17694 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 

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 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 17695 

Office of Administrative Law Judges 

(ALJ). Following pre-hearing 

procedures, an ALJ conducted a hearing 

in Los Angeles, California on January 

26–27, 2010. At the hearing, both parties 

introduced documentary evidence and 

called witnesses to testify. Thereafter, 

both parties submitted briefs containing 

their proposed findings of fact, 

conclusions of law, and arguments. 

On May 28, 2010, the ALJ issued her 

recommended decision (also ALJ). 

Therein, the ALJ found that Respondent 

had materially falsified his July 2008 

renewal application. ALJ at 31. Based on 

‘‘Respondent’s inconsistent testimony 

about how the misstatement occurred 

and his failure to take responsibility for 

it,’’ the ALJ further found that 

Respondent had not shown that ‘‘the 

omission was unintentional and that 

there was no intent to deceive.’’ Id. The 

ALJ thus concluded that this act 

‘‘constitutes grounds for revoking 

[Respondent’s] registration.’’ Id. 

The ALJ then turned to whether 

Respondent had committed acts 

rendering his registration inconsistent 

with the public interest. Id. (discussing 

21 U.S.C. 823(f)). With respect to the 

first factor—the recommendation of the 

State licensing authority—the ALJ noted 

that Respondent’s State medical license 

‘‘is unrestricted and that he is 

authorized to handle controlled 

substances in’’ the State. Id. The ALJ 

thus found that this factor supports a 

finding that Respondent’s ‘‘continued 

registration would be in the public 

interest.’’ Id. at 31–32. However, the ALJ 

further noted that this factor is not 

dispositive. 

Turning to the second factor— 

Respondent’s experience in dispensing 

controlled substances—the ALJ noted 

that this factor was ‘‘not at issue in th[e] 

proceeding.’’ Id. at 32. With respect to 

the third factor—Respondent’s record of 

convictions for offenses related to the 

manufacture, distribution or dispensing 

of controlled substances—the ALJ noted 

that there was no evidence that 

Respondent has been convicted of such 

an offense. Id. However, the ALJ noted 

that this factor was also not dispositive. 

Id. 

Addressing the fourth factor— 

Respondent’s compliance with 

applicable Federal and State laws 

related to controlled substances—the 

ALJ found that ‘‘between December 2007 

and October 2008[,] some 120,000 

dosage units of hydrocodone were 

ordered [by another physician who was 

allowed to use his registration] and 

shipped from Harvard Drug using 

Respondent’s DEA registration number’’ 

and that ‘‘Respondent does not deny that 

this happened, but urges that these 

orders were made without his 

authorization or knowledge.’’ Id. The 

ALJ further found that while ‘‘[t]he 

record does not establish that 

Respondent had actual knowledge of 

every order placed with Harvard Drug 

using his DEA number[,] [it] 

conclusively establishes * * * that [he] 

had ample reason to suspect that his 

registration was being misused and that 

he chose not to act on those suspicions.’’ 

Id. Further finding Respondent’s various 

explanations of his conduct 

implausible, the ALJ concluded that he 

‘‘knew or should have known that’’ his 

registration was being used ‘‘to order 

controlled substances that were likely to 

be diverted.’’ Id. at 33. The ALJ thus 

concluded that, by allowing another 

doctor to use his DEA registration ‘‘to 

order controlled substances,’’ 

Respondent had unlawfully distributed 

controlled substances in violation of 21 

U.S.C. 841(a) and that this factor 

supported a finding that his ‘‘continued 

registration would be inconsistent with 

the public interest.’’ Id. 

Turning to the fifth factor—other 

conduct which may threaten public 

health or safety—that ALJ found it 

‘‘abundantly clear from Respondent’s 

testimony and his letters to [a DEA 

Investigator that he] does not admit to 

any wrongdoing or accept any 

responsibility for the 120,000 dosage 

units of hydrocodone that were ordered 

* * * using his DEA registration 

number.’’ Id. at 33. Concluding ‘‘that 

Respondent’s refusal to acknowledge his 

wrongdoing offers little hope for the 

prospect that if he retains his DEA 

registration he will act more responsibly 

in the future,’’ the ALJ found that this 

factor also supported a finding that his 

continued registration would be 

inconsistent ‘‘with the public interest.’’ 

Id. at 34. 

The ALJ thus concluded that 

Respondent had ‘‘at least constructively 

engaged in [the] unlawful distribution of 

hydrocodone and that he is unwilling or 

unable to accept the responsibilities 

inherent in a DEA registration.’’ Id. The 

ALJ thus recommended that 

Respondent’s ‘‘registration be revoked 

and that any pending applications be 

denied.’’ Id. 

Thereafter, Respondent filed 

exceptions to the ALJ’s decision. The 

record was then forwarded to me for 

final agency action. 

Having considered the entire record 

in this matter, including Respondent’s 

exceptions, I reject the ALJ’s legal 

conclusion that Respondent materially 

falsified his application. I agree, 

however, with the ALJ’s finding that 

Respondent has committed acts which 

render his registration inconsistent with 

the public interest because he either 

knew or had reason to know that his 

registration was being misused and yet 

did nothing to prevent it. I further agree 

with the ALJ that Respondent has failed 

to accept responsibility for his 

misconduct. Accordingly, I will adopt 

the ALJ’s recommendation that his 

registration be revoked and pending 

application be denied. As ultimate fact 

finder I make the following findings. 

Findings 

Respondent is an anesthesiologist 

who holds a physician and surgeon 

license issued by the Medical Board of 

California (MBC). GX 7, at 1. Pursuant 

to a Stipulated Settlement and 

Disciplinary Order (State Order), which 

became effective on September 18, 2006, 

the MBC revoked Respondent’s license 

but then stayed the revocation and 

placed him on probation for a period of 

thirty-five months subject to various 

conditions. Id. at 2–3. The State Order 

resolved an Accusation that Respondent 

had committed acts of gross negligence, 

negligence, incompetence, and had 

failed to maintain adequate and accurate 

records, based on his provision of 

epidural anesthesia to a patient. Id. at 

21–25. Notably, the Board did not place 

any restriction on Respondent’s 

authority to administer, prescribe or 

dispense controlled substances. See id. 

at 5–15. It was undisputed that 

Respondent has satisfactorily completed 

the probation. 

Respondent is also the holder of a 

DEA Certificate of Registration, which 

authorizes him to dispense controlled 

substances in schedules II through V as 

a practitioner. GX 1. Respondent’s 

registration was to expire on July 31, 

2008; however, on July 28, 2008, 

Respondent submitted a renewal 

application. GX 6, at 3. On the 

application, Respondent was required to 

answer the following question: ‘‘Has the 

applicant ever had a state professional 

license or controlled substance 

registration revoked, suspended, 

restricted, or placed on probation, or is 

any such action pending?’’ GX 5, at 1. 

Respondent answered: ‘‘No.’’ Id. 

On September 28, 2005, when 

Respondent previously renewed his 

registration, he gave as his registered 

location his residence on Wilshire 

Boulevard in Los Angeles, California. 

GX 6, at 3–4. However, on August 22, 

2007, an application was submitted 

through DEA’s registration Web site 

which changed his registered address 

from his residence to 145 S. Chaparral 

Court, Suite 101, Anaheim Hills, 

California. GX 6, at 3. This address was 

the location of an outpatient surgery 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

17696 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 

1However, the State Order contains no such 

prohibition. See GX 7, at 5–16. 

2According to Respondent, the nurse anesthetist 

recommended that the center seek accreditation 

from a different entity, the Institute for Medical 

Quality (IMQ). 

3Respondent also submitted a lengthy document, 

which was a draft of a Policy and Procedure Manual 

he prepared for Robinson because the Chaparral 

Court clinic would need it to obtain accreditation. 

See RX E; Tr. 485, 492. Respondent further 

admitted that this document was only ‘‘a draft 

* * * a rough copy,’’ and was ‘‘not intended to be 

sent in time for approval, or even to request 

somebody to come [to] the center.’’ Tr. 674. 

Respondent then explained: ‘‘It’s a rough draft, as 

a skeleton, so to speak, for him to have in place 

something that when he decided * * * then that 

was not for me to even know that he was going to 

get it ready. Then he had a rough draft that would 

have been cleaned up as it needed to be.’’ Id. at 674– 

75. To similar effect, Respondent’s fiance ́, who 

helped prepare the document, acknowledged that 

the document was not final ‘‘in any way, shape or 

form,’’ but rather was ‘‘a work in progress.’’ Tr. 376. 

4While B.C. testified that Robinson would place 

requests for various controlled substances which 

she would then order, Tr. 415, it is not clear 

whether the drugs were ordered under Robinson’s, 

Respondent’s, or someone else’s registration. 

5The Government submitted a report it compiled 

from DEA’s ARCOS database of hydrocodone 

center which was owned by Dr. Harrell 

E. Robinson, a plastic surgeon. 

According to Respondent, he first met 

Robinson in 2005 when the latter 

performed surgery at a surgery center in 

Beverly Hills. Tr. 471. On some date in 

either late 2006 or April/May 2007, 

Robinson began performing outpatient 

surgery at the Chaparral Court surgery 

center. Id. at 475–76. Robinson told 

Respondent that he was going to take 

over the center and asked him if he 

would be interested in providing 

anesthesia to the patients who 

underwent procedures there. Id. at 476. 

Respondent agreed to do so, and 

Robinson agreed to provide the 

controlled substances (among them 

fentanyl and midazolam) that were used 

to anesthetize the patients. Id. at 476– 

77. Respondent did not order the 

controlled substances but would tell the 

clinic’s nurse when the supplies were 

running low, who would then order 

more. Id. at 477–78. Respondent 

administered anesthesia to patients at 

the center until sometime in late 

November 2007. Id. at 480, 587. 

According to Respondent, the 

accreditation of Robinson’s surgery 

center, which was issued by the Joint 

Commission on Accreditation of 

Healthcare Organizations (JCAHO), was 

due to expire at the end of November 

2007 and Robinson had no plans to reaccredit the center. Id. at 480. 

