatrogenically . . . meaning harmed being caused through medical practice.'' Id. at 274. --------------------------------------------------------------------------- \31\ Dr. Chambers explained that while Adderall is ``used for a number of clinical indications, including attention deficit disorder [and] narcolepsy . . . [i]t also has significant street value'' and is ``basically a cousin of methamphetamine.'' Tr. 270. --------------------------------------------------------------------------- Asked if he had ``reach[ed] a conclusion'' as to whether Respondent's prescriptions were issued ``within the usual course of professional conduct,'' Dr. Chambers testified: I did. It is not [the] usual course of clinical conduct for someone with mental illness or someone without mental illness to be prescribed these combinations of drugs and to have these combinations being prescribed by different individuals who--one of who--where there's not communication or awareness that it's happening. So it's not only not usual clinical practice, but the reason it's not usual is because it's dangerous for patients and harmful. So it's actually not only is it not usual, it's essentially malpractice. Id. at 275. On further questioning, Dr. Chambers testified that the Respondent's prescribing was not ``legitimate medical practice'' and the prescriptions were ``non-therapeutic.'' Id. Dr. Chambers further testified that ``[b]ased on the entirety of the evidence [he] reviewed,'' Respondent's prescribing did not comply with either the Controlled Substances Act or the standards of the Mississippi Administrative Code, including the State's requirements for patient records. Id. at 276, 278. Addressing the patient file Respondent maintained on his wife, Dr. Chambers testified that ``there is a paucity of data to support the diagnosis or the prescription . . . that the note is built around. There's a lack of physical or mental status exam that normally would be in a note like this to justify and direct the use of controlled substances.'' Id. at 277. Dr. Chambers further observed that in comparing the patient file with the PMP data, ``about 40 percent of the prescriptions'' had ``no corresponding note at all. There's no data. There's no diagnosis, no detailing of what was prescribed.'' Id. He also observed that ``there are instances where the dosing or type of the drug is left out of the record.'' Id. at 278. Dr. Chambers identified Respondent's entry dated January 16, 2012 (Prescription No. 24) as one such example. Tr. 278. As found above, on this date, Respondent prescribed 30 alprazolam 2 mg ``to be taken as directed'' and wrote in the note: ``Dr. Webb wants Jill to come in. Difficult [with] transportation--will Rx 10 day supply till 1/26/12-- Webb aware--Xanax 2 mg'' with a dosing instruction of ``po TID.'' GE 6, at 2. Dr. Chambers testified that ``this note does not have a diagnosis. It doesn't have an examination to justify . . . why that prescription happened at that dose . . . was he aware of what the prescription was from another doctor? Was he continuing? Was there any plan to taper it?'' Tr. 279. Dr. Chambers added that ``he's kind of writing as if the reason he's doing it is because the patient can't get to Dr. Webb, and he's documenting that Webb is aware . . . but in review of Webb's chart, there no indication that Webb was ever aware that this kind of stuff was going on.'' Id. When then asked if a 10-day supply is ``unusual for . . . a gap fill,'' Dr. Chambers answered: . . . I think it's unusual for one doctor to be gap filling another regardless of what the duration is, especially when there's no knowledge that that's happening. So any duration is odd, I think. I guess the longer the number of days the more concerning it is because you're dispensing bigger doses. I mean, she's got 30 tabs. That's quite a bit. Id. at 280. Addressing Respondent's note of February 18, 2012, Dr. Chambers acknowledged that it contained ``a little bit more of what you could call a clinical assessment'' in that Respondent described his wife's symptoms. Id. at 281. Dr. Chambers observed, however, that the note did not indicate ``how many he prescribe[d].'' Id. As for Respondent's statement that his wife was ``[o]ut of her Xanax for . . . 10 days'' and ``[o]ut of her Ambien for a week,'' GE 6, at 3, Dr. Chambers testified: It's not clear exactly what that means, but I take it to mean that he is prescribing because she's been out. And so, first of all, why is she out? Is it because she's using it too rapidly? It's just not clear. But he is filling the gap with an unclear amount and then suggesting by my read . . . [that] he's documenting he's contacting Dr. Webb, [[Page 49717]] informing them of this gap fill, the best I could tell. But what's beginning to emerge here in this note and does come in later is that he is becoming--Dr. Alexander is becoming aware that she's running out and I assume prematurely because when you look at the PDMP data from Dr. Webb, Dr. Webb is not creating gaps. . . . He is not leaving her hanging with no medication a whole lot of times. Id. at 281-82. Continuing on to the next note (March 12, 2012), Dr. Chambers testified that this was ``the first time I've seen a diagnosis in the chart.'' Id at 282. He then explained that ``delusional parasitosis is a non-specific psychotic symptom,'' and that while it can be caused by ``a primary delusional illness . . . more commonly [it] is a sign of severe drug withdrawal'' including ``benzodiazepine . . . or even opiate withdrawal.'' Id. at 282-83. Dr. Chambers testified that the behavior documented in the chart (jerking, twitching, and delusional parasitosis) ``suggests extreme discomfort'' and ``could suggest vital sign changes [and] impending catastrophic withdrawal.'' \32\ Id. at 283. Dr. Chambers observed, however, that Respondent did not obtain his wife's blood pressure and pulse or perform a mental status exam. Id. at 284. --------------------------------------------------------------------------- \32\ Dr. Chambers further criticized Respondent because ``the standard of care for the treatment of acute withdrawal'' requires as part of ``the basic response to get a blood pressure or a pulse,'' and ``[i]f these measures aren't taken, people die routinely.'' Id. at 284. --------------------------------------------------------------------------- Respondent's note of July 14, 2012 documents a prescription for 20 alprazolam 2 mg, a ``6 day supply,'' and states, among other things, that his wife had been off medications for four months and had been staying with her mother-in-law. GE 6, at 4. Regarding the note, Dr. Chambers testified that ``I don't know that she's even around when this prescription happens. It's just not clear where . . . she [is]. There's no evidence that she's even in front of him on July 14, and that's also a concern.'' Tr. 285. Dr. Chambers observed that, in the October 5, 2012 note (``[s]he is out 2 days early''), Respondent documented that his wife was ``actually overusing the prescription that Dr. Webb ha[d] provided her. So he's documenting evidence that she's demonstrating abuse of these drugs and then he . . . say[s], `[s]he's lacerating and cutting herself, severe anxiety and depression, arms excoriated. No return call from a weekend doctor. I have to leave to work out of town.''' Id. After criticizing Respondent for ``abandoning the patient,'' who was self-mutilating and in a ``potentially life threatening withdrawal,'' Dr. Chambers testified that Respondent's ``leaving for the weekend and leaving her with more medication unsupervised'' is ``of grave concern.'' Id. Dr. Chambers offered similar testimony regarding Respondent's May 13, 2012 note. See id. 288 (``So again he's now creating a track record in his . . . notation that the patient is essentially out of control and abusing Xanax and injuring herself. His response is to attempt to prescribe a combo of Xanax and Ambien . . . .). Respondent's February 27, 2013 note states that his wife was ``[a]nxious about marital situation.'' As to the note, Dr. Chambers testified that ``it's not considered a normal medical practice'' to treat family members and ``that when it comes to controlled substances it's a whole different ball game'' when the prescription is ``for a family member.'' \33\ Id. at 286-87. --------------------------------------------------------------------------- \33\ Dr. Chambers also testified that there is a prohibition against a psychiatrist treating a spouse for two reasons. Tr. 293. According to Dr. Chambers, the first reason is that the practice of psychiatry requires ``getting inside the mind of the patient'' and ``is a very invasive process'' and that ``romantic and sexual . . . motives will contaminate the clarity of the practitioner. . . . A psychiatrist who is falling in love with his patient will begin to take actions that benefit . . . him or her rather than the patient.'' Id. at 293-94. The second reason is that ``there is an implicit power differential'' between ``a psychiatrist and a patient'' and that ``to exploit that power differential on a patient who's vulnerable with mental illness through romantic or erotic counter-transference is regarded fairly much as a cardinal sin in psychiatry.'' Id. at 294. Continuing, Dr. Chambers testified that in ``many cases, these are patients who have already suffered physical and sexual abuse previously'' and are ``susceptible'' to more abuse ``later on.'' Thus, if a ``psychiatrist engages in a sexual relationship with a patient . . . the very real danger is [that] there could . . . be a revictimization . . . of the patient.'' Id. at 295. Dr. Chambers also testified, however, that ``[t]his standard is actually not true for other branches of medicine'' such as family practice. Id. at 294. --------------------------------------------------------------------------- Dr. Chambers offered similar testimony with respect to Respondent's March 28, 2012 note, which states: ``Marital/physical/mental stress sky high--Marriage workshop in Montana just accentuated'' and ``Out of Xanax early--rebound anxiety--self harm.'' GE 6, at 7. Dr. Chambers testified that he found that entry was ``interesting because the marital, physical and mental stress . . . involves him, and he's prescribing this medication to somebody who is in acute distress that's ultimately related to the medication.'' Tr. 287. Dr. Chambers also testified that Respondent's notation of a prescription for ``Xanax # 14'' ``is incomplete'' because it does not state ``the dose'' or the patient's instructions. Id. Subsequently, the Government asked Dr. Chambers to address ``the situation where'' a primary care doctor is prescribing to a patient who is also being treated by a psychiatrist. Id. at 291. Dr. Chambers testified that in his ``own practice,'' if a new patient is receiving psychoactive medication from another physician, he ``will call them to stop that because you can't have two chefs in the kitchen.'' Id. Dr. Chambers then explained: If you have two chefs in the kitchen, this is the kind of stuff that can happen as you get chaos and harm and polypharmacy and no one understanding what is the illness versus what is [sic] the side effects of the medications, and it can lead to escalation of mental illness, addiction, and even death. Id. Finally, on direct examination, Dr. Chambers testified that ``[a] competent psychiatrist would document [in the patient's chart] if they knew that another doctor was prescribing controlled substances that were overlapping or representing a threat.'' Id. at 298. A competent psychiatrist would also ``take action to stop it or to stop their practice.'' Id. On cross-examination, Dr. Chambers agreed that ``[i]n many cases,'' Respondent prescribed the same drugs to his wife as were prescribed by Dr. Webb. Id. at 307. Dr. Chambers also acknowledged that he had not examined Respondent's wife and that ``someone who sees her in person'' is in a better position to evaluate her than a person who only reads her chart. Id. at 310. After accusing Dr. Chambers of making a ``serious allegation []'' when he testified that Respondent's ``wife was going through withdrawal'' and which ``could be interpreted as she was abusing controlled substances,'' Respondent's counsel asked Dr. Chambers whether he or Dr. Webb was in a better position to make that determination. Id. Dr. Chambers answered that Dr. Webb was, but noted that he ``was looking at data from'' Respondent and ``had the ability to look at two charts.'' Id. at 310-11; see also id. at 319 (Q. You don't know if she was exhibiting physical characteristics that correspond to drug addiction. A. I can only go on what I've read.''). Asked by Respondent's counsel if ``providing gap fills necessarily mean[s] there's a drug abuse issue,'' Dr. Chambers answered that ``[i]t can mean.'' Id. at 311. After Respondent's counsel asserted that ``[i]t can . . . it's not definitive,'' Dr. Chambers answered: ``I don't see gap filling happen[ing] in this case. There is no gap filling going on. There's overlaying.'' Id. After Respondent's counsel asserted that Dr. Webb ``ha[d] categorized the same [[Page 49718]] evidence . . . as gap filling,'' Dr. Chambers testified: ``[i]t would surprise me if he's seen the same evidence . . . It would surprise me because that's not what I see in the data.'' \34\ Id. --------------------------------------------------------------------------- \34\ As found above, while Dr. Webb testified that gap filling ``means a prescription that is used to get you to the next authorized refill'' and gave various examples, including ``something that would speak to a need for more medication,'' his testimony was clear that with the exception of a prescription issued by ``one of my on call doctors,'' a gap fill by another provider was not appropriate. Tr. 138-39, 192, 195-96. --------------------------------------------------------------------------- Assuming facts not in evidence, Respondent's counsel then asked Dr. Chambers if ``somebody who sees [the patient] regularly five or six times a week as a patient \35\ or someone who's paid to review her patient file'' is ``in a better position'' to diagnose a patient as a substance abuser. Id. While Dr. Chambers agreed that a psychiatrist who saw the patient is in a better position to evaluate a patient, in response to the question of whether ``it would not surprise [him] that Dr. Webb concluded that [Respondent's wife] didn't have a substance abuse issue,'' Dr. Chambers explained that ``[i]t wouldn't'' because Dr. Webb is ``not an addiction psychiatrist.'' Id. at 312-13. When subsequently asked by Respondent's counsel if he ``disagree[d] . . . with the doctor that's seen her for 15 years five to six times a week with his diagnosis,'' Dr. Chambers answered that he did.\36\ Id. See also id. at 319 (Q. ``So it's better to leave it to the psychiatrist who sees her five to six times a week over a 15-year period to make that decision.'' A. ``Well, not always. Not always, right.''). --------------------------------------------------------------------------- \35\ Dr. Webb's patient file contains progress notes for 10 visits by Respondent's wife during the years 2011 through 2013. GX 5, at 42-53. Thus, contrary to the premise of the question, there is no evidence that Dr. Webb saw Respondent's wife ``five or six times a week as a patient.'' Tr. 311. \36\ While the ALJ admitted only Dr. Webb's chart for Respondent's wife during the years 2011 through 2013, Tr. 74, here again, there is no evidence in the entire record that Dr. Webb saw Respondent's wife five to six times a week. --------------------------------------------------------------------------- Dr. Chambers acknowledged that Respondent's and Dr. Webb's dosing of alprazolam were ``often in the same ballpark.'' Id. at 317. However, Dr. Chambers explained that, while ``taken separately both of the [doctors'] dose ranges might be acceptable, . . . if they're . . . overlapping, that's when you get into the danger.'' Id. Dr. Chambers acknowledged, however, that ``[n]o one'' knows how much of the drug Respondent's wife was taking. Id. at 318. Respondent's counsel then asked Dr. Chambers if ``you're saying that she was addicted or . . . was abusing controlled substances . . . wouldn't . . . the individual who prescribed her over 1500 doses of controlled substance in one year . . . be more responsible for that versus the individual who prescribed 200 doses of controlled substances a year?'' Id. at 320. Dr. Chambers answered: ``but what we're seeing here, that's not what happened. We're seeing two people prescribing [to] one person.'' Id. Continuing, Dr. Chambers explained that ``it could be a totally different picture if . . . only Dr. Webb'' was prescribing but he had ``no idea what that whole trajectory would look like'' and whether ``[s]he might be more stable.'' Id. Dr. Chambers held to his earlier testimony that having two physicians prescribe to Respondent's wife was ``creating chaos that could actually cause the treatment to get even worse'' and ``to evolve in the wrong direction.'' Id. at 321. After Dr. Chambers acknowledged that ``Dr. Webb prescribed a significant amount of controlled substances, Respondent's counsel asked him if he ``was aware that in 2011 [Respondent] only prescribed 128 dosage units to her?'' \37\ Id. at 321. After answering ``yes,'' Dr, Chambers added that ``Dr. Alexander prescribed about 20 percent of the controlled prescriptions and Dr. Webb about 70 percent on average over three years. Id. --------------------------------------------------------------------------- \37\ This, too, is a misstatement of the evidence. Rather, the evidence shows that during 2011, Respondent issued prescriptions for 206 dosage units of zolpidem, 151 dosage units of hydrocodone, 28 dosage units of clonazepam, 28 dosage units of alprazolam, and one kit of Diastat acudial. Respondent's counsel also misstated the evidence when he asked Dr. Chambers if he was ``aware [that] in 2012 Dr. Webb prescribed approximately 1720 dosage units of controlled substances versus the 132 that [Respondent] prescribed] to'' is wife. Tr. 321. Rather, the evidence shows that Respondent prescribed 112 du of zolpidem, 94 du of alprazolam, 20 du of diazepam, 30 du of hydrocodone, 15 du of Adderall, as well as Hycodan cough syrup. --------------------------------------------------------------------------- Following questions about the relative amounts of controlled substances prescribed by Dr. Webb and Respondent, Respondent's counsel asked Dr. Chambers if Respondent's wife had ``a substance abuse issue, . . . isn't it logical that Dr. Webb would have as much, if not more, responsibility for that?'' Id. at 322. Dr. Chambers disagreed, explaining: ``not necessarily because Dr. Webb is not aware that . . . two doctors [were] putting drugs into one person.'' Id. While Dr. Chambers acknowledged that there is evidence in Dr. Webb's chart ``that he had discussions'' with Respondent about his wife, he found ``no evidence at all . . . that [Dr. Webb] knew that [Respondent] was also prescribing controlled substances.'' Id. Dr. Chambers testified that he did not see any notation in Dr. Webb's patient file that he was aware that Respondent's wife ``was running out early and that [Dr. Webb] was filling earlier.'' Id. at 328. Asked if he would be surprised that Dr. Webb testified that he was aware that Respondent's wife was getting early refills, Dr. Chambers answered that he ``would be'' and explained that PMP ``data doesn't really reflect [that] there was a great deal of early refill activity going on from Webb by himself,'' and while ``[t]here may be a few instances of it, [it was] not very frequent.'' Id. at 329. Dr. Chambers explained that Dr. Webb's ``prescribing shows a relative lack of overlap of his . . . prescriptions for controlled substances. And when I say `relative lack,' I mean maybe a day or two,'' which is ``not really significant because people have got to go to the pharmacy.'' Id. Respondent's counsel then questioned Dr. Chambers about the alprazolam prescriptions which were issued by Dr. Webb and filled by Respondent's wife on May 14, June 10, July 4, July 21, August 4, and August 16, 2011, and whether the overlap between the prescriptions concerned him. Id. at 331. Dr. Chambers acknowledged that the June 10, 2011 filling created an overlap of three/four days and was ``on the margin'' as did the August 16, 2011 filling. Id. at 331-32. Dr. Chambers also acknowledged that the July 21 prescription ``would concern me.'' Id. at 332. Dr. Chambers offered similar testimony with respect to several alprazolam prescriptions that Respondent's wife filled on February 14 and 23, 2012, finding that the latter fill was ``five days early'' and ``[t]hat's when the red flag begins to go up.'' Id. at 332-33. Of note, however, several of these fills were actually refills of prescriptions written much earlier, see Tr. 333, and in any event, to the extent that Dr. Webb should have been aware that a previous prescription he issued had provided sufficient refills such that there was no reason to issue a new prescription on a particular date, Dr. Webb is not the respondent in this proceeding.\38\ Likewise, while Respondent's counsel raised a series of questions as to whether the pharmacies that filled the prescriptions should not have dispensed various early refills, id. at 334-336, the [[Page 49719]] ALJ properly ruled that the conduct of the pharmacies is irrelevant. Id. at 336. --------------------------------------------------------------------------- \38\ Specifically, Dr. Webb's February 3, 2011 alprazolam prescription, which was for a 30-day supply, see GE 5, at 111, authorized five refills, and Respondent's wife obtained refills which were authorized by this prescription on June 10 and July 4, 2011. See GE 11, at 12. However, on May 2, 2011, Dr. Webb issued Respondent's wife an additional prescription for 30 days of alprazolam. GE 11, at 13; GE 5, at 111. --------------------------------------------------------------------------- Respondent's counsel subsequently asked Dr. Chambers if the hydrocodone prescription which Dr. Webb issued on June 28, 2013 concerned him. Id. at 338. Dr. Chambers testified that he did ``have a concern in that [Dr. Webb] is concurrently prescribing two other benzodiazepines at the same time,'' these being temazepam and alprazolam. Id. at 338-39. Dr. Chambers also acknowledged that the Adderall prescription issued by Dr. Webb on this date created ``a speedball.'' Id. at 339. Continuing, Dr. Chambers testified: So that is a concern. When you step back from the record and you look at where--the opiate is the main threat actually, and when you look at the predominance of opiate prescribing over three years, the majority of it came from Dr. Alexander. So the number of opiates that were prescribed were quite rare. The incidents you're putting in there--you're pointing out is a concern, but . . . the relative frequency of which Webb did that was much, much, much lower than when Dr. Alexander [did] it, and that's interesting because, as you pointed out, Dr. Webb is prescribing . . . three or four times more number of prescriptions. So it's a matter of degree as well. Id. at 340. Asked if it is within the usual course of professional practice for a psychiatrist to prescribe an opiate, Dr. Chambers testified that a psychiatrist ``may treat pain on occasion.'' Id. at 341. While Dr. Chambers then testified that he was surprised that Dr. Webb had testified that that he had written the June 28, 2013 hydrocodone prescription knowing that another physician was prescribing the drug to Respondent's wife and did so without consulting that physician, when Respondent's counsel asked Dr. Chambers if this called into question Dr. Webb's treatment of her, the ALJ properly sustained the Government's objection. Id. at 341-42. Addressing the prescription for Diastat Acudial, a rectal suppository form of diazepam, Dr. Chambers testified that while Dr. Webb's file shows that Respondent's wife suffers from seizures, he did not see how administering Diastat would ``be consistent with treating someone who was having a seizure.'' Id. at 345. While Dr. Chambers testified that Valium (diazepam) and benzodiazepines ``can be used to treat seizure disorder[s],'' he added that these drugs ``can also cause seizure disorders.'' Id. at 346. Dr. Chambers subsequently testified that a rectal suppository might be used ``to treat a seizure disorder if someone can't take [the drug] orally, meaning [the patient] would be in status epilepticus, like actively seizing and not conscious.'' Id. Respondent's Testimony at the State Board Hearing Regarding His Reasons for Issuing the Prescriptions At the January 2014 Board hearing which resulted in the suspension of his medical license, Respondent was asked to explain why he issued the prescriptions. GE 14, at 56. Respondent explained that his wife has a ``fragile'' psychiatric condition, which ``became even more fragile'' in ``about November or December of last year.'' Id. He testified that while ``[t]here were times [that his wife] would run out of medicine and not decompensate . . . there was never a decompensation where she had her medicines.'' Id. at 57. Respondent testified that ``[w]ith [his] history, there was no way to call anyone else'' and ask them to prescribe Xanax to his wife because anyone he knows would ``be immediately suspicious that it was for me.'' Id. at 58. According to Respondent, ``as regards my wife herself, I would phone in usually a two- or three-day stop gap supply of medicines. And if you'll look at the numbers dispensed, it's usually 12, which would be a three-day supply for'' her. Id. Continuing, Respondent testified that ``[w]e tried to . . . contact [Dr.] Webb, but . . . you can't get him at night, on weekends, and I don't blame him. And as he always tells [my wife], this is a matter that she shouldn't be running out prematurely.'' Id. Respondent maintained that ``[t]his happened . . . in December, in January, in February. I don't think it happened in April or May.'' Id. He further asserted that ``[i]t was sporadic'' and ``was always for a confined number of pills, a small amount, that bridged her gap between obviously when she was in crisis and didn't have any medicine.'' Id. Respondent also testified that ``we've got a baby here,'' ``I may be working out of town,'' and ``I've got to do something to calm this situation down.'' Id. Respondent added that he ``felt as if [he] was in an emergency situation.'' Id. Apparently referring to the prescriptions he issued for hydrocodone, Respondent testified that ``[w]hen that changes--there were two occasions in general'' when he ``called in.'' Id. Respondent then related that a plastic surgeon had drained an abscess in his wife's thigh and testified that he ``noticed that there was one prescription for Lorcet then for a few, and it happened again in July of last year'' when his wife's mother died and his wife ``had a seizure [and] fell,'' suffering various injuries. Id. While Respondent testified that ``there was pain medicines [sic] then,'' he added that ``in general, the majority of the medicine were Xanax, two milligrams, three days' supply were common.'' Id. at 59-60. Respondent then maintained that his wife ``would get in with Dr. Webb the following Monday morning, and he will refill everything.'' Id. He further testified that ``I think the record reflects that I filled in in times where I just didn't think I had no other choice. I didn't know what to do.'' Id. Continuing, Respondent testified that ``I have never denied that I called things in for Jill . . . I always thought that if called to task for it, the context would not speak for itself but would be evidenced by number, etcetera.'' Id. at 61. Respondent then testified that he was monitored by the Board and that ``[t]here's not been any diversion. There has not been any suggestion of that and, fortunately, got a lot of urine tests that were negative. I only ever did what I did when I perceived I had no other options having exhausted anything else that I knew to do.'' Id. Asked about the December 2012 Adderall prescription, Respondent stated that he did not ``recall ever writing'' the prescription and that his wife ``was in the hospital in Hattiesburg at the time.'' Id. at 62. Continuing, Respondent stated that ``that one prescription doesn't seem to fit for me. I don't think that's mine, but I would be glad if somebody had a copy of it to look at it.'' Id. at 62-63. The prescription is, however, in the record of this proceeding. GE 18, at 102. It shows Respondent as the prescriber and Respondent offered no testimony in this proceeding disputing that he issued it. Id. Respondent also told the Board that his prescribing was ``not a matter of judgment'' but ``a matter of heart.'' GE 14, at 63. He further told the Board that: I never did anything that I didn't think at the moment . . . was necessary, and I think if you look at the record you can see that. There can be no more. There can be no more. You know, if I have to call 911 every time, then I am Jill's husband. I am not--I was never her doctor. I stopped gapped, but I can't even do that anymore. I mean, I know that is a matter of fact going forward. Id. at 63-64. During cross-examination at the Board proceeding, Respondent admitted that he did not disclose that he had been issuing the prescriptions until he was asked by the Board. Id. at 64-65. He further asserted that he did not ``come up with [his wife's] regimen,'' that he ``didn't change her regime,'' and that he only ``mirrored what her treating psychiatrist had done.'' Id. at 65. [[Page 49720]] However, after a Board member identified multiple hydrocodone and Xanax prescriptions that he issued in July 2013 and asked if he thought ``that's wise,'' Respondent stated that ``I have to alter what I said. She also has a treating neurologist'' (Dr. Bell) who ``also does musculoskeletal medicine'' and that when his wife ``had a seizure'' she saw the neurologist. Id. at 66. Respondent then explained that ``[w]hen I say psychiatrist, that's what Dr. Bell had given her for pain, and she ran out, and she was sitting constantly in the . . . [h]ospital.'' Id. Respondent asserted that ``that was an isolated incident there.'' Id. During the Board proceeding, Respondent acknowledged that he had violated his RCA and an agreement with the Board. Id. at 68. He further asserted that he never issued the prescriptions ``out of defiance[,] . . . self will, power, or arrogance'' and that ``[i]t was always done in a short stop gap times [sic] when I believed again . . . that there were no other options.'' Id. at 69. Before the Board, Respondent further asserted that he did not notify Dr. Webb about the prescriptions because his wife ``assured [him] that [Webb] was apprised of every situation.'' Id. at 78. However, when a Board member noted that ``[c]ommon sense would dictate as a physician [that] the next morning you pick up the phone and call this psychiatri[st] that's taken care of [her] for 18 years and knows her probably better than any healthcare professional'' and tell him ``this is what happened last night, and this is what I did,'' Respondent answered: ``Not with every time.'' Id. at 79. Asked more specifically why he did not talk to Dr. Webb, Respondent maintained that his wife told him that ``[w]ith your Betty Ford attitude, he's going to take me off my Xanax'' and ``I don't want you to talk to him.'' Id. at 80. While Respondent testified that he should ``have overridden her concerns and intruded . . . upon her doctor/patient relationship,'' he then added that ``[i]n retrospect, I should have done that, more than the few times that I did do it. I certainly did it sometimes. I didn't do it with every issuance herein.'' Id. The same Board member noted that ``there's an insinuation that [Dr. Webb] knew something had happened and that weekend or something had happened and that emergency medicine had been called in'' and asked ``is that correct?'' Id. Respondent answered: ``I certainly know that certain times he did. I don't know that at every time he did.'' Id. Respondent added that he was ``certain that the answering service's message was, `[c]all Dr. Alexander.' '' Id. at 80-81. Respondent subsequently testified that ``no, I didn't do it every time. I have had the discussion with him.'' Id. at 81. Respondent testified that when he would call Dr. Webb's answering service, he would ``ask [ ] for a call back from Dr. Webb or the doctor on call.'' Id. at 84. When asked if he ``communicate[d] to the answering service the gravity of the situation,'' he admitted that he did not. Id. at 85. He then explained that ``I think I communicated that it was a medicine shortfall and that we needed someone to remedy that.'' Id. Respondent's Case Respondent's first witness was his wife. Tr. 357-401. Of consequence, the ALJ found ``that her testimony was not helpful in resolving the issues in this case.'' R.D. 9. Specifically, the ALJ found that ``her testimony was confusing, lacked specificity, and, at times, was internally inconsistent'' and that ``she could not remember many details of the underlying events about which she was testifying.'' Id. (citing Tr. 373-74, 376-77, 382, 384, 391). The ALJ also ``found her responses to some questions to be evasive, and her demeanor to be somewhat combative.'' Id. The ALJ also provided extensive reasons for why he gave ``little credence to her testimony, and where it [was] contradicted by other evidence,'' he did not find her testimony as credible. These included: She could not recall the number of times she had called Dr. Webb's answering service and had not received a return phone call. Tr. 360-62. She could not provide an adequate explanation of why she continued to be Dr. Webb's patient even though she was dissatisfied with his failure to return her phone calls. Tr. 361-62, 382, 391. In explaining her difficulty in recalling details from 2011 to 2013, she said she could not recall because that was ``seven years ago.'' Tr. 372. She testified that she did not have appointments with Dr. Webb between 2011 and 2013, yet Dr. Webb's treatment notes document several appointments during that period. Compare GE 5, at 42-46, 49- 53, with Tr. 386. She testified that she told Dr. Webb that she would only get her prescriptions from him, and that that had been her practice for the past three years, but later testified that she had this discussion with Dr. Webb in 2016. Tr. 363, 368, 398-99. She testified that she only used one pharmacy, but her PMP report shows she filled prescriptions at numerous pharmacies. GE 11; Tr. 369. She did not give a direct answer to the question of whether she had told Dr. Webb that the Respondent had provided her with prescriptions, and when she provided an example of when she had passed that information to Dr. Webb, the example was outside of the time range of the Respondent's alleged violations. Tr. 360-63, 398-99. R.D. 9. Respondent's wife testified that she is known by various names including Mona Jill Graham Alexander, Mona Jill Graham, Mona Jill G. Alexander, and Jill Alexander. Tr. 357-58. She testified that she has been a patient of Dr. Webb for 16 years and she would usually see Dr. Webb three times a year and speak on the phone two to three times a month for 30 minutes to one hour. Id. at 359. Respondent's wife testified that during the 2011 through 2013 time period, she ``would tell'' Dr. Webb that Respondent was prescribing controlled substances for her, ``especially if I got out of medication.'' Id. at 360. I do not find this credible. Nor apparently did the ALJ. R.D. 16 (FoF #28: ``Dr. Webb did not know that the Respondent was simultaneously prescribing controlled substances to Mrs. Alexander.'') (citations omitted). While Respondent's wife also testified that when she called after hours, ``[n]o one would ever . . . call me back,'' that this ``was very frustrating'' to her, and that she expressed her frustration to Dr. Webb, Tr. 360-61, the ALJ did not find this testimony credible. R.D. 15 n.21. Indeed, the ALJ specifically found credible Dr. Webb's testimony that Respondent's wife ``never told [him] that she was dissatisfied with her ability to contact him or his office.'' R.D. 15 (FOF #23.). I agree with these findings. Respondent's wife testified that ``[t]he only conversation we [she and Dr. Webb] ever had about [her husband's prescribing] was to let me be the only one that prescribes you this medicine.'' Tr. 363. She initially testified that this conversation ``probably [occurred] towards the end'' of 2013, id. at 391, only to testify that the conversation occurred ``after [she] got discharged from the hospital'' in March 2016. Id. at 398-99. She also testified that during the 2011 through 2013 time period, she was hurting herself and that to the best of her recollection, she shared this with Dr. Webb. Id. at 364. Regarding the Diastat prescription, Respondent's wife testified that she uses the drug because she has seizures and because ``I've had seizures, I just always try to travel with it and keep some on me.'' Id. at 366. Asked by the ALJ if she was using this medication in the 2011-2013 time period, Respondent's wife answered: ``I always keep it with me. It's something that I'll try not to ever run out.'' Id. She also subsequently testified that the Diastat was not prescribed by Dr. Webb but by her ``neurologist.'' Id at 393. Respondent's wife testified that she believed her husband prescribed the controlled substances because he was trying to help her. Id. at 367. She further [[Page 49721]] testified that her husband ``never prescribed medicines that weren't prescribed for [sic] Dr. Webb when I got--until we could get in touch with him.'' Id. See also id. at 383 (``[B]ut he never prescribed anything that I hadn't already been prescribed by Dr. Webb.''). She also testified that when her husband wrote a prescription for her, she was in crisis, and that her husband had never provided her with a controlled substance prescription when she was not in crisis. Id. at 367-68, 376. She further maintained that she ``would try to get in touch with Dr. Webb, and in the interim of a two- or three-day fill- in, I did get medicine from'' my husband. Id. at 371. When later asked why her husband would have to prescribe to her when she was in crisis, she maintained that ``[t]here would be occasional times I might run out a day early on a weekend . . . and he would see me very upset, crying, very emotional, and I feel like his intent was never to harm me. He was just trying to help me.'' Id. at 379. See also id. at 381 (``I don't know if I told him I need more or if he just knew that I just needed just two, three, four to get back to Dr. Webb because no one would call us back.''). However, when asked if Respondent had ever given her a prescription for a longer time period than two to four days, she answered: ``Not to my knowledge. I do not remember.'' Id. at 384. On cross-examination, she also admitted that Respondent had written a hydrocodone prescription for her but maintained that he did so when her mother ``was dying in the hospital'' and she developed back pain because she sat at her ``mother's bedside waiting for her to die.'' Id. at 374. Respondent's wife then maintained that she did not recall her husband as having written ``[m]ore than one'' hydrocodone prescription. Id. However, as found above, Respondent issued numerous hydrocodone prescriptions to her well before Dr. Webb issued the single hydrocodone prescription on June 28, 2013. Also, a substantial number of the prescriptions (especially those for zolpidem) were for quantities that far exceeded the amount necessary to provide medication until she was able to get a new prescription from Dr. Webb. Moreover, in a number of instances, Respondent issued the prescription notwithstanding that his wife had either recently refilled a prescription for the same drug or had refills outstanding which were authorized by an existing prescription issued by Dr. Webb. On questioning by the ALJ, Respondent's wife maintained that during the period of 2011 and 2013, she ``usually [did] not'' get a call back from Respondent's office when she would leave a message. Tr. 387. Not only did the ALJ not find her testimony credible, her medical file contains evidence of only two phone calls she made during this period in which Dr. Webb did not document that he called back or Dr. Webb did not issue a prescription either the same day or the following day.\39\ --------------------------------------------------------------------------- \39\ The first of these was on August 25, 2011. GX 5, at 140. Notably, Respondent's wife had an office visit with Dr. Webb on August 16, 2011, during which he wrote her prescriptions for 30-day quantities of Adderall 20 mg, zolpidem 10 mg, and 90 alprazolam 2 mg. Id. at 49; GX 11, at 12. While the phone messages states ``Having problems,'' GX 5, at 140, Respondent did not issue a prescription until August 28, 2011, when he authorized 12 zolpidem. The second of these occurred on July 10, 2013. GX 5, 133. However, the same day, Respondent's wife refilled a prescription for 45 alprazolam 2 mg (15 days). GX 11, at 6. --------------------------------------------------------------------------- Respondent called as a witness Peter Graham, Ph.D. Dr. Graham is a psychologist who works with Acumen Assessments, which provides clinical evaluations of physicians who are referred to it by physician health programs and state boards, and the Acumen Institute, which provides treatment, education and coaching to ``licensed professionals who are in the process of being rehabilitated for one or another professional reason.'' Tr. 403-04. Dr. Graham testified that the main focus of Acumen's evaluations is not whether a physician is competent to practice medicine, but whether the physician's ``mental status, personality variables, [and] character traits . . . may impact on decision-making, ethical judgment, self-regulation, ability to remain responsible and maintain the duties of licensure.'' Id. at 416-17. Dr. Graham testified that Respondent was referred to him ``for evaluation of his fitness secondary to having engaged in conduct that was contrary to his [recovery] contract,'' that being writing the prescriptions for his wife. Id. at 417. According to Dr. Graham, the evaluation determined ``that there was an interaction between certain personality factors that affected his judgment and the way he was deciding to comply or not with his contract, as well as anxiety and situational stress related to'' his home life that ``affect[ed] his mental status.'' Id. at 419. The evaluation recommended to the MPHP that Respondent ``undergo treatment designed for professionals who have made ethical misjudgments or engaged in some kind of misconduct . . . with a focus on examining his ethical decision-making'' and how his ``personality traits'' affected his behavior. Id. at 420. Respondent subsequently underwent treatment, which included both a three-week inpatient and one-week follow-up visits at three and six months, individual psychotherapy in his home community, and a three-day wrap up visit at the one-year mark. Id. at 421-22. According to Dr. Graham, Respondent's treatment team has determined that he can ``return to supervised and monitored practice.'' Id. at 425. Respondent also called as a witness, Scott Hambleton, M.D., the medical director of the MPHP. Id. at 435-37. Dr. Hambleton testified that ``the heart of [Respondent's recovery] contract concerns abstinence from any mood-altering or addictive substances, which would increase the risk of a relapse to substance use and active addition.'' Id. at 443. He further testified that Respondent is subject to random testing approximately 30 times a year for both drug and alcohol use, that he is subject to a workplace monitor, and in the event he needs to take controlled substances, he ``is required to use a medication monitor'' and all such prescriptions must be approved by the MPHP ``in advance.'' Id. at 443-44. Dr. Hambleton also testified that Respondent is required to attend 12-step and Caduceus meetings for physicians in recovery. Id. at 445. In addition, according to Dr. Hambleton, a Board investigator visits Respondent on a random basis at least once a quarter to witness a drug screen and evaluate his appearance. Id. at 446-47. Dr. Hambleton further stated that Respondent's contract will last for as long as he has an active medical license. Id. at 447. As for how the MPHP monitors the provision in Respondent's contract that prohibits prescribing to family members and himself, Dr. Hambleton testified that this is done by the Board's investigators. Id. at 448. Dr. Hambleton testified that if the MPHP found out that Respondent had prescribed controlled substances to himself or a family member it ``would withdraw advocacy immediately.'' Id. at 449. Dr. Hambleton further testified that he had no reservations about Respondent returning to the unrestricted practice of medicine. Id. at 450. The record does not establish, however, what ``the unrestricted practice of medicine'' entails in light of Respondent's recovery contract. On cross-examination, Dr. Hambleton acknowledged that Respondent had violated his first two recovery contracts.