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a temporary suspension of a state 

medical license. For that reason, the 

Respondent argues that a summary 

disposition in these DEA proceedings, 

based on the suspension of his state 

licensure, ‘‘would be inconsistent with 

[the Agency’s] previous rulings and 

would create a manifest injustice to 

Respondent.’’ While the Respondent’s 

position is not without some level of 

facial appeal, it is unsupported by the 

applicable statutes, regulations and 

precedent emanating from both the 

courts and the Agency. 

The Controlled Substances Act (CSA) 

requires that a practitioner must be 

currently authorized to handle 

controlled substances in ‘‘the 

jurisdiction in which he practices’’ in 

order to maintain a DEA registration. 

See 21 U.S.C. 802(21) (‘‘[t]he term 

‘practitioner’ means a physician * * * 

licensed, registered, or otherwise 

permitted, by * * * the jurisdiction in 

which he practices * * * to distribute, 

dispense, [or] administer * * * a 

controlled substance in the course of 

professional practice’’); see also id. 

§ 823(f) (‘‘The Attorney General shall 

register practitioners * * * if the 

applicant is authorized to dispense 

* * * controlled substances under the 

laws of the State in which he 

practices.’’). Therefore, because 

‘‘possessing authority under state law to 

handle controlled substances is an 

essential condition for holding a DEA 

registration,’’ this Agency has 

consistently held that ‘‘the CSA requires 

the revocation of a registration issued to 

a practitioner who lacks [such 

authority]’’ (emphasis supplied). Roy 

Chi Lung, 74 FR 20346, 20347 (2009); 

Scott Sandarg, D.M.D., 74 FR 17528, 

174529 (2009); John B. Freitas, D.O., 74 

FR 17524, 17525 (2009); Roger A. 

Rodriguez, M.D., 70 FR 33206, 33207 

(2005); Stephen J. Graham, M.D., 69 FR 

11661 (2004); Dominick A. Ricci, M.D., 

58 FR 51104 (1993); Abraham A. 

Chaplan, M.D., 57 FR 55280 (1992); 

Bobby Watts, M.D., 53 FR 11919 (1988). 

Denial of an application or revocation 

of a registration via a summary 

disposition procedure is also warranted 

if the period of a suspension is 

temporary, or if there exists the 

potential that Respondent’s state 

controlled substances privileges will be 

reinstated, because ‘‘revocation is also 

appropriate when a state license has 

been suspended, but with the possibility 

of future reinstatement,’’ Rodriguez, 70 

FR at 33207 (citations omitted), and 

even where there is a judicial challenge 

to the state medical board action 

actively pending in the state courts. 

Michael G. Dolin, M.D., 65 FR 5661, 

5662 (2000). 

In order to revoke a registrant’s DEA 

registration, the DEA has the burden of 

proving that the requirements for 

revocation are satisfied. 21 CFR 

1301.44(e). Once DEA has made its 

prima facie case for revocation of the 

registrant’s DEA COR, the burden of 

production then shifts to the 

Respondent to show that, given the 

totality of the facts and circumstances in 

the record, revoking the registrant’s 

registration would not be appropriate. 

Morall v. DEA, 412 F.3d 165, 174 (DC 

Cir. 2005); Humphreys v. DEA, 96 F.3d 

658, 661 (3d Cir. 1996); Shatz v. U.S. 

Dept. of Justice, 873 F.2d 1089, 1091 

(8th Cir. 1989); Thomas E. Johnston, 45 

FR 72311 (1980). 

Regarding the Government’s request 

for summary disposition of the present 

case, it is well-settled that where no 

genuine question of fact is involved, or 

when the material facts are agreed upon, 

a plenary, adversarial administrative 

proceeding is not required, see Jesus R. 

Juarez, M.D., 62 FR 14945 (1997); 

Dominick A. Ricci, M.D., 58 FR 51104 

(1993), under the rationale that Congress 

does not intend for administrative 

agencies to perform meaningless tasks. 

See Philip E. Kirk, M.D., 48 FR 32887 

(1983), aff’d sub nom. Kirk v. Mullen, 

749 F.2d 297 (6th Cir. 1984); see also 

Puerto Rico Aqueduct & Sewer Auth. v. 

EPA, 35 F.3d 600, 605 (1st Cir. 1994); 

NLRB v. Int’l Assoc. of Bridge, 

Structural & Ornamental Ironworkers, 

AFL–CIO, 549 F.2d 634 (9th Cir. 1977); 

United States v. Consol. Mines & 

Smelting Co., 455 F.2d 432, 453 (9th Cir. 

1971). 

The record evidence in the instant 

case clearly demonstrates that no 

genuine dispute exists over the 

established material fact that 

Respondent currently lacks state 

authority to handle controlled 

substances in Florida, his state of 

registration with the DEA, since his 

state osteopathic medical practitioner’s 

license was suspended on April 28, 

2010. Notwithstanding the Respondent’s 

attempts to distinguish the rationale for 

revocation in the cases cited by the 

Government as factually dissimilar to 

his own circumstances, the dispositive 

consideration here is that because the 

Respondent presently lacks state 

authority, both the plain language of the 

applicable federal statutory provisions 

and Agency interpretive precedent set 

forth herein dictate that the Respondent 

is not entitled to maintain his DEA 

registration, and therefore a registration 

action less than revocation is not 

appropriate. Simply put, there is no 

contested factual matter adducible at a 

hearing that can provide the Agency 

with authority to continue (or a fortiori 

for me to recommend) his entitlement to 

a COR under the circumstances and 

further delay in ruling on the 

Government’s motion for summary 

disposition is not warranted. 

Accordingly, the Government’s 

Motion for Summary Disposition is 

hereby granted, its Motion for Stay of 

Proceedings is denied as moot, and in 

view of the presently uncontroverted 

fact that the Respondent lacks state 

authority to handle controlled 

substances, it is herein recommended 

that the Respondent’s DEA registration 

be revoked forthwith and any pending 

applications for renewal be denied. 

Dated: August 12, 2010. 

John J. Mulrooney, II, 

U.S. Administrative Law Judge. 

[FR Doc. 2011–7390 Filed 3–29–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 09–12] 

Bienvenido Tan, M.D.; Denial of 

Application 

On October 31, 2008, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Bienvenido Tan, M.D. 

(Respondent), of Newhall, California. 

The Show Cause Order proposed the 

denial of Respondent’s application for a 

DEA Certificate of Registration as a 

practitioner, on the ground that ‘‘his 

registration is inconsistent with the 

public interest.’’ ALJ Ex. 1, at 1. 

More specifically, the Show Cause 

Order alleged that on April 12, 2007, 

Respondent ‘‘voluntarily surrendered 

[his] controlled substances privileges’’ 

when he was under investigation for 

illegally distributing controlled 

substances, and that in February 2008, 

he had applied for a new registration. 

Id. The Order alleged that ‘‘[l]aw 

enforcement personnel conducted at 

least eleven (11) undercover visits’’ to 

Respondent’s office between October 

2006 and March 2007 and that on 

several occasions, he had prescribed 

Lorcet and Vicodin, schedule III 

controlled substances which contain 

hydrocodone, as well as alprazolam, a 

schedule IV controlled substance, to 

them ‘‘with cursory or no medical 

examinations, and without a legitimate 

medical purpose.’’ Id. (citing 21 CFR 

1306.04). 

The Show Cause Order further alleged 

that a medical expert had reviewed 

Respondent’s files and ‘‘found ‘strong 

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1With respect to factor three—Respondent’s 

record of convictions for offenses related to the 

dispensing or distribution of controlled 

substances—the ALJ noted that there is no evidence 

that he has been convicted of an offense within this 

factor. ALJ at 39. 

evidence for inappropriate prescribing 

of controlled [substances]’’ and that his 

‘‘prescribing was ‘an extreme departure 

from the standard of care expected of a 

licensed practicing physician.’ ’’ Id. at 2. 

The Order also alleged that Respondent 

had admitted to investigators that he 

‘‘authorized an employee to dispense 

controlled substances to [his] patients in 

violation of state law.’’ Id. at 1 (citing 

Cal. Bus. & Prof. Code § 4170). 

By letter of November 4, 2008, 

Respondent timely requested a hearing 

and the matter was placed on the docket 

of the Agency’s Administrative Law 

Judges (ALJs). Following pre-hearing 

procedures, an ALJ conducted a hearing 

from March 24 through March 26, 2009 

in Los Angeles, California. At the 

hearing, both parties called witnesses to 

testify and submitted documentary 

evidence. Thereafter, both parties filed 

post-hearing briefs. 

On January 8, 2010, the ALJ issued 

her recommended decision (also ALJ). 

Therein, the ALJ considered the 

evidence relevant to the five public 

interest factors. See 21 U.S.C. 823(f). 

As to factor one—the 

recommendation of the appropriate 

State licensing board—the ALJ found 

that the Medical Board of California 

(‘‘the Board’’) had not made a 

recommendation in this matter. ALJ at 

34. The ALJ then noted that the Board 

had brought a proceeding against 

Respondent based on its review of three 

patient files (which are not at issue in 

this proceeding), but had found that 

‘‘cause did not exist to discipline the 

Respondent’s medical license ‘for 

prescribing without a good faith 

examination and medical indication, as 

to all three patients.’ ’’ Id. The ALJ 

noted, however, that the Board found 

that ‘‘cause did exist to discipline 

Respondent’s medical license ‘for 

maintaining inadequate records’ for one 

of the three patients’’ and that the Board 

‘‘publicly reprimanded the Respondent 

‘for his departures from the standard of 

care regarding his medical record 

keeping’ of that specific patient.’’ Id. at 

34. The ALJ did not make a finding as 

to whether this factor weighed for or 

against a finding that Respondent’s 

registration was inconsistent with the 

public interest. See id. 

The ALJ then considered factors two 

and four—the applicant’s experience in 

dispensing controlled substances and 

his compliance with applicable Federal, 

State, or local laws related to controlled 

substances—together. Under these 

factors, the ALJ considered evidence 

pertaining to various undercover visits 

by a Special Agent (SA) and 

Confidential Informant (CI), 

Respondent’s dispensing practices, his 

office procedures, and his 

recordkeeping. Id. at 35–39. 

With respect to the undercover visits, 

the ALJ did not make findings as to 

whether the prescriptions Respondent 

issued to the SA or CI violated the 

CSA’s prescription requirement. Id. at 

36–37. Instead, the ALJ observed that 

‘‘[t]he primary concern regarding the 

Respondent is his dispensing practices.’’ 

Id. Noting that the evidence showed that 

‘‘Respondent is dispensing multiple 

times more dosage units than the patient 

should consume, if taking the 

medication as prescribed,’’ the ALJ 

explained that ‘‘either the patient is at 

risk of taking an overdose of the 

controlled substances, or the patient is 

diverting the controlled substances to 

the illicit market.’’ Id. at 37. ‘‘Based on 

this factor alone,’’ the ALJ concluded 

that ‘‘the Government has established a 

prima facie basis for denying * * * 

Respondent’s application for a DEA 

registration.’’ Id. at 38. 

The ALJ further found that 

Respondent ‘‘is allowing unlicensed 

office staff to fill and dispense 

controlled substances.’’ Id. She also 

found that Respondent did not require 

his pain patients to undergo urine or 

blood screens to determine whether 

they were actually using the drugs he 

prescribed and to determine whether 

they were taking drugs obtained either 

from other doctors or on the street. Id. 

The ALJ concluded that this ‘‘allows 

diversion of such medications without 

detection by * * * Respondent.’’ Id. 

The ALJ also found relevant 

Respondent’s continuing to prescribe 

controlled substances without obtaining 

his patient’s medical records. Id. She 

further noted that Respondent increased 

dosages without performing physical 

examinations, and that in some cases, 

he continued to prescribe controlled 

substances to patients for ‘‘almost a 

year’’ without seeing them. Id. at 38–39. 

Finally, she noted that while in some 

cases, he had indicated ‘‘his desire to 

decrease the dosage units of controlled 

substances,’’ he would ‘‘oftentimes 

without even seeing the patient * * * 

return to the higher dosage without 

recording his treatment plan or 

otherwise explaining the higher dosage 

in the patient’s records.’’ Id. at 39. The 

ALJ, therefore, concluded that these 

factors support a finding that 

Respondent’s registration is inconsistent 

with the public interest.1

Turning to factor five—such other 

conduct which may threaten the public 

health and safety—the ALJ reviewed the 

reports of each party’s experts (who had 

examined various patient records) 

regarding the standard of care for 

prescribing controlled substances. Id. at 

39–43. The ALJ noted that she had ‘‘a 

problem with the conclusions of both 

expert witnesses.’’ Id. According to the 

ALJ, this was so because the 

Government’s expert had opined that 

Respondent’s care was ‘‘markedly below 

the accepted standards of licensed 

physicians in the United States today,’’ 

thus suggesting that he had not applied 

the standard applicable under California 

law, id. at 40–41, and Respondent’s 

expert had opined that he should be 

compared against ‘‘physicians of similar 

age, training, and background,’’ which 

‘‘is not the standard followed in 

California.’’ Id. at 41. 

The ALJ noted, however, that in 

preparing his report, the Government’s 

Expert had relied on the Medical Board 

of California’s ‘‘Guidelines for 

Prescribing Controlled Substances for 

Pain.’’ Id. at 42. Because the 

Government’s Expert’s conclusions were 

‘‘more consistent with the California 

requirements for determining the 

standard of care,’’ she found persuasive 

his findings that Respondent’s charting 

practices were ‘‘extremely deficient,’’ 

that there were ‘‘inadequate records of 

consultation requests for further 

medical evaluations,’’ and that ‘‘it would 

not be safe [for a patient] to ingest the 

quantity of controlled substances 

received in that short of a period of 

time’’ as occurred between the dates on 

which Respondent dispensed controlled 

substances to the various patients. Id. at 

40, 43. The ALJ thus found that this 

‘‘factor * * * weighs in favor of denying 

the Respondent’s application,’’ and that 

‘‘[i]n total * * * the Government has 

met its burden of proof in presenting a 

prima facie case for denying the 

Respondent’s application for a DEA 

registration.’’ Id. at 43. 

The ALJ then discussed various facts 

she deemed favorable to Respondent. 

These included that he ‘‘was not 

dispensing controlled substances for 

monetary gain,’’ that he ‘‘refused to 

prescribe Oxycontin because of its 

addictive properties,’’ that he ‘‘refused to 

prescribe controlled substances for 

recreational purposes,’’ and that because 

he had a major increase in patients, he 

did not see them as often as necessary 

and did not keep careful track of his 

refills. Id. at 43–44. The ALJ further 

noted that ‘‘Respondent credibly 

testified that, if given a DEA 

registration, he would use the CURES 

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2CURES is a database maintained by the State of 

California, Bureau of Narcotics Enforcement, from 

which doctors may obtain Patient Activity Reports 

(PARs) showing a patient’s controlled substance 

prescriptions and who prescribed them. GX 39; Tr. 

104. Dispensers of controlled substances, including 

pharmacies and physicians who dispense, must 

report to CURES. Id. Thus, the PARs allow a 

physician to determine whether a patient is 

receiving controlled substances from other doctors 

and is thus engaged in doctor shopping. Id. at 103. 

3The PDR, or Physician’s Desk Reference, 

contains manufacturers’ recommendations as to the 

dosing of drug products. RX D, at 3. 

4Respondent excepted to the ALJ’s Decision 

arguing that it ‘‘neglect[ed] to recognize 

Respondent’s medical training as a surgeon and his 

years of experience with pain management as a 

surgeon and as the chair of the Newhall Community 

Hospital and as a participant in hospital peer 

review proceedings dealing with pain 

management.’’ Resp. Exc., at 4. 

5 In his decision, the State ALJ found that 

Respondent had told patient K.Z. that he could take 

Vicodin at the rate of up to twelve tablets per day. 

RX A, at 6. The ALJ also found that one of the 

Board’s experts had observed that at one point, K.Z. 

would have been consuming ‘‘approximately nine 

grams of Acetaminophen’’ per day and that the 

expert ‘‘considered any quantity over four grams of 

Acetaminophen [per day] troubling.’’ Id. at 10. 

While the State ALJ found that the Physician’s Desk 

Reference (‘‘PDR’’) states that ‘‘‘[t]he total 24 hour 

dose [of Vicodin] should not exceed five tablets,’ ’’ 

id. at 13, he did not make any further finding as 

to whether there is an appropriate maximum dose 

of drugs containing acetaminophen such as Vicodin 

and simply concluded that the Board had failed to 

show that Respondent’s ‘‘off-label dosage 

instructions departed from the standard of care.’’ Id. 

at 20. This is not the same as saying—as 

Respondent testified—that the Board found that the 

maximum safe dosage of Vicodin ES is twelve 

tablets per day, and of Lorcet, eighteen tablets per 

day. Tr. 299–300. Indeed, according to one of the 

findings of the State ALJ’s decision, 

‘‘[a]cetaminophen is potentially toxic if between 7.5 

to 10 grams are consumed daily for one to two 

days.’’ RX A, at 14 (citation omitted). 

However, for the purpose of resolving this 

proceeding, I accept the premise that Respondent 

had a good faith belief that a patient can safely 

consume up to 9 to 10 grams per day of 

acetaminophen. However, even accepting this, there 

was ample other evidence including an expert’s 

report establishing the need to perform regular 

blood tests to determine how ingesting this much 

of the drug is affecting a patient’s liver function. 

database 2 and he would limit his 

prescribing of controlled substances to 

the PDR3-defined limits.’’ Id. at 44. The 

ALJ nonetheless concluded that ‘‘this 

does not go far enough’’ because 

Respondent had failed ‘‘to address his 

use of unlicensed individuals to 

dispense controlled substances,’’ as well 

as what ‘‘procedures he would put in 

place to monitor his patients to ensure 

they were consuming the controlled 

substances as prescribed.’’ Id. at 44–45. 

Thus, the ALJ recommended that 

‘‘Respondent’s application for a DEA 

registration * * * be denied at this 

time.’’ Id. at 45. 

On January 28, 2010, Respondent 

filed Exceptions to the ALJ’s Decision; 

these Exceptions have been considered 

and are discussed throughout this 

decision. Respondent also requested 

that the ALJ reopen the record and 

admit his Exhibit A, which is a sworn 

statement signed by him and dated 

January 27, 2010, addressing the ALJ’s 

findings that he had failed to address 

several critical deficiencies identified in 

the proceedings. Resp. Exceptions at 10. 

On February 16, 2010, the ALJ denied 

Respondent’s request, noting that 

Respondent should have been aware of 

‘‘the Agency’s longstanding rule’’ that 

where ‘‘‘the Government has made out a 

prima facie case that a practitioner has 

committed acts which render his 

registration inconsistent with the public 

interest, the relevant inquiry is whether 

a practitioner has put forward ‘sufficient 

mitigating evidence to assure the 

Administrator that he can be entrusted 

with the responsibility carried by such 

a registration.’ ’’ Order Denying 

Respondent’s Request to Reopen the 

Record and Include ‘‘Exhibit A,’’ at 2 

(citations omitted). The ALJ further 

explained that ‘‘this inquiry looks to 

whether the registrant has accepted 

responsibility for his misconduct and 

undertaken corrective measures to 

prevent the re-occurrence of similar 

acts.’’ Id. While noting that ‘‘[t]he 

evidence might have proven material 

when considering whether or not 

Respondent’s continued registration 

would be a threat to the public interest,’’ 

the ALJ noted that the evidence was 

available at the time of the hearing and 

that Respondent had the ‘‘burden of 

persuasion’’ on the issue. Id. at 4. She 

therefore denied Respondent’s request 

to reopen the record. Id. Finding no 

error, I adopt the ALJ’s ruling denying 

Respondent’s request to reopen the 

record. 

Thereafter, on February 18, 2010, the 

ALJ forwarded the record to me for final 

agency action. Having reviewed the 

record in its entirety and considered 

Respondent’s Exceptions, I adopt the 

ALJ’s findings except as expressly noted 

herein. I also adopt her recommendation 

that I deny Respondent’s application. As 

the ultimate finder of fact, I make the 

following findings. 

Findings 

Respondent has been a licensed 

physician and surgeon in the State of 

California since 1959; he was 83 years 

old at the time of the hearing. ALJ Ex. 

3, at 1; Tr. 553. Respondent previously 

held a DEA Certificate of Registration, 

which authorized him to dispense 

controlled substances in schedules II 

through V. GX 2. However, on April 12, 

2007, Respondent voluntarily 

surrendered his registration. Id. On 

February 29, 2008, Respondent applied 

for a new registration; this application is 

at issue in this proceeding. ALJ Ex. 3, at 

2; GX 1. 

Until 1998, Respondent primarily 

practiced as a surgeon. During this 

period, he also had a family practice 

with four offices and operated a 

dispensary on the premises of his 

practice for thirty to forty years. Tr. 562, 

570, 598. From 1968 through 1998, he 

owned and operated Newhall 

Community Hospital, where he was the 

Medical Director and also a staff 

surgeon. Id. at 599, 602. During the 

course of his surgical career, 

Respondent had occasion to prescribe 

pain medications; while running the 

hospital he often had discussions with 

colleagues on pain medicine issues. Id. 

at 597, 602.4

In 1998, Respondent opened his 

current family practice. Tr. 563. While 

he is not formally trained in pain 

management, in 2003 he attended a 5- 

day course on pain management. Id. at 

564, 638. At that course, he learned 

about Pain Management Agreements 

and Patient Comfort Assessment Guide 

tools, which he began to utilize in his 

practice. Id. at 307–09. 