Respondent maintained that he stopped 

performing anesthesia at the center after 

its accreditation expired because the 

State Order prohibited him from 

practicing at an unaccredited facility 

and that he had stopped going there.1 Id. 

at 481. 

In mid-November 2007, Robinson 

asked Respondent to become the 

center’s medical director. Id. 

Respondent declined Robinson’s offer. 

Id. at 482. However, because 

Respondent knew a nurse anesthetist 

who had previously assisted other 

surgery centers in obtaining 

accreditation and who would provide 

him with the templates necessary to 

prepare the documents required to do 

so, as well as because upon the center’s 

obtaining a new accreditation, he would 

then be able to work there, Respondent 

offered to help Robinson get the center 

re-accredited for a fee of $16,000.2 Id. at 

482–83; see also id. at 347–48. Robinson 

agreed. Id. at 482–83. 

Respondent maintained that in 

addition to preparing the necessary 

documents, he agreed to allow Robinson 

to use his DEA registration to order 

necessary supplies and medications for 

performing ‘‘peri-operative anesthesia 

services,’’ which he maintained were 

necessary ‘‘to get the center up and 

running to be accredited.’’ Tr. 496. 

According to Respondent, this included 

‘‘gloves, syringes, needles, IVs, IV bags, 

Bovies and drapes,’’ as well as the drugs 

used prior to surgery (such as 

midazolam), during surgery (fentanyl) 

and post-surgery (Dilaudid and 

fentanyl). Id. at 496–97. Dilaudid 

(hydromorphone) and fentanyl are 

schedule II controlled substances, see 21 

CFR 1308.12(b)(1) & (c); midazolam is a 

schedule IV controlled substance. See 

id. 1308.14(c). 

Respondent also submitted into 

evidence a November 19, 2007 letter 

which he asserted he had written to 

Robinson stating the terms of his 

agreement for assisting Robinson with 

getting the center re-accredited. RX DD. 

According to the letter (which is not 

signed by either him or Robinson), 

Respondent agreed to ‘‘provide use of 

my DEA certificate and DEA license for 

use of supplies and medications related 

to Peri-operative Anesthesia services.’’ 

Id. The letter further states that ‘‘[t]his 

authorization does not extend to clinic 

and post-operative services or oral 

analgesics,’’ and that, ‘‘[i]f at any time 

my * * * DEA is used for other then the 

narrow range specific [sic] in this letter 

of understanding then this letter of 

understanding is nil [sic] and void.’’ Id. 

Respondent testified that he prepared 

the letter because he knew that 

Robinson had started dispensing 

hydrocodone from his office and he 

‘‘just wanted to cover [him]self to make 

sure that [his] DEA in the future was not 

used for that purpose.’’ Tr. 648. 

Respondent further denied having 

written the letter after the fact. Id. at 

652. However, on either October 19 or 

22, 2008, Respondent was interviewed 

by both a DEA Diversion Investigator 

(DI) and a DEA Special Agent (S/A) and 

did not mention the letter. Id. at 225, 

656–57; GX 23, at 1. Moreover, while 

Respondent submitted a lengthy written 

statement to the DI following the 

interview (as well as two other 

statements), he did not mention the 

letter in any of the statements and 

admitted that he never provided it to the 

DI.3 Id. at 652, 654, 656–57; see also GX 

23. 

Respondent further maintained that 

he did not authorize Robinson to use his 

DEA registration to order oral analgesics 

such as Vicodin or other controlled 

substances containing hydrocodone. Id. 

at 644–45. While Respondent testified 

that Robinson needed his DEA number 

to order both non-drug supplies and 

controlled substances from a distributor, 

id. at 496, Samir Shah, Vice-President of 

Regulatory Affairs for the Harvard Drug 

Group (hereinafter, either Harvard or 

HDG), a registered distributor, testified 

that his company only required a DEA 

registration if a customer sought to 

purchase controlled substances. Id. at 

20–21. The record does not establish 

whose registration was used by 

Robinson’s clinic to obtain the 

controlled substances that were needed 

to anesthetize patients who underwent 

surgery there in the period prior to the 

date on which Respondent authorized 

Robinson to use his registration for this 

purpose and why Respondent’s 

registration was subsequently required 

to order the drugs.4

According to B.C., who was the front 

office manager at Robinson’s clinic from 

July through December 3, 2007, when 

Robinson fired the entire staff, id. 410– 

11, 413–14; in the summer of 2007, she 

observed Robinson’s wife Alinka change 

Respondent’s registered address through 

the DEA Web site. Id. at 416–17. B.C. 

testified that she asked Alinka Robinson 

whether Respondent ‘‘knew that she was 

changing his address’’; Ms. Robinson 

stated that Respondent had told her 

husband that ‘‘it was okay.’’ Id. at 417. 

Respondent subsequently denied having 

authorized this and maintained that he 

did not become aware that his address 

had been changed until he attempted to 

renew his registration in July 2008. Id. 

at 508, 636–40. 

In a declaration, B.C. testified that 

Alinka Robinson had used Respondent’s 

registration to open an account with 

Ready Rx, another drug distributor, and 

did so without Respondent’s knowledge 

and consent.5 RX X. The evidence 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 17697 

purchases made in 2007 using Respondent’s 

registration and which were shipped to Robinson’s 

Anaheim Hills clinic. GX 18; see also 21 CFR 

1304.33(a). While this report does not list any 

purchases as having been made from a firm named 

Ready RX, the report does list multiple 

distributions of hydrocodone by Top RX, Inc., 

which occurred between October 8 and November 

19, 2007. GX 18, at 8–9. These distributions totaled 

38,000 tablets. See id. 

Respondent also submitted various documents 

including a Top Rx credit application (which listed 

Respondent’s DEA registration number and listed 

‘‘Bickman, Coleman Scott MD’’ as the ‘‘legal name’’ 

and ‘‘Orange County Surg.’’ as the ‘‘trade name’’) and 

a Top Rx ‘‘DISPENSING PHYSICIAN 

QUESTIONNAIRE.’’ RX LL, at 1, 2–4. The latter 

document is dated as having been completed on ‘‘9/ 

20/07.’’ Id. at 2. The DI acknowledged that the 

signature on the documents did not look like 

Respondent’s, Tr. 249, and conceded that the 

documents were a fraudulent application. Id. at 

255. 

6B.C. also testified that twice a week, she would 

be told by one of the Robinsons not to come to the 

clinic because one Maggie Annan would be coming 

in. Tr. 426. B.C. further testified that Annan would 

pay Alinka Robinson between $9,000 and $10,000 

in cash each month to use the clinic. Id. at 427– 

28. 

7 Invoices show, however, that HDG commenced 

filling orders for combination hydrocodone drugs 

using Respondent’s DEA registration as early as 

December 18, 2007, nearly a month before 

Respondent executed the affidavit. GX 17, at 1. The 

invoices also listed Respondent and the Anaheim 

Hills office in the ‘‘ship to’’ block. Id. According to 

Mr. Shah, HDG did not require a customer to 

submit a credit application before it shipped 

controlled substances; HDG also allowed a 

customer a grace period of ‘‘two to three weeks for 

providing’’ the affidavit. Tr. 82. Thus, HDG actually 

only required a copy of a customer’s State license 

and DEA registration before it would ship. Id. at 82– 

83, 87. 

shows that Alinka and Harrell Robinson 

used the account to order oral 

controlled substances such as Vicodin. 

Tr. 433, 506, 548–49. While B.C. 

testified that she did not tell 

Respondent about the account ‘‘at the 

time that [it] was set up,’’ she further 

stated that after she was laid off she 

called Respondent to ‘‘let him know 

everything that was going on.’’ Id. at 

445. According to B.C., Respondent 

‘‘seemed very shocked when I told him.’’ 

Id. Respondent maintained, however, 

that while he knew in November 2007, 

‘‘before [he] left the center that 

[Robinson] had actually been dispensing 

medicines out of the office,’’ he had 

‘‘never even heard of [Ready Rx] until 

today.’’ Id. at 506. He also testified that 

he was never told by anyone at 

‘‘Robinson’s office that oral controlled 

substances had been ordered using [his] 

DEA’’ registration. Id. at 548. 

The ALJ did not specifically address 

this factual dispute. However, as 

ultimate fact finder, I find that B.C., who 

was called as Respondent’s witness, had 

no reason to testify falsely as to her 

having told Respondent about the Ready 

Rx account following her termination in 

early December 2007.6 I therefore credit 

this testimony. 

In December 2007, Dr. Robinson, who 

had previously purchased controlled 

substances from HDG for a clinic he 

owned in Santa Ana, California, 

contacted the company to set up an 

account and obtain controlled 

substances for the Anaheim Hills clinic. 

Tr. 21. Robinson represented to HDG 

that Respondent was the medical 

director of the Anaheim Hills clinic. Id. 

at 22; GX 10, at 1 (Jan. 25, 2008 

memorandum from Harrell Robinson to 

HDG). 

According to Mr. Shah, HDG required 

three documents to open up an account 

in Respondent’s name and to ship 

controlled substances to the Anaheim 

Hills clinic: 1) a copy of his medical 

license, 2) a copy of his DEA 

registration, and 3) a document, which 

Mr. Shah called ‘‘the DEA affidavit,’’ a 

copy of which was submitted into 

evidence.7 Tr. 29–30; see also GX 11. 

The affidavit reads as follows: 

(1) This is to attest that BICKMAN, 

SCOTT COLEMAN MD, located at 145 

S. CHAPARRAL COURT, ANAHEIM 

HILLS, CA 92808, is not engaged in, nor 

has ever engaged in conducting business 

as an internet pharmacy or internet 

pharmacy supplier of controlled 

substances, nor do we dispense 

prescriptions by mail to patients. 

(2) DEA# is BB3698632. 

(3) BICKMAN, SCOTT COLEMAN MD 

Harvard Drug Group/Major 

Pharmaceuticals Acct.# is P4840. 