\40\ Id. at 452. He also [[Page 49722]] acknowledged that at some point when Respondent had a job opportunity in Tennessee, the MPHP had written to that State's Board recommending against granting a license to Respondent. Id. at 475. --------------------------------------------------------------------------- \40\ Dr. Hambleton explained that Respondent had been subject to a ``provisional contract'' during the period of his license suspension ``to establish a period of compliance and recovery.'' Tr. 452. Respondent did not violate this contract, which ended when he entered his current (fourth) contract. Id. at 453. --------------------------------------------------------------------------- Dr. Hambleton testified that he supported Respondent's return to the unrestricted practice of medicine because the Board's suspension of his license was ``a profound experience, especially for a neurosurgeon, with that amount of training,'' and ``[t]hat type of intervention has a powerful effect on the recovery process.'' Id. at 470. He also testified that ``Acumen has more expertise in dealing with personality issues'' and ``[s]o that treatment in itself . . . represents a profound event that makes it possible to provide advocacy.'' Id. at 470-71. Dr. Hambleton further testified that Respondent's ``treatment has been effective'' and that ``[h]e's gaining insight, sensitivity, demonstration of more regard for others, responsibility, authenticity, the markers of recovery.'' Id. at 471. However, on questioning by the ALJ, Dr. Hambleton testified that his ``frequency of contact'' with Respondent ``is not what allows me to make that assessment of him.'' Id. at 472. Rather, Dr. Hambleton explained that his assessment was based on reports he received from other participants in Respondent's Caduceus group, ``from another facilitator of the group,'' his cases manager's reports, and ``watching him interact with other physicians during'' the MPHP's ``annual Caduceus retreat.'' Id. at 472. Dr. Hambleton then acknowledged that when he ``provides advocacy, [his] interaction with participants is very limited'' and that he ``provide[s] advocacy based on the constellation of collateral sources of information [and] their drug testing'' results. Id. at 473. Dr. Hambleton testified that ``[i]n the event that there is evidence of substance abuse, we will withdraw advocacy immediately, and it [will] be the end of his medical career.'' Id. at 477. He also testified that ``[i]n the event that he prescribes inappropriately . . . our medical board investigators will monitor it closely'' and the Board would ``issue an immediate prohibition on practice.'' Id. Dr. Hambleton was ``not sure'' as to how the Board found out about Respondent's prescribing to his wife, but based on ``conversations'' he has ``had with investigators,'' he asserted that ``now it is part of their policy to do regular PMP checks'' on the MPHP's participants.'' Id. at 477-78. The MPHP does not, however, have that authority. Id. at 478. Respondent also testified on his own behalf. Id. at 481. After discussing his background, training and current employment, id. at 481- 82, Respondent testified that he ``[a]bsolutely'' prescribed controlled substances to his wife and did so when she was under the care of another physician. Id. at 484. Asked if his prescribing of controlled substances to his wife ``violated his obligations as a licensed doctor in . . . Mississippi,'' Respondent answered: ``I know it violated my contract with the professionals healthcare program.'' Id. Asked if he believed that his prescribing ``in the manner that'' he did ``violated [his] obligations as a DEA registrant,'' Respondent testified: ``I don't know the specific legalities of DEA registration, but I'm here to tell you what I did was wrong, period, without any equivocation.'' Id. Respondent testified that when he testified before the State Board, he accepted responsibility for prescribing to his wife. Id. at 486. He then testified that he is under a lifetime monitoring contract, and that he is monitored by both the MPHP and the Board. Id. Asked why the Agency should entrust him with a DEA registration, Respondent testified: even . . . if I don't know the letter or spirt of any law that I transgressed, I do know that becoming involved in a loved one's care is foolish. There is no subjectivity there. I can be Jill's husband, but that's all I can be to her, period. There can't be any clinical judgment, or any family member for that matter. As I testified in my [2014] board hearing . . . , regardless of what it had come from, I thought I'd hit a brick wall. And there are no other options for me. If I can't practice medicine, conforming to every jot, tittle, to the letter of the law, I can't practice medicine. There are no more get-out-of-jail cards for me. There aren't. Id. at 489-90. Continuing, Respondent testified: I have tried to--perhaps I made enough missteps, I can provide a beacon of some sort to younger physicians that might think it's okay to prescribe outside the bounds of normal patients. I don't know what else I possibly could do at this point to convince Your Honor what more I could do to be--that I am worthy to be entrusted with a DEA registration. I will do it. If someone suggests something to me, I will gladly do it, but --. Id. at 491. On cross-examination, the Government asked Respondent if he understood that ``DEA is alleging something slightly different than prescribing outside the contract.'' Id. at 494. After the ALJ overruled the objection of Respondent's counsel that the question was outside the scope of direct examination, Respondent testified that he was ``not certain that [he] understand[s] that fully.'' Id. at 495. The Government then asked Respondent if he understood that ``DEA is asserting that with respect to the prescriptions you issued for your wife that you violated Mississippi and federal law.'' Id. Respondent answered: ``I understand that you just asserted that, but my understanding would only stop there.'' Id. The Government followed-up by asking: ``so . . . you are not admitting that you violated either federal or state law with respect to the prescriptions you issued to your wife?'' Id. Respondent testified: ``I think my answer is I'm uncertain as to every component, specifically of the federal, to be able to answer that as honestly as I want to.'' Id. The Government asked Respondent if he understood that what he had been charged with in the DEA proceeding ``had nothing to do with'' his recovery contract. Id. at 497. Respondent testified: ``I understand that you just represented half of what I understand'' and added that ``I was found guilty of two things one, violation of a previous order . . . Number two, the unethical behavior, which in my interpretation is subsumed by the number of things that you have cited as far as Mississippi conduct, et cetera.'' Id. After noting that Respondent was only ``admitting responsibility to what the Board found'' and that was not what DEA had charged him with, the Government explained that it was ``trying to get a clarification as to what you're accepting responsibility for?'' Id. at 497-98. Respondent testified: . . . as I've said already . . . I wrote prescriptions. I shouldn't have written prescriptions. It violated my contract. It violated my duty to my wife. It violated--in this one instance, in all my years of practice, that's the only time I've ever been called into question, but it violated as a layperson everything I think I should have done, regardless of why I thought at the time it might-- erroneously thought it could be proper. As far as me as a physician testifying to what statutes I may or may not have transgressed, I can't. That would be speculative at least on some level for me. Id. After the ALJ sustained Respondent's objection to the Government's attempt to question him about both his testimony before the State Board and the patient file he maintained on his wife, the Government asked Respondent if he [[Page 49723]] ``accept[ed] that the prescriptions that you issued to your wife were outside the course of professional practice as defined by the DEA?'' Id. at 501. Respondent answered: I think I've answered that already. I don't know precisely how the DEA defines it, and to be scrupulously honest, I can't. I will once again accept the responsibility that what I did was wrong and I should not have done it. And I have done everything in my power to remediate that. But I do not know again . . . the specifics of the-- of what I'm being charged with by DEA now, three years after I have assiduously striven to do everything I can to clean up and do everything right, and then you come along and ask me about new things. What hope is there for any other physician that follows me for redemption if we do everything we can. . . . What more, I mean, that's--I'm sorry. I'm getting emotional. Id. at 501. Then asked if he had been treated unfairly by DEA, Respondent testified that ``I'm not certain I have a well-founded opinion of that. I know that I have done everything I humanly can and will continue to do so and provide the DEA and every other regulatory body with anything I can to ensure that I am safe for the public.'' Id. at 502. The Government then attempted to ask Respondent if he accepted responsibility for failing maintain patient files in compliance with Mississippi law. Id. at 502-03. The ALJ disallowed the question, explaining that Respondent's ``counsel has decided not to ask him if he wants to accept responsibility for that.'' Id. After both the Government and Respondent's counsel stated they had ``[n]othing further,'' the ALJ observed that he was ``was just a little bit puzzled as to [Respondent's] answer about acceptance of responsibility.'' Id. at 503. While the ALJ stated that he found Respondent ``generally very credible,'' he then explained that ``[w]hat puzzles me is how you could come to this hearing without knowing what the charges against you by DEA are?'' Id. Respondent answered that he ``presumed . . . that they would parallel that which the state charged me with. I mean, I knew we were having a hearing.'' Id. Respondent then testified that when he ``first applied for re-registration,'' he was told by a DI that ``it was all about my past history with addiction'' but that when he ``had the temerity to get an attorney, it morphed into something else,'' so he ``wasn't sure if'' he was to talk about his ``recovery or other things.'' Id. at 503-04. After the ALJ asked if he had read the Show Cause Order and pointed out that it ``didn't say anything about [his] failure in recovery,'' Respondent acknowledged that ``[i]t didn't'' and asserted ``that's why [he] was confused.'' Id. at 504. Noting that the allegations involved his prescribing to his wife and his failure to make adequate notes in his wife's record, the ALJ again expressed his puzzlement as to what Respondent was ``accepting responsibility for.'' Id. at 504-05. Respondent replied that he knew ``exactly what the State . . . said I did'' and ``I think I believe that the DEA mimicked that . . . [or] paralleled that.'' Id. at 505. Continuing, Respondent stated: ``And if those two specifications or charges are the same, then, yes, I do accept responsibility for what DEA says.'' Id. The ALJ then explained that he was not sure what Respondent meant; Respondent stated that it went to his ``understanding of what I was charged and found guilty with by the State,'' which included violating his Recovery Contract and ``basically unethical behavior.'' Id. Respondent added that he ``assumed that that was also what DEA was doing here . . . [and] that I was being called to task for the same things.'' Id. at 506. Thereafter, the ALJ stated to Respondent's counsel that if he was ``getting into an area that you don't want me to ask about, don't hesitate to object because I know I'm going beyond what your direct examination was.'' Id. The ALJ further stated that he ``want[ed] to respect the relationship between you and your client and your client's rights in this hearing,'' and that if he asked a question that Respondent's counsel ``vigorously object[ed] to,'' he expected Respondent's counsel ``to say so.'' Id. Respondent's counsel then stated that ``[t]here are lines that I'm concerned about here and based on the history here of whether or not a full-throated, yes, I violated this statute was going to result in, you know additional action against'' Respondent. Id. The ALJ then offered Respondent's counsel the opportunity to further question his client. Id. at 507. Respondent's counsel resumed questioning Respondent and asked him to ``clarify . . . what specific actions [he was] accepting responsibility for?'' Id. Respondent testified: ``Violating the previous order, right? Writing prescriptions for my wife when I wasn't a treating physician, which I think is not proper document, not fully proper documentation of those things.'' Id. Respondent's counsel then asked if ``it matter[ed] . . . what provisions that the violations fall under?'' Id. at 508. Respondent answered: . . . I have found me guilty, and so if someone shows me--and perhaps . . . what I was saying that I'm ignorant of the specifics of a DEA charge. But if I meet the criteria and I accept I did it, then I did it. From my hearing in January of 2014, I never said I didn't. I sat there and said, yes, this is what happened. There are some prescriptions errors in that record, but in general, yes, this is what happened. Id. Respondent further testified on re-direct that he was, in the words of his counsel, ``accepting responsibility for inappropriate prescribing practices related to [his] wife.'' Id. On re-cross, the Government asked Respondent ``[w]hat portion of the prescribing to [his] wife [was] inappropriate?'' Id. Respondent answered: Through my education with Dr. Webb--well, first of all, prescribing for family members is a bad idea in general. I think the contract specifies it because commonly that means there's diversion going on, and I'm prescribing for someone, and they're kicking it back to me, but that's not a question, and I think my urine tests show that didn't happen. I think that in general the objectivity required even in exigent circumstances must be called into question when it's a loved one. Id. at 508-09. Subsequently asked by the Government if ``there [was] anything else wrong with your prescriptions to your wife, aside from the fact that she's a family member,'' Respondent answered: Let me think on that a minute. I'm a little almost frightened to answer because at no time do I want anyone in this courtroom thinking, exigent or not, that I'm saying it was right or that you'd have done it too if you were there. There's not a complete patient file. I mean, is that what you're asking me? Id. at 510. After the Government again asked Respondent what he thought he ``did wrong with respect to the prescriptions,'' Respondent answered: ``again, I shouldn't have written. I violated the contract. Prompt me . . . I'm not trying to minimize anything. I'm blanking, frankly.'' Id. The Government then asked Respondent if he ``admit[ted] that the prescriptions you issued to your wife were outside the usual course of professional practice?'' Id. at 511. Respondent answered: As I understand that term of art . . . if the documentation is substandard, that that renders it outside the course of professional practice, then I would accept that, if I'm--any hesitancy previously has been based on that. I mean, you know, as a physician, I don't understand that term. When you say outside the course of medical practice, it makes me think that someone just gave rat poison or something absurd like that. But when you lay the predicate about proper documentation, for instance, then, yes, I would have to accept that. [[Page 49724]] Id. at 511-12. The Government subsequently asked Respondent if he ``believe[d] that [his] actions increased the chances of [his] wife's dependency, overdose, or diversion of controlled substances?'' Id. at 512. Respondent answered ``[n]o.'' Id. On still a further round of re-direct, Respondent acknowledged that he is ``not a psychiatrist'' and that ``[t]hese medicines are . . . chiefly used in psychiatric conditions. Id. at 513. Respondent's counsel further asked him if he understood that the DEA had alleged that he ``prescrib[ed] controlled substances to someone who was under the care of another physician for those same ailments.'' Id. Respondent testified that he understood that and ``accept[ed] that'' it was wrong for him to do that. Id. at 513-14. Respondent's counsel then asked if could ``be trusted to not engage in such prescribing in the future?'' Id. at 514. Respondent testified: I will first say strongly, absolutely. I have spent the last three years trying to redeem this situation, to show everyone exactly how driven I am. And, Your Honor, I'm not trying to avoid anything. If someone shows me I've done something wrong, I will admit it. I'm not even bringing up the subtext. I did wrong. I throw myself upon the mercy of the process. I have done everything that I know to do to try to remedy this situation and I can do no more than give my sworn oath that this will not happen again. Id. Respondent's counsel concluded his examination by asking Respondent if his acceptance of responsibility included his ``prescribing to [his wife] while she was under the care of another doctor, perhaps providing medications too soon in terms of early refills, providing gap fills, [and] not having an adequate medical file?'' Id. at 515. Respondent answered ``[y]es.'' Id. Discussion Section 303(f) of the Controlled Substances Act (CSA) provides that ``[t]he Attorney General may deny an application for [a practitioner's] registration . . . if the Attorney General determines that the issuance of such registration . . . would be inconsistent with the public interest.'' 21 U.S.C. 823(f). With respect to a practitioner, the Act requires the consideration of the following factors in making the public interest determination: (1) The recommendation of the appropriate State licensing board or professional disciplinary authority. (2) The applicant's experience in dispensing . . . controlled substances. (3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances. (4) Compliance with applicable State, Federal, or local laws relating to controlled substances. (5) Such other conduct which may threaten the public health and safety. Id. ``[T]hese factors are . . . considered in the disjunctive.'' Robert A. Leslie, M.D., 68 FR 15227, 15230 (2003). It is well settled that ``I may rely on any one or a combination of factors, and may give each factor the weight [I] deem [] appropriate in determining whether . . . an application for registration [should be] denied.'' Paul H. Volkman, 73 FR 30630, 30641 (2008) (citing id.), pet. for rev. denied, Volkman v. DEA, 567 F.3d 215, 222 (6th Cir. 2009); see also MacKay v. DEA, 664 F.3d 808, 816 (10th Cir. 2011); Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005). Moreover, while I am required to consider each of the factors, I ``need not make explicit findings as to each one.'' MacKay, 664 F.3d at 816 (quoting Volkman, 567 F.3d at 222 (quoting Hoxie, 419 F.3d at 482)).\41\ --------------------------------------------------------------------------- \41\ In short, this is not a contest in which score is kept; the Agency is not required to mechanically count up the factors and determine how many favor the Government and how many favor the registrant. Rather, it is an inquiry which focuses on protecting the public interest; what matters is the seriousness of the registrant's misconduct. Jayam Krishna-Iyer, 74 FR 459, 462 (2009). Accordingly, as the Tenth Circuit has recognized, findings under a single factor can support the revocation of a registration or the denial of an application. MacKay, 664 F.3d at 821. --------------------------------------------------------------------------- The Government has the burden of proving, by a preponderance of the evidence, that the requirements for denial of an application pursuant to 21 U.S.C. 823(f) are met. 21 CFR 1301.44(d). However, once the Government has made a prima facie showing that issuing a new registration to the applicant would be inconsistent with the public interest, an applicant must then present sufficient mitigating evidence to show why he can be entrusted with a new registration. Medicine Shoppe-Jonesborough, 73 FR 364, 387 (2008) (citing cases)); see also MacKay, 664 F.3d at 817. Having considered all of the factors, I find that the Government's evidence with respect to Factors Two and Four satisfies its prima facie burden of showing that granting Respondent's application would be inconsistent with the public interest.\42\ I further find that Respondent has failed to produce sufficient evidence to rebut the Government's prima facie case. --------------------------------------------------------------------------- \42\ As to factor one, while the Mississippi Board has taken disciplinary action against Respondent based on his issuance of the prescriptions, the Board has not made a recommendation to the Agency with respect to whether his application should be granted. To be sure, as a result of the Board's subsequent restoration of his medical license without restriction of his controlled substance prescribing authority under Mississippi law, Respondent satisfies the CSA's prerequisite for obtaining a new practitioner's registration. See 21 U.S.C. 823(f)(1); see also id. 802(21). (defining ``the term `practitioner' [to] mean[ ] a . . . physician . . . or other person licensed, registered or otherwise permitted, by . . . the jurisdiction in which he practices . . . to distribute, dispense, [or] administer . . . a controlled substance in the course of professional practice''). However, the restoration of Respondent's state authority is not dispositive of the public interest inquiry. See Mortimer Levin, 57 FR 8680, 8681 (1992) (``[T]he Controlled Substances Act requires that the Administrator . . . make an independent determination [from that made by state officials] as to whether the granting of controlled substance privileges would be in the public interest.''). To be sure, the Agency's case law contains some older decisions which can be read as giving more than nominal weight in the public interest determination to a State Board's decision (not involving a recommendation to DEA) either restoring or maintaining a practitioner's state authority to dispense controlled substances. See, e.g., Gregory D. Owens, 67 FR 50461, 50463 (2002) (expressing agreement with ALJ's conclusion that the board's placing dentist on probation instead of suspending or limiting his controlled substance authority ``reflects favorably upon [his] retaining his . . . [r]egistration, and upon DEA's granting of [his] pending renewal application''); Vincent J. Scolaro, 67 FR 42060, 42065 (2002) (concurring with ALJ's ``conclusion that'' state board's reinstatement of medical license ``with restrictions'' established that ``[b]oard implicitly agrees that the [r]espondent is ready to maintain a DEA registration upon the terms set forth in'' its order). Of note, these cases cannot be squared with the Agency's longstanding holding that ``[t]he Controlled Substances Act requires that the Administrator . . . make an independent determination [from that made by state officials] as to whether the granting of controlled substance privileges would be in the public interest.'' Levin, 57 FR at 8681. Indeed, neither of these cases even acknowledged the existence of Levin, let alone attempted to reconcile the weight it gave the state board's action with Levin. While in other cases, the Agency has given some weight to a Board's action in allowing a practitioner to retain his state authority even in the absence of an express recommendation, see Tyson Quy, 78 FR 47412, 47417 (2013), the Agency has repeatedly held that a practitioner's retention of his/her state authority is not dispositive of the public interest inquiry. See, e.g., Paul Weir Battershell, 76 FR 44359, 44366 (2011) (citing Edmund Chein, 72 FR 6580, 6590 (2007), pet. for rev. denied, Chein v. DEA, 533 F.3d 828 (D.C. Cir. 2008)). As to factor three, I acknowledge that there is no evidence that Respondent has been convicted of an offense under either federal or Mississippi law ``relating to the manufacture, distribution or dispensing of controlled substances.'' 21 U.S.C. 823(f)(3). However, there are a number of reasons why even a person who has engaged in criminal misconduct may never have been convicted of an offense under this factor, let alone prosecuted for one. Dewey C. MacKay, 75 FR 49956, 49973 (2010), pet. for rev. denied, MacKay v. DEA, 664 F.3d at 822. The Agency has therefore held that ``the absence of such a conviction is of considerably less consequence in the public interest inquiry'' and is therefore not dispositive. Id. As for factor five, because the Government did not file exceptions to the ALJ's legal conclusions with respect to this factor, I deem it unnecessary to make any findings. --------------------------------------------------------------------------- [[Page 49725]] Factors Two and Four--Respondent's Experience in Dispensing Controlled Substances and Record of Compliance With Applicable Controlled Substance Laws Under a longstanding DEA regulation, a prescription for a controlled substance is not ``effective'' unless it is ``issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.'' 21 CFR 1306.04(a). See also Miss. Code Ann. Sec. 41-29-137 (``a `valid prescription' means a prescription that is issued for a legitimate medical purpose in the usual course of professional practice''). Under the CSA, it is fundamental that a practitioner must establish a bonafide doctor-patient relationship in order to act ``in the usual course of . . . professional practice'' and to issue a prescription for a ``legitimate medical purpose.'' See United States v. Moore, 423 U.S. 122, 142-43 (1975); United States v. Lovern, 590 F.3d 1095, 1100-01 (10th Cir. 2009); United States v. Smith, 573 F.3d 639, 657 (8th Cir. 2009); see also 21 CFR 1306.04(a) (``an order purporting to be a prescription issued not in the usual course of professional treatment . . . is not a prescription within the meaning and intent of [21 U.S.C. 829] and . . . the person issuing it, shall be subject to the penalties provided for violations of the provisions of law related to controlled substances''). As the Supreme Court has explained, ``the prescription requirement . . . ensures patients use controlled substances under the supervision of a doctor so as to prevent addiction and recreational abuse. As a corollary, [it] also bars doctors from peddling to patients who crave the drugs for those prohibited uses.'' Gonzales v. Oregon, 546 U.S. 243, 274 (2006) (citing Moore, 423 U.S. 122, 135, 143 (1975)). Both this Agency and the federal courts have held that ``establishing a violation of the prescription requirement `requires proof that the practitioner's conduct went ``beyond the bounds of any legitimate medical practice, including that which would constitute civil negligence.'' ' '' Laurence T. McKinney, 73 FR 43260, 43266 (2008) (quoting United States v. McIver, 470 F.3d 550, 559 (4th Cir. 2006)). See also United States v. Feingold, 454 F.3d 1001, 1010 (9th Cir. 2006) (``[T]he Moore Court based its decision not merely on the fact that the doctor had committed malpractice, or even intentional malpractice, but rather on the fact that his actions completely betrayed any semblance of legitimate medical treatment.''); Jack A. Danton, 76 FR 60900, 60904 (2011) (finding violations of 21 CFR 1306.04(a), in the absence of expert testimony, ``where a physician has utterly failed to comply with multiple requirements of state law for evaluating her patients and determining whether controlled substances are medically indicated and thus has `completely betrayed any semblance of legitimate medical treatment' '') (quoting McKinney, 73 FR at 43266 (quoting Feingold, 454 F.3d at 1010)).\43\ --------------------------------------------------------------------------- \43\ However, as the Agency has held in multiple cases, ``the Agency's authority to deny an application [and] to revoke an existing registration . . . is not limited to those instances in which a practitioner intentionally diverts a controlled substance.'' Bienvenido Tan, 76 FR 17673, 17689 (2011) (citing Paul J. Caragine, Jr., 63 FR 51592, 51601 (1998)); see also Dewey C. MacKay, 75 FR at 49974. As Caragine explained: ``[j]ust because misconduct is unintentional, innocent, or devoid of improper motive, [it] does not preclude revocation or denial. Careless or negligent handling of controlled substances creates the opportunity for diversion and [can] justify'' the revocation of an existing registration or the denial of an application for a registration. 63 FR at 51601. ``Accordingly, under the public interest standard, DEA has authority to consider those prescribing practices of a physician, which, while not rising to the level of intentional or knowing misconduct, nonetheless create a substantial risk of diversion.'' MacKay, 75 FR at 49974; see also Patrick K. Chau, 77 FR 36003, 36007 (2012). --------------------------------------------------------------------------- Under the Mississippi Board's Rule 1.4: Patient Record. A physician who prescribes, dispenses, or administers a controlled substance shall maintain a complete record of his or her examination, evaluation and treatment of the patient which must include documentation of the diagnosis and reasons for prescribing, dispensing or administering of any controlled substance; the name, dose, strength, quantity of the controlled substance and the date that the controlled substance was prescribed, dispensed or administered. The record required by this rule shall be maintained in the patient's medical records, provided that such medical records are maintained at the office of the physician . . . . No physician shall prescribe, administer or dispense any controlled substance or other drug having addiction-forming or addiction-sustaining liability without a good faith prior examination and medical indication therefore. Miss. Admin. Code part 2640, Ch.1 r. 1.4. Continuing, Rule 1.4 explains that: A determination as to whether a ``good faith prior examination and medical indication therefore'' exists depends upon the facts and circumstances in each case. One of the primary roles of a physician is to elicit detailed information about the signs and symptoms which a patient presents in order that he or she may recommend a course of treatment to relieve the symptoms and cure the patient of his or her ailment or maintain him or her in an apparent state of good health. In order for a physician to achieve a proper diagnosis and treatment plan, a history and physical examination consistent with the nature and complaint are necessary. . . . The paramount importance of a complete medical history in establishing a correct diagnosis is well established. Standards of proper medical practice require that, upon any encounter with a patient, in order to establish proper diagnosis and regimen of treatment, a physician must take three steps: (a) take and record an appropriate medical history, (b) carry out an appropriate physical examination, and (c) record the results. The observance of these principles as a function of the ``course of legitimate professional practice'' is particularly of importance in cases in which controlled substances are to play a part in the course of treatment. It is the responsibility of the physician to dispense, prescribe or administer such drugs with proper regard for the actual and potential dangers. Id. Rule 1.4 further notes that ``[a] determination of proper `medical indication'[ ] also requires a careful examination of the nature of the drug and all circumstances surrounding dispensation.'' Id. The Rule also specifically notes that ``repeated refills over relatively short periods of time or the issuance of prescriptions at a time when the patient should not have finished taking the same medication from a prior prescription had the prescription directions been properly followed or the correct dosage taken'' is a factor indicating a lack of good faith on the part of a physician. Id. Also, the Board's Rule 1.16 specifically provides that ``[t]he prescribing, administering or dispensing of any controlled substance in violation of the above rules shall constitute the administering, dispensing or prescribing of any narcotic drug or other drug having addiction-forming or addiction- sustaining liability otherwise than in the course of legitimate professional practice, in violation of Mississippi Code [ ] Section 73- 25-29(3). '' Miss. Admin. Code part 2640, Ch. 1, r. 1.16). Here, the ALJ found that that Respondent acted outside of the usual course of professional practice and lacked a legitimate medical purpose when he issued numerous prescriptions for controlled substances included alprazolam, diazepam, hydrocodone, zolpidem, and Adderall (amphetamine). R.D. 39-44. I agree with the ALJ that Respondent violated 21 CFR 1306.04(a) in issuing the prescriptions. I further find that in issuing each of the prescriptions enumerated above (Nos. 1 through 53), Respondent acted outside of the usual course of professional practice and lacked a legitimate medical purpose in doing so. Dr. Chambers provided unrefuted testimony that it is not within the usual [[Page 49726]] course of professional practice to prescribe a controlled substance to a patient with mental illness when the patient is being treated by a primary prescriber and the second physician does not communicate to the primary physician that he has issued the prescription. Tr. 275. Dr. Chambers testified as to the serious risks created by such prescribing, including oversedation, memory disturbance, overdose and potentially death, especially if the patient is also taking opioids. Id. at 250; see also id. at 268-69. Dr. Chambers also explained that when a patient is obtaining drugs from other sources and the primary prescriber is unaware, this ``can create a great deal of confusion on the part of the primary prescriber about the effects or side effects of the drug and the mental status of the patient.'' Id. at 251; see also id. at 291 (``If you have two chefs in the kitchen, this is the kind of stuff that can happen as you get chaos and harm and polypharmacy and no one understanding what is the illness versus what is [sic] the side effects of the medications, and it can lead to escalation of mental illness, addiction, and even death.''). Dr. Chambers also offered unrefuted testimony that Respondent's prescribing resulted in ``a combination of multiple overlaps of multiple classes of addictive substances that can produce overdose and severe psychiatric disturbances.'' Id. at 273. And while Respondent is not a psychiatrist, Dr. Chambers offered unrefuted testimony that within the practice of psychiatry, there is a prohibition against treating a spouse. Id. at 293. Dr. Chambers further offered unrefuted testimony that Respondent's prescribing was not for legitimate medical practice and was non-therapeutic. I thus find that Respondent violated 21 CFR 1306.04(a) with respect to each of the prescriptions set forth above. Respondent's failure to maintain adequate records to support the prescriptions provides additional support for this conclusion, as well as the conclusion that Respondent violated Mississippi Board Rule 1.4's provisions with respect to patient records.\44\ As found above, there was no documentation at all to support 36 of the prescriptions. Moreover, even with respect to the entries Respondent did make, Dr. Chambers found that ``there is a paucity of data to support the diagnosis or the prescriptions . . . that the note is built around. There's a lack of physical or mental status exam that normally would be in a note like this to justify and direct the use of controlled substances.'' Tr. 277. Dr. Chambers also observed that ``there are instances where the dosing or type of the drug is left out of the record.'' Id. at 278. See also GE 6, at 6 (entry for 2/5/13); id. at 7 (entry for 3/28/13); id. at 8 (5/13/13 no dosing for Ambien); id. at 9 (entries for 7/1/13 no dosing for Lorcet and 7/7/13 no dosing for Lorcet and Xanax); id. at 10 (no drug strength for Xanax prescriptions of 8/24/13 and 9/5/13). --------------------------------------------------------------------------- \44\ See supra findings for RXs No. 1-21, 25, 26, 28-31, 33, 35- 37, 39, 43, 45, 49, and 51. --------------------------------------------------------------------------- Before the State Board, Respondent testified that his prescribing ``was sporadic'' and ``was always for a confined number of pills, a small amount, that bridged her gap between obviously when she was in crisis and didn't have any medicine.'' GE 14, at 58. He maintained that ``the majority of the medicine were Xanax, two milligrams, [and that a] three day supply were [sic] common.'' Id. at 59-60. Also before the State Board, he maintained that ``I think the record reflects that I filled in in times where I just didn't think I had no other choice.'' Id. He further asserted that his writing of the prescriptions ``was always done in a short stop gap times [sic] when I believed again . . . that there were no other options.'' Id. at 69. Although the Government introduced into evidence the transcript of the January 2014 state board proceeding, it did not submit the Board's order prohibiting him from practice and/or the charging document, any of the exhibits submitted in the Board proceeding which may have shown what prescriptions were at issue in the proceeding, or even the Board's order suspending his license after the January 2014 proceeding. However, while it may have been the case that Respondent's explanation as to his reasons for prescribing during the 2014 board proceeding was consistent with the evidence presented at that proceeding, it is not consistent with much of the evidence submitted in this proceeding. As found above, the record contains numerous prescriptions which are not fairly characterized as two to three-day gap fills. With respect to Respondent's prescribing of zolpidem, they include fourteen prescriptions which clearly were not short-term gap fills. These prescriptions include numbers 2, 4, 6, 8, 22, 26, 28 (each for 30 du \45\), 23 (28 du), 29 (24 du), 15, 45 (each for 20 du), and 10, 12, 13 (each for 12 du). --------------------------------------------------------------------------- \45\ While some of Respondent's prescriptions for 30 du of zolpidem had a dosing instruction of two tablets, the dosing instructions generally provided for one tablet. --------------------------------------------------------------------------- With respect to Respondent's prescribing of alprazolam, they include prescription numbers 11 (20 du, a 10 to 20-day supply), 34 (30 du, a 10-day supply \46\), 53 (24 du, an eight-day supply), 31, 32 (each for 20 du, each for a 10-day supply), 38, 52 (15 du, a five-day supply) 42, 43 (14 du, a 4-5 day supply), and 44, 47 (12 du, one a four-day supply, the other a six-day supply). Respondent also issued a prescription for 18 tablets of clonazepam (a six-day supply), 15 capsules of Dextroamphetamine-Amphetamine 5 mg (a five-day supply), and 20 tablets of diazepam (a six-day supply). With respect to the diazepam prescription, Dr. Webb did not even prescribe this drug to Respondent's wife. Of note, before the State Board, Respondent testified that he did not change his wife's treatment regimen and only ``mirrored what [Dr. Webb] had done.'' GE 14, at 65. --------------------------------------------------------------------------- \46\ This is based on Respondent's note for the prescription. --------------------------------------------------------------------------- Likewise before the State Board, Respondent initially offered testimony regarding his prescribing of hydrocodone which addressed only the prescriptions he wrote after a plastic surgeon had drained an abscess in his wife's thigh and when his wife had a seizure and fell. Moreover, when on cross-examination a Board member identified the multiple hydrocodone prescriptions Respondent issued in July 2013, Respondent testified that ``that was an isolated incident there.'' Id. at 66. The evidence in this proceeding shows, however, that during 2011, Respondent issued seven hydrocodone prescriptions (Nos. 3, 5, 7, 9, 14, 16, 19) for his wife prior to any other doctor prescribing the drug to her. See GE 11, at 11 (hydrocodone Rx written on Nov. 30, 2011 by Dr. Bell, who Respondent identified as his wife's neurologist). Respondent has offered no explanation in either proceeding as to why he issued these seven prescriptions, as well as the hydrocodone prescriptions he issued on December 5, 2011 (No. 21), Aug. 13, 2012 (No. 33) and Jan. 23, 2013 (No. 39).\47\ --------------------------------------------------------------------------- \47\ While Dr. Bell (his wife's neurologist) issued hydrocodone prescriptions to Respondent's wife on November 30, 2011 and June 19, 2013, Respondent's testimony before the Board addressed only his July 2013 prescriptions. GE 14, at 86. --------------------------------------------------------------------------- Also, in a number of instances, Respondent issued prescriptions even though his wife had refills available under prescriptions that were previously issued by Dr. Webb. For example, on March 30, 2011, Respondent issued a prescription for 30 zolpidem. (Rx No. 4). However, Dr. Webb's February 3, 2011 zolpidem [[Page 49727]] provided for multiple refills, which Respondent's wife filled on April 9, 2011, May 23, 2011, and July 7, 2011. Moreover, Respondent issued new prescriptions for 30 zolpidem to his wife on May 6, 2011 and June 28, 2011 (Rx No. 6 & 8). Respondent's prescriptions of March 30, May 6, and June 28 were clearly not ``gap fills.'' Moreover, when Respondent issued the July 31, 2011 prescription for 12 zolpidem, he also authorized a refill, which was available to his wife on August 28, 2011 (which she did not fill until September 6, 2011), when Respondent issued her a new prescription for 12 zolpidem. See Rx No. 10 & 12. (Dr. Webb had also issued a 60 du zolpidem prescription on August 16, 2011 which provided multiple refills.). Even ignoring the prescription she obtained from Dr. Webb, Respondent's August 28, 2011 prescription was not a gap fill given that she had a refill available on Respondent's July 31, 2011 prescription. So too, Respondent's October 11, 2011 prescription for 20 zolpidem, a 20-day supply, (Rx No. 16) was issued notwithstanding that Dr. Webb's August 16, 2011 zolpidem prescription provided for five refills, one of which his wife filled on October 19, 2011. See GE 11, at 10-12. Even if Respondent's wife had run out of medication early because she failed to follow Dr. Webb's dosing instruction, she did not need this quantity of drugs to last her to the day on which she could refill Dr. Webb's prescription. Another such example involves Respondent's December 27, 2011 prescription for 30 zolpidem and his January 7, 2012 prescription for 28 zolpidem. (Nos. 22 & 23). Respondent's wife had obtained a refill of Dr. Webb's August 16, 2011 prescription for 60 du on December 16, 2011, only 11 days earlier (Dec. 16). Thus, there was no gap to fill. Nor was there a gap to fill on January 7, 2012, when he issued the prescription for an additional 28 dosage units given the quantity of drugs his wife had recently obtained. Still more examples are provided by the zolpidem prescriptions Respondent issued on March 4 and 12 (both for a 30-day supply), as well April 1, 2012 (for a 24-day supply). During this period, Respondent's wife obtained a prescription for 30 du (a 15-day supply) on February 23, 2012, which provided for two refills, the first of which she obtained on March 19, 2012. Here again, the only potential gap was likely created by the failure of Respondent's wife to follow Dr. Webb's dosing instructions on the February 23rd prescription. Moreover, the March 12, 2012 prescription was not a gap fill given that Respondent issued the March 4, 2012 prescription, which provided a 30-day supply. Nor was the April 1, 2012 prescription a gap fill given Respondent's issuance of the March 12 prescription and the refill she obtained on March 19, 2012 pursuant to Dr. Webb's Feb. 23 prescription. Similarly, the evidence shows that on January 11, 2013, Respondent issued a prescription for 10 du of alprazolam (see No. 36). While this prescription provided only a three-day supply, the evidence shows that Respondent's wife had refilled a prescription issued by Dr. Webb for 45 du of alprazolam the day before. GE 11, at 8. Thus, this was not a gap fill. Nor was Respondent's January 11, 2013 temazepam prescription (No. 37) a gap fill as the evidence shows that his wife had also refilled a prescription for a 30-day supply of this drug the day before. GE 11, at 8. As one further example, on May 20, 2013, Respondent issued a prescription for 20 tablets of zolpidem (No. 45). The evidence shows, however, that Dr. Webb had not issued a zolpidem prescription since February 23, 2012, which his wife last refilled in April 2012. Here again, this was not a gap fill. Had Respondent's prescribing been limited to a few instances of small (two to three day) gap fills, his conduct would be considerably less egregious given the circumstances of his wife's illness. The evidence shows, however, that his illicit prescribing went on for nearly three years. Even more disturbing is that the evidence shows that many of the prescriptions were not for gap fills at all, let alone for gap fills for two to three day periods as he testified before the State Board. Notably, in this proceeding, Respondent has personally offered no explanation as to why he issued the prescriptions. Moreover, the only evidence he offered was the discredited testimony of his wife that there occasionally were times when she ``might run out a day early on a weekend'' and only needed a short term supply until Dr. Webb got back to her and that Respondent had never given her a prescription for a time period longer than two to four days. Tr. 379, 381, 384. I thus conclude that the Government's evidence with respect to Factors Two and Four makes out a prima facie case to deny Respondent's application as ``inconsistent with the public interest.'' 