his year registration based on his failure to immediately terminate his employee vickie mullins after he caught her misusing his you were just ration had dr kelly consulted with counsel at the time no one would have anticipated that he would have faced a one year suspension for not firing her immediately i'm sorry what about the regulation cited in footnote thirty of the administrators opinion on page seventy one of the appendix that's thirteen zero one point seven six a which says the registrant shall not employ as an agent or employee who has access to cited by the e p a and the order to show cause requires the registrar to evaluate the employee look at the conduct the employee was involved in but look at all the other circumstances in determining how to respond to employee misconduct that's i think there's a question about that's not practitioners of a right right ultimately the administrator said i'm not sure that applies because it seems to apply to no she's working a lot on the law well prior to this incident prior to dr kelly's discovery she would be in the office herself i believe two days a week maybe three days a week when dr kelly was another  was in the run our office i think monday and and thursday the other two offices tuesday and wednesday on friday was paperwork and other things so during the time that this scheme was active yes he would be there and and not be supervised on wednesdays which i think is the primary day that a lot of these faxes came in once dr kelly became aware of her of the situation after he reported it to the police and the police had taken the action after took no action he did he decided to keep her on temporarily to train and to train his replacement at that point he took her key away so she couldn't come into the office without someone else when you and approximately ten days to two weeks after he caught her and terminated her he hired here her replacement and from that point forward her job was to train that replacement and we can anticipate that they would have been in the office together primary methodology through which of all the refills were done do we have evidence squarely saying that she was not alone in the office during that five week period we don't have evidence either way and that's the frustrating part from from our point of view you know the case was tried the government but the d a was represented by two individuals by the prosecutor who you know that the a counsel as well as the m represented the administrator and what the administrator does the vacuum minister doesn't his opinions he cites the absence of evidence not the presence of evidence he says well you didn't you know missing out testified that she could and another important point which we didn't emphasize in the brief and i apologize for that is she was a licensed x ray technician so if anybody needed to take x rays she was the person to do it and not let me ask you you say that far as the situation at that time no regulation and no case would have indicated mullen's misuse of his the registration and that was the primary focus i would point out that his as the minister of law judge noted the e p a and its to post hearing submissions didn't even address the issue of whether her continued employment was it was a basis for revoking or suspending his the year registration it wasn't the big issue for them wasn't a big issue for us we addressed well yes yes sure we addressed the regulation which sad when you find out something's wrong you need to address it and dr kelly testified to how he addressed it and you know the aqim in a stranger who has never run a small private practice dismisses the fact that this is a practice that that exists on insurance as most doctor's offices do and you know there's no evidence of the contracts with the insurance companies because what you have to keep up to date where they won't process your claims and dr kelly made of what we believe submit a rational decision that in order to protect his practice he needed to keep her there long enough to train somebody registration and issue a new one the a didn't do that they didn't suggest that they took no positive steps to address this issue he reported it to the police they took no positive steps to address this issue they knew she was in his office they knew she continued in his office and yet the neither arrested her as i would have done or suggested be done more had they advised dr kelly that she was such a threat an obvious threat to the safety of this community that she needed to be terminated immediately and ultimately judges i think the problem i have and the really big weakness in this decision is there is no evidence that her presence in that office provided her with any additional ability to continue the scheme to cheat that you would have had outside a cell phone mr brough that's a very strange argument i mean if somebody is in the employ of a doctor with prescribing probably is they have more access to people in a wal mart who know her and they know that she's been fired versus you know that she's working there is a big difference in how much she's able to coast on the understanding and she's someone who's done this before been convicted of felony and then the persistence of the idea that oh well now she's been caught things are going to change the answer is no but i think of the alternatives she certainly he had no problem with her ability to handle the insurance she had done that in a trustworthy way which she had done was the the prescription stuff that's different he made it a judgment weighed the evidence and decided that the he couldn't replace her immediately and keep  number which he did i could call any pharmacy in roanoke and i could call in a prescription saying i was either dr kelly or i was calling on behalf of dr kelly's office i investigate cases where people made up doctors they make they got  the number they got a telephone they would put the telephone in a room where nobody would answer it they would call in a prescription the pharmacy wrote it down fill that they try