[Federal Register Volume 78, Number 150 (Monday, August 5, 2013)]
[Notices]
[Pages 47412-47419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18712]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 11-69]
Tyson D. Quy, M.D.; Decision and Order
On March 26, 2012, Administrative Law Judge (ALJ) Gail A. Randall
issued the attached Recommended Decision (hereinafter, cited as R.D.).
Neither party filed exceptions to the Recommended Decision.
Having reviewed the record in its entirety, I have decided to adopt
the ALJ's rulings, findings of fact, and conclusions of law except as
discussed below.\1\ While I reject two of the ALJ's conclusions of law,
I nonetheless agree with her ultimate conclusions of law.\2\ I
therefore adopt the ALJ's recommended sanction.
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\1\ I do not adopt the ALJ's legal conclusion that Respondent's
nolo contendere plea to the state law offense of driving while under
the influence of drugs (DUI), see Okla. Stat. tit. 47, Sec. 11-902;
constitutes a conviction of an offense under a ``law[] relating to
the manufacture, distribution or dispensing of controlled
substances.'' R.D. at 20. While DEA has long held that a plea of
nolo contendere constitutes a conviction even where adjudication is
withheld, see Kimberly Maloney, 76 FR 60922 (2011) (discussing
cases); a DUI conviction, even when it involves the ingestion of a
controlled substance, is too attenuated from the acts of
manufacture, distribution or dispensing of controlled substances for
the underlying offense to be deemed a ``law[] relating to the
manufacture, distribution, or dispensing of controlled substances.''
21 U.S.C. 823(f)(3). Cf. Jeffery M. Freesemann, 76 FR 60873, 60887
(2011) (holding that conviction for state law offense of
transporting a controlled substance does not relate to the
manufacture, distribution or dispensing of controlled substances);
Alvin Darby, 75 FR 26993, 27000 n.32 (2010) (holding that conviction
for offense of simple possession does not relate to the manufacture,
distribution, or dispensing of controlled substances); Super Rite
Drugs, 56 FR 46014, 46015 (1991) (accord). While there is agency
precedent to the contrary, see Jeffery Martin Ford, 68 FR 10750,
10753 (2003), interpreting this provision as encompassing offenses
such as simple possession, DUI, and transportation effectively reads
the ``relating to'' phrase out of the statute. However, as has been
made clear in other cases, the Agency can consider a DUI offense,
when the underlying facts establish that the registrant was under
the influence of a controlled substance, under factor five. Cf. Tony
Bui, 75 FR 49979, 49989 (2010) (``DEA has long held that a
practitioner's self-abuse of a controlled substance is a relevant
consideration under factor five and has done so even when there is
no evidence that the registrant abused his prescription writing
authority) (citing David E. Trawick, 53 FR 5326, 5327 (1988)).
The ALJ also concluded that Respondent violated the CSA (and
state law) when he purchased Xanax ``from an Internet pharmacy and
presumably without a legitimate prescription.'' R.D. at 20 (citing
21 U.S.C. 829(e)(1) & Okla. Stat. tit. 63, Sec. 2-309(B)(1)). As
for federal law, section 829(e)(1) provides that ``[n]o controlled
substance that is a prescription drug . . . may be delivered,
distributed, or dispensed by means of the Internet without a valid
prescription.'' 21 U.S.C. 829(e)(1) (emphasis added). However, no
evidence was offered that Respondent committed any of the prohibited
acts (such as a dispensing by writing a prescription for himself)
which are enumerated in the statute. Nor is there any evidence that
Respondent purchased the Xanax from a foreign pharmacy, and
therefore, imported the drug in violation of federal law. See 21
U.S.C. 957. I therefore do not adopt the ALJ's conclusion that he
violated section 829(e)(1). Nonetheless, the evidence shows that
while Respondent told two different stories as to how he obtained
the Xanax, he never claimed that he obtained it pursuant to a valid
prescription. Accordingly, his admitted possession of the drug
violated federal law. See 21 U.S.C. 844(a) (``It shall be unlawful
for any person knowingly or intentionally to possess a controlled
substance unless such substance was obtained directly, or pursuant
to a valid prescription or order, from a practitioner, while acting
in the course of his professional practice . . .'').
As for the ALJ's legal conclusion that Respondent violated
Oklahoma Stat. tit. 63, Sec. 2-309(B)(l); this provision prohibits
only dispensing without a prescription and not the purchasing of a
controlled substance. See id. (``no controlled dangerous substance
included in Schedule III or IV, which is a prescription drug . . .
may be dispensed without a written or oral prescription''). Here
again, I reject the ALJ's conclusion because there is no evidence
that Respondent dispensed the Xanax to himself.
\2\ Because there is no evidence that Respondent diverted
controlled substances to others and this is a first offense, I
conclude that consideration of the Agency's deterrence interests is
not warranted. See Kimberly Maloney, 76 FR 60922, 60923 (2011).
Finally, with respect to the ALJ's discussion of the amount of
time that has elapsed since Respondent's unlawful conduct, see R.D.
at 21, I have previously expressed my disagreement with the ALJ's
apparent view that there is no minimum period of time for which an
applicant or registrant must demonstrate his/her sobriety. See
Stephen L. Reitman, 76 FR 60889, 60890 (2011) (rejecting ALJ's
reasoning that ``nine months is not such a short recovery period
that it should serve as grounds for revocation'') (other citation
omitted). However, in Reitman, I noted that additional time had
passed since the closing of the record and that no evidence had been
presented (through a motion for reconsideration based on newly
discovered evidence) that the respondent had relapsed. Id. Likewise
here, more than two years have now passed since Respondent entered
treatment and there is no evidence that he has relapsed.
Accordingly, I conclude that Respondent has demonstrated his
sobriety for a sufficient period to support continuing his
registration, subject to the conditions set forth above.
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Accordingly, Respondent's application to renew his registration
will be granted, subject to the following conditions, which shall
remain in effect for a period of three years.
1. Respondent shall be restricted to prescribing controlled
substances and shall not administer or dispense any controlled
substances. Respondent shall not prescribe controlled substances to
himself or any family member. Respondent is further prohibited from
obtaining controlled substances from a manufacturer, distributor, or
pharmacy, whether the controlled substances are obtained by ordering
them from a manufacturer, distributor, or pharmacy, or provided to him
by a manufacturer, distributor, or pharmacy as a sample.
Respondent shall not, however, be prohibited from obtaining a
prescription for a controlled substance from another practitioner for a
legitimate medical condition and filling any such prescription at a
pharmacy.