The State Board Proceeding 

On June 20, 2006, the Medical Board 

of California (the Board) filed a 

seventeen-count accusation against 

Respondent’s medical license based on 

his treatment of patients P.P., D.F., and 

K.Z. RX A, at 2; RX V. The allegations 

included, inter alia, that Respondent 

had prescribed various drugs without 

performing adequate physical 

examinations and taking adequate 

histories, that he had committed 

negligent and incompetent acts, and that 

he had failed to maintain adequate 

records. RX V. 

On April 2, 2007, a State ALJ rejected 

all of the allegations except for that 

which alleged that Respondent’s 

recordkeeping with respect to K.Z. was 

inadequate. RX A, at 18. The State ALJ 

thus recommended that Respondent be 

‘‘publicly reprimanded * * * for his 

departures from the standard of care 

regarding his medical record keeping of 

patient K.Z.’’ Id. at 22. On May 4, 2007, 

the Board adopted the State ALJ’s 

decision. Id. at 1. Of note, in this 

proceeding, the Government does not 

rely on Respondent’s treatment of any of 

these three patients.5

The DEA Investigation 

In either August or September 2006, 

DEA’s Los Angeles Field Division 

received information from a confidential 

source that Respondent was 

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6Respondent testified that during these years, his 

practice was growing. Tr. 282. In 2004, he had 1,740 

patients; in 2005, he had 1,970 patients; in 2006, 

he had 2,320 patients; and in 2007, he had 2,353 

patients. Id. He indicated that the reason for this 

increase was that prior to his heart surgery in 2003, 

he had retained a physician’s assistant at his 

practice. Id. at 283. However, on losing patients 

after the heart surgery, he had dismissed the 

physician’s assistant. Id. He attributed the 

subsequent growth of his practice to the fact that 

the patients were able to see him instead of just a 

physician’s assistant. Id. at 284. Respondent further 

testified that with the increase in patients, he also 

experienced an increase in pain patients and 

therefore increased his purchases of Vicodin and 

other opioids. Id. The ALJ ‘‘generally f[ou]nd the 

Respondent’s testimony credible.’’ ALJ at 10 n.4. 

unnecessarily prescribing hydrocodone 

to the ‘‘younger, mid-twenties 

population.’’ Tr. 24. Thereafter, a DEA 

Diversion Investigator (DI) obtained 

reports from the Controlled Substance 

Utilization Review and Evaluation 

System (CURES), the State’s 

prescription monitoring program 

showing prescriptions issued for 

schedule II through IV controlled 

substances, as well as ARCOS, a DEA 

database which monitors the sale of 

Schedule III and IV controlled 

substances from manufacturers and 

distributors. Id. at 25–27; GX 39. While 

the CURES report showed ‘‘minimal 

activit[y],’’ Tr. 26, the ARCOS report 

showed that between 2004 and 2006, 

Respondent’s purchases of hydrocodone 

had increased from 63,600 tablets to 

388,000, and that between January 1 and 

April 11, 2007, Respondent purchased 

221,000 such tablets. Id. at 26–27; GX 

4.6 According to the DI, such large 

hydrocodone purchases were not 

consistent with a family practice or even 

with the operation of a typical family 

pharmacy, which he estimated might 

purchase 100,000 hydrocodone tablets 

per year. Tr. 44. Among physician 

purchasers of hydrocodone in the Los 

Angeles area, Respondent ranked 

second; the ARCOS database could not 

be queried, however, as to a ranking for 

physicians who also operate their own 

dispensaries. Id. at 28–30, 34, 43–44. 

During the investigation, the DEA sent 

an undercover special agent (SA) using 

the name of ‘‘Kim Jackson’’ to 

Respondent in an attempt to obtain 

controlled substances. Tr. 51. The SA 

wore a wire and was monitored by a DI. 

Id. at 52. 

At the SA’s first undercover visit with 

Respondent on October 3, 2006, she told 

Respondent that she had just moved 

from Montana and had been getting 

Vicodin, a Schedule III controlled 

substance which contains hydrocodone 

and acetaminophen, from a physician 

there. Tr. 187, 192 (playing of GX 47 in 

hearing); GX 47; RX AA, at 1 (transcript 

of visit); see 21 CFR 1308.13(e). When 

Respondent asked her why she was 

taking the Vicodin, she responded, ‘‘It 

just made me feel better.’’ Tr. 193; GX 

47; RX AA, at 1. Respondent then said, 

‘‘No, you know, I don’t prescribe 

Vicodin for recreational purposes or to 

feel better * * * because Vicodin is a 

controlled drug and it is specifically for 

specific pains, you know?’’ Tr. 193–94; 

GX 47; RX AA, at 1. The SA then 

inquired whether ‘‘if [her] back hurt’’ 

would ‘‘be a way to get’’ the drug. Tr. 

194; GX 47; RX AA, at 1. Respondent 

replied: ‘‘Yeah, what happened to your 

back?’’ Tr. 194; GX 47; RX AA, at 1. The 

SA answered: ‘‘I don’t really specifically 

remember anything happening to it. But 

if it hurt, would Vicodin help it?’’ Tr. 

194; GX 47; RX AA, at 1. Respondent 

answered in the affirmative. 

Respondent then inquired about the 

doctor in Montana who had prescribed 

the Vicodin and whether that physician 

had obtained additional studies given 

her report of back pain. Tr. 194–95; GX 

47; RX AA, at 1–2. The SA indicated 

that the doctor in Montana performed a 

physical examination but did not take xrays or order any other tests. Tr. 195; GX 

47; RX AA, at 2. Respondent then noted 

that it was ‘‘unusual’’ for someone as 

‘‘young’’ as the SA to be having back 

pain, and asked: ‘‘where in your back are 

you having the pains?’’ Tr. 195; GX 47; 

RX AA, at 2. The SA answered: ‘‘I don’t 

specifically have it, I was just asking 

you if that would be a reason someone 

would have it?’’ Tr. 195; GX 47; RX AA, 

at 2. Respondent next stated, ‘‘well you 

know, if it is for that reason for now 

* * * I can give you a prescription 

* * * which Vicodin are you using? 

Extra strength?’’ Tr. 196; GX 47; RX AA, 

at 2. The SA told Respondent that she 

was getting 10 mg. strength. Tr. 196. 

Shortly thereafter, Respondent then 

asked, ‘‘Which part of your back are you 

hurting * * * show me where?’’ Tr. 196; 

GX 47; RX AA, at 2. The SA responded, 

‘‘Here.’’ Tr. 196; GX 47; RX AA, at 2. She 

then elaborated, ‘‘it’s not really 

sensitive.’’ Tr. 196; GX 47; RX AA, at 2. 

When Respondent asked her how long 

she had been having the pain, the SA 

replied, ‘‘A couple years I guess.’’ Tr. 

196; GX 47; RX AA, at 2. Respondent 

indicated that he would write for thirty 

tablets of 10 mg. Vicodin (Vicodin ES) 

but that ‘‘we have to have more 

documentation as to * * * why this 

[sic] controlled drugs * * * are being 

prescribed for you, you know?’’ Tr. 196; 

GX 47; RX AA, at 2. 

Regarding her having pointed to her 

lower back and her statement that she 

had had pain for a ‘‘couple years I 

guess,’’ the SA testified that she had told 

Respondent several times that she ‘‘was 

not in pain’’ and that she wanted 

Vicodin ‘‘because it made me feel good.’’ 

Tr. 216. The SA further testified that 

Respondent was trying to provide her 

‘‘with a story—oh, okay, yes, that 

works—back pain.’’ Id. The SA also 

testified that Respondent did not appear 

to be hard of hearing as she was never 

asked to repeat herself. Id. While the SA 

acknowledged that Respondent may 

have been skeptical of whether she had 

pain, she testified that ‘‘right after that, 

he agreed to give me the Vicodin 

without further examination or 

questions.’’ Id. at 217. 

Respondent then indicated that he 

could either give her a prescription or 

that she could buy the medication from 

his dispensary. Tr. 197; GX 47; RX AA, 

at 3. The SA opted to buy her Vicodin 

from the dispensary. Tr. 197; GX 47; RX 

AA, at 3. Respondent instructed her to 

take the Vicodin as one tablet every 

eight hours. Tr. 198; GX 47; RX AA, at 

3. The SA’s visit with Respondent lasted 

approximately six minutes. Tr. 192, 199. 

The SA received a paper bag 

containing Vicodin from the 

receptionist. Tr. 201. According to the 

SA, she did not receive anything in 

writing from Respondent notifying her 

that she had the option of obtaining the 

medication either with a prescription 

from a pharmacy or from his dispensary. 

Id. at 201. When the DIs later counted 

the pills, there were thirty-five tablets, 

not thirty. Id. at 202. 

According to the patient record, 

Respondent observed a ‘‘muscle spasm.’’ 

GX 14, at 4. In her testimony, the SA 

stated that Respondent examined her 

back ‘‘for maybe five seconds, at which 

time he touched me two to three times, 

lightly.’’ Tr. 200. She also testified that 

Respondent never mentioned back 

spasms to her and that she never 

mentioned that she had back spasms to 

him. Id. The SA further testified that in 

examining her, Respondent never saw 

her skin as he did not lift the garment 

covering her back. Id. at 213. 

In his testimony, Respondent asserted 

that when he touched the SA’s back, he 

noticed muscle spasms, which 

confirmed his ‘‘impression that she did 

[have] back pain.’’ Tr. 404. Respondent 

also testified that usually when he 

detects muscle spasms in a pain patient, 

he does not mention it to the patient but 

only notes it in the patient record as the 

observation is a ‘‘confirmation for [his] 

own information.’’ Id. at 319. According 

to Respondent, a physical examination 

of the back largely ‘‘is by palpation of 

the back muscles.’’ Id. at 486. He further 

maintained that, in checking for muscle 

spasms, it is preferable to touch through 

light clothing rather than to touch skin 

directly so as to avoid cold hands 

triggering a muscle spasm. Id. at 320. 

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7Suboxone is a drug which is used to detoxify 

addicts from narcotics. Tr. 111. 8The record does not indicate at what point DEA 

became aware that R.E. was obtaining controlled 

substance prescriptions from other doctors or what 

course of action investigators took as a result. 

Because my findings regarding Respondent’s 

prescribing to R.E. are based on the recording of his 

visit (which was played into the record) and his 

patient file, R.E.’s credibility is not in issue. 

Regarding the SA’s visit, Respondent 

testified that in almost fifty years of 

practicing medicine he had never had a 

patient claim to not have pain yet 

request pain medication; nor had a 

patient who initially claimed to not 

have pain later claim to have pain. Id. 

at 404–05. According to Respondent, ‘‘I 

don’t believe, nor do I remember, that 

she told me that she did not have any 

back pain.’’ Id. at 405. 

The ALJ found that ‘‘Respondent 

credibly testified that he believed she 

was suffering from back pain for the 

past two years. He believed he saw 

muscle spasms, which would be 

consistent with back pain.’’ ALJ at 7. 

The ALJ did not explain how 

Respondent would have seen muscle 

spasms given the SA’s testimony that he 

did not lift the garment that was 

covering her back. Nor did she reconcile 

her credibility findings with the actual 

conversation which was recorded 

during the visit which shows that 

Respondent had agreed to provide the 

Vicodin before the Agent had made any 

representation that she had back pain. 

If taken as instructed, the thirty pills 

that the SA should have received would 

have lasted a minimum of ten days. On 

October 19, the SA phoned 

Respondent’s office and requested a 

refill of Vicodin and asked for sixty pills 

instead of the thirty of her initial 

prescription. Tr. 202. The receptionist 

told her to call back after 3:00 to 

confirm whether the refill was 

approved. Id. When the SA called back, 

she was told that the refill had been 

approved; the SA picked up the 

prescription the following day. Id. at 

203. 

If taken as prescribed, the refill 

should have lasted a minimum of 

twenty days. Eighteen days later, on 

November 7, the SA called for another 

refill and asked for 120 Vicodin because 

she was going out of town. Id. This time, 

the SA was not told to call back to verify 

whether the refill had been approved. 

Id. Two days later, the SA obtained the 

drugs. Id. 

At an appointment on December 1, 

2006, the SA told Respondent that 

Vicodin made her nauseous and 

requested OxyContin. Tr. 203–04; RX Z, 

at 2. Respondent stated that OxyContin 

had worse side effects and that he 

would give her Lorcet (another 

hydrocodone drug) instead. Tr. 204; RX 

Z, at 3. He also recommended that she 

get massaged with warm olive oil and 

use a heating pad on her back. RX Z, at 

3–4. The SA received 120 Lorcet from 

Respondent’s staff on that day. Tr. 204. 

The SA also testified that although she 

had been asked to bring her medical 

records during the phone call in which 

she made her initial appointment, she 

never did and was never again asked to 

bring them. Id. at 205. On crossexamination, the SA testified that she 

did not receive early refills. Id. at 226. 

R.E., who had reported Respondent to 

the DI, also agreed to wear a wire and 

visit Respondent; a portion of the 

recording of his initial visit was played 

at the hearing. Tr. 55; GX 47. On 

October 13, 2006, R.E. visited 

Respondent. GX 12, at 3. R.E. 

complained of stiffness in his neck 

which he had had for ‘‘a couple of years’’ 

duration and said that he had been 

taking Norco, a drug which contains 10 

mg. hydrocodone and 325 mg. 

acetaminophen. Tr. 60–61, 68; GX 12, at 

3, GX 47. R.E. also indicated that he had 

tried acupuncture and ‘‘[a] little yoga.’’ 

Tr. 63. He also complained that it was 

hard for him to fall asleep. Id. at 64. 

During the visit, Respondent touched 

R.E. lightly on the neck a couple of 

times. While Respondent noted the 

presence of muscle spasms in R.E.’s 

patient record, the recording of the visit 

contains no comment by Respondent 

which indicates that he had found that 

R.E. had a muscle spasm. GX 12, at 3; 

Tr. 60–67. The DI also testified that 

when he interviewed R.E. after the visit, 

R.E. never mentioned that Respondent 

had said that he had muscle spasms. Tr. 

122. Respondent advised R.E. to use a 

heating pad and to get someone to 

massage the muscles for him. Id. at 63. 

Respondent also told R.E. he could 

either provide, or write a prescription 

for, 60 Vicodin ES, as well as 60 Xanax 

(alprazolam) to help him sleep. Id. at 64. 

R.E. opted to buy the drugs from 

Respondent’s dispensary and 

Respondent instructed him to take one 

Vicodin ES every eight hours and one 

Xanax at night for sleep and another 

during the day ‘‘if you need it.’’ Id. at 65, 

174; GX 12, at 3. 

If taken as directed, the Vicodin ES 

thus should have lasted twenty days; 

the Xanax should have lasted thirty 

days. On October 20, one week later, 

R.E. obtained a refill of 120 Vicodin ES. 

GX 12, at 5. According to R.E.’s patient 

record, on November 9, R.E. did a 

follow-up appointment with 

Respondent at which time Respondent 

switched him to Lorcet and dispensed 

to him 120 tablets, with the instruction 

to take one tablet every six hours. GX 

12, at 5. 

While this quantity would have 

provided a thirty-day supply if taken as 

directed, on December 1 (twenty-two 

days later), R.E. obtained a refill of 150 

Lorcet, 30 tablets more than the 

previous refill. While if taken as 

directed, this refill would have lasted 

thirty-seven days, only six days later on 

December 7, Respondent approved 

refills for another 150 Lorcet with the 

same dosing instructions, as well as for 

60 Xanax. Id. at 6. 

On February 27, 2007, R.E. received 

refills for 150 Lorcet (again a thirty 

seven-day supply) and 60 Xanax, with 

the same dosing instructions. Id. On 

March 13, R.E. obtained another refill 

for 150 Lorcet and Respondent changed 

the dosing instruction to one tablet 

every four hours. Id. However, there are 

no notes indicating that Respondent had 

talked with R.E. and learned of any 

change in his condition that would 

support an increase in the dosing. 

Beside Respondent’s initials on the 

phone message requesting the refill is 

the message: ‘‘Need visit & agreement.’’ 

Id. at 9. A note saying ‘‘No Refill’’ three 

times in a row followed by ‘‘NEEDS TO 

BE SEEN,’’ dated March 19, 2007 

appears in R.E.’s patient record. Id. at 7. 

A CURES Patient Activity Report 

(PAR) indicates that R.E. received 

hydrocodone/apap 7.5 mg./300 mg. 

from another doctor on November 8, 

2006; Vicodin ES the following day 

from another doctor; and Suboxone 7

from another doctor on November 22. 

GX 44, at 2. On December 6, 2006, R.E. 

received more hydrocodone/apap 7.5 

mg./300 mg., as well as diazepam, from 

yet another doctor; on February 13 and 

March 5, 2007, he received Suboxone 

from the same physician who had 

issued the prescription filled on 

November 22. Id. 

R.E. had disclosed to DEA 

Investigators his consumption of 

Suboxone. Tr. 126. The DI testified that 

during the time that R.E. worked as a 

confidential informant, he had no 

reason to believe that R.E. was 

improperly consuming controlled 

substances.8 Id. at 179. 

The investigators subsequently 

obtained warrants to search 

Respondent’s office and residence. Id. at 

70. On April 12, 2007, the warrants 

were executed and the authorities 

seized approximately one hundred 

patient records which were selected 

based on these persons having received 

large quantities of hydrocodone, Xanax, 

and Valium; the DIs also seized the 

patient files for the SA and CI. Id. at 90– 

91. During the search of Respondent’s 

residence, the DIs interviewed him. Id. 

at 71. 

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9Respondent later identified this individual as 

the receptionist, who first takes a patient’s payment. 

Tr. 592. 

10 Dr. Chavez also has extensive experience in 

conducting utilization review and case 

management, which involves monitoring the 

activities of primary care physicians for excessive 

or unwarranted use of services in pain management, 

neurosurgery, plastic surgery, orthopedics, 

podiatry, and general surgery. GX 5, at 3–4. He has 

also ‘‘developed guidelines for surgical, orthopedic, 

plastic surgery and pain management procedures to 

ensure appropriate utilization and quality of care.’’ 

Id. at 4. 

11 Dr. Chavez reviewed the patient records of 

W.C., J.D., R.A., M.T., B.W., S.M., M.H., D.M., ‘‘Kim 

Jackson,’’ R.E., E.A., J.N., M.D., J.W., and S.R. GX 

6, at 2. Dr. Norcross reviewed the patient files of 

W.C., J.D., R.A., and M.T.; these files include three 

of the patients who, according to the PARs obtained 

by the Government, had obtained controlled 

substances from other physicians during the period 

in which Respondent prescribed to them. RX D, at 

1; GX 41–43. 

12 In his discussion of the standard of care, Dr. 

Chavez noted that the Board has promulgated 

Guidelines for Prescribing Controlled Substances 

for Pain, a copy of which was attached to the 

Government’s Post-Hearing Brief. Gov’t Post. Hrng. 

Br., App. E. These were adopted by the Board in 

1994, GX 6, at 16, and were subsequently revised 

in 2003. Id. at 16; App. E, at 1. I take official notice 

of the fact that the Board adopted the revised 

Guidelines on August 1, 2003. The Guidelines are 

intended ‘‘to improve effective pain management in 

California, by avoiding under treatment, over 

treatment, or other inappropriate treatment of a 

patient’s pain and by clarifying the principles of 

professional practice that are endorsed by the 

Medical Board so that physicians have a higher 

level of comfort in using controlled substances, 

including opioids, in the treatment of pain.’’ Id. at 

1 (emphasis added). 

In the interview, Respondent 

indicated that he had approximately 

two thousand patients, including 

approximately fifty pain patients for 

whom he either wrote prescriptions or 

dispensed medication. Id. at 72. 

Respondent related that he took 

primarily cash patients and some 

MediCal patients but he did not take 

patients with private insurance. Id. at 

90. 

Respondent further stated that an 

employee, H.C., filled the prescriptions 

at his dispensary. Id. at 73. According 

to the DI, H.C. was not licensed in 

California to dispense drugs. Id. 

Respondent told the DIs that those 

patients who wanted refills would call 

his office, that he reviewed the requests, 

and that where appropriate, he 

approved a refill. Id. He further stated 

that he would authorize a refill 

approximately once a month. Id. The DI 

testified that Respondent’s statement as 

to the frequency of his authorizing of 

refills was not consistent with what he 

observed in the patient files. Id. at 73– 

74. 

As discussed below, the various 

patient records include slips 

memorializing the refill requests his 

patients phoned in. Respondent testified 

that upon reviewing these slips, he 

would instruct his staff to note on the 

slip when the patient had last received 

a refill (indicated by ‘‘LR’’) and/or the 

date when he/she had last been seen 

(indicated by ‘‘LS’’). Id. at 337–38. He 

further testified that he used follow-up 

visits to obtain ‘‘information as to how 

that patient is doing at the particular 

moment’’ which he would use ‘‘either to 

keep the medications the same, lower it, 

or increase it.’’ Id. at 337. 

Respondent further testified that H.C. 

repackages pain medications into 

smaller bottles and labels them with 

pre-labeled dosing instructions. Id. at 

306, 328. H.C. then brings the pain 

medication to ‘‘the girl in front who in 

turn gives them to the patient who pays 

[for the drug] up front.’’ Id. at 328.9

Respondent admitted, however, that 

he did not personally supervise the 

receptionist as she delivered the 

controlled substances to his patients. Id. 

at 593. He also testified that his 

pharmacy, including his manner of 

dispensing medication to patients, was 

inspected by the Medical Board on two 

separate occasions and that he was not 

cited for any infractions. Id. at 328–29. 