to call might or might not try to call the number in and we pointed out  no phone verification evidence at all no evidence but presumably if they're calling and molly is the only one there when everything's working as she's designed it to picks up there's no evidence because she's the one a lot in the notified the wal mart pharmacy that his registration had been compromised they continued to fill prescriptions these illegal prescriptions so you know and the administrator cites that but how can dr kelly be responsible why is she indispensable other words why can't he keep the practice running in the five week period without her i guess because there'd be no income all of in the insurance what is she i mean you know people are incapacitated all the time through illness or disability and you have to adjust and work places and that happens constantly every day course and practice right about this that my theory to make a truly dr kelly's testimony or at the hearing was that she was indispensable at the point until he could hire someone took take her place and he hired someone within realize i understand this is a harsh sanctions i understand your concern about that and the vagueness of the standard that i get to but if they're really questioning that i think the judgment of  she's too you can't have her around but my practice is so important to keep running that i need to keep around to train the next person to keep it going in the hole and that is a judgment call that in retrospect looks as i look at his actions in twenty twelve can he be trusted going forward to conform with the controlled substances act and the requirements of the registration it that the purpose of the act is not to punish him for making a bad decision but can he be trusted to comply and and we submit for all the reasons are outlined in the brief that this one decision with which the acting administrator disagrees is not such as such an indicator of future conduct well there was there was a past was it a consent order that dr kelly had a problem back in two thousand and five and part of that was that he ha off on his inventory practices when d e i came in two thousand and thirteen they said no no no that's not right you're doing what's called a perpetual inventory which means when you take a pill out you record it in your log and indicate now you've got one fewer and the so is his position that the perpetual inventory methodology had been approved by virginia during the two thousand and five consent yes yes your honor the record shows clearly that he was put on probation they sent somebody in t and the question in my mind and would be and i don't see you quite making these arguments your point is it's a new rule you didn't have notice it was  then you disabuse me of that understanding well i believe there are some points of evidence that he failed to address such as the fact of most saying i was the x ray technician and necessary to perform that service in the offices that dr kelly has therefore i'm going to assume that she had access to the telephone in the office unsupervised but there is some testimony that she was supervised by by miss a now when she was there and she couldn't get into the office by herself as she had done previously to she why dr kelly you know might have felt that he couldn't wait a week or two or even longer to keep that process go i'm sorry so with respect to inventory what i was thinking of is on in the on page twenty five of the appendix the virginia board of medicine consent decree refers to failure to establish an initial inventory and failure to maintain an accurate current inventory of this controlled substances and the failure to maintain an accurate current inventory was precisely one of the bases here not the principal basis but one of the bases and i just see this is that it's pretty clear i believe clear that the inventory violation and or the other one involving the office manager did not in independently support the the one your citation and i think the cases we cite and the brief show that prior inventory violations or did not support a sanction of a year second of all in terms of dr kelly's inventory practices that is part of that consent decree as i pointed out the state state of virginia came in they inspected his conduct after the did while he was on the consent decree and found it to be compliant with the state regulations and dissolve the decree the the in the sense that he didn't open the bottles that were otherwise children count them every you know every two years but if the idea of the using tori is to keep track of what is in the closet he did that and he did it accurately and and as soon as the eight pointed out the fact that he wasn't quite in compliance with what their regulatory scheme required he changed  if i had to take a guess as i read these opinions quite frankly i see a lot of anger on the part of the i can administer in both the the no i order and this is an order so if you ask me what motivated i was there was anger at the at that the whole situation the the case was articulate it's a standard that says that you have to come in and essentially accept responsibility for your wrongful acts having practiced in this field for over thirty years and having written a lower view article on that exact point i'll tell you i don't understand because it seems to me as you read the cases the acting administrator finds responsibility when the da wants to and finds a lack of exceptions when they don't as a practitioner you go into a hearing and you were confronted with an interesting just situation you have to defend against the claims and the order to show cause but yet fact he had much broader than that and you know that clearly was it be in the bonnet of both the l g a and the administrators and they were they quoted verbatim several different times and i think the explanation for that your honor is this i think what dr kelly was trying to communicate is i knew she was involved in illegal activities she admitted it to me i know of at least seven prescriptions or i think