21 U.S.C. 823(f). I further find that Respondent's misconduct was egregious. Sanction Where, as here, the Government has met its prima facie burden of showing that issuing a new registration to the applicant would be inconsistent with the public interest, a respondent must come forward with ``sufficient mitigating evidence'' to show why he can be entrusted with a new registration. Medicine Shoppe-Jonesborough, 73 FR 364, 387 (2008) (quoting Samuel S. Jackson, 72 FR 23848, 23853 (2007) (quoting Leo R. Miller, 53 FR 21931, 21932 (1988))). ``Moreover, because `past performance is the best predictor of future performance,' ALRA Labs, Inc. v. DEA, 54 F.3d 450, 452 (7th Cir.1995), [DEA] has repeatedly held that where a registrant has committed acts inconsistent with the public interest, the registrant must accept responsibility for [his] actions and demonstrate that [he] will not engage in future misconduct.'' Medicine Shoppe, 73 FR at 387; see also Jackson, 72 FR at 23853; John H. Kennedy, 71 FR 35705, 35709 (2006); Prince George Daniels, 60 FR 62884, 62887 (1995). See also MacKay v. DEA, 664 F.3d at 820; Hoxie v. DEA, 419 F.3d at 483 (``admitting fault'' is ``properly consider[ed]'' by DEA to be an ``important factor [ ]'' in the public interest determination). Moreover, the egregiousness and extent of a registrant's misconduct are significant factors in determining the appropriate sanction. See Jacobo Dreszer, 76 FR 19386, 19387-88 (2011) (explaining that a respondent can ``argue that even though the Government has made out a prima facie case, his conduct was not so egregious as to warrant revocation''); Paul H. Volkman, 73 FR 30630, 30644 (2008); see also Paul Weir Battershell, 76 FR 44359, 44369 (2011) (imposing six-month suspension, noting that the evidence was not limited to security and recordkeeping violations found at first inspection and ``manifested a disturbing pattern of indifference on the part of [r]espondent to his obligations as a registrant''); Gregory D. Owens, 74 FR 36751, 36757 n.22 (2009). Finally, the Agency has also held that `` `[n]either Jackson, nor any other agency decision, holds . . . that the Agency cannot consider the deterrent value of a sanction in deciding whether a registration should be [suspended or] revoked' '' or an application should be denied. Wesley Pope, 82 FR 14944, 14985 (2017) (quoting Joseph Gaudio, 74 FR 10083, 10094 (2009) (quoting Southwood Pharmaceuticals, Inc., 72 FR 36487, 36504 (2007))). See also Robert Raymond Reppy, 76 FR 61154, 61158 [[Page 49728]] (2011); Michael S. Moore, 76 FR 45867, 45868 (2011). This is so, both with respect to the respondent in a particular case and the community of registrants. See Pope, 82 FR at 14985 (quoting Gaudio, 74 FR at 10095 (quoting Southwood, 71 FR at 36503)). Cf. McCarthy v. SEC, 406 F.3d 179, 188-89 (2d Cir. 2005) (upholding SEC's express adoptions of ``deterrence, both specific and general, as a component in analyzing the remedial efficacy of sanctions''). The ALJ acknowledged that ``to rebut the Government's prima facie case, the Respondent must both accept responsibility for his actions and demonstrate that he will not engage in future misconduct.'' R.D. at 52 (citing Patrick W. Stodola, 74 FR 20727, 20734-35 (2009)). The ALJ then explained that ``[t]he Respondent may accept responsibility by providing evidence of his remorse, his efforts at rehabilitation, and his recognition of the severity of his misconduct.'' \48\ Id. (citing Robert A. Leslie, 68 FR 15227, 15228 (2003)). He also explained that ``[t]o accept responsibility, a respondent must show `true remorse' for wrongful conduct,'' which includes an ``acknowledgment of wrongdoing.'' Id. (citing Michael S. Moore, 76 FR 45867, 45877 (2011) and Wesley G. Harline, 65 FR 5665, 5671 (2000)). --------------------------------------------------------------------------- \48\ To the extent the ALJ's statement suggests that a respondent can satisfy his burden of production on the issue of acceptance of responsibility by only producing evidence of efforts at rehabilitation, this is not the Agency's rule. Indeed, Leslie makes it clear that it was describing the total showing that is required to refute the Government's prima facie case. See Leslie, 68 FR at 15228 (discussing previous agency decision involving respondent and stating that ``[t]he agency also found that although he was free to offer evidence that he would never again engage in the sort of conduct that resulted in his conviction, [r]espondent did not avail himself of that opportunity and offered no evidence of remorse for his misconduct, efforts at rehabilitation, or recognition of the severity of his conduct''). The Agency has explained that where the Government has proved that a respondent has committed knowing or intentional misconduct, a respondent must fully acknowledge the misconduct that has been proved on the record to be deemed to have accepted responsibility, and absent such a showing, his evidence of remedial measures is irrelevant. See Hatem M. Ataya, 81 FR 8221, 8242-43 (2016) (``the Agency has held that proof of remedial measures is rendered irrelevant where a respondent fails to accept responsibility for his knowing or intentional misconduct''). --------------------------------------------------------------------------- However, there are also numerous cases, that were not discussed in the Recommended Decision, which hold that where the Government has proved that a respondent committed knowing or intentional misconduct, he must unequivocally acknowledge his misconduct. See Daniel A. Glick, 80 FR 74800, 74800-01 (2015) (rejecting exception to ``CALJ's conclusion that [r]espondent has not unequivocally acknowledged his misconduct'' and holding that ``[a] registrant's acceptance of responsibility must be unequivocal''); Annicol Marrocco, 80 FR 28695, 28706 (2015) (denying application, holding that respondent's ``equivocal testimony provided substantial evidence to support a finding that she does not accept responsibility for her misconduct''); Arthur H. Bell, 80 FR 50035, 50041 (2015) (denying application finding that physician's ``acceptance of responsibility is equivocal at best'' and ``his failure to accept responsibility for [intentional] misconduct is reason alone to conclude that he cannot be entrusted with a new registration''); Michael A. White, 79 FR 62957, 62598, 62967-68 (2014) (revoking registration adopting ALJ's finding that physician did not accept responsibility when his ``acceptance of responsibility was tenuous at best,'' ``not once during the hearing did [he] unequivocally admit fault for his improper . . . prescriptions,'' and he ``minimized the severity of his misconduct''); The Medicine Shoppe, 79 FR 59504, 59510 (2014) (revoking registration where respondent ``offered generalized acceptance of responsibility'' but then denied filling any unlawful prescriptions); Ronald Lynch, 75 FR 78745, 78754 (2010) (revoking registration agreeing with ALJ's finding that respondent did not accept responsibility noting that he ``repeatedly attempted to minimize his [egregious] misconduct).\49\ --------------------------------------------------------------------------- \49\ More recently, in Roberto Zayas, 82 FR 21410, 21429 (2017), I rejected the reasoning of Jeffrey Martin Ford, 68 FR 10750 (2003), which granted a new registration to a respondent who had a history of substance abuse and had been convicted of several drug felonies. In Zayas, I noted that the Ford ``decision apparently excused the respondent's failure to unequivocally accept responsibility based on his having attended drug rehabilitation and remained sober for more than 10 years, as well [as] having satisfied the conditions for reinstatement of his state license.'' 82 FR 21429. I also noted that ``the decision [did] not even address whether [the respondent] accepted responsibility for his criminal conduct.'' Id. I further explained that I found ``the reasoning of this case unpersuasive, [and] were a case with similarly egregious misconduct presented to me, I would not grant a registration absent a clear and unequivocal acceptance of responsibility for all of the misconduct that was proven on the record.'' Id. See also Jones Total Health Care, 81 FR 79188, 79200-01 (2016) (``[W]here the Government has proved that a registrant has engaged in intentional or knowing misconduct, revocation is warranted in the absence of the registrant's unequivocal acceptance of responsibility for its misconduct.''); Joe W. Morgan, 78 FR 61961, 61963 (2013) (``Given [r]espondent's multiple statements in which he blamed others for his troubles, that he never once acknowledged that he prescribed in violation of the CSA and Florida law, and that he attempted unpersuasively to minimize his culpability, the overwhelming weight of the evidence fully supports the ALJ's conclusion that [r]espondent is sorry only because he was caught.''). --------------------------------------------------------------------------- I disagree with the ALJ's conclusion that Respondent is entitled to a finding that he has accepted responsibility for his misconduct. To the contrary, I find that his testimony was equivocal and that he repeatedly attempted to minimize his misconduct. Indeed, even after the ALJ granted Respondent a second chance to explain what he was accepting responsibility for, he still did not unequivocally acknowledge his misconduct. In this matter, Respondent was specifically charged with violating 21 CFR 1306.04(a), the CSA's prescription regulation which requires that a controlled substance prescription ``be issued for a legitimate medical purpose by [a] practitioner acting in the usual course of professional practice.'' ALJ Ex. 1, at 1-3 (]] 3-9). Indeed, the Government specifically alleged that the prescriptions ``were nontherapeutic, were for other than a legitimate medical purpose, and were outside the course of professional practice.'' Id. The Government also alleged that the prescriptions violated the counterpart provision of State law. See id. (citing Board Rule 1.16 and Miss. Code Sec. 73- 25-29-(3)). The Government further alleged that Respondent violated provisions of State regulations prohibiting the prescribing of controlled substances ``without conducting any examination of [his] wife (or documenting such in her file) or noting the . . . prescriptions in her patient chart,'' as well as ``without conducting sufficient examinations of [his] wife (or documenting such in her file).'' Id. at 3 (citing, inter alia, Board Rules 1.4 and 1.16, Miss. Code Ann. Sec. 73-25-29(3)). Notwithstanding that the Show Cause Order clearly set forth these violations, and that Dr. Chambers offered unrefuted testimony that Respondent's prescribing was outside of the ``usual course of clinical conduct,'' ``was dangerous and harmful,'' ``non-therapeutic,'' not for a ``legitimate medical practice,'' that there was ``a paucity of data to support the diagnosis or the prescriptions'' and there was ``a lack of physical or mental status exam'' documented in the noted to justify the prescriptions, Respondent repeatedly refused to acknowledge that he violated 21 CFR 1306.04(a). While Respondent testified that he violated his contract with the State PHP (which was not a charge in this proceeding), when asked by his counsel if he violated his obligations as a DEA registrant, he asserted that he did not ``know the specific legalities of DEA registration'' but was willing ``to tell you what I did was wrong, . . . without any equivocation.'' Tr. 484-85. While he [[Page 49729]] also acknowledged that ``becoming involved in a loved one's care is foolish,'' he then stated that he did not ``know the letter or spirit of any law that I transgressed.'' Id. at 489. And when asked why the Agency should entrust him with a new registration, he testified that ``[i]f I can't practice medicine, conforming to every jot, tittle, to the letter of the law, I can't practice medicine,'' but he offered no explanation as to how he would conform ``to the letter of the law'' given his acknowledgment that he does not ``know the letter of or spirit of any law that [he] transgressed.'' Id. at 489-90. Indeed, throughout his testimony, Respondent asserted that he thought the charges in this proceeding simply involved the same charges that he was found guilty of in the State Board proceeding. He doggedly denied that he violated the CSA's prescription requirement, asserting that that it ``would be speculative . . . on some level'' for him to testify as ``to what statutes I may or may not have transgressed.'' Id. at 498. And when asked if he accepted that the prescriptions he issued to his wife ``were outside the course of professional practice,'' he asserted that he did not know how DEA defined the term ``outside the course of professional practice'' and maintained that I ``do not know again . . . the specifics of . . . of what I'm being charged with by DEA now.'' \50\ Id. at 501. --------------------------------------------------------------------------- \50\ Yet in his Pre-hearing Statement, Respondent stated that he ``will acknowledge the allegations raised by DEA in the Order to Show Cause.'' ALJ Ex. 5, at 3. --------------------------------------------------------------------------- Given that the Show Cause Order provided fair notice to Respondent that he was charged with violating 21 CFR 1306.04(a) and that he heard the evidence against him and put up no defense, he was not required to speculate as to ``what statutes [he] may or may not have transgressed.'' Moreover, the CSA's requirement that ``a prescription for a controlled substance . . . must be issued for a legitimate medical purposes by [a] practitioner acting in the usual course of professional practice'' is hardly a ``jot'' or a ``tittle'' of the Act.\51\ To the contrary, the rule is one of the Act's fundamental features, as one of its purposes is to ``ensure [] patients use controlled substances under the supervision of a doctor so as to prevent addiction and recreational abuse.'' Gonzales, 546 U.S. at 274. --------------------------------------------------------------------------- \51\ See Webster's Third New International Dictionary, at 1221 (1976) (defining ``jot'' as ``the least bit: IOTA''); see also id. at 2401(defining ``tittle,'' in part, as ``a very small part''). --------------------------------------------------------------------------- Notably, even after the ALJ repeatedly expressed his puzzlement as to what Respondent was accepting responsibility for, Respondent testified that he was accepting responsibility for what the State said he did and again asserted that he thought the charges in the DEA proceeding were the same as the charges which he was found guilty of by the State Board. Tr. 503-05. While the ALJ subsequently gave Respondent several chances to answer this question, his testimony continued to manifest equivocation, minimization and an unwillingness to acknowledge that he violated the CSA's prescription requirement. For example, when asked to ``clarify . . . what specific actions [he was] accepting responsibility for,'' Respondent answered: ``[v]iolating the previous order, right? Writing prescriptions for my wife when I wasn't a treating physician, which I think is not proper document, not fully proper documentation of those things.'' Tr. 507. He subsequently testified that ``if someone shows me . . . what I was saying that I'm ignorant of the specifics of a DEA charge. But if I meet the criteria and I accept I did it, then I did it.'' Id. at 508 (emphasis added). See also id. at 514 (``If someone shows me I've done something wrong, I will admit it.'') However, as found above, the unrefuted evidence, including the testimony of Dr. Chambers, establishes that Respondent's prescribing did ``meet the criteria'' for a violation of 21 CFR 1306.04(a). Yet even when confronted with this evidence, Respondent still was unwilling to accept that he ``did it.'' Id. On further cross-examination, Respondent was again asked what he thought was ``wrong with respect to the prescriptions.'' Id. at 510. While he answered that ``I shouldn't have written'' and ``I violated the contract,'' he then stated: ``[p]rompt me. I'm not trying to minimizing anything.'' Id. Minimizing is, however, exactly what Respondent was engaged in. And when the Government again asked Respondent if he was admitting that the prescriptions were issued outside the usual course of professional practice, Respondent maintained that ``as a physician, I don't understand that term'' and he was only willing to admit to acting outside of the usual course to the extent that his documentation was ``substandard.'' Id. at 511. He then denied that his prescribing had increased the chances of his wife's becoming dependent, overdosing or diverting controlled substances. While it is true that on a still further round of re-direct examination, Respondent testified that it was wrong for him to ``prescribe controlled substances to someone who was under the care of another physician for those same ailments,'' this is not a full acknowledgment of his illegal behavior. Indeed, the mere fact that a physician prescribes controlled substances to someone who is under care of another physician for the same ailments would not necessarily give rise to liability under 1306.04(a). Such prescribing would be entirely lawful under the CSA in bona fide emergency situations provided the prescriptions were limited to what was medically necessary to treat a patient before the primary physician could resume care. Here, however, Respondent has admitted to acting outside of the usual course of professional practice only to the extent he maintained ``substandard records.'' Notwithstanding Dr. Chambers' testimony, Respondent has failed to acknowledge that his prescribing increased the risks of his wife become dependent, overdosing, or diverting controlled substances, his failure to conduct appropriate examinations, as well as his failure to notify Dr. Webb that he had prescribed the drugs. Moreover, before the State Board, Respondent maintained that his prescribing ``was sporadic,'' ``was always for a confined number of pills,'' that they were simply short gap fills which ``mirrored what [Dr. Webb] had done.'' However, as found above, many of the prescriptions provided substantially more medication than was necessary for a two to three-day period. These include 14 zolpidem prescriptions, each of which provided at least a 12-day supply (with 11 of the prescriptions providing 20 to 30 dosage units, most of which for a 20 to 30-day supply) and five of the alprazolam prescriptions, four of which were for a ten-day supply, the other being for an eight-day supply. There were also the seven hydrocodone prescriptions and a diazepam prescription, which although they were for small amounts, did not ``mirror what [Dr. Webb or any other doctor] had done,'' and are unsupported by the findings of an examination and a diagnosis. Respondent personally offered no explanation in this proceeding (or before the State Board) as to why he issued these prescriptions, which clearly provided more drugs than were medically necessary to address a two- to three-day period.\52\ Indeed, while [[Page 49730]] Respondent maintained that he could ``absolutely'' be trusted to not engage in such prescribing in the future, that he was ``not trying to avoid anything'' and that ``I have done everything that I know to do to try to remedy this situation,'' he has not been forthcoming in this matter. Thus, I disagree with the ALJ that Respondent has ``express[ed] remorse to the full extent of [his] wrongful conduct.'' R.D. at 56. --------------------------------------------------------------------------- \52\ In his Pre-hearing Statement, Respondent also stated ``he will discuss the circumstances in which he prescribed controlled substances to his wife.'' ALJ Ex. 5, at 3. Respondent, however, offered no such testimony. --------------------------------------------------------------------------- The ALJ also gave weight to Respondent's testimony during the second State Board hearing that he was ``committed to `absolute and complete adherence' to applicable rules and regulations,'' id. at 55 (citing GE 13, at 9-10), and further asserted ``that his commitment to adhere to all regulations governing controlled substances is genuine.'' Id. at 56-57. The ALJ did not explain how Respondent would accomplish this given his repeated assertions in this proceeding that he did not ``know the specific legalities of DEA registration,'' did not ``know the letter or spirit of any law that [he] transgressed,'' that he does not ``know precisely how the DEA defines'' the term ``outside the course of professional practice,'' and ``as a physician, [he does not] understand [the] term.'' Tr. 511. The ALJ also rejected as only ``technically correct'' the Government's argument that Respondent did not accept responsibility for failing to conduct examinations and/or conducting insufficient examinations prior to issuing the prescriptions. R.D. 54-55. While the ALJ found that Respondent did not ``specifically acknowledge that it was wrong of him to issue a prescription without first conducting an examination,'' the ALJ faulted the Government for not asking this question of Respondent. Id. at 55. The ALJ further reasoned that the Government ``overlook[ed] the central concern of this case, which is that the Respondent wrote prescriptions for his wife when he should not have.'' Id. In the ALJ's ``view, the Respondent's acceptance of responsibility for failing to examine his wife before writing her a prescription is subsumed in his general acceptance of responsibility.'' Id. (citing Tr. 515). I cannot agree with this reasoning. As for the ALJ's faulting of the Government for not asking Respondent if he accepted responsibility for his failure to conduct examinations or conducting inadequate examinations, Respondent, and not the Government, had the burden of production on this issue. As for the ALJ's assertion that ``the central concern of this case . . . is that the Respondent wrote prescriptions for his wife when he should not have,'' the central concern of this case is what the Government alleged in the Show Cause Order and proved at the hearing.\53\ The proof fully supported the allegations, which included that he issued controlled substance prescriptions that ``were nontherapeutic, were for other than a legitimate medical purpose, and were outside the usual course of professional practice,'' that he issued the prescriptions when his wife was ``being issued prescriptions for the same or similar class of drugs by her . . . psychiatrist, which [he] did without her psychiatrist's knowledge or permission,'' and that his ``actions dramatically increased the chances of [his] wife's dependency, overdose or diversion.'' ALJ Ex. 1, at 1-3 (]] 3-7). Moreover, the Government's allegations that Respondent violated state and federal law by issuing controlled substance prescriptions ``without conducting any examination,'' Id. at 3 (] 8), or ``without conducting sufficient examinations,'' id. (] 9), were not simply additional factual allegations to support the charges in paragraphs three to seven of the Show Cause Order but were stand-alone charges. --------------------------------------------------------------------------- \53\ Based on the Board's order and his recovery contract, Respondent ``should not have'' written the prescriptions. Yet, as the ALJ recognized when he expressed his puzzlement (multiple times) at to what Respondent was accepting responsibility for, the Government did not allege that Respondent violated his recovery contract or a Board Order; it alleged specific violations of federal and state laws and regulations. --------------------------------------------------------------------------- With respect to the proven misconduct, Respondent admitted that he acted outside of the usual course of professional practice only to the extent that he failed to maintain proper records. As for the ALJ's further assertion that his acceptance of responsibility for failing to conduct examinations was ``subsumed in his general acceptance of responsibility,'' the cited testimony does not support this, as the question, which was asked by his counsel, made no reference to his failing to conduct examinations. Tr. 515. The ALJ acknowledged that ``[i]t is true . . . that Respondent did not plainly and expressly accept responsibility for violating specific federal regulations.'' R.D. 56. Indeed, at no point did Respondent admit that he violated 21 CFR 1306.04(a) with respect to any of the prescriptions, including those which clearly were not two to three day ``gap fills.'' Nor did he ever admit that any of the prescriptions were non-therapeutic or lacked a legitimate medical purpose. And he denied that his prescribing increased the risks of his wife become dependent, overdosing, or diverting controlled substances. Respondent has therefore failed to ``express remorse to the full extent of [his] wrongful conduct.'' \54\ R.D. 56. --------------------------------------------------------------------------- \54\ Earlier in his Recommended Decision, the ALJ asserted that my decision in Arvinder Singh, 81 FR 8247 (2016), ``states only that a registrant may be required to acknowledge the scope of his misconduct,'' thus suggesting that a respondent's acknowledgment of the scope of his misconduct is optional and that he is not required to ``accept responsibility for the consequences of his acts.'' R.D. 54 (citing 81 FR at 8250-51). This is mistaken, as the case clearly stated that the respondent ``was required to acknowledge . . . the full scope of his criminal behavior and the risk of diversion it created.'' 81 FR at 8250. The risk of diversion was, of course, a consequence of the respondent's acts, which involved pre-signing prescriptions for controlled substances which were subsequently issued by nurses who were not lawfully authorized to prescribe controlled substances and the respondent did not see the patients. Id. at 8248-49. The ALJ also gave weight to Respondent's having ``expressed remorse and accepted responsibility for writing those prescriptions during the first three weeks of his treatment at Acumen'' as well as his testimony during the second Board hearing. R.D. 55. However, whether Respondent accepted responsibility for writing the prescriptions during his treatment at Acumen is wholly irrelevant. Likewise, because the Agency was not a party in the State Board's proceedings, the weight to be given to Respondent's testimony before the Board is substantially diminished. What matters is whether he accepted responsibility for the misconduct alleged and proved in this proceeding. --------------------------------------------------------------------------- The ALJ further explained that he found Respondent's remorse to be sincere and that his acceptance of responsibility was ``credible.'' R.D. 56-57. This case, however, is less about Respondent's credibility (although there is ample reason to question it given his testimony regarding what he thought he had been charged with in this proceeding) \55\ and more about the weight to be given to his testimony. Moreover, the ALJ failed to apply the Agency's extensive case law which requires that an acceptance of responsibility be unequivocal, as well as that which requires a full acknowledgment of the proven misconduct. --------------------------------------------------------------------------- \55\ While Respondent professed that he did not understand what he was charged with in this proceeding, the Show Cause Order was clear on its face. Respondent was also represented and if he truly did not understand the allegations, he should have asked his counsel. --------------------------------------------------------------------------- While I appreciate that the ALJ closely examined Respondent's testimony both at this hearing and before the state board (as have I), I find it particularly disturbing that Respondent has never offered an explanation in any proceeding \56\ for the [[Page 49731]] many prescriptions he issued which clearly were not for short-term gap fills, an issue which is not even discussed in the Recommended Decision. Thus, I conclude that Respondent does not recognize the full extent of his misconduct. See MacKay v. DEA, 664 F.3d 808, 820 (10th Cir. 2011); see also Samuel Jackson, 72 FR 23848, 23852 (2007) (noting a respondent's burden to produce sufficient evidence to assure the Administrator that he/she can be entrusted with the responsibility carried by such a registration''). --------------------------------------------------------------------------- \56\ While I have noted Respondent's testimony in the State Board proceeding as to why he issued the prescriptions, so that there is no lack of clarity for future matters, a respondent is required to present his evidence in the Agency's proceeding. --------------------------------------------------------------------------- I therefore find that Respondent has failed to produce sufficient evidence to support a finding that he accepts responsibility for his misconduct. While there are cases in which the Agency has imposed a sanction less than denial or revocation where a respondent has failed to meet his burden on acceptance of responsibility, those cases have involved considerably less egregious misconduct than the knowing and intentional diversion of controlled substances which occurred here. Because Respondent engaged in egregious misconduct which he has failed to fully acknowledge, his evidence of remedial measures cannot rebut the Government's prima facie showing that his registration ``would be inconsistent with the public interest.'' 21 U.S.C. 823(f). Accordingly, I will deny his application. Order Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28 CFR 0.100(b), I order that the application of Lon F. Alexander, M.D., for a DEA Certificate of Registration as a practitioner, be, and it hereby is, denied. This Order is effective immediately. Dated: October 17, 2017. Robert W. Patterson, Acting Administrator. [FR Doc. 2017-23339 Filed 10-25-17; 8:45 am] BILLING CODE 4410-09-P
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DEPARTMENT OF JUSTICE The Show Cause Order also alleged documenting such in her file).’’ Id.
that on various occasions from 2011 (citing same authorities as above).
Drug Enforcement Administration through 2013, Respondent violated Finally, the Show Cause Order alleged
federal and state law by issuing his wife that Respondent ‘‘engaged in conduct
[Docket No. 16–17] prescriptions for hydrocodone, then a which may threaten public health and
schedule III narcotic, as well as other safety . . . by attempting to mislead
Lon F. Alexander, M.D.; Decision and DEA investigators.’’ Id. (citing 21 U.S.C.
controlled substances, which were also
Order 823(f)(5)). Specifically, the Government
nontherapeutic, for other than a
On February 4, 2016, the Deputy legitimate medical purpose, and were alleged that, ‘‘on February 2, 2016,
Assistant Administrator, of the then outside the usual course of professional [Respondent] turned over to DEA in
Office of Diversion Control, issued an practice. Id. at 2–3. Specifically, the response to an administrative subpoena
Order to Show Cause to Lon F. Show Cause Order alleged that ‘‘[o]n at a record purporting to be the patient
Alexander, M.D. (hereinafter, least one occasion in 2011,’’ Respondent file’’ of his wife. Id. The Order alleged
Respondent), of Hattiesburg, issued prescriptions for hydrocodone that the file ‘‘contained false entries’’ in
Mississippi. ALJ Ex. 1, at 1. The Show and diazepam ‘‘to [his] wife that it contained ‘‘repeated reference to
Cause Order proposed the denial of concurrently with another prescription conversations with and attempts to
Respondent’s application for a DEA [for clonazepam] issued by her . . . contact [his wife’s] treating psychiatrist’’
Certificate of Registration as a psychiatrist,’’ and that he did so and that ‘‘DEA’s investigation . . .
practitioner, on the ground that his ‘‘without her psychiatrist’s knowledge indicate[s] that these statements and
‘‘registration is inconsistent with the or permission.’’ Id. at 2. The Order again others presented as part of the
public interest.’’ Id. (citing 21 U.S.C. alleged that Respondent’s ‘‘actions purported patient file are false.’’ Id.
dramatically increased the chances of Following service of the Show Cause
823(f)).
[his] wife’s dependency, overdose, or Order, Respondent, through his counsel,
As for the Agency’s jurisdiction, the
diversion of . . . controlled requested a hearing on the allegations.
Show Cause Order alleged that
substance[s], while also potentially ALJ Ex. 2. The matter was placed on the
Respondent had previously held a
complicating her psychiatric docket of the Office of Administrative
registration which he surrendered for
condition.’’ Id. (citing same authorities Law Judges and assigned to ALJ Charles
cause on January 16, 2014. Id. The
as above). Wm. Dorman. Following pre-hearing
Order further alleged that on January 9,
procedures, the ALJ conducted an
2015, Respondent applied for a new Next, the Show Cause Order alleged
evidentiary hearing in Jackson,
registration as a practitioner in additional instances of non-therapeutic
Mississippi on June 29–30, 2016, at
schedules II through V, at the proposed prescribing by Respondent to his wife in which both parties elicited testimony
registered address of 36 Bridgefield that, ‘‘[o]n at least four different from witnesses and submitted various
Turn, Hattiesburg, Mississippi. Id. occasions in 2013,’’ he ‘‘repeatedly documents for the record. Following the
As for the substantive grounds for the issued . . . prescriptions for hearing, both parties submitted briefs of
proceeding, the Show Cause Order hydrocodone . . . zolpidem tartrate . . . their proposed findings of fact,
raised multiple allegations to the effect and alprazolam . . . when she was conclusions of law, and argument.
that, on numerous occasions in 2011 concurrently being issued other On September 20, 2016, the ALJ
through 2013, Respondent violated controlled substances prescriptions for issued his Recommended Decision.
federal and state law by issuing the same or similar drugs, as well as Therein, with respect to Factors Two
controlled substance prescriptions to his amphetamines, by her . . . psychiatrist, (Respondent’s experience in dispensing
wife ‘‘that were nontherapeutic, were which [he] did without his knowledge controlled substances) and Four
for other than a legitimate medical or permission.’’ Id. at 2–3. As with the (compliance with applicable laws
purpose, and were issued outside of the previous allegations, the Order alleged related to controlled substances), the
usual course of [his] professional that Respondent’s ‘‘actions dramatically ALJ found that the Government had
practice.’’ Id. at 1–3. The Show Cause increased the chances of her proved that Respondent violated 21 CFR
Order alleged that Respondent dependency, overdose, or diversion of 1306.04, Mississippi Code Sec. 73–25–
‘‘repeatedly issued’’ prescriptions for those controlled substances, while also 29(3) and 73–25–29(13), as well as
schedule IV controlled substances potentially complicating her psychiatric Mississippi Administrative Rules 1.7,
which included zolpidem tartrate, condition.’’ Id. at 3 (citing same 1.10, and 1.16 when he issued
alprazolam, and diazepam, ‘‘when she authorities as above). numerous controlled substance
was concurrently being issued The Show Cause Order also alleged prescriptions to his wife.
prescriptions for the same or similar that ‘‘[o]n at least fifteen different Specifically, the ALJ found that
class of drugs by her own psychiatrist, occasions between 2011 and 2013, during 2011, Respondent issued nine
which [he] did without [the] [Respondent] violated state and federal zolpidem, two alprazolam, seven
psychiatrist’s knowledge or law by issuing’’ to his wife prescriptions hydrocodone, and one diazepam
permission.’’ Id. The Order further for hydrocodone, and/or zolpidem, and/ prescription(s) in violation of these
alleged that Respondent’s ‘‘actions or alprazolam, ‘‘without conducting any provisions. R.D. at 39–40. The ALJ also
dramatically increased the chances of examination of [his] wife (or found that during 2012, Respondent
[his] wife’s dependency, overdose, or documenting such in her file) or noting issued five alprazolam prescriptions,
diversion of those controlled the . . . prescriptions in her patient and that during 2013, he issued 11
substances, while also potentially chart.’’ Id. (citing same authorities as alprazolam prescriptions in violation of
ethrower on DSK3G9T082PROD with NOTICES
complicating her psychiatric above). The Show Cause Order then these provisions. Id. at 41–43. The ALJ
condition.’’ Id. (citing 21 CFR 1306.04; alleged that ‘‘[o]n at least nine occasions further found that in 2013, Respondent
Miss. Admin. Code Part 2640, Ch. 1, r. between 2011 and 2013, [Respondent] issued five hydrocodone prescriptions
1.7, 1.10, and 1.16; Miss. Code Ann. violated state and federal law by and one zolpidem prescription in
Sec. 73–25–29(3) & (13)).1 issuing’’ to his wife prescriptions for violation of these provisions. Id. at 44.
these drugs, ‘‘without conducting In addition to the above, the ALJ
1 See also ALJ Ex. 1, at ¶¶ 5–6. sufficient examinations of [her] (or found that between 2011 and 2013,
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![Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49705
Respondent prescribed hydrocodone 11 respondent must express remorse for all a prescription is subsumed in his
times, zolpidem 12 times, and acts of documented misconduct, and general acceptance of responsibility.’’
alprazolam five times without may be required to acknowledge the Id.
documenting the prescriptions or a prior scope of his misconduct.’’ R.D. 52 While the ALJ acknowledged that
examination in his wife’s patient file in (citations omitted); see also id. at 54. Respondent declined ‘‘to admit that he
violation of various provisions of The ALJ also explained that violated federal laws because he did not
Mississippi law and administrative ‘‘[a]cceptance of responsibility and want to speculate on what statutes he
rules. Id. at 46. He also found that on remedial measures are assessed in the might have violated’’ and ‘‘testif[ied]
nine occasions when Respondent did context of the egregiousness of the that he did not know whether the
document a prescription in his wife’s violations and the [DEA’s] interest in prescriptions were outside the scope of
file, he failed to include information deterring similar misconduct by [the] his professional practice as the DEA
required by state rules such as a medical Respondent in the future as well as on defines those terms,’’ the ALJ reasoned
history, examination results, or a the part of others.’’ Id. at 52 (internal that Respondent was not required to
diagnosis. Id. at 47–48 (citing Miss. quotations and citations omitted). ‘‘identify the specific federal code
Admin. Rule 1.4). The ALJ further The ALJ concluded that provisions he violated, or interpret
concluded that ‘‘nothing in . . . ‘‘Respondent’s misconduct was federal laws and apply them to his
Respondent’s file for his wife egregious’’ in that he ‘‘repeatedly and circumstances.’’ Id. at 56. The ALJ
necessarily indicates that [he] ever wrongfully prescribed addictive, further explained that he found
conducted any type of physical or dangerous, and potentially harmful Respondent’s remorse to be ‘‘sincere
mental status examination of his wife controlled substances to his wife for and that his commitment to adhere to
prior to prescribing controlled approximately three years,’’ which all regulations governing controlled
substances to her.’’ Id. at 48. He thus ‘‘interfered with his wife’s treatment substances is genuine.’’ Id. at 56–57.
found proved the ‘‘allegation that the and could have caused her to overdose, The ALJ further found that
Respondent failed to conduct lose consciousness, or die.’’ Id. at 53. Respondent had undertaken ‘‘reasonable
examinations and/or lacked adequate The ALJ nonetheless concluded that and appropriate’’ remedial measures. Id.
documentation of examinations of his Respondent had accepted responsibility at 59. As for the Agency’s interest in
wife’’ in violation of various provisions for his misconduct in prescribing specific deterrence, the ALJ suggested
of Mississippi law and administrative outside the usual course of practice that it ‘‘might be negligible,’’ reasoning
rules. Id. at 49. because, by ‘‘[s]imply acknowledging that Respondent ‘‘thoroughly
Turning to Factor Five (such other that he failed to properly document his understands that if he engages in any
conduct which may threaten public treatment of his wife, [he] admitted to further misconduct he will face
health or safety), the ALJ rejected the practicing outside the usual scope of immediate sanctions from the’’
allegation that Respondent attempted to professional practice.’’ Id. at 54. Physicians Health Program and the State
mislead DEA investigators by providing The ALJ also acknowledged Board ‘‘that will end his medical
to them the patient file containing false Respondent’s testimony ‘‘that he did not career.’’ Id. at 59. And while the ALJ
entries to the effect that he had made his think that his actions increased his noted that ‘‘Respondent’s conduct was
wife’s psychiatrist aware of the wife’s chances of dependency, overdose, egregious,’’ he reasoned that the
prescriptions. Id. at 49–52. The ALJ or diversion,’’ and that ‘‘[t]he circumstances were unique because
reasoned that it appeared that Government’s argument that that ‘‘every allegation of misconduct . . .
Respondent created the file ‘‘as he was Respondent did not accept involved . . . Respondent prescribing to
treating his wife,’’ that he ‘‘did nothing responsibility for putting his wife at risk only his wife.’’ Id. at 60. The ALJ then
more than turn over his file when is also understandable.’’ Id. The ALJ explained that Respondent’s testimony
ordered to do so by the . . . subpoena,’’ reasoned, however, that ‘‘a respondent in a State Board proceeding to the effect
and that there was ‘‘[n]o evidence . . . is not required to admit to every single that his prescribing ‘‘was not a matter of
that, after the DEA subpoenaed the file, component of an allegation in order to judgment but a matter of the heart[]
[he] created false entries or altered the accept responsibility.’’ Id. The ALJ then merits some consideration.’’ Id. The ALJ
file he already maintained.’’ Id. at 51. noted that in a proceeding before the thus recommended that Respondent’s
The ALJ nonetheless concluded that Mississippi Board, ‘‘Respondent application be granted subject to various
‘‘Factors Two and Four weigh acknowledged that his prescriptions conditions. Id. at 61–62.
substantially in favor of denying . . . were probably hurting his wife and The Government filed Exceptions to
Respondent’s application because he keeping her from getting appropriate the Recommended Decision. In its
prescribed controlled substances to his treatment.’’ Id. Exceptions, the Government contended
wife for illegitimate and nontherapeutic As for the Government’s contention that the ALJ committed error in
purposes, outside the scope of that Respondent did not specifically concluding that Respondent has
professional practice, and because he acknowledge his misconduct in ‘‘failing sufficiently accepted responsibility for
did not appropriately document to conduct examinations and/or conduct his misconduct. Exceptions, at 3–15.
examinations of, any prescriptions to, insufficient examinations prior to The Government also contended that
his wife.’’ Id. at 52. The ALJ thus found issuing’’ the prescriptions, the ALJ the ALJ committed error in concluding
‘‘that the Government has made a prima noted that this ‘‘is technically correct.’’ that Respondent is entitled to a new
facie case . . . that the Respondent’s Id. at 54–55. The ALJ, however, rejected registration notwithstanding the
registration would be inconsistent with the Government’s contention, reasoning egregiousness of his misconduct. Id. at
the public interest.’’ Id. that ‘‘the Government overlooks the 16–20. The Government thus argues that
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The ALJ acknowledged that ‘‘[t]o central concern of this case, which is I should deny Respondent’s application.
rebut the Government’s prima facie that the Respondent wrote prescriptions Id. at 20. Respondent did not file a
case, the Respondent must both accept for his wife when he should not have.’’ response to the Government’s
responsibility for his actions and Id. at 55. The ALJ then explained that Exceptions.
demonstrate that he will not engage in ‘‘[i]n his view, the Respondent’s Thereafter, the ALJ forwarded the
future misconduct.’’ Id. (citation acceptance of responsibility for failing record to me for final agency action.
omitted). The ALJ explained that a ‘‘[a] to examine his wife before writing her Having considered the record in its
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entirety including the Recommended In March 30, 2012, Respondent tested on behalf of Respondent. GE 14, at 23.