Respondent was not present during one 

of the inspections. Id. at 329. 

The DI also obtained additional PARs 

from CURES. These reports showed that 

four additional patients whose 

prescriptions were at issue in the 

proceeding obtained controlled 

substances from other physicians during 

the same period in which they obtained 

controlled substances from Respondent. 

Id. at 108–11; GXs 41, 42, 44, 45. 

California authorizes a licensed 

physician to obtain PARs ‘‘so that wellinformed practitioners can and will use 

their professional expertise to evaluate 

their patients’ care and assist patients 

who may be abusing controlled 

substances.’’ GX 39, at 2. 

Respondent testified that he was 

unaware of the availability of PARs 

until he saw the documents the 

Government was presenting in this 

proceeding. Tr. 343. He testified that, 

should his registration be restored, he 

would use the database when a patient 

is requesting refills too quickly, when a 

patient reports at his initial visit that he 

has already been on controlled 

substances, as well as thirty days after 

having prescribed controlled substances 

to a patient. Id. at 344, 557–58. 

The Expert Reports on the Standard of 

Care and Usual Course of Professional 

Practice 

At the hearing, neither party offered 

the testimony of an expert witness. 

However, each party submitted into 

evidence a report from a physician who 

had reviewed at least some of the 

patient files in question. GX 6; RX D. 

While neither party’s witness was 

formally qualified as an expert (as 

would likely be the case if they had 

been called to testify), both parties 

referred to the physicians as experts and 

the ALJ treated them as such, as do I. 

The Government’s Expert was Rick 

Chavez, M.D. Dr. Chavez, who holds a 

B.A. from Stanford University and 

obtained his M.D. from the U.C.L.A. 

School of Medicine, is the founder and 

Medical Director of The P.A.I.N. 

Institute and is an Assistant Clinical 

Professor of family medicine at the 

U.C.L.A. School of Medicine. GX 6, at 

33; GX 5. Dr. Chavez holds board 

certifications in family practice, pain 

management, and addiction medicine. 

GX 5, at 1. He is a member of the 

American Academy of Pain 

Management, the Society for Pain 

Management, the American Society of 

Interventional Pain Physicians, the 

American Pain Society, and the 

American Academy of Addiction 

Psychiatry. Id. at 8. 

In addition to his medical practice, 

since 2001 Dr. Chavez has served as a 

Consultant/Physician Reviewer for the 

California Board of Medical Quality 

Assurance. Id. In this capacity, he 

reviews cases involving pain 

management, family medicine, 

addiction medicine, and general 

medical quality.10 Id. 

Respondent’s Expert was William A. 

Norcross, M.D. Dr. Norcross received a 

B.S. from Ursinus College and his M.D. 

from the Duke University School of 

Medicine and holds board certification 

in family practice and geriatric 

medicine. RX D, at 5. At the time of the 

hearing, he was the Director of the 

University of California—San Diego’s 

Physician Assessment and Clinical 

Education (PACE) Program and a 

Professor of Clinical Family Medicine at 

the University’s School of Medicine. Id. 

at 6. However, Dr. Norcross is not boardcertified in pain management. 

In their respective reports, Dr. Chavez 

reviewed fifteen patient files; 11 Dr. 

Norcross reviewed four patient files. See 

GX 6; RX D. In their reports, both Dr. 

Chavez and Dr. Norcross opined as to 

whether Respondent had met the 

standard of care. However, Dr. Chavez 

provided an extensive discussion of 

what steps Respondent was required to 

take in order to meet the standard of 

care and discussed the Medical Board of 

California’s Guidelines for Prescribing 

Controlled Substances for Pain 

(Guidelines), which were first adopted 

in 1994.12 GX 6, at 16. By contrast, Dr. 

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The Guidelines state that ‘‘[t]he Medical Board 

expects physicians and surgeons to follow the 

standard of care in managing patients.’’ Id. Under 

the heading ‘‘History/Physical Examination,’’ it 

provides that ‘‘[a] medical history and physical 

examination must be accomplished. This includes 

an assessment of the pain, physical and 

psychological function; a substance abuse history; 

history of prior pain treatment; an assessment of 

underlying or coexisting diseases or conditions; and 

the documentation of the presence of a recognized 

medical indication for the use of a controlled 

substance.’’ Id. at 2 (emphasis added). 

13 Dr. Chavez stated that while it is not expected 

that a physician can conduct all the ‘‘recommended 

evaluations on the first visit,’’ ‘‘by the 2nd, 3rd, or 

4th visit patient charts should have many of the 

basic standards of care during the course of 

treatment.’’ GX 6, at 30. 

Norcross’s report discussed only 

whether he believed Respondent’s 

‘‘charting and clinical decision making,’’ 

as well as his prescribing of drugs 

beyond the maximum recommended 

daily dosage listed in the Physician 

Desk Reference, met the standard of 

care. RX D. 

According to Dr. Chavez, ‘‘[a]ccepted 

standards of medical practice require 

that physicians obtain a sufficient 

history and perform a focused physical 

exam when evaluating patients in 

chronic pain.’’ GX 6, at 17. Furthermore, 

‘‘[b]efore prescribing narcotic analgesic 

medications[,] the physician should 

have an understanding as to the 

probable diagnosis and a picture of the 

overall general health of the patient.’’ Id. 

Dr. Chavez explained that a physician 

must obtain a history of the condition, 

which includes determining the onset of 

the pain, the ‘‘[e]xact location and 

character of pain’’ and use either ‘‘a 

visual analogue’’ or a ‘‘1–10 scale’’ to 

measure the pain level. Id. The 

physician must assess the degree of the 

patient’s functional and physical 

impairment, which includes the 

patient’s physical and psychological 

function, documentation of the presence 

of recognized medical indications for 

the use of controlled substances, and a 

substance abuse history with the latter 

being ‘‘a basic requirement.’’ Id. at 17– 

18. In addition, the physician should do 

a review of prior pain treatment and 

medications and determine the patient’s 

‘‘response to previous treatment,’’ as 

well as review the patient’s medical 

records and test results from prior 

treatment. Id. Moreover, the physician 

must determine whether the patient has 

any coexisting or underlying conditions. 

Id. at 18. 

Dr. Chavez further explained that 

‘‘[b]ased on the patient’s complaints, the 

physician must determine the most 

likely reasons for the patient’s pain 

complaint’’ and that ‘‘[d]etermining the 

exact Pain Generator or source of pain 

requires a thorough focused exam which 

correlates with historical data.’’ Id. 

Continuing, Dr. Chavez observed that 

‘‘[h]alf of all patients in chronic pain 

suffer from 1 or more other medical 

conditions and thus, may have multiple 

different diagnoses. Therefore, 

assessment of cardiac, renal, hepatic, GI, 

pulmonary, and psychiatric status are 

imperative before prescribing opiate 

analgesics and other medication which 

may not be indicated in particular 

medical conditions, or which may affect 

end-organ function.’’ Id. Moreover, ‘‘[i]t 

is of utmost importance that the 

physician keep an accurate and 

complete medical record with thorough 

documentation at every visit for each 

chronic pain patient.’’ Id. Dr. Chavez 

also explained that a patient may 

require further testing to verify a 

presumed diagnosis and to assess major 

organ systems because prescribing 

certain drugs, including those 

containing Tylenol (acetaminophen), ‘‘in 

a patient who may develop end organ 

damage may be contraindicated.’’ Id. at 

19. 

In this regard, Dr. Chavez further 

observed that ‘‘[p]atients on large doses 

of medications which might cause 

serious side effects must have regular 

blood chemistries drawn in order to 

assess end-organ function and a baseline 

measurement of function. It is crucial 

for the treating physician to recognize 

early on whether any evidence of 

medication induced organ dysfunction 

is present.’’ Id. at 29. 

According to Dr. Chavez, once the 

physician makes a diagnosis, a 

treatment plan should be created which 

lists, inter alia, the objectives of 

treatment, how the success of the 

treatment plan will be evaluated, and 

whether any further tests or 

consultations with specialists are 

required. Id. at 20–21. In addition, ‘‘the 

prescribing physician should have 

discussed the risks and benefits of the 

use of controlled substances with the 

patient and have [obtained] a signed 

medication agreement with the patient, 

within the first [three] visits, which 

spells out the requirement for continued 

opioid therapy.’’ Id. at 20–21. Dr. Chavez 

further noted that ‘‘[c]hronic pain 

treatment requires more than the use of 

opiate analgesic medications.’’ Id. at 30. 

Dr. Chavez observed that ‘‘[i]t is not 

considered good medical practice to 

allow refills on addictive medications in 

pain patients unless they have been 

under the care of the physician for [a] 

long-term and/or are well-known to the 

prescribing physician.’’ Id. at 20. 

Continuing, he explained that 

‘‘[f]requent visits and re-evaluation of 

the situation are necessary’’ and that ‘‘[i]t 

is prudent to see the opiate treated 

chronic pain patient once every 1 to 3 

months.’’ Id. He also explained that a 

‘‘[p]eriod of titration of medication and 

physician follow-up is necessary to 

determine [the] effectiveness of therapy 

or [to] re-evaluate whether the 

presumed diagnosis is correct.’’ Id. at 22. 

In his review of the patient files, Dr. 

Chavez found that ‘‘for each patient 

receiving opiate analgesic(s), antianxiety, muscle relaxant(s), or sleep 

agents for chronic pain therapy,’’ 

Respondent’s ‘‘charts did not exhibit 

[the] clear presence of’’ ‘‘[a] thorough 

history,’’ ‘‘[a] thorough focused physical 

exam,’’ and ‘‘[a] thorough past historical 

review.’’ Id. at 30. Moreover, not one of 

the charts had evidence that Respondent 

had ‘‘[b]egun a diagnostic work-up or 

thoughtful discussion to verify the 

presumed diagnosis and probable pain 

generator(s),’’ 13 or that the patients had 

‘‘been placed on a multi-modality pain 

treatment and management program 

with appropriate use of other nonaddictive medications’’ and 

consideration of other treatment 

modalities. Id. 

According to Dr. Chavez, ‘‘[c]hronic 

pain treatment requires more than use of 

opiate analgesic medication and, 

therefore, on chart review, one should 

see evidence of discussion of other 

therapies and offer recommendations 

regarding behavioral therapy, 

psychological therapy and support, 

physical therapy, exercise, weight loss, 

and other modalities.’’ Id. There should 

also ‘‘be plans for appropriate specialty 

consultation, diagnostic studies * * * 

and drug screens to rule out illicit drug 

use or diversion,’’ as well as ‘‘medication 

contracts or agreements.’’ Id. 

Dr. Chavez observed that ‘‘the patient 

medication agreement that [Respondent] 

did have in the chart did not seem to be 

followed like it should have been.’’ Id. 

at 30. More specifically, the terms of 

Respondent’s pain management 

agreement included that the patient 

‘‘will submit to a blood or urine test if 

requested by my doctor to determine my 

compliance with my program of pain 

control medicine,’’ and that the patient 

‘‘will use [his] medicine at a rate no 

greater than the prescribed rate and that 

use of * * * medicine at a greater rate 

will result in * * * being without 

medication for a period of time.’’ GX 7 

at 10. 

Dr. Chavez noted, however, ‘‘that 

there is no consistent refill rate’’ in the 

charts, and that ‘‘[s]ome refills occurred 

within two days of the last refill which 

would mean that large quantities of 

opiates had * * * been ingested during 

that time.’’ GX 6, at 30. He also observed 

that ‘‘not one of the patients had a urine 

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14According to Dr. Chavez, ‘‘[p]atients between 

the ages of 21 and 39 who suffer with chronic pain 

and who are on chronic opiate therapy are not that 

prevalent, even in a busy ‘Pain Practice.’ ’’ GX 6, at 

32. Moreover, the majority of patients ‘‘in this age 

group can be treated with non-opiate and nonaddictive medications for the most part.’’ Id. 

15On this issue, Respondent’s testimony was 

generally vague. With respect to patient M.T. (GX 

19), who complained of lower back pain, 

Respondent stated that he did not do any additional 

diagnostic studies because ‘‘actually in talking to 

him it sounds like he’s a patient of very limited 

means and to get the x-rays and all of the other 

studies would cost him a lot of money which he 

cannot afford.’’ Tr. 384. Yet M.T.’s record contains 

no indication that Respondent discussed this issue 

with him. See generally GX 19. With respect to 

M.H. (GX 13), who complained of migraines, 

Respondent acknowledged that ‘‘there could have 

been a lot more studies’’ but the patient ‘‘would 

have to incur considerable expense.’’ Tr. 397. Here 

again, there is no evidence in M.H.’s record that 

Respondent discussed the issue with him. 

drug screen done to verify that they 

were indeed ingesting the medication as 

opposed to diverting it.’’ Id. at 30–31. He 

also further found that Respondent ‘‘did 

not do any significant medical workup 

on any of the patients.’’ Id. at 31. 

Dr. Chavez also noted that while 

under the California guidelines ‘‘there is 

no maximum or minimum of 

medication limitations as long as [the] 

amounts provided match a safe dosing 

schedule,’’ he further opined that ‘‘if the 

maximum exceeds the manufacturer’s 

(pharmaceutical company; PDR) 

recommendations, then, generally, one 

may conclude that misuse or diversion 

of opiates or other addictive drugs may 

be occurring.’’ Id. at 31–32. Dr. Chavez 

then explained that ‘‘the normal 

maximum dosage of Norco would be 

two tablets every four hours or a 

maximum of 12 tablets per day, and for 

Vicodin ES 7.7/750[,] a maximum of 4– 

6 per day because of the amount of 

Tylenol [acetaminophen] involved,’’ 

which ‘‘generally should not exceed 

4000 milligrams per day.’’ Id. at 32. 

According to Dr. Chavez, while ‘‘most 

of the quantities [Respondent] 

prescribed’’ would be ‘‘reasonable and 

appropriate’’ if ‘‘given on a monthly 

interval,’’ he noted that ‘‘[m]any of the 

refills occurred within 2 to 7 days of the 

last refill’’ and that ‘‘[i]n many cases, it 

would have been impossible * * * to 

use this quantity of controlled 

medications within that short of period 

of time.’’ Id. at 32. In Dr. Chavez’s 

opinion, ‘‘[t]his should have been a red 

flag for possible drug diversion and/or 

abuse.’’ Id. 

Dr. Chavez opined that ‘‘[b]ased on the 

types and quantities of medications 

prescribed, the younger age range of 

many of [Respondent’s] patients,14 the 

frequency of prescriptions, the excessive 

quantities of medications, and irregular 

refill dates, there is substantial evidence 

to indicate the probability of abuse or 

diversion of opiate medications in the 

majority of the patient charts reviewed.’’ 

Id. at 31. He also opined that ‘‘[t]he fact 

that [Respondent] so freely prescribed 

these drugs without a thorough 

evaluation of these patients is not an 

acceptable approach to pain 

management.’’ Id. 

Continuing, Dr. Chavez noted that 

‘‘[n]ot one chart had evidence of the 

physician undertaking a workup in 

evaluation of the underlying medical 

problem’’ and ‘‘[t]he 15 charts reviewed 

lacked any objective evidence or chart 

notes justifying the use of opiate therapy 

to the level exhibited on the charts 

evaluated.’’ Id. at 32. Dr. Chavez also 

observed that the charts demonstrated 

no ‘‘effort to try nonaddictive 

medications or offer alternative 

modalities of treatment.’’ Id. Dr. Chavez 

then opined that ‘‘[t]he medical care and 

treatment provided by [Respondent] are 

markedly below the accepted standards 

of treatment for licensed physicians in 

the United States today. The represents 

an EXTREME DEPARTURE from the 

standard of care expected of a licensed 

practicing physician in the U.S. today.’’ 

Id. at 33 (caps in original). 

In addition to the four patient records 

indicated above, Dr. Norcross reviewed 

Dr. Chavez’s report on Respondent and 

the Board’s decision referenced above. 

RX D, at 1. Dr. Norcross indicated he 

had formed certain opinions based on 

these materials and also on his 

‘‘personal knowledge’’ of Respondent in 

that he had known Respondent ‘‘for 

almost 4 years in [Dr. Norcross’s] 

capacity as a teacher, helping 

[Respondent] to improve the quality of 

his prescribing and record-keeping.’’ Id. 

Further, Dr. Norcross had ‘‘also served 

as a witness in [Respondent’s] Medical 

Board of California matter.’’ Id. 

Dr. Norcross concurred with Dr. 

Chavez that Respondent’s ‘‘medical 

record-keeping still has room for 

improvement’’ and that his ‘‘charting of 

the patient history and physical 

examination would not be ‘thorough’ by 

the standards Dr. Chavez cite[d].’’ Id. at 

2. However, he then asserted that 

Respondent should be ‘‘judge[d] * * * 

against the standard of care defined by 

‘the community of licensees,’ and 

within that group, against physicians of 

similar age, culture, experience, training 

background, and clinical environment.’’ 

Id. at 2. Continuing, Dr. Norcross opined 

that ‘‘if compared to other older 

generation general practitioners who 

were not the beneficiaries of a full 3- 

year residency training program and 

were providing care to an underserved 

patient population, I believe 

[Respondent’s] charting and clinical 

decision making are well within the 

middle of that Bell Curve.’’ Id. 

Dr. Norcross further opined that as to 

the four patients whose medical records 

he reviewed, ‘‘there was a plausible 

source of pain, and [Respondent] 

provided enough history and enough 

examination, that the diagnosis was 

clear in all cases.’’ Id. With respect to Dr. 

Chavez’s criticism as to the lack of 

‘‘laboratory tests and imaging studies’’ as 

well as consultations with specialists, 

Dr. Norcross explained that he 

understood the costs of these were a 

‘‘deterrent[] * * * for a significant 

portion of [Respondent’s] patient 

population’’ because they do not have 

insurance. Id. 

Respondent, however, produced no 

credible evidence that any of the 

specific patients whose files were 

reviewed by Dr. Chavez lacked the 

financial resources to pay for these tests 

and/or consultations.15 Moreover, given 

that some of these patients had the 

ability to purchase more drugs (and 

sometimes multiple drugs) on numerous 

occasions within a month, it seems 

likely that they had the ability to pay for 

some tests and/or consultations. 

Dr. Norcross did, however, agree with 

Dr. Chavez’s ‘‘point that physicians 

should, as a general rule, limit their 

prescribing habits, for all drugs, not just 

opiates, to the manufacturer’s 

prescribing limits, even though 

responsible physicians can, and do, 

prescribe medications, including pain 

medications, ‘off label’ in appropriate 

cases.’’ Id. at 3. Dr. Norcross further 

noted that he had advised Respondent 

that ‘‘it was [his] strong recommendation 

[to] limit his prescribing to the * * * 

recommended daily maximum dosage, 

even though other reasonable 

physicians do engage in ‘off label’ 

prescribing in appropriate cases’’ and 

that ‘‘there are epidemiological studies 

regarding liver toxicity supporting the 

PDR dosage recommendations.’’ Id. 

According to Dr. Norcross’ report, he 

had ‘‘reviewed this’’ with Respondent, 

who had ‘‘committed himself to doing 

this henceforth, notwithstanding the ‘off 

label,’ dosage levels discussed in the 

[Board’s] decision.’’ Id. 

While the ALJ ‘‘ha[d] a problem with 

the conclusions of both of the expert[s],’’ 

she held that Dr. Chavez’s findings were 

entitled to more weight because ‘‘they 

are more consistent with the California 

requirements for determining the 

standard of care to be levied against the 

Respondent’s practices.’’ ALJ at 43. I 

agree with the ALJ’s conclusion 

although I disagree with her reasoning 

to the extent it suggests that Dr. Chavez 

erroneously ‘‘seemed to infer that there 

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16State Board regulations and/or guidelines are, 

of course, relevant in determining what practices 

are necessary for a physician to act in the usual 

course of professional practice. See Volkman v. 

DEA, 567 F.3d 215 (6th Cir. 2009). This, however, 

is not a case where a State rule or guideline 

expressly allows a physician to act in a manner 

which is in conflict with the accepted standards of 

medical practice throughout the country. Nor is it 

a case in which the Attorney General seeks to 

declare illegal conduct which is clearly permitted 

under State law. See Gonzalez, 546 U.S. at 258. 

17While Respondent argues that the Guidelines 

do not have the ‘‘force of law,’’ Exceptions at 5, they 

are nonetheless relevant in assessing what practices 

are necessary to dispense controlled substances for 

a legitimate medical purpose and in the usual 

course of professional practice. Moreover, Federal 

courts have repeatedly upheld convictions under 21 

U.S.C. 841 based on expert testimony as to the 

accepted standards of professional practice even 

though these standards may not have been 

promulgated in State board regulations. I thus reject 

Respondent’s exception. 

18While in his testimony, Respondent asserted 

that Lorcet contains only 500 mg. of acetaminophen 

per tablet, Tr. 301–02, the Government attached to 

its post-hearing brief a copy of the PDR listing for 

the drug which shows that each tablet contains 650 

mg. of acetaminophen. Gov. Br. at Appendix A. In 

his Reply Brief, Respondent conceded that ‘‘Lorcet 

contains 650 mg. of acetaminophen.’’ Resp. Reply 

Br. at 7. For the purpose of this decision, I assume 

that Respondent had a good faith but mistaken 

Continued 

is a national standard of care.’’ Id. at 40; 

see also id. (noting that ‘‘[i]n California 

* * * a doctor is held to the standard 

of skill or care prevailing in the medical 

profession in the locality in which he 

practices’’) (citing Inouye v. Black, 238 

Cal.App.2d 31, 33 (Cal. Ct. App. 1965)). 