2. Respondent shall comply with all terms and conditions of the
Order Accepting Voluntary Submittal to Jurisdiction issued by the
Oklahoma State Board of Medical Licensure and Supervision. Any
violation of the terms of the aforesaid order shall be grounds for the
suspension or revocation of Respondent's DEA Certificate of
Registration.
3. Respondent shall notify the nearest DEA field office of any
violation of the Order Accepting Voluntary Submittal to Jurisdiction
within seventy-two (72) hours of committing any such violation and
shall also agree to authorize the Oklahoma State Board of Medical
Licensure and Supervision to report any violations on his part of the
aforesaid order to the nearest DEA field office.
4. Respondent shall consent to unannounced inspections of his
registered location by DEA personnel and waives his right to require
agency personnel to obtain an Administrative Inspection Warrant prior
to conducting an inspection of his registered location.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 28 CFR 0.100(b), I order that the application of
Tyson D. Quy, M.D., to
[[Page 47413]]
renew his DEA Certificate of Registration as a practitioner, be, and it
hereby is, renewed, subject to the conditions set forth above. This
Order is effective immediately.
Dated: July 29, 2013.
Michele M. Leonhart,
Administrator.
Theresa Krause, Esq., for the Government
Robert A. Manchester III, Esq., for the Respondent
Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision
of the Administrative Law Judge
I. Procedural Background
Administrative Law Judge Gail A. Randall. The Deputy Assistant
Administrator, Drug Enforcement Administration (``DEA'' or
``Government''), issued an Order to Show Cause (``Order'') dated June
30, 2011, proposing to revoke the DEA Certificate of Registration, No.
FQ1513818, of Tyson D. Quy, M.D., (``Respondent''), as a practitioner,
pursuant to 21 U.S.C. 824(a)(4) (2006), and deny any pending
applications for renewal or modification of such registration pursuant
to 21 U.S.C. 823(f), because the continued registration of the
Respondent would be inconsistent with the public interest, as that term
is used in 21 U.S.C. 823(f). [Administrative Law Judge Exhibit (``ALJ
Exh.'') 1 at 1].
The Order stated that Respondent is currently registered with the
DEA as a practitioner with authority to handle controlled substances in
Schedules II-V, and that his registration is scheduled to expire on
April 30, 2012. [Id.].
The Order alleged that Respondent had been arrested on September 6,
2010 on the charge of driving under the influence and subsequently pled
no contest to the criminal charge on February 24, 2011. [Id.]. In
relation to this charge, the Order asserted that Respondent had
admitted he was impaired, that he had tested positive for illegal
controlled substances, and finally that he possessed a loaded firearm.
[Id.].
Next, the Order asserted that Respondent had admitted to the
Oklahoma State Board of Medical Licensure and Supervision (``Oklahoma
Medical Board'' or ``the Board''), that he had: (a) Stolen Ambien,
TussiCaps w/Hydrocodone, and Butalbital from his father's locked
medical supply cabinet and illegally consumed these controlled
substances; (b) consumed his grandmother's Xanax tablets which had been
left at his home; (c) ``doctor shopped'' to obtain Ambien prescriptions
from three different physicians; and (d) illegally purchased sixty 2
milligram dosage units of Xanax over the Internet. [Id.].
Lastly, the Order alleged that Respondent intentionally and
repeatedly failed to cooperate with investigators from the Board during
the Board's investigation. [Id. at 2]. And further that on March 10,
2011, the Board suspended Respondent's Oklahoma state medical license
for thirty days and placed him on probation for a period of five years.
[Id.].
The Deputy Assistant Administrator then gave the Respondent the
opportunity to show cause as to why his registration should not be
revoked on the basis of those allegations. [Id.].
On July 29, 2011, Respondent filed a request for a hearing in the
above-captioned matter. [ALJ Exh. 2].
After authorized delays, the hearing was conducted on January 10,
2012, in Oklahoma City, Oklahoma. [ALJ Exh. 4]. At the hearing, counsel
for the DEA called three witnesses to testify and introduced
documentary evidence. [Transcript (``Tr.'') Volume I]. The Respondent
also testified and introduced documentary evidence. [Id.].
After the hearing, the Government submitted Proposed Findings of
Fact, Conclusions of Law and Argument (``Govt. Brief''). The Respondent
also submitted Proposed Findings of Fact and Conclusions of Law
(``Resp. Brief'').
II. Issue
The issue in this proceeding is whether or not the record as a
whole establishes by a preponderance of the evidence that the Drug
Enforcement Administration should revoke the DEA Certificate of
Registration Number FQ1513818, of Tyson Quy, M.D., as a practitioner,
pursuant to 21 U.S.C. 824(a) (2006), and deny any pending applications
for renewal or modification of such registration, pursuant to 21 U.S.C.
823(f), because his continued registration would be inconsistent with
the public interest, as that term is defined in 21 U.S.C. 823(f). [ALJ
Exh. 3; Tr. 5-6].
III. Findings of Fact
A. Stipulated Facts
The parties have stipulated to the following facts:
1. Respondent is registered with the DEA as a practitioner in
Schedules II through V under DEA registration number FQ1513818 at 3700
North Kickapoo Street, Suite 124, Shawnee, Oklahoma 74804. The
Respondent's registration expires by its terms on April 30, 2012.
2. Alprazolam is a Schedule IV controlled substance pursuant to 21
CFR 1308.14(c)(1).
3. Xanax is a brand of alprazolam, a Schedule IV controlled
substance pursuant to 21 CFR 1308.14(c)(1).
4. Ambien is a brand of zolpidem, a Schedule IV controlled
substance pursuant to 21 CFR 1308.14(c)(51).
5. Zolpidem is a Schedule IV controlled substance pursuant to 21
CFR 1308.14(c)(51).
6. TussiCaps w/Hydrocodone is a hydrocodone combination product
which is a Schedule III controlled substance pursuant to 21 CFR
1308.13(e)(1)(iv).
7. Citalopram is an anti-depressant which is a non-controlled
substance.
8. Chlorpheniramine is an anti-histamine which is a non-controlled
substance. [ALJ Exh. 3].
B. Respondent's Addiction History
Respondent received an undergraduate degree from the University of
Oklahoma and then attended medical school at Ross University School of
Medicine. [Tr. 90]. He graduated from medical school in May of 2007.
[Tr. 133]. Following medical school, Respondent began a three year
residency program in family medicine, which he completed in July of
2010. [Tr. 90-91; Govt. Exh. 6].
Residency proved to be an extremely stressful time for Respondent.