(4) BICKMAN, SCOTT COLEMAN MD 

is located in an area that is accessible to 

the public and walk-in customers are 

welcomed. 

GX 11, at 1. 

According to Respondent, Robinson 

faxed him the affidavit and asked him 

to sign it and return it to HDG. Tr. 527. 

Upon reviewing the affidavit, 

Respondent discussed it with Mr. Shah 

because he wanted to know why he was 

being asked to sign it. Tr. 34. Mr. Shah 

told Respondent that HDG was doing 

‘‘due diligence to make sure that [the] 

pharmaceuticals [it sold were] not being 

dispensed through [an] internet 

pharmacy.’’ Id. In his testimony, 

Respondent maintained that he 

interpreted the language—‘‘This is to 

attest that BICKMAN, SCOTT 

COLEMAN MD, located at 145 S. 

CHAPARRAL COURT, ANAHEIM 

HILLS, CA 92808’’—to mean he was 

‘‘credentialed there, I’m located there,’’ 

but not to mean that it was ‘‘my clinic 

that I’m doing business out of.’’ Id. at 

531. 

It is undisputed that Respondent 

signed the affidavit and wrote that his 

title was ‘‘Practitioner’’; he also signed 

the accompanying California Jurat with 

Affiant Statement, which was sworn to 

by him on January 15, 2008. GX 11, at 

2; Tr. 529, 585. It is undisputed that the 

affidavit was faxed to HDG after 

Respondent’s conversation with Mr. 

Shah. Tr. 35. 

However, on the same day that 

Respondent signed the affidavit, he sent 

a letter to HDG which stated: ‘‘This letter 

is to prohibit further use of my DEA 

license number unless there is a verbal 

confirmation from myself, Scott, 

Coleman Bickman, M.D. I can be 

reached at the following numbers[,]’’ 

and listed two phone numbers and a fax 

number. GX 12, at 1; Tr. 532–33. 

According to Respondent, he sent the 

letter because he ‘‘was bothered by the 

openness of the located question and 

the internet pharmacy business’’ and he 

‘‘wanted to be very clear in [his] 

wording to Harvard that anything that 

was going to be ordered under [his] DEA 

license, [he] wanted to be notified to 

give confirmation, so that there was 

going to be a check and balance system 

in place.’’ Tr. 533. 

However, the HDG invoices show that 

by the date Respondent signed the 

affidavit, HDG had already shipped 

34,500 dosage units of various 

hydrocodone combination drugs to the 

Anaheim Hills Clinic listing his 

registration number as the ‘‘Customer 

DEA.’’ GX 17, at 1–13. According to 

Respondent, he ‘‘had no idea that 

anything had ever been ordered by 

any[one] via my DEA besides myself,’’ 

and if he had known he would have 

terminated his relationship with 

Robinson and ‘‘turned him in.’’ Tr. 534. 

On January 24, 2008, Robinson 

prepared a credit application for HDG, 

which listed ‘‘Physicians and Surgeons 

d/b/a Scott Bickman’’ as both the legal 

name of the business and the buyer’s 

name. RX G, at 5. While the document 

listed Robinson as the owner, it then 

listed Respondent as the Guarantor of 

the account. Id. Robinson called 

Respondent and asked him to sign the 

application which he then faxed to him. 

Tr. 521. Respondent, however, did not 

sign the document because it listed 

three trade references with whom he 

had no relationship. Id. at 521–22. 

The same day, Robinson then 

completed a new credit application in 

which he listed the legal name and 

buyer’s name as ‘‘Physicians & Surgeons 

of O.C., d/b/a Harrell E. Robinson.’’ GX 

9, at 1. Robinson signed the application 

as Guarantor and faxed it to HDG the 

next day. Id. Robinson also faxed a 

memo to HDG which stated that he was 

the ‘‘owner of Physicians and Surgeons 

of Orange County Inc.’’; and that he had 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

17698 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 

8On cross-examination, Respondent’s counsel 

asked Shah whether he had ever contacted 

Respondent to ‘‘tell him that a very large quantity 

of hydrocodone was being ordered.’’ Tr. 88. Shah 

responded: ‘‘I don’t recollect having a conversation 

with [Respondent] that the orders that we have been 

shipping has [sic] hydrocodone in it that is being 

shipped. I don’t remember anything else other than 

what quantity and so forth.’’ Id. Shah further 

testified that he did not document the conversation 

in which he told Respondent that HDG was 

shipping hydrocodone because ‘‘we did receive a 

confirmation on February 27, 2008 signed by Dr. 

Bickman [to] disregard all previous instructions and 

communications.’’ Id. at 93. 

Respondent contends that Shah’s testimony on 

cross-examination is inconsistent with his 

testimony on direct. Resp. Br. 24. However, Shah 

was asked two different questions; on direct, he 

testified that Ms. Brooks had initially contacted 

Respondent to notify him that HDG could not 

‘‘continue shipping products based on his 

instructions,’’ that Respondent asked to speak with 

him, and that during the ensuing conversation, 

Respondent asked what HDG was shipping and 

Shah told him hydrocodone. Tr. 45–48. On direct 

examination, Shah did not maintain that he had 

contacted Respondent to tell him that his 

registration was being used to order a large quantity 

of hydrocodone, but rather to tell him that HDG 

would not comply with his instructions. Moreover, 

on cross-examination, Shah maintained that he had 

two conversations with Respondent, one in which 

HDG’s ‘‘DEA affidavit’’ was discussed and the 

second one in which he told Respondent that HDG 

was going to close the account. Tr. 89–90. 

In his Exceptions, Respondent notes that on June 

15, 2010, DEA immediately suspended HDG’s 

registration based on its distributions of oxycodone 

products over a two year period. Resp. Exc. at 1. 

Respondent argues that Shah’s testimony is tainted 

because the Government knew and concealed from 

him that ‘‘HDG was under investigation for massive 

diversion of millions of doses of controlled oral 

drugs,’’ and that the Government ‘‘posited that one 

of the reasons [R]espondent should have knew [sic] 

or should have know [sic] of the hydrocodone 

purchases is because HDG was a responsible drug 

wholesaler.’’ Exc. at 3. Respondent further argues 

that because he did not have ‘‘the benefit of 

knowing that he [Shah] and HDG conducted an 

unlawful business,’’ he was denied ‘‘an opportunity 

for impeachment.’’ Id. Respondent thus contends 

that Shah’s testimony should be stricken; he also 

argues that ‘‘[t]he concealment of the investigation, 

and the offering of Mr. Shah’s testimony may also 

represent the equivalent misconduct so 

contumacious in degree that dismissal of the 

section 841(a) charge would be an appropriate 

remedy.’’ Id. 

I reject Respondent’s Exceptions for the reasons 

stated in the ALJ’s ruling. I further note that there 

is no support in the record for Respondent’s 

contention that the Government’s theory was that 

he should have known about the hydrocodone 

purchases because HDG ‘‘was a responsible drug 

wholesaler.’’ While the Government’s case was 

based in part on Shah’s testimony that he told 

Respondent that HDG was shipping hydrocodone, 

the Government also relied, inter alia, on the 

various letters Respondent sent to HDG, as well as 

the material inconsistencies in his testimony and 

written statements. I also note that Respondent had 

ample opportunity to cross-examine Shah, who 

admitted that HDG shipped large quantities of 

hydrocodone even though it was ‘‘very unusual’’ to 

get a letter (such as Respondent’s Jan. 15, 2008 one) 

telling HDG not to ship without first getting verbal 

confirmation and that this was ‘‘all the more reason’’ 

why HDG should have then contacted Respondent. 

Tr. 96–97. I further note that while Shah testified 

that a customer had only two to three weeks to 

submit the affidavit HDG required, HDG had been 

shipping controlled substances to the Chaparral 

Court clinic for nearly four weeks before it obtained 

the affidavit from Respondent and had already 

shipped more than 34,000 dosage units. Respondent 

thus demonstrated several ways in which HDG did 

not act in a responsible manner, and I have 

considered this in making my findings. 

9At the time of the conversation, Respondent was 

attending the Physician Assessment and Clinical 

Education (PACE) Program at the University of San 

Diego pursuant to the probation imposed by the 

State Board. Tr. 542–43; GX 7, at 9. 

In a letter Respondent wrote to the DI, he 

maintained that while attending the PACE program, 

he received a phone call from both Dr. Robinson 

and Harvard during which ‘‘[t]hey both complained 

that they could not do business with all of this 

notification.’’ GX 23, at 8. Respondent further 

asserted that he ‘‘was extremely preoccupied at the 

time and again Dr. Robinson pleaded with me that 

he could not get orders filled for the operating room 

and that he would have to cancel surgeries as a 

result.’’ Id. Continuing, Respondent wrote: ‘‘[a]gain, 

I trusted Dr. Robinson that he was just ordering 

supplies and anesthesia drugs and wrote the second 

letter to Harvard[.]’’ Id. 

Yet earlier in the same letter, Respondent wrote 

that he ‘‘was unaware of whether or not Harvard 

had knowledge that they were sending drugs to a 

center that was unaccredited and not legally 

performing surgery. In no way did it even occur to 

me that my allowing Dr. Robinson to order his 

supplies and anesthesia related drugs could lead to 

this deception because any law abiding company 

would have confirmed the status of Dr. Robinson’s 

center and questioned why they were using my 

DEA to supply an unaccredited center not 

performing surgery and therefore having no need 

for the quantities of narcotics they were shipping 

to Dr. Robinson.’’ Id. at 7. 

On cross-examination, the Government asked 

Respondent why he had written the letter 

‘‘authorizing Dr. Robinson to place orders as needed 

so he wouldn’t have to cancel his surgeries at the 

unaccredited center?’’ Tr. 625. Respondent replied 

that he had not said in the letter that the center was 

unaccredited. Id. The Government then asked 

Respondent if ‘‘the center was unaccredited?’’ Id. 