In his Exceptions, Respondent 

contends that the ALJ ‘‘completely 

ignore[d] the standard of care set by the 

California Supreme Court and ratified 

by the California Medical Board’’ that ‘‘‘a 

physician is required to possess and 

exercise, in both diagnosis and 

treatment, that reasonable degree of 

knowledge and skill which is ordinarily 

possessed and exercised by other 

members of his profession in similar 

circumstances.’ ’’ Resp. Exceptions at 7 

(quoting Landeros v. Flood, 17 Cal. 3d 

399, 408 (1976)). According to 

Respondent, the standard applied by the 

ALJ ‘‘has long been repudiated * * * in 

favor of the ‘similar circumstances’ 

standard articulated by’’ his expert. Id. 

at 7–8. 

Both the ALJ’s reasoning and 

Respondent’s contention ignore, 

however, that the standard applicable 

under Federal law is whether the 

prescriptions were ‘‘issued for a 

legitimate medical purpose by an 

individual practitioner acting in the 

usual course of his professional 

practice.’’ 21 CFR 1306.04(a). In United 

States v. Moore, 423 U.S. 122, 138–39 

(1975), the Supreme Court upheld the 

conviction of a physician for unlawful 

distribution of methadone based on a 

jury instruction that allowed the jury to 

find him guilty if he dispensed the drug 

‘‘other than in good faith for 

detoxification in the usual course of a 

professional practice and in accordance 

with a standard of medical practice 

generally recognized and accepted in 

the United States.’’ (emphasis added). 

Moreover, even after Gonzalez v. 

Oregon, 546 U.S. 243 (2006), several 

courts of appeals ‘‘have applied a 

general-practice standard when 

determining whether the practitioner 

acted in the ‘usual course of 

professional practice.’ ’’ See United 

States v. Smith, 573 F.3d 639, 647–48 

(8th Cir. 2009); see also id. at 648 

(discussing Moore; ‘‘Thus informed by 

the Supreme Court and other controlling 

and persuasive precedent, we believe 

that it was not improper to measure the 

‘usual course of professional practice’ 

under § 841(a)(1) and [21 CFR] 1306.04 

with reference to generally recognized 

and accepted medical practices. 

*** ’’); see also United States v. 

Merrill, 513 F.3d 1293, 1306 (11th Cir. 

2008) (quoting Moore, 423 U.S. at 139) 

(‘‘The appropriate focus is not on the 

subjective intent of the doctor, but 

rather it rests upon whether the 

physician prescribes medicine ‘in 

accordance with a standard of medical 

practice generally recognized and 

accepted in the United States.’ ’’). 

Of further significance, post-Gonzales, 

the Ninth Circuit has expressly 

recognized that ‘‘both the Supreme 

Court and this Circuit have previously 

approved jury instructions that refer to 

a national standard of care.’’ United 

States v. Feingold, 454 F.3d 1001, 1009 

(9th Cir. 2006).— As these cases make 

clear, the opinion of the Government’s 

Expert that Respondent’s treatment of 

the patients whose files he reviewed 

was ‘‘markedly below the accepted 

standards of treatment for licensed 

physicians in the United States today’’ 

and ‘‘represents an EXTREME 

DEPARTURE from the standard of care 

expected of a licensed practicing 

physician in the U.S. today’’ is clearly 

admissible and probative of whether 

Respondent’s prescriptions were ‘‘issued 

for a legitimate medical purpose’’ and 

whether he acted ‘‘within the usual 

course of professional practice.’’ 21 CFR 

1306.04(a).16

In any event, the record establishes 

that Dr. Chavez serves as a consultant/ 

physician reviewer to the California 

Board on pain management and is thus 

clearly familiar with the standards of 

medical practice related to prescribing 

controlled substances to treat chronic 

pain patients in California. Moreover, in 

his report, Dr. Chavez made clear that 

he had analyzed Respondent’s 

prescribing pursuant to the California 

guidelines.17 See GX 6, at 31. 

Most importantly, in his report, Dr. 

Chavez provided an extensive 

discussion of the accepted standards of 

medical practice for diagnosing, 

treating, and monitoring chronic pain 

patients. By contrast, Dr. Norcross is not 

even board certified in pain 

management. With the exception of his 

conclusory assertion that Respondent 

had done enough of a history and 

examination so that his diagnosis was 

clear with respect to the four patient 

files he reviewed (in contrast to the 

fifteen files Dr. Chavez reviewed), he 

did not otherwise identify how Dr. 

Chavez had misstated the accepted 

standards of medical practice. Indeed, 

Dr. Norcross apparently agreed with Dr. 

Chavez’s opinion regarding the 

inappropriateness of prescribing 

controlled substances containing 

acetaminophen in quantities exceeding 

the manufacturer’s recommended limits, 

as well as Dr. Chavez’s opinion as to the 

inadequacy of Respondent’s medical 

records. Finally, Dr. Norcross failed to 

address numerous other deficiencies 

identified by Dr. Chavez such as 

Respondent’s failure to do blood 

chemistries to assess organ function, his 

failure to discuss the risks and benefits 

of taking controlled substances, his 

failure to create treatment plans, his 

failure to recommend other treatment 

modalities, his failure to require 

frequent visits to re-evaluate his patients 

and the efficacy of the therapy, his 

failure to take substance abuse histories, 

the frequency of his refills, and his 

failure to enforce his pain management 

agreements. Thus, I conclude that Dr. 

Chavez’s report is entitled to significant 

weight and Dr. Norcross’s report is 

entitled to little weight. 

The Patient Files and Respondent’s 

Testimony Regarding Them 

Before discussing the patient file 

evidence, several issues must be 

resolved. The ALJ found that 

‘‘Respondent expects his patients to rely 

upon his verbal dosing information, 

[and] not the instructions found on the 

prescription labels on the bottle, for 

controlled substances.’’ ALJ at 12. The 

ALJ further that Respondent ‘‘credibly 

testified that ten grams of 

acetaminophen is the safe limit for daily 

intake’’ and presumably credited his 

testimony that ‘‘the maximum safe dose 

of Vicodin-ES [which contains 750 mg. 

of acetaminophen] is 12 tablets per day’’ 

and that the maximum safe dose of 

Lorcet, which contains 500 mg. of 

acetaminophen,18 ‘‘18–20 tablets per 

day.’’ Id. 

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belief that a Lorcet tablet contains 500 mg. of 

acetaminophen. 

19 It is noted that the ALJ ‘‘generally f[ound] the 

Respondent’s testimony credible.’’ ALJ at 10 n.4. 

20There is reason to question the credibility of 

Respondent’s testimony regarding the amounts of 

drugs he told his patients they could take. During 

the Special Agent’s undercover visit, Respondent 

told her to take one Vicodin ES ‘‘every eight hours.’’ 

Tr. 198. When the Agent repeated this instruction, 

Respondent replied: ‘‘Yeah. Take one every eight 

hours, if necessary.’’ Id. At no time did he tell her 

that she could safely take up to twelve tablets. See 

id. Likewise, the recording of R.E.’s visit indicates 

that Respondent told him to take one tablet of the 

Vicodin ‘‘every eight hours.’’ Id. at 65. Here again, 

there is no indication that Respondent told R.E. that 

he could take up to twelve tablets. 

21Respondent testified that there were five 

monthly examinations; the chart however indicates 

that there were eight: on September 15, October 14, 

November 23, and December 22, 2005, as well as 

on January 18, February 27, April 17, 2006, and one 

on which the date is undecipherable. GX7, at 3, 5, 

13, 27, 29, 32, 33, 34. 

In his testimony, Respondent 

maintained that, notwithstanding the 

dosing instructions for the prescriptions 

which were on the bottles and 

presumably recorded in his patient files, 

he actually expected his patients to take 

more than this because they would 

develop tolerance and require more of 

the drug to achieve pain relief. Tr. 310, 

567. According to Respondent, the 

dosing instruction written on the bottle 

was ‘‘the least number of pills * * * 

that [his patients are] supposed to take,’’ 

and he expected his patients to rely on 

what he told them they could safely 

take, which was up to nine to ten grams 

of acetaminophen per day, an amount 

which equates to twelve Vicodin ES 

tablets (a tablet containing 750 mg. of 

acetaminophen) and 18–20 tablets of 

Lorcet (a tablet containing 500 mg. of 

acetaminophen). Id. at 298–302, 305, 

569. However, when asked why he did 

not just put his oral instruction on the 

prescription vials, he gave the rather 

evasive answer that it was because he 

did not ‘‘know what is the effect of 

tolerance in all that.’’ Id. at 568. 

It is not clear whether the ALJ found 

this specific testimony credible.19 On 

the one hand, as noted above, the ALJ 

found that ‘‘Respondent expect[ed] his 

patients to rely upon his verbal dosing 

information’’ and not the instructions on 

the label of the bottle containing the 

drugs he dispensed. ALJ at 12. She also 

found credible his testimony ‘‘that ten 

grams of acetaminophen is the safe limit 

for daily intake,’’ and apparently, also 

his testimony as to the maximum daily 

amount of Lorcet (18–20 tablets) and 

Vicodin-ES (12 tablets) which can be 

safely taken. Id. 

On the other hand, the ALJ devoted 

an extensive portion of her decision to 

analyzing the quantities of drugs 

Respondent dispensed to specific 

patients, how long these drugs should 

have lasted ‘‘if taken as instructed’’ or if 

‘‘taken as prescribed.’’ See, e.g., ALJ at 

13–14 (‘‘The Respondent instructed 

[R.A.] to take one pill every four hours. 

If taken as instructed, this amount of 

pills [2,850 dosage units of Vicodin ES] 

would have lasted 475 days. Therefore, 

475 days worth of medication was 

distributed over 267 days.’’). 

Apparently, the ALJ based her finding 

that ‘‘Respondent instructed [R.A.] to 

take one pill every four hours’’ on the 

notations in R.A.’s chart. See GX 8, at 

10. It also appears that she relied on the 

dosing information contained in the 

charts for the other patient files she 

analyzed and for which she concluded 

that Respondent had dispensed 

controlled substances in quantities that 

far exceeded the amounts which he 

prescribed to them. See ALJ at 37 

(‘‘when data is compiled concerning 

investigated patients, the Respondent is 

dispensing multiple times more dosage 

units than the patient should consume, 

if taking the medication as prescribed.’’). 

Respondent excepts to these findings, 

noting that the ALJ found that he 

‘‘ ‘credibly testified’ that ten grams of 

acetaminophen is the maximum daily 

safe dosage’’ and thus the maximum safe 

daily dosage of Vicodin ES ‘‘should be 

corrected to 12 * * * rather than 5’’ 

tablets; he further argues that the ALJ 

failed to acknowledge his testimony 

‘‘that he did not expect the patients to 

follow the label directions, but to 

consume the medication dispensed over 

the period of time between refills’’ and 

that it is therefore ‘‘not fair to 

characterize the[] labels as 

‘‘ ‘instructions to patients.’ ’’ Id. at 2–4. 

Respondent is correct that there is an 

inconsistency between the ALJ’s finding 

regarding the amounts of Lorcet and 

Vicodin he told his patients they could 

take and her analysis of Respondent’s 

dispensings. I conclude, however, that it 

is not necessary to resolve the issue 

because even assuming that 

Respondent’s testimony regarding his 

instructions to the patients was 

credible,20 he offered no similar 

testimony with respect to his 

prescribing of Xanax and Valium (i.e., 

that he told them they could take more 

than what he prescribed). Thus, in 

determining whether he was dispensing 

excessive amounts of Xanax and 

Valium, I base my findings on the 

dosing regime which he noted in the 

respective patient’s chart. Moreover, 

even with respect to his dispensing of 

Lorcet and/or Vicodin, there is still 

evidence that he failed to properly 

monitor the amount of these drugs his 

patients were receiving. 

E.A. 

E.A. was a food server and plumber 

who complained of back pain. Tr. 497; 

GX 7, at 3. He was twenty-two years old 

at the start of his treatment with 

Respondent. GX 7, at 2. The patient 

record bears no indication that 

Respondent took a substance abuse 

history. See id. Beginning on September 

15, 2005, E.A. saw Respondent eight 

times at roughly monthly intervals. Tr. 

503;21 GX 7, at 3, 5, 13, 27, 29, 32, 33, 

34. 

At the initial appointment, 

Respondent noted that E.A. had fallen 

about one year earlier and that he had 

no x-rays or other studies from that 

time. GX 7, at 3. Respondent observed 

‘‘lumbar area muscle spasms and 

tenderness’’ and jotted down ‘‘chronic 

back pain? intractable?’’ Id. He 

prescribed Lorcet, to be taken once 

every four hours, and dispensed 90 

tablets, a fifteen-day supply if taken in 

accordance with the dosing instruction 

recorded in the patient file. Id. 

Respondent testified that at the exam 

the following month, E.A.’s condition 

remained unchanged and that this 

‘‘fortifie[d]’’ his earlier assessment that 

the pain was ‘‘intractable’’ and ‘‘chronic.’’ 

Tr. 504. 

Respondent testified that he advised 

E.A. to use a heating pad and also to 

lose weight. Tr. 505, 510. He did not, 

however, document this in E.A.’s chart. 

See generally GX 7. He also testified that 

while other tests could have been 

administered to E.A., they probably 

would not have yielded information that 

would have altered his treatment of the 

patient. Tr. 618. 

On September 19, only four days after 

E.A.’s initial visit, Respondent provided 

a refill for 90 Lorcet. GX 7, at 3. If taken 

according to the instructions in E.A.’s 

chart, the initial prescription should 

have lasted fifteen days. If, however, 

E.A. actually took eighteen to twenty 

tablets per day, the initial prescription 

would have lasted four to five days. 

E.A. received refills of 120 Lorcet 

with the same dosing instruction on 

September 26, October 4, 14, 21 and 28; 

November 23; December 1, 8, 15, 22 and 

29; January 5, 12, 18 and 26; and 

February 2 and 7, 2006. GX 7, at 5, 31– 

34. Yet, throughout this period, there is 

no evidence that Respondent ever 

performed tests on E.A. to determine 

whether the high amount of 

acetaminophen he was supposedly 

consuming was affecting his liver 

function. 

On November 23, 2005, E.A. signed a 

Pain Management Agreement. Id. at 9– 

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22The dates of these refills were March 20 and 

27; April 3 and 10, 2006. GX 7, at 27 & 30. 

23The dates of these refills were December 11, 15, 

18, 19, 26, and 29; January 2, 8, 12, 15, 19, and 22. 

GX 7, at 15–17. 

24See GX 10, at 17. The date of this appointment 

is not decipherable. 

25The dates of these refills were December 28 and 

January 5, 2007. GX 10, at 13. 

10. Also, at some unknown date, E.A. 

completed a Patient Comfort 

Assessment Guide in which he 

indicated that Lorcet gave him complete 

relief of his pain. Id. at 7. He further 

indicated that he was at that time 

experiencing pain of 9 on a scale of 1 

to 10, that Lorcet relieved his pain, and 

that not taking Lorcet exacerbated his 

pain. Id. 

On February 2, 2006, E.A. received a 

refill for 150 Lorcet, an increase in the 

quantity with the same dosage noted in 

his file of one tablet every four hours. 

Id. at 31. Based on Respondent’s claim 

that he expected his patients to take up 

to 18–20 tablets per day in accordance 

with his oral instructions, the refill 

would have lasted a minimum of seven 

days. E.A. obtained additional refills for 

150 Lorcet on February 7 and 13. Id. Yet 

E.A. did not obtain another refill until 

February 27, two weeks later, which 

suggests that E.A. was not consuming 

18–20 Lorcet per day. Id. His next refill 

of 150 Lorcet (7.5 to 8 1⁄3-day supply) 

came ten days later on March 6. Id. 

On March 13, in addition to 

dispensing 150 Lorcet, Respondent 

dispensed 60 Valium, a thirty-day 

supply based on the dosing noted in the 

chart of one tablet every twelve hours. 

Respondent did not see E.A. on this day 

and the medical record contains no 

indication of Respondent’s medical 

justification for dispensing Valium. 

At approximately weekly intervals 

through mid-April, E.A. obtained 150 

Lorcet.22 On April 17, E.A. had an 

appointment with Respondent, who 

noted in his chart that he ‘‘Need[s] 

reduction in the amount of meds.’’ Id. at 

27. On that date, Respondent dispensed 

only 60 Lorcet to E.A. with the usual 

dosage instruction of one every four 

hours. Id. 

There is no record of a further 

appointment or refill until December 8, 

2006, nearly eight months later. On this 

date, E.A. obtained 150 Lorcet, to be 

taken once every six hours (a decrease 

in dosage from the previous refill; 

however, a 7.5 to 8-day supply based on 

Respondent’s testimony of the 

maximum daily safe amount), as well as 

120 Valium (a sixty-day supply). Id. at 

17. Through January 22, 2007, E.A. 

obtained refills of each of these drugs in 

the same amounts at 3–4 day intervals 

for a total of twelve refills of each.23 Id. 

at 15–17. These refills were clearly 

early, especially in the case of the 

Valium, with a sixty-day supply being 

obtained every three to four days. E.A. 

was therefore consuming hydrocodone 

and Valium in amounts far in excess of 

the maximum daily dosage, or he was 

diverting a substantial portion, if not all 

of the medication. 

On January 25, Respondent dispensed 

a refill of 150 Lorcet but no Valium. On 

both January 29 and February 2, 

Respondent dispensed refills for 150 

Lorcet and 80 Valium; and on February 

5, he dispensed another 150 Lorcet. Id. 

at 14, 16. An entry in the chart for 

February 8, 2007 reads: ‘‘Refill Refused 

per [Respondent], Lorcet #150 * * * 

available 2/19/07.’’ Id. at 14. 

Notwithstanding the note in the chart, 

on February 16, E.A. again received 

another 150 Lorcet (7.5 to 8 1⁄3-day 

supply) and 30 Valium (a fifteen-day 

supply). Id. E.A. apparently attempted 

to obtain more Lorcet on February 20, as 

a note in the chart reads ‘‘Too soon Per 

[Respondent].’’ Id. Three days later, one 

week from his last Valium refill, he 

obtained another 30 Valium, thus 

receiving the refill one week early. Id. 

at 11. 

On March 20, E.A. obtained another 

150 Lorcet, this time at the dosage of 

two tablets every four hours. Id. The 

chart does not indicate any reason for 

the increase in the dosage. E.A. obtained 

additional refills of 150 Lorcet on March 

29 and April 2. Id. On April 6, he 

obtained a further 120 Lorcet (six-day 

supply), and on April 9, another 150 

Lorcet, at which point the prescribing 

record ends. Id. at 12. 

In his testimony, Respondent 

conceded that E.A. received early refills 

on April 2, 6, and 9. Tr. 524. However, 

as the above indicates, even assuming 

that E.A. consumed the Lorcet at the 

rate of 18 to 20 tablets a day, E.A.’s 

record is replete with instances of early 

refills. Although at times Respondent 

limited the refills (mostly during the 

period leading up to the MBC 

proceeding), Respondent repeatedly 

dispensed Lorcet in amounts that were 

well in excess of what he stated was the 

maximum safe daily dose and Valium in 

amounts that were well in excess of his 

dosing regime. 

Of ninety-eight refills E.A. ordered by 

telephone, only eleven bore any 

notation suggesting that Respondent had 

actually checked to see when E.A. had 

last been seen or when he had last 

obtained a refill. GX 7, at 37–53. 

Moreover, there is no evidence that 

Respondent ever required E.A. to submit 

to a urine or blood test to ensure that he 

was consuming the medication 

prescribed for him. Nor is there 

evidence that Respondent ever tested 

E.A. to ensure that the drugs were not 

damaging his liver. 

M.D. 

M.D., who was then twenty years old, 

first consulted with Respondent on June 

29, 2006, complaining of back and ear 

pain. Tr. 440–41; GX 10, at 7. M.D. had 

worked in the film industry as a fighter 

and at some point had been kicked in 

the left ear. Tr. 440–441; GX 10, at 7. 

Respondent diagnosed M.D. as having 

‘‘chronic back pain intractable and otitis 

external.’’ Tr. 441; GX 10, at 7. 

According to the patient record, M.D. 

had previously taken Lorcet for pain 

relief. Tr. 440–41; GX 10, at 7. The 

patient history contains no indication 

that Respondent took a substance abuse 

history. See generally GX 10. 

Respondent dispensed 90 Lorcet to be 

taken once every four hours and advised 

M.D. to have his left ear canal irrigated. 

See id. at 7. According to Respondent’s 

testimony, the Lorcet was for relief of 

the ‘‘chronic back pain which was 

intractable.’’ Tr. 441. M.D. did not see 

Respondent again until sometime in 

mid-February 2007, more than eight 

months later.24 GX 10, at 15. However, 

he received refills of Lorcet throughout 

this period. Id. at 9–16. 

By August 1, 2006, Respondent had 

increased the quantities of the refills 

from 90 to 120 tablets, and shortly 

thereafter, a clear pattern of early refills 

indicative of diversion or abuse/ 

overconsumption developed. Id. at 9. 

Under Respondent’s assumption that a 

patient could safely take eighteen to 

twenty Lorcet per day, the refill of 120 

Lorcet should have lasted at least six 

days. However, on both August 4 and 7, 

M.D. sought and obtained refills. Id. at 

9–10. While M.D. then obtained three 

refills at roughly one-week intervals, 

beginning in September, he obtained 

refills on September 1, 5, 11, 15, 19, 22, 

and 26; October 6, 10, 16, 19, 24, 27, 

and 31; and November 3, 7, and 10. GX 

10, at 10–12 & 14. 