it was seven at the wal mart and i checked the p n p and i found a number of prescriptions issued in her name with my registration what i think he was trying to say around here is i was not aware of the scope of her perfidy as demonstrated at the hearing that it was so much broader and so much greater than what he knew he didn't deny that that he knew she was involved in this he certainly didn't know she's going to have all that for freight measure quotes what he said which was it was only with a handful of information that i had less than a dozen and then the administrator says by august twenty fourth she had a he knew that she had obtained more than five thousand dosage unit ten milligrams the strongest dosage and seven hundred eighty dosage units of zolpidem so it struck i think both the elderly and the administrator as a denial of the of the  failure to really knowledge and come to grips with the severity of the situation and that was worrisome at is this person going to is he taking this seriously i don't think he would've i don't think he would have he certainly if your shoes discretion acted as if his hair was on fire when he found out about it he called the commonwealth's attorney's office he called the ia he called the police way soon as the police officer who had previously arrested ms mullen and failed to do so again this time or previously pressed you know that arrested or told him about the prior cases he looked it up he said he looked at his pm p he certainly investigated this on his own he didn't stick his head in the sand he didn't count the number a serious situation and yet leaves are there in place for another five weeks and that's the that's the part that's at the heart of this and that's that that disconnect between hair on fire and doing all the things you say and leaving someone in place setting or hiring and firing decisions are very difficult and i get that and but when you have someone who's done that as your hair's on fire isn't it reasonable for the administrator then to say look we just can't that's too too great a risk to public safety to have someone with that degree of wrongdoing in such a position of responsibility and something  task force and of her genius state trooper and the man whose responsibility was for diversion of controlled substances and south west southwest that's west southwest and southwest virginia left her in place he knew she was still in the office but they have a different role right of if you're running an office and you have someone who's what and doing that degree of wrongdoing and we can debate what the degree is but degrees sufficiently that in your words his hair was on fire and that you know you've got a police officer's job is to protect the public that is his only job you know right he's arrested he's prosecuted or before for similar conduct she confessed to a crime to a felony which means he could arrest her without a warrant he he didn't advise dr kelly at all as to what he might want to do to protect the community which officer friendly was obligated to do he didn't arrest her in remover which would have put her under the jurisdiction of the court and she could have been ordered under house arrest she could have been ordered to give up her cell phone she could get order to turn off her phones the court could have put in place even better can respond is yes she still could have gotten around the restrictions but he could have done more of the theory goes to reduce the risk by by f fraud and the credit card company is very quick to say we'll give you another sheep now even if you think you may find it in your track a packet tomorrow you know this one yet as we read the newspaper we see da holding all sorts of other people responsible for criminal activity except themselves i mean you've got the you know they they lean on the on the drug distributors because they're not adequately supervise in the pharmacies they get the pharmacies because they're going prescriptions they shouldn't feel but what do you think the maximum appropriate sanction would be given your view of the facts based on that on the cases that we've cited i would say the mashing would probably be six months in may that maybe even be too long but when i saw six month of terminating his participation has that happened or not he got them he got the letter saying we're going to move to terminate it gave him the right to file an appeal he filed an appeal he's waiting for a acting minister's decision is supported by substantial evidence the evidence established that dr kelly employed a serial diverter who had diverted a hundred twenty seven thousand doses of hydrocodone five thousand doses of ambien he had a prior criminal history for the same conduct in two thousand and nine that she continued to work for him and divert while she was on probation for her two thousand and nine state charges he learned all of this within four days of finding about the to subsist suspicious so prescriptions in two thousand in august and on august twentieth you learned about the facts the facts we feel that was sent over within four days of that you looked at the p n p system the prescription wunderkind program for virginia learned of the scope and the breadth of her diversion he also found out about her state case saw that she had no regard for the law because during the time that she had been under state prosecution and in fact on state probation she had worked for him and continued to divert and continue to obtain fraudulent prescriptions but but don't you recognizes that she can't work there anymore and the question i gather is march them out and arguably in retrospect an error in judgment you know allowing her to stay there even with the precautions but it's no you know is that rise for a whole one year suspension i guess is the question before us because you're coloring the facts but i don't know that that's really dispute that puts in dispute is it reasonable to have someone on for five weeks after you know they shouldn't be there permanently anymore you  know it was not