[Govt. Exh. 6]. He testified that during his residency training, he
would routinely work long hours under difficult conditions, including
shifts up to thirty hours at a time. [Tr. 145]. As a result, Respondent
developed chronic insomnia, for which he sought treatment. [Govt. Exh.
6]. To treat his sleep issues, Respondent's primary care physician
prescribed him Ambien, a sleep aid medication and Schedule IV
controlled substances. [Tr. 133; Govt. Exh. 6; FOF 4,5]. Dr. Quy
credibly testified that he had never taken a controlled substance prior
to receiving this prescription. [Tr. 145].
Dr. John Koontz served as Respondent's primary care physician
during this period. [Tr. 10-11]. He testified that he treated
Respondent as a patient from approximately 2009 to July 22, 2010. [Tr.
11-12]. While Dr. Koontz could not recall how many Ambien prescriptions
he issued to Respondent, Respondent's prescription history report and
copies of his prescriptions indicate that Dr. Koontz issued at least
eight prescriptions for Ambien or its generic equivalent, zolpidem,
from approximately August 18, 2009, to July 22, 2010. [Tr. 24; Govt.
Exh. 4; Govt. Exh. 2]. Dr. Koontz also approved numerous refill
requests on these prescriptions at the request of Dr. Quy. [Govt. Exh.
2; Govt. Exh. 4].
[[Page 47414]]
Respondent testified that during this period he developed an
addiction to Ambien. [Tr. 145]. To feed his addiction, he primarily
obtained Ambien from the prescriptions that Dr. Koontz issued him. [Tr.
129-130]. Dr. Quy also testified that he obtained Ambien from
prescriptions written to him by other doctors. [Id.; Govt. Exh. 2;
Govt. Exh. 4]. While Ambien remained Dr. Quy's primary substance of
abuse during this period, he also admitted to obtaining and abusing
additional controlled substances. [Tr. 162]. These included alprazolam,
which he purchased from the Internet, and butalbital and TussiCaps,
both of which he stole from his father's locked prescription samples
closet. [Tr. 130-31].
C. The July 22, 2010 Prescription From Dr. Koontz
On July 22, 2010, Dr. Koontz issued Respondent a prescription for
thirty 10 milligram units of Ambien. [Tr. 13; Govt. Exh. 3]. Shortly
after this July 22, 2010 visit, Dr. Koontz obtained Respondent's
prescription medical profile report and discovered that Respondent had
been seeing other doctors and receiving controlled substances
prescriptions from them. [Tr. 24-25]. Respondent did not inform Dr.
Koontz that he was seeing other doctors or that he was receiving
additional controlled substances prescriptions. [Tr. 16]. After this
discovery, Dr. Koontz refused to see Respondent as a patient. [Tr. 12].
Dr. Koontz was shown the July 22, 2010 prescription by a DEA
investigator on August 5, 2011. [Tr. 15]. At the hearing, Dr. Koontz
testified that the prescription contained a notation for four refills,
which Dr. Koontz claimed he did not write. [Tr. 14]. The ``x4'' was not
written on the prescription at the place where Dr. Koontz enters
refills. [Tr. 15]. I credit Dr. Koontz's testimony that he did not
write the refill notation on the prescription. Dr. Koontz, however, did
not see Respondent personally on that July 22, 2010 office visit. [Tr.
29]. Instead Dr. Koontz's physician assistant saw Dr. Quy and only had
Dr. Koontz sign the prescription. [Id.]. Dr. Koontz also could not
recall whether he handed the prescription directly to Dr. Quy after he
signed it or whether he gave it to his office staff to hand to
Respondent. [Tr. 35-36]. In fact, Dr. Koontz visibly struggled at the
hearing to recall the events of the July 22, 2010 office visit.
On the other hand, Dr. Quy testified that he did not forge the
refill notation, and I find his testimony credible. [Tr. 95]. As a
physician, if he would have forged the prescription, he would have
placed the refill number at the appropriate place on the prescription
for annotating refills. [Tr. 96, 128]. The ``x4'' was not located in
the appropriate refill place on the prescription. I also find his
account of the visit to Dr. Koontz's office credible. He readily
recalled details of the visit, identified the physician's assistant he
saw, and proffered a plausible explanation for the refill notation,
namely that a member of Dr. Koontz's office staff may have approved
these refills to spare a busy resident an additional office visit. [Tr.
137-138; 95; 142-143]. Dr. Quy's testimony was also supported by
documentary evidence which confirmed his ready access to refills from
Dr. Koontz's office upon request, along with prescriptions that he
obtained from other physicians. [Govt. Exh. 2; Govt. Exh. 4]. He had no
need to forge refills on the prescription.
In light of the Government's failure to proffer any additional
evidence that Dr. Quy was responsible for the refill notation on the
prescription, I find that the Government has failed to prove, by a
preponderance of the evidence, that Dr. Quy forged the refill notation
on the July 22, 2010 prescription.
D. Respondent's DUI Arrest
On September 6, 2010, Respondent was scheduled to work a shift
beginning at 6:00 a.m. at Purcell Hospital. [Govt. Exh. 5]. When
Respondent went to work that morning, other hospital employees observed
that he appeared to be in an impaired state. [Id.]. These employees
reported Respondent to his supervisor, Dr. Berry Winn. [Id.]. Dr. Winn
instructed Respondent not to see patients and to sleep in a room at the
hospital. [Id.]. Respondent slept until approximately 12:45 p.m. when
he attempted to drive himself home from the hospital. [Id.].
While driving home, Respondent was stopped by a Purcell police
officer on suspicion of driving under the influence. [Id.]. Respondent
performed poorly on the field sobriety test and agreed to submit to a
drug test at Purcell Hospital. [Id.]. During the search of Respondent's
car, the officer found Dr. Quy's loaded nine millimeter pistol, along
with additional rounds of ammunition and a hunting knife. [Id.]. Dr.
Quy possesses an active concealed carry license from the state of
Oklahoma. [Resp. Exh. 7].
The officer then arrested Respondent for driving under the
influence of drugs and for possession of a loaded weapon while under
the influence of narcotics. [Govt. Exh. 5]. Dr. Quy's sample tested
positive for Ambien, alprazolam, butalbital, chlorpheniramine, and
citalopram. [Id.]. The next day, September 7, 2010, Respondent was
charged with one count of driving under the influence of drugs. [Id.].
He was arraigned in the District Court of McClain County, Oklahoma.
[Id.].