Decision, the parties post-hearing briefs positive for Tramadol. He then returned Eight days later, the Board issued
and the Government’s Exceptions, I to the Betty Ford Center for one month, Respondent an order of prohibition
adopt the ALJ’s findings of fact (while after which he was discharged with a which barred him from practicing
making several additional findings as to diagnosis of opioid dependence. GE 14, medicine until further notice. GE 13, at
prescriptions) and legal conclusions at 14–16. The MPHP did not, however, 5.
with respect to paragraphs two through withdraw its advocacy on his behalf, Thereafter, Respondent was charged
ten of the Show Cause Order. I and on June 11, 2012, Respondent with two counts of violating the State’s
conclude, however, that the entered into a new RCA which
Medical Practice Act, including
Government’s Exception to the ALJ’s contained the same terms as the
violating an existing Board Order,
legal conclusion that Respondent has previous RCA, including the prohibition
Stipulation or Agreement, see Miss.
sufficiently accepted responsibility for on prescribing to family members. Id. at
Code Ann. Sec. 73–25–29(13), and
his misconduct is well taken. 16–17.
On September 10, 2012, Respondent engaging in unprofessional conduct, by
Accordingly, I deny his application. I
met with the Mississippi Professionals engaging in dishonorable or unethical
make the following factual findings.
Health Committee due to its concerns conduct. GE 14, at 5; see also Miss. Code
Findings of Fact that he had ‘‘missed callings for random Ann. Sec. 73–25–29(8)(d)
drugs screens,’’ had failed to attend (unprofessional conduct includes
Respondent’s Registration and
Caduceus meetings, failed to continued ‘‘[b]eing guilty of any dishonorable or
Licensure Status
his aftercare therapy, failed to pay his unethical conduct likely to deceive,
Respondent is a neurosurgeon defraud or harm the public’’).
bill for the drug screen testing, and had
licensed by the Mississippi State Board
‘‘fail[ed] to turn in his support group On January 16, 2014, the Board held
of Medical Licensure. R.D. 3 (citing
attendance records.’’ Id. at 19–20. a hearing on the allegations at which
Stipulation of Fact No. 4); Tr. 481–82. According to Dr. Hambleton’s testimony
Respondent also previously held a DEA Respondent appeared. As the record of
at the second State Board hearing, the the hearing shows, the allegations were
Certificate of Registration, pursuant to committee ‘‘warned [Respondent] very
which he was authorized to dispense based on Respondent’s violations of his
carefully that any future noncompliance RCA, particularly in his prescribing of
schedule II through V controlled would result in [the] potential loss of
substances as a practitioner. GX 1, at 1. controlled substances to his wife. Also
[the] MPHP[’s] advocacy’’ and ‘‘that this at issue was his lack of honesty in
However, on January 17, 2014, was really his last chance to
Respondent surrendered this failing to disclose his prescribing to his
demonstrate that he could do what was treatment providers as well as the
registration for cause. Id. According to necessary to prove that he’s safe.’’ Id.
Respondent, he agreed to surrender his MPHP committee and the MPHP’s staff.
While Respondent was compliant GE 14, at 21.
registration at the time of the State with the issues raised by the committee,
Board hearing that suspended his the committee was unaware that Following the hearing, the Board
medical license. Tr. 485. On January 9, Respondent had been violating his RCA found Respondent guilty on both counts
2015, Respondent applied for a new by writing controlled substance and suspended his medical license for
practitioner’s registration seeking prescriptions for his wife. Id. at 20–21. one year, after which he was entitled to
authority to dispense controlled According to Dr. Hambleton, he did not petition the Board for reinstatement of
substances in schedules II through V, at know that Respondent had been calling his license. Id. at 91. The Board ordered
a registered address in Hattiesburg, in controlled substance prescriptions for that he ‘‘successfully complete
Mississippi. R.D. 3 (citing Stipulation of his wife until the State Board informed multidisciplinary treatment at a
Fact No. 1). him on October 7, 2013. Id. Dr. treatment facility approved in advance
In 2008, Respondent referred himself Hambleton also testified in the State by the MPHP,’’ as well ‘‘establish a
to the Betty Ford Center, ‘‘when [he] Board proceeding that Respondent did provisional contract [and] take those
realized [he] had a problem with not disclose this information to his steps necessary to obtain affiliation and
prescription medicines’’ and spent 90 ‘‘treatment providers at Betty Ford, to advocacy with the MPHP.’’ GE 13, at 7–
days in treatment. Tr. 487. According to our committee, or [to] our staff at 8.
Respondent, ‘‘[o]nce [he] went to the MPHP.’’ Id. On January 15, 2015, Respondent
Betty Ford Center, [he] disclosed to the On October 15, 2013, the MPHP, appeared before the Board seeking
MPHP [Mississippi Physician’s Health having concluded that Respondent’s reinstatement. At the hearing, Dr.
Program] and ultimately the [B]oard of ‘‘continued practice of medicine Hambleton (the MPHP Medical Director)
[M]edicine that [he] was now a represent[ed] a definite threat to the testified in support of Respondent’s
participant.’’ Id. at 488. public health’’ withdrew its advocacy
In May 2008, Respondent entered into petition, stating that he ‘‘complied with
a Recovery Contract Agreement all of our requirements and he’s begun
Director was, however, placed under oath in the the treatment process at Acumen.’’ Id. at
(hereinafter, recovery contract, contract, State Board proceeding. GE 14, at 11. He also
or RCA) with the MPHP. GE 14, at 13. testified in this proceeding and explained that with 13. Dr. Hambleton further expressed his
The RCA’s terms included that he the exception of its duration, the terms of ‘‘belief . . . that he will comply with his
completely abstain from mood-altering
Respondent’s current RCA (which ‘‘is his fourth contract.’’ Id. At the conclusion of the
contract’’) are the same as they were for his testimony, the Board reinstated
addictive substances, that he not treat previous contracts. Tr. 452. Notably, his current
himself or his family, that he undergo contract requires that, ‘‘[o]ther than cases of Respondent’s medical license. Id. at 15.
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random drug screens, and that he be medical emergencies, I agree to abstain from the use
of any mood-altering, addictive, or potentially The DEA Investigation
honest. Id.; see also R.D. at 4.2 addictive prescription medication, including
amphetamine preparations, without written At some point not clearly established
2 The ALJ noted that these facts, which are based permission from MPHP.’’ RX C, at 2. The RCA’s on the record, a DEA Diversion
on the testimony of Dr. Hambleton, the Director of terms also state that ‘‘I agree not to prescribe, Investigator (DI) assigned to the Jackson,
the MPHP, at Respondent’s January 15, 2015 Board dispense or administer to family members or myself
Hearing, are ‘‘not necessarily proven by a any drug having addiction-forming or addiction-
Mississippi office opened an
preponderance of the evidence.’’ R.D. 4. The sustaining liability.’’ Id. investigation into Respondent’s
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prescribing practices.3 Tr. 31, 90. As the Thereafter, the DI visited Dr. Webb Restoril, and an anxiety medication
DI explained, Respondent’s ‘‘history and ‘‘asked him if he was aware’’ that such as Xanax or Clonazepam. Id. at
with the Medical Board . . . gave us Respondent’s wife was ‘‘receiving these 204.
pause, so we began an investigation into prescriptions from’’ Respondent. Id. Dr. Dr. Webb testified that while he and
. . . his prescribing habits.’’ Id. The DI Webb ‘‘said that he was not’’ and asked Respondent ‘‘talked a lot in the 90s and
testified that he had access to the the DI to ‘‘look into it further.’’ Id. the early 2000s,’’ they have ‘‘talked less
Board’s investigation, Tr. 22 & 32, and Following the visit, the DI served a and less over the last 10 years.’’ Id. at
obtained reports from the State’s subpoena on Dr. Webb and obtained his 110. Dr. Webb testified that his records
Prescription Monitoring Program patient file for Respondent’s wife. Id. at show that he had talked to Respondent
showing Respondent’s controlled 35; GX 3, at 1–2. Dr. Webb’s file for ‘‘about four times’’ in the period from
substance prescribing. Id. at 22–23. Respondent’s wife was entered into January 2011 to December 2013. Id. at
Specifically, the DI obtained a evidence as GX 5. Tr. 68–75. 111; see also GX 7, at 1 (memo prepared
‘‘Prescriber Activity Report’’ showing The DI also obtained some of ‘‘the by Dr. Webb memorializing meeting
Respondent’s prescriptions from hard copy prescriptions from several with DEA noting that he had talked with
January 1, 2011 through December 31, different pharmacies throughout’’ the Respondent on Dec. 20, 2011, Feb. 20,
2013. Tr. 24; GX 10. The DI also State.6 Tr. 35–36. The DI presented the 2012, Sept. 4, 2012, and Aug. 5, 2013).
obtained a PMP report using the various prescriptions to Dr. Webb and asked According to Dr. Webb, Respondent
names of Respondent’s wife for the him: ‘‘were these authorized? Did you ‘‘would call me whenever he felt [his
same period. Tr. 29; GX 11. Of note, know?’’ Id. at 36. Dr. Webb ‘‘again wife] was in a crisis . . . to give me that
however, GX 10 contains a number of maintained that he did not’’ know about information and to . . . garner some
prescriptions which Respondent issued the prescriptions. Id. help from me to her.’’ Tr. 110. Dr. Webb
to his wife which are not listed on GX The DI also served a subpoena on testified that he never had a discussion
11.4 Respondent for ‘‘[a]ny and all charts, with Respondent about the latter’s
In reviewing the PMP reports, the DI files and/or documents, written, typed prescribing controlled substances to his
found it suspicious that Respondent was or computerized, relating to’’ his wife. wife. Id.; see also id. at 138. When then
prescribing controlled substances to his GX 4, at 1. A ten-page exhibit of asked if Respondent had contacted him
wife as ‘‘she was seeing a psychiatrist, Respondent’s Medical Progress Notes and told him that he had prescribed
Dr. Mark Webb, during that timeframe.’’ for his wife was entered into evidence because his wife had ‘‘run out’’ and
Tr. 30. The DI ‘‘noticed multiple as GX 6. Tr. 67. ‘‘need[ed] some’’ medication on a
prescriptions’’ which Respondent temporary basis, Dr. Webb answered
authorized for drugs that his wife ‘‘was Dr. Webb’s Testimony ‘‘no’’ and explained that ‘‘that would
receiving’’ from Dr. Webb. Id. at 31. The The Government called Dr. Mark not make a lot of sense,’’ because he
DI further explained that he was ‘‘aware Webb as a fact witness. Dr. Webb (Dr.Webb) ‘‘would be the person
that [Respondent] was married to . . . testified that he has practiced psychiatry authorized that needed to call that in.’’
Ms. Alexander, so [I] knew there was a in Mississippi since 1990 and that Id. at 111. While Dr. Webb testified that
pretty good assumption that he was Respondent’s wife has been his patient there was an instance during which he
aware that she was receiving these since November 2000. Id. at 102, 105. ‘‘walked out to the car with
medications, because she had seen Dr. Dr. Webb acknowledged that he [Respondent’s wife] . . . and
Webb for such a long time.’’ Id. at 32. prescribes both controlled and non- [Respondent] was in the car with their
According to the DI, during a phone controlled substances and that for most newborn son,’’ and they ‘‘chit-chatted
conversation with Respondent’s wife of the patients who are treated with [for] two seconds,’’ there was no
‘‘[s]he advised that she needed the controlled substances, he prescribes discussion of Respondent’s prescribing
medications’’ and that Respondent had only ‘‘two weeks’ worth of medications’’ of controlled substances to his wife. Id.
written ‘‘her some prescriptions, but so that ‘‘it’s a tighter leash.’’ Id. at 111–12; see also R.D. 16 (ALJ Finding
that she didn’t feel like that was a According to Dr. Webb, he has of Fact No. 28). Dr. Webb also testified
problem.’’ Id. at 33. Respondent’s wife ‘‘known [Respondent] for a long time’’ that he did not have a conversation with
also told the DI that ‘‘she didn’t know and the two ‘‘referred patients back and Respondent’s wife about Respondent’s
if her husband had patient files . . . for forth in the 90s and the early 2000[s].’’ prescribing to her until either late in
her [but] that he did prescribe some Id. at 110. Dr. Webb testified that he saw 2015 or 2016. Tr. 174–75.
prescriptions to her.’’ 5 Id. at 34. Respondent’s wife at his request. Id. He Dr. Webb testified that DEA
also testified that during the 2011 Investigators showed him the ten pages
3 Earlier in his testimony, the DI stated that the
through 2013 period, his medication of notes Respondent created with
investigation was prompted by Respondent’s 2015
regimen for Respondent’s wife was to respect to the prescriptions he issued for
application. Tr. 31. Yet later in his testimony, the his wife and that he compared them
DI stated that the case was opened earlier, after the prescribe ‘‘an anti-depressant,’’ an
Board provided DEA ‘‘with documentation Attention Deficit Disorder (ADD) with the patient file he maintained on
regarding his history with them.’’ Tr. 90. The DI medication such as Adderall XR, a Respondent’s wife. Id. at 116. However,
explained that ‘‘[w]hen we obtain information from
sleeping medication such as Ambien or ‘‘none of’’ the dates in the records
the Medical Board, whether or not somebody’s created by Respondent ‘‘correspond[ed]
applied for a DEA license or not, we have to
document that information . . . the different surrender her DEA license because of that.’’ Tr. 33– to [Dr. Webb’s] treatment records.’’ Id. at
allegations that the Board has made[,] or evidence 34. The DI testified that shortly after this 16 (quoting GX 9 (memo created by Dr.
that they may have against a physician.’’ Id. at 90– conversation, he was contacted by Respondent’s Webb re: Feb. 25, 2016 meeting with
91. counsel, who advised that he was also representing DEA)). In his testimony, Dr. Webb
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4 According to the DI, when calling in the Respondent’s wife and was told ‘‘not to contact her
prescriptions, Respondent used ‘‘several different anymore unless there, you know.’’ Id. at 34. The DI adhered to his statement in the memo
variations of’’ his wife’s name. Tr. 38. did not clarify what conditions Respondent’s that he ‘‘did not speak to [Respondent]
5 According to the DI, during this conversation, counsel asserted during this conversation. Id. The on these times in question and certainly
he told Respondent’s wife (who holds a DEA DI did not subsequently speak to Respondent’s would not have authorized him to call
registration as a Nurse Practitioner) that she wife. Id.
appeared to be obtaining controlled substances 6 According to the DI, he provided the pharmacies in medication for my patient.’’ GX 9; Tr.
‘‘from multiple doctors, including her husband’’ with the prescription numbers, Respondent’s wife’s 117. As he testified, ‘‘[t]here’s no reason
and that he ‘‘would potentially be asking her to name, and her date of birth. Tr. 38. for somebody else to call in the
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prescriptions. That’s my job.’’ Tr. 117. November 30, 2011. GE 11, 11. the prescription issued by Dr. Webb on
Subsequently, Dr. Webb reiterated that Respondent did not document this February 3, 2011, and eventually
he did not authorize Respondent to prescription in the patient file he refilled the prescription on July 7, 2011.
issue any prescriptions to his wife maintained on his wife. See generally GE 11, at 12. Respondent did not
during the relevant time frame. Id. at GE 6. He also did not disclose the document the prescription in the patient
119. prescription to Dr. Webb. file. See generally GE 6. Nor did he
4. March 30, 2011, 30 tablets of disclose it to Dr. Webb.
Respondent’s Prescriptions for His Wife zolpidem tartrate (Ambien) 10 mg, with 9. July 15, 2011, prescription
The evidence shows that between a dosing instruction of one tablet at (assigned RX # 4002009 by the
January 1, 2011 and October 14, 2013 bedtime but ‘‘may repeat for early,’’ a pharmacy) for 28 tablets of
(when his medical license was 15–30-day supply. GE 10, at 85; GE 11, hydrocodone-acetaminophen (Lorcet)
suspended), Respondent issued the at 13; GE 30, at 1–2. Notably, the 10–650, a five-day supply. GE 10, at 64.
following controlled substances zolpidem prescription which Dr. Webb This prescription also authorized a
prescriptions for his wife.7 issued on February 3, 2011 (RX refill, which Respondent’s wife obtained
1. January 9, 2011, eight tablets of #949559) provided for multiple refills, on July 29, 2011. Id. As explained
alprazolam (Xanax) 1 mg, one tablet to as it was refilled by Respondent’s wife above, other than in June/July 2013, Dr.
be taken twice day, a four-day supply. on April 9, 2011, May 23, 2011, and July Webb did not prescribe this drug to
GE 10, at 85; GE 11, at 14; GE 29, at 7, 2011. GE 11, at 13; Tr. 254–55. Respondent’s wife, and no other
1–2. The record does not establish when Respondent did not document the physician prescribed hydrocodone to
Dr. Webb had last prescribed alprazolam prescription in the patient file he her until November 30, 2011.
to Respondent’s wife.8 Respondent did maintained on his wife. GE 6. Nor did Respondent did not document the
not document the prescription in the he inform Dr. Webb that he issued the prescription in the patient file. GE 6.
patient file he maintained for his wife. prescription. Nor did he disclose the prescription to
See generally GE 6. Nor did he inform 5. April 8, 2011, 15 tablets of Dr. Webb.
Dr. Webb that he had issued the hydrocodone/acetaminophen (Lorcet) 10. July 31, 2011, 12 tablets of
prescription. 10–650, one tablet every six hours as zolpidem 10 mg, one tablet at bedtime,
2. January 31, 2011, 30 tablets of needed, a three-day supply. GE 10, at a 12-day supply, with one refill. GE 10,
zolpidem tartrate (Ambien) 10 mg, a 15- 85; GE 11, at 13; GE 31, at 1–2. As at 84; GE 11, at 12; GE 33, at 1–2. As
day supply. GE 10, at 19; GE 11, at 14. explained above, other than in June/July found above, on July 7, 2011,
Notably, on January 8, 2011, 2013, Dr. Webb did not prescribe this Respondent’s wife obtained a refill of a
Respondent’s wife had refilled a drug to Respondent’s wife, and no other prescription for 60 zolpidem issued by
prescription issued by Dr. Webb on physician prescribed hydrocodone to Dr. Webb, which, if taken as directed,
August 31, 2010 for 60 tablets, this her until November 30, 2011. should have lasted her until August 6,
being a 30-day supply. GE 11, at 14. Respondent did not document the 2011 (this being in addition to the 30
Thus, if taken as directed, the refill of prescription in the patient file. GE 6. He zolpidem prescription Respondent
Dr. Webb’s prescription should have last also did not disclose the prescription to issued on June 28, 2011). GE 11, at 12;
Respondent’s wife until February 7, Dr. Webb. Tr. 251–53. Respondent did not
2011. On February 3, 2011 (only three 6. May 6, 2011, 30 tablets of zolpidem document the prescription in the patient
days later), Dr. Webb prescribed 60 tartrate (Ambien) 10 mg, one tablet at
units of zolpidem 10 to Respondent’s file. See generally GE 6. Nor did he
bedtime but ‘‘may repeat,’’ a 30-day
wife. GE 11, at 13. GE 5, at 112. disclose the prescription to Dr. Webb.
supply. GE 10, at 85; GE 11, at 13; GE 11. August 13, 2011, 20 tablets of
Respondent did not document the 32, at 1–2. As discussed above, alprazolam (Xanax) 1 mg, one-half to
prescription in the patient file he Respondent’s wife still had refills one tablet, to be taken twice a day, a 10–
maintained for his wife. GE 6. Nor did available for 60 dosage units based on 20-day supply. GE 22, at 1–2.9 Notably,
he inform Dr. Webb that he issued the the prescription issued by Dr. Webb on
prescription. on August 4, 2011, Respondent’s wife
February 3, 2011, and eventually had refilled a prescription issued by Dr.
3. February 7, 2011, 20 tablets of refilled the prescription on May 23,
hydrocodone/acetaminophen (Lorcet) Webb for 45 alprazolam 2 mg, a 15 day
2011. GE 11, at 13; Tr. 255. Respondent supply. GE 11, at 12. Thus, if taken as
7.5–650, a three-day supply. GE 10, at did not document the prescription in
23; GE 11, at 13; see generally Tr. 373– directed, this refill should have lasted
the patient file. See generally GE 6. Nor Respondent’s wife until August 19,
74 (testifying that her husband did he disclose the prescription to Dr.
prescribed hydrocodone for her once in 2011. Moreover, on August 16, 2011, Dr.
Webb. Webb issued Respondent’s wife a new
2011). Other than on one occasion in 7. May 14, 2011, 14 tablets of
June/July 2013, which is discussed prescription for 90 alprazolam 2mg, a
hydrocodone/acetaminophen (Lorcet)
below, Dr. Webb did not prescribe 30-day supply. Id. Respondent did not
10–650, a two-day supply. GE 10, at 19;
hydrocodone to Respondent’s wife. document the prescription in his wife’s
GE 11, at 13. As explained above, other
Moreover, the PMP report does not list patient file. See generally GE 6.10 Nor
than in June/July 2013, Dr. Webb did
any hydrocodone prescriptions that not prescribe this drug to Respondent’s 9 Although this prescription was filled on August
were issued by any other provider until wife, and no other physician prescribed 13, 2011, see GE–22, at 2, it does not appear on Mrs.
hydrocodone to her until November 30, Alexander’s PMP. See GE–11, at 12. However, a
7 The ‘‘fill dates’’ are used to identify these copy of the prescription and the fill sticker is in the
2011. Respondent did not document the
prescriptions because some of the prescriptions are record. GE 22.
prescription in the patient file. GE 6.
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not dated or bear illegible dates. 10 The Respondent’s patient file for his wife
8 The ALJ found that this prescription overlapped Nor did he disclose the prescription to mentions a prescription for 20 tablets of Xanax, 2
with a 30-day prescription for zolpidem tartrate Dr. Webb. mg, dated July 13, 2011. See GE–6, at 1. The patient
(Ambien) from Dr. Webb, which was filled on 8. June 28, 2011, 30 tablets of file says he prescribed Xanax because ‘‘Jill out of
January 8, 2011. R.D. 16. Given that Dr. Webb zolpidem tartrate (Ambien) 10 mg, a 30- Xanax—in Philadelphia—Has had twitching—
testified that he was prescribing both Xanax for [illegible] Dr. Webb has not called back.’’ GE–6, at
anxiety and Ambien for sleep to Respondent’s wife
day supply. GE 10, at 84; GE 11, at 12. 1. Dr. Webb, however, had no notes in his file about
simultaneously, the record does not establish that Respondent’s wife still had a refill any attempt by the Respondent to contact him on
these were overlapping prescriptions. available for 60 dosage units based on July 13, 2011. See Tr. 126. However, neither the
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did he disclose the prescription to Dr. generally GE 6. Nor did he disclose it to 21. December 5, 2011, 10 tablets of
Webb. Dr. Webb. hydrocodone-acetaminophen (Lorcet)
12. August 28, 2011, 12 tablets of 16. October 20, 2011, 16 tablets of 10–650, a three-day supply. GE 10, at
zolpidem tartrate (Ambien) 10 mg, a 12- hydrocodone-acetaminophen (Lorcet) 63. Respondent did not document the
day supply. GE 10, at 19. Notably, on 10–650, a four-day supply, this being a prescription in the patient file. See
August 16, 2011, Respondent’s wife had refill of the September 28, 2011 generally GE 6. Nor did he disclose it to
obtained and filled a new prescription prescription. GE 10, at 64. As explained Dr. Webb.
from Dr. Webb for 60 zolpidem, a 30- above, other than in June/July 2013, Dr. 22. December 27, 2011,12 30 tablets of
day supply. GX 11, at 12. If taken as Webb did not prescribe this drug to zolpidem tartrate (Ambien) 10 mg, one
directed, Dr. Webb’s prescription should Respondent’s wife, and no other tablet a day at bedtime, a 30-day supply.
have lasted Respondent’s wife until physician prescribed hydrocodone to GE 10, at 80; GE 21, at 1–2. However,
September 15, 2011. Moreover, as found her until November 30, 2011. As found on December 16, 2011, Respondent’s
above, Respondent had also provided a above, Respondent did not document wife had obtained a refill of Dr. Webb’s
refill when he issued the July 31, 2011 the prescription or the refill in the August 16, 2011 prescription for 60
prescription (RX# 443737), and this patient file. See GE 6. Nor did he dosage units, a 30-day supply. GE 11, at
refill was still available to his wife on disclose the prescription to Dr. Webb. 11. Thus, if taken as directed, the
August 28, 2011. GE 11, at 12. 17. November 13, 2011, 18 tablets of December 16 refill should have lasted
Respondent did not document the clonazepam 2mg, a six-day supply. GE Respondent’s wife until January 15,
prescription in the patient file. See 10, at 19. Notably, on November 3, 2011, 2012. In Respondent’s patient file for his
generally GE 6. He also did not disclose Respondent’s wife had refilled a wife, he documented: ‘‘Jill not sleeping.
the prescription to Dr. Webb. prescription issued by Dr. Webb on Holiday schedule at Mississippi
October 19, 2011 for 45 dosage units, a Neuropsychiatric—stress of house
13. September 6, 2011, 12 tablets of
15 day supply. GE 11, at 11. If taken as repossession and moving in with
zolpidem tartrate (Ambien) 10 mg, a 12-
directed, the November 3 refill should mother-in-law. Erratic. Bugs. Ambien 10
day supply, this being a refill authorized
have lasted Respondent’s wife until mg #30 [one to two orally at bedtime].
by Respondent’s July 31, 2011
November 18, 2011. Moreover, on No response on-call dr.’’ GE 6, at 1.
prescription. GE 11, at 12. As discussed
November 15, 2011, only two days after Respondent did not disclose the
in the preceding paragraph, Dr. Webb’s
filling the prescription she obtained prescription to Dr. Webb.
August 16, 2011 prescription should 23. January 7, 2012, 28 tablets of
have lasted Respondent’s wife until from her husband, Respondent’s wife
obtained a further refill of Dr. Webb’s zolpidem 10 mg, a 28-day supply. GE
September 15, 2011. In addition, 10, at 63. As found above, on December
Respondent’s August 28, 2011 prescription for 45 dosage units of
clonazepam. GE 11, at 11. Respondent 16, 2011, Respondent’s wife had
prescriptions provided his wife with obtained a refill of Dr. Webb’s
additional medication in excess of what did not document the prescription in
the patient file. See generally GE 6. Nor prescription and obtained medication
Dr. Webb had prescribed. As found that should have lasted her until
above, Respondent did not document did he disclose it to Dr. Webb.
18. November 25, 2011, 10 tablets of January 15, 2012. Moreover, on
the original prescription in the patient December 27, 2011, she filled the
file nor disclose it to Dr. Webb. See clonazepam 2 mg, a three-day supply.
GE 10, at 63. If taken as directed, by prescription Respondent wrote her for
generally GE 6. 30 more tablets. Respondent’s patient
14. September 28, 2011, 16 tablets of itself, the November 15, 2011 refill
should have lasted Respondent’s wife file for his wife does not document the
hydrocodone/apap 10/650, a four-day issuance of a zolpidem prescription on
supply with one refill. See GE 10, at 64. until November 30, 2011. Respondent
did not document the prescription in this date, but rather on January 10, 2012.
As explained above, other than in June/ See generally GE 6. That entry states:
July 2013, Dr. Webb did not prescribe the patient file. GE 6. Nor did he
disclose it to Dr. Webb. ‘‘Jill Philadephia at M-I-L house,’’ ‘‘Pills
this drug to Respondent’s wife, and no discarded—tension—No vehicles
other physician prescribed hydrocodone 19. November 29, 2011, four tablets of
hydrocodone/acetaminophen (Lorcet) (Bankruptcy).’’ GE 6, at 2. The entry
to her until November 30, 2011. then lists a prescription for 30 Ambien
Respondent did not document the 10–650 mg, one tablet to be taken four
to six times a day, a one-day supply. GE 10 mg, with a dosing instruction of one
prescription in the patient file. See GE tablet by mouth per day. Id. Moreover,
6. Nor did he disclose the prescription 26. Respondent did not document the
prescription in the patient file. GE 6. He Respondent did not disclose the
to Dr. Webb. prescription to Dr. Webb.
also did not disclose the prescription to
15. October 11, 2011, 20 tablets of 24. January 16, 2012, 30 tablets of
Dr. Webb.
zolpidem tartrate (Ambien) 10 mg, one alprazolam (Xanax) 2 mg, to be taken
20. Also on November 29, 2011, one
tablet at bedtime, a 20-day supply. GE ‘‘as directed.’’ 13 GE 23, at 1–2. However,
Diastat Acudial, 5–7.5–10 mg kit. GE 10,
10, at 84; GE 11, at 11; GE 34, at 1–2; on January 5, 2012, Respondent’s wife
at 92; GE 11, at 11; GE 28, at 1. Diastat
Tr. 249. Of note, on September 19, 2011, had refilled a prescription (Rx# 976879)
Acudial is a rectal suppository of
Respondent’s wife had refilled Dr. issued by Dr. Webb for 45 tablets, a 15-
diazepam, which is also a
Webb’s August 16, 2011 prescription
benzodiazepine and a schedule IV
and obtained 60 tablets, a 30-day 12 The Government established that this was a
controlled substance.11 Tr. 260–61; 21 Tuesday. Tr. 190.
supply. GE 11, at 12. If taken as
CFR 1308.14(c). Respondent did not 13 While neither PMP report contains an entry for
directed, the September 19 refill should
document the prescription in the patient an alprazolam prescription issued by Respondent
have lasted Respondent’s wife until
ethrower on DSK3G9T082PROD with NOTICES
file. See GX 6. Nor did he disclose it to for his wife on this date, Government Exhibit 23
October 19. GE 11, at 12; Tr. 248–49. contains a copy of the prescription and the fill
Dr. Webb.
Respondent did not document the sticker showing that on January 16, 2012,
prescription in the patient file. See Respondent issued, and his wife filled a
11 Dr. Chambers, the Government’s Expert prescription for 30 alprazolam 2 mg.
testified that this prescription ‘‘is a bit puzzling Notwithstanding that the prescription appears to be
PMP reports, nor the copies of the prescriptions, because it’s clear she’s taking oral meds and usually dated ‘‘1/16/11,’’ the fill sticker states that the
support a finding that Respondent issued an that’s reserved for people who can’t take’’ the oral prescription was written on ‘‘01/16/12.’’ GX 23, at
alprazolam prescription on or about this date. form of the drug. Tr. 259. 1–2.
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day supply, and that prescription had times a day.’’ GE 6, at 3. Respondent’s wife obtained 45 tablets (15 days) of
an additional refill remaining which wife had available a refill of Dr. Webb’s alprazolam when she refilled Dr. Webb’s
Respondent’s wife obtained on February February 23 prescription which she prescription. GE 11, at 9. In a note
14, 2012. GE 11, at 10. In his wife’s could have filled on this date (without (dated July 14, 2012) in his wife’s
patient file, Respondent wrote: ‘‘Dr. being early) but which she did not fill patient file, Respondent wrote: ‘‘she had
Webb wants Jill to come in. Difficult until March 19, 2012. GE 11, at 10. done very well without medicine—even
[with] transportation—Will Rx 10 day Respondent did not disclose the though extremely stressful living
supply til 1/26/12—Webb aware— prescription to Dr. Webb. conditions. . . . 4 month no meds—
Xanax 2 mg #30 [two orally three times 28. March 12, 2012, 30 tablets of depressed, crying, jittery—Has been in
a day].’’ GE 6, at 2. Dr. Webb testified, zolpidem 10 mg, 30-day supply. GE 10, contact [with] Dr. Webb. . . . She feels
however, that neither Respondent nor at 80. As found above, on March 4, self harm—but no SI. Xanax 2 mg #20
Respondent’s wife ever told him about 2012, Respondent prescribed 30 6 day supply.’’ GE 6, at 4; Tr. 130.
any prescription issued by zolpidem (a 30-day supply) for his wife Respondent did not disclose the
Respondent.14 Tr. 115–17, 119, 138, which she filled the same day. GE 11, prescription to Dr. Webb, and Dr. Webb
174–75; see also R.D. 16 (Finding of Fact at 10. If taken as directed, Respondent’s did not talk to the Respondent’s wife on
No. 28). March 4 prescription should have lasted July 14, 2012. See generally GE 5; Tr.
25. February 26, 2012, 20 tablets of until April 3, 2012. Also, Dr. Webb’s 131. Dr. Webb also testified that neither
diazepam 5 mg, a six-day supply. GX Feb. 23, 2012 prescription (for 30 Respondent nor Respondent’s wife ever
11, at 10. Of note, on February 23, 2012, tablets) authorized multiple refills and told him about any prescription issued
Respondent’s wife had obtained and Respondent’s wife obtained a refill on by Respondent. Tr. 115–17, 119, 138,
filled a new prescription from Dr. Webb March 19, 2012. Id. Respondent did not 174–75; see also R.D. 16 (Finding of Fact
for 45 alprazolam 2 mg, a 15-day document the prescription in his wife’s No. 28).
supply; this prescription (Rx# 982872) patient file. See GE 6. Nor did he 33. August 13, 2012, 30 tablets of
also authorized three refills. Id. at 10– disclose the prescription to Dr. Webb. hydrocodone/acetaminophen, 10–650,
11. Diazepam and alprazolam are both 29. April 1, 2012, 24 tablets of one tablet every four hours, a five-day
benzodiazepines and are used to treat zolpidem tartrate (Ambien) 10 mg, a 24-
supply. GE 10, at 80; GE 11, at 9; GE 16,
anxiety. Tr. 259. Dr. Webb did not day supply. GE 10, at 13; GE 11, at 10.
at 1. Respondent did not document the
prescribe diazepam to Respondent’s Putting aside that Respondent’s March 4
prescription in his wife’s patient file.
wife. See generally GE 11; Tr. 204; GX prescription should have lasted through
See GE 6. Nor does the PMP report show
5. Respondent did not document the April 3, 2012, as found above,
that any other doctor prescribed
prescriptions in his wife’s patient file. Respondent’s wife obtained 30 tablets
hydrocodone to Respondent’s wife
See GE 6. Nor did he disclose the on March 12 when she filled his
between December 22, 2011 and
prescription to Dr. Webb. prescription and another 30 tablets on
December 16, 2012. GE 11, at 8–10.
26. March 4, 2012, 30 tablets of March 19, when she refilled Dr. Webb’s
Respondent did not disclose the
zolpidem10 mg, a 30-day supply. GE 10, Feb. 2, 2012 prescription. GE 11, at 10.
at 13; GE 11, at 10. Of note, on February Respondent did not document the prescription to Dr. Webb.
23, 2012, Respondent’s wife obtained prescription in his wife’s patient file. 34. October 5, 2012, 12 tablets of
and filled a prescription from Dr. Webb See GE 6. Nor did he disclose the alprazolam (Xanax) 2 mg, a four-day
for 30 zolpidem, a 15-day supply. GE prescription to Dr. Webb. supply. GE 10, at 22; GE 11, at 9. On
11, at 10. If taken as directed, Dr. 30. April 2, 2012, 120 units of September 24, 2012, Dr. Webb
Webb’s prescription should have lasted hydrocodone-homatropine syrup prescribed and Respondent’s wife filled
Respondent’s wife until March 9, 2012. (Hycodan), one teaspoon every four to a prescription for 45 alprazolam 2 mg,
Moreover, Dr. Webb’s Feb. 23 six hours as needed. GE 19, at 1–2.15 a 15-day supply, which also provided
prescription provided for two refills, the Respondent did not document the for two refills. GE 11, at 9. If taken as
first of which Respondent’s wife prescription in his wife’s patient file. directed, Dr. Webb’s prescription should
obtained on March 19, 2012, See GE 6. Nor did he disclose the have lasted until October 9, 2012. In his
respectively. GE 11, at 10. Respondent prescription to Dr. Webb. wife’s patient file, Respondent wrote:
did not document the prescription in 31. June 18, 2012, 20 tablets of ‘‘Dr. Webb Rx Xanax—She is out 2 days
the patient file. See generally GE 6. Nor alprazolam (Xanax) 2 mg, one tablet to early—Laceration/cutting—severe
did he disclose the prescription to Dr. be taken twice a day, a 10-day supply. anxiety & depression—arms excoriated
Webb. GE 10, at 75; GE 11, at 9; GE 15, at 1– No return call from weekend MD—I
27. March 12, 2012, 12 tablets of 2; Tr. 262. Respondent’s wife still had have to leave to work out of town Xanax
alprazolam (Xanax) 2 mg, one tablet to a refill remaining on Dr. Webb’s Feb. 23, 2 mg #12 Walgreens 3–4 day supply
be taken three times a day, a four-day 2012 prescription for 45 alprazolam, through weekend.’’ GE 6, at 5. While the
supply. GE 10, at 80; GE 20. As found which she filled on July 5, 2012. GE 11, note also appears to state ‘‘aware -,’’ Dr.
above, on February 23, 2012, Dr. Webb at 9. Respondent did not document the Webb did not have any notes in his file
issued a prescription for 45 tablets of prescriptions in his wife’s patient file. regarding any calls from Respondent on
alprazolam 2 mg, a 15-day supply, See generally GE 6. Nor did he disclose October 5, 2012, Tr. 131, and I find that
which authorized three refills. GE 11, at the prescription to Dr. Webb. Respondent did not disclose the
9–10. In the patient file, Respondent 32. July 17, 2012, 20 tablets of prescription to Dr. Webb. I also find that
wrote: ‘‘Out of Xaax [sic] x 5 days— alprazolam (Xanax) 2 mg, one tablet Respondent’s wife did not disclose the
Jerky & twitching—feels like Extreme twice a day, a 10-day supply. GE 10, at prescription. Tr. 174–75.
ethrower on DSK3G9T082PROD with NOTICES
anxiety—digging at arms [-] delusional 13; GE 11, at 9; see Tr. 262–63. As noted 35. December 22, 2012, 15 capsules of
parasitosis? Will give 4 day supply— above, on July 5, 2012, Respondent’s Dextroamphetamine-Amphetamine ER
[illegible] talk to Dr. Webb—Xaax [sic] 20 mg, a five-day supply. GE 11, at 8.