reasonable to have her around for five weeks given the scope of her misconduct and also his additional misconduct that was found his record keeping violations and as the court pointed out these were the same recordkeeping violations that he had in two thousand and five when he had entered into the you know but  yes her testimony was that she would go to the other offices with him she would assist him during his five week period was left unattended and that she was left there now while the fashion a sheen would you give us your best record saying i'm mark because that's kind of important registration of the regulation instead was looking to factor five under the five factor test of such other conduct which may threaten the public health and safety why hasn't i mean the whole point of the controlled substances act is to protect the public health and safety so at some level any violation of any part of it could be found by the administrator to make to be something that made pose a risk to the public health and safety why isn't that argument just vastly overbroad where you are correct that the entire purpose of the controlled substances act is to have a closed system so that illegal and legal dispensing of controlled substances maybe monitor detected by the d n a and that is why regist has a duty to protect the public and to protect the registration which dr kelly failed here what is what sets us apart from what your honor is asking saying that oh there's a technical violation so therefore you violated and therefore you lose your registration you have to look at all of the evidence and when you look at all of the evidence under the under the very deferential standard of review by this court you will see that there is substantial evidence supporting there as i was explaining the actions of issues so we're flater he had he had allowed his office manager to dispense and it instead of coming in and saying you're correct this was wrong and this is why bremen he did he came in with excuses with justifications to some extent i mean he's explaining his situation but he also did say this is wrong and he did correct let me ask you about i had a question about the the retroactivity holding it so the administrator says it would be retroactive to hold dr kelly countable for having to show due diligence regarding his federal d n a registration potentially having considered her abuse based on the fact that a new duty or or retroactive to construe the duty of acting in the public interest as requiring immediate firing of someone like mullen ms seems like to me maybe neither of those is particularly retroactive or both of them might be i'm not sure i see the distinction well looking under factor five there is nothing different that was applied to dr kelly that had been applied to other registrars and that is to look at whether there  fired someone who was a serial divert her once he found that once he found out about the two fraudulent refill requests through the facts on august twentieth and then within four days he knew that she had the prior state charges that she had been on probation and had kids had no regard for the law because she continued to divert while she was on probation and that and so she had never got a law but he was willing to perform this risk and  her i mean he put his own self interest over the interest of the public and all because you don't really have an answer the question about why what should he what should put him on i mean and the other thing is it's true that other people's failure to fulfill their obligations don't excuse dr kelly's failure to fulfill his i understand on the other hand put yourself in dr kelly's shoes how obvious in say that he is supposed to treat her like someone who is really dangerous and needs to be out of his office when the police on her first felonies fail to even notify him the pharmacies don't really check on the prescriptions the missing da number they still there without any warning i mean it is so so the notion is it's supposed to be crystal clear to him what you do in this situation clamp down no we also clamping down one of the things is that kelly's number in our computer on our file so that didn't need to be there only refills they were faster refill requests to the office ms malone was in the office alone every day of the week except one and she would she would stamp them with his signature stamp and then send them back authorizing the refill with the just keep going with which is how she was able to divert one hundred twenty seven thousand doses of hydrocodone to herself or so how is that responsive to my question which is how was dr kelly's supposed to know how decisively and harshly to treat ms mullins when nobody else who had interacted with her over drug related felonies but i mean in the under in this situation in this situation in this situation the da began an investigation but the argument today seems to be well they did not take into custody and there are a host no more they didn't cancel his registration number why didn't they do that credit card fraud cancel number issue no one here as as everyone seems to be saying there's a lot of diversion that goes on without really checking so castle number put it on a blacklist give a new the wal mart pharmacist she asked her upon discovery of the tea project and he asked the pharmacist to shut down his director straighten but despite that they still refilled ten to twelve of the prescriptions that were outstanding so there there were a di scripts issued after the time but he became aware of her misconduct but had i mean he could have he could have  a could have changed but that's still even if they had shut down his two year extension that's does not take care of his failure to terminate this moment at the time on the fair notice point the judge pillar raising if there had been a rule in place that said if you discover a sort of serial diverter working for you you must immediately terminate for been a rule to that effect and he violated that rule that would be pretty easy carrots but the