On February 24, 2011, Respondent entered a plea of nolo contendere
to the charge. [Govt. Exh. 7; Tr. 55]. The Court sentenced Dr. Quy to
six months imprisonment, all of which were deferred, pending his
satisfactory completion of the probationary conditions. [Govt. Exh. 7].
Respondent successfully completed his probation by attending a DUI
school, paying a fine and court costs, obtaining a substance abuse
evaluation, and attending a victims impact panel. [Id.]. After Dr. Quy
satisfied these probationary conditions, the case was dismissed on
August 23, 2011. [Govt. Exh. 7; Tr. 115-116].
E. Oklahoma Medical Board Investigation
On September 7, 2010, Steve Washbourne, the Director of
Investigations for the Oklahoma Medical Board, received a phone call
from Dr. Winn about Respondent. [Tr. 38-39]. Dr. Winn informed Mr.
Washbourne that Dr. Quy had reported to work at Purcell Hospital in an
impaired state and had been subsequently instructed not to see
patients. [Tr. 39]. Dr. Winn provided Mr. Washbourne with Respondent's
telephone number. [Id.].
That same day, Mr. Washbourne contacted Respondent via telephone.
[Tr. 40]. During their conversation Respondent admitted to taking
Ambien prior to reporting for his shift at the hospital and that he had
been instructed not to see patients that day. [Id.]. Respondent further
admitted that he had been stopped while driving home from the hospital
and had been arrested by a Purcell police officer. [Tr. 40-41]. Mr.
Washbourne directed Respondent to contact Dr. Lanny Anderson, the head
of the Oklahoma Health Professionals Program (``HPP''), and obtain a
substance abuse evaluation. [Tr. 41-42].
On September 8, 2010, Mr. Washbourne conducted an interview with
Respondent at the Board's office. [Tr. 43]. I find Mr. Washbourne's
testimony consistent with the documentary exhibits and credible. Mr.
Washbourne testified that Respondent's demeanor at the meeting was ``a
little subdued.'' [Tr. 45]. During this interview, Mr. Washbourne
questioned Respondent on the events of September 6, 2010. Dr. Quy told
Mr. Washbourne that he had taken three Ambien pills prior to his shift,
two on the evening of
[[Page 47415]]
September 5, 2010, and one at 2:30 a.m. on the morning of September 6,
2010. [Tr. 43]. Respondent also admitted to taking TussiCaps,
butalbital, and Xanax prior to the start of his shift. [Tr. 43-44]. In
response to Mr. Washbourne's questioning, Dr. Quy told him,
untruthfully, that he had obtained the TussiCaps from samples stored at
the offices where he worked and the Xanax from his grandmother. [Tr.
43-44, 60-61, 94]. Dr. Quy also told Mr. Washbourne that he received
other controlled substances pursuant to prescriptions written by other
physicians. [Tr. 44-45]. Mr. Washbourne then directed Dr. Quy to obtain
an assessment from the HPP. [Tr. 45].
F. Respondent's Inpatient Treatment at Pine Grove
On September 27, 2010, Dr. Quy went for a three-day evaluation at
Pine Grove, which is a comprehensive addiction treatment center located
in Hattiesburg, Mississippi. [Resp. Exh. 2]. Following his preliminary
evaluation, Respondent entered Pine Grove on October 5, 2010 for an
intensive ninety-day addiction treatment program. [Id.]. At Pine Grove,
Dr. Quy fully participated in a variety of treatment activities,
including educational lectures, group and individual therapy, weekly
12-step meetings, specialized programs for impaired professionals, and
written assignments. [Id.]. And throughout the ninety-day treatment
program, Dr. Quy was subject to random urinalysis screening, all of
which he passed. [Id.].
Respondent's treating physician and clinical therapist prepared a
report that detailed his treatment at Pine Grove. [Id.]. Although Dr.
Quy apparently initially struggled with denial and confusion about his
addiction, they acknowledged he ``made steady progress'' during his
stay and ultimately ``became forthcoming about his use of chemicals.''
[Id.]. They highlighted his positive attitude to and compliance with
his treatment plan. [Id.]. Lastly, they noted that Dr. Quy's wife was
supportive of his treatment and recovery efforts and that she
maintained frequent contact with the Pine Grove staff during his stay.
[Id.; see also Resp. Exh. 8 for evidence of Mrs. Quy's current
support].
On December 31, 2010, Pine Grove discharged Respondent after he
successfully completed the treatment program. [Id., Resp. Exh. 3]. His
discharge diagnosis was sedative/hypnotic dependence. [Resp. Exh. 2].
Pine Grove recommended that Dr. Quy be allowed to return to work as a
physician beginning on January 3, 2011, and that he follow the
restrictions set forth in his monitoring contract with the Oklahoma
Medical Board. [Id.].
Dr. Quy credibly testified that he benefitted from his treatment at
Pine Grove. [Tr. 102]. Specifically he testified that his treatment at
Pine Grove allowed him to recognize and acknowledge his addiction. [Tr.
102]. He further testified that the Pine Grove program taught and
reinforced techniques and behaviors to help him manage his addiction.
[Id.]. Respondent noted that since his treatment at Pine Grove, he has
used these tools on a daily basis to address his addiction and continue
his recovery. [Tr. 102-03].
G. Respondent's Post-Treatment Interview With the Medical Board
Mr. Washbourne conducted a post-treatment interview with Respondent
on January 25, 2011. [Tr. 46]. During this interview, Respondent
initially maintained that he obtained the TussiCaps and butalbital from
his employer and the Xanax from a family member. [Tr. 46-47]. When
pressed by Mr. Washbourne, Dr. Quy admitted that he had actually stolen
the TussiCaps and butalbital from his father's drug cabinet. [Tr. 47,
49]. And when asked about the Xanax, Respondent gave Mr. Washbourne a
blister pack of the medication, which he claimed was left at his house
by his grandmother who had visited from Laos. [Tr. 47-48; Govt. Exh.
8]. Mr. Washbourne discovered the manufacture date on the blister pack
did not match the information provided by Respondent and asked him
about the discrepancy. [Tr. 48]. At that point, Respondent admitted
that he had obtained the Xanax by purchasing the blister packs over the
internet. [Tr. 48-49]. At the conclusion of the interview, Mr.
Washbourne instructed Respondent that the Medical Board would
subsequently issue a complaint and citation against him. [Tr. 51].
H. Medical Board Action Against Respondent
On January 28, 2011, the Board issued a Complaint and Citation
against Respondent. [Govt. Exh. 5]. On March 10, 2011, Respondent
voluntarily submitted to the Board's jurisdiction and entered into an
Order Accepting Voluntary Submittal to Jurisdiction with the Board.