15 Although this prescription does not appear on
2 mg #12,’’ followed by the dosage While Dr. Webb had prescribed this
either of the PMP reports, the Government
instruction of one tablet by mouth, three produced both the prescription and the fill sticker
drug to Respondent’s wife, see id.,
showing that the drug was dispensed on April 2, Respondent did not disclose the
14 January 16, 2012 was a Monday. Tr. 190. 2012. See GE 19, at 2. prescription to Dr. Webb. Nor did
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![Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49711
Respondent document the prescription 16, 2012 for 20 tablets for hydrocodone/ to fix—Out of Xanax early—rebound
in his wife’s patient file. See GE 6. apap 7.5/500 (a two-day supply) and on anxieties—self-harm—Xanax #14—CVS
36. January 11, 2013, 10 tablets of December 18, 2012 for 20 tablets of Hardy St.’’ GE 6, at 7. The note also
alprazolam (Xanax) 2 mg, a three-day hydrocodone/apap 10/500 (a five-day includes the following addendum: ‘‘Dr.
supply. GE 10, at 21; GE 11, at 8. supply) from Dr. Pecunia. GE 11, at 8. Webb aware—he called in Restoril/
According to the PMP report, on January However, she was not regularly being Zoloft & the Xanax (3/30/13).’’ Id. Dr.
10, 2013, Respondent’s wife refilled a prescribed hydrocodone. See generally Webb, however, was not aware of this
prescription issued by Dr. Webb 16 (Rx GE 11. Respondent did not document prescription. Tr. 132–33; 174–75.
#996307) for 45 tablets of alprazolam 2 the prescription in his wife’s patient Further, Dr. Webb’s file contains no
mg, a 15-day supply. Id. If taken as file. See GE 6. Nor did he disclose the documentation of any contact by
directed, the January 10 refill provided prescription to Dr. Webb. Respondent around March 28 through
enough medication to last Respondent’s 40. February 5, 2013, eight tablets of 30. Tr. 133; see generally GE 5; GE 7–
wife until January 25. The PMP report alprazolam 2 mg, a two-day supply. GE 9. Notably, Respondent did not note
also shows that on December 30, 2012, 10, at 86; GE 11, at 7; GE 40, at 2. In what dose of Xanax he prescribed or the
Respondent’s wife had refilled a his wife’s patient file, Respondent dosing instructions. See GE 6, at 7; see
different prescription issued by Dr. wrote: ‘‘Agitated—open sore on nose & Tr. 266, 287–88.
Webb 17 (RX #2703928) for 45 tablets of hair line—Back from attempted trip— 43. May 10, 2013, 14 tablets of
alprazolam 2 mg, a 15-day supply. Id. If weathered out—returned with tons of alprazolam (Xanax) 2 mg, one tablet to
taken as directed, the December 30 refill anxiety—ran out of meds while be taken three times a day as needed, a
provided enough medication to last OOT 19—Minneapolis.’’ GE 6, at 6. The four-day supply. GE 10, at 86; GE 11, at
Respondent’s wife until January 14, note further states: ‘‘Xanax #8 CVS 7; GE 37, at 1–2. On April 30, 2013,
2013. Respondent did not document the Hattiesburg Zoloft #7’’ and ‘‘Filled Dr. Respondent’s wife obtained a refill of a
prescription in his wife’s patient file. Webb in on Travel—Jill did.’’ GE 6, at prescription issued by Dr. Webb for 45
See generally GE 6. Nor did he disclose 6. Respondent did not, however, alprazolam 2 mg, a 15-day supply. GE
the prescription to Dr. Webb. disclose the prescriptions to Dr. Webb. 11, at 7; Tr. 267. If taken as directed, the
37. January 11, 2013, six capsules of 41. February 27, 2013, 10 tablets of refill of Dr. Webb’s prescription should
temazepam, a three-day supply. GE 11, alprazolam 2 mg, a three-day supply. GE have provided Respondent’s wife with
at 8. According to the PMP report, on 6, at 6; GE 10, at 86; GE 11, at 7. On enough medication to last until May 15,
January 10, 2013, Respondent’s wife February 19, 2013, Respondent’s wife 2013. Respondent did not document the
refilled a prescription issued by Dr. filled a prescription written by Dr. Webb prescription in his wife’s patient file. GE
Webb for 30 capsules of the drug, a 30- for 45 alprazolam 2 mg, a 15-day 6. Nor did he disclose the prescription
day supply. Id. If taken as directed, the supply. GE 5, at 70; GE 11, at 7. If taken to Dr. Webb.
January 10 refill provided enough as directed, Dr. Webb’s prescription 44. May 13, 2013, 12 tablets of
medication to last Respondent’s wife should have provided Respondent’s alprazolam (Xanax) 2 mg, one tablet to
until February 9, 2013. Respondent did wife with enough medication to last be taken three times a day, a four-day
not document the prescription in his until March 6, 2013. In his wife’s supply. GE 10, at 21; GE 11, at 7; GE 41,
wife’s patient file. See GE 6. Nor did he patient file, Respondent wrote: at 1–2. Respondent wrote in his wife’s
disclose the prescription to Respondent. ‘‘Anxious about marital situation—sores patient file: ‘‘Out of Xanax 2 days
38. January 23, 2013, 15 tablets of on nose/forehead will not heal—No HI/ early—she says repeated [illegible]
alprazolam 2 mg, to be taken ‘‘as SI—out of her meds early—Out of calls—no answer—No healing on face/
directed.’’ 18 GE 17; GE 10, at 79; GE 11, Xanax,’’ ‘‘Xanax #10 [one orally three arm—repeated re-openings. I am
at 7. An entry in Respondent’s file times a day] CVS Hardy St (enough for scheduled OOT next 4 days—Xanax #12
(dated January 20, 2013) states ‘‘Jill has weekend) (Monday: Dr. Webb refilled [once orally three times a day].’’ GE 6,
opened sore on nose,’’ ‘‘arms—del. for her).’’ GE 6, at 6. at 8. Respondent had already prescribed
parastosis [sic]—arms,’’ ‘‘cutting— 42. March 27, 2013, 14 tablets of a four-day supply of Xanax to his wife
Anxiety/depression,’’ ‘‘Out of her alprazolam (Xanax) 2 mg, one tablet to on May 10; additionally, Respondent’s
Xanax—inconsolable,’’ ‘‘weekend—No be taken three times a day as needed, a wife still should have had two days’
return from on-call,’’ ‘‘Xanax #15,’’ five-day supply, which was filled the worth of Xanax left from Dr. Webb’s
‘‘will contact Dr. Webb in Am,’’ ‘‘No HI/ next day.20 GE 36; GE 10, at 86; GE 11, April 30 refill. GE 11, at 7; Tr. 267.
SI,’’ and a dosing instruction of ‘‘TID at 7. On March 19, 2013, Respondent’s Respondent did not disclose the
prn.’’ GE 6, at 5. Dr. Webb’s patient file wife had refilled a prescription issued prescription to Dr. Webb. While the note
for his wife does not document a call by Dr. Webb for 45 alprazolam 2 mg, a also states that Respondent prescribed
15-day supply. GE 11, at 7. If taken as ‘‘Ambien 10 for sleep,’’ GE 6, at 8, the
from the Respondent on or near this
directed, the refill of Dr. Webb’s record does not contain a zolpidem
date. See GE 5; Tr. 131–32. I therefore
prescription should have provided prescription with this date.
find that Respondent did not disclose
Respondent’s wife with enough 45. May 20, 2013, 20 tablets of
the prescription to Dr. Webb.
39. January 23, 2013, 30 tablets of medication to last until April 3, 2013. A zolpidem 10 mg, one tablet at bedtime,
hydrocodone/apap 10–650, a five-day note dated ‘‘3/28/13’’ in his wife’s a 20-day supply. GE 10, at 85; GE 11, at
supply. GE 11, at 7. Respondent’s wife patient file, states: ‘‘Marital/physical/ 7; GE 38, at 1–2. Respondent’s patient
had obtained prescriptions on December mental stress. Sky high Marriage file contains no note for a prescription
Workshop in Montana just issued on this date. GE 6, at 8. On May
accentuated—depilitating hairline— 23, 2013, Dr. Webb prescribed 30 du of
ethrower on DSK3G9T082PROD with NOTICES
16 The prescription was originally issued on July
26, 2012 and provided five refills. GE 11, at 8. [illegible] meds needs plastic surg[ery] another sleep medication, Restoril 30
17 The prescription was originally issued on mg (temazepam), with five refills, to
November 6, 2012. GE 11, at 8. 19 The ALJ presumed, with reason, that ‘‘OOT’’ is
Respondent’s wife. GE 5, at 102; GE 11,
18 Both the prescription label and the PMP report an abbreviation for ‘‘out of town.’’ R.D. 22 n.32. at 6; Tr. 133–34. Moreover, the PMP
list this as being a 30-day supply. See GE 17; GE 20 Although the PMP entry (as well as
10, at 79. However, according to Respondent’s note Respondent’s note) are dated March 28, 2013, the
report shows that Dr. Webb had been
in the file, the dosing instruction was take the drug prescription was written on March 27. See GE 36, prescribing temazepam with refills to
three times a day as needed. at 1. Respondent’s wife beginning on July 26,
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2012 and had not issued a zolpidem See GE 6, at 9. Respondent did not this weekend—Rx: Xanax #12 [once
prescription to her since February 23, disclose the prescription to Dr. Webb. orally three times a day]’’ and ‘‘[w]ill
2012, which she last refilled more than 49. July 25, 2013, 12 tablets of update Dr. Webb.’’ GE 6, at 10; Tr. 136–
a year earlier on April 12, 2012. GE 11, hydrocodone/apap, 10–650, one tablet 37. However, there is nothing in Dr.
at 7–10. Respondent did not discuss the every six hours as needed, a three-day Webb’s file for Respondent’s wife that
prescription with Dr. Webb. Tr. 133. In supply. GE 10, at 21; GE 11, at 5; GE 42, indicates that he was contacted by the
an entry dated ‘‘5/23,’’ Respondent at 1–2. Respondent did not document Respondent around August 22, 2013
wrote: ‘‘Dr Webb—started Zoloft & this prescription in his wife’s patient and Dr. Webb testified that Respondent
Buspar—And [R]estoril[.] Ambien file. See generally GE 6. He also did not never disclosed any of the prescriptions.
discarded—only Restoril.’’ GE 6, at 8. As disclose the prescription to Dr. Webb. See GE 5; Tr. 137. I find that
also found above, Respondent had 50. July 29, 2013, eight tablets of Respondent did not disclose the
previously prescribed temazepam for alprazolam 2 mg, one tablet to be taken prescription to Dr. Webb.
his wife on January 11, 2013. GE 11, at three times a day as needed, a two-day 53. September 5, 2013, 24 tablets of
8. supply. GE 10, at 85; GE 11, at 5; GE 39, alprazolam (Xanax), 2 mg, an eight-day
46. July 1, 2013, 20 tablets of at 1–2. The PMP shows that on July 19, supply. GE 10, at 21; GE 11, at 5. The
hydrocodone/acetaminophen (Lorcet), 2013, Respondent’s wife had obtained a Respondent recorded in his wife’s
10–650, a five-day supply.21 GE 10, at refill of a prescription issued by Dr. patient file: ‘‘Will not leave room—
93; GE 11, at 6; GE 27, at 1. In his wife’s Webb for 45 alprazolam 2 mg, a 15-day depressed—needs to get back with Dr.
patient file, Respondent wrote: ‘‘Her supply. GE 11, at 6. If taken as directed, Webb—anorexic—very anxious/
mother in hospital in Jackson—dying— the refill should have provided depressed—Xanax #20 [once orally
in ICU/hospice—she had seizure— Respondent’s wife with enough three times a day].’’ GE 6, at 10.
injured shoulder/rib finger. Fractured medication to last until August 3, 2017. Respondent did not disclose the
teeth. Would not go to ER—Lorcet 10/ In his wife’s patient file, Respondent prescription to Dr. Webb.
650 #20,’’ which was followed by wrote: ‘‘Out of Xanax—buried her
mother—funeral—Dr. Webb back Dr. Webb’s Testimony Regarding
illegible handwriting. GE 6, at 9; Tr.
Thursday. Xanax #8 [once orally three Respondent’s Prescriptions
134. Respondent did not discuss those
injuries with Dr. Webb at any point; times a day].’’ GE 6, at 9; Tr. 136. Dr. Asked if there were ‘‘any risks’’ in
further, Respondent’s wife had an Webb testified that he did not receive Respondent’s wife ‘‘receiving
appointment with Dr. Webb on July 1. any message or have any contact with prescriptions from someone other’’ than
Tr. 134. While Dr. Webb did not Respondent on this day, Tr. 136, and himself, Dr. Webb testified that ‘‘this
prescribe any medications to there is nothing in Dr. Webb’s file for particular patient . . . has some severe
Respondent’s wife at this visit, she did Respondent’s wife that indicates that he problems[,] and takes a high dose of
fill a prescription for 90 capsules of was contacted by Respondent around medication. . . . my concern is that I’m
Adderall XR 20 (amphetamine), which July 29, 2013. See GE 5; GE 7–9. I find keeping a close tab on it, but if there’s
Dr. Webb issued on June 28, 2013. GE that Respondent did not disclose the somebody out there writing that I don’t
11, at 6; Tr. 273. Also, on June 28, 2013, prescription to Dr. Webb. know about, that’s dangerous.’’ Id. at
she had obtained from Dr. Webb and 51. August 15, 2013, 14 tablets of 120. Dr. Webb explained that
filled new prescriptions for 45 hydrocodone/apap 10–650, one tablet Respondent’s prescribing was dangerous
alprazolam 2 mg, a 15-day supply, and every four to six hours as needed, a two- because ‘‘you’re going above the
30 temazepam 30 mg, a 30-day supply. day supply. GE 10, at 21; GE 11, at 5; maximum dose that should be
GE 11, at 6. GE 43, at 1–2. Respondent did not prescribed and more medicines can lead
47. July 7, 2013, 12 tablets of document the prescription in his wife’s to sedation, more sedation, difficulty,
alprazolam (Xanax) 2 mg, one tablet to patient file. See generally GE 6. Nor did death, loss of balance, falls, poor
be taken twice a day, a six-day supply. he disclose the prescription to Dr. judgment, things like that.’’ Id. at 121.
GE 35, at 1–4; see GE 10, at 41; GE 11, Webb. Dr. Webb also explained that the
at 6; Tr. 268–69. However, if taken as 52. August 22, 2013, 15 tablets of prescriptions ‘‘interfered with [my]
directed, the June 28 alprazolam alprazolam (Xanax), 2 mg, one tablet to treatment for her, because I wasn’t
prescription from Dr. Webb should have be taken three times a day, a five-day seeing the real patient, because there’s
provided enough medication to last supply. GE 10, at 67; GE 11, at 5; GE 24, a ghost writer out there that I don’t
Respondent’s wife until July 13, 2013. at 1–2. According to the PMP report, Dr. know about.’’ Id. Dr. Webb testified that
In his wife’s patient file, Respondent Webb issued his last alprazolam ‘‘I have certain timed prescriptions and
wrote: ‘‘She is out of her Xanax early. prescription to Respondent’s wife on if that timed prescription is getting
Dr. Webb is aware of the tremendous July 31, 2013 for 45 tablets, a 15-day gapped . . . by another prescription, it’s
stress of her mother’s illness. No return supply, and the PMP report contains no distracting me from my
call on-call MS Neuro [illegible] Xanax entry for any refill of this prescription. decisionmaking.’’ Id. He also testified
#12/Lorcet #12 Walgreens.’’ GE 6, at 9; GE 11, at 1–5. The PMP report further that this would ‘‘[m]ost definitely’’
Tr. 135. Dr. Webb’s file for Respondent’s shows that on August 5, 2013, Dr. Webb interfere with his decisionmaking, in
wife does not document a call from had re-commenced prescribing that ‘‘[if] she was out of . . . my
Respondent on this date. See generally clonazepam, a different benzodiazepine. medicines, then I would hear a
GE 5; GE 7–9; Tr. 135. GE 11, at 5; see also GE 5, at 71. In an distressed phone call . . . and I would
48. July 7, 2013, 12 tablets of entry in his wife’s patient file dated ‘‘8/ need to reorient my treatment for her
hydrocodone/apap 10–650 mg, one 24/13,’’ Respondent wrote: ‘‘Following [by] put[ting] her in the hospital.’’ Id. at
ethrower on DSK3G9T082PROD with NOTICES
tablet to be taken four to six times a day, [her mother’s] death, she has been very 122.
a two-day supply. Respondent’s note in labile. Dr. Webb has tried multiple In a July 13, 2011 entry in
his wife’s patient file does not discuss medications. Jill is very morose, often Respondent’s wife patient file, which
his reason for prescribing hydrocodone. cannot stop crying. Denies SI/HI—No documents a prescription for 20 Xanax
self-harm this month.’’ GE 6, at 10. 2mg, but for which there is no
21 See GE–14, at 59 (admitting to calling in a Continuing, the note states: ‘‘Multiple corresponding prescription in either the
prescription for Lorcet in July). Rx & calls to Dr. Webb. Could not reach PMP reports or the other exhibits,
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Respondent wrote: ‘‘Dr. Webb has not [ ] po TID prn a prescription for eight Xanax 2 mg. GX
called back.’’ GX 6, at 1. Regarding this GX 6, at 2, Tr. 126. Dr. Webb testified 11, at 5. The PMP report also shows,
entry, Dr. Webb testified that there are that he was not sure if the prescription however, that Respondent’s wife refilled
‘‘five other [ ]’’ practitioners that work at referenced in the note was ‘‘attached to prescriptions for 45 Xanax (15 day
his clinic and the phones are covered 24 the January 16 or January 26th note.’’ Tr. supply) issued by Dr. Webb on both July
hours a day, seven days a week. Tr. 124. 127. He then testified that he had no 10 and 19, 2013. GX 11, at 6. Id. Dr.
Moreover, his clinic has an answering contact with Respondent’s wife on Webb testified that he spoke with
service for after office hours and January 16, 2012,23 but that on January Respondent’s wife on July 30, 2013, and
weekends. Id. at 125. Dr. Webb testified 26, 2012, he called in a prescription for prescribed more Xanax to her and
that Respondent’s note did not state 45 Xanax 2 mg, three tablets a day. Id. referred her to a psychologist. Tr. 136.
what time the call to him had been at 127–28; see also GX 5, at 69. He also According to the PMP report, Dr. Webb
placed and he maintained that he had no contact with Respondent on issued Respondent’s wife a prescription
‘‘always called patients back.’’ Id. at January 26, 2012.24 Tr. 128. for 45 Xanax on July 31, 2013. GX 11,
126. The Government also asked Dr. Webb at 5.
Dr. Webb further testified that the file about an entry Respondent made on July Dr. Webb testified that in his view
did not contain a note ‘‘from the 7, 2013, which states in part: ‘‘She’s out ‘‘gap filling . . . means that there’s a
answering service or the secretary that of her Xanax early. Dr. Webb is aware prescription that is used to get [the
on [this date] a message was left.’’ Id. of the tremendous stress of her mother’s patient] to the next authorized refill.’’
Dr. Webb then testified that his ‘‘file illness. No return on call.’’ GX 6, at 9; Tr. 138. Dr. Webb then cited stolen
contains every telephone message see also Tr. 135. As found above, on this medication as an example of when a gap
notation that is given to our office’’ and date, Respondent prescribed to his wife fill would be appropriate. Id. Dr. Webb
that ‘‘the actual notes written by the 12 Xanax and 12 Lorcet. GX 6, at 9; GX also testified that if a doctor sets up a
office staff are kept,’’ and that there are 11, at 6. Notably, the PMP report shows regimen of refills, the patient ‘‘needs to
no notes for this date.22 Id. The closest that Respondent’s wife had refilled a follow that timeline. And so, if they’re
phone message by date are two prescription issued by Dr. Webb on May short on set refills, that’s a problem.’’ Id.
messages on July 21, 2011 from 23, 2013 for 45 Xanax (15 day supply) at 139.
Respondent’s wife; the earlier message on June 21, 2013, and had obtained and On cross-examination, Respondent’s
states ‘‘please call asap’’ and the later filled a new prescription for 45 Xanax counsel asked Dr. Webb about a
message states ‘‘urgent out of med.’’ GE (15 day supply) on June 28, 2013.25 GX statement he wrote in a memo he
5, at 137. Notably, the PMP shows that 11, at 6. After again noting that there prepared following a January 11, 2016
on the same day, Dr. Webb issued to was no record of any call to the clinic meeting with DEA personnel in which
Respondent’s wife a new prescription or its answering service by Respondent he noted that Respondent’s
for 45 alprazolam 2 mg. GE 11, at 12. on this date, Dr. Webb testified that the ‘‘prescriptions consisted of large
The Government also asked Dr. Webb fact that Respondent’s wife was out of quantities of controlled medications
about Respondent’s note dated ‘‘1/16/ her Xanax early would concern him such as Xanax, [h]ydrocodone, [and]
12’’ (prescription No. 24). The note ‘‘[b]ecause it lets me know that she’s Ambien.’’ Tr. 151; see also GX 8. Asked
appears as follows: using more than prescribed and would how he concluded that the prescriptions
Dr. Webb wants Jill to come in . . . ha[ve] me wondering whether we were for large quantities, Dr. Webb
Difficult s transportation need to put her in the hospital, to explained that ‘‘[t]hey appeared to be
Will Rx 10 day supply til monitor her, or [if] there [are] other more than just a day or so’’ and that
1/26/12—Webb aware— issues going on.’’ Tr. 135–36. while ‘‘some were less than 10 . . . my
Xanax 2 mg # 30 An entry in Respondent’s file dated recollection was that more, most of
22 On cross-examination, Dr. Webb acknowledged
July 29, 2013 states: ‘‘Out of Xanax— them were more than 10’’ tablets. Tr.
that the clinic’s answering service would not
buried her mother—funeral—Dr Webb 151.
necessarily page the on-call doctor just for a patient back Thursday Xanax #8’’ and includes Dr. Webb subsequently explained that
‘‘who needs a normal refill.’’ Tr. 156. However, Dr. dosing instructions of ‘‘po TID.’’ GX 6, he had Respondent’s wife ‘‘up to max
Webb maintained that if a patient was out of at 9. As found above, the PMP report doses of all prescriptions . . . that I had
medicine early and in distress, the answering
service would pass this message on to the doctor. shows that Respondent issued his wife her on’’ and that ‘‘[a]nything over was
Id. at 157, 182. He also testified that ‘‘[i]t’s our a potentially large impact.’’ Id. at 152.
policy to call everybody back.’’ Id. at 183. 23 With respect to Respondent’s wife, Dr. Webb
He added that ‘‘[m]aybe the number
Dr. Webb further testified that to the best of his testified that early in his treatment of her, she lost isn’t large, but the potential impact is
recollection, all of the phone call messages ‘‘should a bottle of Xanax which prompted him ‘‘to shorten
be’’ in the patient file for Respondent’s wife. Id. at the leash and give smaller amounts.’’ Id. at 162. large.’’ Id. Asked by Respondent’s
159. Dr. Webb testified that he did not ‘‘find it odd’’ 24 Dr. Webb also identified other instances in counsel if he ‘‘agree[d] that compared to
that there was ‘‘only [in the words of Respondent’s which Respondent made notes in his wife’s file [his] prescribing, the number of
counsel] a handful of . . . call notes in her file.’’ documenting phone calls but Dr. Webb’s file controlled substances prescribed by
Id. at 160. Putting aside that there are 48 such notes contained no record that the call was made to his
in the patient file, Dr. Webb explained that office. See Tr. 129–33,137. These include notations
[Respondent] was relatively small,’’ Dr.
Respondent’s wife ‘‘typically kept pretty good for Feb. 18, 2012 (‘‘called answering service for Dr. Webb answered ‘‘correct,’’ but then
contact. Knowing that I’d be in the daytime, she’s Webb No response—weekend Dr’’); Oct. 5, 2012 added that it was ‘‘[m]ore than I
in the medical field, she knows night time phone (‘‘No return call from weekend doctor’’); Jan. 20, prescribe and moving into . . . above
calls . . . aren’t very productive . . . [b]ecause 2013 (‘‘No return from on call’’ and ‘‘Will contact
you’re unlikely to have your doctor on call.’’ Id. He Dr. Webb in AM’’); Mar. 28, 2013 (‘‘Dr. Webb
my max and serious harm.’’ 26 Id. at 152–
also testified that Respondent’s wife had not aware.’’); Aug. 24, 2013 (‘‘Will update Dr. Webb’’). 53.
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expressed any dissatisfaction with her being able to The record, however, does not establish whether
reach him other than when he was not on call these notations were intended to document that 26 As found above, the evidence shows that
during a weekend. Id. at 184. Respondent or his wife had placed the call and/or Respondent issued a number of prescriptions,
Dr. Webb further testified that his practice has not notified, or intended to notify Dr. Webb. especially for zolpidem, that provided quantities
received complaints about the clinic’s ‘‘on call 25 Respondent’s wife also obtained a refill of the that were for periods considerably longer than two
service’’ and ‘‘the inability to connect with a June 28, 2013 prescription for 45 Xanax on July 10, to three days. Specifically, Respondent authorized
doctor’’ or to ‘‘get a request fulfilled by a doctor.’’ 2013, and a refill of the May 23, 2011 prescription prescriptions on May 20, 2013, for 20 dosage units
Id. at 161. The ALJ specifically found that Dr. (which also was for 45 Xanax) on July 19, 2013. GX (du) of zolpidem (a 20 day supply); on April 1,
Webb’s testimony was credible. R.D. 8. 11, at 6; Tr. 144. Continued
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Dr. Webb testified that he had been Respondent’s wife ‘‘that were not and specific diagnosis. Id. at 188. As for
‘‘very careful in regimenting’’ the noted.’’ Id. at 203. whether the notes contained evidence of
prescriptions he issued for Respondent’s Dr. Webb acknowledged that an examination, Dr. Webb explained
wife based on his ‘‘years of working psychiatrists do not typically prescribe that, ‘‘other than the subjective notes
with her’’ and her visit in either 2002 or opioids such as hydrocodone; he that are listed, no.’’ Id.
2009 (or both years) when ‘‘she went to testified that he had ‘‘written maybe less
than five [prescriptions] in my last 20 The Testimony of the Government’s
Sierra Tucson’’ to be evaluated for
years.’’ Id. at 170–71. Asked why he Expert
Xanax abuse. Tr. 146–47. According to
Dr. Webb, Sierra Tucson did not issued the June 28, 2013 prescription for The Government called R. Andrew
diagnose her as being addicted or 10 tablets of hydrocodone/ Chambers, M.D., to testify as an expert
abusing controlled substances. Id. at acetaminophen 10/650 mg, see GX 11, at in psychiatry, the proper prescribing of
164. While he ‘‘was not aware’’ that she 6, Dr. Webb testified that the controlled substances and their effects
was ‘‘overtly abusing,’’ Dr. Webb prescription was filled ‘‘at Beemon, so on patients, and on addiction; the ALJ
testified that she ‘‘[s]he had been early potentially she had come up from accepted Dr. Chambers as an expert in
. . . sometimes on her prescriptions.’’ Hattiesburg.’’ Tr. 171. Continuing, Dr. these areas. Tr. 246. Dr. Chambers
Id. at 185. Dr. Webb also cited ‘‘the Webb testified: ‘‘[t]hat was right around obtained his B.S. degree in Chemical
severity of her illness’’ as a reason for her mother’s death, mother’s sickness, Physics from Centre College, Danville,
why he generally limited the and maybe she told me she was out of Kentucky in 1991 and his M.D. degree
prescriptions to 15 days.27 Id. her medicine potentially. I’d want to see from the Duke University School of
Dr. Webb subsequently testified that my note if I put it in there.’’ Id. Medicine in 1996. GX 12, at 1.
‘‘[s]ince I did not know about the other Subsequently, Dr. Webb added that Thereafter, he completed a residency in
prescriptions out there, it did not appear Respondent’s wife had undergone a psychiatry at the Yale University School
to be as big of an issue. She was early procedure by a different doctor and of Medicine in 2002 and a fellowship in
a day or two here and there. But, yes, received hydrocodone about nine or ten addiction psychiatry at the Indiana
substance dependence was on the days earlier, but he could not otherwise University (IU) School of Medicine in
radar.’’ Id. at 194. On still further recall the circumstances. Id. at 172. Dr. 2012. Id. From 2002 through 2003, he
questioning by the Government, Dr. Webb then admitted that this served as an Assistant Professor of
Webb testified that if he had known prescription ‘‘certainly could’’ interfere Psychiatry, Division of Substance Abuse
about Respondent’s prescriptions to his with the treatment being provided by at Yale; from 2003 through 2009, he
wife during the 2011–2013 period, this the other doctor. Id. However, he served as an Assistant Professor of
‘‘would have’’ changed his opinion as to explained that Respondent’s wife ‘‘was Psychiatry at the Indiana University
whether she was abusing controlled out of town from her treating . . . School of Medicine; and since 2010, he
substances. Id. at 196–97. On physician, and out of her opiate for pain has been an Associate Professor of
questioning by the ALJ, Dr. Webb relief.’’ Id. at 186. Moreover, this was Psychiatry with Tenure at the IU School
testified that ‘‘[k]nowing what [he] the only instance in which he of Medicine. Id. Also since 2012, Dr.
know[s] today . . . I would have prescribed hydrocodone or any other Chambers has been the Director of the
suggested’’ that she undergo ‘‘in- opioid to her. Id. at 200–01. Fellowship Training Program in
patient’’ treatment to address both ‘‘her Dr. Webb testified that he did not Addiction Psychiatry at the IU School of
primary . . . and secondary have a conversation with Respondent’s Medicine. Id.
problem[s].’’ Id. at 197. wife about Respondent’s prescribing Dr. Chambers has had appointments
Asked about the notes he maintained controlled substances to her until either in the Department of Psychiatry at
for his phone conversations with late 2015 or 2016, after he was contacted various hospitals including the West
Respondent’s wife, which typically by the Diversion Investigator. Id. at 175. Haven (Connecticut) VA Hospital, Yale
were no more than one or two lines, Dr. Dr. Webb testified that he ‘‘believe[d] at New-Haven Hospital, Connecticut
Webb maintained that he and times’’ that Respondent was trying to Mental Health Center, and Indiana
Respondent’s wife ‘‘always had in-depth help his wife and that ‘‘[t]hey have had University Health Hospitals. GX 12, at 2.
conversations’’ and that ‘‘[t]hey were lots of difficulty.’’ Id. at 177. Based on He is board certified in general adult
usually fairly long, like 20, 30, 45 the four phone calls he had with psychiatry and addiction psychiatry. Tr.
minute phone conversations.’’ Id. at Respondent during the 2011 through 227–28. He has also been published in
169. He also testified that his notes met 2013 period and because Respondent the areas of psychiatry and addiction
the standard for documentation. Dr. would ‘‘[t]ypically call if there would be ‘‘on the order of 50 times’’ in peer-
Webb acknowledged, however, that he a crisis,’’ Dr. Webb acknowledged that reviewed journals, published in
is ‘‘not perfect’’ and that there may have Respondent’s wife was often in crisis. multiple textbooks, and made a number
been some phone calls that he had with Id. at 178. of presentations to professional
On subsequent questioning, conferences. Id. at 229–30; GX 12, at 3–
2012, for 24 du of zolpidem (24 days); on March Respondent’s counsel suggested that 7, 11–18.
4, 2012, for 30 zolpidem (30 days); on October 11, just as the other doctors in his practice Dr. Chambers testified that treating
2011, for 20 du of zolpidem (20 days); on July 31, patients with mental illness and
2011, for 12 du (12 days) plus a refill; on June 28,
can appropriately prescribe gap fills to
2011, for 30 du (30 days); on May 6, 2011, for 30 his patients because they can access the addiction is his ‘‘bread and butter
du (30 days); on March 30, 2011, for 30 du (15 patient’s file and see ‘‘abuse issues in work.’’ Tr. 231. He testified that he is
days), and on January 31, 2011, also for 30 du (15 the patient file . . . someone living with ‘‘familiar with and utilize[s] a broad
days). GX 11, at 7, 10–14. He also authorized range of pharmacotherapies for both
the patient can assess that person.’’ Id.
ethrower on DSK3G9T082PROD with NOTICES
prescriptions on July 7, 2013, for 12 du of
alprazolam (6 day supply); on March 28, 2013, for at 196. Dr. Webb took issue with this mental illness and addiction, as well as
14 du of alprazolam (5 days); and on both July 17, suggestion, explaining that ‘‘the psychotherapies for both mental illness
2012 and June 18, 2012, for 20 du of alprazolam (10 difficulty with living with someone is and addiction’’ and that ‘‘the vast
days). GX 11, at 6–7, 11. majority of [his] patients have both
27 Dr. Webb testified that he ‘‘feel[s] that . . .
that you’re not potentially an expert.’’
she’s primarily a psychiatric disorder first, and then Id. mental illness and addiction.’’ Id. at
medication difficulty second, rather than the other Dr. Webb testified that Respondent’s 231–32. He testified that he is familiar
way around.’’ Id. at 165; id. at 194–95. notes did not contain a patient history with the prescribing of controlled
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substances to psychiatric patients, the patient was obtaining the drug ‘‘from a monthly, usually monthly allotments,
risks of controlled substances, and the separate source.’’ Id. and then it starts over.’’ Id. Continuing,
typical practices undertaken by According to Dr. Chambers, when a Dr. Chambers explained that ‘‘the
psychiatrists to mitigate the risks or patient is obtaining a drug from other bottom line is that when the doctor
dangers of the diversion of controlled sources, ‘‘it can create a great deal of writes the prescription and the
substances. Id. He further testified that confusion on the part of the primary pharmacist records it . . . there’s a
he is familiar with the standards for prescriber about the effects or side complete understanding of what’s
prescribing controlled substances in effects of the drug and the mental status expected. There should be no haziness
Mississippi, as well the circumstances of the patient.’’ Id. at 250–51. on the part of the doctor or the
under which a doctor may fail to Continuing, Dr. Chambers testified that pharmacist or the patient . . . about the
conduct himself in a manner that ‘‘there are also synergistic overdose expected rate of consumption . . . from
comports with a legitimate medical risks of being on both doses at the same the start to finish, whether it be a 30-day
purpose or is within the course of time. . . . It’s obviously not the dose supply or a 30-day supply with two
proper professional practice. Id. at 233. that the primary prescriber wants refills.’’ Id. at 257–58.
While Dr. Chambers had never because they would have prescribed Next, the Government questioned Dr.
previously testified in a proceeding that dose if that’s what they wanted.’’ Chambers about the combination of
based on the Mississippi law and the Id. at 251. Dr. Chambers then explained prescriptions/refills that Respondent’s
State Board’s rules, id. at 240, he that ‘‘the same concerns’’ were raised by wife filled on November 28–29, 2011.
testified that he had reviewed the State’s the zolpidem prescription Respondent Id. at 258–59. Specifically, on November
laws and rules. Id. at 236. He further wrote on July 31, 2011 because the refill 28, 2011, she refilled a prescription
testified that the Mississippi provisions his wife obtained on July 7, 2011 of Dr. issued by Dr. Webb for 45 clonazepam
on prescribing controlled substances are Webb’s prescription for 30 days of (15 days) as well as filled a new
‘‘fairly universal.’’ Id. at 237. Dr. zolpidem should have lasted for another prescription issued by Webb for 90
Chambers explained ‘‘that the codes week. Id. at 252. capsules of Adderall. GX 11, at 11. The
around the country are informed by the Dr. Chambers identified several next day, she filled prescriptions for a
medical profession . . . and there are instances in which Dr. Webb’s one-day supply of Diastat Acudial (a
universal, fairly universal ethical prescriptions ‘‘overlapped’’ with those rectal suppository of diazepam) and a
standards, evidence-based standards of Respondent.28 These included the one-day supply (four tablets) of
that are scientific that then inform the zolpidem prescription (for 30 tablets/30 hydrocodone/apap 10/650. Id.
code.’’ Id. at 240. Dr. Chambers days) which Respondent issued on May Dr. Chambers noted that the Diastat
subsequently cited the Patient Record 6, 2011 and the refills obtained on both prescription ‘‘is a bit puzzling because
provisions of the State Board’s Rule 1.4 April 9, 2011 and May 23, 2011 by it’s clear [Respondent’s wife] is taking
as one such standard that is accepted Respondent’s wife of Dr. Webb’s Feb. 3, oral meds and usually [Diastat] [is]
across the medical profession. Id. at 244. 2011 prescription for 60 tablets (a 30- reserved for people who can’t take
Turning to Respondent’s October 11, day supply). Tr. 255. Dr. Chambers [drugs] oral[ly].’’ Id. He then testified
2011 prescription for 20 zolpidem (No. testified that while ‘‘[t]he one before is that ‘‘it’s a very high risk and potentially
15 above), Dr. Chambers noted that the a relatively minor overlap[,] about one lethal combination one day after
refill obtained by Respondent’s wife on or two days, which is fairly receiving a 15-day supply of’’
September 19 was for 30 days and insignificant, . . . the secondary overlap clonazepam and ‘‘also a stimulant’’ from
should have lasted until October 19. Id. is more significant.’’ Id. The Dr. Webb. Id. Dr. Chambers then
at 249. Dr. Chambers testified that prescriptions presented the same testified that ‘‘[t]he combination of an
Respondent’s October 11 prescription opioid and a benzodiazepine is causing
concerns of danger to the patient and
was ‘‘a problem.’’ Id. As to why, Dr. an unprecedented epidemic of death in
confusion for the doctor. Id.