Respondent answered: ‘‘for all I know, he took the 

supplies with him to the place next door that was 

accredited. I have no idea. But I did not give him 

authorization for him to order supplies to do 

surgery in an unaccredited surgery center. I don’t 

know [what] he did with the supplies. He could 

have taken them down * * * the street and used 

them.’’ Id. at 625–26. 

two clinics, one in Santa Ana and the 

other at 145 S. Chaparral Ct., Suite 101, 

in Anaheim Hills. GX 10, at 1. The 

memo also stated that ‘‘Dr. Bickman, 

MD, serves at [sic] my Medical Director 

at the Anaheim Hills’ office[,]’’ that ‘‘our 

accounts payable office Dept covers 

both offices,’’ and that the invoices 

should ‘‘go through the channels 

originally set up.’’ Id. 

On February 7, 2008, Respondent 

faxed a letter (which was dated January 

30, 2008) to HDG. GX 13. Respondent 

wrote that ‘‘[t]his letter is to authorize 

the Physicians and Surgeons of Orange 

County dba Harrell Robinson, MD to 

order the necessary supplies for the 

center without having The Harvard Drug 

Group notify me for approval only for 

the next sixty days.’’ Id. According to 

Respondent, he wrote this letter because 

Robinson had called him and said that 

‘‘it was too difficult’’ to order the 

supplies this way. Tr. 537. Respondent 

maintained that he wrote the letter ‘‘not 

to undo my previous order, but to say, 

okay, they [HDG] don’t have to contact 

me for supplies * * * not for the 

necessary supplies for the center,’’ 

which he deemed to include syringes, 

needles, and gloves but ‘‘absolutely not’’ 

controlled substances. Id. at 538. 

Mr. Shah testified, however, that after 

HDG received the letter, he asked G.B., 

a salesperson, ‘‘to contact [Respondent] 

and notify him that we intend[ed] to 

close the account as our system [was] 

not capable of handling his request for 

[the] next 60 days for holding all 

orders.’’ Id. at 45. The salesperson called 

Respondent, who, upon being told that 

HDG ‘‘would be closing the account,’’ 

asked to speak to Mr. Shah. Id. at 46– 

47. The salesperson then transferred the 

call to Mr. Shah. Id. at 48. 

Mr. Shah testified that during the call, 

he explained to Respondent that HDG 

would ‘‘not be able to handle [his] 

request’’ because its system lacked the 

capability of ‘‘holding orders’’ for a 

‘‘certain time period.’’ Id. Mr. Shah 

further told Respondent that HDG could 

either ‘‘continue to ship or not ship.’’ Id. 

Respondent then told Mr. Shah to 

‘‘reinstate the account’’ and Shah stated 

that he could not do so until he received 

‘‘a written confirmation from’’ 

Respondent. Id. 

According to Mr. Shah, during the 

conversation Respondent asked ‘‘what 

kind of products’’ were being shipped. 

Id. Shah testified that he told 

Respondent that ‘‘we are shipping 

hydrocodone products.’’ Id. Shah further 

testified that Respondent appeared 

‘‘shocked’’ by this information and 

asked: ‘‘Oh is that right? We are ordering 

hydrocodone from you?’’ Id. at 49. Shah 

replied: ‘‘That is correct.’’ 8 Id. 

In his testimony, Respondent 

acknowledged that he had spoken to Mr. 

Shah and that Shah had said that ‘‘he 

couldn’t conduct business like this’’ and 

that ‘‘he wasn’t going to call [him] every 

time’’ because HDG’s system was not 

‘‘set up * * * to handle verbally 

notify[ing] me about my DEA 

usage.’’ 9 Id. at 544. However, 

Respondent maintained Mr. Shah did 

not ‘‘mention one item of any drugs 

being ordered from [HDG] on my DEA.’’ 

Id. Respondent also stated that he did 

not ‘‘understand why [Shah] was so 

adamantly violently yelling at [him] on 

the phone’’ and that he ‘‘really was taken 

aback.’’ Id. at 545. Respondent further 

testified that he never asked Shah (or 

Ms. B., the HDG sales rep.) what was 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 17699 

10The record also contains a February 21, 2008 

letter which Respondent faxed to HDG the same 

day. See GX 14, at 2; Tr. 541. Therein, Respondent 

wrote: ‘‘Please change the previous ordering 

arrangement for my account to holding all orders 

until I have been notified and give verbal 

authorization for them to be honored by The 

Harvard Group.’’ GX 14, at 2. According to 

Respondent, he wrote the letter because Robinson 

‘‘had skipped a month in paying me’’ and he ‘‘wasn’t 

willing to continue any sort of a relationship at all 

with him in any capacity until he was going to go 

ahead and honor * * * what I was working for him 

for. So I wasn’t going to extend the courtesy of 

trying to get his center accredited with him using 

my DEA * * * to get any supplies or anything 

without using me to accreditate him.’’ Tr. 541. 

11 In his October 27, 2008 letter to the DI, 

Respondent stated that he wrote the February 27 

letter because both HDG and Robinson ‘‘complained 

that they could not do business with all of this 

notification. I was extremely preoccupied at the 

time and again Dr. Robinson pleaded with me that 

he could not get orders filled for the operating room 

and that he would have to cancel surgeries as a 

result. Again, I trusted Dr. Robinson that he was just 

ordering anesthesia drugs and wrote the * * * 

letter to Harvard.’’ GX 23, at 8. 

12According to a DEA DI, the interview occurred 

on October 22, 2008. Tr. 225. 

13The Chief of the DEA Registration Unit testified 

that in order to log in and complete a renewal 

application, an applicant must type in seven items 

of information including the zip code of the 

registered address which must match exactly the 

information in the registration database. Tr. 129–30. 

14Pursuant to Federal Regulations, all registered 

manufacturers and distributors of various 

Continued 

being ordered on the account. Id. at 

571–72. 

The ALJ did not resolve the factual 

dispute as to whether Mr. Shah told 

Respondent that hydrocodone or other 

drugs were being ordered with his 

registration. However, I credit Shah’s 

testimony given that Respondent 

admitted that the conversation 

concerned his ‘‘DEA usage,’’ and it 

seems strange that Respondent would 

not have asked what type of drugs were 

being ordered. 

In addition, the ALJ generally found 

Respondent to be a less than credible 

witness. ALJ at 34. For example, while 

Respondent testified that he did not give 

Robinson authorization ‘‘to order 

supplies to do surgery in an 

unaccredited surgery center,’’ Tr. 625– 

26, he had previously written to the DI 

that the reason he told HDG to reinstate 

the account was because Robinson 

‘‘pleaded with me that he could not get 

orders filled for the operating room and 

that he would have to cancel surgeries 

as a result.’’ GX 23, at 8. Likewise, 

Respondent denied that he had ever 

been told that his registration was being 

used to order controlled substances, Tr. 

534, a statement which was 

contradicted by B.C., who was his own 

witness, and who had no reason to 

testify falsely. 

After the conversation, Respondent 

wrote a new letter 10 which he 

apparently faxed to Robinson, who then 

faxed it to HDG. See GX 15; Tr. 50. This 

letter, which is dated February 27, 2008, 

and which is on stationary of the 

University of California San Diego 

Medical Center reads: ‘‘Please Disregard 

All Previous Faxes Regarding 

Management of My Account and Allow 

Dr. Robinson’s Office to Place Orders as 

Needed. Thank You for Reinstating the 

Account At This Time.’’ GX 15. 

Respondent testified that he ‘‘had no 

problem writing this’’ because ‘‘no one 

had told me that there was any problem 

from the ordering standpoint, that they 

[the Robinsons] were ordering anything’’ 

with his DEA registration.11 Tr. 545. 

In his testimony Respondent also 

maintained that until he was 

interviewed by a DEA Diversion 

Investigator,12 he was unaware that 

‘‘some inordinate amount of Vicodin 

had been ordered on my DEA through 

the Harvard Drug Group,’’ that this was 

‘‘absolutely quite shocking’’ because ‘‘no 

one had ever said to me, ‘Is this okay,’ 

when I had actually put everything in 

place along the way for that not to 

happen.’’ Id. at 546. Respondent further 

testified that during the relevant time 

period, he never ‘‘dispensed Vicodin to 

a patient,’’ and that the last time he had 

been to the Anaheim Hills clinic was in 

‘‘later November of 07.’’ Id. at 547. As 

noted above, Respondent also testified 

that he was unaware that his registration 

was being used to order oral controlled 

substances from other companies. Id. at 

548. However, the ALJ found that 

Respondent knew or had reason to 

know that his registration was being 

misused. ALJ at 34. 

Regarding the events surrounding the 

submission of his renewal application, 

Respondent testified that he knew his 

registration was about to expire because 

several of the surgery centers where he 

worked (and which required that he 

submit his credentials) had told him so. 

Id. at 550–51. Respondent added that 

because he procrastinated in renewing 

his registration, he asked A.R., his 

fiance ́, to go online and fill out the form. 

Id. at 551. Respondent’s fiance ́ made 

several unsuccessful attempts to access 

the Web page (apparently because she 

inputted the zip code of Respondent’s 

registered address before it was changed 

by Alinka Robinson,13 see id. at 382–83) 

at which the renewal application is 

submitted. Id. at 379; 552. 

Both Respondent and his fiance ́

testified that the impending expiration 

of Respondent’s registration prompted 

several phone calls from Alinka 

Robinson. Id. at 380 (testimony of A.R; 

‘‘Alinka Robinson started calling * * * 

and saying that his DEA license is going 

to expire, his DEA license is going to 

expire’’). According to Respondent, ‘‘we 

had Alinka Robinson, Harrell Robinson 

calling incessantly asking why it hadn’t 

been renewed * * * It became * * * a 

state of almost * * * panic for us to get 

it done.’’ Id. at 552; see also id. at 640 

(‘‘Alinka was blowing up the phone 

night and day, ‘Where’s my renewal?’’’). 