[Id.]. This Order found that Dr. Quy had committed several violations
of the Oklahoma Allopathic Medical and Surgical Licensure and
Supervision Act. [Id.]. As a result of these violations, the Board
suspended Dr. Quy's medical license for thirty days, until April 9,
2011, and placed him on probation for five years. [Id.]. The Board
ordered, among other probationary conditions, that Dr. Quy sign a
contract with the HPP and abide by all terms of that contract. [Id.].
Dr. Quy's Oklahoma medical license is currently active and subject
to a five year probationary period scheduled to end on April 9, 2016.
Currently Respondent's probationary conditions include: (a) Not
supervising allied health professionals that require the surveillance
of a licensed physician; (b) submitting biological fluid specimens for
analysis upon request of the Oklahoma State Board of Medical Licensure
and Supervision; (c) not prescribing, administering or dispensing any
medications for personal use or for use by a family member; (d) not
using any medication except as authorized by his treating physician for
a legitimate medical need and informing any treating physician of the
Board's Order; (e) not ingesting any substances, including alcohol,
which would cause a body fluid sample to test positive for prohibited
substances; (f) releasing any and all medical and psychiatric records
to the State Board including his treatment records at Pine Grove; (g)
abiding by the recommendations of Pine Grove and comply with his
postcare contract with Pine Grove; (h) signing a contract with the
Health Professionals Recovery Program and abiding by its terms; (i)
obtaining individual therapy from a Board approved therapist and
providing quarterly reports from his therapist to the Board; (j)
obtaining individual treatment from a Board approved psychiatrist and
providing quarterly reports from his psychiatrist to the Board; (k)
attending four 12-Step meetings per week, including one Health
Professionals Recovery Program meeting; (l) promptly notifying the
Board of any relapse or arrest or citation for traffic or criminal
offenses involving substance abuse; and (m) keeping the Board informed
of his current address. [Govt. Exh. 5].
I. Respondent's Current Situation
Respondent credibly testified that he has been clean and sober
since October 5, 2010. [Tr. 162]. He is currently employed as a family
medicine physician with Midwest Physicians in Shawnee, Oklahoma. [Tr.
90]. Dr. Quy possesses an active DEA registration, Number FQ1513818,
which was issued on July 13, 2009 and is not scheduled to expire until
April 30, 2012. [Govt. Exh. 1; FOF 1]. Without a DEA registration,
Respondent testified that he would not be able to have a meaningful
medical practice. [Tr. 119-120]. Respondent's current employer, like
most hospitals, requires physicians to
[[Page 47416]]
maintain full DEA registration privileges. [Tr. 123].
Dr. Quy's state controlled substances registration is likewise
active and subject to a probationary period supervised by the Oklahoma
Bureau of Narcotics and Dangerous Drugs Control (``OBNDD''). [Tr. 92-
93]. Currently OBNDD's probationary conditions include: (a) Dr. Quy
must follow the stipulations outlined in the Medical Board's order; (b)
he must not physically handle any controlled substances; and (c) that
Dr. Quy may only write prescriptions in an office with a supervising
physician. [Id. at 93]. If Dr. Quy violates his probation, he faces a
minumum fine of five thousand dollars and the loss of his state
controlled substances registration. [Id.].
Respondent is currently in full compliance with the conditions of
the Board's order and his probation with the Medical Board. [Tr. 54].
In addition, he is in full compliance with the probationary conditions
of OBNDD. [Tr. 82, 92-93]. All of his alcohol and drug screens have
tested negative. [Resp. Exh. 1; Resp. Exh. 9; Tr. 54]. Respondent began
these drug testing screens on January 5, 2011, three months prior to
receiving probation from the Board. [Tr. 66]. Mr. Washbourne testified
that the Board and HPP are closely monitoring Dr. Quy's recovery and
his continued compliance with the probationary conditions. [Tr. 62-63].
Similarly, Dr. Anderson, the head of the HPP, reported that ``all steps
are in place to allow [Dr. Quy] to practice safely and maintain a good
recovery plan.'' [Resp. Exh. 4].
IV. Statement of Law and Discussion
A. Position of the Parties
1. Government's Position
The Government asserts that the appropriate remedy in this matter
is revocation of the Respondent's registration. [Govt. Brief at 22].
Specifically in addressing the Section 823(f) public interest factors,
the Government argues that all five factors support the revocation of
Respondent's registration. [Govt. Brief at 15]. Under the first factor,
the Government asserts that the imposition of probationary conditions
on Respondent's state licenses, namely his medical license and OBNDD
registration, ``weighs against a finding that Dr. Quy's registration is
consistent with the public interest.'' [Govt. Brief at 16]. Next the
Government cites Respondent's history of violating federal and state
law by illegally obtaining and using controlled substances as relevant
conduct under factors two and four which supports the revocation of his
registration. [Govt. Brief at 17-18]. The Government also notes that
the Controlled Substances Act has a ``carefully crafted scheme for
regulating the distribution of controlled substances and preventing the
diversion of controlled substances into illegitimate uses and drug
abuse.'' The Government argues that the Respondent's conduct violated
this closed regulatory system. [Govt. Brief at 17].
For factor three, the Government argues that Respondent's DUI
arrest and subsequent no contest plea constitutes a relevant conviction
under Agency precedent and further supports the requested revocation of
his registration. [Govt. Brief at 18-19].
Lastly under factor five, the Government makes several arguments.
First the Government cites Dr. Quy's history of abusing controlled
substances as relevant conduct that threatens the public health and
safety. [Govt. Brief at 19]. Further, the Government asserts that the
Respondent ``permitted the drug diversion of controlled substances by
illegally purchasing, stealing, and using controlled substances.''
[Govt. Brief at 20]. The Government also argues that Dr. Quy has not
accepted responsibility or shown any remorse for his previous unlawful
conduct. [Govt. Brief at 21-22]. In conclusion, the Government claims
that Dr. Quy's continued registration with the DEA would be
inconsistent with the public interest and that his registration should
be revoked. [Govt. Brief at 22-23].
2. Respondent's Position
Respondent asserts that the Government has failed to establish that
Dr. Quy's continued registration would be inconsistent with the public
interest. [Resp. Brief at 8]. While acknowledging Dr. Quy's prior
substance abuse problem, Respondent argues that he has taken ``positive
steps to address and correct this problem.'' [Id.]. These
rehabilitative steps include completing ninety days of inpatient
substance abuse treatment, and agreeing to an aftercare contract that
requires, among other conditions, periodic alcohol and drug screens and
weekly participation in support group meetings. [Resp. Brief at 5, 8].