Chambers explained: ‘‘[t]his is a Dr. Chambers subsequently testified the United States . . . because when the
prescription for a controlled substance that it does not matter whether Dr. two drugs are together they
that is coming from a separate source Webb’s prescriptions were new synergistically suppress consciousness
that’s occurring on top of a prescription and breathing and the central nervous
prescriptions or refills because the
from the primary psychiatrist, and the system.’’ Id.
prescription ‘‘is essentially an
combination of these kinds of controlled Addressing the prescriptions which
instruction both to the pharmacist and Respondent issued on both June 18 and
substances could have serious
the patient for the daily dosing and the July 17, 2012, for 20 du of alprazolam
consequences.’’ Id. Dr. Chambers further
number of days that the patient should 2 mg (both being for a 10-day supply),29
explained that ‘‘Ambien and other
follow that dosing.’’ Id. at 257. Dr. each of which was filled on the date of
benzoate medications have central
Chambers then testified that ‘‘[r]efills is issuance, as well as the refill she
nervous system effects that can cause
[sic] just a way to communicate to the obtained on July 5, 2012 of Dr. Webb’s
oversedation, memory disturbances,
patient and the pharmacist . . . that prescription for 45 du (15 days), Dr.
and, if taken in combination with other
you’re allotting the schedule out in Chambers testified that the prescriptions
drugs, especially opioids, death.’’ Id. at
250. While Dr. Chambers testified that 28 This particular overlap involved Respondent’s
had different dosing instructions and
10 milligrams (the dose prescribed by zolpidem prescription of March 30, 2011 for 30 overlapped. Id. at 262–63. Dr. Chambers
Respondent) ‘‘is not the maximum dose tablets (a 15-day supply) (Rx No. 4 above) and an then testified that ‘‘we don’t know what
of Ambien that can be prescribed,’’ a April 9 dispensing of a zolpidem prescription. Tr. she was actually taking, but if she was
patient obtaining the drug from another 254–55. Dr. Chambers testified that ‘‘on April 9, actually taking the dose per both
ethrower on DSK3G9T082PROD with NOTICES
2011, Dr. Webb issue[d] the same med for a 30-day
source ‘‘would be of concern.’’ Id. Dr. supply. So now you have an example of Webb doctor’s directions, she would be taking
Chambers explained that the concern unknowingly overlapping a controlled substance 10 milligrams of [alprazolam] a day . . .
would be driven by the ‘‘the size of the with Dr. Alexander that happened on 3–30.’’ Id. at which would render me unconscious.’’
dose, the nature of the drug,’’ as well as 255. The PMP report shows, however, that the latter Id. at 263. As another example of
event did not involve the issuance of a new
‘‘the fact the primary physician who is prescriptions but a refill of Dr. Webb’s February 3, Respondent’s issuance of an alprazolam
prescribing the drug . . . would not 2011 prescription. See GE 11, at 13. Nonetheless,
. . . necessarily [be] aware’’ that the Respondent’s prescription still created an overlap. 29 See prescription Nos.31 and 32 above.
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prescription which resulted in ‘‘nearly a prescription, Respondent had also patient file with the PMP data, ‘‘about
week of overlap of the same dose by two issued her a prescription for 20 40 percent of the prescriptions’’ had ‘‘no
different doctors’’ and raised ‘‘the same hydrocodone/apap 10/650, which she corresponding note at all. There’s no
concern,’’ Dr. Chambers identified filled that day. Id. at 269–70. Dr. data. There’s no diagnosis, no detailing
Respondent’s March 28, 2013 Chambers noted that this hydrocodone of what was prescribed.’’ Id. He also
prescription for 14 dosage units (three prescription was ‘‘a higher dose than observed that ‘‘there are instances where
tablets a day), which overlapped with a what Dr. Webb did.’’ Id. at 273. He the dosing or type of the drug is left out
refill his wife obtained on March 19, explained that ‘‘there’s a combination of of the record.’’ Id. at 278.
2013 for 45 tablets (also three tablets a multiple overlaps of multiple classes of Dr. Chambers identified Respondent’s
day).30 Id. at 266. addictive substances that can produce entry dated January 16, 2012
Addressing Respondent’s July 7, 2013 overdose and severe psychiatric (Prescription No. 24) as one such
prescriptions (Nos. 46 and 47) for 12 du disturbances from two different example. Tr. 278. As found above, on
of hydrocodone/apap 10/650 (two-day physicians who are apparently in no this date, Respondent prescribed 30
supply) and 12 alprazolam 2 mg (six- communication.’’ Id. Continuing, he alprazolam 2 mg ‘‘to be taken as
day supply), Dr. Chambers characterized explained that ‘‘in [his] experience, directed’’ and wrote in the note: ‘‘Dr.
the latter prescription as ‘‘remarkable,’’ when you see all three of those [classes Webb wants Jill to come in. Difficult
explaining that ‘‘it’s prescribed at the of] drugs represented and you have [with] transportation—will Rx 10 day
same time [Respondent] also prescribed multiple physicians contributing to it supply till 1/26/12—Webb aware—
hydrocodone, an opioid medication, . . . that indicates a patient who is in Xanax 2 mg’’ with a dosing instruction
also on the same day, again introducing serious trouble iatrogenically . . . of ‘‘po TID.’’ GE 6, at 2.
the risk of a potentially lethal meaning harmed being caused through Dr. Chambers testified that ‘‘this note
overdose.’’ Id. at 268–69. Dr. Chambers medical practice.’’ Id. at 274. does not have a diagnosis. It doesn’t
noted that Respondent’s prescribing was Asked if he had ‘‘reach[ed] a have an examination to justify . . . why
‘‘also occurring in the context of’’ an conclusion’’ as to whether Respondent’s that prescription happened at that dose
amphetamine (Adderall XR) prescriptions were issued ‘‘within the . . . was he aware of what the
prescription for 30 days issued by Dr. usual course of professional conduct,’’ prescription was from another doctor?
Webb ‘‘six days’’ earlier. Id. at 269. Dr. Dr. Chambers testified: Was he continuing? Was there any plan
Chambers then testified that if I did. It is not [the] usual course of clinical to taper it?’’ Tr. 279. Dr. Chambers
Respondent’s wife was ‘‘taking as conduct for someone with mental illness or added that ‘‘he’s kind of writing as if the
prescribed, she’s doing what street someone without mental illness to be reason he’s doing it is because the
people call a speedball, which is prescribed these combinations of drugs and patient can’t get to Dr. Webb, and he’s
essentially an amphetamine/opioid to have these combinations being prescribed documenting that Webb is aware . . .
combination with a . . . benzodiazepine by different individuals who—one of who— but in review of Webb’s chart, there no
garnish.’’ Id. Dr. Chambers also noted where there’s not communication or
awareness that it’s happening. So it’s not indication that Webb was ever aware
that on July 1, 2013, the same day that only not usual clinical practice, but the that this kind of stuff was going on.’’ Id.
Respondent’s wife filled the Adderall 31 reason it’s not usual is because it’s dangerous When then asked if a 10-day supply is
for patients and harmful. So it’s actually not ‘‘unusual for . . . a gap fill,’’ Dr.
30 Other examples of overlapping prescriptions
only is it not usual, it’s essentially Chambers answered:
involved Respondent’s May 10 and May 13, 2013 malpractice.
prescriptions (Nos. 43 and 44 above) for 14 and 12 . . . I think it’s unusual for one doctor to be
dosage units of alprazolam 2 mg, which overlapped Id. at 275. On further questioning, Dr. gap filling another regardless of what the
with the refill his wife obtained on April 30, 2013 Chambers testified that the duration is, especially when there’s no
of Dr. Webb’s prescriptions for 45 du (15 days) of Respondent’s prescribing was not knowledge that that’s happening. So any
alprazolam 2 mg. Tr. 267. According to Dr. duration is odd, I think. I guess the longer the
Chambers, even Respondent’s May 10 and May 13 ‘‘legitimate medical practice’’ and the
prescriptions were ‘‘non-therapeutic.’’ number of days the more concerning it is
prescriptions overlapped, and that on May 13,
because you’re dispensing bigger doses. I
‘‘what you actually have here is a triple Id. Dr. Chambers further testified that mean, she’s got 30 tabs. That’s quite a bit.
compounding of the dosing based on the ‘‘[b]ased on the entirety of the evidence
disposition dates and the way the drugs were Id. at 280.
instructed to be taken.’’ Id. Dr. Chambers then [he] reviewed,’’ Respondent’s
explained that ‘‘that is a very dangerous dose that prescribing did not comply with either Addressing Respondent’s note of
would normally never be prescribed outside an the Controlled Substances Act or the February 18, 2012, Dr. Chambers
intensive care unit.’’ Id. at 267–68. standards of the Mississippi acknowledged that it contained ‘‘a little
Another such example is Respondent’s July 29,
Administrative Code, including the bit more of what you could call a
2013 alprazolam prescription which provided eight clinical assessment’’ in that Respondent
tablets (TID). Dr. Chambers testified that State’s requirements for patient records.
Respondent’s prescription provided a dosing Id. at 276, 278. described his wife’s symptoms. Id. at
instruction of eight milligrams a day, Tr. 271, which Addressing the patient file 281. Dr. Chambers observed, however,
is supported by the PMP report which lists the
Respondent maintained on his wife, Dr. that the note did not indicate ‘‘how
prescription as providing a two-day supply. GE 11, many he prescribe[d].’’ Id. As for
at 5. However, the dosing instruction on the actual Chambers testified that ‘‘there is a
prescription was TID, or one tablet, three times a paucity of data to support the diagnosis Respondent’s statement that his wife
day. GX 39, at 1–2. Nonetheless, the prescription or the prescription . . . that the note is was ‘‘[o]ut of her Xanax for . . . 10
overlapped with the refill Respondent’s wife
built around. There’s a lack of physical days’’ and ‘‘[o]ut of her Ambien for a
obtained on July 19, 2013 for Dr. Webb’s week,’’ GE 6, at 3, Dr. Chambers
prescription for 45 tablets (15 days), and on July 31, or mental status exam that normally
2013, she obtained a new prescription from Dr. would be in a note like this to justify testified:
ethrower on DSK3G9T082PROD with NOTICES
Webb for 45 tablets (15 days). GE 11, at 5. However, and direct the use of controlled It’s not clear exactly what that means, but
even if Respondent’s prescription only had a dosing
instruction of 3 tablets a day, if she took the
substances.’’ Id. at 277. Dr. Chambers I take it to mean that he is prescribing
medications as prescribed by both Dr. Webb and further observed that in comparing the because she’s been out. And so, first of all,
Respondent for the period in which the why is she out? Is it because she’s using it
prescriptions overlapped, she would have taken six including attention deficit disorder [and] too rapidly? It’s just not clear. But he is
tablets a day or 12 milligrams. Tr. 272. narcolepsy . . . [i]t also has significant street value’’ filling the gap with an unclear amount and
31 Dr. Chambers explained that while Adderall is and is ‘‘basically a cousin of methamphetamine.’’ then suggesting by my read . . . [that] he’s
‘‘used for a number of clinical indications, Tr. 270. documenting he’s contacting Dr. Webb,
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informing them of this gap fill, the best I a ‘‘potentially life threatening where’’ a primary care doctor is
could tell. withdrawal,’’ Dr. Chambers testified that prescribing to a patient who is also
But what’s beginning to emerge here in this Respondent’s ‘‘leaving for the weekend being treated by a psychiatrist. Id. at
note and does come in later is that he is and leaving her with more medication 291. Dr. Chambers testified that in his
becoming—Dr. Alexander is becoming aware
that she’s running out and I assume
unsupervised’’ is ‘‘of grave concern.’’ Id. ‘‘own practice,’’ if a new patient is
prematurely because when you look at the
Dr. Chambers offered similar receiving psychoactive medication from
PDMP data from Dr. Webb, Dr. Webb is not testimony regarding Respondent’s May another physician, he ‘‘will call them to
creating gaps. . . . He is not leaving her 13, 2012 note. See id. 288 (‘‘So again stop that because you can’t have two
hanging with no medication a whole lot of he’s now creating a track record in his chefs in the kitchen.’’ Id. Dr. Chambers
times. . . . notation that the patient is then explained:
essentially out of control and abusing
Id. at 281–82. If you have two chefs in the kitchen, this
Xanax and injuring herself. His response is the kind of stuff that can happen as you
Continuing on to the next note (March
is to attempt to prescribe a combo of get chaos and harm and polypharmacy and
12, 2012), Dr. Chambers testified that
Xanax and Ambien . . . .). no one understanding what is the illness
this was ‘‘the first time I’ve seen a Respondent’s February 27, 2013 note
diagnosis in the chart.’’ Id at 282. He versus what is [sic] the side effects of the
states that his wife was ‘‘[a]nxious about medications, and it can lead to escalation of
then explained that ‘‘delusional marital situation.’’ As to the note, Dr. mental illness, addiction, and even death.
parasitosis is a non-specific psychotic Chambers testified that ‘‘it’s not
symptom,’’ and that while it can be Id.
considered a normal medical practice’’
caused by ‘‘a primary delusional illness Finally, on direct examination, Dr.
to treat family members and ‘‘that when
. . . more commonly [it] is a sign of Chambers testified that ‘‘[a] competent
it comes to controlled substances it’s a
severe drug withdrawal’’ including psychiatrist would document [in the
whole different ball game’’ when the
‘‘benzodiazepine . . . or even opiate patient’s chart] if they knew that
prescription is ‘‘for a family
withdrawal.’’ Id. at 282–83. Dr. another doctor was prescribing
member.’’ 33 Id. at 286–87.
Chambers testified that the behavior Dr. Chambers offered similar controlled substances that were
documented in the chart (jerking, testimony with respect to Respondent’s overlapping or representing a threat.’’
twitching, and delusional parasitosis) March 28, 2012 note, which states: Id. at 298. A competent psychiatrist
‘‘suggests extreme discomfort’’ and ‘‘Marital/physical/mental stress sky would also ‘‘take action to stop it or to
‘‘could suggest vital sign changes [and] high—Marriage workshop in Montana stop their practice.’’ Id.
impending catastrophic just accentuated’’ and ‘‘Out of Xanax On cross-examination, Dr. Chambers
withdrawal.’’ 32 Id. at 283. Dr. Chambers early—rebound anxiety—self harm.’’ GE agreed that ‘‘[i]n many cases,’’
observed, however, that Respondent did 6, at 7. Dr. Chambers testified that he Respondent prescribed the same drugs
not obtain his wife’s blood pressure and found that entry was ‘‘interesting to his wife as were prescribed by Dr.
pulse or perform a mental status exam. because the marital, physical and Webb. Id. at 307. Dr. Chambers also
Id. at 284. mental stress . . . involves him, and acknowledged that he had not examined
Respondent’s note of July 14, 2012 he’s prescribing this medication to Respondent’s wife and that ‘‘someone
documents a prescription for 20 somebody who is in acute distress that’s who sees her in person’’ is in a better
alprazolam 2 mg, a ‘‘6 day supply,’’ and ultimately related to the medication.’’ position to evaluate her than a person
states, among other things, that his wife Tr. 287. Dr. Chambers also testified that who only reads her chart. Id. at 310.
had been off medications for four Respondent’s notation of a prescription After accusing Dr. Chambers of making
months and had been staying with her for ‘‘Xanax # 14’’ ‘‘is incomplete’’ a ‘‘serious allegation []’’ when he
mother-in-law. GE 6, at 4. Regarding the because it does not state ‘‘the dose’’ or testified that Respondent’s ‘‘wife was
note, Dr. Chambers testified that ‘‘I don’t the patient’s instructions. Id. going through withdrawal’’ and which
know that she’s even around when this Subsequently, the Government asked ‘‘could be interpreted as she was
prescription happens. It’s just not clear Dr. Chambers to address ‘‘the situation abusing controlled substances,’’
where . . . she [is]. There’s no evidence Respondent’s counsel asked Dr.
that she’s even in front of him on July 33 Dr. Chambers also testified that there is a Chambers whether he or Dr. Webb was
14, and that’s also a concern.’’ Tr. 285. prohibition against a psychiatrist treating a spouse in a better position to make that
Dr. Chambers observed that, in the for two reasons. Tr. 293. According to Dr. determination. Id. Dr. Chambers
Chambers, the first reason is that the practice of answered that Dr. Webb was, but noted
October 5, 2012 note (‘‘[s]he is out 2 psychiatry requires ‘‘getting inside the mind of the
days early’’), Respondent documented patient’’ and ‘‘is a very invasive process’’ and that that he ‘‘was looking at data from’’
that his wife was ‘‘actually overusing ‘‘romantic and sexual . . . motives will Respondent and ‘‘had the ability to look
the prescription that Dr. Webb ha[d] contaminate the clarity of the practitioner. . . . A at two charts.’’ Id. at 310–11; see also id.
psychiatrist who is falling in love with his patient at 319 (Q. You don’t know if she was
provided her. So he’s documenting will begin to take actions that benefit . . . him or
evidence that she’s demonstrating abuse her rather than the patient.’’ Id. at 293–94. The exhibiting physical characteristics that
of these drugs and then he . . . say[s], second reason is that ‘‘there is an implicit power correspond to drug addiction. A. I can
‘[s]he’s lacerating and cutting herself, differential’’ between ‘‘a psychiatrist and a patient’’ only go on what I’ve read.’’).
and that ‘‘to exploit that power differential on a Asked by Respondent’s counsel if
severe anxiety and depression, arms patient who’s vulnerable with mental illness
excoriated. No return call from a through romantic or erotic counter-transference is ‘‘providing gap fills necessarily mean[s]
weekend doctor. I have to leave to work regarded fairly much as a cardinal sin in there’s a drug abuse issue,’’ Dr.
out of town.’’’ Id. After criticizing psychiatry.’’ Id. at 294. Continuing, Dr. Chambers Chambers answered that ‘‘[i]t can
testified that in ‘‘many cases, these are patients who mean.’’ Id. at 311. After Respondent’s
Respondent for ‘‘abandoning the
ethrower on DSK3G9T082PROD with NOTICES
have already suffered physical and sexual abuse
patient,’’ who was self-mutilating and in previously’’ and are ‘‘susceptible’’ to more abuse counsel asserted that ‘‘[i]t can . . . it’s
‘‘later on.’’ Thus, if a ‘‘psychiatrist engages in a not definitive,’’ Dr. Chambers answered:
32 Dr. Chambers further criticized Respondent sexual relationship with a patient . . . the very real ‘‘I don’t see gap filling happen[ing] in
because ‘‘the standard of care for the treatment of danger is [that] there could . . . be a revictimization this case. There is no gap filling going
acute withdrawal’’ requires as part of ‘‘the basic . . . of the patient.’’ Id. at 295.
response to get a blood pressure or a pulse,’’ and Dr. Chambers also testified, however, that ‘‘[t]his
on. There’s overlaying.’’ Id. After
‘‘[i]f these measures aren’t taken, people die standard is actually not true for other branches of Respondent’s counsel asserted that Dr.
routinely.’’ Id. at 284. medicine’’ such as family practice. Id. at 294. Webb ‘‘ha[d] categorized the same
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evidence . . . as gap filling,’’ Dr. 1500 doses of controlled substance in Dr. Chambers testified that he did not
Chambers testified: ‘‘[i]t would surprise one year . . . be more responsible for see any notation in Dr. Webb’s patient
me if he’s seen the same evidence . . . that versus the individual who file that he was aware that Respondent’s
It would surprise me because that’s not prescribed 200 doses of controlled wife ‘‘was running out early and that
what I see in the data.’’ 34 Id. substances a year?’’ Id. at 320. Dr. [Dr. Webb] was filling earlier.’’ Id. at
Assuming facts not in evidence, Chambers answered: ‘‘but what we’re 328. Asked if he would be surprised that
Respondent’s counsel then asked Dr. seeing here, that’s not what happened. Dr. Webb testified that he was aware
Chambers if ‘‘somebody who sees [the We’re seeing two people prescribing [to] that Respondent’s wife was getting early
patient] regularly five or six times a one person.’’ Id. Continuing, Dr. refills, Dr. Chambers answered that he
week as a patient 35 or someone who’s Chambers explained that ‘‘it could be a ‘‘would be’’ and explained that PMP
paid to review her patient file’’ is ‘‘in a totally different picture if . . . only Dr. ‘‘data doesn’t really reflect [that] there
better position’’ to diagnose a patient as Webb’’ was prescribing but he had ‘‘no was a great deal of early refill activity
a substance abuser. Id. While Dr. idea what that whole trajectory would going on from Webb by himself,’’ and
Chambers agreed that a psychiatrist who look like’’ and whether ‘‘[s]he might be while ‘‘[t]here may be a few instances of
saw the patient is in a better position to more stable.’’ Id. Dr. Chambers held to it, [it was] not very frequent.’’ Id. at 329.
evaluate a patient, in response to the his earlier testimony that having two Dr. Chambers explained that Dr. Webb’s
question of whether ‘‘it would not physicians prescribe to Respondent’s ‘‘prescribing shows a relative lack of
surprise [him] that Dr. Webb concluded wife was ‘‘creating chaos that could overlap of his . . . prescriptions for
that [Respondent’s wife] didn’t have a actually cause the treatment to get even controlled substances. And when I say
substance abuse issue,’’ Dr. Chambers worse’’ and ‘‘to evolve in the wrong ‘relative lack,’ I mean maybe a day or
explained that ‘‘[i]t wouldn’t’’ because direction.’’ Id. at 321. two,’’ which is ‘‘not really significant
Dr. Webb is ‘‘not an addiction After Dr. Chambers acknowledged because people have got to go to the
psychiatrist.’’ Id. at 312–13. When that ‘‘Dr. Webb prescribed a significant pharmacy.’’ Id.
subsequently asked by Respondent’s amount of controlled substances, Respondent’s counsel then questioned
counsel if he ‘‘disagree[d] . . . with the Respondent’s counsel asked him if he Dr. Chambers about the alprazolam
doctor that’s seen her for 15 years five ‘‘was aware that in 2011 [Respondent] prescriptions which were issued by Dr.
to six times a week with his diagnosis,’’ only prescribed 128 dosage units to Webb and filled by Respondent’s wife
Dr. Chambers answered that he did.36 Id. her?’’ 37 Id. at 321. After answering on May 14, June 10, July 4, July 21,
See also id. at 319 (Q. ‘‘So it’s better to ‘‘yes,’’ Dr, Chambers added that ‘‘Dr. August 4, and August 16, 2011, and
leave it to the psychiatrist who sees her Alexander prescribed about 20 percent whether the overlap between the
five to six times a week over a 15-year of the controlled prescriptions and Dr. prescriptions concerned him. Id. at 331.
period to make that decision.’’ A. ‘‘Well, Webb about 70 percent on average over Dr. Chambers acknowledged that the
not always. Not always, right.’’). three years. Id. June 10, 2011 filling created an overlap
Dr. Chambers acknowledged that Following questions about the relative of three/four days and was ‘‘on the
Respondent’s and Dr. Webb’s dosing of amounts of controlled substances margin’’ as did the August 16, 2011
alprazolam were ‘‘often in the same prescribed by Dr. Webb and filling. Id. at 331–32. Dr. Chambers also
ballpark.’’ Id. at 317. However, Dr. Respondent, Respondent’s counsel acknowledged that the July 21
Chambers explained that, while ‘‘taken asked Dr. Chambers if Respondent’s prescription ‘‘would concern me.’’ Id. at
separately both of the [doctors’] dose wife had ‘‘a substance abuse issue, . . . 332. Dr. Chambers offered similar
ranges might be acceptable, . . . if isn’t it logical that Dr. Webb would have testimony with respect to several
they’re . . . overlapping, that’s when as much, if not more, responsibility for alprazolam prescriptions that
you get into the danger.’’ Id. Dr. that?’’ Id. at 322. Dr. Chambers Respondent’s wife filled on February 14
Chambers acknowledged, however, that disagreed, explaining: ‘‘not necessarily and 23, 2012, finding that the latter fill
‘‘[n]o one’’ knows how much of the drug because Dr. Webb is not aware that . . . was ‘‘five days early’’ and ‘‘[t]hat’s when
Respondent’s wife was taking. Id. at two doctors [were] putting drugs into the red flag begins to go up.’’ Id. at 332–
318. one person.’’ Id. While Dr. Chambers 33. Of note, however, several of these
Respondent’s counsel then asked Dr. acknowledged that there is evidence in fills were actually refills of prescriptions
Chambers if ‘‘you’re saying that she was Dr. Webb’s chart ‘‘that he had written much earlier, see Tr. 333, and in
addicted or . . . was abusing controlled discussions’’ with Respondent about his any event, to the extent that Dr. Webb
substances . . . wouldn’t . . . the wife, he found ‘‘no evidence at all . . . should have been aware that a previous
individual who prescribed her over that [Dr. Webb] knew that [Respondent] prescription he issued had provided
was also prescribing controlled sufficient refills such that there was no
34 As found above, while Dr. Webb testified that
substances.’’ Id. reason to issue a new prescription on a
gap filling ‘‘means a prescription that is used to get particular date, Dr. Webb is not the
you to the next authorized refill’’ and gave various
examples, including ‘‘something that would speak 37 This, too, is a misstatement of the evidence.
respondent in this proceeding.38
to a need for more medication,’’ his testimony was Rather, the evidence shows that during 2011, Likewise, while Respondent’s counsel
clear that with the exception of a prescription Respondent issued prescriptions for 206 dosage raised a series of questions as to
issued by ‘‘one of my on call doctors,’’ a gap fill units of zolpidem, 151 dosage units of whether the pharmacies that filled the
by another provider was not appropriate. Tr. 138– hydrocodone, 28 dosage units of clonazepam, 28
39, 192, 195–96. dosage units of alprazolam, and one kit of Diastat
prescriptions should not have dispensed
35 Dr. Webb’s patient file contains progress notes acudial. various early refills, id. at 334–336, the
for 10 visits by Respondent’s wife during the years Respondent’s counsel also misstated the evidence
ethrower on DSK3G9T082PROD with NOTICES
2011 through 2013. GX 5, at 42–53. Thus, contrary when he asked Dr. Chambers if he was ‘‘aware [that] 38 Specifically, Dr. Webb’s February 3, 2011
to the premise of the question, there is no evidence in 2012 Dr. Webb prescribed approximately 1720 alprazolam prescription, which was for a 30-day
that Dr. Webb saw Respondent’s wife ‘‘five or six dosage units of controlled substances versus the 132 supply, see GE 5, at 111, authorized five refills, and
times a week as a patient.’’ Tr. 311. that [Respondent] prescribed] to’’ is wife. Tr. 321. Respondent’s wife obtained refills which were
36 While the ALJ admitted only Dr. Webb’s chart Rather, the evidence shows that Respondent authorized by this prescription on June 10 and July
for Respondent’s wife during the years 2011 prescribed 112 du of zolpidem, 94 du of 4, 2011. See GE 11, at 12. However, on May 2, 2011,
through 2013, Tr. 74, here again, there is no alprazolam, 20 du of diazepam, 30 du of Dr. Webb issued Respondent’s wife an additional
evidence in the entire record that Dr. Webb saw hydrocodone, 15 du of Adderall, as well as prescription for 30 days of alprazolam. GE 11, at 13;
Respondent’s wife five to six times a week. Hycodan cough syrup. GE 5, at 111.
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ALJ properly ruled that the conduct of like actively seizing and not conscious.’’ testified that ‘‘there was pain medicines
the pharmacies is irrelevant. Id. at 336. Id. [sic] then,’’ he added that ‘‘in general,
Respondent’s counsel subsequently the majority of the medicine were
Respondent’s Testimony at the State
asked Dr. Chambers if the hydrocodone Xanax, two milligrams, three days’
Board Hearing Regarding His Reasons
prescription which Dr. Webb issued on supply were common.’’ Id. at 59–60.
for Issuing the Prescriptions
June 28, 2013 concerned him. Id. at 338. Respondent then maintained that his
Dr. Chambers testified that he did ‘‘have At the January 2014 Board hearing wife ‘‘would get in with Dr. Webb the
a concern in that [Dr. Webb] is which resulted in the suspension of his following Monday morning, and he will
concurrently prescribing two other medical license, Respondent was asked refill everything.’’ Id. He further
benzodiazepines at the same time,’’ to explain why he issued the testified that ‘‘I think the record reflects
these being temazepam and alprazolam. prescriptions. GE 14, at 56. Respondent that I filled in in times where I just
Id. at 338–39. Dr. Chambers also explained that his wife has a ‘‘fragile’’ didn’t think I had no other choice. I
acknowledged that the Adderall psychiatric condition, which ‘‘became didn’t know what to do.’’ Id.
prescription issued by Dr. Webb on this even more fragile’’ in ‘‘about November Continuing, Respondent testified that
date created ‘‘a speedball.’’ Id. at 339. or December of last year.’’ Id. He ‘‘I have never denied that I called things
Continuing, Dr. Chambers testified: testified that while ‘‘[t]here were times in for Jill . . . I always thought that if
[that his wife] would run out of called to task for it, the context would
So that is a concern. When you step back medicine and not decompensate . . .
from the record and you look at where—the
not speak for itself but would be
there was never a decompensation evidenced by number, etcetera.’’ Id. at
opiate is the main threat actually, and when
you look at the predominance of opiate where she had her medicines.’’ Id. at 57. 61. Respondent then testified that he
prescribing over three years, the majority of Respondent testified that ‘‘[w]ith [his] was monitored by the Board and that
it came from Dr. Alexander. So the number history, there was no way to call anyone ‘‘[t]here’s not been any diversion. There
of opiates that were prescribed were quite else’’ and ask them to prescribe Xanax has not been any suggestion of that and,
rare. The incidents you’re putting in there— to his wife because anyone he knows fortunately, got a lot of urine tests that
you’re pointing out is a concern, but . . . the would ‘‘be immediately suspicious that were negative. I only ever did what I did
relative frequency of which Webb did that it was for me.’’ Id. at 58. According to when I perceived I had no other options
was much, much, much lower than when Dr. Respondent, ‘‘as regards my wife
Alexander [did] it, and that’s interesting
having exhausted anything else that I
herself, I would phone in usually a two- knew to do.’’ Id.
because, as you pointed out, Dr. Webb is
or three-day stop gap supply of Asked about the December 2012
prescribing . . . three or four times more
number of prescriptions. So it’s a matter of medicines. And if you’ll look at the Adderall prescription, Respondent
degree as well. numbers dispensed, it’s usually 12, stated that he did not ‘‘recall ever
which would be a three-day supply for’’ writing’’ the prescription and that his
Id. at 340. her. Id. wife ‘‘was in the hospital in Hattiesburg
Asked if it is within the usual course Continuing, Respondent testified that at the time.’’ Id. at 62. Continuing,
of professional practice for a ‘‘[w]e tried to . . . contact [Dr.] Webb, Respondent stated that ‘‘that one
psychiatrist to prescribe an opiate, Dr. but . . . you can’t get him at night, on prescription doesn’t seem to fit for me.
Chambers testified that a psychiatrist weekends, and I don’t blame him. And I don’t think that’s mine, but I would be
‘‘may treat pain on occasion.’’ Id. at 341. as he always tells [my wife], this is a glad if somebody had a copy of it to look
While Dr. Chambers then testified that matter that she shouldn’t be running out at it.’’ Id. at 62–63. The prescription is,
he was surprised that Dr. Webb had prematurely.’’ Id. Respondent however, in the record of this
testified that that he had written the maintained that ‘‘[t]his happened . . . proceeding. GE 18, at 102. It shows
June 28, 2013 hydrocodone prescription in December, in January, in February. I Respondent as the prescriber and
knowing that another physician was don’t think it happened in April or Respondent offered no testimony in this
prescribing the drug to Respondent’s May.’’ Id. He further asserted that ‘‘[i]t proceeding disputing that he issued it.
wife and did so without consulting that was sporadic’’ and ‘‘was always for a Id.
physician, when Respondent’s counsel confined number of pills, a small Respondent also told the Board that
asked Dr. Chambers if this called into amount, that bridged her gap between his prescribing was ‘‘not a matter of
question Dr. Webb’s treatment of her, obviously when she was in crisis and judgment’’ but ‘‘a matter of heart.’’ GE
the ALJ properly sustained the didn’t have any medicine.’’ Id. 14, at 63. He further told the Board that:
Government’s objection. Id. at 341–42. Respondent also testified that ‘‘we’ve
Addressing the prescription for got a baby here,’’ ‘‘I may be working out I never did anything that I didn’t think at
Diastat Acudial, a rectal suppository the moment . . . was necessary, and I think
of town,’’ and ‘‘I’ve got to do something if you look at the record you can see that.
form of diazepam, Dr. Chambers to calm this situation down.’’ Id. There can be no more. There can be no more.
testified that while Dr. Webb’s file Respondent added that he ‘‘felt as if [he] You know, if I have to call 911 every time,
shows that Respondent’s wife suffers was in an emergency situation.’’ Id. then I am Jill’s husband. I am not—I was
from seizures, he did not see how Apparently referring to the never her doctor. I stopped gapped, but I
administering Diastat would ‘‘be prescriptions he issued for can’t even do that anymore. I mean, I know
consistent with treating someone who hydrocodone, Respondent testified that that is a matter of fact going forward.
was having a seizure.’’ Id. at 345. While ‘‘[w]hen that changes—there were two Id. at 63–64.
Dr. Chambers testified that Valium occasions in general’’ when he ‘‘called During cross-examination at the Board
(diazepam) and benzodiazepines ‘‘can in.’’ Id. Respondent then related that a proceeding, Respondent admitted that
be used to treat seizure disorder[s],’’ he plastic surgeon had drained an abscess he did not disclose that he had been
ethrower on DSK3G9T082PROD with NOTICES
added that these drugs ‘‘can also cause in his wife’s thigh and testified that he issuing the prescriptions until he was
seizure disorders.’’ Id. at 346. Dr. ‘‘noticed that there was one prescription asked by the Board. Id. at 64–65. He
Chambers subsequently testified that a for Lorcet then for a few, and it further asserted that he did not ‘‘come
rectal suppository might be used ‘‘to happened again in July of last year’’ up with [his wife’s] regimen,’’ that he
treat a seizure disorder if someone can’t when his wife’s mother died and his ‘‘didn’t change her regime,’’ and that he
take [the drug] orally, meaning [the wife ‘‘had a seizure [and] fell,’’ suffering only ‘‘mirrored what her treating
patient] would be in status epilepticus, various injuries. Id. While Respondent psychiatrist had done.’’ Id. at 65.
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However, after a Board member 81. Respondent subsequently testified Respondent’s wife testified that she is
identified multiple hydrocodone and that ‘‘no, I didn’t do it every time. I have known by various names including
Xanax prescriptions that he issued in had the discussion with him.’’ Id. at 81. Mona Jill Graham Alexander, Mona Jill
July 2013 and asked if he thought Respondent testified that when he Graham, Mona Jill G. Alexander, and Jill
‘‘that’s wise,’’ Respondent stated that ‘‘I would call Dr. Webb’s answering Alexander. Tr. 357–58. She testified that
have to alter what I said. She also has service, he would ‘‘ask [ ] for a call back she has been a patient of Dr. Webb for
a treating neurologist’’ (Dr. Bell) who from Dr. Webb or the doctor on call.’’ Id. 16 years and she would usually see Dr.
‘‘also does musculoskeletal medicine’’ at 84. When asked if he Webb three times a year and speak on
and that when his wife ‘‘had a seizure’’ ‘‘communicate[d] to the answering the phone two to three times a month
she saw the neurologist. Id. at 66. service the gravity of the situation,’’ he for 30 minutes to one hour. Id. at 359.
Respondent then explained that admitted that he did not. Id. at 85. He Respondent’s wife testified that
‘‘[w]hen I say psychiatrist, that’s what then explained that ‘‘I think I during the 2011 through 2013 time
Dr. Bell had given her for pain, and she communicated that it was a medicine period, she ‘‘would tell’’ Dr. Webb that
ran out, and she was sitting constantly shortfall and that we needed someone to Respondent was prescribing controlled
in the . . . [h]ospital.’’ Id. Respondent remedy that.’’ Id. substances for her, ‘‘especially if I got
asserted that ‘‘that was an isolated out of medication.’’ Id. at 360. I do not
Respondent’s Case
incident there.’’ Id. find this credible. Nor apparently did
During the Board proceeding, Respondent’s first witness was his the ALJ. R.D. 16 (FoF #28: ‘‘Dr. Webb
Respondent acknowledged that he had wife. Tr. 357–401. Of consequence, the did not know that the Respondent was
violated his RCA and an agreement with ALJ found ‘‘that her testimony was not simultaneously prescribing controlled
the Board. Id. at 68. He further asserted helpful in resolving the issues in this substances to Mrs. Alexander.’’)
that he never issued the prescriptions case.’’ R.D. 9. Specifically, the ALJ (citations omitted). While Respondent’s
‘‘out of defiance[,] . . . self will, power, found that ‘‘her testimony was wife also testified that when she called
or arrogance’’ and that ‘‘[i]t was always confusing, lacked specificity, and, at after hours, ‘‘[n]o one would ever . . .
done in a short stop gap times [sic] times, was internally inconsistent’’ and call me back,’’ that this ‘‘was very
when I believed again . . . that there that ‘‘she could not remember many frustrating’’ to her, and that she
were no other options.’’ Id. at 69. details of the underlying events about expressed her frustration to Dr. Webb,
Before the Board, Respondent further which she was testifying.’’ Id. (citing Tr. Tr. 360–61, the ALJ did not find this
asserted that he did not notify Dr. Webb 373–74, 376–77, 382, 384, 391). The ALJ testimony credible. R.D. 15 n.21.
about the prescriptions because his wife also ‘‘found her responses to some Indeed, the ALJ specifically found
‘‘assured [him] that [Webb] was questions to be evasive, and her credible Dr. Webb’s testimony that
apprised of every situation.’’ Id. at 78. demeanor to be somewhat combative.’’ Respondent’s wife ‘‘never told [him]
However, when a Board member noted Id. The ALJ also provided extensive that she was dissatisfied with her ability
that ‘‘[c]ommon sense would dictate as reasons for why he gave ‘‘little credence to contact him or his office.’’ R.D. 15
a physician [that] the next morning you to her testimony, and where it [was] (FOF #23.). I agree with these findings.
pick up the phone and call this contradicted by other evidence,’’ he did Respondent’s wife testified that ‘‘[t]he
psychiatri[st] that’s taken care of [her] not find her testimony as credible. only conversation we [she and Dr.
for 18 years and knows her probably These included: Webb] ever had about [her husband’s
better than any healthcare professional’’ She could not recall the number of times prescribing] was to let me be the only
and tell him ‘‘this is what happened last she had called Dr. Webb’s answering service one that prescribes you this medicine.’’
night, and this is what I did,’’ and had not received a return phone call. Tr. Tr. 363. She initially testified that this
Respondent answered: ‘‘Not with every 360–62. She could not provide an adequate conversation ‘‘probably [occurred]
time.’’ Id. at 79. Asked more specifically explanation of why she continued to be Dr. towards the end’’ of 2013, id. at 391,
why he did not talk to Dr. Webb, Webb’s patient even though she was only to testify that the conversation
dissatisfied with his failure to return her
Respondent maintained that his wife occurred ‘‘after [she] got discharged
phone calls. Tr. 361–62, 382, 391. In
told him that ‘‘[w]ith your Betty Ford explaining her difficulty in recalling details from the hospital’’ in March 2016. Id. at
attitude, he’s going to take me off my from 2011 to 2013, she said she could not 398–99. She also testified that during
Xanax’’ and ‘‘I don’t want you to talk to recall because that was ‘‘seven years ago.’’ Tr. the 2011 through 2013 time period, she
him.’’ Id. at 80. While Respondent 372. She testified that she did not have was hurting herself and that to the best
testified that he should ‘‘have appointments with Dr. Webb between 2011 of her recollection, she shared this with
overridden her concerns and intruded and 2013, yet Dr. Webb’s treatment notes Dr. Webb. Id. at 364.