When asked whether it concerned him 

that Alinka Robinson ‘‘was in a state of 

panic,’’ Respondent replied that he was 

‘‘very busy’’ doing anesthesia and did 

not think twice about it. Id. at 644. 

Respondent maintained that he 

trusted A.R. ‘‘to be very diligent’’ in 

completing the on-screen application 

and that while he did ‘‘check it over for 

a second before [he] sent it,’’ he ‘‘didn’t 

catch’’ the false answer to the question 

about whether his State license had 

been sanctioned. Id. at 564. Respondent 

further testified that he was 

‘‘[a]bsolutely not’’ trying ‘‘to deceive 

anybody.’’ Id. 

As noted above, Respondent 

maintained that he did not learn that his 

registered address had been changed 

until July 2008, when he renewed his 

registration. Id. at 640. While 

Respondent maintained that his 

registered address had been changed 

without consent, he admitted that he 

did not report this to DEA, id. at 641, 

even though ‘‘it was unfathomable to’’ 

him. Id. at 642. Nor, according to his 

own testimony, did he visit the 

Anaheim Hills clinic after he authorized 

Robinson to use his registration, to see 

what was going on there. Id. at 643. 

Respondent also admitted that at the 

time he agreed to allow Respondent to 

use his DEA number, he ‘‘absolutely’’ 

knew that Harrell Robinson had been 

accused of being involved in million 

dollar insurance fraud ring. Id. at 628. 

See also GX 23, at 5 (Respondent’s Oct. 

27, 2008 letter to DI; ‘‘[A]ll I knew about 

him was some information that I came 

across on the Internet. Specifically, 

allegedly Dr. Robinson was involved in 

some major insurance fraud ring and 

received more than one million dollars 

illegally. However, according to the 

article, Dr. Robinson has never been 

found guilty due to his non cooperation 

and evasion of prosecutors.’’). According 

to Respondent, he did not ask Robinson 

‘‘about his fraud and all the stuff related 

to it’’ because it did not ‘‘concern [him] 

when [he] did anesthesia for him.’’ Tr. 

656. 

According to a report obtained from 

DEA’s ARCOS system,14 approximately 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

17700 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 

controlled substances including schedule III 

narcotics such as combination hydrocodone drugs 

are required to report their distributions on a 

quarterly basis to DEA. 21 CFR 1304.33. 

15According to the DI, ‘‘[a]t Ms. Annan’s house 

we found about 6,000 tablets of hydrocodone. At 

Ms. Annan’s house we found about 10 bottles of 

hydrocodone in her garage.’’ Tr. 222. The DI then 

explained that each bottle contained about 500 

tablets. Id. It is not clear, however, whether the 

drugs found in the garage were all of the total found 

in Ms. Annan’s home or were in addition to those 

found in her house. 

250,000 dosage units of hydrocodone 

drugs were purchased under 

Respondent’s registration and 

distributed to the Anaheim Hills 

location during 2007 and 2008. See GX 

18, at 1 & 3 (showing 193,500 units in 

2008 and 53,800 in 2007); see also Tr. 

194. The ARCOS report further shows 

that while most of the drugs were 

obtained from HDG, 20,000 dosages 

units were purchased from A.F. Hauser, 

Inc., and 38,500 units were purchased 

from Top Rx. See GX 18, at 5–9; see also 

GX 8 (Top Rx invoices) and GX 20 (A.F. 

Hauser, Inc. Invoices). Most of the drugs 

were purchased after Respondent was 

told by B.C. that his registration was 

being used to order controlled 

substances. See id. Moreover, numerous 

purchases were made even after the 

February 2008 phone call during which 

Mr. Shah told Respondent that the 

clinic was ordering hydrocodone from 

HDG. See id. at 6–8; see also GX 17, at 

22–52. The purchases continued even 

after July 2008, when Respondent 

became aware that his registered 

address had been changed without his 

consent and Alinka Robinson was ‘‘in a 

state of panic’’ because he had not 

renewed his registration. GX 17, at 40– 

52; GX 18, at 8. 

As part of his investigation, the DI 

obtained delivery information from 

HDG and conducted surveillance of 

several deliveries that were made to the 

Anaheim Hills office. Tr. 215–16. On 

three occasions, the DI observed the 

deliveries being made, and several 

hours later, either Robinson or his wife 

remove the packages from the office and 

take them either to their home or to a 

parking lot. Id. at 218. According to the 

DI, the drugs were eventually delivered 

to Maggie Annan, who was previously 

identified by B.C. as an associate of the 

Robinsons. Id. at 426–27. 

Thereafter, search warrants were 

obtained and executed at five premises 

including Robinson’s Santa Ana clinic, 

the Anaheim Hills clinic, Robinson’s 

residence in Yorba Linda, and Ms. 

Annan’s residence in Santa Ana. Id. at 

219. While during the search of the 

Anaheim Hills clinic, 6,000 

hydrocodone tablets were delivered 

from HDG, no other hydrocodone was 

found in the office and there were no 

records such as invoices or a dispensing 

log. Id. at 220–21. However, at Ms. 

Annan’s house, the search party found 

six to ten invoices for hydrocodone 

purchases of about ‘‘6,000 pills each,’’ 

‘‘as well as 6,000 tablets of 

hydrocodone.’’ 15 Id. at 221–22. With 

respect to the disposition of the drugs, 

the DI testified that while Robinson had 

claimed that Annan asked him to order 

the drugs to give to poor people in 

Mexico, there were no records to 

support this claim and the DI had no 

idea what Ms. Annan did with the 

drugs. Id. at 223. 

The DI further testified that he had 

interviewed Harrell Robinson, who told 

him that Annan had ‘‘asked him to 

obtain a second registration to order 

these drugs,’’ and that ‘‘he contacted Dr. 

Bickman and asked him to allow him to 

use the registration to order drugs and 

supplies for the office and [that] he 

would pay [Bickman] $2,000 a month to 

do this.’’ Id. at 224. However, when 

asked by the Government whether 

Robinson had talked to Respondent 

‘‘about using his DEA registration for 

ordering controlled substances,’’ the DI 

replied: ‘‘Yes. During the interview it 

was based upon Dr. Robinson being 

asked by Maggie [Annan] to order more 

hydrocodone products in order to get 

more purchase[s] made other than the 

one registration so [Respondent’s] 

license was needed for that purpose.’’ Id. 

Beyond the fact that Robinson’s hearsay 

statement is of dubious reliability, I find 

that the DI’s testimony is too vague to 

conclude that Respondent had 

knowledge that Robinson’s purpose in 

initially obtaining his registration was to 

enable Annan to obtain more drugs. 

Regarding the Robinsons’ use of his 

registration, Respondent testified that he 

was not ‘‘okay with it’’ and that he felt 

‘‘that the numbers that it escalated to 

could have been totally avoided had I 

been notified even up front as early as 

when * * * the relationship started 

with Harvard.’’ Tr. 565. He further 

testified that ‘‘it’s so irresponsible to 

have let that happen * * * for people 

that knew,’’ and that with the amounts 

that were being ordered, he would have 

thought that there would have been ‘‘a 

check and balance * * * from 

Shamir[sic] Shah or whoever in a 

compliance role,’’ who would ‘‘have 

called to verify * * * that these 

amounts [were] being ordered.’’ Id. at 

566–67. He further asked: ‘‘Where am I 

supposed to get the information from, 

when the companies [and DEA] aren’t 

telling me?’’ Id. at 567. See also GX 23, 

at 6 (Resp. Ltr. to DI; ‘‘There was no 

mention by either Dr. Robinson or 

Harvard Group about consenting for Dr. 

Robinson or Alinka Robinson to 

knowingly order excessive quantities of 

oral pain medication on a regular basis 

with my DEA. Furthermore, it is 

incomprehensible that Harvard Drug 

Group would not have notified me that 

another person was using my DEA in a 

reckless and illegal manner.’’). 

Respondent further maintained that 

he told HDG that he ‘‘wanted to be 

notified’’ of the orders, but that HDG 

‘‘didn’t notify me’’ and asked ‘‘what else 

are you supposed to do?’’ Id. Yet on 

cross-examination, Respondent testified 

that he did not ask either Shah or Ms. 

B., the HDG sales rep., what Robinson 

was ordering with his registration. Id. at 

571–72. 

Finally, the Government asked 

Respondent whether he had designated 

anyone to maintain records of Dr. 

Robinson’s purchases. Id. at 580. 

Respondent stated that he ‘‘did not,’’ but 

that he assumed that Robinson would be 

doing it because ‘‘he owns a surgical 

center and knows the rules and 

regulations about how controlled 

substances * * * need to be logged and 

receipts need to be kept for a certain 

amount of time.’’ Id. 

Discussion 

Section 304(a) of the CSA provides 

that a ‘‘registration pursuant to section 

823 of this title to * * * dispense a 

controlled substance * * * may be 

suspended or revoked by the Attorney 

General upon a finding that the 

registrant * * * has materially falsified 

any application filed pursuant to or 

required by this subchapter,’’ or ‘‘has 

committed such acts as would render 

his registration under section 823 of this 

title inconsistent with the public 

interest as determined under such 

section.’’ 21 U.S.C. 824(a)(1) & (4). With 

respect to the latter inquiry, Congress 

directed 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. 

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

‘‘[T]hese factors are considered in the 

disjunctive.’’ Robert A. Leslie, 68 FR 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 17701 

16While Kungys involved a denaturalization 

proceeding, in other civil proceedings, courts have 

required that a party establish that a falsification is 

material by ‘‘clear, unequivocal, and convincing 

evidence’’ and not simply by a ‘‘preponderance of 

the evidence.’’ Driscoll v. Cebalo, 731 F.2d 878, 884 

(1984). In any event, the Government’s evidence on 

materiality would not even meet the preponderance 

standard. 