problem i think is that you have this vague factor factor five such other common conduct which may threaten the public health and safety and you're not necessarily on notice that you have to march someone out that day when you discover them having committed something like this so there's a fair situation and when you guess wrong you're you're sanctioned how do you respond all that well that there's definitely a me he's entitled to have due process he's entitle to know what what the requirements are what the rules are and he knew that he had a duty to protect the public well yeah but absolutely but that's again a level of generality that's very high and he knew i can't employ her anymore but he also thought she's not such a daily risk not like a ticking bomb in the office that i need to throw out immediately and the question is is that such a what would have put him on notice that that's wrong or is it just so obvious that any rational doctor what are the i mean that's really what you're saying is any rational person and that circumstance would have known you have to get rid of or that right first of all she was such a ticking bomb that she should have been terminated immediately the scope of her diversion which he tried to minimize he tried to say i didn't know about it into later but let me just go briefly to the issue of the notice and under under dr kelly standard he would think or he would request that da codified or that congress caught a flight every specific instance of what of what could occur and there's no requirement under the five factors public interest tests to do that i agree i'm just curious american i understand your point i follow your point but just curious why that wouldn't be the same with respect to the due diligence analysis that once you find out that a subordinate is abusing your state prescription privileges would stand to reason without any precedent or regulation or that you might want to check up on diversion more generally including by checking into the abuse of your d n a registration and yet i'm just curious about what your logic is as a da decision to treat that as not flowing as a matter of course from the general responsibility to protect the public interest he did have an obligation to find out the ration which he did but then in the hearing he minimize what that was he said i didn't know that my question was why given what you say about the duty to to once he knows of state diversion check into possible misuse of his da registration same logic why why hesitation to apply it in this case because doing so would be retroactive if you are right that it's enough notice that there is an obviously risk to public safety or the act to him in a charade or was very or you can tell from the lengthy opinion was very thorough and very cautious about what he gave way too i mean he did not give  wanted to make sure that that is setting forth standards for guidance because what the public's opinion is do but if it's still there's not alleviate the misconduct of dr kelly and now he acknowledge that i mean every turn he had an excuse when when he left his office manager just spent he tried to claim that there was an exception under the dispensing rule when he when he failed on the record keeping  and i think that roger said had asked about that on the the record keeping under footnote thirty of the decision and it specifically addresses the the record keeping trade seen on the news later did did you agree with mr harris characterization of why the measure didn't rely more on the regulation thirteen zero one point seventy six happens is after the government presents a crime to face a case that packs have been committed that are inconsistent with the public interest the burden shifts to the registrar and i don't want to run i know it's not the same but in a criminal context you're charged you defend vigorously if you're found guilty and then you come before the judge for sentencing that's my express you don't say or knowledge  that you should work this system is better that's why i'm trying to understand that i would prefer the core to the decision and the tenth circuit in mackay in mackay dr mackay has administrators pending  for misusing his deregistration there's a practitioner simultaneously had a criminal case pending and he wanted to invoke his fifth amendment rights in the civil in the administrative proceeding and the work stated that there theory and i have to say what are you confess you have to say when i when i let my assistant office manager dispense controlled substances it was wrong not that i've changed my process me so i changed yes and then you could say and here's what i've done to indicate that change i've taken these courses i've put in a say not i don't tell me i've been keeping my records words you don't want to be clear about this because if you change once you're notified that you need to make that change you still have to say i should have known before what you have to say what i did was what i will do differently here's what i am doing differently here's how i will ensure that the public safety it's only my second words actions don't speak loudly enough but if he came in with evidence of his actions which he did not he it's not a bifurcated system like you would have with a trial and their sentencing phase in some situations but at the same time the the case law is is thorough when the agency decisions are are certainly brought in she was a plumber insurance clerk who had worked for dr kelly she came in to specifically her but paragraph eighteen of the un sworn affidavit that was prepared by a small and that set out what she understood dr kelly's knowledge of her prior jane and the acting administrator to rebut a claim that was in the affidavit that dr kelly had had them doctor some inventory records but what is interesting and pertinent to this court and this discussion today is that she had wor toward dr kelly for a number of years as an insurance clerk and described the process it is not a sophisticated process talking about the explanation of