Respondent claims that the DEA has ignored Dr. Quy's substantial
efforts at rehabilitation and his demonstrated commitment to fully
complying with DEA regulations. [Resp. Brief at 8].
Respondent also argues that the public interest will be safeguarded
because Dr. Quy is subject to intensive monitoring and oversight
mandated by the Oklahoma licensing authorities. [Resp. Brief at 8].
These authorities, the Oklahoma Medical Board and OBNDD, have continued
to permit Dr. Quy to prescribe controlled substances. [Resp. Brief at
7]. And the DEA itself, Respondent notes, is fully aware that Dr. Quy
remains in active compliance with his probationary conditions. [Resp.
Brief at 4]. Respondent concludes by arguing that the DEA has failed to
meet its burden to show that Dr. Quy's continued registration is
inconsistent with the public interest. [Resp. Brief at 8-9].
B. Statement of Law and Analysis
Pursuant to 21 U.S.C. 824(a)(4) (2006),\1\ the Administrator may
revoke a DEA Certificate of Registration if she determines that such
registration would be inconsistent with the public interest as
determined pursuant to 21 U.S.C 823(f). In determining the public
interest, the following factors are considered:
---------------------------------------------------------------------------
\1\ The Administrator has the authority to make such a
determination pursuant to 28 CFR 0.100(b) (2011).
(1) The recommendation of the appropriate State licensing board
or professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting
research with respect to controlled substances.
(3) The applicant's conviction record under Federal or State
laws relating to the manufacture, distribution, or dispensing of
controlled substances.
(4) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health and
safety.
21 U.S.C. 823(f) (2006).
These factors are to be considered in the disjunctive; the
Administrator may rely on any one or a combination of factors and may
give each factor the weight she deems appropriate in determining
whether a registration should be revoked. See Robert A. Leslie, M.D.,
68 FR 15,227, 15,230 (DEA 2003). Moreover, the Administrator is ``not
required to make findings as to all of the factors.'' Hoxie v. DEA, 419
F.3d 477, 482 (6th Cir. 2005); see also Morall v. DEA, 412 F.3d 165,
173-74 (D.C. Cir. 2005).
The Government bears the burden of proving that the requirements
for revocation are satisfied. 21 CFR 1301.44(e) (2011). Once the
Government has met its burden of proof, the burden of proof shifts to
the Respondent to show why his continued registration would be
consistent with the public's interest. See Medicine Shoppe--
Jonesborough, 73 FR 364, 380 (DEA 2008). To this point, the Agency has
repeatedly held that the ``registrant must accept responsibility for
[his] actions
[[Page 47417]]
and demonstrate that [he] will not engage in future misconduct.''
Medicine Shoppe--Jonesborough, 73 FR at 387; see also Samuel S.
Jackson, D.D.S., 72 FR 23,848, 23,853 (DEA 2007). In short, after the
Government makes its prima facie case, the Respondent must prove by a
preponderance of the evidence that he can be entrusted with the
authority that a registration provides by demonstrating that he accepts
responsibility for his misconduct and that the misconduct will not re-
occur.
1. Factor One: Recommendation of Appropriate State Licensing Board
Although the recommendation of the applicable state medical board
is probative to this factor, the Agency possesses ``a separate
oversight responsibility with respect to the handling of controlled
substances'' and therefore must make an ``independent determination as
to whether the granting of [a registration] would be in the public
interest.'' Mortimer B. Levin, D.O., 55 FR 8,209, 8,210 (DEA 1990); see
also Jayam Krishna-Iyer, M.D., 74 FR 459, 461 (DEA 2009). The ultimate
responsibility to determine whether a registration is consistent with
the public interest has been delegated exclusively to the DEA, not to
entities within state government. Edmund Chein, M.D., 72 FR 6,580,
6,590 (DEA 2007), aff'd, Chein v. DEA, 533 F.3d 828 (D.C. Cir. 2008).
So while not dispositive, state board recommendations are relevant on
the issue of revoking or maintaining a DEA registration. See Gregory D.
Owens, D.D.S., 74 FR 36,751, 36,755 (DEA 2009); Martha Hernandez, M.D.,
62 FR 61,145, 61,147 (DEA 1997).
In this case, the Oklahoma Medical Board suspended Dr. Quy's
medical license for a period of thirty days, from March 10, 2011, to
April 9, 2011, and placed him on probation for five years. [Govt. Exh.
5]. At the conclusion of the thirty-day suspension, the Board
reinstated Dr. Quy's medical license. Therefore he currently possesses
an active Oklahoma medical license, subject to the five year
probationary period scheduled to end on April 9, 2016.
The Oklahoma Bureau of Narcotics and Dangerous Drugs Control
(``OBNDD''), which issues state controlled substances registrations,
also placed Respondent on probation. [Tr. 92-94]. Likewise, Respondent
currently possesses an active, in all substances, controlled substances
registration in Oklahoma subject to the supervision of the OBNDD. [Id.]
Therefore, I find that both the Oklahoma State Medical Board and
the OBNDD have allowed Respondent to retain his medical license and
state controlled substances registration subject to the Board's and
OBNDD's monitoring. Although neither the Board nor OBNDD have made an
official recommendation for this proceeding, I find these actions by
the Board and OBNDD weigh in favor of continuing the Respondent's
registration. See Vincent J. Scolaro, D.O. 67 FR 42,060, 42,064 (DEA
2002) (noting that the Agency properly considers ``facts surrounding
state licensure'' under this factor). While their recommendations weigh
in favor of continuing the Respondent's registration, nevertheless, the
Agency has consistently held that a practitioner's possession of State
authority, while a prerequisite to maintenance of a registration, is
not dispositive of the public interest determination. Mark De La Lama,
P.A., 76 FR 20,011, 20,018 (DEA 2011).
2. Factors Two and Four: Applicant's Experience With Controlled
Substances and Compliance With Applicable State, Federal, or Local Laws
Relating to Controlled Substances
Under the Controlled Substances Act, it is ``unlawful for any
person knowingly or intentionally . . . to acquire or obtain possession
of a controlled substance by misrepresentation, fraud, forgery,
deception, or subterfuge.'' 21 U.S.C. 843(a)(3) (2006); see also Okla.
Stat. tit. 63, Sec. 2-406(3) (2012) (analagous state law requirement).