Although M.D. obtained his next two 

refills at a slower rate (on November 17 

and 27), he then obtained refills on 

December 1, 5, 8, 12, 15, 18 and 21. GX 

10, at 13–14. After two refills at 

approximately a weekly interval over 

the Christmas and New Year’s period 

(on December 28 and January 5, 

2007), 25 he then obtained refills on 

January 9, 12, 15, 18, 22, 23, 25, and 29; 

as well as on February 5 and 8. GX 10, 

at 16. 

Then, on some date prior to February 

19 (likely February 15, but which is not 

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26On this date, E.A. signed a Pain Management 

Agreement. GX 10, at 6. 

27A telephonic refill request indicates that D.M. 

had knee surgery; Respondent wrote ‘‘Need copy of 

knee surgery 11⁄2; years ago done in San Diego.’’ GX 

16, at 56. However, the patient file contains no 

indication that this information was ever received. 

Respondent excepted to the ALJ’s finding that 

Respondent was unclear on this point, maintaining 

that it was ‘‘unfair to characterize this testimony as 

indicating uncertainty that surgery had occurred’’ in 

view of ‘‘Respondent’s acknowledged hearing 

difficulties.’’ Resp. Exc., at 4–5. I find no reason to 

disturb the ALJ’s finding as his testimony is clear 

on this point. See Tr. 415. 

clear from the record,26) E.A. came in 

for an examination and received his 

usual 120 Lorcet, as well as 60 Xanax, 

with one tablet to be taken twice a day 

(and thus a thirty-day supply). Id. at 6. 

In the Pain Management Agreement he 

signed on February 15, M.D. agreed to 

submit to urine or blood testing. Id. at 

5–6. 

On February 19, M.D. obtained 120 

Lorcet and 60 Xanax (a thirty-day 

supply based on the dosing of one tablet 

every twelve hours) from Respondent. 

And on March 1 and 9, M.D. received 

120 Lorcet and 90 Xanax (a forty fiveday supply based on the same dosing). 

Id. at 17. 

M.D.’s file contains a phone message 

date March 13, which states: ‘‘Deputy 

Drake, regarding [M.D.], 3–10–07, was 

detain[ed] [with] large amount of pain 

meds.’’ Id. at 19. On the same date, 

under Respondent’s initials is a note 

written out on a prescription form: ‘‘Per 

Deputy Drake= Narcotics detective will 

be calling—what [M.D.] had was legally 

dispensed/given to him. May last 10 

days supply.’’ Id. From this note, it is 

clear that Respondent did not believe 

that M.D. was consuming eighteen to 

twenty Lorcet per day, but rather only 

twelve tablets, thus making the early 

refills even more pronounced. 

Neither the phone message nor the 

note makes mention of Xanax, which 

M.D. had also obtained at a frequent 

rate. In his testimony, Respondent 

indicated that he could not remember 

what the maximum daily dosage for 

Xanax was. Tr. 578. 

Of fifty-five refill requests M.D. called 

in, only twelve of the messages bore any 

information suggesting that Respondent 

had bothered to check either the last 

time he had seen M.D. or the last time 

he had approved a refill for him. GX 10, 

at 20–29. Nor is there any evidence that 

Respondent ever requested a urine or 

blood test from M.D. to confirm whether 

he was consuming his medication or to 

check his liver function. 

S.M. 

S.M., who was then twenty-three 

years old, first saw Respondent on July 

21, 2006, complaining of neck and 

shoulder pain and indicating a history 

of concussion. Tr. 525–26; GX 15, at 2. 

Respondent diagnosed him as having 

arthropathy of the left shoulder, cervical 

muscle spasm with pain, possible 

whiplash, and anxiety. Tr. 527; GX 15, 

at 2. The patient record bears no 

indication that Respondent’s patient 

history took a substance abuse history. 

See generally GX 15. 

At the initial visit, Respondent 

dispensed 90 Lorcet to be taken once 

every six hours and 60 Xanax, 1 mg., 

one tablet to be taken twice a day. Id. 

at 2. S.M. obtained refills of 90 Lorcet 

on July 27, as well as on August 1 and 

7. Id. at 25. 

S.M. provided records from prior 

physicians indicating whiplash and a 

concussion in 1995 and neck and back 

pain going back to 2002 along with 

treatment with Vicodin. Id. at 9, 13, 23. 

On August 11, S.M. saw Respondent 

again and Respondent dispensed 120 

Lorcet. Id. at 25. From August 2006 

through February 2007, S.M. did not 

display a pattern of receiving early 

refills (if the length of time a refill 

should last is calculated based on 

Respondent’s oral instruction that a 

patient could take eighteen to twenty 

Lorcet per day). See id. at 26–29. 

However, a different picture emerges 

after S.M.’s appointment of February 16, 

2007. 

On that day, S.M. signed a Pain 

Management Agreement and completed 

a Patient Comfort Assessment Guide. Id. 

at 4–7. In his Patient Comfort 

Assessment Guide, S.M. indicated that 

he obtained ‘‘Complete Relief’’ from pain 

with the Lorcet. Id. at 4. At this visit, 

Respondent dispensed 120 Lorcet but 

with a written dosing instruction of one 

every four hours instead of one every six 

hours. Id. at 29. 

S.M. did not obtain a refill for nearly 

another two weeks, on March 1. Id. at 

30. However, he obtained his next 

eleven refills on March 5, 9, 12, 16, 19, 

23, 26, and 30; and April 2, 6, and 9. 

GX 15, at 30–31. There is no evidence 

that Respondent ever requested that 

S.M. undergo a urine or blood test to 

determine whether he was consuming 

the controlled substances or to assess 

whether the medication was affecting 

his liver function. 

In his testimony, Respondent 

admitted that this patient chart 

exhibited early refills. Tr. 542. Of fortyfive telephonic requests for refills, only 

sixteen message slips bore any notation 

related to the last time the patient had 

been seen or the last time the patient 

had received a refill. GX 15, at 32–42. 

D.M. 

D.M., who was then twenty-two years 

old, first saw Respondent on July 7, 

2005. GX 16, at 3. D.M. complained of 

pain in his left knee caused by a torn 

meniscus and reported that he had 

taken Vicodin for it. Id.; Tr. 412. It is not 

clear from the chart whether D.M. had 

undergone surgery. GX 16, at 3. 

Respondent testified that he was not 

sure whether D.M. had had surgery on 

the knee and that it could have been 

repaired surgically. Tr. 415.27 D.M. also 

reported insomnia. Tr. 413; GX 16, at 3. 

Again, the patient history bears no 

indication that Respondent took a 

substance abuse history. See generally 

id. 

At the initial visit, Respondent 

dispensed 60 Vicodin ES, one tablet to 

be taken every six hours, and 30 Xanax, 

1 mg., to be taken twice a day. GX 16, 

at 3. Based on Respondent’s testimony 

that twelve tablets of Vicodin ES was 

the maximum safe dose and assuming 

that D.M. consumed them at this rate, 

the Vicodin ES prescription would have 

lasted a minimum of five days. 

On July 11 (four days later) D.M. 

returned for a second examination and 

reported that the Vicodin ES was 

causing abdominal pain. Id. Respondent 

switched him to Lorcet and dispensed 

120 tablets with the dosing instruction 

to take one tablet every six hours. Id. 

D.M. also obtained a refill of his Xanax 

prescription, even though the previous 

prescription should have lasted for 

another eleven days. Id. Respondent 

dispensed additional refills of 30 Xanax 

to D.M. on July 15, 22, and 29; August 

4, 11, 16, 22, and 26; and September 1. 

Id. at 16, 23. Beginning on September 6, 

Respondent doubled the quantity of the 

Xanax refills to 60 tablets; however, he 

did not change the dosing of one tablet 

twice per day and thus this refill should 

have lasted thirty days. Id. at 24. 

Nonetheless, Respondent dispensed 60- 

tablet refills to D.M. on September 12, 

19, and 26. Id. at 21, 24. This was 

followed by refills for 90 tablets on 

October 3, and refills for 60 tablets on 

October 10, 17, and 24. Id. at 21–22. 

On October 13, D.M. requested more 

Lorcet, claiming he had broken a toe. 

GX 16, at 53. While initially Respondent 

wrote ‘‘too soon,’’ he ultimately 

approved the refill. Id. Respondent did 

not, however, order x-rays or require 

that D.M. come in for a visit to confirm 

that he had, in fact, broken his toe. 

On November 7, 2005, D.M. received 

a refill for 120 Lorcet at the increased 

dosage of two tablets to be taken every 

four hours. Id. at 20. However, 

Respondent did not examine D.M., and 

no reason was documented in the record 

to support the increase in dosage. Id. 

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28Respondent excepted to the use of two tablets 

of Valium per day as the maximum daily dosage, 

based on two occasions in the hearing where 

Respondent indicated that a patient could actually 

take more than two per day. Resp. Exc., at 4. 

However, I reject the exception because Respondent 

did not testify that he told his patients that they 

could take more Valium than what he noted as his 

dosing instruction. 

29The message slip for March 31, however, 

indicates that D.M. reported his medication as 

stolen. GX 16, at 42. I note that there is no 

indication that Respondent requested that D.M. 

present a police report in confirmation of this 

allegation. 

30 D.M. apparently called in for another refill on 

this date, and Respondent refused it with the note, 

‘‘No—I want to talk to him.’’ GX 16, at 43. 

31According to a phone message, D.M. also 

requested a refill on June 19, which was denied as 

‘‘[t]oo soon.’’ GX 16, at 57. 

32This follows on a request for a refill on an 

unidentified date, where Respondent wrote that it 

was ‘‘[t]oo soon for refill’’ but ‘‘ok for Monday 8⁄7.’’ 

GX 16, at 44. 

33 D.M. apparently requested a refill on August 

10, which Respondent refused, saying that August 

14 would be okay. GX 16, at 45. 

34 D.M. apparently requested a refill on 

September 1, but Respondent indicated, ‘‘No. Too 

soon for refill ok on 9⁄5 Tues.’’ GX 16, at 45. 

35The record of phone requests indicates that 

D.M. requested a refill on September 20 but that 

Respondent refused, because it was too early. GX 

16, at 50. On September 22, just two days later and 

one day after receiving a refill, D.M. phoned in 

another request indicating that he ‘‘[h]a[d] no more 

meds.’’ Id. Respondent approved that request 

although no explanation was provided as to why 

D.M. had run out of medication. Id. 

36 D.M. obtained these refills on October 23 (120 

tablets), 26 (150), and 30 (120); November 2 (150), 

6 (120), 9 (150), 13 (120 plus 60 Xanax), 20 (120), 

22 (120), and 30 (150); December 3 (120), 7 (150), 

11 (120), 14 (150), 18 (150), 21 (150), and 28 (150); 

January 2 (120), 8 (120), 11 (150), and 15 (120). GX 

16, at 33, 35, 37–38. 

D.M. also received 60 Valium, to be 

taken twice a day, instead of Xanax. Id. 

The phone message from this date 

indicates that ‘‘Xanax hurts his 

stomach.’’ Id. at 54. D.M. continued to 

receive refills of the Lorcet and Valium 

at approximately weekly intervals 

through his next two examinations 

which occurred on November 17, 2005 

and January 4, 2006. Id. at 18–20. 

According to D.M.’s record, he 

received 60 Valium on November 17, 

23, and 29, as well as on December 6, 

13, 22, and 27. Id. at 19–20. Respondent 

testified that he dispensed only the 10 

mg. strength of Valium and that the 

maximum daily dosage of this strength 

is two tablets per day. Tr. 579. D.M. was 

obtaining refills for a thirty-day supply 

of Valium at approximately weekly 

intervals.28

D.M. obtained more refills of 120 

Lorcet and 60 Valium on January 10, 16, 

23, and 30; February 6, 13, 20, and 27; 

March 7, 13, 20, 27, and 31; and April 

4 and 7, 2006.29 GX 16, at 17–18, 25. 

Even crediting Respondent’s testimony 

regarding his instructions to his patients 

as to the maximum daily dosage of 

Lorcet, D.M. still received numerous 

refills of Valium which were weeks 

early. 

On April 14, 2006, Respondent 

examined D.M.30 Id. at 25. Respondent 

recorded ‘‘left knee pain on flexion 

extension’’ and a diagnosis of 

‘‘[h]ypertension’’ and ‘‘arthropathy’’ of 

the left knee. Id. Respondent 

additionally noted, ‘‘Reduce pain med 

dosage,’’ and dispensed only 60 Lorcet 

to be taken once every six to eight hours 

as well as the usual 60 Valium to be 

taken twice per day. Id. 

On April 20 and 27, D.M. obtained 

refills of 60 Lorcet and 60 Valium. Id. 

at 28. Moreover, on May 5, 11, 18, 19, 

and 23, D.M. obtained 120 Lorcet, 

suggesting that Respondent had already 

ended his plan to reduce the amount of 

Lorcet that D.M. was to take; D.M. also 

received 60 Valium tablets on each of 

these dates. Id. Here again, even 

ignoring the Lorcet refills, it is clear that 

the Valium refills were weeks early. 

Respondent dispensed more refills for 

Lorcet (120 tablets) and Valium (60 to 

90 tablets) to D.M. on June 9, 15, 23, 27, 

and 30; and July 5, 7, 11, 14, 18, 21, 25, 

28, and 31. Id. at 29–30, 40.31 Notably, 

each of the Valium refills from June 30 

through July 28 was for 90 tablets, and 

thus each refill provided a 45-day 

supply. Id. 

On August 8,32 D.M. obtained 120 

Lorcet but no Valium, and on August 

12, he obtained 150 Lorcet.33 Id. at 40. 

On August 21, he obtained only 120 

Lorcet, and the following day, 60 

Valium. Id. On August 24 and 29, as 

well as on September 5, he obtained 

refills of 120 Lorcet, but no Valium. Id. 

On September 7, D.M. received refills 

of both Valium (twelve days early based 

on the last refill) and Lorcet, the latter 

being only two days after his previous 

Lorcet refill.34 Id. at 39. This was 

followed by refills of 120 Lorcet on 

September 11 and 14; on the latter date, 

he also received 60 Valium even though 

he had received his previous refill only 

seven days earlier. Id. 

On both September 18 and 21, D.M. 

obtained 150 Lorcet; instead of Valium, 

he obtained 60 Xanax.35 Id. D.M.’s file 

contains no evidence pertaining to the 

shift from Valium to Xanax, which he 

had previously complained hurt his 

stomach. On September 22, D.M. 

obtained 120 Lorcet; on September 25, 

he obtained 150 Lorcet as well as 60 

Valium. Id. 

D.M. received further refills of 120 

Lorcet on October 2, 5, and 9; on the 

latter date, he also obtained 60 Valium. 

Id. at 38. Yet only three days later on 

October 12, he obtained another 150 

Lorcet and 60 Valium. Id. 

While the dates of the next two 

dispensings are indecipherable, they 

appeared to have occurred sometime 

before October 23. On these occasions, 

D.M. obtained 120 Lorcet and 60 Valium 

and 150 Lorcet and 60 Valium. Id. 

Thereafter, D.M. did not obtain another 

Valium prescription until January 2007. 

Id. at 33. However, in this period, he 

obtained refills of either 150 Lorcet or 

120 Lorcet at largely three to four-day 

intervals.36

On January 18, 2007, D.M. obtained 

another 150 Lorcet and 30 Valium 

(fifteen-day supply). Id. at 33. Seven 

days later, on January 25, he again 

obtained refills of 150 Lorcet and 30 

Valium. Id. This was followed by refills 

for 120 Lorcet on January 29, February 

1 and 5, as well as refills of 30 Valium 

on both January 29 and February 5. Id. 

Only three days later on February 8, 

he obtained 150 Lorcet, and on February 

15, he obtained 90 Lorcet and another 

30 Valium. Id. The next day, 

Respondent dispensed 30 Xanax to 

D.M., to be taken twice a day. Id. at 13. 

On February 27, D.M. obtained 

another 90 Lorcet. Id. On March 5, D.M. 

received a refill for 60 Xanax (thirty-day 

supply) and the next day, another 90 

Lorcet. Id. On March 12, he obtained 

another 120 Lorcet, with the new dosing 

instruction to take two tablets every four 

hours. Id. This was followed by 

additional refills on March16 for 90 

Lorcet; on March 20, 23, and 30 for 120 

Lorcet; on April 2 for 150 Lorcet; and on 

April 5 and 9, for 120 Lorcet. Id. at 13– 

14. 

In all, D.M. phoned in for refills 146 

times. On only twenty message slips is 

there a notation regarding the last time 

D.M. had been seen or had received a 

refill. GX 16, at 41–63. Although on rare 

occasions, Respondent denied D.M.’s 

request for a refill, there is no evidence 

that he ever required D.M. to undergo a 

urine or blood test. 

The CURES Report for D.M. indicates 

that he received controlled substances 

and Suboxone from other prescribing 

physicians while he was treated by 

Respondent. Specifically, on October 

10, November 11 and 27, December 12, 

2006, and January 8, 2007, D.M. 

obtained Suboxone from three different 

prescribing physicians. GX 45. 

Moreover, on February 12 and 15, 2007, 

he obtained hydrocodone/apap from yet 

another physician. Id. However, Dr. 

Chavez did not offer any opinion as to 

whether (or under what circumstances) 

checking the CURES database is 

required to meet the accepted standard 

of medical practice. 

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37With respect to patient E.A., Respondent also 

testified that he always advises about weight loss 

when appropriate. Tr. 510. 

38Respondent conceded on cross-examination 

that he prescribed the Valium without doing a 

physical examination. Tr. 580. 

J.N. 

J.N., who was then twenty-four, first 

saw Respondent on May 18, 2006. GX 

17, at 3. J.N. complained of lower back 

pain radiating down into his thigh. Tr. 

484; GX 17, at 3. Although he had no 

history of trauma, he also indicated that 

he had taken Lorcet for his back in the 

past. Tr. 484; GX 17, at 3. Upon physical 

examination, Respondent observed 

muscle spasms and diagnosed J.N. as 

having a ‘‘muscular ligament strain 

lumbar back muscles.’’ Tr. 484; GX 17, 

at 3. He also noted that J.N. was 

‘‘overweight’’ and testified that being 

overweight commonly contributes to 

lumbar strain.37 Tr. 488; GX 17, at 3. 

J.N.’s patient record contains no 

indication that Respondent obtained a 

substance abuse history. See GX 17. 

Respondent dispensed 60 Lorcet, with 

one tablet to be taken once every six 

hours, a fifteen-day supply if taken in 

accordance with the dosing instruction 

recorded in J.N.’s chart, but only a threeday supply if taken according to his oral 

instructions. GX 17, at 3. 

Four days later on May 22, J.N. 

obtained a refill of 90 Lorcet, with one 

tablet to be taken once every four hours, 

and on both May 29 and June 5, he 

received refills of 120 Lorcet. Id. On the 

latter date, Respondent also dispensed 

30 Xanax to him, with one tablet to be 

taken twice a day. Id. However, J.N.’s 

patient file has no indication as to why 

Respondent added the Xanax. 

On September 12, Respondent 

dispensed 150 Lorcet to J.N., as well as 

30 Valium, with one tablet to be taken 

twice a day. Id. at 15. Respondent did 

not document in the file why he had 

changed J.N. to Valium from Xanax. 

Thereafter, there was a gap of two 

months between refills. See id. at 9–15. 

On November 2 and 7, J.N. obtained 

refills of 180 Lorcet; on November 13 

and 17, he received refills of 150 Lorcet; 

and on November 27 and December 7, 

he received further refills for 180 Lorcet. 

Id. at 9. On the latter date, he also 

obtained 30 Valium, his first Valium 

refill since September but with no 

indication provided in the medical 

record as to why the drug was medically 

necessary.38 Id. Moreover, although the 

December 7 Lorcet refill should have 

lasted at least nine days, just four days 

later on December 11, J.N. obtained 

another 180 Lorcet. Id. 

On December 19, J.N. obtained 

another 180 Lorcet and 60 Valium, the 

latter providing a thirty-day supply. Id. 

at 8. On January 4, 2007, J.N. obtained 

refills for 180 Lorcet and 30 Valium, the 

latter refill occurring two weeks early. 

Id. On both January 9 and 12, 2007, J.N. 

obtained additional refills for both 180 

Lorcet and 30 Valium. Id. 

On January 18, J.N. obtained refills for 

both 180 Lorcet and 30 Valium; on this 

date, he also obtained 60 Xanax (a 

thirty-day supply based on the dosing 

instruction). Id. at 10. Yet there is no 

indication in J.N.’s patient file as to why 

Respondent authorized the 

simultaneous dispensing of Xanax and 

Valium. Id. 

Just four days later on January 22, J.N. 

obtained another 180 Lorcet and 30 

Valium. Id. Thereafter, J.N. obtained 

refills for 180 Lorcet and 90 Valium (a 

forty-five day supply) on January 25 and 

29, as well as on February 1. Id. 

Only four days later on February 5, 

J.N. obtained a further 180 Lorcet and 

120 Valium (a sixty-day supply). Id. On 

February 19, J.N. obtained refills of both 

180 Lorcet and another 120 Valium. Id. 

at 11. J.N.’s record ends three days later 

with an entry of ‘‘cancel,’’ which is 

initialed by Respondent. Id. 