17This is not to say that every case of medical 

malpractice is not material to the Agency’s 

registration decision. Where, for example, there is 

evidence that a physician committed malpractice 

while being under the influence of a an illegally 

obtained controlled substance, the failure to 

disclose a State proceeding would be a material 

falsification even where a State board has imposed 

only a period of probation. However, here there is 

no evidence that Respondent was unlawfully under 

the influence of a controlled substance when he 

committed the acts which were the basis of the 

MBC proceeding. 

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 

revoke an existing registration or 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 

proving that the requirements for * * * 

revocation or suspension pursuant to 

section 304(a) * * * are satisfied.’’ 21 

CFR 1301.44(e); see also 21 CFR 

1301.44(d) (Government has ‘‘the burden 

of proving that the requirement for [a] 

registration pursuant to section 303 

* * * are not satisfied’’). However, 

where the Government satisfies its 

prima facie burden, the burden then 

shifts to the registrant to demonstrate 

why he can be entrusted with a new 

registration. Medicine ShoppeJonesborough, 73 FR 363, 380 (2008). 

The Material Falsification Allegation 

The Government argues, and the ALJ 

found, that Respondent materially 

falsified his 2008 renewal application 

because he provided a ‘‘no’’ answer to 

the question: ‘‘[h]as the applicant ever 

had a State professional license or 

controlled substance registration 

revoked, suspended, denied, restricted, 

or placed on probation, or is any such 

action pending?’’ Gov. Br. 24; ALJ at 31. 

It is undisputed that this answer was 

false because Respondent’s State 

medical license had previously been 

placed on probation based on what was, 

in essence, a case of malpractice. The 

ALJ further concluded that 

Respondent’s false answer was material, 

reasoning that ‘‘ ‘[a]nswers to the 

liability question[s] are always material 

because DEA relies on the answers to 

these questions to determine whether it 

is necessary to conduct an investigation 

prior to granting an application.’ ’’ ALJ at 

31 (quoting Theodore Neujahr, D.V.M., 

65 FR 5680, 5681 (2000); other citations 

omitted). Contrary to the ALJ’s 

understanding, the Supreme Court (and 

this Agency) have held otherwise. 

‘‘The most common formulation’’ of 

the concept of materiality is that ‘‘a 

concealment or misrepresentation is 

material if it ‘has a natural tendency to 

influence, or was capable of influencing, 

the decision of’ the decisionmaking 

body to which it was addressed.’’ 

Kungys v. United States, 485 U.S. 759, 

770 (1988) (quoting Weinstock v. United 

States, 231 F.2d 699, 701 (DC Cir. 1956) 

(other citation omitted)) (quoted in 

Samuel S. Jackson, 72 FR 23848, 23852 

(2007)); see also United States v. Wells, 

519 U.S. 482, 489 (1997) (quoting 

Kungys, 485 U.S. at 770). Most 

significantly for this proceeding, the 

Supreme Court has explained that ‘‘[i]t 

has never been the test of materiality 

that the misrepresentation or 

concealment would more likely than not 

have produced an erroneous decision, 

or even that it would more likely than 

not have triggered an investigation.’’ 

Kungys, 485 U.S. at 771 (emphasis 

added). Rather, the test is ‘‘whether the 

misrepresentation or concealment was 

predictably capable of affecting, i.e., had 

a natural tendency to affect, the official 

decision.’’ Id. ‘‘ ‘[T]he ultimate finding of 

materiality turns on an interpretation of 

substantive law,’ ’’ id. at 772 (int. 

quotations and other citation omitted), 

and must be met ‘‘by evidence that is 

clear, unequivocal, and 

convincing.’’ 16 Id. 

As the above makes clear, the relevant 

decision for assessing whether a false 

statement is material is not the decision 

to conduct an investigation, but rather 

the decision as to whether an applicant 

is entitled to be registered. The 

Government’s evidence does not, 

however, establish that Respondent’s 

failure to disclose that the State Board 

had placed him on probation was 

capable of influencing the decision to 

grant his renewal application. 

Notably, at the time he submitted the 

application, Respondent had a current 

State medical license and was 

authorized under California law to 

dispense controlled substances; he thus 

met the CSA’s statutory requirement for 

holding a registration that he be 

‘‘authorized to dispense * * * 

controlled substances under the laws of 

the State in which he practices.’’ 21 

U.S.C. 823(f); see also id. § 824(a)(3) 

(authorizing the suspension or 

revocation of a registration upon a 

finding that ‘‘the registrant * * * has 

had his State license or registration 

suspended, revoked, or denied by 

competent State authority and is no 

longer authorized by State law to engage 

in the * * * dispensing of controlled 

substances’’). Nor had the State Board 

recommended that his State or Federal 

controlled substance authority be 

suspended or revoked. Id. § 823(f)(1). 

Moreover, the conduct which was the 

basis of the State Board’s order does not 

implicate any of the other grounds 

provided for in the CSA for revoking a 

registration or denying an application. 

More specifically, the Board Order was 

not based on Respondent’s having been 

convicted of a felony related to 

controlled substances under either State 

or Federal law, his having diverted or 

abused controlled substances, his failure 

to comply with other State or Federal 

controlled substance regulations, or his 

having committed an act of health care 

fraud resulting in his exclusion from 

participating in a program pursuant to 

42 U.S.C. 1320a–7(a). See 21 U.S.C. 

824(a)(2), (4), (5); see also 21 U.S.C. 

823(f). 

Rather, the only evidence in the 

record is that Respondent failed to 

properly administer anesthesia to a 

patient. DEA does not, however, have 

authority to revoke a registration or 

deny an application simply because a 

physician has committed an act of 

medical malpractice.17 See generally 

Gonzales v. Oregon, 546 U.S. 243 

(2006). Short of the Medical Board’s 

having concluded that Respondent’s 

conduct posed such a risk to patients as 

to warrant the suspension or revocation 

of his medical license (and authority to 

prescribe controlled substances under 

State law), DEA could not have denied 

his renewal application. Thus, 

Respondent’s falsification was not 

‘‘capable of influencing’’ the Agency’s 

decision and was thus not material. 

Kungys, 485 U.S. at 772. Accordingly, I 

concluded that the Government has 

failed to prove this allegation. 

The Public Interest Allegations 

The Government argues that the 

evidence relevant to factors two 

(Respondent’s experience in dispensing 

controlled substances), four 

(Respondent’s compliance with 

applicable laws related to controlled 

substances), and five (such other 

conduct which may threaten public 

health and safety) supports the 

revocation of Respondent’s registration. 

Gov. Br. 18, 22. Specifically, the 

Government argues that Respondent 

unlawfully distributed several hundred 

thousand dosage units of hydrocodone, 

a schedule III controlled substance, to 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

17702 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 

18The Government did not argue that Respondent 

is liable for Robinson’s unlawful conduct under 

either a conspiracy or aiding and abetting theory. 

19Under a DEA regulation, ‘‘[a] separate 

registration is required for each principal place of 

* * * professional practice at one general physical 

location where controlled substances are * * * 

dispensed by a person.’’ 21 CFR 1301.12(a); see also 

21 U.S.C. 822(e). While the regulation exempts from 

the separate registration requirement ‘‘[a]n office 

used by a practitioner (who is registered at another 

location) where controlled substances are 

prescribed but neither administered nor otherwise 

dispensed as a regular part of the professional 

practice of the practitioner at such office, and where 

no such supplies of controlled substances are 

maintained,’’ 21 CFR 1301.12(b)(3), it is clear that 

controlled substances were maintained at the clinic 

and that someone had to have been registered there 

for it to lawfully obtain the controlled substances 

that were used to anesthetize patients even when 

it was still accredited. 

20 I acknowledge that B.C. testified that the 

account was with Ready RX, but various documents 

show that the account was with Top RX. I conclude, 

however, that this inconsistency is not material as 

the substance of B.C.’s testimony was to relate the 

conduct of the Robinsons and not to identify the 

specific company from which they were purchasing 

controlled substances. 

21 In his exceptions, Respondent contends that 

the ALJ erred because she concluded ‘‘that 

California law prohibits surgery in an ambulatory 

surgery center unless it is accreditated [sic].’’ Exc. 

at 12. Respondent further contends that Cal. ‘‘Health 

and Safety Code section 1204(b) applies only to 

ambulatory surgery centers that are partially or 

totally owned by physicians,’’ that California law 

does not prohibit the performance of ambulatory 

surgery at a surgery center, which is not owned by 

a physician but which is licensed ‘‘pursuant to 

Health and Safety Code sections 1200 et seq.,’’ and 

that there is no evidence as to who was the actual 

owner of the Chaparral Court clinic, even though 

‘‘it was clearly operated by Harrell Robinson.’’ Id. 

Respondent misstates California law, which 

clearly provides that ‘‘[a] surgical clinic does not 

include any place or establishment owned or leased 

and operated as a clinic or office by one or more 

physicians * * * in individual or group practice, 

regardless of the name used publicly to identify the 

place or establishment.’’ Cal. Health & Saf. Code 

§ 1204(b)(1) (emphasis added). Moreover, if, as 

Respondent now contends in his exceptions (and in 

contrast to his position he took in his October 2008 

an unknown and unregistered person. 

Id. at 18–19. 

The Government argues that even if 

Harrell Robinson and Maggie Annan 

‘‘operated without his knowledge or 

consent, Respondent still violated the 

[CSA] by failing to supervise their 

activities.’’ Id. at 20 (citing 21 CFR 

1301.71(a) & (b)(14)). The Government 

further argues that under agency 

precedent, Respondent is strictly liable 

for the misuse of his registration 

because he entrusted his registration to 

these persons. Id. at 23 (quoting Harrell 

Robinson, M.D., 74 FR 61370, 61377–78 

(2009) (citing Rose Mary Jacinta Lewis, 

M.D., 72 FR 4035 (2007)). Finally, the 

Government argues that Respondent 

violated the CSA (and California law) 

because he failed ‘‘to maintain 

dispensing records as required by 21 

CFR 1304.22(c).’’ Id. at 20 (also citing 21 

U.S.C. 827(b) and 21 CFR 1304.04(a)); 

see also id. at 21 (citing Cal. Health & 

Safety Code § 11190(c)(1) & (G.2)). 