Additionally, Oklahoma law not only proscribes such conduct by
physicians, but also sets forth additional restrictions on the handling
and usage of controlled substances by Oklahoma doctors. See Okla. Stat.
tit. 59, Sec. 509 (2012) (defining ``unprofessional conduct'' under
the Oklahoma Allopathic Medical and Surgical Licensure and Supervision
Act'') ; Okla. Admin. Code Sec. 435:10-7-4 (2010) (enumerating
additional conduct covered by the statutory term ``unprofessional
conduct''). These restrictions include prohibitions on purchasing and
administering controlled substances for the physician's personal use
and using habit-forming drugs.\2\
---------------------------------------------------------------------------
\2\ Okla. Stat. tit. 59, Sec. 509(4) (2012) (defining
unprofessional conduct to include``[h]abitual intemperance or the
habitual use of habit-forming drugs''); Okla. Admin. Code Sec.
435:10-7-4(5) and (26) (2010) (further defining unprofessional
conduct to include ``[p]urchasing or prescribing any regulated
substance in Schedule I through V, as defined by the Uniform
Controlled Dangerous Substances Act, for the physician's personal
use'' and ``prescribing, selling, administering, distributing,
ordering, or giving any drug legally classified as a controlled
substance or recognized as an addictive dangerous drug to a family
member or to himself or herself'').
---------------------------------------------------------------------------
It is undisputed that Respondent violated both the CSA and Oklahoma
law by obtaining controlled substances for his own use. Likewise by
engaging in ``doctor shopping'' to obtain additional prescriptions for
Ambien, Dr. Quy violated federal and state law. 21 U.S.C. 843(a)(3)
(2006); Okla. Stat. tit. 63, Sec. 2-406(3) (2012). Additionally by
stealing and unlawfully consuming TussiCaps, a schedule III controlled
substance, and butalbital from his father's drug cabinet, Dr. Quy
committed another serious violation of the CSA and Oklahoma law. 21
U.S.C. 829(b) (2006) (``[N]o controlled substance in schedule III or IV
. . . may be dispensed without a written or oral prescription''); Okla.
Stat. tit. 63, Sec. 2-309(B)(1) (2012) (analgous state law
requirement). Finally, his purchase of Xanax, a schedule IV controlled
substance, from an Internet pharmacy and presumably without a
legitimate prescription also violated both federal and state law. 21
U.S.C. 829(e)(1) (2006) (``No controlled substance that is a
prescription drug . . . may be delivered, distributed, or dispensed by
means of the Internet without a valid prescription''); Okla. Stat. tit.
63, Sec. 2-309(B)(1) (2012). Such serious violations of federal and
state law, coupled with Dr. Quy's unlawful consumption of controlled
substances, weigh in favor of revoking the Respondent's DEA
registration. Accordingly, under factors two and four, I find that the
Government has met its burden and that grounds do exist for revoking
the Respondent's DEA certificate of registration.
3. Factor Three: Applicant's Conviction Record Relating to Controlled
Substances
Respondent was charged with one misdemeanor count of driving under
the influence of drugs in violation of Okla. Stat. tit. 47, Sec. 11-
902 (2012). [Govt. Exh. 7]. Dr. Quy pled no contest to the charge and
after succesfully complying with the Court's order, the charge was
dismissed. [Id.]. After his arrest on this charge, Dr. Quy tested
postitive for Ambien, alprazolam, butalbital, chlorpheniramine, and
citalopram. [Govt. Exh. 5].
The Agency has held that a nolo contendere plea is sufficient to
find that the Respondent's conviction record relating to controlled
substances weighs against his continued registration. Clinton D. Nutt,
D.O., 55 FR 30,992 (DEA 1990). Also, because the evidence in the record
indicates that Respondent had abused controlled substances in the hours
prior to this arrest, I find that this incident is relevant to factor
three. But see Mark De La Lama, P.A, 76 FR
[[Page 47418]]
20,011, 20,015 n.11 (DEA 2011) (finding that a DUI arrest was not
relevant because there was no evidence that the respondent was under
the influence of a controlled substance at the time of the incident).
Accordingly, I find that consideration of this factor weighs in favor
of revoking the Respondent's DEA certificate of registration.
4. Factor Five: Other Factors Affecting the Public Interest
The Agency has long held that a practitioner's self-abuse of
controlled substances constitutes ``conduct which may threaten public
health and safety.'' 21 U.S.C. 823(f)(5) (2006); see also Tony T. Bui,
M.D., 75 FR 49,979, 49,990 (DEA 2010); Kenneth Wayne Green, Jr., M.D.,
59 FR 51,453 (DEA 1994); David E. Trawick, D.D.S., 53 FR 5,326 (DEA
1988). Here, the Respondent self-abused Ambien, alprazolam, butalbital,
and TussiCaps. Such unlawful ingestion of controlled substances,
especially when a physician is caring for patients while under the
influence of these drugs, places the public health and safety in
jeopardy. Another significant factor in this case is the fact that the
Respondent unlawfully consumed controlled substances prior to reporting
for duty at Purcell Hospital. Although this record contains no evidence
of any harm coming to his patients, thanks to the actions of the staff
at Purcell Hospital, the fact that he was willing to risk such harm is
inconsistent with the requirements of a DEA registrant.
But the critical consideration in this proceeding is whether the
circumstances that existed during Respondent's addiction to controlled
substances have changed sufficiently to support a conclusion that
maintaining Respondent's registration would be in the public interest.
See Ellis Turk, M.D., 62 FR 19,603, 19,604 (DEA 1997). As this Agency
has repeatedly held, a proceeding under the Controlled Substances Act
`` `is a remedial measure, based upon the public interest and the
necessity to protect the public from those individuals who have misused
. . . their DEA Certificate of Registration, and who have not presented
sufficient mitigating evidence to assure the Administrator that they
can be entrusted with the responsibility carried by such a
registration.' '' Jon Karl Dively, D.D.S., 72 FR 74,332, 74,334 (DEA
2007) (quoting Samuel S. Jackson, D.D.S., 72 FR 23,848, 23,853 (DEA
2007)).
In this case, I found the Respondent credible when he testified
that he has been drug free since October 5, 2010. He has remained
active in his recovery, complied with all terms of his probation, and
his drug screens have all tested negative. As the Deputy Administrator
has previously determined, ``[t]he paramount issue is not how much time
has elapsed since [the Respondent's] unlawful conduct, but rather,
whether during that time [the] Respondent has learned from past
mistakes and has demonstrated that he would handle controlled
substances properly if entrusted with a DEA registration.'' Leonardo V.