On cross-examination, Government 

counsel asked Respondent about the 

numerous refills he dispensed to J.N. for 

Valium. Tr. 580–84. Noting 

Respondent’s testimony that the 

maximum daily dosage of Valium was 

two tablets per day and that where there 

was a refill of ninety tablets after just 

four days, J.N. must have been 

consuming twenty Valium tablets per 

day, Government counsel asked 

Respondent whether ‘‘a person can 

function on 20 Valium a day?’’ Id. at 

581–82. Respondent answered, ‘‘[n]o,’’ 

and that taking this much would cause 

‘‘[s]omnolence and disorientation.’’ Id. 

Although Respondent testified that it 

was best to see pain patients at least 

every six months, in the nine-month 

period in which he dispensed 

controlled substances to J.N., 

Respondent examined him only at his 

initial visit. Tr. 434; cf. GX 17, 1–23. On 

redirect, Respondent testified that J.N. 

had developed a tolerance to Valium 

and that he never observed J.N. having 

side effects like somnolence. Tr. 616. 

However, this seems rather unlikely 

given that Respondent only examined 

J.N. once. 

While J.N. called in refill requests 

forty-six times, on only thirteen 

occasions did Respondent note either 

the last time he had been seen or when 

he had last obtained a refill. GX 17, at 

16–23. There is also no evidence that 

Respondent ever requested a urine or 

blood test to confirm whether 

Respondent was consuming the 

medication and to check his liver 

function. 

S.R. 

S.R., who was twenty-four, first saw 

Respondent on June 1, 2006. GX 18, at 

3. She reported that she had back pain 

as a result of a car accident one year 

earlier; she also indicated that she had 

tried Motrin for the pain but that it had 

not worked. Tr. 431, GX 18, at 3. 

Respondent diagnosed a ‘‘muscular 

ligament strain [of the] lumbar back 

muscles’’ and dispensed 60 Lorcet, to be 

taken once every six hours. Tr. 433; GX 

18, at 3. The patient record, however, 

contains no indication that Respondent 

took a substance abuse history. See GX 

18. 

On June 8, S.R. obtained a refill for 90 

Lorcet, as well as a prescription for 30 

Xanax, the latter being a fifteen-day 

supply under the dosing instruction of 

one tablet every twelve hours. Id. at 3. 

S.R’s record, however, contains no 

indication of Respondent’s medical 

reason for adding the Xanax. Id. 

Only five days later on June 13, S.R. 

obtained refills for 120 Lorcet and 

another 30 Xanax. Id. at 5. Just six days 

later on June 19, S.N. obtained 150 

Lorcet, 30 Xanax, as well as 30 Valium, 

with both the Xanax and Valium to be 

taken twice a day (and therefore a 

fifteen-day supply of each). Id. The file, 

however, bears no indication as to 

Respondent’s medical justification for 

prescribing the Valium. 

Just four days later on June 23, S.R. 

obtained another 150 Lorcet and another 

60 Valium, a thirty-day supply of the 

latter. Id. On June 27, after just another 

four days, S.R. obtained another 150 

Lorcet and 30 Xanax. Id. 

On July 13, S.R. received a refill of 

150 Lorcet, and on July 17, 120 Lorcet. 

Id. at 6. This was followed by refills for 

150 Lorcet on July 20, 25, and 28. Id. 

On August 1, S.R. obtained refills of 

only 90 Lorcet and 30 Xanax. Id. On 

August 4, S.R. sought additional refills 

for Lorcet and Valium but was turned 

down as ‘‘too soon.’’ Id. at 20. However, 

a phone message slip states that the 

refills would be ‘‘Ok by 08/7/6.’’ Id. On 

August 7, she obtained another 90 

Lorcet. Id. 

An undated phone message indicates 

that S.R. sought refills of 120 Lorcet, 30 

Xanax and 30 Valium. Id. at 19. While 

Respondent turned down the refills as 

‘‘too soon,’’ he indicated that refills were 

‘‘ok for 8/14/06.’’ Id. 

On August 15, S.R. obtained 150 

Lorcet, as well as 30 Valium. Id. at 8. 

She obtained additional refills of 150 

Lorcet on August 21 and 25, as well as 

on September 1, 7, and 11. Id. Moreover, 

in September 7, she obtained an 

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39However, Respondent’s note on the phone 

message for this refill indicates that it should not 

be picked up until November 20. GX 20, at 22. 

40According to a Patient Activity Report obtained 

from CURES, from the time of B.W.’s August 2006 

appointment with Respondent through the April 10, 

2007 refill, B.W. was obtaining hydrocodone/apap 

5 mg./500 mg. and 7.5 mg./750 mg. from ten other 

physicians. GX 46, at 7–8. Moreover, during the 

period prior to B.W.’s August 2005 visit, he 

obtained the same drugs from at least seven 

different physicians. Id. at 5–6. 

41On B.W.’s March 6, 2007 visit, Respondent 

obtained a signed Pain Management Agreement and 

B.W. completed a Patient Comfort Assessment 

Guide. GX 20, at 3–6. 

42Norco contains 10 mgs. hydrocodone and 325 

mgs. acetaminophen. Tr. 68. 

additional 30 Valium (a fifteen-day 

supply), and on September 11, she also 

obtained 30 Xanax (a fifteen-day 

supply). Id. 

On September 26, S.R. obtained 

another 150 Lorcet as well as 60 Xanax. 

Id. This was followed by refills for 150 

Lorcet on October 2, 10, 16, 20, 24, and 

30, as well as November 6, 10, 17, and 

22. Id. at 7–9. In addition, on November 

22, S.R. obtained 60 tablets of both 

Xanax and Valium, each refill being a 

thirty-day supply based on the dosing 

instructions. Id. at 9. 

While on November 27, when S.R. 

received a further 180 Lorcet, she did 

not obtain a refill of either the Xanax or 

Valium, on both December 4 and 8, she 

received refills of both 180 Lorcet and 

30 Valium (fifteen-day supply). Id. 

Thus, the December 8 refills were early 

as to both the Lorcet and Valium. 

On December 14, S.R. obtained 

another refill of 180 Lorcet. Id. Only 

four days later on December 18, S.R. 

obtained another 180 Lorcet, as well as 

both 60 Xanax (a thirty-day supply) and 

60 Valium (also a thirty-day supply), the 

latter refill being weeks early. Id. Only 

three days later on December 21, S.R. 

obtained another 180 Lorcet and 30 

Valium. Id. at 12. S.R. obtained 

additional refills for both 180 Lorcet and 

30 Valium on December 26, as well as 

on January 2, 12, 16, and 19, 2007. Id. 

On January 22, S.R. obtained refills of 

180 Lorcet, 60 Xanax, and 30 Valium. 

Id. at 11. Only three days later on 

January 25, she obtained a further 180 

Lorcet and 60 Valium, and on January 

29, 180 Lorcet and 90 Valium. Id. And 

just three days later on February 1, 

2007, she obtained another 180 Lorcet. 

Id. 

One week later, a note dated February 

8, 2007 states: ‘‘[s]hould reduce Lorcet 

#90 q 2 wks. Needs visit.’’ Id. However, 

on February 15, S.R. obtained another 

90 Lorcet and 30 Valium; there is, 

however, no documentation in her file 

that she was examined by Respondent 

prior to the dispensings. Id. Only five 

days later on February 20, 2007, S.R. 

obtained 120 Lorcet (again with no 

indication of a visit with Respondent) 

and 120 tablets of Valium, her largest 

refill of this drug. Id. at 13. The patient 

record concludes at this point. 

Respondent treated S.R. for eight 

months but examined her only at the 

initial visit. Of fifty-one refill requests 

S.R. phoned in, only eleven phone 

messages contain any notation 

suggesting that the dates of her previous 

refills had been checked. Id. at 15–23. 

There is no indication that Respondent 

ever had S.R. complete a Pain 

Medication Agreement or that he 

performed blood or urine tests either to 

determine whether she was taking the 

medication and/or to check her liver 

function. 

B.W. 

B.W., who was then thirty-four, first 

saw Respondent on February 21, 2006. 

GX 20, at 8. He complained of pain in 

his lower back from lifting heavy 

building materials while working on his 

home patio. Id.; Tr. 543. In the physical 

examination, Respondent observed 

‘‘muscle spasms,’’ and he diagnosed the 

cause of Respondent’s pain as ‘‘acute 

musculo-lig[ament] strain lumbar back 

muscles.’’ GX 20, at 8; Tr. 547. 

Respondent dispensed 60 Vicodin ES, to 

be taken once every six hours. GX 20, 

at 8. The patient record bears no 

indication that Respondent took a 

substance abuse history. See id. 

B.W. did not see Respondent again 

until August 25, 2006, and during this 

period, he did not obtain any refills. Id. 

On this date, B.W. told Respondent that 

he had hurt his back the day before 

while lifting a couch. Id.; Tr. 549. 

Respondent again noted that he had 

observed muscle spasms in B.W.’s 

lumbar region and he diagnosed the 

cause of B.W.’s pain as ‘‘[a]cute M/L 

strain lumbar back muscles.’’ GX 20, at 

8. Respondent again dispensed 60 

Vicodin ES, with one tablet to be taken 

every six hours. Id. On August 29, B.W. 

called requesting a refill ‘‘claim[ing] his 

housekeeper threw away his meds.’’ Id. 

at 9. 

As noted above, the ALJ credited 

Respondent’s testimony that he told his 

patients they could safely take up to 

twelve Vicodin ES per day; each refill 

of 60 Vicodin ES would therefore have 

lasted a minimum of five days. On this 

assumption, B.W.’s patient chart thus 

does not record a pattern of early refills 

until November 2006. See Id. at 9–10. 

However, on November 3, 6, and 9, B.W. 

obtained refills of 60 Vicodin ES. Id. at 

10. On November 13, he obtained a refill 

of 120 Vicodin ES (a ten-day supply but 

with the dosing noted in the chart as 

one tablet every six hours), which he 

refilled only four days later on 

November 17.39 Id. While B.W. did not 

obtain a refill until November 27, he 

then obtained additional refills of 120 

Vicodin ES on December 1, 7, 11, and 

15. Id. Although B.W. did not obtain 

another refill until December 26, he 

then obtained more refills of 120 

Vicodin ES on December 29, as well as 

on January 2, 4, 8, 11, 15, 18, 22, and 

25; and February 5, 8, and 12, 2007. Id. 

at 11–12. Id. at 13. 

The phone message for the latter refill 

request states that B.W. ‘‘[n]eed[ed] [a] 

visit.’’ Id. at 18. However, on February 

15, 19, and 22, B.W. received more 

refills of 90 Vicodin ES without 

appearing for a visit. Id. at 13. 

On March 6, B.W. was examined by 

Respondent, who dispensed 90 Vicodin 

ES with the dosing instruction of one 

tablet every four to six hours as needed. 

Id. at 15. B.W. obtained more refills for 

90 Vicodin ES on March 12, 15, and 19, 

and for 120 Vicodin on March 22 and 

30, as well as on April 3, 6, and 10, 

2007, when the patient file ends. Id. at 

14–15. 

In his testimony, Respondent 

conceded that the refills between March 

15 and April 10 were early.40 Tr. 557. 

However, numerous other refills were 

also early. 

B.W. called in requests for refills 

forty-nine times. Yet on only twelve of 

the forms documenting these requests 

was the date of B.W.’s last visit and/or 

refill noted. GX 20, at 16–26. Nor is 

there any evidence that Respondent ever 

did blood or urine tests on B.W. to 

confirm whether he was taking the 

medication and/or to check his liver 

function.41

J.W. 

J.W., who was then twenty-four, first 

saw Respondent on March 6, 2006, 

complaining of back pain. GX 21, at 12. 

According to Respondent, J.W. had neck 

and back spasms. Id.; Tr. 435–36. J.W.’s 

record contains medical records 

documenting his treatment for neck and 

back pain by two other physicians as 

well as a chiropractor, which included 

prescriptions for Norco (hydrocodone 

10mg./apap 325 mg.) and Xanax.42 GX 

21, at 4–10; Tr. 435. J.W. was still being 

treated by an orthopedist and a 

chiropractor. Tr. 436–37. J.W.’s patient 

record contains no indication that 

Respondent took a substance abuse 

history. See GX 21, at 12. 

At that first visit, Respondent 

dispensed 90 Lortab (noting in J.W.’s 

record that one tablet was to be taken 

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43There are actually two entries for November 10; 

both of which indicate that J.W. received 180 Lorcet 

and 120 Xanax. 

44There is also no evidence that Respondent 

attempted to coordinate his prescribing activities 

with other physicians who were still treating his 

patients and might be prescribing controlled 

substances to them. 

every four to six hours), as well as 90 

Xanax, one tablet to be taken twice per 

day and thus a 45-day supply. Id. On 

March 16, J.W. obtained both 90 Lorcet 

and 60 Xanax, the latter being more than 

a month early. Id. at 17. Just five days 

later on March 21, J.W. received 90 

more Lorcet and another 30 Xanax. Id. 

Six days later on March 27, J.W. 

received 120 Lorcet and another 30 

Xanax. Id. He received refills for 120 

Lorcet on April 6, 21, and 27; May 11, 

19, and 29; as well as June 8 and 23; he 

also received 30 Xanax on each of these 

dates except for on May 11 and 19, 

when he received 90 tablets on each 

date, and on June 23, when he obtained 

60 tablets. See id. at 14–15, 17. 

J.W. received 180 Lorcet and 90 

Xanax from Respondent on July 5, 13, 

24, and 31, and August 7. Id. at 14. 

Thereafter, J.W. obtained 180 Lorcet 

from Respondent on August 21 and 28; 

September 7, 12, 19, and 28; October 3, 

10, 12, 16, 23, and 30; November 2, 6, 

10,43 21, 27, and 30; and December 4, 

7, 12, and 26 (but only 90 tablets this 

date) and 28. Id. at 14, 18–19. 

As for the Xanax, on August 21, J.W. 

obtained only 30 tablets. Id. at 14. 

Thereafter, he obtained the Xanax in the 

following quantities by date: August 28 

(120); September 7 (60), 12 (120), 19 

(120), and 28 (120); October 3 (120), 10 

(180), 12 (90), 16 (180), 23 (180), and 30 

(180); November 2 (120), 6 (180), 10 

(120), 21 (90), 27 (90), and 30 (90); and 

December 4 (90), 7 (60), 12 (60), 26 

(180), and 28 (60). Id. at 18–21. In each 

entry, the Xanax dosing was noted as 

one tablet every twelve hours. See id. 

During 2007, J.W. continued to 

receive early refills of both Lorcet and 

Xanax. With respect to Lorcet, he 

obtained 90 tablets on January 2 and 9; 

180 tablets on January 15; another 90 

tablets on January 18; followed by 180 

tablets on January 22, 25, 29; as well as 

on February 1 and 5. Id. at 20 & 22. As 

for Xanax, J.W. obtained 60 tablets on 

January 2; 180 tablets on January 9; 30 

tablets on January 15; 60 tablets on 

January 18, 22, and 25; 90 tablets on 

January 29; 120 tablets on February 1; 

and 30 tablets on February 5. Id. 

The patient record ends with an entry 

dated February 8, 2007, which reads, 

‘‘Pt. requests too much meds—Needs 

visit to discuss lowering amounts.’’ GX 

21, at 22. When asked whether J.W.’s 

not coming in for the needed visit 

indicated that he had been abusing the 

drugs, Respondent answered, ‘‘Not 

necessarily.’’ Tr. 439. Respondent 

testified that ‘‘what [he] was thinking 

* * * is that [J.W] probably had gone 

back to the orthopedic consultant who 

is also trying to treat him for the same 

type of pain.’’ Id. 

During the eleven-month period in 

which Respondent dispensed controlled 

substances to J.W., Respondent 

examined him only once. While J.W. 

called in refill requests fifty-one times, 

in only nine instances is there evidence 

that Respondent checked either the last 

time J.W. had been seen or the date of 

his last refill. Id. at 24–32. J.W. never 

entered a Pain Medication Agreement 

with Respondent. Nor did Respondent 

ever test J.W.’s urine or blood. 

Summary 

As Dr. Chavez noted, none of the 

patients files reviewed above documents 

that Respondent had discussed with the 

patient the risks and benefits of taking 

the controlled substances he dispensed 

to them. Similarly, none of the files 

contains a treatment plan with stated 

objectives for assessing the efficacy of 

the treatment. While some of the files 

contained signed Pain Medication 

Agreements, there is no evidence that 

Respondent ever enforced them by 

requiring his patients to undergo urine 

or blood testing. Moreover, while 

Respondent dispensed large quantities 

of opiate medications containing 

acetaminophen, he never performed 

tests to assess what effect the 

medication was having on his patients’ 

liver function.44

Respondent regularly dispensed 

refills without regard to when he had 

last dispensed the drugs to a patient. 

While he also testified as to the 

importance of follow-up visits to 

monitor how his patients were doing 

and to adjust their medication regime, 

he dispensed numerous refills to the 

above patients and did so for months on 

end without conducting follow-up 

examinations. Indeed, he dispensed 

numerous refills to patients (J.N., S.R., 

and J.W.) for an extensive period of time 

(9 months, 8 months, and 11 months, 

respectively) even though they never 

returned for a second examination. See 

GXs 17, 18, 21. 

Discussion 

Section 303(f) of the Controlled 

Substances Act (CSA) provides that the 

Attorney General ‘‘shall register 

practitioners * * * to dispense * * * 

controlled substances in schedule II, III, 

IV, or V, if the applicant is authorized 

to dispense * * * controlled substances 

under the laws of the State in which he 

practices.’’ 21 U.S.C. 823(f). However, 

the statute also provides that the 

Attorney General ‘‘may deny an 

application for such registration if he 

determines that the issuance of such a 

registration is inconsistent with the 

public interest.’’ Id. In determining 

consistency with the public interest, the 

statute requires that the following 

factors be considered: 

(1) The recommendation of the 

appropriate State licensing board or 

professional disciplinary authority. 

(2) The applicant’s experience in 

dispensing * * * controlled substances. 

(3) The applicant’s conviction record 

under Federal or State laws relating to 

the manufacture, distribution, or 

dispensing of controlled substances. 

(4) Compliance with applicable State, 

Federal, or local laws relating to 

controlled substances. 

(5) Such other conduct which may 

threaten the public health and safety. 

Id. 

‘‘These factors are considered in the 

disjunctive.’’ Robert A. Leslie, 68 FR 

15227, 15230 (2003). I may rely on any 

one or a combination of factors and may 

give each factor the weight I deem 

appropriate in determining whether to 

deny an application for a registration. 

Id. Moreover, I am ‘‘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 (DC Cir. 2005). 

The Government has the burden of 

proof. 21 CFR 1301.44(e). However, 

where the Government makes out a 

prima facie case to deny an application, 

the burden shifts to the Respondent to 

show why granting its application 

would be consistent with the public 

interest. See Steven M. Abbadessa, 74 

FR 10077, 10081 (2009); Arthur Sklar, 

54 FR 34623, 34627 (1989). 

Factor One—the Recommendation of 

the State Licensing Board 

As the ALJ noted, the State Board has 

not made a recommendation in this 

matter. ALJ at 34. The ALJ further noted 

that in a proceeding involving 

Respondent’s treatment of three patients 

who are not at issue here, the Board 

concluded that cause did not exist to 

find that he prescribed without a good 

faith examination and medical 

indication for each of the three patients. 

Id. The Board found, however, that 

Respondent had failed to maintain 

adequate medical records with respect 

to one of the patients and issued a 

public reprimand. 

Ultimately, I conclude that this factor 

neither supports nor refutes a finding 

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45The ALJ found credible Respondent’s 

testimony that ‘‘he believed he saw muscle spasms, 

which would be consistent with back pain.’’ ALJ at 

7. I reject the ALJ’s finding because she did not 

reconcile this testimony with the Agent’s testimony 

that he did not even lift the garment that was 

covering her back. 

The ALJ also found that Respondent ‘‘credibly 

testified that he believed [the Agent] was suffering 

from back pain for the past two years.’’ Id. at 7. 

However, the Agent had previously stated several 

times that she did not have pain and Respondent 

agreed to give her a prescription immediately after 

she stated: ‘‘I don’t specifically have it.’’ Moreover, 

even after this, the Agent said her back was ‘‘not 

really sensitive’’ and her answer that she had pain 

‘‘a couple of years I guess’’ was equivocal at best. 

This was then followed by Respondent’s statement 

that ‘‘we’’ need to have more documentation to 

justify prescribing Vicodin. As the Agent testified, 

she believed that Respondent needed her to 

indicate that she had back pain to justify his 

prescribing of Vicodin. The nature of the 

conversation and Respondent’s failure to comply 

with the accepted standards of medical practice for 

evaluating his patient establish that Respondent 

was not practicing medicine in good faith, but 

rather, that this was prescribing with a wink and 

a nod. I therefore reject the ALJ’s finding. 

that issuing Respondent a new 

registration would be inconsistent with 

the public interest. While possessing a 

State license is a statutory prerequisite 

for holding a registration under the 

CSA, see 21 U.S.C. § 823(f), DEA has 

long held that a practitioner’s 

possession of State authority to dispense 

controlled substances is not dispositive 

of the public interest inquiry. See 

Mortimer B. Levin, 55 FR 8209, 8210 

(1990) (‘‘DEA maintains a separate 

oversight responsibility with respect to 

the handling of controlled substances 

and has a statutory obligation to make 

its independent determination as to 

whether the granting of [an application] 

would be in the public interest.’’); see 

also Jayam Krishna-Iyer, 74 FR 459, 461 

(2009). 