Citing the CSA’s provisions defining 

the terms ‘‘distribute’’ and ‘‘deliver,’’ the 

ALJ reasoned that the ‘‘constructive 

transfer of a controlled substance is 

included in the meaning of 

distribution.’’ ALJ at 32 (citing 21 U.S.C. 

802(8) & (10)). While acknowledging 

that ‘‘[t]he record does not establish that 

Respondent had actual knowledge of 

every order placed with Harvard Drug 

using his DEA number,’’ the ALJ found 

that ‘‘[t]he record conclusively 

establishes * * * that Respondent had 

ample reason to suspect that his 

registration was being misused and that 

he chose not to act on those suspicions.’’ 

Id. Finding that his testimony as to why 

he had authorized Robinson to use his 

DEA registration number and his 

explanations of his various instructions 

to Harvard lacked credibility, id. at 32– 

33, the ALJ further found ‘‘that 

Respondent knew or should have 

known that Dr. Robinson was using [his] 

DEA registration number to order 

controlled substances that were likely to 

be diverted,’’ that ‘‘Respondent engaged 

in [the] distribution of those [controlled] 

substances,’’ and that these distributions 

violated the CSA. Id. at 33 (citing 21 

U.S.C. 841(a)). 

I need not decide whether the 

evidence is sufficient to support the 

ALJ’s finding that Respondent 

constructively transferred controlled 

substances and thus distributed them in 

violation of 21 U.S.C. 841(a).18 Under 

the public interest standard, DEA can 

consider a broader range of conduct 

than that which supports a finding of a 

criminal violation of the CSA. See 21 

U.S.C. 823(f). 

Here, the evidence is clear that at least 

from November 19, 2007, Respondent 

expressly authorized Robinson to use 

his DEA registration to order controlled 

substances. Respondent offered no 

explanation as to why Robinson, 

beginning on that date, then needed to 

use Respondent’s registration (as 

opposed to his own) to obtain controlled 

substances for the clinic; indeed, 

Respondent’s testimony that he had 

been performing anesthesia at the clinic 

for at least four months at that time begs 

the question: whose registration had 

been previously used to obtain the 

controlled substances which 

Respondent used to anesthetize patients 

at the clinic?19

Moreover, were I to credit 

Respondent’s testimony that: (1) He had 

only authorized Robinson to use his 

registration to order controlled 

substances necessary to perform 

anesthesia; and (2) he did not create the 

November 19, 2007 letter memorializing 

this after the fact (as the Government 

suggests); it is significant that B.C., who 

was his own witness, testified that after 

she was terminated by the Robinsons, 

an event which occurred only two 

weeks after he wrote the letter, she 

called Respondent and told him about 

the Ready Rx 20 account and ‘‘everything 

that was going on,’’ which ‘‘shocked’’ 

Respondent. Respondent’s testimony 

that he had never heard of this account 

until the hearing or that his DEA 

registration was being used to order oral 

controlled substances (i.e., hydrocodone 

drugs) is simply not credible. 

Likewise, Mr. Shah testified that 

during a February 2008 phone 

conversation with Respondent, the latter 

asked Shah ‘‘what kind of products’’ 

Harvard was shipping and Shah told 

him hydrocodone, which again shocked 

Respondent. ALJ at 16 (citing Tr. 48– 

49). While Respondent again professed 

that Shah said no such thing, even after 

Shah told him that HDG was not able ‘‘to 

verbally notify me about my DEA 

usage,’’ Respondent authorized 

Robinson’s office to ‘‘place orders as 

needed.’’ 

Yet at no time thereafter did 

Respondent go to the Chaparral Court 

clinic to determine whether Robinson 

was actually complying with the Nov. 

19 letter by ordering only peri-operative 

anesthesia drugs and not oral analgesics, 

as well as whether Robinson was, 

notwithstanding the clinic’s lack of 

accreditation, still performing surgeries 

and had a need for any controlled 

substances. Indeed, Respondent’s 

various statements and testimony 

regarding why he wrote the letter to 

HDG which authorized Robinson to 

‘‘place as orders as needed’’ are 

fundamentally inconsistent. 

For example, in his October 2008 

letter to the DI, Respondent initially 

wrote he ‘‘was unaware of whether or 

not Harvard had knowledge that they 

were sending drugs to a center that was 

unaccredited and not legally performing 

surgery.’’ GX 23, at 7. Continuing, he 

wrote that ‘‘[i]n no way did it even occur 

to me that my allowing Dr. Robinson to 

order his supplies and anesthesia 

related drugs could lead to this 

deception because any law abiding 

company would have confirmed the 

status of Dr. Robinson’s center and 

questioned why they were using my 

DEA to supply an unaccredited center 

not performing surgery.’’ Id. 

Given Respondent’s statements that 

the center ‘‘was not legally performing 

surgery,’’ Robinson had no lawful need 

to order any controlled substances.21

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 17703 

letter), it was legal to perform surgery at the 

Chaparral Court clinic, because, notwithstanding its 

loss of accreditation, the clinic was licensed as a 

specialty clinic, see id.; this begs the question of 

why Respondent stopped providing anesthesia for 

the surgeries that Robinson performed there and 

why he purportedly was helping Robinson to obtain 

a new accreditation. See also Cal. Health & Safety 

Code (listing criteria for operating in ‘‘an outpatient 

setting’’). Respondent did not address this 

inconsistency. 

22To make clear, this is not a case where a 

practitioner simply provided his DEA registration to 

a health care facility as part of the credentialing 

process and a person at the facility subsequently 

used his registration for unlawful purposes. Rather, 

Respondent affirmatively authorized Respondent to 

use his registration to obtain controlled substances, 

and is thus strictly liable for the misuse of his 

registration. 

Moreover, even if it is the case—as 

contended by Respondent but without 

any credible support in the record, see 

Resp. Exc. at 12—that the center would 

have had to have stocks of anesthesia 

drugs on hand prior to obtaining reaccreditation, Respondent offered no 

evidence that the center was even close 

to obtaining re-accreditation. To the 

contrary, Respondent testified that the 

accreditation documents had yet to be 

finalized and submitted. 

Moreover, even if the clinic was 

required to have stocks of anesthesia 

drugs on hand prior to obtaining reaccreditation, it is not clear why this 

would have required that Robinson have 

authority to use Respondent’s 

registration for at least eight months. 

Indeed, given that the controlled 

substances that Respondent testified 

were necessary to perform anesthesia 

(fentanyl and midazolam) are widely 

available, it seems that any drugs the 

clinic would have needed to have on 

hand as part of the re-accreditation 

process could have been obtained 

through a single order from HDG and at 

a time shortly before any inspection by 

the accreditation authority. 

Even were I to credit Respondent’s 

testimony that he only authorized 

Robinson to order controlled substances 

used as peri-operative anesthesia drugs, 

because these drugs were being ordered 

under his registration, Respondent was 

required to maintain records showing 

the receipt and disposition of the drugs 

as well as initial inventories of them. 

See 21 U.S.C. 827(a) (‘‘every registrant 

* * * shall * * * as soon * * * as 

such registrant first engages in the 

* * * dispensing of controlled 

substances * * * make a complete and 

accurate record of all stocks thereof on 

hand’’); id. § 827(a)(3) (‘‘every registrant 

* * * dispensing a controlled substance 

or substances shall maintain, on a 

current basis, a complete and accurate 

record of each such substance * * * 

received, sold, delivered, or otherwise 

disposed of by him’’). Yet again, 

Respondent never went to the Chaparral 

Court clinic to determine whether the 

required records were being maintained. 

Also, while Respondent asserted that 

his registered address had been changed 

to the Chaparral Court address without 

his consent; that he did not learn of this 

until July 2008, when he submitted his 

renewal application; and that ‘‘it was 

unfathomable to him’’; he did not report 

this to DEA. He likewise stated that he 

did not think twice about the phone 

calls he received from Alinka Robinson, 

who was in a state of ‘‘panic’’ because he 

had yet to renew his registration. 

Accordingly, I conclude that even if 

Respondent was initially unaware that 

Robinson was using his registration for 

unlawful purposes, the evidence clearly 

shows that at various junctures 

(including within weeks of his 

authorizing Robinson to use the 

registration), Respondent clearly had 

reason to know that his registration was 

being misused and did nothing to 

prevent it. See 21 CFR 1301.71(a). In 

any event, under DEA precedent, a 

registrant is strictly liable for the 

misconduct of those persons who he 

authorizes to act under his 

registration.22 See Paul Volkman, 73 FR 

30630, 30644 n.42 (2008); Rose Mary 

Jacinta Lewis, 72 FR at 4041. 

Moreover, Respondent was 

responsible for maintaining records for 

the controlled substances and yet did 

nothing to ensure that the records were 

being kept. Accordingly, I conclude that 

the evidence pertinent to factors four 

(Respondent’s compliance with 

applicable controlled substance laws) 

and five (other conduct which may 

threaten public health and safety), 

establishes that Respondent has 

committed acts which render his 

registration inconsistent with the public 

interest. 21 U.S.C. 824(a)(4). 

Sanction 

Under Agency precedent, where, as 

here, the Government has made out a 

prima facie case that a registrant has 

committed acts which render his 

‘‘registration inconsistent with the 

public interest,’’ he must ‘‘ ‘present[] 

sufficient mitigating evidence to assure 

the Administrator that [he] can be 

entrusted with the responsibility carried 

by such a registration.’ ’’ 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), 

this Agency has repeatedly held that 

where a registrant has committed acts 

inconsistent with the public interest, the 

registrant must accept responsibility for 

[his] actions and demonstrate that [he] 

will not engage in future misconduct.’’ 

Medicine Shoppe-Jonesborough, 73 FR 

364 (2008). As the Sixth Circuit has 

recognized, this Agency ‘‘properly 

consider[s]’’ a registrant’s admission of 

fault and his candor during the 

investigation and hearing to be 

‘‘important factors’’ in the public interest 

determination. See Hoxie, 419 F.3d at 

483. 