Lopez, M.D., 54 FR 36,915 (DEA 1989). Even though it has been
previously found that time, alone, is not dispositive in such
situations, it is certainly an appropriate factor to be considered. See
Robert G. Hallermeier, M.D., 62 FR 26,818 (DEA 1997) (four years); John
Porter Richards, D.O., 61 FR 13,878 (DEA 1996) (ten years); Norman
Alpert, M.D., 58 FR 67,420, 67,421 (DEA 1993) (seven years).
Here, the conditions of Respondent's probation with the Oklahoma
Medical Board require him to remain compliant with the contract he
signed with the Oklahoma Health Professionals Program. [Govt. Exh. 5;
Resp. Exh. 4]. Additionally during Dr. Quy's five year probationary
period, he is subject to supervised random drug screens from both the
HPP and the Board, and in the event of a relapse, Respondent must
promptly notify the Board. [Id.]. As part of his probation conditions,
Respondent must attend support group meetings four times a week,
receive counseling, abstain from consuming nonprescribed medication,
and see a psychiatrist. [Govt. Exh. 5]. Dr. Quy has successfully
complied with all of these conditions, including frequently attending
support group meetings. [Resp. Exh. 4; Resp. Exh. 5]. The Medical
Director of HPP, Dr. Anderson, has affirmed that the Respondent has
been compliant with these requirements, and that all of his drug
screens have been negative. [Resp. Exh. 9]. This past conduct
demonstrates the Respondent's ability to comply with both his probation
and his HPP contract and to continue to perform his daily functions
drug-free.
After the Government ``has proved that a registrant has committed
acts inconsistent with the public interest, a registrant must `present
sufficient mitigating evidence to assure the Administrator that [he]
can be entrusted with the responsibility carried by such a
registration.' '' Medicine Shoppe--Jonesborough, 73 FR 364, 387 (DEA
2008) (quoting Samuel S. Jackson, D.D.S., 72 FR 23,848, 23,853 (DEA
2007). ``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--Jonesborough,
73 FR at 387; see also Samuel S. Jackson, D.D.S., 72 FR 23, 848, 23,853
(DEA 2007); John H. Kennedy, M.D., 71 FR 35,705, 35,709 (DEA 2006);
Prince George Daniels, D.D.S., 60 FR 62,884, 62,887 (DEA 1995). See
also Hoxie v. DEA, 419 F.3d 477, 483 (6th Cir. 2005) (``admitting
fault'' is ``properly consider[ed]'' by DEA to be an ``important
factor[]'' in the public interest determination).
Here, I find that the Respondent has taken responsibility for his
misconduct. The stark contrast between Respondent's pre-treatment
letter to the Medical Board, in which he denied having an addiction and
his post-treatment statements and testimony is revealing. [Govt. Exh.
6; Tr. 135]. As is common for addicts, it was only after Dr. Quy
underwent the intensive inpatient treatment program at Pine Grove that
he was able to recognize and began to address his addiction. [Resp.
Exh. 2]. Likewise, at the hearing, he testified credibly and candidly
about his addiction and its impact on his family and medical practice.
[Tr. 104-105, 111, 145, 148-149, 162]. He demonstrated remorse for his
behavior and readily acknowledged the severity of his misconduct. [Tr.
130-131; 136-137; 145-147].
As for the troubling false statements that Dr. Quy made to Mr.
Washbourne at the January 25, 2011 interview, I note several mitigating
factors. First, Dr. Quy quickly recanted his previous statements when
questioned by Mr. Washbourne. [Tr. 61]. Next, Respondent's false
statements concerned only the source of the controlled substances he
abused, he did not attempt to conceal the fact that he abused these
controlled substances. Finally, while those false statements were made
at the beginning of Dr. Quy's recovery process, I note that Dr. Quy
testified truthfully about the January 25, 2011 interview at the
hearing and acknowledged that, although he initially made false
statements to Mr. Washbourne, he later ``came clean . . . and (has)
been totally forthcoming since then.'' [Tr. 94].
Finally, I find that sufficient requirements are in place to ensure
the public interest is protected from the possibility of relapse by the
Respondent. Dr. Quy is subject to stringent monitoring by both the
Oklahoma Medical Board and by OBNDD until
[[Page 47419]]
2016. During his probationary period, any relapse will be detected
because of the drug screens and the requirement for the Respondent to
disclose any violations of his HPP contract to the Board. Second, the
DEA can further restrict his registration to the prescribing of
controlled substances only, and to prohibit his prescribing to himself
or to any other family member. Lastly, the situation that led to his
addiction no longer exists. The Respondent has completed his residency
program and has been drug free since October 5, 2010. These factors are
also appropriate to consider when determining the appropriate use of
the Administrator's discretion in this matter. See Martha Hernandez,
M.D., 62 FR 61,145 (DEA 1997) (holding that, in exercising his
discretion in determining the appropriate remedy, the Administrator
should consider all of the facts and circumstances of a particular
case).
V. Conclusion and Recommendation
Therefore, I conclude that the DEA has met its burden of proof and
has established that grounds exist for revoking the Respondent's DEA
registration. I do not condone nor minimize the seriousness of the
Respondent's misconduct. However, based on this record, I recommend
that the Respondent be afforded an opportunity to demonstrate that he
can responsibly handle controlled substance prescriptions by the
granting of a restricted registration. See Cecil E. Oakes, Jr., M.D.,
63 FR 11,907, 11,910 (DEA 1998) (``Such a resolution will provide
Respondent with the opportunity to demonstrate that he can responsibly
handle controlled substances, while at the same time protect the public
health and safety, by providing a mechanism for rapid detection of any
improper activity.'').
Based on this record and the Respondent's actions since December of
2010, I recommend to the Administrator \3\ that the Respondent be
granted a conditional DEA registration. I suggest that the conditions
include: that the registration restricts his handling of controlled
substances to merely prescribing and not storing or dispensing such
drugs and that he be prohibited from prescribing controlled substances
to himself or any family member. Further, I recommend that the
Respondent be ordered to continue with his agreement with the Oklahoma
HPP and to notify the DEA should a relapse or any positive urinalysis
result. I recommend these restrictions apply for three years from the
date of the final order so directing this result. In this way, the
Respondent may safely continue his return to the full practice of
medicine, and the DEA can assure itself of the Respondent's compliance
with DEA regulations and of the protection of the public interest.
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\3\ The Administrator has the authority to make such a
determination pursuant to 28 CFR 0.100(b) (2011).
Dated: March 26, 2012.
Gail A. Randall,
Administrative Law Judge.
[FR Doc. 2013-18712 Filed 8-2-13; 8:45 am]
BILLING CODE 4410-09-P