Factors Two and Four—The 

Applicant’s Experience in Dispensing 

Controlled Substances and Compliance 

With Applicable Laws Related to 

Controlled Substances 

Under a longstanding DEA regulation, 

a prescription for a controlled substance 

is not ‘‘effective’’ unless it is ‘‘issued for 

a legitimate medical purpose by an 

individual practitioner acting in the 

usual course of his professional 

practice.’’ 21 CFR 1306.04(a). This 

regulation further provides that ‘‘[a]n 

order purporting to be a prescription 

issued not in the usual course of 

professional treatment * * * is not a 

prescription within the meaning and 

intent of [21 U.S.C. § 829] and * * * the 

person issuing it, shall be subject to the 

penalties provided for violations of the 

provisions of law relating to controlled 

substances.’’ Id. 

As the Supreme Court recently 

explained, ‘‘the prescription 

requirement * * * ensures patients use 

controlled substances under the 

supervision of a doctor so as to prevent 

addiction and recreational abuse. As a 

corollary, [it] also bars doctors from 

peddling to patients who crave the 

drugs for those prohibited uses.’’ 

Gonzales v. Oregon, 546 U.S. 243, 274 

(2006) (citing United States v. Moore, 

423 U.S. 122, 135 (1975)). 

While many cases under the public 

interest standard involve practitioners 

who intentionally or knowingly violated 

the CSA’s prescription requirement, the 

Agency’s authority to deny an 

application (or to revoke an existing 

registration) is not limited to those 

instances in which a practitioner 

intentionally diverts a controlled 

substance. See Paul J. Caragine, Jr., 63 

FR 51592, 51601 (1998). As my 

predecessor explained in Caragine: 

‘‘[j]ust because misconduct is 

unintentional, innocent or devoid of 

improper motivation, [it] does not 

preclude revocation or denial. Careless 

or negligent handling of controlled 

substances creates the opportunity for 

diversion and [can] justify’’ the 

revocation of an existing registration or 

the denial of an application for a 

registration. 63 FR at 51601. 

Accordingly, a practitioner’s failure to 

properly supervise his patients to 

prevent them from personally abusing 

controlled substances or selling them to 

others constitutes conduct ‘‘inconsistent 

with the public interest’’ and can 

support the denial of an application for 

registration, or the revocation of an 

existing registration. Id.; see also 

Gonzales, 546 U.S. at 274. 

In her decision, the ALJ did not 

address whether the prescriptions 

Respondent wrote during the 

undercover visits of the Special Agent 

and informant were issued in the usual 

course of professional practice and for a 

legitimate medical purpose. See ALJ at 

35. Id. 

With respect to the Special Agent’s 

visit, from the beginning of the 

encounter, Respondent knew that she 

was not seeking Vicodin to treat a 

legitimate medical condition as, after 

the Agent told him that she took the 

drug because ‘‘[it] just made me feel 

better,’’ he replied: ‘‘I don’t prescribe 

Vicodin for recreational purposes or to 

feel better * * * because Vicodin is a 

controlled drug and it is specifically for 

specific pains, you know?’’ Moreover, 

when the Agent asked him whether if 

her ‘‘back hurt’’ would justify a 

prescription, and he asked ‘‘what 

happened to your back,’’ the Agent 

replied that nothing had really 

happened to it. When Respondent then 

asked her ‘‘where in your back are you 

having the pains,’’ the Agent again 

replied: ‘‘I don’t specifically have it, I 

was just asking you if that would be a 

reason someone would have it?’’ Even 

though at this point the Agent had made 

no representation that she had pain, 

Respondent stated that ‘‘if it is for that 

reason, for now * * * I can give you a 

prescription’’ and asked ‘‘which Vicodin 

are you using?’’ 

It is true that Respondent then asked 

the Agent to show him which part of her 

back was hurting and the Agent pointed 

to her lower back; however, she then 

added that ‘‘it’s not really sensitive.’’ It 

is also true that Respondent then asked 

the Agent how long she had the back 

pain, to which she answered: ‘‘A couple 

of years I guess.’’ Yet Respondent 

undertook no further inquiry as to the 

origin and cause of the pain, what 

activities made it worse, how intense it 

was, and if it was affecting her ability 

to function. He did not take a substance 

abuse history even though the Agent 

had indicated that she had previously 

been on Vicodin and that she took the 

drugs because they made her feel better. 

As the Agent testified, she believed that 

Respondent was trying to provide her 

with what he needed to hear to justify 

prescribing the Vicodin. 

The physical exam Respondent 

performed was superficial, lasting all of 

five seconds, and was limited to 

touching the SA’s back a few times 

without even lifting up her clothing.45

Respondent’s subsequent statement— 

after indicating that he would give the 

Agent a prescription for 30 Vicodin 

ES—that ‘‘we have to have more 

documentation as to why these 

controlled drugs are being prescribed for 

you’’ further suggests that he knew full 

well that he did not have a legitimate 

medical purpose for issuing the 

prescription. 

In addition, while in his testimony, 

Respondent maintained that he 

diagnosed the Agent as having back 

spasms and wrote this on the progress 

note he prepared, he never 

communicated this to the Agent. It is 

strange that a physician would not 

discuss his diagnosis with his patient. 

Likewise, he did not discuss the risks 

and benefits of taking Vicodin with the 

Agent. Finally, Dr. Chavez concluded 

that Respondent’s treatment of each of 

the fifteen patients whose files he 

reviewed constituted ‘‘an EXTREME 

DEPARTURE from the standard of care 

expected of a licensed practicing 

physician in the U.S. today.’’ GX 6, at 

33. 

Based on the above, I conclude that 

Respondent lacked a legitimate medical 

purpose and acted outside of the usual 

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46As found above, the recording of the visit 

contains no indication that Respondent told R.E. he 

could take more than the prescribed amount. 

47R.E. apparently did not seek a refill from 

Respondent between December 7, 2006, and 

February 27, 2007. Notwithstanding this nearly 

three-month hiatus, Respondent resumed 

dispensing to him on the latter date without 

examining him (providing another 150 Lorcet, also 

a thirty-seven day supply) and did so again only 

two weeks later, at which time he increased the 

dosing to one tablet every four hours without 

examining him. 

course when he prescribed Vicodin to 

the Agent. He therefore violated the 

prescription requirement of Federal law. 

21 CFR 1306.04(a). 

By contrast, at R.E.’s initial visit, he 

complained that he suffered neck pain 

and had for a couple of years; he also 

complained of difficulty sleeping. 

Respondent’s questioning of R.E. 

regarding his condition was somewhat 

more detailed (although still lacking 

according to Dr. Chavez) than it was 

with the Agent and at no point in the 

encounter did R.E. suggest that he did 

not have pain. Moreover, while the 

record suggests that Respondent did 

only a superficial physical exam, and 

again, he did not discuss his diagnosis 

with R.E., he did recommend alternative 

treatments. 

I need not decide whether the 

prescriptions Respondent gave R.E. at 

the initial visit violated 21 CFR 

1306.04(a) because it is clear that the 

subsequent Lorcet refills which 

Respondent authorized far exceeded 

what he had determined was medically 

necessary to treat R.E.’s condition. More 

specifically, Respondent’s initial 

dispensing of 60 Vicodin should have 

lasted twenty days if taken at the 

prescribed dosage of one tablet every 

eight hours.46 Yet only one week later 

on October 20, R.E. obtained a refill for 

120 tablets; this prescription should 

have lasted forty days (or until 

November 29) as Respondent did not 

change the dosing. However, on 

November 9, which was nearly three 

weeks early, Respondent dispensed to 

R.E. 120 Lorcet, which was a different 

drug. 

Respondent changed the dosing of the 

Lorcet to one tablet every six hours; 

thus, this dispensing provided a thirtyday supply. However, on December 1, 

more than a week early, Respondent 

dispensed an even larger refill, 

increasing the amount to 150 tablets. 

And while this refill should have thirtyseven days (or until January 7), on 

December 7, Respondent dispensed 

another refill for 150 tablets. 

None of these refills was supported by 

documentation of a plausible reason for 

it in the patient file. Given that R.E.’s 

requests were not merely days but 

weeks early, there was substantial 

reason to believe that he was either 

abusing the drugs or diverting them. 

Indeed, this should have been apparent 

by, if not the first, then R.E.’s second 

refill request. Yet Respondent did not 

recognize this problem until several 

months later.47 I therefore conclude that 

Respondent acted outside of the usual 

course of professional practice and 

lacked a legitimate medical purpose 

when he dispensed the Vicodin and 

Lorcet refills to R.E. and therefore 

violated Federal law. 21 CFR 1306.04(a). 

The record also supports the 

conclusion that Respondent’s 

dispensings of controlled substances to 

the other patients lacked a legitimate 

medical purpose and were issued 

outside of the usual course of 

professional practice. Id. As Dr. Chavez 

noted, none of the charts he reviewed 

contained sufficient documentation to 

‘‘justify[] the use of opiate therapy to the 

level exhibited on the charts.’’ 

While Respondent testified that he 

had told his patients that they could 

take Lorcet and Vicodin ES in quantities 

amounting to nine to ten grams per day 

of acetaminophen, in his report, Dr. 

Chavez noted the potential toxicity of 

patients consuming in excess of four 

grams per day of acetaminophen and 

that blood chemistries must be regularly 

performed in order to monitor liver 

function. Yet in none of the files Dr. 

Chavez reviewed (and which are 

discussed above) is there evidence that 

Respondent performed blood tests to 

assess a patient’s liver function and to 

determine whether the large quantities 

the patient was purportedly consuming 

were causing liver damage. Moreover, in 

none of the files is there evidence that 

the patients were referred for 

consultations with specialists and/or 

additional diagnostic testing. He did not 

take substance abuse histories. Nor did 

he ever require his patients to provide 

a urine sample. 

With respect to many of the patients, 

Respondent authorized refills for them 

for months on end without requiring 

that they appear for a followup visit. As 

Dr. Chavez noted, many of the refills 

Respondent dispensed occurred at such 

rapid intervals that ‘‘[i]n many cases, it 

would have been impossible * * * to 

use this quantity of controlled 

medications within that short of period 

of time.’’ GX 6, at 32. 

Thus, even crediting Respondent’s 

dubious testimony regarding his dosing 

instruction for Lorcet and Vicodin, there 

is still ample evidence that he 

dispensed refills for both of these drugs, 

as well as Xanax and Valium, that were 

excessive and were not justified by a 

legitimate medical purpose. For 

example, on December 8, 2006, E.A. 

received 120 Valium tablets, which, 

according to the dosing noted in E.A.’s 

file, should have lasted sixty days. Yet 

Respondent proceeded to dispense an 

additional 120 Valium to E.A. on 

December 11, 15, 18, 19, 26, and 29; as 

well as on January 2, 8, 12, 15, 19, and 

22, 2007. Moreover, on January 29 and 

February 2, Respondent dispensed 

additional refills of 80 Valium; he also 

dispensed an additional thirty tablets on 

both February 16 and 23. Thus, between 

December 8, 2006 and February 8, 2007, 

Respondent dispensed to E.A. more 

than thirteen times the amount of 

Valium which he had concluded was 

medically necessary. These amounts 

suggest that E.A. was selling the Valium. 

During the same period, Respondent 

dispensed refills for 150 Lorcet to E.A. 

on December 8, 11, 15, 18, 19, 26, and 

29; January 2, 8, 12, 15, 19, 22, 25, and 

29; and February 2 and 5. Even crediting 

Respondent’s testimony that he told his 

patients that they could safely take up 

to 20 tablets of Lorcet per day, during 

the 8.5-week period between December 

8 and February 5, E.A. had a medical 

need for 1,200 tablets. Yet Respondent 

dispensed 2,550 tablets to him. 

Moreover, notwithstanding the 

extraordinary quantities of Lorcet 

Respondent was dispensing to E.A., he 

never did a blood test. 

It is acknowledged that E.A.’s record 

contains two notes during the month of 

February indicating that Respondent 

had refused refills as too early. 

However, given the frequency and 

quantities of these refills, especially for 

the Valium which provided a 60-day 

supply, it should have been obvious 

well before this point that E.A. was 

either abusing and/or selling the drugs. 

And even after this, Respondent 

provided E.A. with additional refills, 

which even he conceded were early. 

Moreover, Respondent rarely, if ever, 

reviewed E.A.’s record to determine 

when he had last authorized a refill 

and/or seen him. In short, Respondent’s 

dispensings to E.A. manifest an 

egregious failure to properly monitor his 

patient to ensure that he was not 

abusing the drugs or selling them. 

M.D. repeatedly obtained early Lorcet 

refills from Respondent. For example, in 

the winter of 2006–2007, M.D. obtained 

refills for 120 Lorcet on December 1, 5, 

8, 12, 15, 18, 21, and 28; January 5, 9, 

12, 15, 18, 22, 23, 25, and 29; as well 

as February 5 and 8. Even assuming that 

Respondent told M.D. that he could take 

20 tablets per day—a questionable 

assumption in light of the note 

Respondent made following M.D.’s 

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48 It is not clear what the dosing was for this 

prescription. 

49Only twelve of some fifty-five telephone 

requests for refills indicated that Respondent had 

checked the date of M.D.’s previous refill or last 

office visit. 

arrest that a narcotics detective would 

be calling and that the 120 tablets that 

had been recently dispensed to him was 

a ten-day supply—these nineteen refills 

should have lasted 114 days rather than 

a little more than two months. Indeed, 

based on Respondent’s note, the supply 

should have lasted 190 days or slightly 

more than six months. 

M.D. also obtained unwarranted 

refills of Xanax from Respondent. On 

February 15, 2007, Respondent 

dispensed 60 Xanax to him.48 Four days 

later, Respondent dispensed another 60 

Xanax, a thirty-day supply based on the 

dosing noted in the record of one tablet 

every twelve hours. This was followed 

by additional dispensings of 90 tablets 

on March 1 and 9, with the same dosing 

instruction of one tablet every twelve 

hours. 

Here again, Respondent dispensed 

controlled substances in quantities 

which far exceeded the amount he had 

determined was medically necessary to 

treat a patient’s condition. And once 

again, it is clear that Respondent failed 

to properly monitor his patient to 

ensure that the patient was not abusing 

or selling the drugs.49

While S.M. did not seek early refills 

of Lorcet (at least if it is assumed that 

he took twenty tablets per day) during 

the initial seven months of his seeing 

Respondent, beginning in March of 

2007, he did. More specifically, 

Respondent dispensed 120 Lorcet to 

him on March 1, 5, 9, 12, 16, 19, 23, 26, 

and 30; as well as on April 2, 6, and 9, 

2007. These dispensings totaled 1,440 

tablets in a forty-day period, and were 

enough to provide 72 days worth of 

medication if they were taken at a rate 

of 20 tablets per day. 

At the hearing, Respondent admitted 

that some of these refills were too early. 

Again, Respondent failed to properly 

monitor his patient to ensure that he 

was not abusing drugs and/or selling 

them. 

D.M. received numerous refills for 

both Xanax and Valium that were 

typically weeks early. Respondent 

dispensed 30 Xanax, which provided a 

fifteen-day supply based on the dosing 

instruction, to D.M. on July 7, 11, 15, 22, 

and 29; August 4, 11, 16, 22, and 26; 

and September 1. Then, with no change 

in the dosing, he dispensed 60 tablets (a 

thirty-day supply) to D.M. on September 

6, 12, 19, and 26; as well as on October 

10, 17, and 24; and 90 tablets on 

October 3. In just this period, which was 

not even four months long, Respondent 

dispensed 840 tablets to D.M., a 

quantity which was enough to treat him 

for nearly fourteen months. 

Respondent then switched to Valium, 

dispensing 60 tablets, with a dosing of 

one tablet to be taken every twelve 12 

hours (a thirty-day supply), to D.M. on 

November 7, 17, 23, and 29; December 

6, 13, 22, and 27 (all in 2005); January 

10, 16, 23, and 30; February 6, 13, 20, 

and 27; March 7, 13, 20, 27, and 31; 

April 4, 7, 14, 20, and 27; May 5, 11, 18, 

19, and 23; June 9, 15, 23, and 27; and 

July 5, 7, 11, 14, 18, 21, 25, 28, and 31 

(on both July 7 and 28, the refills were 

for 90 tablets). Most of Respondent’s 

dispensings of a thirty-day day supply 

were more than three weeks early; the 

dispensings of 90 tablets were even 

earlier. Moreover, the dispensings 

totaled 2,640 tablets and provided 1,320 

days worth of medication in a ninemonth (approximately 270-day) period. 

In September 2006, D.M. also began 

obtaining clearly excessive refills for 

Lorcet. Specifically, he obtained refills 

for 120 or 150 Lorcet on September 5 

(120), 7 (120), 11 (120), 14 (120), 18 (150 

tablets), 22 (120), and 25 (150); October 

2 (120), 5 (120), 9 (120), 12 (150), date 

undecipherable (120), date 

undecipherable (150), 23 (120), 26 (150), 

and 30 (120); November 2 (150), 6 (120), 

9 (150), 13 (120), 20 (120), 22 (120), and 

30 (150); December 3 (120), 7 (150), 11 

(120), 14 (150), 18 (150), 21 (150), and 

28 (150). In each of these months, 

Respondent dispensed between 300 and 

nearly 600 more tablets than the amount 

which Respondent claimed he told his 

patients they could safely take (600 to 

620 a month). 

As the evidence shows, even in the 

initial months of Respondent’s 

relationship with D.M., there was ample 

reason to believe that D.M. was either 

abusing the Xanax or selling it to others. 

Indeed, although D.M.’s refill requests 

became even more brazen in their 

frequency, Respondent rarely rejected 

any of his 146 refill requests and 

continued to dispense controlled 

substances to him until he surrendered 

his registration. Respondent’s 

dispensings to D.M. manifest a complete 

abdication of his obligation to properly 

supervise his patient ‘‘to prevent 

addiction and recreational abuse.’’ 

Gonzalez, 546 U.S. at 274. It is clear that 

these prescriptions lacked a legitimate 

medical purpose and were issued 

outside of the usual course of 

professional practice and thus violated 

Federal law. 21 CFR 1306.04(a). 

J.N. also received excessive refills of 

both Lorcet and Valium. Between 

November 2, 2006 and February 19, 

2007, Respondent dispensed sixteen 

refills for 180 Lorcet and 2 refills for 150 

Lorcet for a total of 3,180 tablets, with 

most of the refills being dispensed 

within three to five days of the previous 

refill. Even if Respondent told J.N. that 

he could take up to twenty tablets of 

Lorcet per day, the quantity he 

dispensed in this period would have 

provided enough medication for 159 

days and was thus well in excess of 

what Respondent’s dosage 

recommendation required. 

Moreover, on twelve occasions 

beginning on December 7, 2006 and 

ending on February 19, 2007, 

Respondent dispensed a total of 750 

Valium tablets to J.N. According to the 

dosing instruction of one tablet every 

twelve hours, the dispensings would 

have provided 375 days of medication 

and thus provided nearly five times the 

amount of Valium which Respondent 

had determined was medically 

necessary. Moreover, on January 18, 

Respondent dispensed not only 30 

Valium but also 60 Xanax to J.N.; J.N.’s 

record, however, contains no 

explanation as to why both drugs, 

which are benzodiazepines and 

schedule IV depressants, were 

medically necessary. See 21 CFR 

1308.14(c). 

Here again, it is clear that Respondent 

failed to properly monitor the amount of 

controlled substances his patient was 

seeking. It also clear that Respondent 

acted outside of the usual course of 

professional practice and lacked a 

legitimate medical purpose in 

dispensing controlled substances to J.N. 

21 CFR 1306.04(a). 

From the beginning of his relationship 

with S.R., Respondent dispensed Lorcet, 

Xanax, and Valium in amounts that 

substantially exceeded what his dosing 

regime called for. For example, in the 

first two months Respondent dispensed 

720 tablets of Lorcet, 120 tablets more 

than was necessary based on the twenty 

tablets per day maximum dose. He 

dispensed 30 Xanax to S.R at her second 

visit, a fifteen-day supply based on his 

dosing instruction, only to do so again 

four days later and a third time, six days 

after the second dispensing. On the 

same day as the third Xanax dispensing, 

he also dispensed 30 Valium (also a 

fifteen-day supply), and only four days 

later, he dispensed another 60 Valium. 

Notably, Respondent did not note in the 

patient record a medical reason for 

prescribing either the Xanax or the 

Valium. 

While S.R.’s file indicates that during 

August, Respondent turned down two 

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50One of these was only three days after a prior 

refill, thus begging the question of what use S.R. 

was making of the drugs she was seeking. 

51The first November refill occurred on 

November 3; B.W. had obtained a refill for 60 

tablets on October 31. The first three November 

refills were for 60 tablets each; beginning on 

November 13, Respondent doubled the quantity to 

120 tablets. 

refill requests,50 beginning in October, 

S.R. successfully escalated her requests. 

In this month, S.R. obtained Lorcet 

refills totaling 900 tablets, nearly 300 

tablets more than was required if she 

was taking 20 tablets per day; in 

November, she obtained 780 Lorcet, 180 

tablets more than was necessary to 

provide the maximum dose. More 

striking, in December, she obtained 

1,080 tablets (480 more than needed), 

and in January, she obtained 1,260, 

more than double what was needed. 

Moreover, between November 22 and 

January 29, Respondent dispensed 

fourteen refills of Valium to S.R. for a 

total of 570 tablets, a quantity sufficient 

for 285 days. On three separate dates 

during this period, Respondent also 

dispensed refills of 60 Xanax for a total 

of 180 tablets (a 90-day supply). 

Notably, many of these Lorcet and 

Xanax refills occurred only three to four 

days after a previous refill. 

As noted above, S.R.’s file indicates 

that he twice rejected refill requests. 