. . . upon her doctor/patient document several appointments during that Regarding the Diastat prescription,
period. Compare GE 5, at 42–46, 49–53, with Respondent’s wife testified that she uses
relationship,’’ he then added that ‘‘[i]n
Tr. 386. She testified that she told Dr. Webb
retrospect, I should have done that, that she would only get her prescriptions
the drug because she has seizures and
more than the few times that I did do from him, and that that had been her practice because ‘‘I’ve had seizures, I just always
it. I certainly did it sometimes. I didn’t for the past three years, but later testified that try to travel with it and keep some on
do it with every issuance herein.’’ Id. she had this discussion with Dr. Webb in me.’’ Id. at 366. Asked by the ALJ if she
The same Board member noted that 2016. Tr. 363, 368, 398–99. She testified that was using this medication in the 2011–
‘‘there’s an insinuation that [Dr. Webb] she only used one pharmacy, but her PMP 2013 time period, Respondent’s wife
knew something had happened and that report shows she filled prescriptions at answered: ‘‘I always keep it with me. It’s
weekend or something had happened numerous pharmacies. GE 11; Tr. 369. She
did not give a direct answer to the question
something that I’ll try not to ever run
and that emergency medicine had been out.’’ Id. She also subsequently testified
ethrower on DSK3G9T082PROD with NOTICES
of whether she had told Dr. Webb that the
called in’’ and asked ‘‘is that correct?’’ Respondent had provided her with that the Diastat was not prescribed by
Id. Respondent answered: ‘‘I certainly prescriptions, and when she provided an Dr. Webb but by her ‘‘neurologist.’’ Id at
know that certain times he did. I don’t example of when she had passed that 393.
know that at every time he did.’’ Id. information to Dr. Webb, the example was Respondent’s wife testified that she
Respondent added that he was ‘‘certain outside of the time range of the Respondent’s believed her husband prescribed the
that the answering service’s message alleged violations. Tr. 360–63, 398–99. controlled substances because he was
was, ‘[c]all Dr. Alexander.’ ’’ Id. at 80– R.D. 9. trying to help her. Id. at 367. She further
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testified that her husband ‘‘never ‘‘usually [did] not’’ get a call back from Respondent subsequently underwent
prescribed medicines that weren’t Respondent’s office when she would treatment, which included both a three-
prescribed for [sic] Dr. Webb when I leave a message. Tr. 387. Not only did week inpatient and one-week follow-up
got—until we could get in touch with the ALJ not find her testimony credible, visits at three and six months,
him.’’ Id. See also id. at 383 (‘‘[B]ut he her medical file contains evidence of individual psychotherapy in his home
never prescribed anything that I hadn’t only two phone calls she made during community, and a three-day wrap up
already been prescribed by Dr. Webb.’’). this period in which Dr. Webb did not visit at the one-year mark. Id. at 421–22.
She also testified that when her document that he called back or Dr. According to Dr. Graham, Respondent’s
husband wrote a prescription for her, Webb did not issue a prescription either treatment team has determined that he
she was in crisis, and that her husband the same day or the following day.39 can ‘‘return to supervised and
had never provided her with a Respondent called as a witness Peter monitored practice.’’ Id. at 425.
controlled substance prescription when Graham, Ph.D. Dr. Graham is a Respondent also called as a witness,
she was not in crisis. Id. at 367–68, 376. psychologist who works with Acumen Scott Hambleton, M.D., the medical
She further maintained that she ‘‘would Assessments, which provides clinical director of the MPHP. Id. at 435–37. Dr.
try to get in touch with Dr. Webb, and evaluations of physicians who are Hambleton testified that ‘‘the heart of
in the interim of a two- or three-day fill- referred to it by physician health [Respondent’s recovery] contract
in, I did get medicine from’’ my programs and state boards, and the concerns abstinence from any mood-
husband. Id. at 371. When later asked Acumen Institute, which provides altering or addictive substances, which
why her husband would have to treatment, education and coaching to would increase the risk of a relapse to
prescribe to her when she was in crisis, ‘‘licensed professionals who are in the substance use and active addition.’’ Id.
she maintained that ‘‘[t]here would be process of being rehabilitated for one or at 443. He further testified that
occasional times I might run out a day another professional reason.’’ Tr. 403– Respondent is subject to random testing
early on a weekend . . . and he would 04. Dr. Graham testified that the main approximately 30 times a year for both
see me very upset, crying, very focus of Acumen’s evaluations is not drug and alcohol use, that he is subject
emotional, and I feel like his intent was whether a physician is competent to to a workplace monitor, and in the event
never to harm me. He was just trying to practice medicine, but whether the he needs to take controlled substances,
help me.’’ Id. at 379. See also id. at 381 physician’s ‘‘mental status, personality he ‘‘is required to use a medication
(‘‘I don’t know if I told him I need more variables, [and] character traits . . . may monitor’’ and all such prescriptions
or if he just knew that I just needed just impact on decision-making, ethical must be approved by the MPHP ‘‘in
two, three, four to get back to Dr. Webb judgment, self-regulation, ability to advance.’’ Id. at 443–44. Dr. Hambleton
because no one would call us back.’’). remain responsible and maintain the also testified that Respondent is
However, when asked if Respondent duties of licensure.’’ Id. at 416–17. required to attend 12-step and Caduceus
had ever given her a prescription for a Dr. Graham testified that Respondent meetings for physicians in recovery. Id.
longer time period than two to four was referred to him ‘‘for evaluation of at 445. In addition, according to Dr.
days, she answered: ‘‘Not to my his fitness secondary to having engaged Hambleton, a Board investigator visits
knowledge. I do not remember.’’ Id. at in conduct that was contrary to his Respondent on a random basis at least
384. [recovery] contract,’’ that being writing once a quarter to witness a drug screen
On cross-examination, she also the prescriptions for his wife. Id. at 417. and evaluate his appearance. Id. at 446–
admitted that Respondent had written a According to Dr. Graham, the evaluation 47. Dr. Hambleton further stated that
hydrocodone prescription for her but determined ‘‘that there was an Respondent’s contract will last for as
maintained that he did so when her interaction between certain personality long as he has an active medical license.
mother ‘‘was dying in the hospital’’ and factors that affected his judgment and Id. at 447.
she developed back pain because she sat the way he was deciding to comply or As for how the MPHP monitors the
at her ‘‘mother’s bedside waiting for her not with his contract, as well as anxiety provision in Respondent’s contract that
to die.’’ Id. at 374. Respondent’s wife and situational stress related to’’ his prohibits prescribing to family members
then maintained that she did not recall home life that ‘‘affect[ed] his mental and himself, Dr. Hambleton testified
her husband as having written ‘‘[m]ore status.’’ Id. at 419. The evaluation that this is done by the Board’s
than one’’ hydrocodone prescription. Id. recommended to the MPHP that
However, as found above, Respondent investigators. Id. at 448. Dr. Hambleton
Respondent ‘‘undergo treatment testified that if the MPHP found out that
issued numerous hydrocodone designed for professionals who have
prescriptions to her well before Dr. Respondent had prescribed controlled
made ethical misjudgments or engaged substances to himself or a family
Webb issued the single hydrocodone
in some kind of misconduct . . . with member it ‘‘would withdraw advocacy
prescription on June 28, 2013. Also, a
a focus on examining his ethical immediately.’’ Id. at 449. Dr. Hambleton
substantial number of the prescriptions
decision-making’’ and how his further testified that he had no
(especially those for zolpidem) were for
‘‘personality traits’’ affected his reservations about Respondent returning
quantities that far exceeded the amount
behavior. Id. at 420. to the unrestricted practice of medicine.
necessary to provide medication until
she was able to get a new prescription Id. at 450. The record does not establish,
39 The first of these was on August 25, 2011. GX
from Dr. Webb. Moreover, in a number however, what ‘‘the unrestricted
5, at 140. Notably, Respondent’s wife had an office
of instances, Respondent issued the visit with Dr. Webb on August 16, 2011, during
practice of medicine’’ entails in light of
prescription notwithstanding that his which he wrote her prescriptions for 30-day Respondent’s recovery contract.
wife had either recently refilled a quantities of Adderall 20 mg, zolpidem 10 mg, and On cross-examination, Dr. Hambleton
ethrower on DSK3G9T082PROD with NOTICES
90 alprazolam 2 mg. Id. at 49; GX 11, at 12. While acknowledged that Respondent had
prescription for the same drug or had the phone messages states ‘‘Having problems,’’ GX
refills outstanding which were 5, at 140, Respondent did not issue a prescription
violated his first two recovery
authorized by an existing prescription until August 28, 2011, when he authorized 12 contracts.40 Id. at 452. He also
zolpidem.
issued by Dr. Webb. 40 Dr. Hambleton explained that Respondent had
The second of these occurred on July 10, 2013.
On questioning by the ALJ, GX 5, 133. However, the same day, Respondent’s been subject to a ‘‘provisional contract’’ during the
Respondent’s wife maintained that wife refilled a prescription for 45 alprazolam 2 mg period of his license suspension ‘‘to establish a
during the period of 2011 and 2013, she (15 days). GX 11, at 6. Continued
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acknowledged that at some point when asserted that ‘‘now it is part of their 494. After the ALJ overruled the
Respondent had a job opportunity in policy to do regular PMP checks’’ on the objection of Respondent’s counsel that
Tennessee, the MPHP had written to MPHP’s participants.’’ Id. at 477–78. the question was outside the scope of
that State’s Board recommending The MPHP does not, however, have that direct examination, Respondent testified
against granting a license to authority. Id. at 478. that he was ‘‘not certain that [he]
Respondent. Id. at 475. Respondent also testified on his own understand[s] that fully.’’ Id. at 495. The
Dr. Hambleton testified that he behalf. Id. at 481. After discussing his Government then asked Respondent if
supported Respondent’s return to the background, training and current he understood that ‘‘DEA is asserting
unrestricted practice of medicine employment, id. at 481–82, Respondent that with respect to the prescriptions
because the Board’s suspension of his testified that he ‘‘[a]bsolutely’’ you issued for your wife that you
license was ‘‘a profound experience, prescribed controlled substances to his violated Mississippi and federal law.’’
especially for a neurosurgeon, with that wife and did so when she was under the Id. Respondent answered: ‘‘I understand
amount of training,’’ and ‘‘[t]hat type of care of another physician. Id. at 484. that you just asserted that, but my
intervention has a powerful effect on the Asked if his prescribing of controlled understanding would only stop there.’’
recovery process.’’ Id. at 470. He also substances to his wife ‘‘violated his Id.
testified that ‘‘Acumen has more obligations as a licensed doctor in . . . The Government followed-up by
expertise in dealing with personality Mississippi,’’ Respondent answered: ‘‘I asking: ‘‘so . . . you are not admitting
issues’’ and ‘‘[s]o that treatment in itself know it violated my contract with the that you violated either federal or state
. . . represents a profound event that professionals healthcare program.’’ Id. law with respect to the prescriptions
makes it possible to provide advocacy.’’ Asked if he believed that his prescribing you issued to your wife?’’ Id.
Id. at 470–71. ‘‘in the manner that’’ he did ‘‘violated Respondent testified: ‘‘I think my
Dr. Hambleton further testified that [his] obligations as a DEA registrant,’’ answer is I’m uncertain as to every
Respondent’s ‘‘treatment has been Respondent testified: ‘‘I don’t know the component, specifically of the federal,
effective’’ and that ‘‘[h]e’s gaining specific legalities of DEA registration, to be able to answer that as honestly as
insight, sensitivity, demonstration of but I’m here to tell you what I did was I want to.’’ Id.
more regard for others, responsibility, wrong, period, without any The Government asked Respondent if
authenticity, the markers of recovery.’’ equivocation.’’ Id. he understood that what he had been
Id. at 471. Respondent testified that when he charged with in the DEA proceeding
However, on questioning by the ALJ, testified before the State Board, he ‘‘had nothing to do with’’ his recovery
Dr. Hambleton testified that his accepted responsibility for prescribing contract. Id. at 497. Respondent
‘‘frequency of contact’’ with Respondent to his wife. Id. at 486. He then testified testified: ‘‘I understand that you just
‘‘is not what allows me to make that that he is under a lifetime monitoring represented half of what I understand’’
assessment of him.’’ Id. at 472. Rather, contract, and that he is monitored by and added that ‘‘I was found guilty of
Dr. Hambleton explained that his both the MPHP and the Board. Id. two things one, violation of a previous
assessment was based on reports he Asked why the Agency should entrust order . . . Number two, the unethical
received from other participants in him with a DEA registration, behavior, which in my interpretation is
Respondent’s Caduceus group, ‘‘from Respondent testified: subsumed by the number of things that
another facilitator of the group,’’ his even . . . if I don’t know the letter or spirt you have cited as far as Mississippi
cases manager’s reports, and ‘‘watching of any law that I transgressed, I do know that conduct, et cetera.’’ Id.
him interact with other physicians becoming involved in a loved one’s care is After noting that Respondent was
during’’ the MPHP’s ‘‘annual Caduceus foolish. There is no subjectivity there. I can only ‘‘admitting responsibility to what
retreat.’’ Id. at 472. Dr. Hambleton then be Jill’s husband, but that’s all I can be to her, the Board found’’ and that was not what
period. There can’t be any clinical judgment,
acknowledged that when he ‘‘provides or any family member for that matter.
DEA had charged him with, the
advocacy, [his] interaction with As I testified in my [2014] board hearing Government explained that it was
participants is very limited’’ and that he . . . , regardless of what it had come from, ‘‘trying to get a clarification as to what
‘‘provide[s] advocacy based on the I thought I’d hit a brick wall. And there are you’re accepting responsibility for?’’ Id.
constellation of collateral sources of no other options for me. If I can’t practice at 497–98. Respondent testified:
information [and] their drug testing’’ medicine, conforming to every jot, tittle, to
. . . as I’ve said already . . . I wrote
results. Id. at 473. the letter of the law, I can’t practice
prescriptions. I shouldn’t have written
Dr. Hambleton testified that ‘‘[i]n the medicine. There are no more get-out-of-jail
prescriptions. It violated my contract. It
cards for me. There aren’t.
event that there is evidence of substance violated my duty to my wife. It violated—in
abuse, we will withdraw advocacy Id. at 489–90. Continuing, Respondent this one instance, in all my years of practice,
immediately, and it [will] be the end of testified: that’s the only time I’ve ever been called into
his medical career.’’ Id. at 477. He also question, but it violated as a layperson
I have tried to—perhaps I made enough
everything I think I should have done,
testified that ‘‘[i]n the event that he missteps, I can provide a beacon of some sort
regardless of why I thought at the time it
prescribes inappropriately . . . our to younger physicians that might think it’s
okay to prescribe outside the bounds of might—erroneously thought it could be
medical board investigators will proper.
monitor it closely’’ and the Board would normal patients. I don’t know what else I
possibly could do at this point to convince As far as me as a physician testifying to
‘‘issue an immediate prohibition on Your Honor what more I could do to be—that what statutes I may or may not have
practice.’’ Id. Dr. Hambleton was ‘‘not I am worthy to be entrusted with a DEA transgressed, I can’t. That would be
sure’’ as to how the Board found out registration. I will do it. If someone suggests speculative at least on some level for me.
ethrower on DSK3G9T082PROD with NOTICES
about Respondent’s prescribing to his something to me, I will gladly do it, but —. Id.
wife, but based on ‘‘conversations’’ he Id. at 491. After the ALJ sustained Respondent’s
has ‘‘had with investigators,’’ he On cross-examination, the objection to the Government’s attempt
Government asked Respondent if he to question him about both his
period of compliance and recovery.’’ Tr. 452.
Respondent did not violate this contract, which
understood that ‘‘DEA is alleging testimony before the State Board and the
ended when he entered his current (fourth) something slightly different than patient file he maintained on his wife,
contract. Id. at 453. prescribing outside the contract.’’ Id. at the Government asked Respondent if he
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‘‘accept[ed] that the prescriptions that acknowledged that ‘‘[i]t didn’t’’ and I was saying that I’m ignorant of the specifics
you issued to your wife were outside the asserted ‘‘that’s why [he] was of a DEA charge. But if I meet the criteria and
course of professional practice as confused.’’ Id. at 504. Noting that the I accept I did it, then I did it. From my
hearing in January of 2014, I never said I
defined by the DEA?’’ Id. at 501. allegations involved his prescribing to didn’t. I sat there and said, yes, this is what
Respondent answered: his wife and his failure to make happened. There are some prescriptions
I think I’ve answered that already. I don’t adequate notes in his wife’s record, the errors in that record, but in general, yes, this
know precisely how the DEA defines it, and ALJ again expressed his puzzlement as is what happened.
to be scrupulously honest, I can’t. I will once to what Respondent was ‘‘accepting Id. Respondent further testified on re-
again accept the responsibility that what I responsibility for.’’ Id. at 504–05.
did was wrong and I should not have done direct that he was, in the words of his
Respondent replied that he knew counsel, ‘‘accepting responsibility for
it. And I have done everything in my power ‘‘exactly what the State . . . said I did’’
to remediate that. But I do not know again inappropriate prescribing practices
. . . the specifics of the—of what I’m being
and ‘‘I think I believe that the DEA related to [his] wife.’’ Id.
charged with by DEA now, three years after mimicked that . . . [or] paralleled that.’’ On re-cross, the Government asked
I have assiduously striven to do everything Id. at 505. Continuing, Respondent Respondent ‘‘[w]hat portion of the
I can to clean up and do everything right, and stated: ‘‘And if those two specifications prescribing to [his] wife [was]
then you come along and ask me about new or charges are the same, then, yes, I do inappropriate?’’ Id. Respondent
things. accept responsibility for what DEA
What hope is there for any other physician answered:
says.’’ Id.
that follows me for redemption if we do Through my education with Dr. Webb—
everything we can. . . . What more, I mean,
The ALJ then explained that he was
well, first of all, prescribing for family
that’s—I’m sorry. I’m getting emotional. not sure what Respondent meant; members is a bad idea in general. I think the
Respondent stated that it went to his contract specifies it because commonly that
Id. at 501. Then asked if he had been ‘‘understanding of what I was charged means there’s diversion going on, and I’m
treated unfairly by DEA, Respondent and found guilty with by the State,’’ prescribing for someone, and they’re kicking
testified that ‘‘I’m not certain I have a which included violating his Recovery it back to me, but that’s not a question, and
well-founded opinion of that. I know Contract and ‘‘basically unethical I think my urine tests show that didn’t
that I have done everything I humanly behavior.’’ Id. Respondent added that he happen.
can and will continue to do so and I think that in general the objectivity
‘‘assumed that that was also what DEA required even in exigent circumstances must
provide the DEA and every other was doing here . . . [and] that I was
regulatory body with anything I can to be called into question when it’s a loved one.
being called to task for the same things.’’
ensure that I am safe for the public.’’ Id. Id. at 506. Id. at 508–09.
at 502. Subsequently asked by the
Thereafter, the ALJ stated to
The Government then attempted to Government if ‘‘there [was] anything
Respondent’s counsel that if he was
ask Respondent if he accepted else wrong with your prescriptions to
‘‘getting into an area that you don’t want
responsibility for failing maintain your wife, aside from the fact that she’s
patient files in compliance with me to ask about, don’t hesitate to object
a family member,’’ Respondent
Mississippi law. Id. at 502–03. The ALJ because I know I’m going beyond what
answered:
disallowed the question, explaining that your direct examination was.’’ Id. The
ALJ further stated that he ‘‘want[ed] to Let me think on that a minute. I’m a little
Respondent’s ‘‘counsel has decided not almost frightened to answer because at no
to ask him if he wants to accept respect the relationship between you
time do I want anyone in this courtroom
responsibility for that.’’ Id. and your client and your client’s rights thinking, exigent or not, that I’m saying it
After both the Government and in this hearing,’’ and that if he asked a was right or that you’d have done it too if you
Respondent’s counsel stated they had question that Respondent’s counsel were there. There’s not a complete patient
‘‘[n]othing further,’’ the ALJ observed ‘‘vigorously object[ed] to,’’ he expected file. I mean, is that what you’re asking me?
that he was ‘‘was just a little bit puzzled Respondent’s counsel ‘‘to say so.’’ Id. Id. at 510. After the Government again
as to [Respondent’s] answer about Respondent’s counsel then stated that asked Respondent what he thought he
acceptance of responsibility.’’ Id. at 503. ‘‘[t]here are lines that I’m concerned ‘‘did wrong with respect to the
While the ALJ stated that he found about here and based on the history here prescriptions,’’ Respondent answered:
Respondent ‘‘generally very credible,’’ of whether or not a full-throated, yes, I ‘‘again, I shouldn’t have written. I
he then explained that ‘‘[w]hat puzzles violated this statute was going to result violated the contract. Prompt me . . .
me is how you could come to this in, you know additional action against’’ I’m not trying to minimize anything. I’m
hearing without knowing what the Respondent. Id. The ALJ then offered blanking, frankly.’’ Id.
charges against you by DEA are?’’ Id. Respondent’s counsel the opportunity to The Government then asked
Respondent answered that he further question his client. Id. at 507. Respondent if he ‘‘admit[ted] that the
‘‘presumed . . . that they would parallel Respondent’s counsel resumed prescriptions you issued to your wife
that which the state charged me with. I questioning Respondent and asked him were outside the usual course of
mean, I knew we were having a to ‘‘clarify . . . what specific actions [he professional practice?’’ Id. at 511.
hearing.’’ Id. Respondent then testified was] accepting responsibility for?’’ Id. Respondent answered:
that when he ‘‘first applied for re- Respondent testified: ‘‘Violating the
As I understand that term of art . . . if the
registration,’’ he was told by a DI that ‘‘it previous order, right? Writing
documentation is substandard, that that
was all about my past history with prescriptions for my wife when I wasn’t renders it outside the course of professional
addiction’’ but that when he ‘‘had the a treating physician, which I think is not practice, then I would accept that, if I’m—
temerity to get an attorney, it morphed proper document, not fully proper any hesitancy previously has been based on
ethrower on DSK3G9T082PROD with NOTICES
into something else,’’ so he ‘‘wasn’t sure documentation of those things.’’ Id. that. I mean, you know, as a physician, I
Respondent’s counsel then asked if ‘‘it don’t understand that term. When you say
if’’ he was to talk about his ‘‘recovery or
matter[ed] . . . what provisions that the outside the course of medical practice, it
other things.’’ Id. at 503–04. makes me think that someone just gave rat
After the ALJ asked if he had read the violations fall under?’’ Id. at 508.
poison or something absurd like that. But
Show Cause Order and pointed out that Respondent answered: when you lay the predicate about proper
it ‘‘didn’t say anything about [his] . . . I have found me guilty, and so if documentation, for instance, then, yes, I
failure in recovery,’’ Respondent someone shows me—and perhaps . . . what would have to accept that.
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Id. at 511–12. The Government manufacture, distribution, or dispensing of Respondent has failed to produce
subsequently asked Respondent if he controlled substances. sufficient evidence to rebut the
‘‘believe[d] that [his] actions increased (4) Compliance with applicable State,
Government’s prima facie case.
Federal, or local laws relating to controlled
the chances of [his] wife’s dependency, substances.
overdose, or diversion of controlled (5) Such other conduct which may threaten substance prescribing authority under Mississippi
substances?’’ Id. at 512. Respondent the public health and safety. law, Respondent satisfies the CSA’s prerequisite for
answered ‘‘[n]o.’’ Id. obtaining a new practitioner’s registration. See 21
Id. U.S.C. 823(f)(1); see also id. 802(21). (defining ‘‘the
On still a further round of re-direct, ‘‘[T]hese factors are . . . considered term ‘practitioner’ [to] mean[ ] a . . . physician . . .
Respondent acknowledged that he is in the disjunctive.’’ Robert A. Leslie, or other person licensed, registered or otherwise
‘‘not a psychiatrist’’ and that ‘‘[t]hese M.D., 68 FR 15227, 15230 (2003). It is permitted, by . . . the jurisdiction in which he
medicines are . . . chiefly used in practices . . . to distribute, dispense, [or]
well settled that ‘‘I may rely on any one administer . . . a controlled substance in the course
psychiatric conditions. Id. at 513. or a combination of factors, and may of professional practice’’). However, the restoration
Respondent’s counsel further asked him give each factor the weight [I] deem [] of Respondent’s state authority is not dispositive of
if he understood that the DEA had appropriate in determining whether the public interest inquiry. See Mortimer Levin, 57
alleged that he ‘‘prescrib[ed] controlled FR 8680, 8681 (1992) (‘‘[T]he Controlled Substances
. . . an application for registration Act requires that the Administrator . . . make an
substances to someone who was under [should be] denied.’’ Paul H. Volkman, independent determination [from that made by state
the care of another physician for those 73 FR 30630, 30641 (2008) (citing id.), officials] as to whether the granting of controlled
same ailments.’’ Id. Respondent testified pet. for rev. denied, Volkman v. DEA, substance privileges would be in the public
that he understood that and ‘‘accept[ed] 567 F.3d 215, 222 (6th Cir. 2009); see interest.’’).
that’’ it was wrong for him to do that. To be sure, the Agency’s case law contains some
also MacKay v. DEA, 664 F.3d 808, 816 older decisions which can be read as giving more
Id. at 513–14. (10th Cir. 2011); Hoxie v. DEA, 419 F.3d than nominal weight in the public interest
Respondent’s counsel then asked if 477, 482 (6th Cir. 2005). Moreover, determination to a State Board’s decision (not
could ‘‘be trusted to not engage in such while I am required to consider each of involving a recommendation to DEA) either
prescribing in the future?’’ Id. at 514. restoring or maintaining a practitioner’s state
the factors, I ‘‘need not make explicit authority to dispense controlled substances. See,
Respondent testified: findings as to each one.’’ MacKay, 664 e.g., Gregory D. Owens, 67 FR 50461, 50463 (2002)
I will first say strongly, absolutely. I have F.3d at 816 (quoting Volkman, 567 F.3d (expressing agreement with ALJ’s conclusion that
spent the last three years trying to redeem at 222 (quoting Hoxie, 419 F.3d at the board’s placing dentist on probation instead of
this situation, to show everyone exactly how 482)).41 suspending or limiting his controlled substance
authority ‘‘reflects favorably upon [his] retaining his
driven I am. And, Your Honor, I’m not trying The Government has the burden of . . . [r]egistration, and upon DEA’s granting of [his]
to avoid anything. If someone shows me I’ve proving, by a preponderance of the pending renewal application’’); Vincent J. Scolaro,
done something wrong, I will admit it. I’m evidence, that the requirements for 67 FR 42060, 42065 (2002) (concurring with ALJ’s
not even bringing up the subtext. I did denial of an application pursuant to 21 ‘‘conclusion that’’ state board’s reinstatement of
wrong. I throw myself upon the mercy of the medical license ‘‘with restrictions’’ established that
U.S.C. 823(f) are met. 21 CFR ‘‘[b]oard implicitly agrees that the [r]espondent is
process. I have done everything that I know
to do to try to remedy this situation and I can 1301.44(d). However, once the ready to maintain a DEA registration upon the terms
do no more than give my sworn oath that this Government has made a prima facie set forth in’’ its order).
will not happen again. showing that issuing a new registration Of note, these cases cannot be squared with the
to the applicant would be inconsistent Agency’s longstanding holding that ‘‘[t]he
Id. Controlled Substances Act requires that the
with the public interest, an applicant Administrator . . . make an independent
Respondent’s counsel concluded his
must then present sufficient mitigating determination [from that made by state officials] as
examination by asking Respondent if his
evidence to show why he can be to whether the granting of controlled substance
acceptance of responsibility included privileges would be in the public interest.’’ Levin,
entrusted with a new registration.
his ‘‘prescribing to [his wife] while she 57 FR at 8681. Indeed, neither of these cases even
Medicine Shoppe-Jonesborough, 73 FR acknowledged the existence of Levin, let alone
was under the care of another doctor,
364, 387 (2008) (citing cases)); see also attempted to reconcile the weight it gave the state
perhaps providing medications too soon
MacKay, 664 F.3d at 817. board’s action with Levin. While in other cases, the
in terms of early refills, providing gap Having considered all of the factors, I Agency has given some weight to a Board’s action
fills, [and] not having an adequate find that the Government’s evidence in allowing a practitioner to retain his state
medical file?’’ Id. at 515. Respondent authority even in the absence of an express
with respect to Factors Two and Four recommendation, see Tyson Quy, 78 FR 47412,
answered ‘‘[y]es.’’ Id. satisfies its prima facie burden of 47417 (2013), the Agency has repeatedly held that
Discussion showing that granting Respondent’s a practitioner’s retention of his/her state authority
is not dispositive of the public interest inquiry. See,
application would be inconsistent with
Section 303(f) of the Controlled e.g., Paul Weir Battershell, 76 FR 44359, 44366
the public interest.42 I further find that (2011) (citing Edmund Chein, 72 FR 6580, 6590
Substances Act (CSA) provides that
(2007), pet. for rev. denied, Chein v. DEA, 533 F.3d
‘‘[t]he Attorney General may deny an 41 In short, this is not a contest in which score 828 (D.C. Cir. 2008)).
application for [a practitioner’s] is kept; the Agency is not required to mechanically As to factor three, I acknowledge that there is no
registration . . . if the Attorney General count up the factors and determine how many favor evidence that Respondent has been convicted of an
determines that the issuance of such the Government and how many favor the registrant. offense under either federal or Mississippi law
Rather, it is an inquiry which focuses on protecting ‘‘relating to the manufacture, distribution or
registration . . . would be inconsistent the public interest; what matters is the seriousness dispensing of controlled substances.’’ 21 U.S.C.
with the public interest.’’ 21 U.S.C. of the registrant’s misconduct. Jayam Krishna-Iyer, 823(f)(3). However, there are a number of reasons
823(f). With respect to a practitioner, the 74 FR 459, 462 (2009). Accordingly, as the Tenth why even a person who has engaged in criminal
Act requires the consideration of the Circuit has recognized, findings under a single misconduct may never have been convicted of an
factor can support the revocation of a registration offense under this factor, let alone prosecuted for
following factors in making the public or the denial of an application. MacKay, 664 F.3d one. Dewey C. MacKay, 75 FR 49956, 49973 (2010),
interest determination:
ethrower on DSK3G9T082PROD with NOTICES
at 821. pet. for rev. denied, MacKay v. DEA, 664 F.3d at
(1) The recommendation of the appropriate 42 As to factor one, while the Mississippi Board 822. The Agency has therefore held that ‘‘the
has taken disciplinary action against Respondent absence of such a conviction is of considerably less
State licensing board or professional consequence in the public interest inquiry’’ and is
based on his issuance of the prescriptions, the
disciplinary authority. Board has not made a recommendation to the therefore not dispositive. Id.
(2) The applicant’s experience in Agency with respect to whether his application As for factor five, because the Government did
dispensing . . . controlled substances. should be granted. To be sure, as a result of the not file exceptions to the ALJ’s legal conclusions
(3) The applicant’s conviction record under Board’s subsequent restoration of his medical with respect to this factor, I deem it unnecessary to
Federal or State laws relating to the license without restriction of his controlled make any findings.
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Factors Two and Four—Respondent’s treatment.’’); Jack A. Danton, 76 FR history and physical examination consistent
Experience in Dispensing Controlled 60900, 60904 (2011) (finding violations with the nature and complaint are necessary.
Substances and Record of Compliance of 21 CFR 1306.04(a), in the absence of . . . The paramount importance of a
complete medical history in establishing a
With Applicable Controlled Substance expert testimony, ‘‘where a physician
correct diagnosis is well established.
Laws has utterly failed to comply with Standards of proper medical practice require
Under a longstanding DEA regulation, multiple requirements of state law for that, upon any encounter with a patient, in
a prescription for a controlled substance evaluating her patients and determining order to establish proper diagnosis and
is not ‘‘effective’’ unless it is ‘‘issued for whether controlled substances are regimen of treatment, a physician must take
a legitimate medical purpose by an medically indicated and thus has three steps: (a) take and record an
‘completely betrayed any semblance of appropriate medical history, (b) carry out an
individual practitioner acting in the
legitimate medical treatment’ ’’) (quoting appropriate physical examination, and (c)
usual course of his professional record the results. The observance of these
practice.’’ 21 CFR 1306.04(a). See also McKinney, 73 FR at 43266 (quoting
principles as a function of the ‘‘course of
Miss. Code Ann. Sec. 41–29–137 (‘‘a Feingold, 454 F.3d at 1010)).43
legitimate professional practice’’ is
‘valid prescription’ means a prescription Under the Mississippi Board’s Rule
particularly of importance in cases in which
that is issued for a legitimate medical 1.4: controlled substances are to play a part in the
purpose in the usual course of Patient Record. A physician who course of treatment. It is the responsibility of
professional practice’’). prescribes, dispenses, or administers a the physician to dispense, prescribe or
Under the CSA, it is fundamental that controlled substance shall maintain a administer such drugs with proper regard for
complete record of his or her examination, the actual and potential dangers.
a practitioner must establish a bonafide
evaluation and treatment of the patient
doctor-patient relationship in order to which must include documentation of the Id.
act ‘‘in the usual course of . . . diagnosis and reasons for prescribing, Rule 1.4 further notes that ‘‘[a]
professional practice’’ and to issue a dispensing or administering of any controlled determination of proper ‘medical
prescription for a ‘‘legitimate medical substance; the name, dose, strength, quantity indication’[ ] also requires a careful
purpose.’’ See United States v. Moore, of the controlled substance and the date that examination of the nature of the drug
423 U.S. 122, 142–43 (1975); United the controlled substance was prescribed, and all circumstances surrounding
States v. Lovern, 590 F.3d 1095, 1100– dispensed or administered. The record dispensation.’’ Id. The Rule also
required by this rule shall be maintained in
01 (10th Cir. 2009); United States v. the patient’s medical records, provided that
specifically notes that ‘‘repeated refills
Smith, 573 F.3d 639, 657 (8th Cir. 2009); such medical records are maintained at the over relatively short periods of time or
see also 21 CFR 1306.04(a) (‘‘an order office of the physician . . . . the issuance of prescriptions at a time
purporting to be a prescription issued No physician shall prescribe, administer or when the patient should not have
not in the usual course of professional dispense any controlled substance or other finished taking the same medication
treatment . . . is not a prescription drug having addiction-forming or addiction- from a prior prescription had the
within the meaning and intent of [21 sustaining liability without a good faith prior prescription directions been properly
U.S.C. 829] and . . . the person issuing examination and medical indication followed or the correct dosage taken’’ is
therefore.
it, shall be subject to the penalties a factor indicating a lack of good faith
provided for violations of the provisions Miss. Admin. Code part 2640, Ch.1 r. 1.4. on the part of a physician. Id. Also, the
Continuing, Rule 1.4 explains that:
of law related to controlled Board’s Rule 1.16 specifically provides
substances’’). As the Supreme Court has A determination as to whether a ‘‘good that ‘‘[t]he prescribing, administering or
faith prior examination and medical
explained, ‘‘the prescription indication therefore’’ exists depends upon
dispensing of any controlled substance
requirement . . . ensures patients use the facts and circumstances in each case. One in violation of the above rules shall
controlled substances under the of the primary roles of a physician is to elicit constitute the administering, dispensing
supervision of a doctor so as to prevent detailed information about the signs and or prescribing of any narcotic drug or
addiction and recreational abuse. As a symptoms which a patient presents in order other drug having addiction-forming or
corollary, [it] also bars doctors from that he or she may recommend a course of addiction-sustaining liability otherwise
peddling to patients who crave the treatment to relieve the symptoms and cure than in the course of legitimate
drugs for those prohibited uses.’’ the patient of his or her ailment or maintain professional practice, in violation of
him or her in an apparent state of good
Gonzales v. Oregon, 546 U.S. 243, 274 health. In order for a physician to achieve a
Mississippi Code [ ] Section 73–25–
(2006) (citing Moore, 423 U.S. 122, 135, proper diagnosis and treatment plan, a 29(3). ’’ Miss. Admin. Code part 2640,
143 (1975)). Ch. 1, r. 1.16).