benefits submitting the bills she had worked for him for a number of years she then left she came back on a part time basis while she worked at the church she left for two years from two thousand and ten she's gotten twelve came back again on a part time day so there's no indication that someone might that was not available the office manager testified that she and pantomimes yes but record yes she worked for them for twenty eight years it's unlikely that she would quit yes it's all in the record the record is she said she would she she did say that but  no one ever and i don't know if she was joking i don't know if that was it i don't know but there's no indication advertise  this one sentence in the administrators decision proof that molly committed a single act of prescription prong should have resulted in their immediate terminations where she was terminated the question was can i'm repeating myself but the question really is do you have to march someone out the day off and workplaces all over the country or people who are found to have committed wrongdoing but then somehow hang on for a week or two or three before they're actually marched out or put off the payroll or what have you it's pretty rare that someone's marched out they are not not pretty where is too strong but it's but it happens both ways straight in the real world and here you could have been marched out that day but terminated and then said you know stick around with some precautions the gilded cage until until i get a replacement and that is that the years i mean a year suspension from that waited four days later in philly had a complete picture of what ms nolan had done which at that point he had her state case he had information that she had been on probation and continued to divert he knew that there were the tens of thousands of those units of h e that had been dispensed he had a lot more information after looking at the prescription monitoring program after looking at her criminal case that he did not have at the time when he first had the facts about the two question of prescriptions so certainly it would be understandable and wouldn't and we would not be here saying well it was it was unreasonable for him to keep her for four more days and then we would never have got to this point but to keep her for five weeks and to leave the acting administrator found to be significant and there are facts to support that mr does does the da have a kind of a watch list of abused registration numbers is there like an anti fraud mechanism so that if i'm a pharmacy and i'm receiving what look like valid prescriptions i can look at the list and see if it's actually a number that's been cancelled by the da or is there a is there a check in a in a pharmacy system that would then come from filling scription on a legacy d a number that had been cancelled once a be a number is deactivated if the pharmacy checks that it would not come out as an active number but if the pharmacy doesn't check it they can continue to prescribe under that number right which would be a violation of their corresponding responsibility to confirm that it's a legitimate script issued in the in the normal course of medical practice and presumably they're required in their system to have a flagging but to be able to employ deactivated numbers so that they get an alert yes and they and they also mean there are red flags that they will be looking for as far as the use as an important control i'm not aware that the da has a has a suspicious da registration number listerine up or cancelled number this it's my understanding that the canceled numbers would come up if there is a check in the system if the number has been canceled a revoked or is inactive that that would come up but it would not it would not there's not a list of these are suspicious like you might have heard of suspicious order or swear distributors have suspicious orders and and they have to report those there's nothing like that anything for them just in conclusion that the the evidence and under the very deferential standard there dentists dr dennis's ferrier to notify d p a of the misuse of his registration was cited as one reason for holding him responsible for its continued misuse of the e a has taken the affirmative position in two thousand and game made even though the pharmacy has the registration number in its records anybody calling in a prescription is required by the year very regulation to provide the registration number for the registrar so the absence of obtaining the registration on the phone in prescription makes that prescription illegal hundred year regulations and to fill the prescription by the pharmacy is a via criminal violation which is distinct from the practice that is is testified to in the record that they don't always do that but you're saying that as a form of matter they are required they are required to case was very clear that the age decisions of all we pharmacies are very clear the criminal law is very clear  indication to respond to judge rogers the da order to show cause does have some detail but it is essentially your charging document it's no different than an indictment it is what they intend to try to prove the a put on its evidence at the hearing the respondent puts on his evidence at the hearing there is no it's not even like it's a criminal trial where there's a finding by the judge at the close of the government's case that they've made and just like we cannot bring to your honor any additional evidence i didn't believe i don't believe you could do that in that proceeding so that's that's the problem administrator held in his decision that he needed to terminate her immediately and any concession that he could wait four days i believe is a concession that he could wait essentially two weeks till her replacement was found i think he was saying because professional privilege i understand that but i would point out that a lot of what he says in this its decision goes to how dr kelly should have been running his office the decisions he should have made and