However, in each instance, he 

subsequently approved refills only a few 

days later and apparently never asked 

why his patient was seeking refills so 

early. During the eight months in which 

he dispensed drugs to her, he saw her 

only at the initial visit. Once again, the 

evidence is clear that Respondent failed 

to properly monitor his patient to 

ensure that she was not abusing the 

drugs or selling them. Again, I hold that 

Respondent repeatedly acted outside of 

the usual course of professional practice 

and lacked a legitimate medical purpose 

when he dispensed Lorcet, Xanax, and 

Valium to S.R. 21 CFR 1306.04(a). 

B.W. sought an early refill four days 

after obtaining a Vicodin prescription, 

claiming that his housekeeper had 

thrown away his medication. B.W. did 

not otherwise begin to demonstrate a 

pattern of seeking early refills until 

several months later when, in November 

2006, Respondent dispensed to him six 

refills totaling 540 tablets of Vicodin ES, 

an amount which based on the 

testimony that twelve tablets was the 

maximum safe daily dose, was 200 

tablets more than was medically 

necessary to treat him for that month.51

In December, Respondent dispensed to 

B.W. six more refills, each for 120 

tablets, for a total of 720 tablets, an 

amount which was nearly double the 

monthly number of tablets (372) that 

Respondent testified could be safely 

taken. 

In January 2007, Respondent 

dispensed eight more 120 tablet refills 

for a total of 960 tablets, an amount 

which was nearly 600 tablets more than 

could be safely taken (372). This was 

followed by six dispensings for a total 

of 510 tablets in February, providing 

approximately 170 tablets beyond what 

could be safely taken (336), and six 

dispensings in March for a total of 600 

tablets, approximately 230 tablets more 

than necessary (372). Finally, in the first 

ten days of April 2007, Respondent 

dispensed three refills for a total of 360 

tablets, the last refill occurring two days 

before Respondent surrendered his 

registration. 

At no time did Respondent perform 

blood tests to determine how the 

medication was affecting B.W.’s liver 

function. Moreover, beginning in 

November 2006, B.W. had clearly 

escalated his refill requests and yet 

Respondent authorized doubling the 

quantity of the refills to 120 tablets. 

Respondent did so without doing a 

follow-up evaluation and continued to 

dispense to B.W. for several months 

thereafter before concluding in February 

2007 that B.W. needed to be seen. Even 

then, he dispensed additional refills 

until early March, when he finally saw 

B.W. 

In his testimony, Respondent 

conceded that the refills that occurred 

between March 15 and April 10, 2007 

were early. However, in fact, nearly all 

of the refills between November 2006 

and April 10, 2007 were early. Notably, 

during this period, B.W. was obtaining 

hydrocodone drugs from ten other 

physicians. 

Here again, the quantities of Vicodin 

ES which B.W. sought and obtained 

from Respondent were indicative of selfabuse and/or selling to others. Once 

again, I conclude that Respondent failed 

to properly supervise his patient and 

that he lacked a legitimate medical 

purpose and acted outside of the usual 

course of professional practice in 

dispensing the refills. 21 CFR 

1306.04(a). 

Respondent examined J.W. only at his 

initial visit of March 6, 2006, yet 

dispensed refills to him for eleven 

months before finally concluding that 

he was requesting ‘‘too much meds’’ and 

that a second visit was needed ‘‘to 

discuss lowering [the] amounts.’’ While 

J.W.’s Lorcet refills were not initially 

problematic (based on the twenty tablet 

per day max), from the outset the Xanax 

refills were excessive. 

At the first visit, Respondent 

dispensed to J.W. 90 Xanax, a forty fiveday supply based on the dosing 

instruction of one tablet every twelve 

hours. Yet only ten days later, 

Respondent dispensed another 60 

tablets to him (a thirty-day supply); this 

was followed by two more refills, each 

for 30 tablets during the month. In 

March 2006 alone, Respondent 

dispensed 210 Xanax to J.W., an amount 

which provided 105 days’ worth of the 

drug. 

During the course of Respondent’s 

dispensing, his dosing instruction 

remained unchanged. Yet each month 

Respondent dispensed to J.W. quantities 

of Xanax far in excess of what his 

dosing instructions established was 

medically necessary (assuming he 

actually had a condition warranting the 

drug). In April, he dispensed 180 

tablets; in May and June, 150 (each 

month); in July, 360; in August, 150; in 

September, 420; in October, 810; in 

November, 690; in December, 450; in 

January 2007, 540; and in February, 150 

(although J.W. made only two refills 

requests in this month). Thus, from the 

outset, J.W. sought and obtained 2.5 to 

3 times the monthly amount of Xanax 

which was medically necessary. And 

even after J.W. had become increasingly 

brazen and sought first seven, and then 

fourteen times the monthly amount of 

drug that Respondent’s dosing regime 

required, Respondent continued to 

dispense grossly excessive quantities to 

him and did so for months. 

Likewise, by October, J.W.’s requests 

for Lorcet refills had become 

increasingly brazen, with some requests 

occurring within two to four days of a 

previous refill. In October, Respondent 

dispensed 1,080 Lorcet tablets to J.W., 

an amount which was 460 tablets more 

than necessary if J.W. actually needed 

the maximum 20 tablets per day to treat 

a legitimate medical condition. In 

November, Respondent dispensed to 

J.W. another 1,080 tablets; in December, 

810; in January, 990; and in the first five 

days of February, 360. Again, 

Respondent approved multiple refills 

within only a few days after approving 

a previous refill. And again, at no time 

during the course of his dispensing 

Lorcet to J.W., did Respondent do blood 

tests. 

Given the frequency of the refills and 

quantities that he dispensed, it is 

incredible that it took Respondent 

eleven months to finally recognize that 

something was amiss and require that 

J.W. appear for a second visit. Once 

again, Respondent failed to properly 

monitor his patient. Moreover, even 

assuming that Respondent’s evaluation 

of J.W. was adequate to support the 

initial prescriptions of Xanax and 

Lorcet, it is clear that most of the refills 

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52The Government also proved that Respondent 

violated California law by allowing unlicensed 

employees to dispense the controlled substances to 

his patients. See Cal. Bus. & Prof. Code § 4170(a). 

Respondent admitted to the DI that one of his 

employees repackaged the controlled substances 

into vials which she labeled and that his 

receptionist would then deliver the controlled 

substances to his patients. He also admitted that he 

did not personally supervise his receptionist deliver 

the drugs to the patients. Tr. 593. 

Section 4170 of the California Business and 

Profession Code provides in relevant part that ‘‘[n]o 

prescriber shall dispense drugs * * * to patients in 

his or her office or place of practice unless * * * 

[t]he dangerous drugs * * * are dispensed to the 

prescriber’s own patient, and the drugs * * * are 

not furnished by a nurse or physician attendant.’’ 

Id. § (a)(1); see also id. § (a)(5) (requiring prescriber 

to ‘‘personally dispense[] the dangerous drugs * * * 

to the patient’’). While the statute allows a certified 

nurse-midwife, a nurse practitioner, a physician 

assistant or a naturopathic doctor to ‘‘hand to a 

patient of the supervising physician * * * a 

properly labeled prescription drug prepackaged by 

a physician,’’ id. § (a)(8), neither H.C. nor the 

receptionist hold any of these licenses. 

While Respondent contended that the Medical 

Board had inspected his pharmacy twice and found 

no violations, Respondent was not present during 

one of the inspections, and the record does not 

establish, whether at either inspection, the 

inspectors observed the actual manner in which 

Respondent dispensed the drugs. Moreover, the 

Government cited two Medical Board decisions 

holding physicians in violation of section 4170 

because they allowed either unlicensed office staff 

(or employees who did not fall within the 

exceptions of subsection (a)(8)) to dispense drugs to 

their patients. See Tan Shin Lee, M.D., Stipulated 

Surrender of License and Order, Ex. A, at 4, 17–18; 

adopted by Tan Shin Lee, M.D., Decision (Med. Bd. 

Cal. 2008) (Gov. Br., at app. H); Albert Peter 

Giannini, Jr., M.D., Stipulation in Settlement and 

Order, at 3 (Med. Bd. Cal. 2001); adopted by Albert 

Peter Giannini, Jr., M.D., Decision (Med. Bd. Cal. 

2001) (Gov. Br., at app. G). I thus conclude that 

Respondent violated California law when he 

allowed unlicensed personnel to dispense 

controlled substances to his patients. 

53Relatedly, an applicant’s/registrant’s lack of 

candor is an important and typically dispositive 

consideration in determining whether he has 

accepted responsibility for her misconduct. See 

Hoxie, 419 F.3d at 483 (‘‘Candor during DEA 

investigations, regardless of the severity of the 

violations alleged, is considered by the DEA to be 

an important factor when assessing whether a 

physician’s registration is consistent with the 

public interest’’ and noting that physician’s ‘‘lack of 

candor and failure to take responsibility for his past 

legal troubles * * * provide substantial evidence 

that his registration is inconsistent with the public 

interest.’’). See also Craig H. Bammer, 73 FR 34327, 

34328 (2008); Prince George Daniels, 60 FR 62884, 

62887 (1995). 

54There was testimony that in the Los Angeles 

area, Vicodin sold on the street for up to $5 per 

tablet. Tr. 141. 

he dispensed were not medically 

necessary and therefore lacked a 

legitimate medical purpose and were 

issued outside of the usual course of 

professional practice. 21 CFR 

1306.04(a). 

The record here thus manifests an 

egregious failure by Respondent to 

properly supervise his patients to 

ensure that they were not abusing the 

drugs and/or selling them to others. See 

Gonzales, 546 U.S. at 274. In short, 

Respondent completely abdicated his 

role as a physician. I further hold that 

the Government has clearly met its 

prima facie burden of showing that 

Respondent’s registration would be 

inconsistent with the public interest.52

Sanction 

Under longstanding Agency 

precedent, where, as here, ‘‘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 

363, 387 (2008), aff’d, 3000 Fed. Appx. 

409 (6th Cir. 2008) (quoting Samuel S. 

Jackson, 72 FR 23848, 23853 (2007) 

(quoting Leo R. Miller, 53 FR 21931, 

21932 (1988))). ‘‘Moreover, because ‘past 

performance is the best predictor of 

future performance,’ ALRA Labs, Inc. v. 

DEA, 54 F.3d 450, 452 (7th Cir.1995), 

[DEA] has repeatedly held that where a 

registrant has committed acts 

inconsistent with the public interest, the 

registrant must accept responsibility for 

[his] actions and demonstrate that [he] 

will not engage in future misconduct.’’ 

Medicine Shoppe, 73 FR at 387; see also 

Jackson, 72 FR at 23853; John H. 

Kennedy, 71 FR 35705, 35709 (2006); 

Prince George Daniels, 60 FR 62884, 

62887 (1995). See also Hoxie v. DEA, 

419 F.3d at 483 (‘‘admitting fault’’ is 

‘‘properly consider[ed]’’ by DEA to be an 

‘‘important factor[]’’ in the public 

interest determination).53

Finally, an applicant/registrant is 

required not only to accept 

responsibility for his misconduct, but 

also to demonstrate what corrective 

measures he has undertaken to prevent 

the re-occurrence of similar acts. Jayam 

Krishna-Iyer, 74 FR 459, 464 (2009). 

Both conditions are essential 

requirements for rebutting the 

Government’s prima facie showing that 

granting an application or continuing an 

existing registration would be 

‘‘inconsistent with the public interest.’’ 

21 U.S.C. 823(f). 

In her decision, the ALJ noted various 

facts which she deemed favorable to 

Respondent even though she ultimately 

concluded that he had not rebutted the 

Government’s prima facie case. Several 

of these facts are not even supported by 

the record; others are insubstantial and 

do little to minimize the egregious 

nature of Respondent’s misconduct. 

First, the ALJ asserted that 

‘‘Respondent was not dispensing 

controlled substances for monetary 

gain.’’ ALJ at 48. As support for this 

finding, the ALJ cited the testimony of 

the DI that he did not find significant 

amounts of money in Respondent’s 

home or office and found no indication 

of abnormally large cash transfers or 

other evidence of trafficking. Id. 

Respondent did, however, charge for the 

pills he dispensed even if he did not 

charge the street price for drugs;54 in 

any event, the price he charged is of 

little relevance in determining whether 

the refills were issued in the usual 

course of professional practice and 

lacked a legitimate medical purpose. 

Even if Respondent had charged nothing 

for a prescription (or given a patient a 

free manufacturer’s sample), if he acted 

outside of the usual course of 

professional practice and lacked a 

legitimate medical purpose in doing so, 

the dispensing would still be unlawful. 

Next, the ALJ found that Respondent 

had refused to prescribe OxyContin 

because of its addictive properties. ALJ 

at 43. However, given the extensive 

scope of the early and unwarranted 

refills he authorized for such highly 

abused drugs as Lorcet, Vicodin, Xanax, 

and Valium, the ALJ’s finding does not 

mitigate the egregiousness of his 

misconduct. 

Based on the initial conversation 

between the Special Agent and 

Respondent, the ALJ found that he 

‘‘refused to prescribe controlled 

substances for recreational purposes.’’ 

ALJ at 43. Yet, within a minute or so of 

his claiming that he did not prescribe 

for recreational purposes, he agreed to 

write a prescription to the Special Agent 

for Vicodin even though the Agent had 

yet to make any representation that she 

had pain. Thus, he was willing to 

prescribe for recreational purposes 

provided the Agent eventually said the 

magic words. 

The ALJ also found that Respondent 

‘‘stopped dispensing refills when a 

patient failed to keep a scheduled 

appointment’’ and that he ‘‘often times 

refused to dispense early refills.’’ Id. As 

to the first assertion, the evidence 

showed, however, that Respondent 

rarely required his patients to appear for 

follow-up visits and that he authorized 

refills for months on end (frequently on 

a weekly or shorter basis) without 

requiring a visit. And contrary to the 

ALJ’s second assertion, Respondent 

rarely refused a refill request, and even 

when he initially did so, he frequently 

approved it within a few days. 

The ALJ noted that ‘‘in multiple cases 

* * * Respondent actually dispensed 

controlled substances at the rate he 

directed his patients to consume them.’’ 

Id. Beyond the fact that one would 

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55The ALJ also noted that Dr. Norcross stated that 

Respondent ‘‘met the standard of care for a 

physician of his age and training.’’ ALJ at 44. 

However, as explained above, the issue is whether 

Respondent acted in the usual course of 

professional practice and had a legitimate medical 

purpose in issuing the prescriptions. See 21 CFR 

1306.04(a). Moreover, Dr. Chavez provided an 

extensive explanation for his opinion that 

Respondent’s prescribing practices represented an 

extreme departure from the accepted standards of 

medical practice and of medication prescribing. 

56While Respondent conceded that he dispensed 

a limited number of early refills to E.A. and S.M., 

this was only a small portion of the early refills he 

issued to these two persons. Most significantly, he 

also failed to accept responsibility for numerous 

early and unwarranted refills he dispensed to other 

patients. 

57While I note this, I agree with Respondent that 

the record in this matter does not establish that the 

accepted standard of medical practice requires a 

physician who prescribes controlled substances to 

check his patient in a prescription monitoring 

program database to determine whether he/she is a 

doctor shopper. See Resp. Prop. Findings, at 8–9. 

58Respondent also contends that the public 

interest analysis requires the Agency to ‘‘balance the 

need to prevent possible abuse by a few isolated 

patients against the public harm caused by denying 

* * * DEA registration privileges to an important 

provider of healthcare (and pain management) 

services in a poor, mostly indigent community.’’ 

Resp. Reply Br. at 2. DEA has previously rejected 

this contention as unworkable and lacking any 

support in the statutory factors. See Gregory D. 

Owens, 74 FR 36751, 36757 & n.22 (2009) (‘‘The 

residents of this Nation’s poorer areas are as 

deserving of protection from diverters as are the 

citizens of its wealthier communities, and there is 

no legitimate reason why practitioners should be 

treated any differently because of where they 

practice or the socioeconomic status of their 

patients.’’). 

In his Reply Brief, Respondent also asserts ‘‘that 

the few patients who receive[d] slightly excessive 

amounts of pain medication were not representative 

of a larger number, and were a minuscule portion 

of [his] practice.’’ Resp. Reply Br. at 7. Beyond the 

fact that Respondent mischaracterizes the evidence 

regarding the amounts of pain medication he 

dispensed and entirely ignores the extraordinary 

number of unlawful Valium and Xanax refills he 

dispensed, DEA has repeatedly rejected the 

argument that revocation of a registration or denial 

of an application is unwarranted where a 

practitioner’s misconduct only involves a small 

number of patients. See Jayam Krishna-Iyer, 74 FR 

459, 463 (2009). DEA has revoked a practitioner’s 

registration based on a physician’s simultaneous 

presentation of two fraudulent prescriptions to a 

pharmacist, see Alan H. Olefsky, 57 FR 928, 928– 

29 (1992), and DEA can revoke based on a single 

act of diversion. In short, Respondent’s misconduct 

is egregious and he has not rebutted the 

Government’s prima facie case. 

expect a practitioner who is properly 

supervising his patients to rarely, if 

ever, do otherwise, the record 

establishes numerous instances in 

which Respondent dispensed both 

hydrocodone drugs and schedule IV 

depressants (Xanax and Valium) in 

quantities which far exceeded his 

dosing instructions. Indeed, the ALJ’s 

assertion is refuted repeatedly by her 

own findings which show that the 

quantities of the various drugs he 

dispensed greatly exceeded what the 

patients required in the course of 

legitimate medical treatment. 

Next, the ALJ noted that ‘‘Respondent 

seemed to understand the need for a 

pain management contract, even though 

he had not implemented any procedures 

to verify compliance with that 

agreement.’’ Id. at 44. This, however, 

does not mitigate his misconduct 

because, as the latter part of this finding 

make plain, Respondent’s pain 

management contracts were not worth 

the paper they were written on as he 

never enforced them.55

Finally, the ALJ noted that 

Respondent had acknowledged that ‘‘he 

had a problem’’ because ‘‘between 

February and March of 2007, he was 

preparing for the Board’s proceeding, 

and after that, he had a major increase 

of his patients’’ thus leading ‘‘to his 

failure to keep careful track of the 

frequency and quantities’’ of his refills. 

ALJ at 44. However, Respondent’s 

failure to properly monitor his patients 

was not limited to the February–March 

2007 time frame, as he issued many 

refills, which were clearly unwarranted, 

well before then. Indeed, most of the 

evidence discussed above involved his 

dispensings prior to this period and he 

admitted to only a few instances of early 

refills.56 I thus conclude that 

Respondent has not fully accepted 

responsibility for his misconduct. 

It is acknowledged that Respondent 

testified that, if granted a new 

registration, he would use the CURES 

database if he ‘‘feel[s]’’ that a patient is 

requesting refills ‘‘too frequently’’ and 

that he would limit his prescribing of 

drugs to the PDR limits.57 Tr. 344–45. 

He also claimed that he would hire 

additional help and instruct his staff to 

keep better track of his patients’ refill 

requests. Yet it is entirely unclear at 

what point he would ‘‘feel’’ that a 

patient’s refill requests were being made 

‘‘too frequently.’’ As for his promise to 

not exceed the PDR limits, the record 

shows that he repeatedly issued refills 

which were excessive even when 

evaluated under his own understanding 

as to a drug’s maximum daily safe 

dosing limit. 

Thus, while I have considered 

Respondent’s proposed reforms, the 

record here does not inspire confidence 

in his ability or willingness to properly 

implement them. Indeed, even ignoring 

the illegality of the prescription he 

issued to the Special Agent, the record 

amply demonstrates that Respondent 

acted with reckless disregard for his 

obligation to properly supervise his 

patients to ensure that they were not 

abusing and/or selling to others the 

controlled substances he dispensed. His 

conduct was egregious and likely 

caused great harm to public health and 

safety. Accordingly, I hold that 

Respondent has not rebutted the 

Government’s prima facie case. 

Respondent’s application will therefore 

be denied.58

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f), as well as 28 CFR 

0.100(b) and 0.104, I hereby order that 

the application of Bienvenido Tan, 

M.D., for a DEA Certificate of 

Registration be, and it hereby is, denied. 

This order is effective April 29, 2011. 

Dated: March 22, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–7394 Filed 3–29–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 09–40] 

Scott C. Bickman, M.D.; Revocation of 

Registration 

On March 27, 2009, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Scott C. Bickman, M.D. 

(Respondent), of Anaheim Hills, 

California. The Show Cause Order 

proposed the revocation of 

Respondent’s DEA Certificate of 

Registration, BB3698632, as well as the 

denial of any pending applications to 

renew or modify his registration, on the 

ground that his ‘‘continued registration 

is inconsistent with the public interest.’’ 

ALJ Ex. 1, at 1. 

The Show Cause Order specifically 

alleged that ‘‘[f]rom December 2007 

through October 2008,’’ Respondent 

allowed his ‘‘DEA registration to be used 

to purchase at least 281,500 dosage 

units of hydrocodone combination 

products, in exchange for $2,000 per 

month,’’ in violation of 21 U.S.C. 

843(a)(2) and (3). Id. The Show Cause 

Order also alleged that Respondent had 

materially falsified his July 25, 2008 

application to renew his registration 

because he failed to disclose that the 

Medical Board of California had ‘‘placed 

limits on [his] practice and placed [him] 

on probation for a period of thirty-five 

(35 months), effective September 18, 

2006.’’ Id. at 1–2 (citing 21 U.S.C. 

824(a)(1)). 

Respondent timely requested a 

hearing on the allegations and the 

matter was placed on the docket of the 

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