Both this Agency and the federal 43 However, as the Agency has held in multiple Here, the ALJ found that that
courts have held that ‘‘establishing a cases, ‘‘the Agency’s authority to deny an Respondent acted outside of the usual
violation of the prescription application [and] to revoke an existing registration course of professional practice and
requirement ‘requires proof that the . . . is not limited to those instances in which a lacked a legitimate medical purpose
practitioner intentionally diverts a controlled
practitioner’s conduct went ‘‘beyond the substance.’’ Bienvenido Tan, 76 FR 17673, 17689 when he issued numerous prescriptions
bounds of any legitimate medical (2011) (citing Paul J. Caragine, Jr., 63 FR 51592, for controlled substances included
practice, including that which would 51601 (1998)); see also Dewey C. MacKay, 75 FR at alprazolam, diazepam, hydrocodone,
constitute civil negligence.’’ ’ ’’ Laurence 49974. As Caragine explained: ‘‘[j]ust because zolpidem, and Adderall (amphetamine).
misconduct is unintentional, innocent, or devoid of
T. McKinney, 73 FR 43260, 43266 (2008) improper motive, [it] does not preclude revocation R.D. 39–44. I agree with the ALJ that
(quoting United States v. McIver, 470 or denial. Careless or negligent handling of Respondent violated 21 CFR 1306.04(a)
F.3d 550, 559 (4th Cir. 2006)). See also controlled substances creates the opportunity for in issuing the prescriptions. I further
United States v. Feingold, 454 F.3d diversion and [can] justify’’ the revocation of an find that in issuing each of the
ethrower on DSK3G9T082PROD with NOTICES
existing registration or the denial of an application
1001, 1010 (9th Cir. 2006) (‘‘[T]he Moore for a registration. 63 FR at 51601. prescriptions enumerated above (Nos. 1
Court based its decision not merely on ‘‘Accordingly, under the public interest standard, through 53), Respondent acted outside
the fact that the doctor had committed DEA has authority to consider those prescribing of the usual course of professional
malpractice, or even intentional practices of a physician, which, while not rising to practice and lacked a legitimate medical
the level of intentional or knowing misconduct,
malpractice, but rather on the fact that nonetheless create a substantial risk of diversion.’’
purpose in doing so.
his actions completely betrayed any MacKay, 75 FR at 49974; see also Patrick K. Chau, Dr. Chambers provided unrefuted
semblance of legitimate medical 77 FR 36003, 36007 (2012). testimony that it is not within the usual
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course of professional practice to normally would be in a note like this to With respect to Respondent’s
prescribe a controlled substance to a justify and direct the use of controlled prescribing of alprazolam, they include
patient with mental illness when the substances.’’ Tr. 277. Dr. Chambers also prescription numbers 11 (20 du, a 10 to
patient is being treated by a primary observed that ‘‘there are instances where 20-day supply), 34 (30 du, a 10-day
prescriber and the second physician the dosing or type of the drug is left out supply 46), 53 (24 du, an eight-day
does not communicate to the primary of the record.’’ Id. at 278. See also GE supply), 31, 32 (each for 20 du, each for
physician that he has issued the 6, at 6 (entry for 2/5/13); id. at 7 (entry a 10-day supply), 38, 52 (15 du, a five-
prescription. Tr. 275. Dr. Chambers for 3/28/13); id. at 8 (5/13/13 no dosing day supply) 42, 43 (14 du, a 4–5 day
testified as to the serious risks created for Ambien); id. at 9 (entries for 7/1/13 supply), and 44, 47 (12 du, one a four-
by such prescribing, including no dosing for Lorcet and 7/7/13 no day supply, the other a six-day supply).
oversedation, memory disturbance, dosing for Lorcet and Xanax); id. at 10 Respondent also issued a prescription
overdose and potentially death, (no drug strength for Xanax for 18 tablets of clonazepam (a six-day
especially if the patient is also taking prescriptions of 8/24/13 and 9/5/13). supply), 15 capsules of
opioids. Id. at 250; see also id. at 268– Before the State Board, Respondent Dextroamphetamine-Amphetamine 5
69. Dr. Chambers also explained that testified that his prescribing ‘‘was mg (a five-day supply), and 20 tablets of
when a patient is obtaining drugs from sporadic’’ and ‘‘was always for a diazepam (a six-day supply). With
other sources and the primary prescriber confined number of pills, a small respect to the diazepam prescription,
is unaware, this ‘‘can create a great deal amount, that bridged her gap between Dr. Webb did not even prescribe this
of confusion on the part of the primary obviously when she was in crisis and drug to Respondent’s wife. Of note,
prescriber about the effects or side didn’t have any medicine.’’ GE 14, at 58. before the State Board, Respondent
effects of the drug and the mental status He maintained that ‘‘the majority of the testified that he did not change his
of the patient.’’ Id. at 251; see also id. medicine were Xanax, two milligrams, wife’s treatment regimen and only
at 291 (‘‘If you have two chefs in the ‘‘mirrored what [Dr. Webb] had done.’’
[and that a] three day supply were [sic]
kitchen, this is the kind of stuff that can GE 14, at 65.
common.’’ Id. at 59–60. Also before the
happen as you get chaos and harm and Likewise before the State Board,
State Board, he maintained that ‘‘I think Respondent initially offered testimony
polypharmacy and no one
the record reflects that I filled in in regarding his prescribing of
understanding what is the illness versus
times where I just didn’t think I had no hydrocodone which addressed only the
what is [sic] the side effects of the
other choice.’’ Id. He further asserted prescriptions he wrote after a plastic
medications, and it can lead to
that his writing of the prescriptions surgeon had drained an abscess in his
escalation of mental illness, addiction,
‘‘was always done in a short stop gap wife’s thigh and when his wife had a
and even death.’’).
Dr. Chambers also offered unrefuted times [sic] when I believed again . . . seizure and fell. Moreover, when on
testimony that Respondent’s prescribing that there were no other options.’’ Id. at cross-examination a Board member
resulted in ‘‘a combination of multiple 69. identified the multiple hydrocodone
overlaps of multiple classes of addictive Although the Government introduced prescriptions Respondent issued in July
substances that can produce overdose into evidence the transcript of the 2013, Respondent testified that ‘‘that
and severe psychiatric disturbances.’’ January 2014 state board proceeding, it was an isolated incident there.’’ Id. at
Id. at 273. And while Respondent is not did not submit the Board’s order 66. The evidence in this proceeding
a psychiatrist, Dr. Chambers offered prohibiting him from practice and/or shows, however, that during 2011,
unrefuted testimony that within the the charging document, any of the Respondent issued seven hydrocodone
practice of psychiatry, there is a exhibits submitted in the Board prescriptions (Nos. 3, 5, 7, 9, 14, 16, 19)
prohibition against treating a spouse. Id. proceeding which may have shown for his wife prior to any other doctor
at 293. Dr. Chambers further offered what prescriptions were at issue in the prescribing the drug to her. See GE 11,
unrefuted testimony that Respondent’s proceeding, or even the Board’s order at 11 (hydrocodone Rx written on Nov.
prescribing was not for legitimate suspending his license after the January 30, 2011 by Dr. Bell, who Respondent
medical practice and was non- 2014 proceeding. However, while it may identified as his wife’s neurologist).
therapeutic. I thus find that Respondent have been the case that Respondent’s Respondent has offered no explanation
violated 21 CFR 1306.04(a) with respect explanation as to his reasons for in either proceeding as to why he issued
to each of the prescriptions set forth prescribing during the 2014 board these seven prescriptions, as well as the
above. proceeding was consistent with the hydrocodone prescriptions he issued on
Respondent’s failure to maintain evidence presented at that proceeding, it December 5, 2011 (No. 21), Aug. 13,
adequate records to support the is not consistent with much of the 2012 (No. 33) and Jan. 23, 2013 (No.
prescriptions provides additional evidence submitted in this proceeding. 39).47
support for this conclusion, as well as As found above, the record contains Also, in a number of instances,
the conclusion that Respondent violated numerous prescriptions which are not Respondent issued prescriptions even
Mississippi Board Rule 1.4’s provisions fairly characterized as two to three-day though his wife had refills available
with respect to patient records.44 As gap fills. With respect to Respondent’s under prescriptions that were
found above, there was no prescribing of zolpidem, they include previously issued by Dr. Webb. For
documentation at all to support 36 of fourteen prescriptions which clearly example, on March 30, 2011,
the prescriptions. Moreover, even with were not short-term gap fills. These Respondent issued a prescription for 30
respect to the entries Respondent did prescriptions include numbers 2, 4, 6, 8, zolpidem. (Rx No. 4). However, Dr.
make, Dr. Chambers found that ‘‘there is Webb’s February 3, 2011 zolpidem
ethrower on DSK3G9T082PROD with NOTICES
22, 26, 28 (each for 30 du 45), 23 (28 du),
a paucity of data to support the 29 (24 du), 15, 45 (each for 20 du), and 46 This is based on Respondent’s note for the
diagnosis or the prescriptions . . . that 10, 12, 13 (each for 12 du). prescription.
the note is built around. There’s a lack 47 While Dr. Bell (his wife’s neurologist) issued
of physical or mental status exam that 45 While some of Respondent’s prescriptions for hydrocodone prescriptions to Respondent’s wife on
30 du of zolpidem had a dosing instruction of two November 30, 2011 and June 19, 2013,
44 See supra findings for RXs No. 1–21, 25, 26, tablets, the dosing instructions generally provided Respondent’s testimony before the Board addressed
28–31, 33, 35–37, 39, 43, 45, 49, and 51. for one tablet. only his July 2013 prescriptions. GE 14, at 86.
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provided for multiple refills, which prescription was not a gap fill given that Sanction
Respondent’s wife filled on April 9, Respondent issued the March 4, 2012 Where, as here, the Government has
2011, May 23, 2011, and July 7, 2011. prescription, which provided a 30-day met its prima facie burden of showing
Moreover, Respondent issued new supply. Nor was the April 1, 2012 that issuing a new registration to the
prescriptions for 30 zolpidem to his prescription a gap fill given applicant would be inconsistent with
wife on May 6, 2011 and June 28, 2011 Respondent’s issuance of the March 12 the public interest, a respondent must
(Rx No. 6 & 8). Respondent’s prescription and the refill she obtained come forward with ‘‘sufficient
prescriptions of March 30, May 6, and on March 19, 2012 pursuant to Dr. mitigating evidence’’ to show why he
June 28 were clearly not ‘‘gap fills.’’ Webb’s Feb. 23 prescription. can be entrusted with a new
Moreover, when Respondent issued Similarly, the evidence shows that on registration. Medicine Shoppe-
the July 31, 2011 prescription for 12 January 11, 2013, Respondent issued a Jonesborough, 73 FR 364, 387 (2008)
zolpidem, he also authorized a refill, prescription for 10 du of alprazolam (see (quoting Samuel S. Jackson, 72 FR
which was available to his wife on No. 36). While this prescription 23848, 23853 (2007) (quoting Leo R.
August 28, 2011 (which she did not fill provided only a three-day supply, the Miller, 53 FR 21931, 21932 (1988))).
until September 6, 2011), when evidence shows that Respondent’s wife ‘‘Moreover, because ‘past performance is
Respondent issued her a new
had refilled a prescription issued by Dr. the best predictor of future
prescription for 12 zolpidem. See Rx
Webb for 45 du of alprazolam the day performance,’ ALRA Labs, Inc. v. DEA,
No. 10 & 12. (Dr. Webb had also issued
before. GE 11, at 8. Thus, this was not 54 F.3d 450, 452 (7th Cir.1995), [DEA]
a 60 du zolpidem prescription on
a gap fill. Nor was Respondent’s January has repeatedly held that where a
August 16, 2011 which provided
11, 2013 temazepam prescription (No. registrant has committed acts
multiple refills.). Even ignoring the
37) a gap fill as the evidence shows that inconsistent with the public interest, the
prescription she obtained from Dr.
his wife had also refilled a prescription registrant must accept responsibility for
Webb, Respondent’s August 28, 2011
for a 30-day supply of this drug the day [his] actions and demonstrate that [he]
prescription was not a gap fill given that
before. GE 11, at 8. will not engage in future misconduct.’’
she had a refill available on
Respondent’s July 31, 2011 prescription. As one further example, on May 20, Medicine Shoppe, 73 FR at 387; see also
So too, Respondent’s October 11, 2011 2013, Respondent issued a prescription Jackson, 72 FR at 23853; John H.
prescription for 20 zolpidem, a 20-day for 20 tablets of zolpidem (No. 45). The Kennedy, 71 FR 35705, 35709 (2006);
supply, (Rx No. 16) was issued evidence shows, however, that Dr. Webb Prince George Daniels, 60 FR 62884,
notwithstanding that Dr. Webb’s August had not issued a zolpidem prescription 62887 (1995). See also MacKay v. DEA,
16, 2011 zolpidem prescription since February 23, 2012, which his wife 664 F.3d at 820; Hoxie v. DEA, 419 F.3d
provided for five refills, one of which last refilled in April 2012. Here again, at 483 (‘‘admitting fault’’ is ‘‘properly
his wife filled on October 19, 2011. See this was not a gap fill. consider[ed]’’ by DEA to be an
GE 11, at 10–12. Even if Respondent’s Had Respondent’s prescribing been ‘‘important factor [ ]’’ in the public
wife had run out of medication early limited to a few instances of small (two interest determination).
because she failed to follow Dr. Webb’s Moreover, the egregiousness and
to three day) gap fills, his conduct
dosing instruction, she did not need this extent of a registrant’s misconduct are
would be considerably less egregious
quantity of drugs to last her to the day significant factors in determining the
given the circumstances of his wife’s
on which she could refill Dr. Webb’s appropriate sanction. See Jacobo
illness. The evidence shows, however,
prescription. Dreszer, 76 FR 19386, 19387–88 (2011)
that his illicit prescribing went on for
Another such example involves (explaining that a respondent can
nearly three years. Even more disturbing
Respondent’s December 27, 2011 ‘‘argue that even though the
is that the evidence shows that many of
prescription for 30 zolpidem and his Government has made out a prima facie
the prescriptions were not for gap fills
January 7, 2012 prescription for 28 case, his conduct was not so egregious
at all, let alone for gap fills for two to
zolpidem. (Nos. 22 & 23). Respondent’s as to warrant revocation’’); Paul H.
three day periods as he testified before
wife had obtained a refill of Dr. Webb’s Volkman, 73 FR 30630, 30644 (2008);
the State Board.
August 16, 2011 prescription for 60 du see also Paul Weir Battershell, 76 FR
on December 16, 2011, only 11 days Notably, in this proceeding, 44359, 44369 (2011) (imposing six-
earlier (Dec. 16). Thus, there was no gap Respondent has personally offered no month suspension, noting that the
to fill. Nor was there a gap to fill on explanation as to why he issued the evidence was not limited to security and
January 7, 2012, when he issued the prescriptions. Moreover, the only recordkeeping violations found at first
prescription for an additional 28 dosage evidence he offered was the discredited inspection and ‘‘manifested a disturbing
units given the quantity of drugs his testimony of his wife that there pattern of indifference on the part of
wife had recently obtained. occasionally were times when she [r]espondent to his obligations as a
Still more examples are provided by ‘‘might run out a day early on a registrant’’); Gregory D. Owens, 74 FR
the zolpidem prescriptions Respondent weekend’’ and only needed a short term 36751, 36757 n.22 (2009).
issued on March 4 and 12 (both for a 30- supply until Dr. Webb got back to her Finally, the Agency has also held that
day supply), as well April 1, 2012 (for and that Respondent had never given ‘‘ ‘[n]either Jackson, nor any other
a 24-day supply). During this period, her a prescription for a time period agency decision, holds . . . that the
Respondent’s wife obtained a longer than two to four days. Tr. 379, Agency cannot consider the deterrent
prescription for 30 du (a 15-day supply) 381, 384. value of a sanction in deciding whether
on February 23, 2012, which provided I thus conclude that the Government’s a registration should be [suspended or]
ethrower on DSK3G9T082PROD with NOTICES
for two refills, the first of which she evidence with respect to Factors Two revoked’ ’’ or an application should be
obtained on March 19, 2012. Here again, and Four makes out a prima facie case denied. Wesley Pope, 82 FR 14944,
the only potential gap was likely created to deny Respondent’s application as 14985 (2017) (quoting Joseph Gaudio,
by the failure of Respondent’s wife to ‘‘inconsistent with the public interest.’’ 74 FR 10083, 10094 (2009) (quoting
follow Dr. Webb’s dosing instructions 21 U.S.C. 823(f). I further find that Southwood Pharmaceuticals, Inc., 72 FR
on the February 23rd prescription. Respondent’s misconduct was 36487, 36504 (2007))). See also Robert
Moreover, the March 12, 2012 egregious. Raymond Reppy, 76 FR 61154, 61158
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![49728 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices
(2011); Michael S. Moore, 76 FR 45867, [r]espondent has not unequivocally I disagree with the ALJ’s conclusion
45868 (2011). This is so, both with acknowledged his misconduct’’ and that Respondent is entitled to a finding
respect to the respondent in a particular holding that ‘‘[a] registrant’s acceptance that he has accepted responsibility for
case and the community of registrants. of responsibility must be unequivocal’’); his misconduct. To the contrary, I find
See Pope, 82 FR at 14985 (quoting Annicol Marrocco, 80 FR 28695, 28706 that his testimony was equivocal and
Gaudio, 74 FR at 10095 (quoting (2015) (denying application, holding that he repeatedly attempted to
Southwood, 71 FR at 36503)). Cf. that respondent’s ‘‘equivocal testimony minimize his misconduct. Indeed, even
McCarthy v. SEC, 406 F.3d 179, 188–89 provided substantial evidence to after the ALJ granted Respondent a
(2d Cir. 2005) (upholding SEC’s express support a finding that she does not second chance to explain what he was
adoptions of ‘‘deterrence, both specific accept responsibility for her accepting responsibility for, he still did
and general, as a component in misconduct’’); Arthur H. Bell, 80 FR not unequivocally acknowledge his
analyzing the remedial efficacy of 50035, 50041 (2015) (denying misconduct.
sanctions’’). application finding that physician’s In this matter, Respondent was
The ALJ acknowledged that ‘‘to rebut ‘‘acceptance of responsibility is specifically charged with violating 21
the Government’s prima facie case, the equivocal at best’’ and ‘‘his failure to CFR 1306.04(a), the CSA’s prescription
Respondent must both accept accept responsibility for [intentional] regulation which requires that a
responsibility for his actions and misconduct is reason alone to conclude controlled substance prescription ‘‘be
demonstrate that he will not engage in that he cannot be entrusted with a new issued for a legitimate medical purpose
future misconduct.’’ R.D. at 52 (citing registration’’); Michael A. White, 79 FR by [a] practitioner acting in the usual
Patrick W. Stodola, 74 FR 20727, 62957, 62598, 62967–68 (2014) course of professional practice.’’ ALJ Ex.
20734–35 (2009)). The ALJ then (revoking registration adopting ALJ’s 1, at 1–3 (¶¶ 3–9). Indeed, the
explained that ‘‘[t]he Respondent may finding that physician did not accept Government specifically alleged that the
accept responsibility by providing responsibility when his ‘‘acceptance of prescriptions ‘‘were nontherapeutic,
evidence of his remorse, his efforts at responsibility was tenuous at best,’’ were for other than a legitimate medical
rehabilitation, and his recognition of the ‘‘not once during the hearing did [he] purpose, and were outside the course of
severity of his misconduct.’’ 48 Id. (citing unequivocally admit fault for his professional practice.’’ Id. The
Robert A. Leslie, 68 FR 15227, 15228 improper . . . prescriptions,’’ and he Government also alleged that the
(2003)). He also explained that ‘‘[t]o ‘‘minimized the severity of his prescriptions violated the counterpart
accept responsibility, a respondent must misconduct’’); The Medicine Shoppe, 79 provision of State law. See id. (citing
show ‘true remorse’ for wrongful FR 59504, 59510 (2014) (revoking Board Rule 1.16 and Miss. Code Sec.
conduct,’’ which includes an registration where respondent ‘‘offered 73–25–29–(3)). The Government further
‘‘acknowledgment of wrongdoing.’’ Id. generalized acceptance of alleged that Respondent violated
(citing Michael S. Moore, 76 FR 45867, responsibility’’ but then denied filling provisions of State regulations
45877 (2011) and Wesley G. Harline, 65 any unlawful prescriptions); Ronald prohibiting the prescribing of controlled
FR 5665, 5671 (2000)). Lynch, 75 FR 78745, 78754 (2010) substances ‘‘without conducting any
However, there are also numerous (revoking registration agreeing with examination of [his] wife (or
cases, that were not discussed in the ALJ’s finding that respondent did not documenting such in her file) or noting
Recommended Decision, which hold accept responsibility noting that he the . . . prescriptions in her patient
that where the Government has proved ‘‘repeatedly attempted to minimize his chart,’’ as well as ‘‘without conducting
that a respondent committed knowing [egregious] misconduct).49 sufficient examinations of [his] wife (or
or intentional misconduct, he must documenting such in her file).’’ Id. at 3
unequivocally acknowledge his 49 More recently, in Roberto Zayas, 82 FR 21410, (citing, inter alia, Board Rules 1.4 and
misconduct. See Daniel A. Glick, 80 FR 21429 (2017), I rejected the reasoning of Jeffrey 1.16, Miss. Code Ann. Sec. 73–25–
Martin Ford, 68 FR 10750 (2003), which granted a
74800, 74800–01 (2015) (rejecting new registration to a respondent who had a history
29(3)).
exception to ‘‘CALJ’s conclusion that of substance abuse and had been convicted of Notwithstanding that the Show Cause
several drug felonies. In Zayas, I noted that the Ford Order clearly set forth these violations,
48 To the extent the ALJ’s statement suggests that ‘‘decision apparently excused the respondent’s and that Dr. Chambers offered unrefuted
failure to unequivocally accept responsibility based
a respondent can satisfy his burden of production
on his having attended drug rehabilitation and
testimony that Respondent’s prescribing
on the issue of acceptance of responsibility by only was outside of the ‘‘usual course of
producing evidence of efforts at rehabilitation, this remained sober for more than 10 years, as well [as]
is not the Agency’s rule. Indeed, Leslie makes it having satisfied the conditions for reinstatement of clinical conduct,’’ ‘‘was dangerous and
his state license.’’ 82 FR 21429. I also noted that harmful,’’ ‘‘non-therapeutic,’’ not for a
clear that it was describing the total showing that
‘‘the decision [did] not even address whether [the
is required to refute the Government’s prima facie
respondent] accepted responsibility for his criminal ‘‘legitimate medical practice,’’ that there
case. See Leslie, 68 FR at 15228 (discussing was ‘‘a paucity of data to support the
conduct.’’ Id. I further explained that I found ‘‘the
previous agency decision involving respondent and
stating that ‘‘[t]he agency also found that although
reasoning of this case unpersuasive, [and] were a diagnosis or the prescriptions’’ and
case with similarly egregious misconduct presented there was ‘‘a lack of physical or mental
he was free to offer evidence that he would never to me, I would not grant a registration absent a clear
again engage in the sort of conduct that resulted in and unequivocal acceptance of responsibility for all status exam’’ documented in the noted
his conviction, [r]espondent did not avail himself of the misconduct that was proven on the record.’’ to justify the prescriptions, Respondent
of that opportunity and offered no evidence of
remorse for his misconduct, efforts at rehabilitation,
Id. See also Jones Total Health Care, 81 FR 79188, repeatedly refused to acknowledge that
79200–01 (2016) (‘‘[W]here the Government has
or recognition of the severity of his conduct’’). proved that a registrant has engaged in intentional
he violated 21 CFR 1306.04(a).
The Agency has explained that where the or knowing misconduct, revocation is warranted in While Respondent testified that he
Government has proved that a respondent has the absence of the registrant’s unequivocal violated his contract with the State PHP
committed knowing or intentional misconduct, a acceptance of responsibility for its misconduct.’’); (which was not a charge in this
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respondent must fully acknowledge the misconduct Joe W. Morgan, 78 FR 61961, 61963 (2013) (‘‘Given
that has been proved on the record to be deemed
proceeding), when asked by his counsel
[r]espondent’s multiple statements in which he
to have accepted responsibility, and absent such a blamed others for his troubles, that he never once if he violated his obligations as a DEA
showing, his evidence of remedial measures is acknowledged that he prescribed in violation of the registrant, he asserted that he did not
irrelevant. See Hatem M. Ataya, 81 FR 8221, 8242– CSA and Florida law, and that he attempted ‘‘know the specific legalities of DEA
43 (2016) (‘‘the Agency has held that proof of unpersuasively to minimize his culpability, the
remedial measures is rendered irrelevant where a overwhelming weight of the evidence fully supports
registration’’ but was willing ‘‘to tell you
respondent fails to accept responsibility for his the ALJ’s conclusion that [r]espondent is sorry only what I did was wrong, . . . without any
knowing or intentional misconduct’’). because he was caught.’’). equivocation.’’ Tr. 484–85. While he
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![Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49729
also acknowledged that ‘‘becoming Notably, even after the ALJ repeatedly Respondent testified that it was wrong
involved in a loved one’s care is expressed his puzzlement as to what for him to ‘‘prescribe controlled
foolish,’’ he then stated that he did not Respondent was accepting substances to someone who was under
‘‘know the letter or spirit of any law that responsibility for, Respondent testified the care of another physician for those
I transgressed.’’ Id. at 489. And when that he was accepting responsibility for same ailments,’’ this is not a full
asked why the Agency should entrust what the State said he did and again acknowledgment of his illegal behavior.
him with a new registration, he testified asserted that he thought the charges in Indeed, the mere fact that a physician
that ‘‘[i]f I can’t practice medicine, the DEA proceeding were the same as prescribes controlled substances to
conforming to every jot, tittle, to the the charges which he was found guilty someone who is under care of another
letter of the law, I can’t practice of by the State Board. Tr. 503–05. While physician for the same ailments would
medicine,’’ but he offered no the ALJ subsequently gave Respondent not necessarily give rise to liability
explanation as to how he would several chances to answer this question, under 1306.04(a). Such prescribing
conform ‘‘to the letter of the law’’ given his testimony continued to manifest would be entirely lawful under the CSA
his acknowledgment that he does not equivocation, minimization and an in bona fide emergency situations
‘‘know the letter of or spirit of any law unwillingness to acknowledge that he provided the prescriptions were limited
that [he] transgressed.’’ Id. at 489–90. violated the CSA’s prescription to what was medically necessary to treat
Indeed, throughout his testimony, requirement. a patient before the primary physician
Respondent asserted that he thought the For example, when asked to ‘‘clarify could resume care.
charges in this proceeding simply . . . what specific actions [he was] Here, however, Respondent has
accepting responsibility for,’’ admitted to acting outside of the usual
involved the same charges that he was
Respondent answered: ‘‘[v]iolating the course of professional practice only to
found guilty of in the State Board
previous order, right? Writing the extent he maintained ‘‘substandard
proceeding. He doggedly denied that he
prescriptions for my wife when I wasn’t records.’’ Notwithstanding Dr.
violated the CSA’s prescription
a treating physician, which I think is not Chambers’ testimony, Respondent has
requirement, asserting that that it
proper document, not fully proper failed to acknowledge that his
‘‘would be speculative . . . on some
documentation of those things.’’ Tr. 507. prescribing increased the risks of his
level’’ for him to testify as ‘‘to what
He subsequently testified that ‘‘if wife become dependent, overdosing, or
statutes I may or may not have
someone shows me . . . what I was diverting controlled substances, his
transgressed.’’ Id. at 498. And when
saying that I’m ignorant of the specifics failure to conduct appropriate
asked if he accepted that the of a DEA charge. But if I meet the
prescriptions he issued to his wife examinations, as well as his failure to
criteria and I accept I did it, then I did notify Dr. Webb that he had prescribed
‘‘were outside the course of professional it.’’ Id. at 508 (emphasis added). See
practice,’’ he asserted that he did not the drugs.
also id. at 514 (‘‘If someone shows me Moreover, before the State Board,
know how DEA defined the term I’ve done something wrong, I will admit
‘‘outside the course of professional Respondent maintained that his
it.’’) prescribing ‘‘was sporadic,’’ ‘‘was
practice’’ and maintained that I ‘‘do not However, as found above, the
know again . . . the specifics of . . . of always for a confined number of pills,’’
unrefuted evidence, including the that they were simply short gap fills
what I’m being charged with by DEA testimony of Dr. Chambers, establishes
now.’’ 50 Id. at 501. which ‘‘mirrored what [Dr. Webb] had
that Respondent’s prescribing did ‘‘meet done.’’ However, as found above, many
Given that the Show Cause Order the criteria’’ for a violation of 21 CFR of the prescriptions provided
provided fair notice to Respondent that 1306.04(a). Yet even when confronted substantially more medication than was
he was charged with violating 21 CFR with this evidence, Respondent still was necessary for a two to three-day period.
1306.04(a) and that he heard the unwilling to accept that he ‘‘did it.’’ Id. These include 14 zolpidem
evidence against him and put up no On further cross-examination, prescriptions, each of which provided at
defense, he was not required to Respondent was again asked what he least a 12-day supply (with 11 of the
speculate as to ‘‘what statutes [he] may thought was ‘‘wrong with respect to the prescriptions providing 20 to 30 dosage
or may not have transgressed.’’ prescriptions.’’ Id. at 510. While he units, most of which for a 20 to 30-day
Moreover, the CSA’s requirement that answered that ‘‘I shouldn’t have supply) and five of the alprazolam
‘‘a prescription for a controlled written’’ and ‘‘I violated the contract,’’ prescriptions, four of which were for a
substance . . . must be issued for a he then stated: ‘‘[p]rompt me. I’m not ten-day supply, the other being for an
legitimate medical purposes by [a] trying to minimizing anything.’’ Id. eight-day supply. There were also the
practitioner acting in the usual course of Minimizing is, however, exactly what
seven hydrocodone prescriptions and a
professional practice’’ is hardly a ‘‘jot’’ Respondent was engaged in. And when
diazepam prescription, which although
or a ‘‘tittle’’ of the Act.51 To the the Government again asked
they were for small amounts, did not
contrary, the rule is one of the Act’s Respondent if he was admitting that the
‘‘mirror what [Dr. Webb or any other
fundamental features, as one of its prescriptions were issued outside the
doctor] had done,’’ and are unsupported
purposes is to ‘‘ensure [] patients use usual course of professional practice,
by the findings of an examination and
controlled substances under the Respondent maintained that ‘‘as a
a diagnosis.
supervision of a doctor so as to prevent physician, I don’t understand that term’’ Respondent personally offered no
addiction and recreational abuse.’’ and he was only willing to admit to explanation in this proceeding (or
Gonzales, 546 U.S. at 274. acting outside of the usual course to the before the State Board) as to why he
extent that his documentation was
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issued these prescriptions, which
50 Yet in his Pre-hearing Statement, Respondent ‘‘substandard.’’ Id. at 511. He then clearly provided more drugs than were
stated that he ‘‘will acknowledge the allegations denied that his prescribing had medically necessary to address a two- to
raised by DEA in the Order to Show Cause.’’ ALJ increased the chances of his wife’s
Ex. 5, at 3. three-day period.52 Indeed, while
51 See Webster’s Third New International
becoming dependent, overdosing or
Dictionary, at 1221 (1976) (defining ‘‘jot’’ as ‘‘the diverting controlled substances. 52 In his Pre-hearing Statement, Respondent also
least bit: IOTA’’); see also id. at 2401(defining While it is true that on a still further stated ‘‘he will discuss the circumstances in which
‘‘tittle,’’ in part, as ‘‘a very small part’’). round of re-direct examination, Continued
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![49730 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices
Respondent maintained that he could ALJ’s assertion that ‘‘the central concern medical purpose. And he denied that
‘‘absolutely’’ be trusted to not engage in of this case . . . is that the Respondent his prescribing increased the risks of his
such prescribing in the future, that he wrote prescriptions for his wife when he wife become dependent, overdosing, or
was ‘‘not trying to avoid anything’’ and should not have,’’ the central concern of diverting controlled substances.
that ‘‘I have done everything that I know this case is what the Government Respondent has therefore failed to
to do to try to remedy this situation,’’ he alleged in the Show Cause Order and ‘‘express remorse to the full extent of
has not been forthcoming in this matter. proved at the hearing.53 The proof fully [his] wrongful conduct.’’ 54 R.D. 56.
Thus, I disagree with the ALJ that supported the allegations, which The ALJ further explained that he
Respondent has ‘‘express[ed] remorse to included that he issued controlled found Respondent’s remorse to be
the full extent of [his] wrongful substance prescriptions that ‘‘were sincere and that his acceptance of
conduct.’’ R.D. at 56. nontherapeutic, were for other than a responsibility was ‘‘credible.’’ R.D. 56–
The ALJ also gave weight to legitimate medical purpose, and were 57. This case, however, is less about
Respondent’s testimony during the outside the usual course of professional Respondent’s credibility (although there
second State Board hearing that he was practice,’’ that he issued the is ample reason to question it given his
‘‘committed to ‘absolute and complete prescriptions when his wife was ‘‘being testimony regarding what he thought he
adherence’ to applicable rules and issued prescriptions for the same or had been charged with in this
regulations,’’ id. at 55 (citing GE 13, at similar class of drugs by her . . . proceeding) 55 and more about the
9–10), and further asserted ‘‘that his psychiatrist, which [he] did without her weight to be given to his testimony.
commitment to adhere to all regulations psychiatrist’s knowledge or Moreover, the ALJ failed to apply the
governing controlled substances is permission,’’ and that his ‘‘actions Agency’s extensive case law which
genuine.’’ Id. at 56–57. The ALJ did not dramatically increased the chances of requires that an acceptance of
explain how Respondent would [his] wife’s dependency, overdose or responsibility be unequivocal, as well as
accomplish this given his repeated diversion.’’ ALJ Ex. 1, at 1–3 (¶¶ 3–7). that which requires a full
assertions in this proceeding that he did Moreover, the Government’s allegations acknowledgment of the proven
not ‘‘know the specific legalities of DEA that Respondent violated state and misconduct.
registration,’’ did not ‘‘know the letter or federal law by issuing controlled While I appreciate that the ALJ
spirit of any law that [he] transgressed,’’ substance prescriptions ‘‘without closely examined Respondent’s
that he does not ‘‘know precisely how conducting any examination,’’ Id. at 3 (¶ testimony both at this hearing and
the DEA defines’’ the term ‘‘outside the 8), or ‘‘without conducting sufficient before the state board (as have I), I find
course of professional practice,’’ and ‘‘as examinations,’’ id. (¶ 9), were not it particularly disturbing that
a physician, [he does not] understand simply additional factual allegations to Respondent has never offered an
[the] term.’’ Tr. 511. support the charges in paragraphs three explanation in any proceeding 56 for the
The ALJ also rejected as only to seven of the Show Cause Order but 54 Earlier in his Recommended Decision, the ALJ
‘‘technically correct’’ the Government’s were stand-alone charges. asserted that my decision in Arvinder Singh, 81 FR
argument that Respondent did not With respect to the proven 8247 (2016), ‘‘states only that a registrant may be
accept responsibility for failing to misconduct, Respondent admitted that required to acknowledge the scope of his
conduct examinations and/or he acted outside of the usual course of misconduct,’’ thus suggesting that a respondent’s
conducting insufficient examinations acknowledgment of the scope of his misconduct is
professional practice only to the extent optional and that he is not required to ‘‘accept
prior to issuing the prescriptions. R.D. that he failed to maintain proper responsibility for the consequences of his acts.’’
54–55. While the ALJ found that records. As for the ALJ’s further R.D. 54 (citing 81 FR at 8250–51). This is mistaken,
Respondent did not ‘‘specifically assertion that his acceptance of as the case clearly stated that the respondent ‘‘was
acknowledge that it was wrong of him required to acknowledge . . . the full scope of his
responsibility for failing to conduct criminal behavior and the risk of diversion it
to issue a prescription without first examinations was ‘‘subsumed in his created.’’ 81 FR at 8250. The risk of diversion was,
conducting an examination,’’ the ALJ general acceptance of responsibility,’’ of course, a consequence of the respondent’s acts,
faulted the Government for not asking the cited testimony does not support which involved pre-signing prescriptions for
this question of Respondent. Id. at 55. controlled substances which were subsequently
this, as the question, which was asked issued by nurses who were not lawfully authorized
The ALJ further reasoned that the by his counsel, made no reference to his to prescribe controlled substances and the
Government ‘‘overlook[ed] the central failing to conduct examinations. Tr. 515. respondent did not see the patients. Id. at 8248–49.
concern of this case, which is that the The ALJ acknowledged that ‘‘[i]t is The ALJ also gave weight to Respondent’s having
Respondent wrote prescriptions for his true . . . that Respondent did not ‘‘expressed remorse and accepted responsibility for
wife when he should not have.’’ Id. In writing those prescriptions during the first three
plainly and expressly accept weeks of his treatment at Acumen’’ as well as his
the ALJ’s ‘‘view, the Respondent’s responsibility for violating specific testimony during the second Board hearing. R.D. 55.
acceptance of responsibility for failing federal regulations.’’ R.D. 56. Indeed, at However, whether Respondent accepted
to examine his wife before writing her no point did Respondent admit that he responsibility for writing the prescriptions during
a prescription is subsumed in his his treatment at Acumen is wholly irrelevant.
violated 21 CFR 1306.04(a) with respect Likewise, because the Agency was not a party in the
general acceptance of responsibility.’’ to any of the prescriptions, including State Board’s proceedings, the weight to be given
Id. (citing Tr. 515). those which clearly were not two to to Respondent’s testimony before the Board is
I cannot agree with this reasoning. As three day ‘‘gap fills.’’ Nor did he ever substantially diminished. What matters is whether
for the ALJ’s faulting of the Government he accepted responsibility for the misconduct
admit that any of the prescriptions were alleged and proved in this proceeding.
for not asking Respondent if he accepted non-therapeutic or lacked a legitimate 55 While Respondent professed that he did not
responsibility for his failure to conduct understand what he was charged with in this
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examinations or conducting inadequate 53 Based on the Board’s order and his recovery proceeding, the Show Cause Order was clear on its
examinations, Respondent, and not the contract, Respondent ‘‘should not have’’ written the face. Respondent was also represented and if he
prescriptions. Yet, as the ALJ recognized when he truly did not understand the allegations, he should
Government, had the burden of have asked his counsel.
expressed his puzzlement (multiple times) at to
production on this issue. As for the what Respondent was accepting responsibility for, 56 While I have noted Respondent’s testimony in
the Government did not allege that Respondent the State Board proceeding as to why he issued the
he prescribed controlled substances to his wife.’’ violated his recovery contract or a Board Order; it prescriptions, so that there is no lack of clarity for
ALJ Ex. 5, at 3. Respondent, however, offered no alleged specific violations of federal and state laws future matters, a respondent is required to present
such testimony. and regulations. his evidence in the Agency’s proceeding.
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![Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49731
many prescriptions he issued which responsibility for his misconduct. While 21 U.S.C. 823(f). Accordingly, I will
clearly were not for short-term gap fills, there are cases in which the Agency has deny his application.
an issue which is not even discussed in imposed a sanction less than denial or
Order
the Recommended Decision. Thus, I revocation where a respondent has
conclude that Respondent does not failed to meet his burden on acceptance Pursuant to the authority vested in me
recognize the full extent of his of responsibility, those cases have by 21 U.S.C. 823(f) and 28 CFR 0.100(b),
misconduct. See MacKay v. DEA, 664 involved considerably less egregious I order that the application of Lon F.
F.3d 808, 820 (10th Cir. 2011); see also misconduct than the knowing and Alexander, M.D., for a DEA Certificate
Samuel Jackson, 72 FR 23848, 23852 intentional diversion of controlled of Registration as a practitioner, be, and
(2007) (noting a respondent’s burden to substances which occurred here. it hereby is, denied. This Order is
produce sufficient evidence to assure Because Respondent engaged in effective immediately.
the Administrator that he/she can be egregious misconduct which he has
failed to fully acknowledge, his Dated: October 17, 2017.
entrusted with the responsibility carried
by such a registration’’). evidence of remedial measures cannot Robert W. Patterson,
I therefore find that Respondent has rebut the Government’s prima facie Acting Administrator.
failed to produce sufficient evidence to showing that his registration ‘‘would be [FR Doc. 2017–23339 Filed 10–25–17; 8:45 am]
support a finding that he accepts inconsistent with the public interest.’’ BILLING CODE 4410–09–P
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Document Created: 2018-10-25 10:13:29
Document Modified: 2018-10-25 10:13:29
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