The ALJ found that it ‘‘is abundantly 

clear from Respondent’s testimony and 

his letters to [the DI, that] Respondent 

does not admit to any wrongdoing or 

accept any responsibility for the 120,000 

dosage units of hydrocodone that were 

ordered from [HDG] using his’’ 

registration, and that ‘‘Respondent knew 

or should have known that his * * * 

registration was being misused.’’ ALJ at 

33. The ALJ thus concluded that 

‘‘Respondent’s refusal to acknowledge 

his wrongdoing offers little hope for the 

prospect that if he retains his 

registration he will act more responsibly 

in the future.’’ Id. 

I agree with the ALJ. Respondent’s 

testimony was riddled with material 

inconsistencies, including his 

explanation as to why Robinson needed 

to use his registration to order drugs for 

nearly a year if the facility was not 

legally authorized to perform surgery. 

Moreover, his claim that he lacked 

knowledge that the Robinsons were 

misusing his registration to obtain 

hydrocodone was contradicted even by 

his own witness. 

Finally, Respondent’s attempt to shift 

responsibility from himself to HDG is 

wholly unpersuasive. Whatever 

responsibility HDG bears for the 

diversion which likely occurred here is 

irrelevant. As found above, Respondent 

authorized Robinson to use his 

registration and then did nothing to 

determine how it was being used. He 

did not go to the clinic to see whether 

Robinson was maintaining records for 

even those drugs which would be used 

to provide anesthesia, or to see whether 

Robinson was, in fact, still performing 

surgery after the clinic lost its 

accreditation and could no longer 

legally do so. And even had I credited 

his testimony that HDG’s personnel did 

not notify him that Robinson was 

ordering hydrocodone with his 

registration, his assertion that there was 

nothing else he could do to obtain this 

information is patently absurd given his 

admission that he never asked either 

Mr. Shah or Ms. B. what drugs were 

being ordered from HDG. 

Thus, I conclude that Respondent’s 

assertion that he was not ‘‘okay’’ with 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

17704 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 

1See 21 CFR 1308.12(b)(1)(ix) & (c)(9). According 

to the FDA-approved package insert for fentanyl 

citrate injection, a dosage of 0.1 mg in 2 ml. 

solution is ‘‘approximately equivalent in analgesic 

activity to 10 mg of morphine’’; fentanyl is thus 

approximately 100 times more powerful than 

morphine. Its approved uses are primarily for 

analgesic action ‘‘during anesthetic periods, 

premedication, induction and maintenance, and in 

the immediate postoperative period’’ as needed, and 

also as ‘‘a narcotic analgesic supplement in general 

or regional anesthesia.’’ Other uses include 

‘‘administration with a neuroleptic such as 

droperidol injection as an anesthetic premedication, 

for the induction of anesthesia, and as an adjunct 

in the maintenance of general and regional 

anesthesia,’’ and ‘‘as [an] anesthetic agent with 

oxygen in selected high risk patients, such as those 

undergoing open heart surgery or certain 

complicated neurological or orthopedic 

procedures.’’ 

what happened is simply a case of 

crying crocodile tears. Because 

Respondent has not accepted 

responsibility for his misconduct and 

that misconduct manifests an egregious 

disregard for his responsibilities as a 

DEA registrant, I hold that Respondent 

has not rebutted the Government’s 

prima facie showing that his continued 

registration is ‘‘inconsistent with the 

public interest.’’ 21 U.S.C. 824(a)(4). 

Accordingly, Respondent’s registration 

will be revoked and any pending 

application will be denied. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) & 824(a)(4), as well 

as by 28 CFR 0.100(b) & 0.104, I order 

that DEA Certificate of Registration, 

BB3698632, issued to Scott C. Bickman, 

M.D., be, and it hereby is, revoked. I 

further order that any application for 

renewal or modification of such 

registration be, and it hereby is, denied. 

This Order is effective April 29, 2011. 

Dated: March 22, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–7393 Filed 3–29–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Roger A. Pellmann, M.D.; Revocation 

of Registration 

On January 29, 2010, I, the Deputy 

Administrator of the Drug Enforcement 

Administration, issued an Order to 

Show Cause and Immediate Suspension 

of Registration (Order) to Roger A. 

Pellmann, M.D. (Respondent), of 

Germantown, Wisconsin. The Order 

proposed the revocation of 

Respondent’s registration, AP1892822, 

on the ground that his ‘‘continued 

registration is inconsistent with the 

public interest, as that term is defined 

in 21 U.S.C. 823(f) and (g)(2)(E)(i).’’ 

Order, at 1. 

The Order alleged that Respondent 

‘‘possessed and dispensed controlled 

substances at 3129 S. Ridge Crest, New 

Berlin, Wisconsin,’’ an unregistered 

location, in violation of 21 U.S.C. 

841(a)(1). Order, at 1. The Order further 

alleged that beginning ‘‘in 

approximately June 2009,’’ Respondent 

‘‘prescribed controlled substances to an 

employee for other than legitimate 

medical purposes,’’ in violation of 21 

U.S.C. 841(a)(1) and 21 CFR 1306.04. Id. 

at 2. The Order also alleged that at 

Respondent’s ‘‘request,’’ a local 

pharmacy dispensed controlled 

substances which were ‘‘returned’’ to 

Respondent for his ‘‘personal use,’’ in 

violation of 21 U.S.C. 843(a)(3). Id. 

Next, the Order alleged that an 

‘‘accountability audit performed at 

[Respondent’s] office in November 

2009’’ found ‘‘an unexplained shortage 

of approximately 10,470 fentanyl citrate 

0.05 mg/ml (2 ml ampule) during the 

first audit and an unexplained shortage 

o[f] approximately 9,556 fentanyl citrate 

0.05 mg/ml (2 ml ampule) during the 

second audit.’’ Id. The Order also 

alleged that ‘‘accountability audits for 

morphine sulfate indicated a shortage of 

approximately 780 units of morphine 

sulfate injection 15 mg/ml (20 ml vial); 

1825 units of morphine sulfate injection 

10 mg/ml (1 ml vial); 550 units of 

morphine sulfate injection 8 mg/ml (1 

ml vial); and 200 units of morphine 

sulfate injection 5 mg/ml (1 ml vial).’’ Id. 

Finally, the Order alleged that ‘‘[n]o 

initial inventory was taken upon the 

establishment of the registered location, 

nor was a biennial inventory taken of 

the controlled substances on the 

premises of the registered location every 

two years’’ and that ‘‘records were not 

properly maintained for the dispensed 

controlled substances.’’ Id. (citing 21 

CFR 1304.11, 1304.11(b) & (c), and 

1304.22(c)). Based on the above, I 

concluded that Respondent’s continued 

registration during these proceedings 

‘‘constitutes an imminent danger to the 

public health and safety’’ and 

immediately suspended his registration. 

Id. (citing 21 U.S.C. 824(d)). 

On February 24, 2010, Respondent 

timely filed a request for a hearing on 

the allegations. The matter was placed 

on the docket of the DEA 

Administrative Law Judges (ALJ) and 

was set for hearing on June 22, 2010. 

Order Terminating Proceeding, at 1. 

However, on June 7, 2010, counsel for 

Respondent notified the ALJ that 

following Respondent’s criminal 

conviction after trial ‘‘on facts related to 

the allegations set forth’’ in the Order, he 

‘‘no longer wished to pursue a hearing.’’ 

Id. The same day, Respondent’s Counsel 

also wrote a letter to the ALJ stating that 

he was ‘‘waiving his opportunity to 

participate in the hearing’’ and 

submitting his statement of facts and his 

position. Letter from Adam C. Essling 

(June 7, 2010), at 1 (citing 21 CFR 

1301.43(c)). 

Mr. Essling’s letter additionally stated 

that Respondent ‘‘maintains that his 

registration is not inconsistent with 

[the] public interest under 21 U.S.C. 

823(f).’’ Id. More specifically, the letter 

related that Respondent ‘‘maintains that 

[J.E.] has been a patient of his since 

2005’’ and that ‘‘[a]ll of the controlled 

substances provided to [J.E.] were for a 

legitimate purpose.’’ Id. However, the 

letter conceded that Respondent ‘‘did 

not maintain a proper inventory or 

records for the controlled substances 

dispensed within the scope of his 

practice.’’ Id. 

By order of June 8, 2010, the ALJ 

terminated the proceeding. Order 

Terminating Proceeding, at 2. 

Thereafter, the Investigative Record was 

forwarded to me for Final Agency 

Action. 

Based on relevant evidence contained 

in the Investigative Record, I conclude 

that Respondent has committed acts 

which render his registration 

‘‘inconsistent with the public interest.’’ 

21 U.S.C. 824(a)(4). I will therefore, 

order that Respondent’s registration be 

revoked and that any pending 

applications to renew or modify his 

registration be denied. I make the 

following findings of fact. 

Findings 

Respondent is a physician licensed by 

the State of Wisconsin who practices 

radiology. Respondent also holds DEA 

Certificate of Registration, AP1892822; 

the registration, which does not expire 

until March 31, 2011, authorizes him to 

dispense controlled substances as a 

practitioner at the registered location of 

CMI—Center for Medical Imaging, W178 

N9912 Rivercrest Drive, Suite 102, 

Germantown, Wisconsin (‘‘CMI,’’ or 

‘‘Germantown clinic’’). Certificate of 

Registration Status (March 11, 2010). 

However, on January 29, pursuant to my 

authority under 21 U.S.C. 824(d), I 

ordered that Respondent’s registration 

be immediately suspended; Respondent 

was served with the Order on February 

2, 2010. 

On September 4, 2009, a confidential 

source (CI) informed a DEA Diversion 

Investigator (DI) that Respondent had 

‘‘been providing [J.E.] with large 

quantities of liquid Fentanyl and 

morphine sulfate, both of which are 

Schedule II controlled substances,1 for 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES