8194 Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 06–62] 

Jeri Hassman, M.D.; Denial of 

Application 

On June 1, 2006, the Deputy Assistant 

Administrator, Office of Diversion 

Control, Drug Enforcement 

Administration issued an Order to Show 

Cause to Jeri Hassman, M.D. 

(Respondent), of Tucson, Arizona. The 

Show Cause Order proposed the denial 

of Respondent’s application for a new 

DEA Certificate of Registration as a 

practitioner, authorizing her to dispense 

controlled substances in schedules II 

through V, on the grounds that the 

Respondent had ‘‘been convicted of a 

felony under the Controlled Substances 

Act, [had] materially falsified [her] 

application, and ha[d] committed such 

other acts as would render [her] 

registration under 21 U.S.C. 823 

inconsistent with the public interest.’’ 

ALJ Ex. 1, at 1 (citing 21 U.S.C. 

824(a)(1)(2) and (4), 824(a) and 823). 

More specifically, the Show Cause 

Order alleged that on November 1, 2002, 

DEA had immediately suspended 

Respondent’s DEA registration on the 

ground that she ‘‘regularly engaged in 

the practice of prescribing excessive 

amounts of controlled substances * * * 

to patients for no legitimate medical 

purpose.’’ Id. at 1–2. The Show Cause 

Order next alleged that patients to 

whom she had prescribed controlled 

substances had died of overdoses. Id. at 

2–3. 

Next, the Show Cause Order alleged 

that Respondent ‘‘prescribed excessive 

quantities of controlled substances to 

patients, including frequent early refills’’ 

to a number of other patients. Id. at 3. 

The Show Cause Order alleged that 

Respondent: 

generally failed to adequately evaluate 

patients, failed to conduct complete physical 

examinations, failed to obtain adequate 

histories, failed to include pain ratings, failed 

to determine the exact location or character 

of the pain, failed to obtain information 

concerning previous treatment from other 

physicians or medication used. 

Id. In addition, the Show Cause Order 

stated that ‘‘[d]espite these inadequate 

evaluations, [Respondent] immediately 

prescribed controlled substances to 

these patients.’’ Id. 

The Order to Show Cause also alleged 

that Respondent was ‘‘made aware of 

possible diversion incidents but 

continued to prescribe controlled 

substances for patients who were 

engaged in diversion.’’ Id. at 4. The 

Show Cause Order related five known 

incidents involving (1) F.L. and his son 

B.L., both patients of Respondent; (2) & 

(3) J.O. and her husband W.O., both 

patients of Respondent; (4) M.H., P.H., 

and A.B., a mother and two ‘‘daughters’’, 

all patients of Respondent; and (5) S.R., 

a patient of Respondent. Id. at 4–6. 

The Show Cause Order further alleged 

that on January 29, 2004, Respondent 

pled guilty to ‘‘four felony violations of 

18 U.S.C. 3 involving controlled 

substances: Accessory After the Fact to 

Possession of Controlled Substances by 

Misrepresentation, Fraud, Forgery, 

Deception or Subterfuge, 21 U.S.C. 

843(a)(3).’’ Id. at 6. 

Next, the Show Cause Order alleged 

that on March 10, 2004, Respondent 

‘‘entered into a Consent Agreement with 

the Arizona Medical Board (the Board), 

in which the Board found that 

[Respondent] failed in many ways to 

properly care for [her] patients, 

including the prescribing of excessive 

amounts of controlled substances.’’ Id. 

According to the Show Cause Order: 

The Board also found that [Respondent] 

failed to conduct physical examinations, 

failed to obtain adequate patient histories 

and failed to obtain prior medical records. 

The Board also found that [her] patient notes 

often did not provide sufficient information 

to support the diagnoses, justify the 

treatments, accurately document the results, 

or indicate advice and cautionary warnings 

provided to the patients. 

* * * Under the Consent Agreement the 

Board found [Respondent] guilty of 

unprofessional conduct and placed 

[Respondent’s] Arizona medical license on 

probation for two years from the effective 

date of the Consent Agreement. 

Id. 

Finally, the Show Cause Order alleged 

that Respondent materially falsified her 

application, when, on January 28, 2005, 

Respondent applied for her DEA 

registration, she marked ‘‘no’’ to 

question 4(d), which ‘‘asked, in 

pertinent part, whether [Respondent] 

had ever had a State professional license 

revoked, suspended or placed upon 

probation.’’ Id. 

Respondent timely requested a 

hearing on the allegations, ALJ Ex. 2, 

and the matter was placed on the docket 

of the Agency’s Administrative Law 

Judges (ALJ). Following pre-hearing 

procedures, a hearing was held on 

January 22–26, 2007 and February 27 to 

March 2, 2007, in Tucson, Arizona. 

Moreover, on March 13, 2007, the ALJ 

conducted a transcribed telephone 

conference at which Respondent gave 

her closing argument. Thereafter, both 

parties filed post-hearing briefs. 

On October 9, 2008 the ALJ issued her 

Opinion and Recommended Decision 

(ALJ). With respect to factor one (the 

recommendation of the State licensing 

board), the ALJ noted that, while 

Respondent has twice been placed on 

probation and either censured or 

reprimanded, she currently holds an 

active, unrestricted medical license, and 

that this factor weighs in favor of her 

continued registration. ALJ at 147–48. 

With respect to factor two 

(Respondent’s experience in dispensing 

controlled substances) and factor four 

(Respondent’s compliance with 

applicable laws relating to controlled 

substances), the ALJ concluded that the 

Government had established that 

Respondent issued prescriptions to two 

persons (H.T. and R.T.) which lacked a 

legitimate medical purpose. ALJ at 150. 

The ALJ reasoned, however, that these 

were ‘‘only two patients out of more 

than 900 whom Respondent was 

treating at that time,’’ and thus the 

Government had not shown that 

‘‘Respondent’s overall medical practices 

[were] consistently lacking in legitimate 

purpose.’’ Id. at 150. 

The ALJ specifically rejected the 

evidence of the Government’s Expert 

with respect to twenty-three other 

patients, noting that various physicians 

who testified on behalf of Respondent 

had disagreed with the conclusions of 

the Government’s Expert. Id. at 151. 

According to the ALJ, this was ‘‘not to 

minimize the seriousness of the 

Respondent’s cavalier attitude toward 

handling controlled substances during 

2001 and 2002, but rather to 

demonstrate that it is not clear that her 

general treatment practices were lacking 

in medical purpose.’’ Id. 

In support of her conclusion, the ALJ 

cited various areas in which she 

maintained ‘‘that there was no clear 

consensus in the medical community 

regarding which practices were required 

to meet the standard of care during 2001 

and 2002.’’ Id. According to the ALJ, 

these areas included the role of physical 

examinations in treating chronic pain 

patients, the use of laboratory tests, the 

need to refer patients to other doctors as 

part of the course of treatment, 

appropriate dosage levels of controlled 

substances for treating chronic pain, and 

the propriety of prescribing both long 

and short-acting opioids 

simultaneously. Id. 

The ALJ also rejected the 

Government’s contention that 

Respondent’s falsification of H.T.’s 

medical record (who performed 

multiple undercover visits and wore a 

recording device) justified the denial of 

her application. Id. at 153–55. While 

acknowledging that ‘‘[i]t is indeed 

disturbing that the Respondent 

apparently altered H.T.’s medical chart 

to include a physical examination that 

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Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 8195 

1The ALJ also noted that a 2002 DEA Audit of 

controlled substances which Respondent physically 

dispensed had found that Respondent was unable 

to account for 150 dosage units out of a total of 

7,560 dosage units which were on hand. Id. at 153. 

DEA Investigators also found that Respondent had 

failed to keep receiving records for samples of 

controlled substances which her office received, 

that the records did not contain all of the 

information required by regulations, and that some 

records may have been missing because Respondent 

was not aware that she was required to keep them 

for two years. Id. I agree with the ALJ that these 

deficiencies are not sufficient by themselves to 

justify denying her application. 

Finally, the ALJ rejected the Government’s 

contention that Respondent had materially falsified 

her application because she answered ‘‘no’’ to the 

question whether her State license had ever been 

sanctioned. Id. at 160. The ALJ found that 

Respondent had attached to her application a letter 

from the Arizona Medical Board which indicated 

that she would ‘‘continue to be monitored every six 

months until the end of her probation in March 

2007.’’ Id. (quoting GX 3, at 4). According to 

Respondent, based on the wording of the letter she 

believed that she—and not her medical license— 

had been placed on probation by the Board. Id. In 

light of Respondent’s having provided the letter 

with her application, as well as her having 

truthfully answered the other questions on the 

application, I agree with the ALJ that she ‘‘lacked 

the intent to deceive the’’ Agency. Id. at 161. 

was not reflected in the recorded 

interaction between the Respondent and 

H.T.,’’ id. at 153, the ALJ concluded 

‘‘that a single instance does not rise to 

the level of [a] pervasive pattern of 

falsification.’’ Id. at 155. In this regard, 

the ALJ also noted that Respondent was 

working with another physician to 

improve her recordkeeping 

practices.1 Id. at 155–56. The ALJ did 

not, however, expressly find whether 

the evidence under factors two and four 

satisfied the Government’s prima facie 

burden. 

The ALJ further found that 

Respondent had been convicted of four 

counts of the felony offense of 

‘‘Accessory After the Fact to Possession 

of Controlled Substances by 

Misrepresentation, Fraud, Forgery 

Deception or Subterfuge,’’ and that the 

convictions could be considered as 

either an offense ‘‘under Federal * * * 

laws relating to the * * * dispensing of 

controlled substances,’’ 21 U.S.C. 

823(f)(4), or as ‘‘[s]uch other conduct 

which may threaten the public health 

and safety.’’ Id. § 823(f)(5); see also id. at 

158. While the ALJ found that 

Respondent’s convictions ‘‘could * * * 

weigh in favor of denial of the * * * 

application,’’ id. at 158, she also did not 

address whether this factor established 

the Government’s prima facie case. 

The ALJ further found that 

Respondent had ‘‘engaged in extensive 

remedial training,’’ that she has 

‘‘improved skills now available to her, 

including the use of risk assessment 

tools and [the] collection of extensive 

addiction histories on each patient,’’ and 

that she would continue to consult with 

another pain management expert. Id. at 

161–62. The ALJ also found it 

significant that the State Board would 

conduct regular reviews of her medical 

charts and quarterly compliance reports. 

Id. at 162. Finally, the ALJ found that 

‘‘Respondent’s willingness to admit her 

past mistakes, accept responsibility for 

her actions, and remedy her 

professional deficiencies should weigh 

heavily in favor of granting her 

application.’’ Id. at 162. The ALJ thus 

recommended that I grant Respondent a 

new registration subject to the 

conditions that she continue her 

mentoring arrangement with a pain 

management specialist for a period of 

three years and also submit the 

quarterly reports required by the State 

Board to the Agency. Id. at 163. 

On November 3, 2008, the 

Government filed its exceptions to the 

ALJ’s decision; and on November 28, 

2008, Respondent submitted her 

response to the Government’s 

exceptions. On December 22, 2008, the 

ALJ forwarded the record to me for final 

agency action. 

Having considered the entire record 

in this matter, including the ALJ’s 

decision and the parties’ briefs, I adopt 

the ALJ’s conclusion of law with respect 

to the allegations of material 

falsification. I also agree with the ALJ 

that Respondent’s prescriptions for H.T. 

lacked a legitimate medical purpose. I 

reject, however, the ALJ’s conclusions 

with respect to factors two and four. 

The ALJ’s failure to acknowledge that 

the Government established a prima 

facie case for denying the application 

was largely based on her conclusion that 

the Government had only proved that 

Respondent issued unlawful 

prescriptions to two patients and that it 

had not shown that her ‘‘other medical 

practices [were] consistently lacking in 

legitimate purpose.’’ The ALJ’s 

reasoning is erroneous for several 

reasons. 

First, it is inconsistent with Agency 

precedent, which holds that proof of as 

few as two acts of diversion satisfies the 

Government’s prima facie burden under 

the public interest standard and 

supports the revocation of a 

practitioner’s registration when she fails 

to accept responsibility for her 

misconduct. See Alan H. Olefsky, 57 FR 

928, 928–29 (1992); see also Sokoloff v. 

Saxbe, 501 F.2d 571, 576 (2d Cir. 1974). 

The record here, however, supports the 

conclusion that Respondent knowingly 

issued multiple prescriptions to H.T. 

which lacked a legitimate medical 

purpose and violated Federal law. 

Moreover, while the ALJ stated that she 

had made extensive findings to place 

Respondent’s treatment of various 

patients in context, ALJ at 151 n.34, she 

nonetheless frequently ignored relevant 

evidence establishing numerous other 

instances in which Respondent issued 

prescriptions which clearly violated the 

prescription requirement of Federal law. 

21 CFR 1306.04(a). 

Second, the ALJ’s reasoning ignores 

longstanding precedent that the 

Agency’s authority to revoke a 

registration or deny an application is 

not limited to those instances in which 

a practitioner intentionally diverts. 

Rather, a practitioner who ignores the 

warning signs that her patients are 

either personally abusing or diverting to 

others, commits acts inconsistent with 

the public interest even if her conduct 

is merely reckless or negligent. See Paul 

J. Caragine, Jr., 63 FR 51592 (1998). My 

review of the patient records establishes 

numerous instances in which 

Respondent ignored obvious warning 

signs that her patients were either 

personally abusing or diverting. 

Relatedly, the ALJ did not make detailed 

findings regarding the frequency of 

Respondent’s issuance of new 

prescriptions even though this was one 

of the significant issues in this matter. 

Moreover, I reject the ALJ’s conclusion 

that Respondent only falsified H.T.’s 

patient record once and conclude that 

substantial evidence supports the 

finding that on six different occasions 

she falsified his patient record to 

indicate that she had performed a 

physical exam when she had not. 

While I acknowledge that Respondent 

has undertaken some measures to 

improve her practice, I am compelled to 

reject the ALJ’s findings that she has 

willingly ‘‘admit[ted] her past mistakes,’’ 

and ‘‘accepted responsibility for her 

actions.’’ ALJ at 162. As explained more 

fully below, with respect to the 

prescriptions she issued to H.T., 

Respondent continues to deny that she 

did anything wrong. Moreover, in her 

testimony, Respondent maintained that 

there is nothing wrong with persons 

using a controlled substance that has 

not been prescribed to them but to 

family members and that she did not 

know what the term ‘‘early refill’’ meant 

even though this was one of the central 

issues in this case. Accordingly, I 

conclude that Respondent has not 

rebutted the Government’s prima facie 

showing that granting her a registration 

would be ‘‘inconsistent with the public 

interest.’’ 21 U.S.C. 823(f). Respondent’s 

application will therefore be denied. As 

ultimate factfinder, I make the following 

findings. 

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8196 Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 

2 In this document I take official notice of several 

material facts because the record is unclear. Under 

the Administrative Procedure Act (APA), an agency 

‘‘may take official notice of facts at any stage in a 

proceeding—even in the final decision.’’ U.S. Dept. 

of Justice, Attorney General’s Manual on the 

Administrative Procedure Act 80 (1947) (Wm. W. 

Gaunt & Sons, Inc., Reprint 1979). In accordance 

with the APA and DEA’s regulations, Respondent 

is ‘‘entitled on timely request to an opportunity to 

show to the contrary.’’ 5 U.S.C. 556(e); see also 21 

CFR 1316.59(e). To allow Respondent the 

opportunity to refute the facts of which I take 

official notice, Respondent may file a motion for 

reconsideration within fifteen days of service of this 

order which shall commence with the mailing of 

the order. 

3As explained below, the record in this matter 

establishes instances in which Respondent did 

divert for non-medical purposes. 

4 In June 2006, the Arizona Medical Board also 

reprimanded Respondent and placed her on 

probation for two years for performing ‘‘excessive 

joint and soft tissue injections without adequate 

indications and for inadequate documentation of 

the quantities of pharmaceuticals injected.’’ GX 7, 

at 12. 

5While much of the testimony of both parties’ 

experts was couched as to what practices were 

required to meet the standard of care, numerous 

courts have recognized that such testimony is 

relevant in determining whether a physician acted 

in the usual course of professional practice and for 

a legitimate medical purpose in prescribing a 

controlled substance. See United States v. Feingold, 

454 F.3d 1001, 1012 n.3 (9th Cir. 2006) (in criminal 

case, jury can appropriately ‘‘consider the 

practitioner’s behavior against the benchmark of 

acceptable and accepted medical practice’’); see also 

United States v. Alerre, 430 F.3d 681, 691 (4th Cir. 

2005) (in criminal case, ‘‘evidence that a physician’s 

performance has consistently departed from 

accepted professional standards supports the 

proposition that the physician was not practicing 

medicine, but was instead cloaking drug deals 

under the guise of a professional medical practice’’). 

6 Dr. Hare is an associate professor of 

anesthesiology and pharmacology at the University 

of Utah School of Medicine, where he is also the 

director of the pain management fellowship and the 

vice president of the Department of Pain 

Management Services. Tr. 144–45; GX 47. He is 

fellowship-trained and board-certified in pain 

management. Tr. 145. He has an M.D., special 

certifications from the Board of Anesthesiology and 

Findings 2

Respondent graduated from New York 

University Medical School in 1981. Tr. 

1346. She has been board-certified in 

physical medicine and rehabilitation 

since 1988, and she has practiced 

medicine in the State of Arizona since 

1986. Id. Respondent practices as a 

physiatrist, a physician who specializes 

in physical medicine and rehabilitation. 

Id. 

Respondent formerly held DEA 

registration BH1192359. ALJ Ex. 1, at 1. 

In August 2001, the Arizona Medical 

Board initiated an investigation of 

Respondent in response to two 

complaints from health care plans and 

one complaint from a pharmacy 

concerning Respondent’s prescribing of 

controlled substances. GX 73, at 4. In 

July 2001, in response to complaints 

received from Tucson area pharmacists 

about Respondent’s prescribing of 

controlled substances, DEA also 

initiated an investigation. GX 70, at 3. 

On May 16, 2002, DEA, along with law 

enforcement officers from other 

agencies, executed a search warrant at 

Respondent’s registered location, 

Calmwood Medical in Tucson, Arizona. 

Id. at 20–21. On November 1, 2002, my 

predecessor immediately suspended 

Respondent’s DEA registration. ALJ Ex. 

1, at 1. 

On March 26, 2003, a Federal grand 

jury indicted Respondent, charging her 

with numerous violations of Federal 

law. See GX 5. Thereafter, Respondent 

and the Government agreed to a plea 

bargain; and on January 29, 2004, 

Respondent pled guilty to four counts of 

Accessory After the Fact to Possession 

of Controlled Substances by 

Misrepresentation, Fraud, Forgery, 

Deception, or Subterfuge. GX 6, at 1. 

The Consent Agreement With the 

Arizona Medical Board 

On March 10, 2004, following the 

entry of the plea agreement on January 

29, 2004, Respondent entered into a 

Consent Agreement For Decree of 

Censure And Probation with the 

Arizona Medical Board (‘‘the Board’’). 

See GX 73. In the consent agreement, 

the Board noted that its staff had 

reviewed twenty-three patient charts 

and that the Board’s outside consultants 

had reviewed these charts and were 

critical of Respondent’s practices in 

prescribing opioids. Id. at 4. The Board 

specifically found that: (1) Respondent 

‘‘often failed to obtain adequate medical 

histories or perform adequate physical 

examinations’’ before prescribing 

controlled substances to the patients, (2) 

that much of her ‘‘medical histories 

came from information provided by the 

patients themselves,’’ (3) that in some 

cases she ‘‘failed to further substantiate 

actual diagnoses and physical findings 

with prior medical records,’’ and (4) that 

sometimes she ‘‘failed to obtain histories 

of previous drug abuse or monitor for 

signs of current drug abuse.’’ Id. at 4. 

The Board also found that in 

prescribing controlled substance 

medications, ‘‘Respondent [often] failed 

to maintain adequate records on the 

patients.’’ Id. More specifically, the 

Board found that Respondent’s ‘‘written 

notes often did not provide sufficient 

information to support the diagnoses, 

justify the treatments, accurately 

document the results and indicate 

advice and cautionary warnings 

provided to the patients.’’ Id. The Board 

also found that Respondent ‘‘may have 

inappropriately prescribed higher than 

indicated doses of long- and short-acting 

opioid medication.’’ Id. The Board 

further concluded that Respondent had 

engaged in ‘‘unprofessional conduct’’ 

under Arizona law for various reasons 

including, inter alia, that she had failed 

or refused to maintain adequate medical 

records and had engaged in conduct or 

practices ‘‘that is or might be harmful or 

dangerous to the health of the patient or 

the public.’’ Id. at 6. Respondent was 

censured and placed on probation for 

two years with her office management 

and record-keeping practices under 

monitoring. Id. The Consent Agreement 

also provided for another two years of 

probation at the time that ‘‘her DEA 

Certificate is restored.’’ Id. at 7. 

Respondent completed her initial 

probation on March 10, 2006. RX 30. 

Respondent submitted a letter from 

the Arizona Medical Board, dated 

December 23, 2004, indicating that she 

was in compliance with the terms of the 

order and that Respondent ‘‘has the 

Board’s support to pursue her DEA 

reinstatement.’’ RX 53. The letter, 

however, also stated that ‘‘at no time 

[had Respondent] attempted to divert 

medications for non-medical purposes.’’ 

Id.3 She also submitted a letter from the 

Board dated January 8, 2007, which 

indicated that her probation terminated 

on March 10, 2006, but that new twoyear probation would commence ‘‘when 

her DEA certificate is restored.’’ RX 30. 

The letter indicated that Respondent’s 

‘‘license is currently active without 

restriction and she is off probation.’’ Id. 

The Consent Agreement also had 

required Respondent to complete ten 

hours of Continuing Medical Education 

(CME) in ‘‘the principles and practices 

of pain management or addiction 

medicine’’ before applying for a new 

DEA registration. GX 73, at 7. 

Respondent completed twelve hours of 

the required CME by April 2004. RX 53. 

‘‘Since January 2004, she has also 

acquired 51.25 hours in a wide range of 

topics relating to pain management.’’ 

Id.4

Respondent applied for her DEA 

Certificate of Registration on January 28, 

2005. ALJ Ex. 1, at 6. 

Respondent’s Prescribing Practices 

The Expert Testimony 

Both parties put on extensive 

testimony relevant to the issue of 

whether Respondent’s prescriptions 

were issued in the usual course of 

professional practice and were for a 

legitimate medical purpose.5 The 

Government’s expert was Dr. Bradford 

D. Hare 6; Respondent’s experts were Dr. 

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Pain Management, and a Ph.D. in pharmacology. 

Id.; see also GX 47. He has performed research in 

pain management and is currently engaged in the 

practice of pain management. Tr. 147–48; see also 

GX 47. 

7 Dr. Schneider is board-certified in internal 

medicine, is certified by the American Society of 

Addiction Medicine, and is a diplomate of the 

American Academy of Pain Management. Tr. 807; 

see also RX K–1, at 1; RX 43, at 1. Respondent hired 

Dr. Schneider several months after the DEA 

executed its search warrant to mentor Respondent 

in record-keeping and in pain management. Tr. 808. 

8Respondent also introduced a written report 

from Dr. Sharon Weinstein, an Associate Professor 

of Anesthesiology, Neurology and Oncology at the 

University of Utah and the Director of Pain 

Medicine and Palliative Care at the University of 

Utah’s Huntsman Cancer Institute. RX 32, at 1. Dr. 

Weinstein did not, however, testify at the hearing. 

In her report, Dr. Weinstein criticized ‘‘Dr. Hare’s 

judgment of [Respondent’s] pain management 

practices [as] appear[ing] to be based at least in part 

upon * * * assumptions that are erroneous as 

stated,’’ and than listed what she attributed as being 

his assumptions. Id. at 2. It is unclear, however, the 

extent to which Dr. Weinstein has accurately 

characterized Dr. Hare’s assumptions, and in any 

event, many of her criticisms rely on snippets taken 

from his opinions and ignore extensive other 

evidence in the patient files that he relied upon. 

Dr. Weinstein also opined ‘‘that the prescriptions 

by [Respondent] were written in the usual course 

of professional practice and for legitimate medical 

purposes.’’ Id. at 1. Because Dr. Weinstein did not 

testify and was thus not subject to crossexamination, her opinion lacks probative force. 

9Respondent disputed the validity of Dr. Hare, 

who practiced in Utah, opining on the standard of 

care applicable to an Arizona practitioner. Tr. 

1420–21. Even if the standard of care varies from 

one State to another (rather than simply between 

competing schools of thought within a medical 

practice specialty), Dr. Hare and Dr. Schneider (who 

practices in Arizona) had significant areas of 

agreement. 

Respondent also disputed whether her 

prescribing practices should be evaluated under the 

standard of care applicable to a pain management 

specialist rather than the standard applicable to a 

physiatrist. Resp. Br. at 195. In her brief, 

Respondent apparently contends that the standard 

of care applicable to a physiatrist did not require 

her to obtain other provider’s medical records or to 

obtain addiction histories on her patients prior to 

prescribing controlled substances. See id. The short 

answer to this contention is that the Arizona 

Medical Board specifically found that ‘‘Respondent 

failed to further substantiate actual diagnoses and 

physical findings with prior medical records,’’ and 

‘‘failed to obtain adequate histories of previous drug 

abuse.’’ GX 73, at 4. The Board further cited these 

findings as evidence that Respondent had engaged 

in unprofessional conduct under Arizona law. Id. 

at 6. Respondent’s contention is therefore meritless. 

10 Dr. Hare proceeded to distinguish different 

types of pain and the treatments appropriate to 

them. For instance, myofascial pain, characterized 

by ‘‘tender spots in the muscles’’ and which is 

usually the result of ‘‘an injury of some sort,’’ does 

not respond well to opioid medication although 

opioid medication may take the ‘‘edge off a bit.’’ Id. 

at 159. Dr. Hare also discussed neuropathic pain, 

‘‘pain that’s due to nerve injury,’’ and stated that it 

‘‘is a type of pain again that is first treated not with 

opioids but * * * with drugs like tricyclic 

antidepressants or the anticonvulsive agents.’’ Id. at 

160. 

11 Dr Schneider also testified that there is no 

lethal blood opioid level for non-opioid-naı ̈ve 

patients, and that insurance companies are often the 

reason why prescriptions may be written for high 

volume with low dosing. Tr. 904, 909–11. 

12As one of the grounds for her finding that 

‘‘there was no clear consensus’’ regarding what was 

required to meet the standard of care, the ALJ noted 

that ‘‘Dr. Hare concluded that the Respondent’s 

failure to always perform physical examinations or 

order tests to verify symptoms constituted 

Continued 

Jennifer Schneider,7 who testified as an 

expert in pain management, and 

Marylee O’Connor, a Doctor of 

Pharmacy, who testified as both a fact 

witness and expert witness on 

pharmacy although she was not 

formally qualified as such. See Tr. 

1137.8

In her decision, the ALJ concluded 

‘‘that there was no clear consensus in 

the medical community regarding what 

practices were required to meet the 

standard of care during 2001 and 2002.’’ 

ALJ at 151. The ALJ’s finding paints 

with too broad a brush. While it is true 

that there were some issues on which 

the parties’ experts disagreed (e.g., the 

scope of an appropriate physical 

examination, the need to order 

diagnostic testing, appropriate dosing 

levels), there was substantial agreement 

as to what practices are necessary to 

meet the standard of care.9

Initial Visit 

Dr. Hare testified that at the initial 

visit, he asks the patient to characterize 

the pain and rate it on a scale of 1 to 

10. Tr. 155. Dr. Hare also obtains the 

patient’s medical history and ‘‘drug 

history’’; as part of the latter, Dr. Hare 

gathers information on the patient’s 

history of substance abuse including the 

use of both prescription and illicit 

drugs. Id. at 158. As Dr. Hare testified, 

he would ‘‘be more cautious’’ in 

handling a patient with a ‘‘significant 

drug abuse history.’’ Id. at 158. Dr. Hare 

also explained that he tries to get 

records from other physicians who have 

treated the patient, as well as the results 

of diagnostic studies. Id. at 156–57. 

Dr. Hare then performs a physical 

examination focusing on the area of the 

body where the pain is occurring, but 

which also involves a more general 

examination. Tr. 152–53. The 

examination includes ‘‘a neurologic 

examination, an examination for 

strength, an examination for reflexes, an 

examination for tenderness, changes in 

sensitivity of the skin, tenderness in 

muscles, a whole range of different 

things, again depending on the nature of 

what the pain complaint is.’’ Id. at 153. 

Moreover, his examination would 

include ‘‘the vital signs, in other 

words[,] blood pressure, respiratory rate, 

heart rate, comments about just general 

appearance of the patient.’’ Id. Also, as 

part of his physical examination, Dr. 

Hare checks a patient’s heart, chest and 

abdomen.10 Id. at 154. 

Dr. Schneider (Respondent’s expert) 

testified that in her practice, she will 

not treat a patient absent ‘‘old records.’’ 

Tr. 854. Dr. Schneider explained that 

the day before the initial visit, her office 

calls ‘‘to remind’’ patients that if they do 

not bring records with them, their 

physician will be called at the visit and 

asked to fax the records. Tr. 854–55. 

However, she noted that Respondent, as 

a physiatrist, would often have the first 

visit after an injury so that there would 

not be prior records of treatment of a 

particular injury and so ‘‘it’s less 

essential to start out on day one with 

old records.’’ Tr. 855. 

Dr. Schneider likewise testified as to 

the importance of obtaining a patient’s 

substance abuse history. According to 

Dr. Schneider, a patient who has a 

history of substance abuse can still be 

prescribed opioids for chronic pain, but 

the history is a ‘‘relative 

contraindication’’ for such treatment. Tr. 

881. A physician thus needs to ‘‘get a 

careful history and * * * have much 

more stringent monitoring,’’ but, 

depending on ‘‘the nature of the 

previous substance abuse, on how long 

it’s been since the person last abused 

the substance and what kind of 

treatment they had for it,’’ a physician 

could still safely prescribe controlled 

substances. Tr. 881–82. 

Dr. Schneider testified that her initial 

appointment usually takes 45 minutes. 

Tr. 863–64. In that time, she goes 

through ‘‘the four As.’’ Tr. 864. The first 

‘‘A’’ is analgesia, and Dr. Schneider asks 

for a pain rating on a scale of 1–10. Id. 

The second ‘‘A’’ is activities of daily 

living, about how the patient is 

functioning, as ‘‘treating chronic pain is 

a lot about function, at least as much as 

about pain relief.’’ Id. The third ‘‘A’’ is 

adverse effects, such as side effects. Id. 

The fourth and final ‘‘A’’ is aberrant 

drug related behaviors, which is 

‘‘anything that’s out of the ordinary, like 

if they say I need an early refill.’’ Tr. 

865. 

Dr. Schneider also testified that it is 

medically appropriate for a physician to 

prescribe based on a ‘‘focused physical 

exam.’’ Tr. 870. According to Dr. 

Schneider, when a physician sees 

‘‘somebody for a particular problem, and 

this is not just in pain, but this is in any 

field, you limit your exam to that part.’’ 

Id. The exam is ‘‘called a focused 

physical exam because it is limited to 

the part of the body that the person is 

having trouble with.’’ Id.11 While the 

parties thus disagree as to the proper 

scope of a physical exam, I assume 

without deciding that a focused 

physical exam is adequate to diagnose a 

patient.12

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inadequate treatment of the patient for whom she 

prescribed controlled substances. Yet, Dr. 

Weinstein found that Dr. Hare’s conclusion rested 

on the erroneous assumption that all painful 

conditions would be objectively verifiable by a 

physical exam or test results.’’ ALJ at 52. 

It is unclear, however, whether the ALJ was 

referring to Dr. Hare’s testimony regarding the need 

for the initial exam or for follow-up exams when 

patients report new symptoms. If the ALJ’s 

comment was referring to whether a patient should 

be physically examined at the initial visit, even Dr. 

Schneider indicated that the exam is part of the 

standard of medical practice. To the extent the ALJ 

was referring to the need for a physician to perform 

a physical exam on a subsequent visit when a 

patient reports new symptoms, obviously the 

necessity of performing a further physical exam 

depends upon the patient’s symptoms and 

complaint. Accordingly, whether an exam was 

required to meet the accepted standard of medical 

practice cannot be evaluated outside of the context 

of a specific patient. 

13 Dr. Hare also testified that he asks his patients 

about their mood and sleep as chronic pain patients 

‘‘almost uniformly * * * have problems with 

anxiety and depression.’’ Tr. 172. He indicated that 

the failure to monitor sleep and mood could cause 

a physician to ‘‘miss the boat’’ in medicating with 

opioids. Id. at 182. 

14According to Dr. Hare, if a patient states that 

the medications are not working well, ‘‘then we’d 

have to decide whether we’ve just undershot the 

prescribing or we’re dealing with a pain problem 

that isn’t going to respond to pain medicine.’’ Id. at 

174. In the latter case, he would ‘‘make plans to 

back off on these opioids and look at other ways 

to manage the pain.’’ Id. While this testimony 

suggests the existence of a dispute over the 

maximum dosage levels, it is not necessary to 

resolve this dispute. 

15 Dr. Schneider further explained that there is a 

‘‘loss of control thing that is part of addiction [and] 

an addict who wants more medication is not going 

to be willing to call me in the office and leave a 

message and have me call him back four hours later 

to tell him that yes, you can take another pill 

because you’re having more pain.’’ Id. at 876. 

16Subsequently, Dr. Schneider testified that 

‘‘three’’ to ‘‘five years’’ ago, a lot of people were not 

aware of pain agreements and were not using them. 

Tr. 1012–13. Dr. Hare, however, testified that the 

agreements had been in use for as ‘‘as long as’’ he 

could remember and in excess of fifteen years. Id. 

at 187–88. I further note that the record contains a 

pain management agreement signed by a patient of 

Respondent in July 2001. See RX 72, at 3–4. 

Whether or not the usual course of professional 

practice requires that the physician enter into a 

written agreement setting forth her expectations and 

what rules her patient must follow while being 

treated, it is undisputed that a physician must 

carefully monitor her patients’ use of controlled 

substances. 

17The record contains a copy of a pain 

management agreement Respondent used in treating 

R.T. GX 72, at 3–4. The agreement reads in relevant 

part: 

I understand that if I break this Agreement, my 

doctor will stop prescribing these pain-control 

medicines. 

In this case, my doctor will taper off the medicine 

over a period of several days, as necessary, to avoid 

withdrawal symptoms. Also, a drug-dependence 

treatment program may be recommended. 

I will communicate fully with my doctor about 

the character and intensity of my pain, the effect of 

pain on my daily life, and how well the medicine 

is helping to relieve the pain. 

I will not use any illegal controlled substances, 

including marijuana, cocaine, etc. 

I will not share, sell or trade my medication with 

anyone. 

I will not attempt to obtain any controlled 

substances, including opioid pain medicines, 

controlled stimulants, or antianxiety medications 

from any other doctor. 

I will safeguard my pain medicine from loss or 

theft. Lost or stolen medicines will only be replaced 

at the doctor’s discretion. 

* * * 

I agree to use llll Pharmacy, located at 

llllll, Telephone number llllll, for 

filling prescriptions for all my pain medicine. 

* * * 

I agree that I will submit to a blood or urine test 

if requested by my doctor to determine my 

compliance with my program of pain control 

medicine. 

I agree that I will use my medicine at a rate no 

greater than the prescribed rate and that use of my 

medicine at a greater rate will result in my being 

without medication for a period of time. 

I will bring all unused medicine to every office 

visit. 

GX 72, at 3a–3b. 

At the first visit, the physician should 

create a treatment plan. Id. at 170. 

According to Dr. Hare, he ‘‘[t]ypically’’ 

does not prescribe opioids on the first 

visit because he lacks other physicians’ 

records, test results, and the opportunity 

to consult with other members in his 

practice group. Id. at 164. However, it 

appears this may be also because Dr. 

Hare and the other physicians in his 

practice ‘‘oftentimes see the patient as a 

group,’’ and after evaluating the patient, 

discuss among themselves whether they 

‘‘have something to offer that patient.’’ 

Id. Accordingly, to the extent Dr. Hare’s 

testimony suggests that is outside of the 

course of professional practice to 

prescribe a controlled substance at a 

patient’s first visit, it is not conclusive. 

It was undisputed, however, that ‘‘the 

appropriateness of prescribing 

[controlled substance] medications 

* * * depends on the level of medical 

documentation.’’ Id. at 228. According to 

Dr. Hare, ‘‘[w]ithout the appropriate 

documentation it’s inappropriate to 

prescribe the controlled substances.’’ Id. 

at 229. 

Titration of Dosing and Follow-up Visits 

Both Dr. Hare and Dr. Schneider 

testified that when any medication has 

been prescribed, there will be follow-up 

visits at which the physician questions 

the patient about whether there has 

been improvement in his pain level and 

functionality, whether there have been 

side effects, and the continuing benefits 

of taking the medication. Id. at 172 & 

181 (testimony of Dr. Hare); id. at 864 

& 949 (Dr. Schneider’s testimony that 

she reviews the four ‘‘A’’s with her 

patients at every visit). At follow-up 

visits, the physician should question the 

patient as to whether he is using the 

medication appropriately.13 Id. The 

physician should document the 

patient’s response to medication, 

functionality, and adverse effects in the 

patient chart. Id. at 173; id. at 865 & 951. 

Moreover, both parties’ expert were in 

agreement that when a patient is 

currently not on opioids they should be 

started at a low dose and titrated up 

slowly to achieve pain relief while 

minimizing the side effects such as 

nausea and sedation. Tr. 971–72; see 

also id. at 177 (testimony of Dr. Hare 

that ‘‘you don’t want to increase too 

quickly for fear of overshooting and 

getting the patient in trouble’’ by causing 

‘‘dangerous side effects’’). 

Dr. Hare noted that in the event that 

the medication is increased, the usual 

increase is in the amount of 50 percent 

of the prior dosage. Id. at 176. However, 

according Dr. O’Connor, it is acceptable 

to titrate at a rate of ‘‘no more than 50% 

to 100% every 5 or more days’’ so long 

as the increase in the dose does not 

cause adverse effects. RX 8, at 2. 

Moreover, because people respond 

differently to opioids, there can be great 

variability as to the dose necessary to 

alleviate a patient’s pain. Tr. 972. In 

treating unrelieved pain, ‘‘there is no 

dose which is too high unless the 

patient has toxicity or side effects.’’ RX 

9, at 2.14

Managing Patients Who Are Receiving 

Controlled Substances 

Both Drs. Hare and Schneider testified 

as to the importance of setting 

boundaries with patients who are 

receiving controlled substances through 

the use of written agreements. Tr. 161. 

As Dr. Schneider testified: ‘‘I have all 

my patients sign an agreement [which] 

lays down the rules and it says that 

they’re [the patients] not to make any 

changes in their medications without 

first consulting me.’’ 15 Id. at 876. Dr. 

Schneider further explained that if she 

gives a patient permission to increase 

his dose, she documents it. Id. at 877.16

If a patient comes in reporting that he 

took more medication than prescribed, 

Dr. Schneider asks why and if the 

response is not reasonable, her ‘‘reaction 

is * * * to build more structure around 

them.’’ Id. Sometimes this involves 

having a family member administer the 

medication, id. at 878; it may also 

involve writing very small prescriptions 

and having more frequent visits. Id. at 

879. Similarly, Dr. Hare noted that ‘‘if a 

patient has overused medication,’’ a 

physician needs to find out why, and if 

the patient does not offer a ‘‘good 

reason, the physician should counsel 

the patient to use his medication as 

prescribed and ‘‘hold them to it.’’ 17 Id. at 

163. 

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18 Dr. Hare further explained that his agreement 

provides the patients with instructions for obtaining 

refills and also establishes rules for dealing with a 

patient’s claim that his medication was lost or 

stolen. Id. at 161. According to Dr. Hare, the 

agreement ‘‘makes it clear that we may or may not 

choose to refill the medications under those 

circumstances.’’ Id. Continuing, he explained that 

his practice is ‘‘usually pretty flexible’’ the first time 

a patient reports that his medication has been lost 

or stolen and will issue a new prescription while 

counseling the patient. Id. at 162. If, however, it 

happens again, it raises a concern that the patient 

is ‘‘overusing their medicine’’ and ‘‘perhaps 

diverting them.’’ Id. 

19 Dr. Schneider also testified that many doctors 

‘‘simply write down the prescription they wrote that 

day in the body of the records, meaning that the 

next time the patient comes, they’ve got to be rifling 

back through to see what was the last one.’’ Tr. 

1001. 

20 In her testimony, Dr. Schneider vaguely 

suggested that in 2001–2002, the use of urine drugs 

screens was not generally accepted as required by 

the standard of care. Tr. 1013. In August 1998, 

however, Dr. Schneider published an article in 

which she noted that required her patients to 

‘‘obtain urine drug screens when asked. This feature 

of the contract prevents any refusals from the 

patient and lets me request a urine screen at any 

suspicion of drug addiction problems.’’ Jennifer P. 

Schneider, Management of Chronic Non-Cancer 

Pain: A Guide To Appropriate Use Of Opioids, 4 J. 

Care Mgmt. 10, 18 (Aug. 1998). Therein, Dr. 

Schneider also noted the role of asking a patient ‘‘to 

bring in partly-used medication containers for a pill 

count’’ in assessing whether the patient has lost 

control over his/her drug use. Id. at 13. In 

accordance with 5 U.S.C. 556(e), I take official note 

of Dr. Schneider’s article and reject her suggestion 

that urine drug screens were not required to meet 

the standard of care in prescribing controlled 

substances by a pain specialist. Moreover, the 

Arizona Board found that Respondent had failed to 

monitor her patients for signs of current drug abuse. 

GX 73, at 4. 

Dr. Schneider also contended that in 2001–2002, 

urine drugs screens were difficult to interpret, in 

part because of the difference between opioids 

(which are semi-synthetic or synthetic) and opiates 

(which are derivatives of morphine), and that the 

opioids would not show up on a standard urine 

drug screen and that the physician had to 

specifically request that the lab test for them. Tr. 

892. Putting aside whether a competent physician 

should have known the difference between opioids 

and opiates and how to properly screen for them, 

in her article she also noted that urine drugs screens 

were useful in determining whether a patient is 

abusing illicit drugs. Were it the case that 

Respondent required her patients to undergo urine 

drug screens and mistakenly failed to request the 

correct test, it would be a relevant consideration. 

However, Respondent rarely required her patients 

to undergo urine drug screens. 

21 In a subsequent report, Dr. Hare reviewed the 

medical records for an additional seven patients. 

See GX 46A. 

Both Drs. Hare and Schneider testified 

that they require their patients to agree 

to obtain their medications only from 

themselves and not from other 

physicians.18 Id. at 161; id. at 963. Dr. 

Schneider testified that if she found out 

that a patient was obtaining drugs from 

another source, she would question the 

patient and determine the 

circumstances. Id. at 962. Moreover, if 

the patient was obtaining the drugs from 

another physician, she would call the 

physician and remind him that ‘‘the 

patient has a contract with’’ her, which 

the other physician knows about 

because she sends reports to him, and 

that she tells the other physician that he 

‘‘cannot be prescribing for the patient.’’ 

Id. at 963. Dr. Schneider added that if 

the patient does it again, she ‘‘may 

discharge them.’’ Id. at 964. 

Dr. Schneider further testified that if 

a patient is giving drugs to a family 

member, she counsels them that this is 

a felony offense and she is ‘‘certainly not 

going to replace a pill that [a patient] 

ha[s] one less of because [she] gave it to 

a family member.’’ Id. at 1007. 

Moreover, she documents the incident 

in the patient record. Id. at 1008. Dr. 

Schneider also noted that it is especially 

‘‘egregious’’ when a patient is buying 

drugs on the street. Id. at 1006. 

With respect to requests for early 

refills, Dr. Hare testified that ‘‘we try to 

come up with a plan that’s going to meet 

the patient’s needs until the time of the 

next visit,’’ including ‘‘a reasonable type 

of medicine,’’ and ‘‘a reasonable amount 

of medication.’’ Id. at 163. Dr Hare 

further explained that ‘‘[w]e do our 

refills on a 30-day basis,’’ and we set 

‘‘the dates that the refill is supposed to 

occur * * * so we have all of that 

information in our records’’ and that this 

allows for the physician ‘‘to quickly 

access * * * and determine when a 

refill is appropriate’’ and ‘‘when it’s not.’’ 

Id. at 164. 

To similar effect, Dr. Schneider 

testified that when a patient ask for 

early refills, she discusses with the 

patient why the refill is needed and 

documents this in the patient record. Id. 

at 949. Moreover, Dr. Schneider may 

decline to refill the prescription. She 

also noted that she has a page in her 

charts in which every prescription and 

the date of its issuance is recorded so 

that a refill request can be properly 

evaluated to determine whether it is too 

early.19 Id. 

Dr. Schneider testified that when an 

anonymous phone call is received 

which indicates that a patient is either 

selling or abusing a drug, ‘‘[y]ou have to 

look into it * * * You have to pursue 

all these angles.’’ Id. at 830. According 

to Dr. Schneider, ‘‘there are some times 

when the information has a lot of 

validity and you have to follow it, and 

when the doctor doesn’t that’s a bad 

scene.’’ Id. As to a patient using 

‘‘somebody’s prescription that happened 

to be around the house because they had 

a bad headache or whatever,’’ Schneider 

testified that ‘‘counseling them, and 

advising them, and warning them and 

so forth may be enough.’’ Id. at 836. 

However, if in truth it is a situation of 

‘‘an active addiction problem,’’ the 

physician needs to inform the patient 

that the addiction will interfere with the 

prescribing and ‘‘that they need to get 

some help with their addiction 

problem.’’ Id. 

Dr. Schneider further testified that 

there are ‘‘many sets of tools on the 

Internet to help pain specialists assess 

their patients for a history of addiction 

and for addiction issues and on how to 

monitor them and how to follow them.’’ 

Id. at 824. In addition, a physician 

should use such measures as pill counts 

(i.e., requiring patients to bring in their 

prescriptions to determine whether they 

are taking them as prescribed) and 

random drug screening through either 

blood or urine tests to determine 

whether the patient is taking the 

prescribed medication and/or taking 

illicit drugs. See GX 72, at 4 (requiring 

that Respondent’s patients agree to 

‘‘submit to a blood or urine test * * * 

to determine my compliance with my 

program of pain control medicine’’ and 

that they ‘‘bring all unused pain 

medicine to every office visit’’).20

Dr. Schneider testified that it is 

important for a doctor to communicate 

with other doctors. Tr. 853. Dr. 

Schneider sends a copy of her notes on 

‘‘every visit’’ to the primary care 

physician. Id. If she knows of a patient’s 

‘‘ongoing relationship with some other 

specialist related to their pain problem,’’ 

she also sends a copy of the notes from 

every visit. Id. After making a referral to 

a specialist, she also requests ‘‘a copy of 

that report and of imaging studies.’’ Id. 

Alleged General Practices 

At the request of the DEA 

Investigators, Dr. Hare reviewed the 

medical records of Respondent’s 

patients.21 GX 46. In his first report 

(January 15, 2003), Dr. Hare indicated 

that he had reviewed the records of 

eight patients and found that 

Respondent’s care exhibited the 

following ‘‘general problems’’: 

• Respondent ‘‘failed to adequately 

evaluate’’ patients by not obtaining an 

adequate ‘‘pain history’’ and by not 

‘‘obtaining[ing] information from 

previous treatment such as records of 

treating physicians and the previous 

medications used.’’ GX 46, at 1. These 

would ‘‘have allowed [Respondent] to 

determine if there had been problems 

with medications or patient 

compliance.’’ Id. 

• Despite the fact that ‘‘[t]he 

information in [Respondent’s] records 

was insufficient to make a proper 

diagnosis,’’ Respondent ‘‘prescribed 

Controlled Substances.’’ Id. 

• Respondent ‘‘did not properly track 

the use of medications.’’ Id. at 2. She did 

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22The record establishes that ‘‘q’’ means every, 

and that ‘‘h’’ means hour(s), and ‘‘hs’’ at bedtime. See 

Tr. 1122 & RX L, at 6; Tr. 1151 & GX 9, at 8; Tr. 

1165 & GX 13, at 6; Tr. 1175. Thus, ‘‘q4h’’ means 

every four hours, ‘‘q6h’’ means every six hours, 

‘‘q8h’’ means every eight hours, and ‘‘q12h’’ means 

every twelve hours. See Tr. 1122 & RX L, at 6; Tr. 

1175; id. at 1151 & GX 9, at 8. In addition, the 

abbreviation ‘‘BID’’ means ‘‘twice a day,’’ Tr. 355 & 

RX 13, at 1; ‘‘TID’’ means ‘‘three times a day,’’ Tr. 

403 & RX 13, at 1; and ‘‘QID’’ means ‘‘four times a 

day.’’ Id. at 358 & GX 22, at 18. The abbreviation 

‘‘PRN’’ means ‘‘as needed.’’ Id. at 1174. It is also 

undisputed that prescribing in excess of 4 grams or 

4000 mg. per day of drugs containing 

acetaminophen risks liver toxicity. See id. at 403– 

04. 

23The patient record also indicated that 

Respondent issued her a prescription for 

Amoxicillin, a non-controlled drug. 

not ‘‘comment on the lack of patient 

compliance’’ when patients used 

controlled substances ‘‘in excess of the 

prescribed amounts.’’ Id. Rather, she 

‘‘usually increased the amount of the 

prescription to meet the patient’s use of 

medication, rather than exercising any 

control over the patient’s consumption.’’ 

Id. 

• Respondent switched from one 

controlled substance to another, ‘‘based 

on patient request, not on what was 

reasonable therapeutically.’’ Id. 

On cross-examination, Respondent 

admitted that she failed to take 

addiction histories. Tr. 2344. However, 

when asked whether she routinely 

failed to obtain prior medical records, 

she stated that ‘‘there is no obligation or 

rule that you have to get medical 

records.’’ Id.; but see GX 73, at 4 (State 

Board’s finding that ‘‘Respondent failed 

to further substantiate actual diagnoses 

and physical findings with prior 

medical records.’’). She stated that in 

many cases she did get parts of medical 

records. Id. at 2345. She admitted that 

others might not always be able to 

‘‘glean’’ her rationale for increasing 

opioid dosages from her records. Id. at 

2346. When asked whether she often 

issued early refills on controlled 

substance prescriptions without 

documenting the reason in her medical 

records, Respondent said that she did 

not know what the term ‘‘early refill’’ 

meant. Id. at 2345–46. She indicated 

that she did not find doing frequent 

MRIs useful, that with chronic pain that 

was just a waste of medical resources. 

Id. at 1381. 

Respondent testified that she always 

did an evaluation on new injury cases, 

that there was always a physical 

examination, and that it was always 

documented. Id. at 2347–48. She 

testified that she did not ignore that 

some patients had histories of addiction 

and that she did not ignore warning 

signs of addiction or abuse. Id. at 2348– 

49. She admitted that she was not in 

contact with primary care physicians in 

all cases, but she also justified that in 

the case of J.N., noting that her primary 

care physician wasn’t practicing due to 

a licensing issue. Id. at 2349. 

Respondent admitted that on occasion 

she failed to document the reason for 

increasing an opioid dose. Id. at 2351. 

Respondent also stated that she did 

not believe in reprimanding patients 

when she found out that they were 

giving their controlled substances to 

another person. Id. at 2393–94. She 

compared the situation to one where a 

diabetic patient is not following his 

diabetic diet. Id. 

Evidence Regarding Specific Patients 

J.N. 

On September 11, 2000, J.N., who was 

then forty-three years old and who 

undergone a cervical fusion in 1994, 

started treating with Respondent. GX 9, 

at 1. She ‘‘had been sexually assaulted 

and suffered [a] cervical fracture and 

needed emergency surgery.’’ Id. Her pain 

had recently worsened, and Respondent 

noted in her medical record that she 

‘‘need[ed] another cervical fusion.’’ Id. 

J.N. had been on disability since 1994. 

Id. 

There is no indication in J.N.’s patient 

record that Respondent inquired about 

any history of substance abuse at the 

initial visit. Id. at 1–2. At the first visit, 

Respondent performed a physical exam 

and diagnosed J.N. as having ‘‘[s]evere 

neck pain,’’ ‘‘left upper extremity pain,’’ 

and ‘‘signs of left cervical 

radiculopathy.’’ Id. at 2. Respondent 

gave J.N. a free trial of 21 tablets of 

OxyContin 40 mg q8h 22 (one tablet 

every eight hours), 50 tablets of 

Oxycodone IR ‘‘1–2 q4h PRN for 

breakthrough pain,’’ and a prescription 

for 60 tablets of Xanax 0.5 mg twice a 

day, with one refill, although nothing in 

the patient record documented that J.N. 

experienced anxiety. Id. at 2. 

Respondent was to ‘‘[r]echeck in 1 

week.’’ Id. 

On September 15, Respondent noted 

that J.N. ‘‘is better on the OxyContin and 

Oxycodone. She feels less pain,’’ yet 

Respondent increased the OxyContin 

prescription to 60 (160 mg.) tablets, with 

one tablet to be taken every eight hours, 

(a twenty-day supply), which was a 

four-fold increase in the dosage over the 

initial prescription. Id. Respondent also 

issued prescriptions for 50 milliliters of 

Oxyfast 20 mg/ml, ‘‘1–2 ml q4h PRN 

breakthrough pain,’’ 360 tablets of MS 

Contin 100 mg., (4 tabs q8h), as well as 

100 milliliters of morphine elixir ‘‘20 

mg/ml 5 ml q6h PRN breakthrough 

pain.’’ Id. at 2–3. Respondent noted that 

the latter two prescriptions were being 

issued in ‘‘[i]n case Pima insurance 

doesn’t cover’’ the other medications. Id. 

Respondent also increased the dosage of 

Xanax four-fold to 2 mg. twice a day, 

again without any finding regarding 

anxiety. Id. 

J.N. returned on October 5 and 

reported that she was ‘‘much better than 

she has been because of the MS Contin,’’ 

and Respondent wrote prescriptions for 

MS Contin at the same dosing and also 

MSIR (morphine sulfate immediate 

release) ‘‘30 mg 6qh PRN breakthrough 

pain #120,’’ to ‘‘recheck in one month.’’ 

Id. at 3. Respondent also added a 

prescription for ten tablets of Dilaudid 

4 mg., 1–2 four times a day. Id. On 

October 25, J.N. reported that the 

medications helped with her pain and 

with sleep and that she would like more 

Dilaudid. Id. She also reported having 

had an EMG/NCV with a Dr. L. on 

September 14, but did not know the 

results. Id. at 4. Respondent wrote 

prescriptions for Dilaudid, MS Contin, 

MSIR, as well as Fioricet for 

‘‘headache.’’ 23 Id. at 4. J.N. continued on 

Dilaudid, MS Contin, Xanax and 

Fioricet through June 14, 2001. Id. at 

4–9. 

J.N.’s patient record includes a 

Discharge Summary from University 

Medical Center in Tucson, Arizona, 

which was faxed to Respondent on 

January 16, 2001. Notably, the first page 

states that JN had a ‘‘history of IV heroin 

abuse’’. Id. at 13. Continuing, the 

Summary stated that ‘‘she quit several 

years ago, but started using again one 

week ago because of increasing 

abdominal pain.’’ Id. at 13–14. The 

Summary also noted that a urine 

toxicology screen was ‘‘positive for 

opiates, barbiturates, benzodiazepines, 

and marijuana.’’ Id. at 15. 

The Discharge Summary listed five 

medical problems J.N. had including 

‘‘Chronic pain/narcotic addiction.’’ Id. at 

15–16. The Summary specifically noted 

that J.N. was ‘‘preoccupied with her pain 

medications, requesting p.r.n. 

medications frequently’’ and was 

‘‘resistant to weaning attempts.’’ Id. 

Moreover, while the hospital offered 

J.N. ‘‘drug abuse placement,’’ she 

‘‘refused,’’ stating that ‘‘she was not an 

addict, and was only unable to get off 

Morphine due to her medical 

condition.’’ Id. at 16. The Summary also 

noted that on discharge, J.N. was given 

MS Contin, Dilaudid and Xanax in the 

doses that she had been receiving from 

Respondent and in quantities that 

would last until she could see her pain 

specialist. Id. 

While the patient record indicates 

that Respondent was notified on 

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24Both Xanax (alprazolam) and Restoril 

(temazepam) are benzodiazepines and schedule IV 

depressants. See 21 CFR 1308.14(c). 

25According to the police report, twenty syringes 

were found, several of which had been opened. GX 

8, at 18–19. In addition to hydromorphone and 

morphine sulfate, the police found Duramorph, 

methocarbamol, Pancrease, Zyprexa, Naproxen, and 

Cimetidine. Id. at 18. 

26Respondent also introduced into evidence an 

article discussing a survey of blood levels of opiates 

in opioid-tolerant patients. See RX 39. More 

specifically, Respondent pointed to a table which 

indicated that a patient with a Morphine SR blood 

level of 2837 ng/ml, a level which was higher than 

that found in JN (2374 ng/ml) following her death, 

was capable of functioning. Compare RX 39, at 4 

with GX 8, at 10. Respondent did not, however, 

offer any evidence that she conducted blood tests 

of J.N. while she was alive to show what level she 

was functional act. 

27Respondent testified that, despite being aware 

of the addiction history, the attending physician 

had continued the medications that she prescribed 

for JN—MS Contin 400 mg., Dilaudid 2 mg., and 

immediate release morphine 30 mg. Tr. 2368; GX 

9, at 13. The Respondent was also listed as J.N.’s 

pain specialist in the discharge report. GX 9, at 13. 

December 4, 2000 that J.N. had been 

hospitalized, GX 9, at 5, she did not 

obtain the Discharge Summary for 

another month. Moreover, J.N.’s medical 

record contains a note dated January 24, 

2001, that Respondent ‘‘received records 

from UMC and discharge diagnosis was 

sludge in gallbladder’’; the note contains 

no mention of either the results of the 

drug screen done by the hospital or of 

J.N’s statement to the hospital staff that 

she had recently started using heroin 

again. Id. at 6. 

J.N.’s record contains no indication 

that Respondent attempted to monitor 

her use of controlled substances through 

drug screens and pill counts. See 

generally id. Moreover, the medical 

record contains no indication that 

Respondent questioned J.N. about her 

use of marijuana, heroin, or the 

barbiturate (which Respondent had not 

prescribed to her). 

On subsequent visits, Respondent 

primarily prescribed 120 tablets of 

Dilaudid 4 mg. (QID—one tablet four 

times a day), 180 tablets of MS Contin 

200 mg. (two tablets every eight hours), 

Xanax 2 mg. (BID –one tablet twice a 

day), and Restoril (temazepam) (two 

tablets at bed time).24 Id. at 5–9. After 

J.N.’s hospitalization, all of the MS 

Contin prescriptions and all but two of 

the Dilaudid prescriptions were for a 

quantity equaling 30 days of dosing. See 

id. Approximately half of the Dilaudid 

and MS Contin prescriptions were 

refilled at least five days early, with 

some being refilled as early as eight or 

nine days before the previous 

prescription would have run out. See id. 

(Rxs for: 180 MS Contin on 12/18, 1/11, 

2/1, 2/26, 3/20, 4/19, and 5/14; for 120 

Dilaudid on 1/11, 2/1, 2/26, 3/20, 4/19, 

and 5/14). 

J.N. died of an overdose on June 18, 

2001. According to a police report, 

‘‘several syringes were found at the 

scene,’’ as well as various drugs 

including hydromorphone and 

morphine sulfate.25 GX 8, at 18. The 

police also found a white powder in the 

living room and were told by J.N.’s 

boyfriend that the two of them would 

mix ‘‘her prescription medication with 

water and inject it using the used 

syringes.’’ GX 8, at 19. Moreover, in an 

interview with investigators, J.N.’s 

boyfriend stated that she would crush 

up the Dilaudid (hydromorphone) she 

obtained from Respondent and inject it. 

GX 43, at 11. J.N.’s boyfriend also 

related that ‘‘[s]he didn’t have veins’’ 

and that it was very hard to get blood 

from her. Id. at 22. Yet there is no 

indication in J.N.’s medical record that 

Respondent ever noticed this. See 

generally GX 9. 

The Medical Examiner determined 

that the cause of J.N.’s death was ‘‘acute 

intoxication due to the combined effects 

of opiates, cyclobenzaprine, and 

amitriptyline.’’ GX 8, at 2. Respondent 

disputed the Medical Examiner’s 

conclusion. One of her experts (Dr. 

Schneider) maintained that it was not 

‘‘black and white that a morphine 

overdose was her cause of death,’’ and 

indicated (in response to Respondent’s 

question whether her opinion would 

change if J.N. had been on the same 

dose of extended release morphine for 

the previous ten months), that unless 

J.N. had ‘‘suddenly taken a lot more’’ of 

the drug, she would question whether 

J.N.’s death was caused by a morphine 

overdose. Tr. 921–22. Dr. Schneider was 

not asked, however, whether her 

opinion would be different if J.N. had 

taken the drug intravenously. 

Relatedly, another of Respondent’s 

experts (Dr. O’Connor) testified that 

J.N.’s taking of the cyclobenzaprine and 

amitriptyline (neither of which was 

prescribed by Respondent) would have 

‘‘certainly’’ caused her to have a heart 

attack. Id. at 1154. Yet the Medical 

Examiner did not note any evidence of 

a heart attack. See generally GX 8. 

Moreover, when Respondent asked her 

whether there are ‘‘any interactions 

between opiates, such as morphine, and 

* * * amitriptyline or 

cyclobenzaprine,’’ the witness answered: 

Certainly in [an] opioid-naı ̈ve patient, if 

they took * * * Tylenol with codeine, and 

then they took some cyclobenzaprine or 

flexeril on top of that * * * they might get 

more sleepy. The same goes for amitriptyline 

or tricyclics. In an opioid-tolerant patient, no. 

Tr. 1157. The expert’s testimony does 

not make clear whether her answer as to 

the effect that would occur in an opioidtolerant patient applies to a patient 

taking opiates other than Tylenol with 

codeine, a drug which is far less potent 

than either MS Contin 200 mg. or 

Dilaudid. Furthermore, the Medical 

Examiner did not conclude that J.N.’s 

death was caused solely by her use of 

morphine, but rather, the combined 

effects of opiates and the other two 

drugs.26 GX 8, at 2. 

In any event, it is not necessary to 

resolve the factual dispute. Even if J.N’s 

intravenous use of either Dilaudid or 

MS Contin did not contribute to her 

death—it just being a coincidence that 

syringes and crushed medication were 

found in the vicinity of her body—the 

evidence nonetheless clearly established 

that she was abusing drugs, that 

Respondent had reason to know that she 

was abusing drugs, and that Respondent 

failed to properly supervise her use of 

controlled substances. 

With respect to the discharge 

summary, which clearly indicated that 

J.N. was abusing drugs, Respondent 

testified that she failed to read the entire 

hospital discharge summary because it 

‘‘was a lot of pages.’’ Tr. 2367. According 

to Respondent, she ‘‘looked at the 

beginning’’ and ‘‘looked at the end’’ of 

the document but that the reference to 

J.N.’s heroin abuse was ‘‘buried in’’ the 

report. Id. at 1850 & 2367–68.27

The discharge summary was, 

however, only five pages in length (and 

the fifth page did not contain any 

medical information). See GX 9, at 13– 

17. Moreover, the reference to J.N.’s 

‘‘history of IV heroin abuse’’ was on the 

bottom of the first page. See id. at 1. 

In her testimony, Respondent also 

maintained that that she was unaware 

that J.N. had crushed and injected her 

medication until she inferred it from a 

question DI Llenas asked her the day of 

the search warrant in May 2002. Tr. 

2377. Yet other evidence indicated that 

J.N. had no veins and that it was 

difficult to draw blood from her, 

something which Respondent 

apparently never noticed. 

With respect to J.N.’s initial visit, Dr. 

Hare concluded that Respondent ‘‘failed 

to obtain [an] adequate history * * * 

and [that] she did not obtain records 

from * * * the neurologist, by whom 

the patient had been evaluated,’’ that she 

conducted a ‘‘minimal and inadequate 

physical examination,’’ and that ‘‘the 

evaluation was inadequate to allow 

proper diagnosis and therefore the 

prescribing of controlled substances.’’ 

GX 46, at 4. As to J.N.’s second visit, Dr. 

Hare’s review of her patient record 

noted that her ‘‘already large dose of 

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28 Dr. Hare noted that the OxyContin 160 mg. was 

to be taken every four hours, but the patient chart 

indicated only every eight hours. I find that the 

dose increase was four-fold, not six-fold. 29 In a patient narrative that Respondent wrote on 

C.O., which was included in C.O.’s medical record, 

Respondent wrote of her prescribings that ‘‘[t]he 

dose was increased by approximately 50%–100% at 

a time, when necessary, as is the appropriate way 

to titrate opioids.’’ GX 36, at 35. 30Respondent testified that she made efforts to 

refer J.N. to a psychiatrist but did not record that 

in the patient file. Tr. 2356. 

31The ALJ’s findings contrast this with an excerpt 

from Dr. Weinstein’s report in which she wrote: ‘‘Dr. 

Hare states, ‘considering the huge amounts of 

medications and lack of side effects, the patient was 

likely diverting,’ an inference that cannot be made 

from therapeutic information alone.’’ ALJ at 82. I 

note that this comment was made in response to the 

patient file of a patient other than W.F. Given that 

the toxicology screen found no evidence of 

methadone, a drug with a very long half life, it is 

reasonable to infer that W.F. was not been taking 

the medication prescribed but rather was diverting 

it. Moreover, W.F. was identified by Dr. Schneider 

as a patient who had likely engaged in aberrant 

drug-related behavior. RX K–1, at 6. 

OxyContin’’ was ‘‘dramatically 

increased’’ ‘‘six-fold’’ 28 on September 

15, 2000, ‘‘despite the patient’s 

improvement.’’ Id. He also noted that the 

strength of the alternative prescription 

that was written for MS Contin 100 mg. 

would ‘‘translate to about 8 times the 

original OxyContin [sic] dose.’’ 29 Id. at 5. 

Dr. Hare further noted that on January 

11, 2001, the patient record ‘‘indicate[d] 

that the patient’s [niece] died and that 

the patient was quite distressed.’’ Id. He 

also remarked that ‘‘[t]his was the very 

first mention in the records of anxiety 

and depression, even though the patient 

had been treated with Xanax for a 

considerable period of time prior to 

this.’’ Id. Dr. Hare also noted that on 

several occasions Respondent 

prescribed medications for J.N. that 

other doctors, in other specialties, had 

previously prescribed for J.N., without 

attempting to coordinate care with those 

physicians. Id. 

Dr. Hare also observed that 

Respondent did not notice signs of 

abuse, did not acknowledge the 

Discharge Summary’s information about 

J.N.’s current abuse and history of 

substance abuse, and failed to treat J.N. 

for depression or give a psychiatric 

referral.30 Id. at 6. Dr. Hare thus 

concluded that Respondent’s care of J.N. 

was ‘‘substandard’’ and ‘‘probably 

negligent.’’ Id. at 6. 

With respect to J.N. (as well as three 

other patients N.F., W.F., and C.O.), Dr. 

Schneider observed in her report that: 

All had evidence of ‘‘aberrant drug-related 

behaviors’’ which should have been pursued 

but weren’t, and all received early refills 

without adequate documentation. These 

charts certainly showed problems which 

indicated that [Respondent] needed 

additional education about obtaining an 

addiction history, careful monitoring, and 

review of the ‘‘big picture.’’ 

RX K–1, at 6. 

W.F. 

W.F. first visited Respondent in 

September 2001. At that time he was a 

disabled 44-year-old veteran. GX 13, at 

1. W.F. had been in a severe jeep 

accident in 1973 while in the Marine 

Corps, fracturing his pelvis, femur, right 

wrist and left mandible. Id.; Tr. 1958. 

He walked with crutches. GX 13, at 1. 

At the first visit, W.F. brought in an 

impairment rating from the Veteran’s 

Administration (VA) establishing that 

he was disabled. Id. Respondent did 

not, however, contact the VA to obtain 

copies of his treatment records. Id. Nor 

is there any indication in the patient 

record that Respondent inquired about 

W.F.’s substance abuse history at the 

initial visit, nor is there any indication 

that she asked for pain ratings. See id. 

Respondent’s physical exam involved 

observing W.F. walk with his crutches, 

noting that he had ‘‘severe pain with 

lumbar range of motion,’’ ‘‘tenderness 

over bilateral lumbar paraspinals,’’ and 

‘‘tenderness over [his] right wrist and 

pain with right wrist range of motion.’’ 

Id. 

W.F.’s patient file includes several 

letters which advised Respondent that 

he had a history of substance abuse. The 

first letter, which was dated January 8, 

2002, was written by Dr. H.G., a 

psychiatrist with Cope Behavioral 

Health. GX 13, at 13. Therein, Dr. H.G. 

explained that W.F. was ‘‘currently 

under court ordered treatment by the 

Psychiatric Security Review Board 

which mandates that all [of] his 

medications are to be prescribed by 

either psychiatrists at Cope * * * or by 

the VA.’’ Id. The letter further states that 

W.F.’s ‘‘case manager * * * has recently 

learned that [he] was receiving narcotics 

& psychotropics from your office; 

unfortunately, this history has repeated 

itself to poor outcomes in the past for 

[W.F.] (addiction issues).’’ Id. 

On January 24, 2002, Dr. H.G. sent 

another letter to Respondent. Id. at 15. 

Therein, he indicated that it was 

permissible for Respondent to prescribe 

for W.F. because he could not get an 

appointment at the VA until April. Dr. 

H.G. noted, however, that ‘‘[a]lthough he 

currently denies symptoms of abuse, 

please be aware he has had narcotics 

addiction problems in the past.’’ Id. at 

15. 

Finally, on January 28, 2002, J.G., a 

case manager at Cope Behavioral Health, 

indicated that Cope had ‘‘received a 

phone call this afternoon from a family 

member of [W.F.], who is concerned 

that [W.F.] might be abusing his pain 

meds.’’ Id. at 17. 

The patient record contains some 

indication that on January 29, 2002, 

Respondent discussed addiction issues 

with W.F., as Respondent wrote: 

‘‘[p]atient insists that the medications 

help with the pain, and he cannot 

function without the medications.’’ Id. at 

5. Respondent wrote prescriptions for 

100 Methadone 10 mg. 1–2 QID (one to 

two tablets four times a day) and 100 

Roxicodone 30 mg. q4h PRN (one tablet 

every four hours as needed for pain). Id. 

at 6. Respondent issued the same 

prescriptions on February 11, 2002. 

Respondent had also previously written 

prescriptions for temazepam with 

multiple refills on October 29, 2001, and 

December 17, 2001. Id. at 3, 5. 

On February 24, 2002, W.F. was 

found dead. The Medical Examiner’s 

report concluded that W.F. ‘‘died of 

undetermined cause. Possibilities 

include seizure related and drug 

intoxication.’’ GX 11, at 2. A toxicology 

report found that W.F. had a temazepam 

level of 1148 ng/ml; id. at 14, however, 

the Medical Examiner subsequently 

indicated in a letter to Respondent that 

this level of the drug ‘‘would not be 

expected to cause death.’’ RX 52. The 

Medical Examiner also found that 

‘‘[o]ther drugs identified in his body 

were in too low a concentration to allow 

me to come to the conclusion that death 

was likely the result of the combination 

of drugs, including Temazepam.’’ Id. 

Relatedly, the toxicology tests found 

only a small amount of oxycodone and 

no presence of methadone in W.F. GX 

11, at 9–15. 

Dr. Hare observed that at the initial 

visit, Respondent did not obtain an 

adequate medical history and did not 

inquire about substance abuse issues. 

GX 46, at 3. Also, ‘‘the physical 

examination was minimal and 

inadequate to characterize various pain 

complaints.’’ Id. Dr. Hare also faulted 

Respondent, who then knew of the 

history of substance abuse, for not 

limiting W.F.’s medication and not 

‘‘requesting toxicology screens * * * to 

determine if he was using medications 

other than those she prescribed, or 

actually using the medication she was 

prescribing.’’ Id. at 4. Dr. Hare further 

noted that the toxicology report done as 

part of the autopsy ‘‘was negative for 

opioids which he had been prescribed 

in sizable amounts’’ and that ‘‘[t]he lack 

of opioids would suggest that the 

patient was diverting significant 

portions or the entire prescriptions.’’ 

Id.31 He concluded that Respondent’s 

care was ‘‘substandard and 

inappropriate regarding the controlled 

substance prescriptions.’’ Id. 

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32Relatedly, the ALJ quoted Dr. Weinstein’s 

report that Respondent ‘‘had received 

communication from a treating psychiatrist, 

agreeing that the medications she was prescribing 

for their mutual patient were appropriate.’’ ALJ at 

80 (FOF 289; quoting RX 32, at 3). Dr Weinstein 

also wrote, ‘‘In this instance, [Respondent] had a 

concurring opinion from a psychiatrist for her 

management plan.’’ RX 32, at 3. 

This is a fundamental mischaracterization of the 

evidence as there is no indication in W.F.’s file that 

Respondent had a plan to manage his use of 

controlled substances. Moreover, Dr. H.G.’s letter 

merely stated that because W.F. could not see the 

VA for another three months, he was ‘‘in agreement 

that he should see you until his appointment.’’ GX 

13, at 15. Moreover, Dr. H.G. and his staff 

repeatedly cautioned Respondent about W.F.’s 

narcotics abuse history. See id. at 13–15. This is 

hardly a concurrence in whatever prescriptions 

Respondent would write. 

33On January 6, 2002, M.D. was found dead at his 

residence. GX 18, at 3. The Medical Examiner found 

that M.D.’s death was caused by ‘‘opiate, cocaine 

and methadone intoxication.’’ Id. at 2. Respondent 

had not seen M.D. in seven months. 

34This incident of diversion furnished the basis 

of one of the counts of Accessory After the Fact in 

Respondent’s plea agreement. See GX 6, at 7. 

On cross-examination, Respondent 

testified that she had heeded the 

psychiatrist’s warning about the past 

heroin addiction and also his 

‘‘judgment’’ that pain medications were 

appropriate.32 Tr. 2382. She admitted 

that she never did an addiction history. 

Id. In her testimony, Respondent did 

not, however, respond to Dr. Hare’s 

contention that her physical exam was 

minimal and inadequate. 

The ALJ credited Respondent’s 

testimony that oxycodone is a shortacting medication and that half of it is 

gone after two hours. ALJ at 82 (citing 

Tr. 2165). The ALJ also credited 

Respondent’s testimony that it was 

‘‘quite possible that a patient could take 

a level of less than five,’’ and that this 

‘‘doesn’t mean that a person is not taking 

his or her oxycodone.’’ Id. Respondent 

did not, however, address why there 

was no methadone, a medication with a 

much longer half-life than oxycodone, 

in W.F. at the time of his death. 

W.F. was one of those patients about 

whom Dr. Schneider concluded that 

there was ‘‘evidence of ‘aberrant drugrelated behaviors’, which should have 

been pursued but weren’t.’’ RX K–1, at 

6. Dr. Schneider further noted W.F. had 

‘‘received early refills without adequate 

documentation and explanations,’’ and 

that Respondent’s charts indicated that 

Respondent ‘‘needed additional 

education about obtaining an addiction 

history, careful monitoring and review 

of the big picture.’’ Id. 

M.D. and S.R. 

M.D. and S.R., who were both patients 

of Respondent, were unmarried but 

lived together. M.D. first visited 

Respondent on May 21, 2001, when he 

complained of having ‘‘fallen off a 

bicycle’’ and of a ‘‘back and leg injury.’’ 

GX 17, at 1. M.D. further related that 

another physician had prescribed to him 

OxyContin 80 mg. (at a dosing of one 

tablet every twelve hours), Oxyfast, and 

methadone, but that the physician had 

left the office and that he had been off 

the drugs for several months. Id. 

Respondent did not, however, attempt 

to contact the other physician’s office to 

verify the statement and/or to obtain 

treatment records. 

Respondent’s physical exam noted 

that M.D. was a ‘‘lethargic male in no 

acute distress with antalgic limp, 

favoring left lower extremity,’’ ‘‘pain 

with range of motion of the left ankle,’’ 

‘‘tenderness over bilateral thoracic and 

lumbar paraspinals,’’ and ‘‘decreased 

lumbar range of motion associated with 

pain.’’ Id. Respondent did not, however, 

otherwise indicate how severe M.D’s 

pain was. Id. Respondent also had M.D. 

sign a pain contract and issued him 

prescriptions for 60 OxyContin 80 mg. 

q12h, 30 milliliters of Oxyfast, and 30 

tablets of Oxycodone 5 mg. PRN. Id. 

Later the same day, Respondent 

documented having received a phone 

call (apparently from a pharmacy) 

reporting that M.D. was ‘‘known to forge 

prescriptions and was arrested.’’ Id. at 2. 

Respondent notified the pharmacy 

where M.D. had indicated on the pain 

contract that he would fill his 

prescriptions not to fill them. Id. M.D., 

however, filled the OxyContin 

prescription at a Walgreen’s pharmacy. 

Id. 

On June 8, 2001, M.D. returned to 

Respondent seeking a new OxyContin 

prescription. Id. M.D. reported that he 

was taking double the dose of the 

OxyContin. Id. He also did not 

remember what had happened at the 

pharmacy which had reported him to 

Respondent. Id. Respondent refused to 

issue the prescription. Id. 

There are no further visits recorded in 

M.D.’s patient record. Id. The record 

indicates, however, that on October 8, 

2001, the patient pharmacy manager at 

Tucson Medical Center reported that 

M.D. had been admitted to the hospital 

in a coma seven days earlier and had in 

his possession methadone 40 mg. tablets 

which were contained in a prescription 

bottle; the label indicated that the 

prescription was for Dilaudid 4 mg. and 

had been issued by Respondent to 

S.R.33 Id. 

S.R. first saw Respondent on August 

3, 2001, complaining of abdominal and 

pelvic pain. GX 15, at 1. S.R. reported 

that she had a history of interstitial 

cystitis and active hepatitis C, but 

apparently she did not bring records 

about either condition with her. See id. 

S.R. indicated that she was taking Xanax 

and Vicodin, which she obtained from 

another doctor. Id. She also stated that 

she was taking her deceased husband’s 

OxyContin and Dilaudid.34 Id. 

Respondent’s physical exam indicated 

that S.R. was ‘‘in moderate distress,’’ that 

she had ‘‘pain with ambulation and 

limp,’’ and had ‘‘tenderness over [her] 

abdomen.’’ Id. Respondent diagnosed 

S.R. as having ‘‘interstitial cystitis and 

chronic pain,’’ as well as Hepatitis C. Id. 

Respondent discussed the risks and 

benefits of long-acting opioids, 

including addiction and side effects, 

and prescribed Dilaudid 2 mg. ‘‘QID 

#30,’’ OxyContin 10 mg. ‘‘q12h #30,’’ and 

Xanax 0.5 mg. ‘‘TID PRN #90.’’ Id. There 

is no indication that Respondent 

contacted the physician who had 

prescribed Vicodin and Xanax to her. 

See id. Moreover, there is no indication 

as to why she prescribed Xanax, an antianxiety drug. Nor did she counsel S.R. 

about the use of her deceased husband’s 

medications. Tr. 2353. 

S.R. returned seventeen days later, 

reported that she was out of Dilaudid 

and OxyContin, and asked for stronger 

medication. GX 15, at 1–2. Respondent 

found that S.R. had ‘‘pain with 

ambulation and limp’’ and ‘‘tenderness 

over [her] abdomen.’’ Id. at 2. 

Respondent increased both the strength 

and quantity of the Dilaudid to 4 mg. 

‘‘QID #60,’’ and the strength of the 

OxyContin to 20 mg., with the same 

dosing and number of tablets (‘‘q12h 

#30’’). She also issued a new 

prescription for Xanax, 0.5 mg., TID 

PRN #90. Id. at 2. 

On September 4, 2001, S.R. again saw 

Respondent. Respondent noted that 

S.R.’s urologist had ‘‘diagnosed 

interstitial cystitis,’’ and that she needed 

to ‘‘obtain records from Dr. [M].’’ Id. 

Respondent also noted that while S.R. 

‘‘gets abdominal pain,’’ ‘‘she is more 

comfortable.’’ Id. Respondent again 

wrote prescriptions for Dilaudid and 

OxyContin, doubling the strength of the 

latter to 40 mg. with the same dosing 

instruction of ‘‘q12h.’’ Id. 

On September 18, S.R. complained of 

‘‘continued pain’’ and wanted a higher 

dose of OxyContin even though she was 

‘‘more comfortable.’’ Id. Respondent 

doubled the strength of the OxyContin 

to 80 mg. ‘‘q12h #30’’ and also wrote a 

prescription for 60 Dilaudid 4 mg. Id. at 

3. Respondent noted that she ‘‘sent 

another request for records from Dr. 

[M].’’ Id. 

On October 2, Respondent 

discontinued OxyContin in favor of MS 

Contin, 100 mg. ‘‘q8h #100,’’ which was 

‘‘less expensive,’’ and also wrote a 

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35 Dr. O’Connor also testified that she was aware 

of J.R.’s diagnosis and his work situation. Tr. 1129– 

30. With respect to the latter, she maintained that 

it was ‘‘just general patient knowledge. You ask 

them what they do, how their life is, to assess any 

addiction factors or anything else like that.’’ Id. at 

1130. Again, there is no evidence that Dr. O’Connor 

worked at the pharmacy where J.R. filled his 

prescriptions. Her testimony is not credible. 

36 It is unclear, however, whether Respondent had 

previously treated J.R. for migraines. 

prescription for Dilaudid. Id. She also 

issued S.R. a prescription for 100 Xanax 

(1 mg.), with two refills, which was 

double the strength of the previous 

prescription, after S.R. had claimed that 

‘‘the pills got wet and they dissolved.’’ 

Id. Respondent also noted that S.R. ‘‘has 

severe anxiety and needs the Xanax’’ 

and was complaining of abdominal 

pain. Id. The next day Respondent gave 

S.R. a prescription for 200 Methadone 

10 mg. ‘‘3 tabs QID’’ for pain when S.R. 

returned, having not filled the MS 

Contin prescription due to its cost. Id. 

On October 8, Respondent received 

the phone call described above 

reporting that M.D. had been admitted 

in a coma seven days earlier. Id. at 4. At 

S.R.’s next visit, which was on October 

12, Respondent ‘‘explained to [her] that 

she must be very careful with her 

medications.’’ Id. According to the 

patient record, S.R. ‘‘denie[d] that [M.D.] 

could have ever gotten his [sic] 

medications.’’ Id. Respondent reported 

that S.R. was still complaining of 

abdominal pain and issued her a new 

prescription for 60 Dilaudid 4 mg. Id. 

Moreover, a week later, Respondent 

issued S.R. a new prescription for 200 

Methadone 10 mg. Respondent did not 

institute any kind of monitoring on 

S.R.’s use of her medication. Id. 

On November 2, S.R. returned 

‘‘complaining of abdominal pain.’’ Id. 

Respondent referred her to another 

physician ‘‘for interstitial cystitis 

treatment and work-up.’’ Id. Respondent 

also wrote S.R. prescriptions for 60 

Dilaudid 4 mg. and 200 Methadone 10 

mg. Id. 

On November 19, S.R. returned to 

obtain more ‘‘prescriptions, and [was] 

very irate that they weren’t ready.’’ Id. 

Respondent explained she would not 

write prescriptions for more opioids 

without further documentation of S.R.’s 

condition. Id. at 5. Respondent also 

noted that S.R. had indicated that she 

had not seen the physician who was to 

evaluate her for cystitis because her 

primary care doctor had not authorized 

the visit. Id. 

On December 4, the patient record 

indicates that S.R. ‘‘HA[d] CALLED FOR 

THE PAST 3 DAYS REQUESTING RX— 

EVERYONE HAS EXPLAINED TO HER 

THAT UNTIL MEDICAL RECORDS ARE 

RECEIVED TO CONFIRM HER 

CONDITION RX WILL NOT BE 

WRITTEN PER [Respondent].’’ Id. S.R. 

offered money for the prescriptions and 

said that she would go back to Detroit 

to pick up her medical records ‘‘BUT 

NEED[ED] MEDS TO GO.’’ Id. 

Respondent told her to go to her 

primary care physician to get the 

prescriptions. Id. The final entry, 

December 14, indicates that S.R.’s 

medical records were printed out for her 

to pick up. Id. 

Dr. Hare did not review M.D.’s patient 

file, but he did review S.R.’s. Dr. Hare 

found that Respondent performed only 

a ‘‘minimal’’ physical examination and 

did not insist on getting documentation 

of the diagnosed interstitial cystitis and 

hepatitis until she had treated S.R. for 

several months. GX 46A, at 13. He 

indicated that Respondent’s ‘‘evaluation 

of the patient was insufficient to justify 

the prescribing of controlled 

substances.’’ Id. at 14. Dr. Hare further 

found that Respondent ‘‘escalated opioid 

doses by patient request, not because of 

favorable responses.’’ Id. While he found 

that it was ‘‘unlikely’’ that Respondent’s 

prescribing contributed to S.R.’s death, 

he suggested that Respondent’s 

prescribing ‘‘perpetuated an ongoing 

drug abuse problem.’’ Id. 

J.R. 

J.R. (GX 24) had been convicted of 

distributing marijuana. Tr. 1995. 

Respondent maintained, however, that 

he had turned his life around and was 

proud of that. Id. J.R. first visited 

Respondent at her Calmwood Medical 

clinic in August 1999, but she had 

treated him at another clinic previously 

and had not transferred those medical 

records into his chart. See GX 24, at 1. 

Respondent maintained that J.R. 

needed to take ‘‘a very high dose of 

OxyContin’’ in order to work, and that 

without the medication, the migraine 

headaches were so bad he could not 

function. Tr. 1996–97. Respondent 

testified that she thought J.R. was a 

legitimate patient. Id. at 1997. 

The ALJ also credited the testimony of 

Dr. O’Connor that she saw J.R. ‘‘when he 

picked up his prescribed medications at 

Wilmot Pharmacy’’ and he ‘‘was 

functional, his words were never 

slurred, and he appeared ‘fine.’ ’’ ALJ at 

106. There is, however, no evidence in 

the record that Dr. O’Connor ever 

worked at Wilmot Pharmacy, see Tr. 

1107–08, where J.R. picked up nearly all 

of his prescriptions. GX 23; see also RX 

8 (affidavit of Dr. O’Connor indicating 

places of employment which do not 

include Wilmot Pharmacy). Moreover, 

Dr. O’Connor testified that she 

‘‘remember[ed] how I talked to him on 

the phone several times.’’ Tr. 1129. At 

no point did Dr. O’Connor testify that 

she had actually seen J.R. when he 

picked up his prescriptions.35 Id. at 

1129–30. I therefore reject the ALJ’s 

finding. 

At J.R.’s first visit recorded in the 

patient file, August 25, 1999, 

Respondent noted that he suffered 

‘‘chronic severe migraine headaches,’’ 

and that he ‘‘has been on opioids with 

good relief.’’ 36 GX 24, at 1. She also 

noted that he was on ‘‘methadone 

because it is inexpensive.’’ Id. That day 

she prescribed Oxycodone IR ‘‘2 tabs 

q8h 180’’ (a thirty-day supply), Percodan 

#200 (with no dosing instruction), 

OxyContin 40 mg. ‘‘4 tabs q8h #360 (a 

thirty-day supply), and methadone 5 

mg. ‘‘QID #60 (a fifteen-day supply). Id. 

On September 15, twenty-one days later, 

Respondent again prescribed to J.R. 

Oxycodone IR ‘‘2 tabs q8h #180 (a thirtyday supply), Percodan #200, OxyContin 

40 mg. ‘‘4 tabs q8h #360’’ (a thirty-day 

supply), and methadone 5 mg. ‘‘QID 

#60’’ (a fifteen-day supply). Id. J.R.’s 

record also indicated that on September 

22 (a week later), she issued 

‘‘replacement prescriptions,’’ but gave no 

reason for doing so. Id. 

On October 20, J.R. again visited 

Respondent. Respondent wrote 

prescriptions for Oxycodone IR ‘‘2 tabs 

q8h #180’’ (a thirty-day supply), 

Percodan #200, OxyContin 40 mg. ‘‘4 

tabs q8h #360’’ (a thirty-day supply), 

and Methadone 10 mg. ‘‘QID #60.’’ Id. 

No reason was cited for increasing the 

Methadone. See id. On November 11 

(twenty-two days later), J.R. returned 

and reported that he had taken ‘‘extra 

medicine this week because of low back 

pain,’’ which ‘‘started a few days ago.’’ 

Id. at 2. Respondent wrote him 

prescriptions for Methadone 10 mg. 

‘‘QID #60,’’ Oxycodone IR ‘‘2 tabs q8h 

#180’’ (a thirty-day supply), OxyContin 

40 mg. ‘‘4 tabs q8h #360’’ (a thirty-day 

supply), and ‘‘OxyContin #100.’’ Id. at 2. 

The patient chart indicates that the 

prescriptions for Oxycodone and the 

360 OxyContin 40 mg. were for the 

Patient Assistance Program (PAP), with 

the 100 extra OxyContin ‘‘to fill now 

until medications arrive in the mail.’’ Id. 

On November 18, Respondent wrote 

another prescription for OxyContin 40 

mg. ‘‘4 tabs q8h #360’’ (a thirty-day 

supply). Id. 

On December 13, Respondent wrote 

the same prescriptions for 360 

OxyContin 40 mg., 60 Methadone 10 

mg., 180 Oxycodone IR, and 200 

Percodan. Id. The record indicates that 

the Oxycodone prescription was for 

PAP, and Respondent additionally 

wrote a prescription for Valium 10 mg. 

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37Fioricet is not a controlled substance. 

‘‘TID #60 with three refills’’ (an eightyday supply), and for Fioricet.37 Id. The 

patient record gives no indication at to 

what medical purpose supported the 

prescribing of the Valium. Id. 

On January 4, 2000, Respondent wrote 

that J.R. ‘‘continues on Oxycodone IR 

and OxyContin around the clock for 

excellent control of migraine 

headaches.’’ Id. She wrote the usual 

prescriptions for 360 OxyContin 40 mg. 

(thirty-day supply), 60 Methadone 10 

mg., 200 Percodan and 180 Oxycodone 

IR (thirty-day supply), the latter ‘‘for 

PAP.’’ Id. at 3. 

On January 21 (seventeen days later), 

J.R. returned and received two 

prescriptions for 360 OxyContin 40 mg. 

(two thirty-day supplies; ‘‘[o]ne 

prescription to be mailed to PAP, and 

other one to be filled locally’’), and 

prescriptions for Methadone, Percodan 

and Oxycodone IR (again a thirty-day 

supply of the latter for PAP). Id. On 

February 7 (again after only seventeen 

days), Respondent again wrote two 

prescriptions for 360 tablets of 

OxyContin 40 mg., with one to be filled 

locally and one to be sent to PAP. Id. At 

the same visit, Respondent also wrote 

prescriptions for 180 Oxycodone IR (for 

PAP), 60 Methadone, and 200 Percodan. 

Id. at 4. 

After just another fifteen days, on 

February 22, 2000, J.R. reported ‘‘a 

severe headache on Sunday, February 

20.’’ Id. Respondent planned to 

‘‘[c]ontinue same dose of medications,’’ 

but ‘‘[i]f he has another severe headache 

within the next 3 months,’’ she planned 

to ‘‘increase his dose by probably about 

60–80 mg per day.’’ Id. She again wrote 

two prescriptions for 360 OxyContin 40 

mg. (each a thirty-day supply), one ‘‘to 

be mailed to PAP, and other one to be 

filled locally.’’ Id. She also prescribed 

100 Methadone 10 mg., 200 Percodan, 

and 180 Oxycodone IR (the latter for 

PAP, a thirty-day supply). 

Twenty days later, on March 13, J.R. 

returned with another report of a ‘‘severe 

headache,’’ having taken ‘‘extra of the 

OxyContin and Oxycodone IR, and also 

methadone.’’ Id. Respondent decided to 

increase both the OxyContin and 

Oxycodone IR and wrote two 

prescriptions for both drugs with one to 

be sent to the PAP: OxyContin 40 mg. 

‘‘5 tabs q8h #450’’ (a thirty-day supply), 

and Oxycodone IR ‘‘4 tabs q8h #360’’ (a 

thirty-day supply). Id. at 5. She also 

wrote prescriptions for an increased 

dosage of Methadone 10 mg. (‘‘3 tabs 

TID #100’’) and for Percodan (‘‘2 tabs 

q4h #200’’). Id. The next day, for no 

reported reason, Respondent wrote two 

new prescriptions for OxyContin and 

Oxycodone IR, backdating them to 

March 5. Id. No mention was made of 

whether J.R returned the prescriptions 

which she wrote the day before. See 

generally id. 

Eight days later, on March 22, J.R. 

returned and reported that he would be 

going to ‘‘a rally in California,’’ and that 

he needed ‘‘extra medications for control 

of migraine headaches.’’ Id. Respondent 

prescribed Methadone 10 mg. ‘‘3 tabs 

TID #30’’ (3–4 days supply) and 

OxyContin 40 mg. ‘‘5 tabs q8h #30’’ 

(two-day supply). Id. 

On April 12 (twenty-one days later), 

J.R. again reported a severe headache 

and that he was taking ‘‘extra 

medications.’’ Id. Respondent again 

wrote two prescriptions each for a 

thirty-day supply of 450 OxyContin 40 

mg. and 360 Oxycodone IR, as well as 

Methadone 10 mg. ‘‘TID #100’’ and 200 

Percodan. Id. at 6. 

On May 2 (twenty days later), the 

patient record states that J.R. ‘‘needs to 

increase his OxyContin because he had 

a severe headache for 3 days.’’ Id. 

Respondent wrote a prescription for 

OxyContin 80 mg. ‘‘q8h #270’’ (a thirtyday supply) and noted that the next day, 

she would write prescriptions for 

OxyContin and Oxycodone IR for the 

PAP. Id. 

On May 8 (six days later), Respondent 

wrote two prescriptions for OxyContin: 

one for 270 tablets of 80 mg. strength for 

PAP (a thirty-day supply based on her 

dosing instruction of 3 tabs q8h) and 

one for 450 tablets of 40 mg. strength 

(also a thirty-day supply). Moreover, 

Respondent wrote prescriptions for 360 

Oxycodone IR (2 tabs q8h, a sixty-day 

supply) for PAP, as well as a 180 

Oxycodone IR (2 tabs q8h, a thirty-day 

supply). Id. at 7. 

On May 15, (a week later), 

Respondent wrote additional 

prescriptions which were to be filled by 

PAP: 270 tablets of OxyContin 80 mg. 

and 360 tablets of Oxycodone IR ‘‘to 

remail.’’ Id. Two days later, Respondent 

gave J.R. prescriptions for a one-week 

supply of both OxyContin 40 mg. (126 

tablets) and Oxycodone IR (84 tablets), 

the latter being a ‘‘free 1 week trial.’’ Id. 

On May 31, Respondent wrote 

prescriptions for Percodan ‘‘q4h PRN 

#200,’’ Methadone 10 mg. ‘‘QID #120’’ (a 

thirty-day supply), OxyContin 40 mg. ‘‘5 

tabs q8h #540 (a thirty-six day supply) 

and Oxycodone IR ’’4 tabs q8h #360’’ (a 

thirty-day supply). Id. 

On June 9, when J.R. complained ‘‘of 

worse headaches,’’ Respondent 

concluded that ‘‘we need to increase the 

OxyContin dose again’’ because he 

‘‘doesn’t tolerate any lower dose of 

OxyContin.’’ Id. at 8. She again wrote for 

OxyContin 80 mg. ‘‘3 tabs q8h #270’’ 

(thirty-day supply). Six days later, on 

June 15, Respondent wrote prescriptions 

for OxyContin 80 mg. ‘‘3 tabs q8h #360’’ 

(thirty-day supply), Methadone 10 mg. 

‘‘QID #120’’ (a thirty-day supply), 

OxyContin 40 mg. ‘‘5 tabs q8h #540’’ (a 

thirty-six day supply, with no 

explanation of why J.R. needed both 40 

and 80 mg. OxyContin), and Oxycodone 

IR ‘‘4 tabs q8h #360’’ (thirty-day supply). 

Id. The final sentence in the record for 

that date is ‘‘For PAP program,’’ but it 

does not indicate whether that is just 

the Oxycodone or all the prescriptions. 

Id. 

This pattern of early prescribing and 

not explaining seemingly duplicative 

dosages continues in the treatment of 

this patient through its conclusion in 

April 2002. Notwithstanding the large 

quantities of drugs she was prescribing 

to J.R., there is no indication in the 

medical record that Respondent ever 

required him to undergo blood or urine 

tests to determine whether he was 

actually taking the drugs. Nor did she 

require him to bring in his medications 

for pill counts. 

Subsequent to Respondent’s treatment 

of J.R., his next doctor (Dr. H.) wanted 

to reduce the amount of controlled 

substances that he was prescribed, as 

Dr. H. suspected diversion. GX 70, at 

35–36. Dr. H. also told a DI that a third 

doctor who later treated J.R was 

surprised that, when J.R. reported 

running out of medication, he was not 

experiencing withdrawal symptoms. Id. 

at 36. That doctor reportedly referred 

J.R. for detoxification treatment. Id. 

Respondent asserted that Dr. H. had 

given contradictory statements by 

saying that he was ‘‘positive [J.R.] is 

diverting and selling all of those 

medications, and not taking them, and 

yet he is exhibiting signs of 

withdrawal.’’ Tr. 1994. The record 

indicates, however, that Dr. H. had been 

told by the third physician that J.R. was 

not ‘‘exhibiting any signs of 

withdrawal.’’ GX 70, at 36. According to 

Respondent, J.R. ultimately selfdeclared as a heroin addict in order to 

get methadone. Tr. 2001. 

Regarding J.R., Dr. Hare observed that 

while Respondent had previously 

treated him at another clinic, there were 

no records from the clinic ‘‘indicating 

evaluation to confirm the diagnosis of 

migraine headache or to further 

characterize his headaches,’’ and that 

there were no ‘‘records from other 

physicians or record of treatment with’’ 

non-opioid medications even though 

migraines ‘‘typically respond to a 

number of non-controlled substance 

medications’’ which should have been 

tried first. GX 46, at 13. 

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38 Dr. Hare also noted that J.R. was being 

prescribed methadone because ‘‘it is inexpensive, 

and yet the methadone was only a small part of the 

patient’s total opioid intake, particularly as 

compared to OxyContin.’’ GX 46, at 13–14. 

39The ALJ gave N.F.’s interview with the DI 

‘‘little weight’’ because ‘‘[n]either N.F. nor the 

pharmacist testified at the hearing,’’ and N.F. had 

a ‘‘history of questionable truthfulness, honesty, and 

completeness’’ and had ‘‘fail[ed] to tell the 

Respondent of her addiction.’’ ALJ at 78 n.17. The 

ALJ also noted that ‘‘there is no evidence that the 

Respondent was made aware of N.F.’s addiction 

issues during the course of treatment.’’ Id. 

I credit N.F.’s interview because the patient file 

corroborates her story regarding the pharmacist who 

called Respondent and reported that she was 

obtaining Vicodin prescriptions from multiple 

doctors. GX 34, at 2. I also expressly reject the ALJ’s 

finding that there is no evidence that Respondent 

was aware of N.F.’s addiction during the course of 

treating her as it is clear that Respondent had 

reason to know of N.F.’s potential addiction on the 

same day as the initial visit when the pharmacist 

told her that she was a doctor shopper. As for the 

ALJ’s reasoning that N.F.’s statement is not credible 

because she ‘‘fail[ed] to tell Respondent of her 

addiction,’’ one would hardly expect a person who 

seeks drugs to abuse them to tell a doctor the real 

reason she wanted the drugs. 

40 Due to the toxicity of acetaminophen, 4000 mg. 

is the maximum recommend daily dose. Tr. 403– 

04. 

Relatedly, Dr. Schneider testified that 

in treating a migraine headache of a 

recurring nature, a CAT scan should be 

ordered even though it will probably be 

‘‘completely normal.’’ Tr. 872. There is, 

however, no evidence in the patient 

record that Respondent ordered a CAT 

scan for J.R. 

Dr. Hare further noted that 

Respondent was giving J. R. ‘‘duplicate 

prescriptions for OxyContin, one to fill 

immediately and one to send to the 

Patient Assistance Program, and yet 

Respondent did not seem aware that she 

was giving him twice the amount of 

medication.’’ 38 GX 46, at 14. He further 

noted that, while in March 2000, J.R. 

was only periodically having worse 

headaches, Respondent increased the 

dosing of both the OxyContin (longacting) and Oxy IR (short-acting), when 

‘‘an increase in short-acting medications 

would have been a more appropriate 

step, if any change was indicated.’’ Id. 

Finally, Dr. Hare concluded that there 

was ‘‘no treatment plan,’’ and that ‘‘[a]ny 

time this patient wanted to increase 

medications, he did, and [Respondent] 

accommodated him by increasing the 

prescriptions.’’ GX 46, at 14–15. 

N.F. 

N.F. had previously been identified 

by two faxnets issued to Tucson area 

pharmacies by the Arizona State Board 

of Pharmacy as having allegedly 

engaged in doctor shopping and calling 

in fraudulent prescriptions for Lortab 

(hydrocodone). GX 35; Tr. 287–89. The 

faxnets were dated May 8, 2000, and 

April 13, 2001. GX 35, at 1–2. 

In February 2003, a DEA Investigator 

interviewed N.F., who admitted to being 

addicted and to having gone initially to 

Respondent to ‘‘feed her addiction.’’ GX 

70, at 38. N.F. told the Investigator that 

a pharmacist had called Respondent in 

N.F.’s presence and told Respondent 

that he did not want to fill a 

prescription Respondent had written 

because he believed N.F. had a drug 

problem. Id. According to the DI’s 

declaration, Respondent continued to 

prescribe for N.F. for another sixteen 

months after receiving the phone call 

and ‘‘never questioned [N.F.] about her 

medical history.’’ Id. at 39. 

N.F.’s first visit with Respondent was 

on November 13, 2000, after the first 

faxnet, which alleged that N.F. was 

engaged in doctor shopping. See GX 34, 

at 1; GX 35, at 1–2. N.F. told 

Respondent that her vehicle had been 

rear ended in March 2000 and that she 

was experiencing neck, shoulder, and 

back pain. GX 34, at 1. There is no 

indication in N.F.’s record that 

Respondent inquired about her 

substance abuse history. See generally 

id. at 1–2. N.F. complained of numbness 

in her left mid-thigh, muscle spasms 

and headaches. Id. at 1. Respondent 

performed a physical exam, which the 

Government’s Expert concluded was 

adequate, and diagnosed her as having 

a ‘‘post acute cervical sprain and acute 

lumbar sprain. Postpartum.’’ Id. at 2; GX 

46, at 10. Respondent issued N.F. a 

prescription for thirty tablets of Vicodin 

ES with two refills, gave her samples of 

Skelaxin, recommended a program of 

physical therapy, and indicated that she 

would take Vioxx, which apparently 

had been prescribed after a knee surgery 

a year earlier. GX 34, at 2. 

According to N.F.’s patient file, later 

that day, ‘‘Rachel from Albertson’s 

* * * called regarding multiple doctors 

prescribing Vicodin ES for’’ her. Id. 

According to the note, Albertson’s ‘‘will 

cancel the refills.’’ Id.39 Notwithstanding 

this phone call, four days later 

Respondent gave N.F. a prescription for 

30 tablets of Lortab 7.5/500 mg. (1–2 

q4h to take as needed but maximum of 

eight tablets per day), another 

combination drug which (like Vicodin) 

contains hydrocodone and 

acetaminophen, with two refills. Id. at 3. 

Respondent also wrote additional 

prescriptions for Lortab with two refills 

on November 28. Id. On December 1, 

however, Albertson’s again called and 

told Respondent that N.F. wanted an 

early refill, which Respondent 

approved. Id. 

On December 8, Respondent 

increased the Lortab prescription to 

forty tablets with two refills. Id. at 4. On 

December 22, Respondent re-issued the 

Lortab prescription with two refills. Id. 

at 5. 

Thereafter, N.F. began a pattern of 

seeking early refills. On January 2, 

Respondent issued N.F. a prescription 

for forty Lortab with three refills (with 

the same dosing). Id. While the 

prescription and refills should have 

lasted until January 22, on January 16, 

N.F. complained that she still had 

severe neck pain and Respondent issued 

another prescription for forty Lortab 7.5/ 

500 with three refills. Id. at 6. However, 

on January 25, nine days later, 

Respondent issued a new prescription 

(again for 40 tablets with three refills) 

but which increased the strength of the 

Lortab to 10/500.40 Id. 

From early on in Respondent’s 

treatment of her, N.F. displayed a 

pattern of requesting early refills, which 

Respondent did not appear to notice as 

she always wrote the prescriptions as 

requested. For instance, on January 16, 

2001, Respondent wrote a prescription 

for ‘‘Lortab 7.5/500 1–2 q6h PRN #40 

with 3 refills,’’ which should have lasted 

at least twenty days. Id. However, on 

January 25, just nine days later, when 

N.F. complained that the medication 

wasn’t ‘‘strong enough,’’ Respondent 

increased the dose to ‘‘Lortab 10/500 #40 

with 3 refills,’’ which should again have 

lasted twenty days, assuming that the 

dosing remained the same. Id. 

However, N.F. returned on February 

7, complaining of recent headaches and 

pain in both her neck and back. 

Respondent again issued her a 

prescription for ‘‘Lortab 10/500 #40 with 

3 refills.’’ Id. On February 16, 

Respondent issued N.F. another 

prescription for 40 tablets of Lortab 10/ 

500 with three refills. Id. at 7. 

On April 25, Respondent switched 

N.F. from Lortab to Percocet (a drug 

combining oxycodone and 

acetaminophen), and approximately two 

weeks later added Percodan, a drug 

combining oxycodone with aspirin. Id. 

at 9–10. Four days later, Respondent 

changed from Percodan to oxycodone 5 

mg. and continued to prescribe 

Percocet. Respondent prescribed both 

drugs on several occasions. Id. at 11–12. 

On June 11, N.F. visited Respondent. 

According to N.F.’s file, she had 

‘‘suffered [a] burn’’ in her ‘‘right thoracic 

area,’’ but did not ‘‘remember burning 

herself.’’ Id. at 12. Respondent 

continued to prescribe oxycodone and 

Percocet throughout the summer 

months. Id. at 12–14. Respondent, 

however, stopped prescribing the 

Percocet in late July when N.F. 

complained that it made her sick. Id. at 

15. By September 11, N.F. was taking 30 

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41Respondent also prescribed penicillin for a 

dental infection. 

42As Dr. Hare noted, ‘‘this does not exclude the 

possibility that [N.F.] was paying for the 

prescriptions herself.’’ GX 46, at 11. Moreover, N.F. 

could have filled the prescription at another 

pharmacy. 

oxycodone tablets per day, and 

Respondent switched her prescription 

to 100 tablets of Roxicodone 30 mg. (q4h 

PRN). Id. at 17. 

An entry in N.F.’s patient record for 

September 19, 2001, indicates that she 

was to move to Illinois at the end of the 

week and that she could not fill the 

Roxicodone prescription because of its 

cost. Id. at 18. On this date, Respondent 

wrote a prescription for 100 tablets of 

oxycodone 5 mg. (3–4 q4h PRN). Id. 

Two days later, N.F. returned. N.F. 

told Respondent that she was not 

‘‘moving until next Friday,’’ and ‘‘would 

like to get Roxicodone.’’ Id. Respondent 

issued a prescription for another 100 

tablets of oxycodone 5 mg. Id. On 

September 27, however, Respondent 

gave N.F. a prescription for 100 tablets 

of Roxicodone 30 mg (1–2 q4h PRN). Id. 

On October 2, N.F. was ‘‘back here to 

pick up her truck.’’ Id. Respondent gave 

her another prescription for 100 

Roxicodone 30 mg. q4h. Id. 

A note dated October 5 indicates that 

‘‘[p]atient’s brother to pick up 

prescription for Roxicodone 30 mg q4h 

PRN 100.’’ Id. at 18–19. Moreover, a note 

dated October 9 indicates that N.F.’s 

cousin was to pick up a similar 

prescription for another 30 tablets of 

Roxicodone 30 mg. Id. at 19. Another 

note dated October 12, again indicated 

that N.F.’s cousin had picked up the 

prescription. Id. 

On October 15, N.F. was back in town 

‘‘to testify for the state’’ and reported that 

‘‘[s]he ha[d] moved to Joliet.’’ Id. N.F. 

reported that she had continued pain 

but that she wanted to decrease her 

Oxycodone intake. Id. Respondent 

issued her a prescription for 200 tablets 

of Roxicodone 5 mg. (2–3 tabs q4h PRN) 

and indicated that N.F. ‘‘will see another 

doctor in Illinois.’’ Id. 

On October 17, N.F. was back to see 

Respondent and underwent therapy. Id. 

Notwithstanding that just two days 

earlier N.F. had stated that she wanted 

to reduce her oxycodone intake, 

Respondent gave her a prescription for 

100 tablets of Roxicodone 15 mg., 2–3 

tab q4h PRN. Id. The dosing instruction 

was thus even greater than the dosing 

instructions of several of the previous 

prescriptions Respondent had written. 

Id. Notwithstanding N.F.’s claims of 

having moved to Joliet, she continued to 

appear at Respondent’s office multiple 

times each month through May 10, 

2002, to obtain prescriptions. See id. at 

19–33. At no point is there 

documentation that Respondent 

questioned N.F. about why she was still 

coming in for prescriptions if she had 

moved. See id. Instead, she authorized 

early refills. See id. at 18–19. 

According to DI Llenas’ Declaration, 

N.F. told her that ‘‘for approximately 

one month’’ she had told Respondent 

‘‘that she was moving to Illinois.’’ GX 70, 

at 39. During that time, individuals 

‘‘pos[ing] as family members’’ would go 

to Respondent’s office to obtain refill 

prescriptions for N.F. Id. N.F. did this 

in order ‘‘to obtain early refills, under 

the guise that the ‘family members’ 

needed time to mail the prescriptions to 

Ms. [F.] in Illinois.’’ Id. 

On October 17, 2001, in addition to 

the Roxicodone 15 mg. that N.F. was 

already taking (‘‘2–3 tabs q4h PRN 

#100’’), Respondent prescribed 30 

Vicodin for ‘‘dental pain.’’ 41 GX 34, at 

19. There is, however, no evidence that 

Respondent referred N.F. to a dentist, 

who could properly diagnose the cause 

of her condition. Nor, given the 

Roxicodone that Respondent was 

prescribing, is it clear why N.F. would 

need to take Vicodin as well. 

On October 19 (two days later), 

Respondent issued N.F. a prescription 

for 200 tablets of Roxicodone 15 mg. (1– 

2 q4h). Id. Moreover, on October 24 (five 

days later), Respondent issued N.F. a 

prescription for 200 tablets of 

Roxicodone 5 mg (3–4 tablets q4h). Id. 

On October 26 (two days later), N.F. was 

back again, complaining of additional 

symptoms including tingling and 

numbness, and that her right hand was 

turning purple. Id. Respondent did not 

conduct a neurologic or vascular exam 

and instead gave her another 

prescription for Roxicodone; the 

prescription was for 50 tablets 30 mg.- 

strength 1⁄2 tab q4h PRN. Id. at 20; see 

also GX 46, at 11. 

On October 29 (three days later), 

Respondent gave N.F. another 

prescription for 100 tablets of 

Roxicodone 30 mg. q4h. GX 34, at 20. 

While the prescription should have 

lasted sixteen days, on November 1, 

Respondent gave N.F another 

prescription (to be filled the next day), 

for 100 tablets of Roxicodone 30 mg. 

q4h. Id. On November 5, Respondent 

gave N.F. a prescription for 200 tablets 

of Roxicodone 5 mg. (3–4 q4h), and 

indicated in the patient record that N.F. 

could not fill the prescription because 

the pharmacy did not have the drug. Id. 

Yet there is no indication that 

Respondent checked with the pharmacy 

or asked N.F. to return the prescription. 

Id. 

While this prescription should have 

lasted eight days, on November 7 (two 

days later) Respondent issued N.F. 

another prescription for 100 tablets of 

Roxicodone 30 mg. 1–2 q4h PRN. Id. at 

21. Five days later (on November 12), 

Respondent gave N.F. another 

prescription for 100 Roxicodone. Id. 

On November 14, N.F., who 

apparently had not moved to Illinois 

after all—although at no point does it 

appear that Respondent questioned her 

about this—returned to Respondent and 

reported that she ‘‘had a motor vehicle 

accident at 6:30 this morning’’ with 

‘‘increased neck pain.’’ Id. Respondent 

noted that N.F. ‘‘has increased muscle 

spasm and difficulty sleeping secondary 

to the motor vehicle accident,’’ which 

had occurred earlier that day. Id. 

Respondent gave N.F. a new 

prescription for 100 Roxicodone 30 mg., 

to be filled on November 19. Id. 

On November 19, N.F. reported that 

she had lost her prescription. Id. 

Respondent noted that she had called 

TMC pharmacy and that the 

prescription had not been filled. Id. She 

also indicated that N.F.’s insurance 

would not cover another prescription if 

the prescription had already been filled. 

Id. Respondent wrote another 

prescription for 100 Roxicodone 30 mg. 

Id.42

On November 21 (two days later), N.F. 

needed more ‘‘medications before * * * 

the weekend.’’ Id. Respondent noted that 

N.F. had ‘‘increased tenderness and 

muscle spasm’’ and gave her a 

prescription for 200 Roxicodone 5 mg. 

(5–6 tabs q4h PRN).’’ Id. at 22. On 

November 26, N.F. told Respondent that 

she had ‘‘been beaten up by her 

neighbors over the Thanksgiving 

weekend’’ and that ‘‘[t]hey stole her 

medications and her money.’’ Id. 

Respondent further noted that N.F. ‘‘has 

a police report.’’ Id. It is unclear, 

however, whether N.F. showed the 

report to Respondent. 

Dr. Hare noted further incidents of 

suspicious behavior on the part of N.F. 

For example, on January 24, 2002, N.F. 

reported that she had taken her children 

roller skating and had ‘‘increased 

soreness ever since.’’ Id. at 24. 

Respondent gave N.F. a new 

prescription for 100 tablets of 

Roxicodone and increased the dosing 

from 1–2 tablets every four hours to 3– 

4 tablets every four hours. Id. 

Dr. Hare again found that Respondent 

‘‘inadequately evaluated’’ the patient 

and that N.F.’s ‘‘condition did not 

warrant [c]ontrolled [s]ubstance 

prescriptions.’’ GX 46, at 12. In addition, 

Dr. Hare opined that N.F. ‘‘was placed 

on excessive medication and took more 

than prescribed and [with] no clear 

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43 In her findings for NF, the ALJ also relied on 

Dr. Weinstein’s criticism in her letter that Dr. Hare 

‘‘describe[d] titration of opioid medications as 

dosages being ‘dramatically increased,’ ‘aggressive,’ 

and given in ‘huge amounts,’ without noting 

subsequent stabilization of dosages.’’ ALJ at 78. 

However, Dr. Weinstein’s criticism was not directed 

specifically at Dr. Hare’s findings on N.F. While Dr. 

Hare did at one point write that N.F. herself 

increased ‘‘her use of hydrocodone (Lortab by this 

time) to excessive amounts,’’ Dr. Hare did not so 

characterize Respondent’s prescribing. GX 46, at 11. 

benefit’’; that ‘‘[c]hanges were made and 

new medications added with no 

explanations’’; that N.F. ‘‘escalated her 

use of medication with no clear benefit, 

and prescriptions were increased to 

accommodate her’’; and that with the 

‘‘medication amounts and uses patterns 

such as [N.F.’s], abuse and diversion of 

these medications ha[ve] to be 

suspected. ’’ Id. Dr. Hare further 

observed that ‘‘[n]o drug screen was 

done to see if the patient was using 

these medications, or other medications 

not prescribed by’’ Respondent. Id. 

Respondent’s expert, Dr. Schneider, 

included N.F. as one of the patients for 

which there was ‘‘evidence of ‘aberrant 

drug-related behaviors’ which should 

have been pursued but weren’t.’’ RX K– 

1, at 6. As explained above, N.F.’s chart 

was among those that ‘‘showed problems 

which indicated that [Respondent] 

needed additional education about 

obtaining addiction history, careful 

monitoring, and review of the ‘big 

picture.’ ’’ Id. 

Indeed, the patient record indicates 

that Respondent made absolutely no 

attempt to monitor N.F. even though she 

received information as early as the day 

of N.F.’s first visit that she was a doctor 

shopper. See GX 34. In addition, 

Respondent ignored other evidence of 

suspicious behavior on N.F.’s part such 

as her continued visits even when she 

she had supposedly moved to Illinois, 

her suffering a second-degree burn but 

not remembering why, and her claim 

that her neighbors had beaten her and 

stolen her medications and money.43

C.O. 

C.O. first treated with Respondent on 

March 5, 1999, complaining of neck and 

lower back pain from an industrial 

injury. GX 36, at 1. He was 28 years old. 

Id. His last visit with Respondent was 

on June 29, 2001. Id. at 34. 

According to C.O.’s medical record, 

several weeks before he started treating 

with Respondent, C.O. had been in an 

industrial accident during which the 

brakes on a man-lift failed and the lift 

hit the ground hard. Id. at 1. C.O. went 

to the emergency room, where x-rays 

were taken of his lumbar and cervical 

spines, as well as his right knee; the xrays were, however, negative. Id. The 

emergency room gave him a 

prescription for Vicodin. Id. 

At the first visit, C.O. complained of 

severe pain in both his back and neck, 

with a pins-and-needles sensation in his 

right leg, including his foot, and a dull 

aching in his back. Id. He also 

complained of headaches and that his 

fingers were stiff and numb. Id. at 1–2. 

With respect to the initial visit, the 

Government’s expert concluded that 

Respondent’s physical exam was 

adequate but noted that she had not 

taken a history of his medication use 

and possible substance abuse. GX 46, at 

12. Respondent prescribed 40 Lortab 

7.5/500 with two refills and physical 

therapy. GX 36, at 2. 

On March 10, Respondent noted that 

C.O. was ‘‘complaining of severe neck 

pain and low back pain’’; the next day, 

she noted that he was ‘‘taking 1 c of the 

Lortab 7.5.’’ Id. at 3. Respondent then 

gave C.O. a prescription for 40 tablets of 

Lortab 10/500 with two refills. Id. 

On March 17, C.O. returned to 

Respondent’s practice and was seen by 

a Family Nurse Practitioner (F.N.P.). Id. 

According to the progress note, C.O. 

reported that he was out of medications, 

needed more, and had gone through 40 

Lortab in six days. Id. The F.N.P. further 

recorded that ‘‘Patient requesting pain 

medication refill—he has two refills left. 

He swears he does not. Asking him to 

bring in bottle.’’ Id. 

On March 19, C.O. returned and saw 

Respondent. Id. C.O. said that he had 

refilled the Lortab 7.5 two times and 

that he had no refills on the Lortab 10 

even though the progress note for March 

11 indicated that Respondent had 

authorized two refills. Id. He also said 

that he was taking up to 12 Lortab per 

day. Id. At this level, C.O. was 

exceeding by 2000 mg. the 

recommended maximum limit of 4000 

mg. of acetaminophen per day. 

On March 22, C.O. returned and 

complained of continued pain between 

his shoulder blades. Id. C.O. reported 

that he had only three Lortab 7.5 mg. 

remaining. Id. The progress note also 

indicates that C.O. had no refills on the 

Lortab 10. Id. Respondent performed a 

physical exam and found that C.O 

‘‘ha[d] no obvious pain with 

ambulation.’’ Id. at 4. She also found 

that he had ‘‘generalized tenderness over 

[his] mid thoracic area and complains of 

mid back pain with range of motion of 

the shoulders.’’ Id. Respondent 

prescribed thirty tablets of OxyContin 

20 mg. q8h (1 tablet every eight hours). 

C.O. returned on March 26 (five days 

later), saw the F.N.P., and reported that 

his back pain was worse. Id. The F.N.P. 

observed that C.O.’s ‘‘speech is slightly 

slurred.’’ Id. She also noted that C.O. 

had ‘‘just t[aken] two OxyContin 20 at 4 

p.m. today,’’ which was twice the dose 

prescribed by Respondent. Id. The 

F.N.P. physically examined Respondent 

and did not find anything abnormal. Id. 

The F.N.P. further noted that she would 

‘‘not refill OxyContin,’’ but would ‘‘speak 

with’’ Respondent. Id. The same day, 

Respondent gave C.O. a new 

prescription for 60 tablets of OxyContin 

20 mg. (2q8h). Id. at 5. On April 2, 

Respondent gave C.O. an additional 

prescription for 60 OxyContin 20 mg. 

(2q8h). Id. 

On April 9, C.O. saw the F.N.P. and 

complained that the ‘‘pain medication is 

not working anymore,’’ that his neck, 

shoulder, and the base of his spine were 

stiff, and that his back felt tight. Id. He 

also reported that he started taking three 

tablets, three times a day, which was 

again in excess of the prescribed dose. 

Id. With the exception of the F.N.P.’s 

finding that C.O.’s mid-back muscles 

were tense and that he complained of 

low back pain on forward flexion, the 

physical exam was normal. Id. The 

F.N.P. further noted that C.O. had ‘‘used 

390 pain pills in 35 days’’; she further 

recommended that C.O. ‘‘decrease pain 

medication use.’’ Id. at 6. Finally, the 

F.N.P. noted that she discussed C.O.’s 

treatment with Respondent and that 

C.O. should undergo an MRI of his 

cervical spine. Id. There is no indication 

in C.O.’s file that he went for this MRI. 

See generally id. 

On April 12, C.O. saw Respondent 

and complained of continued pain in 

his neck and back. Id. He also denied 

‘‘any side effects from the OxyContin’’ 

and maintained that it ‘‘allow[ed] him to 

work.’’ Id. Respondent wrote him a new 

prescription for OxyContin 20 mg., 

increasing the number of tablets to 100 

and the dosing to three tablets every 

eight hours. C.O. saw Respondent 

approximately every nine to ten days 

and complained of stiffness and pain; 

Respondent continued to issue him the 

same prescription until his visit of June 

16. Id. at 7–8. At this visit, Respondent 

decided to lower the dosing of the 

OxyContin to 2qam, 3qpm, and 2qhs 

because three months had passed since 

he was injured and ‘‘he should be able 

to tolerate a lower dose.’’ Id. at 9. At 

C.O.’s next visit (June 28), Respondent 

wrote the same prescription. Id. 

On July 12, Respondent gave C.O. 

another prescription for OxyContin 20 

mg. Id. However, she reduced the 

quantity to 84 tablets and the dosing to 

two tablets every eight hours. Id. 

Moreover, on both July 14 and July 19, 

C.O. reported that he had increased pain 

since Respondent had lowered the dose; 

Respondent did not, however, change 

the dose. Id. at 9–10. In the July 19 note, 

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44Respondent also prescribed Percocet along 

with Lortab. 

45Respondent last prescribed Percocet on June 

19, 2000. GX 36, at 26. On several occasions 

(including January 21, February 9, March 3, March 

29, and May 1, 2000), Respondent prescribed both 

Lortab with three refills, and Percocet. Id. at 20–26. 

Respondent also indicated that C.O. had 

undergone MRIs of both his thoracic 

and lumbar spines, and that each exam 

was negative. Id. at 10. 

On July 26, however, C.O. complained 

of severe pain. Respondent gave him a 

new prescription for 130 tablets of 

OxyContin and increased the dosing to 

three tablets, three times a day. Id. at 11, 

13. At the next visit (August 9), 

Respondent gave C.O. a new 

prescription for 130 tablets of 

OxyContin 20mg. (3 q8h). Id. at 14. 

Respondent also gave him a prescription 

for 30 Percocet, but did not document 

why. Id. Moreover, on August 16, C.O. 

reported that he was taking four tablets 

every eight hours. Id. Respondent then 

issued a prescription for 100 tablets and 

increased the dosing to four tablets 

every eight hours. Id. Respondent also 

wrote another prescription for 30 

Percocet. Id. The progress note contains 

no indication, however, as to whether 

she asked C.O. about how he was using 

the Percocet. 

On August 23, Respondent gave C.O. 

a new prescription which increased the 

strength of the OxyContin to 40 mg., but 

which reduced the dosing to two tablets 

every eight hours. Id. At C.O.’s next visit 

(September 1), he again reported that he 

had increased his dosing from two 

tablets to three tablets every eight hours; 

C.O. claimed that three tablets relieved 

his pain but that two tablets did not. Id. 

Respondent performed a physical exam 

and noted that C.O. had chronic neck 

and mid back pain, that he had less 

lower back pain, and a continued 

muscle spasm. Id. Respondent gave C.O. 

a prescription for 70 tablets of 

OxyContin and increased the dosing to 

three tablets every eight hours; she also 

gave him a prescription for 60 Percocet. 

Id. 

Respondent continued to prescribe 

OxyContin 40 mg. (3 q8h) until October 

22, when she decided to discontinue the 

drug and instead prescribed 200 tablets 

of MS Contin 60 mg. (3 q8h). Id. at 17. 

No explanation for the change was 

given. See id. At C.O.’s next visit (which 

was on October 29), Respondent was 

back to prescribing OxyContin 40 mg., 

and gave him a prescription for 200 

tablets (3 q8h). Id. The October 29 entry 

does not indicate why Respondent 

changed back to OxyContin. Id. 

On November 19, C.O. saw 

Respondent and reported that the MS 

Contin did not help with the pain, that 

he was taking nine tablets a day, and 

that the pain was ‘‘getting worse.’’ Id. 

Respondent performed a physical exam 

and concluded that C.O. still had neck 

and back pain secondary to the February 

accident. Id. at 18. Respondent gave him 

prescriptions for 225 tablets of 

OxyContin 40, with a dosing of ten 

tablets per day (3 qam, 4 qpm, 3 qhs). 

On December 10, C.O. again saw 

Respondent and complained of various 

pains. In the note, Respondent indicated 

that C.O. ‘‘would like to increase the 

OxyContin to 4 tabs q8h.’’ Id. 

Respondent performed a physical exam 

which ‘‘show[ed] no obvious pain with 

ambulation, but he complains of pain.’’ 

Respondent also found that CO ‘‘has 

tenderness over bilateral cervical 

paraspinals, bilateral thoracic muscles 

and bilateral lumbar paraspinals’’ and 

‘‘has hypertonicity of spinal muscles.’’ 

Id. Respondent concluded that C.O. had 

chronic neck, mid-back and lower-back 

pain’’ and gave him a new prescription 

for 252 tablets of OxyContin 40 mg. and 

increased the dosing to four tablets 

every eight hours. Id. at 19. She also 

gave him a prescription for 50 tablets of 

Lortab 10/500 (q6h PRN) for 

breakthrough pain with two refills. Id. 

On December 27, C.O. again saw 

Respondent. While the note for the visit 

indicated that C.O. ‘‘ha[d] been sick with 

the flu,’’ it did not document that C.O. 

complained of any pain. Id. at 19. 

Moreover, Respondent performed a 

physical exam which found that he had 

‘‘generalized tenderness over bilateral 

thoracic and lumbar paraspinals.’’ Id. 

C.O., however, ‘‘ha[d] no pain with 

ambulation’’ and had a ‘‘full range of 

motion of both upper and lower 

extremities.’’ Id. Respondent again 

concluded that C.O. had ‘‘chronic neck 

pain, mid back pain and low pack pain,’’ 

and gave him prescriptions for 252 

tablets of OxyContin 40 mg. (4 q8h), 50 

Lortab 10/500 (q6h PRN) with two 

refills, and 50 Percocet 10/650. Id. 

On January 21, Respondent again saw 

C.O. and stated that ‘‘this dose of 160 

mg.’’ every eight hours worked and that 

while he had some stiffness, he was able 

to ‘‘handle the pain as long as he takes 

the OxyContin.’’ Id. He also ‘‘denie[d] 

any mental changes or ever feeling 

euphoria from the medications.’’ Id. 

Following a physical exam in which she 

noted that he had general tenderness 

over his cervical, thoracic and lumbar 

paraspinals, normal ambulation without 

pain, and pain with both the cervical 

and lumbar range of motion, 

Respondent reissued the three previous 

prescriptions for 252 OxyContin 40 mg., 

50 Percocet 10/650, and 50 Lortab 10/ 

500 with two refills. Id. 

Three days later, Respondent noted 

that C.O.’s insurance had ‘‘denied 

coverage for any medications’’ and that 

he had undergone ‘‘an independent 

medical examination by [another 

physician] in early December.’’ Id. at 21. 

Respondent indicated that C.O. had 

been unable to fill the OxyContin 

prescription ‘‘because of the cost’’ and 

wrote him a new prescription for 50 

tablets. Id. The note does not indicate, 

however, what happened to the original 

prescription or whether C.O. had 

partially filled it. Id. 

Respondent continued to treat C.O. 

through June 29, 2001, and generally 

prescribed the same drugs (OxyContin 

40 mg., Lortab 10/500,44 Percocet 5/ 

325 45) with the same dosing as before. 

See generally GX 36. According to the 

record, at the September 8, 2000 visit, 

C.O. reported that he had obtained a job 

on a cruise ship. Id. at 28. 

At C.O.’s next visit (October 10), he 

reported having injured his back and 

neck on the ship. Id. at 28. Respondent’s 

physical exam ‘‘show[ed] no obvious 

pain with ambulation’’ and found 

‘‘minimal tenderness over lower cervical 

paraspinal and over lumbar 

paraspinals.’’ Id. at 29. Respondent also 

did a neurological exam of his upper 

and lower extremities; the exams were 

normal. Id. Respondent then issued four 

prescriptions for OxyContin 40 mg. 

(each dosing at four tablets every eight 

hours); the quantities were for 168 on 

two of the scripts, with 84 and 80 on the 

remaining two. Id. She also gave C.O. a 

prescription for 350 Lortab 10/500 (q4h 

PRN) with no refills. Id. 

On October 31, C.O. returned to 

Respondent and told her that he would 

be going on a ship ‘‘in a few days and 

be gone for almost 13 weeks.’’ Id. C.O. 

also told Respondent that he had not 

filled the two prescriptions for 168 

OxyContin. Id. She performed a 

physical exam which found that C.O. 

had slight stiffness with ambulation and 

with lumbar range of motion. Id. She 

also found tenderness over his cervical, 

thoracic and lumbar paraspinals. Id. 

Respondent gave him a prescription for 

60 OxyContin 40mg (4 q8h), and 360 

Lortab 10/500 (q4h PRN) with three 

refills. Id. Moreover, on November 3, 

Respondent gave C.O. a prescription for 

another 60 OxyContin 40 mg. Id. at 30. 

Five days later (on November 8), C.O. 

had still not gone on the ship. Id. C.O. 

told Respondent that he still had neck 

and back pain and that he would ‘‘be on 

the ship until January 22, 2000.’’ Id. 

Respondent performed a physical exam 

in which she found ‘‘minimal 

tenderness over [his] cervical, thoracic 

and lumbar spine.’’ Id. Respondent 

issued him four prescriptions for 

OxyContin 40 mg (4 q8h); the quantities 

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46There is no indication as to whether 

Respondent followed up to determine whether C.O. 

went to the emergency room or for the drug test. 

47On February 20, Respondent gave CO three 50- 

tablet prescriptions for Roxicodone 30 mg. GX 36, 

at 32. 

48Respondent observed that she ‘‘would not allow 

his daily dose of acetaminophen to go above 4000 

mg.’’ GX 36, at 36. Id. 

49 In describing her treatment of C.O., Respondent 

maintained that it was C.O.’s overuse of Soma 

which caused him ‘‘to have slurred speech on 2 

occasions.’’ GX 36, at 36. The first of these incidents 

was on March 26, 1999, when C.O. told the F.N.P. 

that he had taken double the dose of OxyContin that 

was prescribed. Id. at 4. Moreover, in the progress 

notes for this visit, there is no indication that C.O. 

was either asked about his Soma use or stated that 

how many tablets he had taken. Id. at 4–5. 

Moreover, while Respondent indicated in the note 

the second incident of slurred speech that ‘‘he 

probably took excess Soma,’’ Respondent did not 

follow through as to whether C.O. had undergone 

drug testing. Id. at 30. 

were 372, 280, 144 and 92 tablets. Id. 

Respondent also gave him a prescription 

for 350 Lortab 10/500 with no refills. Id. 

On December 22, C.O. returned to 

Respondent seeking another 

prescription for OxyContin. Id. 

According to the note, C.O. ‘‘ran out of 

medications this Sunday’’ and claimed 

‘‘that he tore up the prescriptions.’’ Id. 

Respondent noted that C.O. ‘‘show[ed] 

very slurred speech,’’ and concluded 

that ‘‘he probably took excess Soma.’’ Id. 

She referred him to the ‘‘emergency 

room or for drug testing.’’ Id. 

Notwithstanding that C.O. had 

previously told Respondent that he 

would be working on a cruise ship until 

late January, there is no indication that 

Respondent questioned him as to why 

he was back so soon. Id. Indeed, 

according to a pharmacy profile which 

listed prescriptions C.O. had filled at 

Tucson area pharmacies, he had filled 

prescriptions for controlled substances 

on November 21, 22, and 27, as well as 

December 6, 21, and 22, 2000. GX 37, 

at 2. 

On December 27, C.O. returned to 

Respondent seeking more OxyContin. 

GX 36, at 30. Respondent decided to 

taper C.O. down on the OxyContin to 

three tablets every twelve hours (for a 

total of 240 mg. of oxycodone) and 

wrote him prescriptions for sixteen and 

eight tablets.46 Id. at 31. Respondent 

issued additional prescriptions for 

OxyContin 40 mg. in smaller quantities 

with the same dosing instruction on 

January 3, 8, 15 and 22; at the January 

15 visit, Respondent also gave him a 

prescription for 100 Lortab 10/500 with 

two refills. Id. 

On February 5, 2001, C.O. complained 

that he could not afford OxyContin and 

would like more Lortab and Soma. Id. 

Respondent told C.O. that there was a 

daily maximum dose of acetaminophen, 

which is used in Lortab. Id. Instead, 

Respondent prescribed 200 tablets of 

Roxicodone 5 mg. (5–6 q3h PRN). Id. 

Based on this prescription, C.O. would 

have taken a maximum of 240 mg. of 

oxycodone per day. 

On February 14, Respondent gave him 

a prescription for 100 tablets of 

Roxicodone 30 mg., but the dosing 

instructions were not, however, 

recorded in C.O.’s record. Id. 

Respondent also gave C.O. a 

prescription for 100 Lortab 10/500 with 

five refills; this prescription thus 

authorized the dispensing of 600 tablets. 

Id. Based on the maximum daily 

recommended safe dose of 

acetaminophen of 4000 mgs., the Lortab 

should have lasted seventy-five days. 

By February 20, however, Respondent 

was prescribing two tablets of 

Roxicodone 30 mg. every 3 hours, for a 

total dosage of 480 mg. of oxycodone a 

day; this was the same daily amount of 

oxycodone as Respondent had been 

dosing on December 22.47 Id. There is no 

indication in the February 20 note that 

C.O. had complained of worse pain or 

that Respondent had examined him. Id. 

Respondent issued additional 

prescriptions for Roxicodone 30 mg. on 

March 9 (50 tablets) and 13 (three 50- 

tablet prescriptions), although she 

reduced the dosing to one to two tablets 

every four hours for a maximum daily 

dose of 360 mg. of oxycodone. Id. On 

March 27, Respondent gave C.O. not 

only a prescription for 50 Roxicodone 

30 mg., but also for 100 Lortab 10/500 

with five refills, even though the 

previous Lortab prescription (Feb. 14) 

with refills should have lasted seventyfive days or until late April. Id. There 

is no indication in the March 27 note 

that Respondent even recognized this. 

Respondent issued additional 

Roxicodone prescriptions and by April 

17, was back to prescribing 480 mg. of 

oxycodone a day. Id. On April 27, C.O. 

was again out of Lortab even though the 

March 27 prescription with refills 

should have lasted well into June. Id. at 

33. Respondent noted that she told him 

that he could not take more than eight 

Lortab a day and that there would be 

‘‘no more acetaminophen containing 

medications at least for now.’’ Id. 

Respondent, however, gave C.O. a new 

prescription for 100 tablets of 

Roxicodone 30 mg., 1–2 tablets every 

three hours. Id. 

Respondent continued to prescribe 

Roxicodone to C.O. and noted on May 

11, that he was taking ‘‘approximately 

16 Roxicodone per day.’’ Id. Between 

May 11 and June 29, Respondent issued 

eight prescriptions for 100 Roxicodone 

30 mg. Id. at 33–34. Moreover, on June 

8, Respondent indicated that she was 

‘‘discontinu[ing] Lortab and start[ing] 

Norco10/325 1–2 q4h PRN # 100 with 

five refills, maximum twelve per day.’’ 

Id. at 34. This was an even greater dose 

of hydrocodone than before, and yet the 

note for June 8 contains no medical 

reason for issuing the prescription. Id. 

Respondent issued additional 

prescriptions for 100 tablets of 

Roxicodone on June 18, 25 and 29. Id. 

On July 3, C.O. entered drug rehab. Id. 

Following this entry Respondent 

wrote a two-page plus narrative of how 

she had treated C.O. Id. at 35–37. 

Therein, she maintained that she had 

closely ‘‘watch[ed] his intake of Lortab’’ 

because of ‘‘the danger’’ associated with 

taking too much acetaminophen.48 Id. at 

36. Respondent also wrote: 

If [C.O.] did in fact become ‘‘addicted’’ to 

either Roxicodone or Soma, it was not 

because I neglected to try to avoid that. He 

had a true injury, he was truly in pain and 

he truly required the medication to function. 

In rare instances, patients become ‘‘addicted’’ 

to medications that were prescribed 

appropriately. I do not know if this is the 

case with [C.O.], since I have had not follow 

up information on him since June 2001. 

[C.O.] suffered no harm or injury as a result 

of the medications.49

Id. at 37. 

With respect to C.O., Dr. Hare 

concluded that Respondent’s evaluation 

was inadequate ‘‘to justify prescribing 

[c]ontrolled [s]ubstances,’’ and that 

while Respondent had developed ‘‘an 

acceptable treatment plan in 07/99 

* * * to wean the patient from 

medications, * * * the medications 

were continued and increased.’’ GX 46, 

at 13. Dr. Hare further noted that 

Respondent ‘‘exerted little control over 

the prescriptions,’’ that ‘‘[t]he patient 

self-escalated drug doses, and then 

[Respondent] increased the prescription 

to match his use.’’ Id. Moreover, ‘‘[t]here 

were no consequences for excessive 

medication over-use, and dangerous 

amounts were prescribed in general, and 

toxic doses of acetaminophen were 

prescribed on several occasions.’’ Id. 

Finally, Dr. Hare opined that ‘‘[t]here 

seemed to be no plan; he was changed 

from medication to medication, strength 

to strength, dose to dose with no pattern 

or explanations.’’ Id. 

In her report, Dr. Schneider likewise 

concluded that C.O.’s chart ‘‘had 

evidence of aberrant drug-related 

behaviors which should have been 

pursued but weren’t.’’ RX K–1, at 6 (int. 

quotations omitted). Dr. Schneider 

further noted that C.O. had ‘‘received 

early refills without adequate 

documentation and explanation,’’ and 

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50On March 2, N.S. complained that the 

OxyContin was causing ‘‘slight nausea.’’ GX 57, at 

2. 

that his chart ‘‘indicated that 

[Respondent] needed additional 

education about obtaining an addiction 

history, careful monitoring, and review 

of the big picture.’’ Id. (int. quotations 

omitted). 

N.S. 

On February 20, 2001, N.S., an 

eighteen-year-old college student, first 

presented at Respondent’s practice. GX 

57, at 1. N.S. complained of lower back 

pain, ‘‘especially since going to [the] 

University of Arizona,’’ and rated his 

pain level as ‘‘4’’ on a scale of 0 to 10. 

GX 57, at 1 & 5. N.S. denied that the 

‘‘pain radiat[ed] to both lower 

extremities,’’ ‘‘denie[d] numbness and 

tingling or weakness of both lower 

extremities,’’ and denied ‘‘bowel and 

bladder problems.’’ Id. at 1. N.S. 

‘‘complain[ed] of problems with getting 

comfortable’’ and of pain with sitting. Id. 

Respondent performed a physical 

exam. She found that N.S. ‘‘has normal 

ambulation without pain,’’ that he was 

‘‘able to walk on heels and on toes 

without pain and hop on either foot 

without pain.’’ Id. Moreover, the 

‘‘straight leg raising test was negative 

bilaterally,’’ and N.S. had ‘‘no pain with 

bringing heel to buttocks bilaterally.’’ Id. 

N.S. did, however, have ‘‘minimal low 

back pain with lumbar flexion.’’ Id. 

Finally, Respondent performed a 

neurological exam of N.S.’s lower 

extremities and found that he had 

‘‘normal motor strength, sensation and 

deep tendon reflexes.’’ Id. 

Respondent diagnosed that N.S. had a 

‘‘history of episodes of low back pain,’’ 

with a ‘‘[r]ecent increase in low back 

pain secondary to poor mattress and 

poor positioning.’’ Id. She recommended 

a treatment plan of joint mobilization 

and physiotherapy; she also prescribed 

30 tablets of OxyContin 20 mg., one 

tablet to be taken every twelve hours. Id. 

at 2. 

Two days later, N.S. complained that 

the OxyContin was not working. Id. He 

also told Respondent that he had 

‘‘doubl[ed] up on [the] dose, but [that] 

didn’t work either.’’ Id. Respondent then 

told him to try three tablets at a time. 

Id. 

Four days later, N.S. complained that 

he still had low back pain and now 

claimed that his pain level was a six. Id. 

at 2 & 5. He also stated that the 

‘‘OxyContin helps if he takes 60 mg. and 

[that] he would like something for 

breakthrough pain.’’ Id. at 2. Respondent 

then gave him a prescription for 180 

tablets of OxyContin 20 mg., with three 

tablets to be taken every twelve hours, 

as well as a prescription for 50 tablets 

of oxycodone 5 mg., one tablet to be 

taken every four hours as needed. Id. 

On March 6, N.S. reported that the 

OxyContin 50 and physical therapy 

(including joint mobilization) were 

helping his pain and that his pain level 

was a four. Id. at 3 & 5. Respondent 

performed a physical exam which found 

that ‘‘[h]e has slight stiffness with 

lumbar range of motion.’’ Id. at 3. She 

also found that ‘‘[h]e has tenderness and 

hypertonicity over bilateral lumbar 

paraspinals, but improvement in lumbar 

range of motion.’’ Id. As her impression, 

Respondent again indicated: ‘‘history of 

episodes of low back pain. Recent 

increase in low back pain secondary to 

poor mattress and poor positioning.’’ Id. 

For N.S.’s treatment plan, Respondent 

recommended that he continue the 

physiotherapy and joint mobilization. 

Id. She also recommended that he 

continue taking the OxyContin (the 

previous prescription was for a thirtyday supply). Id. She also gave him a 

prescription for 50 tablets of 

Roxicodone. Id. However, she increased 

the strength of the Roxicodone from five 

to fifteen mg., and the dosing from one 

tablet every four hours to one tablet 

every three hours. Id. 

The last entry in N.S.’s medical record 

is dated March 19, 2001, and reports 

that N.S.’s father called and said that NS 

‘‘was too sedated at home and obviously 

took too many.’’ Id. at 3. The father also 

reported that N.S. ‘‘has history of 

depression.’’ Id. 

In an interview with a DEA 

Investigator, N.S. admitted that he had 

gone to Respondent ‘‘in order to obtain 

OxyContin prescriptions.’’ GX 70, at 39. 

N.S. also told the Investigator that ‘‘[h]is 

primary purpose was drug seeking,’’ and 

that ‘‘his back pain was only secondary.’’ 

Id. 

N.S.’s father confirmed to the DI that 

he had called Respondent and 

expressed his concern about his son’s 

being overly medicated and having 

‘‘nod[ded] out in a conversation.’’ Id. at 

39. According to N.S.’s father, 

Respondent stated that because his son 

‘‘was of legal age, he could make his 

own decisions [and] that she had every 

right to prescribe whatever medications 

she deemed necessary.’’ Id. at 39–40. 

Thereafter, N.S.’s father persuaded him 

to stop seeing Respondent. Id. at 40. 

Dr. Hare concluded that Respondent 

had ‘‘reasonably evaluated’’ N.S. GX 46, 

at 15. He also concluded the plan of care 

was reasonable ‘‘with the exception of 

the medication [she] prescribed.’’ Id. 

According to Dr. Hare, ‘‘[b]ased on [her] 

findings, there seemed to be no 

indication for opioids, and certainly not 

* * * in the aggressive doses she 

prescribed.’’ Id. 

Dr. Hare also noted that while N.S. 

‘‘had denied taking previous 

medications[,]’’ he ‘‘rapidly selfescalated the medications to a large 

amount.’’ Id. Dr. Hare further explained 

that ‘‘[i]n a patient not tolerant to opioid, 

this dose of OxyContin, coupled with 

the minimal findings for a pain 

problem, would not be well tolerated 

and could have fatal consequences. The 

fact that the patient tolerated these large 

doses * * * indicated that he was not 

opioid-naı ̈ve, or he was not taking the 

medication.’’ Id. 

Finally, Dr. Hare observed that N.S.’s 

‘‘minimal response to a rather large 

initial dose would raise serious 

questions about opioid responsiveness 

of the pain problem.’’ Id. Continuing, Dr. 

Hare explained that N.S.’s ‘‘insistence 

on escalating the dose would indicate 

an effect sought for mood or a 

medication-abuse situation.’’ Id. 

In her testimony, Respondent 

acknowledged that N.S.’s father had 

called her and expressed his concern 

that his son was taking excessive 

medication. Tr. 2173. Respondent did 

not respond to any of Dr. Hare’s 

observations regarding the medical 

appropriateness of her prescribing 

OxyContin to N.S. Id. at 2172–73. 

F.L. and B.L. 

F.L. and B.L. were father and son. The 

records in evidence document 

Respondent’s treatment of F.L. between 

August 16, 1999 and March 30, 2001, 

shortly before his death on April 17 due 

to complications from diabetes. See GX 

49. The record does not, however, 

reflect when F.L. began seeing 

Respondent. See id. at 1. 

In addition to having diabetes, F.L. 

was a recovering alcoholic. Tr. 2123. He 

had chronic pancreatitis and a lumbar 

spine condition; his diabetes had led to 

a below-the-knee amputation of one of 

his legs. Id. Respondent treated F.L. 

with a variety of drugs including large 

doses of OxyContin and Oxy IR. For 

example, on August 16, 1999, 

Respondent gave F.L. prescriptions for: 

(1) 1200 tablets of OxyContin 40 mg., 

twenty tablets to be taken every twelve 

hours; (2) 4080 tablets of Oxy IR, with 

seventeen tablets to be taken every three 

hours; (3) 140 Percocet; and (4) 200 

Percodan. GX 49, at 1. On both February 

21 and March 30, 2001, Respondent 

gave F.L. prescriptions for: (1) 1320 

tablets of OxyContin 40 mg., with 22 

tablets to be taken every twelve hours; 

(2) 4800 tablets of Oxycodone IR, with 

twenty tablets to be taken every three 

hours; (3) 280 Percocet, and (4) 400 

Percodan. Id at 15. The note for March 

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51While the note for F.L.’s last visit does not 

indicate that prescription for 1320 tablets of 

OxyContin was to be filled through the PAP 

program, an earlier note indicated that F.L. was ‘‘on 

[the] PAP program for the OxyContin and 

Oxycodone IR.’’ GX 49, at 3. I therefore find that the 

oxycodone prescription was also to be filled by 

PAP. 

52The Government’s Expert did not discuss 

Respondent’s prescribing to F.L. in either of his 

reports, see GX 46 & 46A. Nor did he testify 

regarding Respondent’s prescribing to him. See 

generally Tr. 144–229. 

53F.L.’s patient record is devoid of any evidence 

that Respondent subjected him to pill counts or 

drug screens, even though on several occasions he 

stated that he had lost medications or prescriptions. 

See generally GX 49. 

54Several months earlier, however, Respondent 

had contacted the same PAP (Purdue Frederick) 

with respect to another patient J.R., after his 

application was denied. See GX 24, at 22–24. As the 

record indicates, Respondent knew the phone 

numbers. 

55 In the plea agreement, Respondent agreed that 

these ‘‘facts accurately describe my conduct in 

connection with the offenses to which I am 

pleading guilty.’’ GX 6A, at 6. 

The incident involving B.L. was the second of the 

four counts of Accessory After the Fact to 

Possession of Controlled Substances by 

Misrepresentation, Fraud, Forgery, Deception or 

Subterfuge’’ to which Respondent pled guilty. See 

GX 6A (Plea Agreement; citing 18 U.S.C. 3 & 21 

U.S.C. 843(a)(3)). 

56The medical record does show, however, that 

Respondent did not prescribe any more controlled 

substances to B.L. after the April 23 visit. 

57Respondent prescribed OxyContin 20 mg. to 

J.O. at her initial visit, GX 51, at 2; she started 

prescribing OxyContin 40 mg. to both J.O. and W.O. 

a week after their first visits. GX 51, at 1–2; GX 53, 

at 1–3. In early November, Respondent increased 

the dosing of the OxyContin from one tablet every 

twelve hours to one tablet every eight hours for both 

J.O. and W.O. without providing any explanation in 

their medical records as to why doing so was 

medically necessary. See GX 51, at 2 & 4; GX 53, 

at 4–5. 

58Respondent also issued to W.O. prescriptions 

for Percocet, oxycodone 5 mg. and Oxyfast 20 mg./ 

ml., and Roxicodone 30 mg. at various visits. After 

being on Roxicodone for several months, W.O. 

complained that it was expensive, and Respondent 

started prescribing methadone. GX 53, at 17. On 

September 21, W.O. also complained about the cost 

of Dilaudid; Respondent discontinued prescribing 

the drug and increased the methadone. Id. at 19. 

However, on November 1 and 14, she again 

prescribed Dilaudid, only to stop prescribing the 

drug at the November 26 visit. Id. at 20. However, 

while Respondent had increased the dosing of 

methadone when she initially discontinued the 

Dilaudid, id. at 19; she did not decrease the 

methadone dosing when she resumed prescribing 

the Dilaudid. Id. at 20. 

As for Percocet, on October 3, Respondent issued 

W.O. a prescription for 300 Percocet ‘‘to fill October 

20.’’ Id. Yet on October 19, she issued W.O. another 

prescription for 300 Percocet. Id. at 19–20. The file 

contains no explanation as to why the latter 

prescription was needed. 

59Here again there were frequent instances in 

which Respondent issued new prescriptions when 

J.O. should have had ample medication remaining 

from previous prescriptions. For example, on March 

9, 2001, Respondent gave J.O. a prescription for 200 

tablets of Roxicodone 30 mg., with one tablet to be 

taken every three hours. GX 51, at 14. While this 

prescription should have lasted twenty-five days, 

on March 21 (only twelve days later), Respondent 

gave J.O. a prescription for another 100 tablets with 

the same dosing. Id. at 15. And while these two 

prescriptions should have lasted until 

approximately April 15, Respondent gave her 

another prescription for 100 tablets on April 3. Id. 

at 16. 

30 indicated that the script for 4800 

tablets of Oxycodone IR was to be filled 

through the ‘‘PAP program’’; 51 the note 

also indicates that Respondent gave F.L. 

an additional prescription for 500 

tablets of this drug ‘‘to fill locally’’ and 

an additional prescription for 280 

Percocet.52 Id. The prescriptions 

Respondent issued to F.L. totaled 

approximately 7,000 dosage units a 

month.53

In October 2000, Respondent also 

commenced to treat B.L. (F.L.’s son) in 

October 2000 for Attention Deficit 

Disorder and an eating disorder. GX 50, 

at 1–2. Respondent prescribed several 

controlled substances including Ritalin 

and Dexedrine (both stimulants) to him. 

Id. at 1–2. 

On April 23, 2001 (six days after 

F.L.’s death), B.L. visited Respondent. 

Id. at 4. During the visit, Respondent 

gave B.L. a prescription for 200 tablets 

of Dexedrine 10 mg. Id. at 4–5. In her 

testimony, Respondent maintained that 

she had questioned B.L. as to what had 

happened to the last shipment of 

OxyContin from the PAP to his father. 

Tr. 2126. (In her testimony, Respondent 

did not address whether she questioned 

B.L. regarding the other PAP 

prescription—for 4800 tablets of 

Oxycodone IR). According to 

Respondent’s testimony, B.L. ‘‘didn’t 

really answer [her], and [she] didn’t 

know.’’ Tr. 2126. Continuing, she added 

that ‘‘’’I never got an answer from him 

what [as to] what happened,’’ and in any 

case, ‘‘I didn’t know when that last 

shipment came,’’ and did not ‘‘know 

how to contact’’ the company (Purdue 

Frederick).54 Id. Several months later, 

B.L. was hospitalized for drug addiction 

or dependence. GX 50, at 5. 

In her plea agreement, Respondent 

admitted that during B.L.’s April 23 

office visit, she had prescribed to him 

200 tablets of Dexedrine 10 mg. and that 

after B.L. ‘‘informed [her] that he had 

accepted delivery of a prescription for 

his recently deceased father, FL, another 

patient of [hers,] in order to possess the 

prescribed controlled substance * * * 

OxyContin 40 mg.’’ GX 6A, at 7. 

Moreover, in the agreement, Respondent 

admitted that she ‘‘upon learning this 

information from * * * B.L., [she] did 

knowingly * * * fail to rescind the 

prescriptions for Dexedrine for B.L.’’ 55

Respondent did not document her 

discussion with B.L. regarding his 

father’s OxyContin in his medical 

record. GX 50, at 4–5; Tr. 2360. While 

Respondent admitted that this was a 

shortcoming, she claimed she did not 

document the ‘‘diversion’’ because she 

lacked information to conclude that a 

diversion had taken place. Tr. 2359–60. 

I find, however, that Respondent’s 

admission as part of the plea agreement 

precludes the relitigation of the issue of 

whether she knew that B.L. had 

obtained the OxyContin tablets 

dispensed pursuant to his father’s 

prescription.56

W.O. and J.O. 

W.O. and J.O. were husband and wife. 

Respondent began treating W.O. in 

September 2000 for neck and low back 

pain from two motor vehicle accidents, 

one in June 2000 and the second in 

August 2000. GX 53, at 1. She began 

treating J.O. in October 2000 for neck 

and low back pain from a motor vehicle 

accident of September 2000. GX 51, at 

1. At the initial visit of each, 

Respondent prescribed Percocet. GX 51, 

at 2; GX 53, at 2. Respondent also 

prescribed OxyContin and Soma to both 

J.O. and W.O. at numerous visits.57

On November 13, 2000, J.O. saw 

Respondent and reported that their 

house had been burgled and that all of 

her and W.O.’s medications had been 

stolen. GX 51, at 4. J.O., however, 

brought a police report with her. Id. 

Respondent wrote a replacement 

prescription for 60 tablets of OxyContin 

40 mg., with one tablet to be taken every 

eight hours.58 Id. While this prescription 

should have lasted twenty days, only 

four days later, Respondent gave J.O. 

another prescription for 21 tablets of 

OxyContin 40 mg, as well as 60 tablets 

of Oxycodone IR (1–2 tablets every four 

hours for breakthrough pain). Id. 

Moreover, on November 21, after only 

four more days, Respondent gave J.O. a 

prescription for another 100 tablets of 

OxyContin 40 mg., with the same dosing 

of one tablet every eight hours. This was 

followed by additional prescriptions for 

OxyContin 40 mg. December 20 (100 

tablets); December 29 (50 tablets), 

January 12 (100 tablets of OxyContin 80 

mg.). Id. at 5. Throughout the next four 

months, Respondent prescribed to J.O. 

OxyContin and either Oxycodone IR, 

Percocet, or Oxycodone.59

On November 13, 2000, Respondent 

also saw W.O., performed a physical 

exam on him, and gave him a 

prescription for 100 tablets of Percocet. 

GX 53, at 5. Later that day, she wrote a 

replacement prescription for 100 

Percocet in W.O.’s name, (which she 

apparently gave to J.O.) based on J.O.’s 

report that their medications had been 

stolen. Id. There is no indication, 

however, that Respondent asked J.O. 

about what time the robbery had 

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60On July 17, Respondent doubled J.O.’s dose of 

methadone to eight tablets, four times a day. GX 51, 

at 18. There is, however, no indication in J.O.’s 

patient file explaining the basis for doing so. See 

id. 

61On February 25, W.O. had picked up a 

prescription for 600 tablets of Methadone. GX 53, 

at 21. W.O. did not return to Respondent’s office 

after that. 

62This was the fourth count of diversion in the 

plea agreement, which Respondent failed to report 

to law enforcement authorities. See GX 6A, at 8. 

occurred and whether W.O. had even 

had time to fill the first prescription she 

wrote on that day. 

Thereafter, on November 17, 

Respondent gave W.O. a prescription for 

21 tablets of OxyContin 40 mg (q8h—a 

week’s supply), and 60 tablets of 

oxycodone (1–2 q4h). Id. Respondent 

wrote W.O. additional prescriptions for 

100 tablets of OxyContin 40 (q8h—a 

thirty-three day supply) on November 

20, as well as on December 8 and 

December 15. Id. at 7. On January 8, 

2001, she doubled the dosing and gave 

him a prescription for 100 tablets of 

OxyContin 80 (q8h). Id. at 9. On January 

18, she issued another prescription for 

100 tablets of OxyContin 40 and 

doubled the dose to two tablets every 

eight hours; yet, on January 31, the 

dosing of the prescription was back to 

one table of OxyContin 40 every eight 

hours. Id. at 11. Moreover, on February 

12, while W.O.’s low back pain was 

then a ‘‘zero,’ she gave him another 

prescription for 100 tablets of 

OxyContin 40 and increased the dosing 

back to two tablets every eight hours. Id. 

at 13. 

On May 14, 2001, Respondent 

switched W.O. from OxyContin to 

Dilaudid because of the former’s cost, 

GX 53, at 17; on May 18, 2001, she did 

the same for J.O. GX 51, at 17. At their 

respective visits, Respondent wrote 

W.O. prescriptions for Dilaudid 8 mg. ‘‘2 

tabs QID # 100’’ and 300 Percocet; she 

wrote J.O. prescriptions for Dilaudid 4 

mg. ‘‘4 tabs QID #200,’’ as well as for 100 

Roxicodone (1–2 q3h) and 200 Percocet. 

GX 53, at 17; GX 51, at 17. Moreover, 

on June 25 and 26, Respondent started 

prescribing methadone 10 mg, with four 

tablets to be taken four times a day, to 

both J.O. and W.O.60 GX 51, at 18; GX 

53, at 17. 

On November 9, Respondent wrote 

J.O. a prescription for 200 Percocet q4h 

PRN, which was to be filled on 

November 14 (along with prescriptions 

for Dilaudid and Methadone). GX 51, at 

20. However, on November 15, 2001, 

W.O. (J.O.’s husband) came to 

Respondent’s office to pick up a 

replacement prescription for the 

November 9 prescription, which had 

been altered. Id. W.O. ‘‘insist[ed that 

the] prescription was ripped in his 

pocket even though the other 2 

prescriptions were unripped.’’ Id. 

Respondent had the pharmacy mail the 

prescription to her and found that the 

‘‘fill date of November 14 was obviously 

torn out.’’ Id. Respondent did not write 

a replacement prescription. Id. 

On November 21, J.O. went back to 

Respondent and asked for a replacement 

prescription for the Percocet. Id. 

Respondent ‘‘explained ‘‘the 

modification of prescription and that it 

was illegal.’’ Id. J.O. claimed that she 

knew nothing about the modification of 

the prescription and that it was W.O. 

who had picked it up and dropped it off 

at the pharmacy. Id. 

The notation for this visit also states 

that Respondent had ‘‘received 

anonymous call that [J.O.] selling 

Percocet.’’ Id. Respondent told J.O. that 

she ‘‘would not and could not’’ write 

controlled substance prescriptions for 

her anymore. Id. at 21. Respondent 

placed J.O. on a tapering schedule for 

methadone and did not prescribe other 

controlled substances thereafter. Id. 

However, at J.O.’s very next visit, 

December 3, 2001, J.O. ‘‘had more pain 

on the Methadone only.’’ Id. Respondent 

then abandoned the plan to taper J.O. off 

the methadone and increased her dose. 

Id. 

On March 4, 2002, J.O. brought to 

Respondent a consent agreement she 

had entered into with the State Nursing 

Board. Id. at 22. Apparently, the 

Nursing Board had initiated a 

disciplinary proceeding against J.O. 

because she had abused medications 

and taken some from a nursing home at 

which she worked. Id. Under the 

Consent Agreement, J.O. needed to have 

Respondent ‘‘notify the nursing board 

about what medications she is on.’’ Id. 

At the visit Respondent gave J.O. a 

prescription for 600 methadone 10 mg. 

Id. at 22. 

On March 12, J.O. appeared 

‘‘need[ing] half of [the] methadone 

prescription because she gave [W.O] 

half of them.’’ 61 Id. Respondent obliged 

and issued her a prescription for 300 

tablets of methadone. Id. Respondent 

further noted that that she and J.O. had 

‘‘discussed problems with [W.O.], but 

[Respondent] didn’t tell her what he 

did.’’ Id. According to W.O.’s patient 

file, on February 27, 2002, Respondent 

had received a phone call from G.A. 

stating that W.O. had stolen 

approximately 100 OxyContin tablets 

from him. GX 53, at 21. 

On April 16, Respondent wrote a 

letter to the Arizona State Board of 

Nursing, listing J.O.’s medications. GX 

51, at 24. Notwithstanding the report 

she had previously received that J.O. 

was selling her medication, the incident 

with the torn prescription, and J.O.’s 

having admitted to giving half of a 

methadone prescription to W.O., 

Respondent wrote that she was ‘‘aware 

of [the] history of this nurse’s diversion 

of drugs in the past, but there is no 

evidence of continuation of this 

behavior.’’ Id.62

With respect to her prescribing to 

W.O. and J.O., Respondent testified that 

after receiving the phone call which 

reported that J.O. was selling Percocet, 

she stopped prescribing the drug to her 

and prescribed methadone to her, which 

she maintained has a low risk of abuse 

and diversion, Tr. 2162, 

notwithstanding its inclusion on 

schedule II, which indicates that it ‘‘has 

a high potential for abuse.’’ 21 U.S.C. 

812(b)(2)(A). She also maintained that 

she had stopped treating W.O. after she 

received the phone call from G.A. Tr. 

2162. While Respondent testified that 

J.O. had told her she was going to get 

a divorce, id., J.O.’s file indicates that 

she had given half of her methadone to 

W.O. after she told Respondent that she 

had left him. GX 51, at 22. Moreover, 

Respondent did not explain why she 

subsequently wrote the Nursing Board 

that there was no evidence that J.O. was 

continuing to divert drugs. See Tr. 

2160–63. 

There is likewise no evidence that 

Respondent attempted to monitor J.O. 

through such measures as pill counts 

and drug screens after receiving the 

report that she was selling her 

controlled substances. Moreover, the 

medical record contains no 

documentation that Respondent 

counseled J.O. as to the illegality of her 

giving her methadone to W.O. 

M.H., P.H., and A.B. 

P.H. started seeing Respondent in 

January 1999 for low back pain, which 

she had suffered for six years after her 

‘‘dog knocked her off the couch while 

she was sleeping.’’ GX 55, at 1. A.B., 

who lived with P.H., first saw 

Respondent on November 27, 2000, 

complaining of right leg pain. See GX 

56, at 1; Tr. 2129. M.H., the mother of 

P.H., initially treated with Respondent 

in July 2001, suffering left thoracic pain 

at the time. GX 54, at 1; Tr. 2129. M.H. 

had undergone lumbar surgery in 1989. 

GX 54, at 1. 

Respondent initially treated P.H. with 

Percocet and a non-controlled muscle 

relaxant (first Skelaxin, then Flexeril, 

and then Robaxin), as well as physical 

therapy. GX 55, at 2 & 5. On April 7, 

1999, P.H. saw Respondent and told her 

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63According to the note, P.H. told Respondent 

that she had obtained the prescription from Dr. K. 

because she was not going to see Respondent ‘‘for 

a few more days.’’ GX 55, at 11. P.H. also told 

Respondent that she did not fill the latter’s 

prescription until May 15. Id. There is, however, no 

indication that Respondent contacted Dr. K. to 

determine the extent to which P.H. was obtaining 

other prescriptions or to coordinate their 

prescriptions. Id. 

64None of the progress notes preceding this date 

indicate what the dosing of the Percocet was. The 

first note indicating the dosing is not dated until 

April 11, 2001. GX 55, at 1–17. 

that ‘‘her Percocet was stolen 

approximately 2 weeks ago, and [that] 

she has only had Darvocet N100 to take 

for the past 2 weeks.’’ Id. at 4. While 

Respondent had not prescribed Darvocet 

(a schedule IV controlled substance, see 

21 CFR 1308.14) to P.H., there is no 

indication that Respondent asked P.H. 

from whom she had obtained this drug. 

Id. at 7–8. 

Throughout the first six months that 

Respondent treated P.H., she prescribed 

Percocet and muscle relaxants. See id. at 

1–6. On September 1, 1999, Respondent 

noted that ‘‘[t]he OxyContin 10 # 60 

made her nauseated.’’ Id. at 6. P.H.’s 

record contains no indication as to what 

date she prescribed OxyContin to her. 

Id. At this visit, Respondent wrote P.H. 

another OxyContin prescription as well 

as a prescription for 250 Percocet. Id. at 

7. 

On May 12, 2000, a pharmacist called 

Respondent and told her that two days 

earlier P.H. had filled a prescription for 

42 Percocet which had been issued by 

Dr. K., her primary care physician Id. at 

11. While at P.H.’s next visit (June 12), 

Respondent questioned her about the 

incident,63 on or about October 10, 

Respondent received another call from a 

pharmacy which reported that every 

two weeks, P.H. was obtaining 84 

Vicodin tablets from Dr. K. Id. at 13. 

Once again, there is no indication that 

Respondent contacted Dr. K. to 

coordinate their prescribing. Moreover, 

on October 10, Respondent changed the 

prescription from 250 tablets of Percocet 

to 90 tablets of OxyContin 20 mg., one 

tablet to be taken every eight hours.64 Id. 

at 13. 

P.H. returned nine days later and 

Respondent noted that she had ‘‘severe 

tenderness over [her] lumbar muscle 

area.’’ Id. at 13. While Respondent found 

that P.H. ‘‘has pain and stiffness with 

ambulation,’’ a finding which was 

essentially the same as at the previous 

visit (‘‘pain with ambulation’’ and 

‘‘stiffness and pain with lumbar range of 

motion’’), she concluded that P.H. now 

had ‘‘severe low back pain’’ and 

increased the strength of the OxyContin 

four-fold to 80 mg. and prescribed 90 

tablets, with the same dosing of one 

tablet every eight hours. Id. 

On November 9, P.H. again saw 

Respondent. Id. at 14. Respondent noted 

that her physical exam showed less pain 

and stiffness with ambulation and that 

P.H. had less swelling over her lower 

lumbar area. Id. Respondent gave her 

another prescription for 90 tablets of 

OxyContin 80 mg. (q8h), along with 

Robaxin. Id. On November 14 (five days 

later), P.H. was back and complaining 

that the OxyContin was ‘‘causing severe 

drowsiness’’ and ‘‘increased swelling 

over [her] lumbar spine.’’ Id. Respondent 

now found that P.H. had ‘‘severe pain 

with ambulation,’’ ‘‘swelling over lower 

lumbar spine,’’ and ‘‘severe tenderness 

over [her] lumbar spine.’’ Id. Respondent 

concluded that P.H. had a ‘‘poor 

response to long acting opioids’’ and 

told her to discontinue the OxyContin. 

Id. She then gave P.H. prescriptions for 

200 Percocet and 200 oxycodone 5 mg. 

(2–3 q4h) PRN. Id. at 14–15. 

Respondent issued additional 

prescriptions for 200 Percocet on 

December 11, and January 9, and for 200 

oxycodone 5 mg. (with the same dosing 

of 2–3q4h) on December 11, January 9, 

and January 22. Id. at 14–15. On 

February 6, Respondent noted that 

while P.H. was ‘‘still with low back 

pain,’’ she was ‘‘doing better in general’’ 

and that the ‘‘physical exam shows she 

is in less distress with less pain with 

ambulation.’’ Id. at 15. Respondent gave 

her a prescription for 200 Percocet as 

well as 100 Roxicodone. Id. The 

Roxicodone prescription was, however, 

for the 30 mg. strength and gave a 

dosing of one tablet every eight hours 

and thus increased the amount of the 

drug from a maximum of 90 mg. (18 5 

mg. tablets) to 240 mg. (eight 30 mg. 

tablets) per day. Id. 

On February 28, Respondent gave 

P.H. additional prescriptions for both 

200 Percocet and 100 Roxicodone 30 

mg., and on March 8, she gave P.H. an 

additional prescription for Roxicodone 

30 mg. Id. at 16. On March 20, 

Respondent noted that P.H. ‘‘continues 

on medications with good pain relief,’’ 

that she had only ‘‘slight swelling’’ and 

had ‘‘slight pain with ambulation.’’ Id. 

Respondent gave P.H. new prescriptions 

for 200 Percocet and 100 Roxicodone 30 

mg (q3h); she also added a prescription 

for 100 oxycodone 5 mg. (3–4 q3h). Id. 

On March 27, P.H. was complaining 

of severe pain, that her hips were 

‘‘locked up,’’ that it was ‘‘the third time 

in less than 2 weeks that she had bad 

pain,’’ and that ‘‘the Roxicodone isn’t 

working.’’ Id. Respondent performed a 

physical exam and noted that P.H. had 

‘‘stiffness antalgic wide based ataxic 

gait,’’ ‘‘tenderness over [her] bilateral 

lumbar paraspinals,’’ ‘‘swelling’’ over 

[her] ‘‘lumbar spines,’’ and ‘‘pain with 

lumbar range of motion, which is 

limited.’’ Id. Respondent diagnosed P.H. 

as having chronic low back pain and 

doubled the dosing of the Roxicodone 

30 mg. to two tablets every three hours. 

Id. at 16–17. Three days later, 

Respondent noted that P.H. had blacked 

out and ‘‘has been having a lot of 

blackouts.’’ Id. at 17. 

On April 2, Respondent gave P.H. 

another prescription for 100 Roxicodone 

30 mg. with the same dosing. Id. At the 

next visit (April 11), P.H. also 

complained of right calf pain. Id. 

Respondent diagnosed P.H. as having a 

right calf muscle spasm (in addition to 

low back pain) and gave her 

prescriptions for 100 Roxicodone 30 

mg., 200 Percocet, and 100 oxycodone 5 

mg. Id. Respondent issued additional 

prescriptions for Roxicodone 30 mg. on 

April 30 and May 3, for oxycodone 5 

mg. on April 24, and for Percocet on 

May 3. Id. at 17–18. 

On May 15, P.H. again saw 

Respondent and indicated that she had 

an appointment to see a dermatologist, 

Dr. H., in two weeks for a condition 

(bulbous pemphigoid) which had been 

diagnosed by a physician at an 

emergency room. Id. at 18. Respondent’s 

physical exam indicated that P.H. had a 

‘‘severely antalgic gait,’’ and ‘‘open sores 

over burning and both lower extremities 

and [a] severe sore over [her] right foot.’’ 

Id. Respondent diagnosed P.H. as 

having bulbous pemphigoid and chronic 

low back pain, and gave her a 

prescription for 500 tablets of 

Roxicodone 30 mg., with five tablets to 

be taken even four hours as needed. Id. 

Respondent thus increased the dosing of 

Roxicodone from approximately 480 

mgs. to 900 mgs. of oxycodone per day. 

Id. There is no evidence that 

Respondent ever consulted with the 

dermatologist that P.H. saw for the 

condition. See id. at 18–19. According 

to the Government’s expert, these 

‘‘superficial skin lesions * * * would 

not be justification for anything other 

than mild analgesics.’’ GX 46A, at 9. 

Throughout June and July, 

Respondent continued to prescribe 

approximately 900 mgs. per day of 

Roxicodone. GX 55, at 18–19. She also 

gave P.H. prescriptions for 200 Percocet 

on June 4, June 18, July 2, and July 18. 

Id. As Dr. Hare noted with respect to the 

Percocet prescriptions, a review of 

P.H.’s ‘‘prior prescriptions would [have] 

indicate[d] that she was using 14 

tablets/day which could result in 

acetaminophen toxicity, [and] the 

Percocet would be totally unnecessary 

with the amount of Roxicodone the 

patient was receiving.’’ GX 46A, at 9. 

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65This was the first count in the plea agreement. 

See GX 6, at 7. 

Respondent initially treated A.B. for 

right leg pain with oxycodone (dosage 

strength not indicated) and Percocet, as 

well as Zanaflex, a non-controlled drug. 

GX 56, at 1–2. Respondent’s initial 

evaluation indicated that A.B. was 

already taking Percocet and Robaxin (a 

non-controlled drug), id. at 1, but 

Respondent ‘‘did not document the 

effects of the medications.’’ GX 46A, at 

10. Nor is there any indication that she 

contacted the physician who had 

presumably prescribed these drugs to 

A.B. to obtain records of prior treatment. 

GX 56, at 1–2. Moreover, while A.B. 

reported that an MRI of her lumbar 

spine had indicated that she had a 

herniated nucleus pulposus, A.B. did 

not know at what level the disk was, id. 

at 1, and there is no evidence that 

Respondent even attempted to obtain 

the MRI report. Id.; see also GX 46A, at 

10. 

On January 9, 2001, Respondent 

added OxyContin 10 mg. and prescribed 

60 tablets, with one tablet to be taken 

every twelve hours (and which should 

have lasted 30 days). GX 56, at 2–3. She 

also gave A.B. prescriptions for 200 

Oxycodone 5 mg. and 100 Percocet. Id. 

Respondent further noted that there 

would be a ‘‘recheck in one month.’’ Id. 

Yet only thirteen days later, A.B. was 

back and complaining of a severe 

migraine, right leg pain, and a severe 

inverting of her foot. Id. at 3. 

Respondent gave her additional 

prescriptions for 200 oxycodone 5 mg. 

and 100 Percocet. Id. Respondent also 

gave her another prescription for 60 

OxyContin and doubled the strength of 

the drug to 20 mg. Id. However, the 

dosing remained the same, and thus the 

OxyContin should have lasted thirty 

days. 

On February 6, A.B. returned. Id. 

While the note for this visit indicated 

that A.B. had pain with right straight leg 

raising test, there is no other indication 

as to the extent of A.B.’s pain and there 

is no indication that she was still 

complaining of migraines. Id. at 3–4. 

Respondent gave A.B. a new 

prescription for 60 tablets of OxyContin 

20 mg., and increased both the Percocet 

and Oxycodone prescriptions to 150 and 

300 tablets respectively. Id. Again, there 

is no indication as to why A.B. already 

needed another OxyContin prescription. 

On February 21, A.B. apparently 

called Respondent and reported that she 

had undergone a lumbar laminectomy a 

week earlier, that she was in severe 

pain, and had only been given 20 

Percocet for post-operative pain. Id. 

Respondent gave her prescriptions for 

60 tablets of OxyContin (doubling the 

strength to 40 mg.), with one tablet to 

be taken every twelve hours, and 200 

tablets of oxycodone 5 mg. Id. As the 

Government’s Expert noted, there was 

‘‘no indication that the patient had 

already used all of the previous 

OxyContin prescription and this was 

not accounted for by’’ Respondent. GX 

46A, at 11. Moreover, on February 28, 

Respondent gave A.B. another 

prescription for 150 tablets of Percocet. 

GX 56, at 4. 

On March 9, Respondent gave A.B. 

additional prescriptions for 60 

OxyContin 40 mg. and 200 oxycodone 5 

mg. Id. at 4. Again, even though the 

previous OxyContin prescription should 

have lasted thirty days if taken as 

prescribed and only sixteen days had 

passed, there is no indication that 

Respondent questioned A.B. as to why 

she needed more of the drug. Id. 

On March 20, A.B returned. Id. At this 

visit, Respondent noted that A.B. had 

supination of her right lower extremity 

with ambulation and that muscle spasm 

had returned there; she also noted that 

A.B. had chronic low back pain. Id. 

Respondent then gave A.B. a 

prescription for 60 tablets of OxyContin 

and doubled the strength from 40 to 80 

mgs. Id. at 5. She also gave A.B. 

prescriptions for 200 oxycodone 5 mg. 

and 150 Percocet. Id. 

In April, Respondent received a note 

(apparently from the surgeon who 

performed the laminectomy) that A.B. 

was complaining that the symptoms she 

had before her back surgery had 

returned. Id. Moreover, her surgeon was 

going to repeat an MRI and ‘‘get an 

EMG/NCV of [her] right lower extremity 

to rule out neuropathy.’’ Id. However, 

according to a June 4 note, the MRI of 

her brain was normal. Id. at 6. A.B. was 

to also get another MRI of her lumbar 

spine, but there is no indication in the 

record that she did so. Id. 

At the June 4 visit, Respondent noted 

that A.B. ‘‘complains of problems with 

sleeping, and would like to take 2 

OxyContin at night instead of 1.’’ Id. 

Respondent issued her a prescription for 

90 tablets of OxyContin 80 mg., with 

one to be taken in the morning and two 

to be taken at night (also a thirty-day 

supply if taken as prescribed). Id. On 

June 26, Respondent increased the 

dosing to two tablets every twelve hours 

of OxyContin (120 tablets or a thirty-day 

supply). Id. at 7. At both June visits, she 

also gave A.B. prescriptions for 100 

tablets of Roxicodone 30 mg. and 150 

Percocet. Id. at 6–7. On July 18, 

Respondent gave A.B. new prescriptions 

(in the same quantity and dosing) for 

each of these three drugs. Id. 

At M.H.’s initial visit on July 23, 

2001, Respondent diagnosed her as 

having shingles and gave her 

prescriptions for 60 tablets of both 

OxyContin 20 mg. (q12h) and Percocet 

(1–2 q4h). GX 54, at 1. On July 27, M.H. 

returned to Respondent and reported 

that her ‘‘[i]nsurance wouldn’t cover 

OxyContin or MS Contin.’’ Id. at 2. 

There is no indication in the file that 

Respondent requested that M.H. return 

or destroy the OxyContin prescription. 

Id. Respondent did, however, give her a 

prescription for another 100 Percocet. 

Id. 

On July 30, 2001, a local pharmacist 

called Respondent and told her that the 

day before A.B. had picked up an 

OxyContin prescription for M.H. and 

paid cash for the drugs. GX 56, at 7. The 

pharmacist observed A.B. walk past 

M.H.’s car to a silver sports car and 

place the unopened bag through the 

window of the sports car. Id. at 7–8. 

The pharmacist further told 

Respondent that A.B. had come to the 

pharmacy the day after the incident to 

pick up a prescription. Id. at 8. The 

pharmacist asked A.B. ‘‘if she knew 

anyone who owned a silver sports car.’’ 

Id. A.B. answered ‘‘no,’’ but when the 

pharmacist recounted the incident of 

the day before, A.B. stated that ‘‘her 

mother said that that was her nephew, 

and that [A.B.] just forgot.’’ Id. 

According to A.B.’s patient record, A.B. 

‘‘told the pharmacist not to make a big 

deal about it.’’ Id.65

M.H. returned to Respondent’s office 

on August 10. GX 54, at 2. According to 

the note for the visit, M.H. explained 

that it was P.H. and not A.B. who had 

passed the OxyContin to the silver car 

and that the drugs had been for M.H.’s 

nephew, who she claimed had pain. Id. 

M.H. also told Respondent that she was 

‘‘never going to buy the OxyContin, 

because it [was] too expensive,’’ and that 

her nephew had ‘‘paid for it.’’ Id. M.H. 

‘‘promised this would never happen 

again, and she understood the severity 

of the situation.’’ Id. 

On August 3, P.H., who Respondent 

was treating for both knee and back pain 

with Percocet and Roxicodone, saw 

Respondent. GX 55, at 20. According to 

the progress note, P.H. ‘‘ha[d] given 

Percocet to her mother and sister and 

wants more Percocet.’’ Id. While 

Respondent did not issue any 

prescriptions at this visit, there is no 

indication that she counseled P.H. 

regarding this. See id. 

On August 5, both P.H. and A.B. were 

in an auto accident. GX 55, at 20; GX 56, 

at 8. On August 17, P.H. again saw 

Respondent, who again concluded that 

she had a knee injury and low back 

pain. GX 55, at 20. Respondent again 

prescribed Percocet (200 tablets, 1–2 

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66 In her findings, the ALJ writes, ‘‘Yet Dr. 

Weinstein credibly wrote that Dr. Hare’s premise 

that ‘medication abuse and diversion are related to 

the amount of medication prescribed to an 

individual patient’ was false.’’ ALJ at 87. However, 

Dr. Hare’s finding of ‘‘red flags’’ was not related 

solely to the amount of medication prescribed but 

to the reported behavior of diversion. 

67 In her response to the Government’s 

Exceptions, Respondent challenges the authenticity 

of the transcripts of the recordings of H.T.’s 

undercover visits. I reject her challenge noting that 

the underlying tapes had previously been provided 

to either her or her attorney in the course of the 

q4h), and Roxicodone 15 mg. (1000 tabs 

10 q4h). Id. Notably, while this was 

P.H.’s first visit since M.H. had told 

Respondent that P.H. had been the one 

who had obtained the OxyContin and 

delivered it to M.H.’s nephew, there is 

no indication in P.H.’s record that 

Respondent counseled her about the 

incident. See id. 

On August 23, P.H.’s file contains a 

note indicating that Respondent had 

again spoken with the pharmacist who 

reported the July 29 diversion incident. 

Id. Once again, the pharmacist 

‘‘insist[ed] that [P.H.] and [A.B.] are 

selling’’ their medications. Id. 

On August 27, P.H. again saw 

Respondent and was accompanied by 

A.B. Id. at 21. Respondent wrote P.H. a 

prescription for the balance of the 

Roxicodone prescription that she had 

written on August 17, which P.H. had 

been unable to fill completely. Id. at 20– 

21. There is, however, no indication in 

P.H.’s file that Respondent questioned 

P.H. about whether she was selling her 

medications. Id. Moreover, while the 

pharmacist had insisted that A.B. was 

also selling medications, there is no 

indication in A.B.’s patient file that 

Respondent had counseled her not to do 

so. 

Respondent testified that although she 

did not notate it in any file, A.B. and 

P.H. were present when she counseled 

M.H. about the diversion. Tr. 2355. The 

ALJ did not credit this testimony. Nor 

do I. As found above, Respondent 

counseled M.H. about the incident on 

August 10th. A.B., however, had been in 

a motor vehicle accident on August 5th, 

and according to the August 17 entry in 

her patient file, A.B. was then ‘‘at 

Healthsouth Rehabilitation [I]nstitute 

with ‘brain swelling.’ ’’ GX 56, at 8. A.B. 

was not discharged until August 23rd. 

Id. A.B. thus could not have been 

present when Respondent counseled 

M.H. I further conclude that the lack of 

documentation in A.B. and P.H.’s files 

conclusively establishes that 

Respondent did not counsel either one 

of them regarding the July 30 incident 

or any other diversion incidents. 

Following the incidents, Respondent 

continued to treat P.H. for injuries she 

incurred during the August 5 motor 

vehicle accident. On October 29, 

Respondent concluded that P.H. had 

reached maximum medical 

improvement with respect to the 

injuries she incurred in the accident and 

ceased treating her for them. GX 55, at 

25. Respondent, however, continued to 

treat her for low back pain, phlebitis in 

her left calf (a condition which she 

diagnosed on Oct. 15), and bulbous 

pemphigoid. Id. For these conditions, 

Respondent prescribed 200 tablets of 

Percocet and 500 tablets of Roxicodone 

15 mg. (with 10 tablets to be taken every 

4 hours). Id. 

On December 21, Respondent noted 

in P.H.’s record: ‘‘faxed refill request 

from Bashas’ [pharmacy] for Vicodin 

prescribed by Dr. H. [P.H.’s 

dermatologist] denied.’’ Id. at 27; see 

also id. at 18. Here again, there was 

evidence that P.H. had either obtained 

or attempted to obtain controlled 

substance prescriptions from other 

physicians. Id. at 27. And once again, 

there is no documentation that 

Respondent questioned P.H. about other 

controlled substance prescriptions she 

had obtained or that Respondent had 

contacted the prescribing physician to 

coordinate their prescribing to P.H. Id. 

Respondent also introduced two 

letters into evidence from a Dr. Kaplan, 

the primary care physician for A.B. and 

P.H., apparently to show that he 

approved of Respondent’s prescribing to 

them. Tr. 2131; RX B & C. Respondent 

further indicated that Dr. Kaplan had to 

authorize her prescriptions for the 

insurance plan that the two were on. Tr. 

2131. 

Dr. Kaplan’s letter regarding P.H. 

simply says that he ‘‘was aware that she 

was receiving chronic high dose 

narcotic analgesic therapy for chronic 

pain from’’ Respondent. RX C. The letter 

does not, however, say that 

Respondent’s prescribing to P.H. was 

medically appropriate. See id. 

In contrast to the letter he wrote about 

P.H., Dr. Kaplan stated that A.B. ‘‘has 

been receiving appropriate analgesic 

medications from [Respondent] during 

2001 and 2002.’’ RX B. While Dr. Kaplan 

stated that his chart notes confirmed 

that he had been aware that Respondent 

had been treating A.B. since early 2001, 

he did not claim that he had reviewed 

the entire course of Respondent’s 

prescribing to A.B. See id. 

In a letter dated October 22, 2002, 

Respondent’s own expert, Dr. 

Schneider, who was mentoring 

Respondent, noted that P.H. ‘‘has an 

addiction history’’ and instructed 

Respondent to ‘‘[f]ind out to what was 

she addicted and how recent.’’ RX D–6, 

at 2. Dr. Schneider also noted that P.H. 

‘‘attends COPE,’’ and instructed 

Respondent to find out ‘‘if they know 

about her opioid treatment.’’ Id. P.H., 

however, died before Dr. Schneider sent 

the letter. Id. 

Dr. Hare reviewed the patient files of 

P.H. and A.B. GX 46A, at 8–12. With 

respect to P.H., Dr. Hare observed that 

she was ‘‘a patient with multiple 

complain[t]s which were not adequately 

evaluated by [Respondent] and yet she 

continued to prescribe increasing 

amounts of controlled substances, 

particularly opioids with no apparent 

improvement in the patient’s 

condition.’’ Id. at 10. Moreover, ‘‘[e]ven 

though there were numerous ‘red flags’ 

regarding the patient’s misuse of 

medication, including use of the 

prescriptions in excess of the prescribed 

amounts, possible diversion of 

medication and the admitted sharing of 

medication with relatives, Respondent 

continued to prescribe unabated. Any 

reasonable physician would have noted 

these strong warning signs and 

investigated these problems while not 

prescribing further for this patient.’’ Id. 

With respect to A.B., Dr. Hare 

observed that she ‘‘presented as a patient 

with many problems which were not 

properly diagnos[ed] and evaluated by’’ 

Respondent. Id. at 12. Dr. Hare further 

noted that, while ‘‘there were a number 

of indications of overuse of 

medications’’ including ‘‘early 

prescriptions,’’ as well as ‘‘clear reports 

of diversion,’’ Respondent continued to 

prescribe to her.66 Id. 

H.T. 

H T. was the patient name for an FBI 

informant who started treating with 

Respondent at her prior clinic in May 

1998. GX 71, at 16. Initially, H.T. was 

treated for continuing lower back pain 

with physiotherapy and other methods; 

Respondent did not, however, prescribe 

controlled substances to him. See 

generally GX 71. According to H.T.’s 

record, during this phase of 

Respondent’s treatment of him, she did 

her last physical exam of him on March 

8, 2000. Id. at 7. 

After a lengthy absence, H.T. returned 

to Respondent’s office in February 2002 

and met with C.M., a chiropractor who 

worked with Respondent. GX 60. H.T. 

mentioned that he had been living in 

Montana and doing roofing work, and 

that ‘‘a couple of times when [he] was 

roofin[g], [he] had a little twinge’’ or 

‘‘twitch back there.’’ Id. at 4. H.T. added, 

however, that he was feeling good. Id. 

While Respondent saw H.T. at this visit, 

she did not prescribe any drugs to him. 

Id. 

H.T. returned on March 4.67 GX 61. 

During the visit, H.T. told Respondent 

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criminal proceeding, that the transcripts were 

mailed to her on December 28, 2006, and the 

hearing did not convene until January 22, 2007. See 

Tr. 45. While Respondent maintained that she got 

the transcriptions ‘‘late,’’ she did not establish on 

what date she received them. Id. Accordingly, I 

conclude that Respondent had more than adequate 

time to compare the transcripts with the underlying 

tapes and to prepare a motion setting forth those 

instances (were there any) in which the transcripts 

did not accurately reflect the content of the tapes. 

that when he was working ‘‘in Montana 

I had a sore back sometimes. But I just 

think it was because I was working.’’ Id. 

at 12. H.T. subsequently told 

Respondent he had ‘‘been feeling really 

good’’ and denied that the pain went 

down his leg. Id. at 12–13. H.T. then 

told Respondent that one of his friends 

had a relative who was doctor and that 

the doctor had given him Percocet Tens 

(10 mg.). Id. at 15–16. H.T. then asked 

Respondent if she could give him 

Percocet Tens. Id. at 16–17. Respondent 

tried to persuade H.T. to take Percocet 

Fives (5 mg.). Id. at 17. H.T. insisted that 

he wanted the Percocet Tens. Id. at 21. 

After telling H.T. that because the 

Percocet Tens were new and half of the 

area pharmacies didn’t stock it, 

Respondent asked him whether he 

wanted to try forty or sixty tablets. Id. 

H.T. said sixty, id., and Respondent 

gave him a prescription for sixty tablets 

of Percocet 10/325. Id. at 26. 

Respondent told H.T. to take only six 

tablets a day, because the Tylenol 

(acetaminophen) is ‘‘a bad thing.’’ Id. at 

27. Continuing, Respondent stated that 

the ‘‘the other stuff is a fun thing’’ and 

that H.T. could also try pure oxycodone. 

Id. 

The patient record indicates that a 

physical examination was performed, 

but there is no such indication in the 

transcript from that visit. Compare GX 

71, at 7–8, with GX 61. According to the 

patient file, Respondent found that H.T. 

‘‘ha[d] slight pain with lumbar range of 

motion and especially has pain with 

lumbar extension combined rotation,’’ 

and diagnosed him as have ‘‘chronic 

biomechanical low back pain.’’ GX 71, at 

8. There is, however, no indication in 

the transcript of the visit that 

Respondent performed a physical exam 

on H.T. See GX 61. 

On March 11, H.T. returned to 

Respondent. GX 62. During the visit, 

H.T. told Respondent that he had ‘‘just 

tested positive’’ for Hepatitis C and 

wanted to change to pure oxycodone 

from Percocet, which contains 

acetaminophen. GX 62, at 4. H.T. told 

Respondent that changing the 

prescription to pure oxycodone would 

make him ‘‘pretty happy.’’ Id. at 4. 

Respondent asked H.T. if he wanted 

sixty tablets; H.T. said he ‘‘would love’’ 

to get sixty. Id. at 6. Respondent wrote 

H.T. a prescription for sixty tablets of 

Roxicodone 5 mg. GX 71, at 8. 

Three days later, on March 14, H.T. 

returned to Respondent. Respondent 

asked him to rate his back pain, and 

suggested ‘‘three, four, five, six?’’ GX 63, 

at 3. H.T. replied: ‘‘ya know, the Doc 

always sa-, helps me, He puts em down 

so he can get the insurance company 

payin[g].’’ Id. Respondent replied: 

‘‘Okay, five,’’ and H.T. agreed stating: 

‘‘Five. I’ve got worse.’’ Id. 

H.T. asked Respondent for 120 

oxycodone, stating that he was going to 

be gone all of the next week and maybe 

for a part of the week after that. Id. at 

6. Respondent then asked H.T. whether 

he liked the oxycodone; H.T. replied 

that he ‘‘like[d] it, but I had to eat ‘em 

like M & M’s,’’ because they were ‘‘only 

fives.’’ Id. After explaining to 

Respondent that she had previously 

prescribed only 5 mg. tablets, H.T. 

added that he ‘‘was eatin[g] them 

codones like candy until I noticed they 

were just five milligramers.’’ Id. at 7. 

Respondent then asked whether H.T. 

wanted to stick with the fives because 

they ‘‘are the cheapest.’’ Id. H.T. stated 

that he wanted ‘‘something that’s 

stronger.’’ Id. Respondent then asked 

whether he wanted fifteens; H.T. replied 

that he would ‘‘be much happier with 

fifteens.’’ Id. at 7–8. Respondent then 

explained that ‘‘the price breaks at a 

hundred’’ so that she would ‘‘write a 

hundred’’ because the pharmacist could 

just give him a box and not have to 

count out extra pills. Id. at 9. H.T. then 

added that oxycodone fives ‘‘didn’t 

make me feel as good as those ten 

Percocets * * * [u]ntil I ate a few 

more.’’ Id. 

According to H.T.’s patient record, 

Respondent wrote a prescription for 100 

tablets of Roxicodone 15 mg. GX 71, at 

8. The patient record also indicates that 

Respondent performed a physical exam. 

Id. Again, however, the transcript of the 

visit does not reflect a physical 

examination. See generally GX 63. 

On March 25, H.T. went back to see 

Respondent. GX 64. According to the 

transcript, Respondent asked H.T. why 

he needed to see her because it had not 

been two weeks since the last visit. Id. 

at 4. H.T. told Respondent that he was 

there to beg her to give him some 

OxyContin forties (40 mg.), that an 

acquaintance had told him that he had 

‘‘gotta try and get her to give you some 

of them OxyContin,’’ and the 

acquaintance had told him that the 

OxyContin were ‘‘really good.’’ Id. at 

4–5. 

Respondent then asked H.T. if he 

wanted to try the ten milligram 

OxyContin; H.T. replied: ‘‘Ten? He had 

forties.’’ Id. at 5. After H.T. repeated that 

his acquaintance had gotten forties, 

Respondent explained that the forties 

were ‘‘for him’’ and that ‘‘there’s ten, 

twenty, forty, and eighty,’’ which are 

four of the different strengths of the 

drug. Id. at 6. H.T. then suggested that 

‘‘we split difference,’’ and Respondent 

said ‘‘twenty.’’ Id. Respondent next 

asked if H.T. could take ‘‘one of the 

fifteens and it’s fine?’’ Id. H.T. replied 

that he ‘‘probably ate six a day’’ and 

asked ‘‘is that too many?’’ Respondent 

then suggested that ‘‘it helped and it’s 

for your back.’’ Id. While H.T. initially 

said ‘‘well yeah Doc’’ and laughed, he 

shortly added that ‘‘my back feels great, 

but, I like these,’’ and then asked ‘‘is that 

a bad thing?’’ Id. at 7. 

After discussing how H.T. was paying 

for his drugs, H.T. asked Respondent 

‘‘How many you gonna give me?’’ Id. 

Respondent replied: ‘‘Well, a month 

would be sixty. You’re supposed to take 

one every twelve hours.’’ Id. at 8. H.T. 

replied ‘‘really,’’ and Respondent asked 

him whether he wanted sixty or thirty 

tablets. Id. H.T. answered that he was 

‘‘hopin[g] you’d give me a hundred’’ but 

that ‘‘sixty sounds really good’’ and 

laughed. Id. Respondent then suggested 

that H.T. ‘‘go through your insurance’’ 

and asked him if he was still driving the 

truck. Id. H.T. replied that ‘‘if I drive, I’ll 

still do em.’’ Id. Respondent then stated: 

‘‘Alright. Your back is still * * * bad, 

but the adjustments help.’’ Id. 

Respondent then wrote H.T. a 

prescription for 60 tablets of OxyContin 

20 mg. (q12h), a thirty-day supply if 

taken as prescribed. GX 71, at 9. 

According to the progress note 

prepared by Respondent for this visit, 

Respondent performed a physical exam 

which showed that H.T. ‘‘has pain with 

lumbar range of motion and stiffness 

with lumbar range of motion.’’ Id. 

Respondent also indicated that she 

discussed the ‘‘risks and benefits of long 

acting opioids’’ with H.T., ‘‘including 

risks of addiction and side effect,’’ and 

that a ‘‘pain contract was signed.’’ Id. But 

as the transcript makes clear, 

Respondent did not perform a physical 

exam on this date. Nor is there any 

indication in the transcript that 

Respondent discussed the addiction 

risks with H.T. Finally, the transcript 

does not include any evidence that 

suggests that Respondent had H.T. sign 

a pain contract at this visit. Indeed, the 

record establishes that Respondent did 

not have H.T. sign a pain agreement 

until April 23, and that she had him 

back-date the agreement to March 25. 

See GX 67, at 7–8. 

On April 4 (ten days later), H.T. 

returned to Respondent’s office. GX 65. 

After making small talk about their 

respective ages, Respondent asked H.T. 

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68 During his time with the chiropractor, the 

chiropractor said that H.T. was ‘‘doin[g] great,’’ and 

H.T. agreed that he was ‘‘feeling great.’’ GX 65, at 

8. 

if he ‘‘like[d] the Oxycoton [sic]?’’ Id. at 

4. H.T. answered affirmatively, and 

Respondent asked him: ‘‘That’s what 

you want?’’ Id. H.T. answered: ‘‘Yes, 

please.’’ Id. 

Respondent then noted that she had 

given H.T. a month’s supply at the 

previous visit and asked him if he was 

‘‘takin[g] more of it then.’’ Id. H.T. 

answered affirmatively and 

subsequently stated that he had taken 50 

tablets in seven days, or ‘‘about seven a 

day.’’ Id. at 5. 

Respondent then asked H.T. if he 

‘‘want[ed] [a] stronger pill’’ or if he 

wanted her ‘‘to write that you take more 

of em.’’ Id. H.T. asked: ‘‘Do they got ‘em 

stronger?’’ Id. Respondent answered that 

‘‘[t]hey have a forty milligram.’’ Id. H.T. 

answered ‘‘Sure!’’ Id. Respondent stated: 

‘‘Let’s try that. But if you’re taking 

seven, that’s ah, four. Okay, let’s try 

three a day.’’ Id. H.T. then told 

Respondent: ‘‘You are so good to me.’’ 

Id. H.T. then asked Respondent if she 

had to write something every time he 

visited, and Respondent said ‘‘I’ve 

always had to write somethin[g].’’ Id. at 

6. 

Respondent then asked H.T.: ‘‘what’s 

your number today?’’ Id. H.T. replied: 

‘‘tell me, what do I look like. You know, 

you, you guys always help me with my 

insurance. That’s to keep the insurance 

pay, company payin[g].’’ Id. Respondent 

replied that she did not know, and H.T. 

asked her if he ‘‘look[ed] like a seven.’’ 

Id. When Respondent replied that he 

‘‘look[e]d like a zero,’’ H.T. laughed and 

said: ‘‘That means on a pain level, 

right?’’ Id. H.T. then went to see the 

chiropractor.68 At the visit, Respondent 

gave H.T. a prescription for 90 tablets of 

OxyContin 40 mg., with a dosing of one 

tablet every eight hours. GX 71, at 9. 

The prescription thus not only doubled 

the strength of the previous prescription 

but also increased the quantity by 

another 30 tablets. Based on the dosing 

instruction, the prescription would last 

for 30 days. 

In the progress note for this visit, 

Respondent indicated that H.T. had 

‘‘continued low back pain,’’ and that she 

had performed a physical exam, which 

‘‘show[ed] that he has pain [and 

stiffness] with lumbar range of motion.’’ 

Id. She also noted that he was ‘‘doubling 

up on the OxyContin’’ and was ‘‘even 

taking more than double.’’ Id. 

On April 11, one week later, H.T. 

again saw Respondent and requested a 

refill prescription, indicating that he 

would be going out of town for two 

weeks. GX 66, at 5. As the previous 

prescriptions would last for 30 days and 

only one week had passed, H.T. did not 

need another prescription if he was only 

going to be gone two weeks. After some 

small talk, Respondent asked H.T. ‘‘do 

you want the OxyContin?’’; H.T. 

answered: ‘‘Yeah.’’ Id. at 8–9. 

Respondent then noted (incorrectly) that 

H.T. had ‘‘just got it March 25th’’; before 

Respondent could complete her next 

sentence H.T. replied: ‘‘I know. I got a 

maybe about um, fifty left. But I’m 

gonna be gone for two weeks I think.’’ 

Id. at 9. Respondent and H.T. then 

discussed when the latter would be 

leaving, how many pills he had left, and 

whether his insurance would cover it 

because he was ‘‘so early.’’ Id. 

Respondent eventually agreed, 

however, to write H.T. a prescription for 

twenty-milligram strength and asked 

him if he ‘‘want[ed] ninety?’’ Id. at 11. 

H.T. replied: ‘‘Oh, please. I probably 

been eatin[g] a few more of those than 

three a day, okay?’’; he then added that 

he wanted ‘‘to be totally honest with’’ 

Respondent. Id. After an unintelligible 

comment by Respondent, H.T. reiterated 

that he only had ‘‘fifty left.’’ Id. 

Respondent then asked H.T. whether he 

would be out of town ‘‘for two weeks,’’ 

and H.T. stated that he was ‘‘pretty sure’’ 

that he would be gone ‘‘for two weeks.’’ 

Id. at 12. Respondent then gave H.T. a 

prescription for another 90 tablets of 

OxyContin 40 mg. (also q8h). Id.; see 

also GX 71, at 10. H.T. then told 

Respondent:’’ You’re okay, Doc,’’ and 

Respondent replied: ‘‘I know * * * You 

caught me at a soft moment.’’ GX 66, at 

12. 

On April 23, H.T. returned to 

Respondent and again sought more 

OxyContin. GX 67, at 6–7. After 

discussing with H.T. whether he was on 

the forty or eighty-milligram strength 

tablets, Respondent asked him if he had 

signed a pain management agreement at 

the last visit. Id. at 7. After H.T. replied 

that he did not think so, Respondent 

told him that he needed to do so and to 

date the agreement March 25, 2002. Id. 

at 8. Respondent then explained some of 

the requirements of the pain agreement. 

Id. at 8–12. 

Respondent and H.T. then discussed 

how many tablets she had given him at 

some of the previous visits. Id. at 12–13. 

Respondent noted that she had given 

him 90 tablets and asked him if he was 

‘‘takin[g] more than three a day?’’ Id. at 

14. When H.T. answered ‘‘[y]eah,’’ 

Respondent asked him if he was ‘‘out of 

‘em.’’ Id. H.T. then asked: ‘‘[i]s that a bad 

thing?’’ and added that he had ‘‘a few 

left.’’ Id. 

Respondent then told H.T.: ‘‘They’re 

watchin’ me, Hal.’’ Id. at 15. H.T. asked: 

‘‘They’re what?’’ Respondent replied: ‘‘I 

gave you ninety of the forties. I gave you 

ninety, wait a sec. I gave you on ni-, on 

the fourth and the eleventh.’’ Id. H.T. 

then said: ‘‘I told you I got the * * * 

constitution of * * * a mammoth. And 

you have the heart of a mammoth.’’ Id. 

H.T. then added that ‘‘I’d never tell you 

none of them stories about losing’ ‘em 

or anything. I just tell ya the truth. I’d 

just like a few more of those okay?’’ Id. 

Following a discussion of what to put 

in his medical record, (Compare id. with 

GX 71, at 10), Respondent asked him if 

he could ‘‘taper down a little?’’ because 

she had given him 90 tablets and a week 

after that, another prescription because 

he was ‘‘going out of town.’’ Id. at 16. 

H.T. asked ‘‘is that a bad thing?,’’ and 

Respondent explained: ‘‘Well, they’re 

watching me, so, I, I can’t do it again 

until this investigation’s over.’’ Id. After 

H.T. asked who was watching her, 

Respondent answered that the State 

medical board was. Id. H.T. then told 

Respondent that he did not want to get 

her in trouble, that if the Board came to 

him, he would ‘‘have nothing but nice 

things to say about’’ her, and that he 

would not be coming in with Morley 

Safer from Sixty Minutes. Id. at 17. 

Later in the conversation, Respondent 

asked H.T. to make his drugs ‘‘last a 

little more’’ and added: ‘‘[u]ntil my 

investigation is over.’’ Id. at 18. H.T. 

initially agreed to, but added that ‘‘I hate 

like though when it says just take three’’ 

and that ‘‘there’s a part of me that want 

to take one more than or two more 

than.’’ Id. H.T. then suggested that if 

Respondent gave him the ‘‘bigger ones, 

they’d last longer.’’ Id. Respondent 

replied that ‘‘[f]orty is good enough.’’ Id. 

Respondent then suggested that H.T. 

try Celebrex, an anti-inflammatory 

which is not a controlled substance. Id. 

at 19. H.T. replied that ‘‘[t]he only pain 

in my life is the ache in my heart when 

I’m around you visions of loveliness 

that work here.’’ Id. Apparently, 

Respondent then gave H.T. a 

prescription for Celebrex, see GX 71, at 

19; and H.T. asked if she could give him 

‘‘some more’’ OxyContin. GX 67, at 19. 

When Respondent said that she 

couldn’t because she had recently given 

him 90 tablets, H.T. complained that ‘‘I 

only got a few of those left.’’ Id. at 20. 

Respondent then told H.T. she was 

giving him the Celebrex and that she 

had given him 90 OxyContin ‘‘on the 

eleventh,’’ which ‘‘was like eleven days 

ago,’’ and he was ‘‘taking nine a day’’ 

when he was ‘‘supposed to take three a 

day.’’ Id. After H.T. complained that he 

was going to ‘‘run out,’’ Respondent told 

him that he had to be good until next 

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69The patient record indicated that Respondent 

performed a physical exam at the April 23 visit. GX 

71, at 10. 

week.69 Id. at 20–21. H.T.’s record also 

reflects a physical examination, without 

corroboration from the transcript of the 

visit. Compare GX 71, at 10, with GX 67. 

On April 29, H.T. again saw 

Respondent. GX 68. H.T. told 

Respondent he did not fill the Celebrex 

and asked: ‘‘What do I need an antiinflammatory for?’’ Id. at 6. Respondent 

answered ‘‘It’s for pain,’’ and added that 

he ‘‘should try it.’’ Id. H.T. then replied: 

‘‘Doc, you know between you and me 

my pain level is non-existent, but, I 

really like them Oxyco[ntin]. Them 

make me feel good.’’ Id. 

Respondent then asked H.T. ‘‘if you’re 

not using ‘em for pain what’re ya using 

‘em for?’’ Id. H.T. replied: ‘‘Cause life is 

painful, ya know, just that, the 

heartache and the psoriasis and all that 

other stuff.’’ Id. Respondent then asked 

H.T. if he was ‘‘using it to just make you 

feel like, mellow?’’ Id. When H.T. 

replied (laughingly), ‘‘what should I say 

no?,’’ Respondent answered: ‘‘I can’t 

prescribe ‘em for that reason.’’ Id. at 7. 

When H.T. told Respondent to ‘‘put 

down that I’m in a lot of pain then, 

okay?,’’ Respondent answered: ‘‘But 

you’re not in a lot.’’ Id. Respondent then 

noted that she had given him 90 tablets, 

and yet he was out of the drugs ‘‘by the 

end of the week’’ and that he was 

‘‘getting addicted to ‘em.’’ Id. at 8–9. H.T. 

insisted, however, that he was not 

getting addicted because he had the 

‘‘metabolism of an elephant’’ and had 

‘‘quite a body mass.’’ Id. at 9–10. 

While Respondent again maintained 

that she could not keep filling the 

prescriptions for the reasons H.T. 

wanted the drugs, she then told him that 

she could not do it because she was 

being ‘‘watched like a hawk now 

because * * * everybody thinks I’m 

writing too many prescriptions for 

people.’’ Id. at 10. H.T. then told 

Respondent that she did not ‘‘have to 

worry about’’ him. Id. 

Respondent then suggested that she 

‘‘could cut down the dose’’ and asked 

H.T.: ‘‘You want a small dose?’’ Id. 

Respondent also told H.T. that ‘‘Forties 

is a high dose.’’ Id. Respondent 

subsequently told H.T. that she had 

given him ‘‘a month’s supply on April 

eleventh’’ and that ‘‘[i]t’s not a month.’’ 

Id. at 11. H.T. insisted that it was ‘‘pretty 

dang near though?’’ Id. Respondent told 

him that he would have to wait until 

May 11th. Id. 

H.T. then asked Respondent for a 

prescription to last until May 11. Id. 

Respondent asked H.T. what had 

happened to the 100 tablets of 

oxycodone 15 mg. which she had given 

him in March. Id. at 12. H.T. told 

Respondent that they were ‘‘like aspirin’’ 

and that OxyContin ‘‘was better than 

them.’’ Id. Respondent then insisted that 

if H.T. read the news, he would know 

that ‘‘[e]verybody’s all afraid of’’ 

OxyContin, and that ‘‘we have to live 

with rules.’’ Id. 

When H.T. reminded Respondent that 

she had told him that he would be able 

to get a new prescription ‘‘this week,’’ 

Respondent replied: ‘‘you * * * 

unfortunately told me why you were 

taking ‘em. Has nothing to do with your 

back pain and that’s the only reason you 

should be taking ‘em.’’ Id. at 13. 

Respondent then told H.T. to ‘‘[w]ait till 

May eleventh. Then at least you’ll have 

a month.’’ Id. Respondent then added 

that she was ‘‘gonna cut and give [him] 

twenties.’’ Id. H.T. replied: ‘‘Twenty. 

How can you do that?’’ and Respondent 

answered: ‘‘Hal, wait till my 

investigation’s over.’’ Id. at 14. 

On May 15, H.T. again saw 

Respondent. GX 69. H.T. told 

Respondent that he ‘love[d] those pills’’ 

and added that while she had told him 

‘‘to wait till the eleventh,’’ he had ‘‘been 

so good’’ and that it was then ‘‘past the 

eleventh.’’ Id. at 2. Respondent told H.T. 

that the pills were ‘‘supposed to be for 

back pain.’’ Id. H.T. replied he was 

‘‘getting into that mode, doc,’’ asked if 

she had seen him ‘‘come in here kinda 

all kinked over and everything,’’ and 

added that his ‘‘modality [was] messed 

up’’ and that ‘‘homeostasis [wa]s 

unaligned.’’ Id. H.T. then facetiously 

added that he had ‘‘great internal and 

mental stress’’ because he had 

abandonment issues as a child and his 

wife had divorced him and run off with 

a bald guy (who was considerably older) 

more than fifteen years earlier. Id. at 2– 

3. 

H.T. then offered to be a character 

witness for Respondent in the board 

investigation. Id. at 4. When Respondent 

said that the board would say that she 

had been giving him drugs and that he 

was a drug addict, H.T. interjected that 

he had not been getting drugs from her 

for that long. Id. at 5. Respondent then 

observed that she had first put him ‘‘on 

twenties then you like the forties.’’ Id. 

H.T. responded that he had the 

metabolism of a mammoth, and that he 

would not ask her ‘‘again until thirtyfive days or whatever.’’ Id. Respondent 

then asked H.T. if he wanted to ‘‘take 

three a day?’’; H.T. said ‘‘sure.’’ Id. at 5– 

6. Respondent then asked H.T. if he was 

taking the Celebrex; H.T. said that he 

had filled the prescription but that it did 

‘‘not really’’ help. Id. at 6. 

Following a discussion of whether 

H.T. was going to the pharmacy that he 

said he would use in the pain 

agreement, H.T. suggested that he fill 

his prescriptions in Mexico. Id. at 7. 

Respondent said that she did not think 

that he would be able to fill the 

prescriptions in Mexico, ‘‘especially 

OxyContin.’’ Id. at 8. H.T. then told 

Respondent that if you went to the 

border towns such as Nogales, people 

would come up to him ‘‘trying to hustle 

you for everything,’’ and that one such 

individual had tried to sell him Viagra. 

Id. H.T. added that he asked this 

individual about buying OxyContin, and 

that the individual offered to sell him 

twenty-milligram tablets for ‘‘two dollars 

a milligram.’’ Id. H.T. also added that 

this individual ‘‘wanted to sell 

everything. Vicodin, ah, Viagra, ah, he 

was just like a walkin[g] PDR.’’ Id. at 9. 

Shortly thereafter, Respondent issued 

H.T. a prescription for 90 tablets of 

OxyContin 40 mg. GX 71, at 11. After he 

again offered to be a witness for 

Respondent in the Board’s investigation, 

H.T.’s visit with Respondent ended. GX 

69, at 10. 

The entry in H.T.’s patient record for 

this visit indicated that Respondent 

performed a physical exam and found 

that he had ‘‘pain’’ and ‘‘stiffness with 

lumbar range of motion.’’ GX 71, at 11. 

Respondent also indicated that she had 

performed a ‘‘neurological exam of both 

lower extremities [which] showed 

normal motor strength, sensation and 

deep tendon reflexes.’’ Id. Again, 

however, the transcript lacks any 

indication that Respondent performed 

the tests she documented as part of her 

physical exam. 

In her Response to the Government’s 

Exceptions, Respondent also contended 

that H.T.’s loud laughter would have 

drowned out evidence of the physical 

examinations she claims to have 

performed. Response to Exceptions at 2. 

Respondent also maintained that ‘‘after 

four years of these physical exams, there 

are necessarily fewer specific directions 

to the patient,’’ and that H.T. knew the 

routine for her focused physical 

examination and did not have to be told 

what to do. Id. 

Respondent’s arguments are not 

persuasive. As for her contention that he 

knew her routine after so many years of 

exams, the record establishes that on 

March 4, 2002 (the date she started 

prescribing controlled substances to 

him), she had not physically examined 

him since March 8, 2000, a period of 

nearly two years. See GX 71, at 7. 

Between these exams, H.T. had been 

physically examined by at least two 

other physicians (on May 31, 2000 and 

January 24, 2001) for the same 

condition. See id. at 23 & 27. It is 

therefore exceedingly unlikely that H.T. 

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70 Dr. Hare reviewed H.T.’s patient file. Dr. Hare 

remarked that when H.T. returned in March 2002, 

Respondent’s physical examination was ‘‘minimal,’’ 

and Respondent did not inquire as to the physician 

who had prescribed the Percocet to him. GX 46A, 

at 2. Dr. Hare further noted that Respondent started 

H.T. at ‘‘one of the stronger doses of Percocet,’’ and 

Dr. Hare questioned why she did not begin with a 

lower dose. Id. On March 11, 2002, when 

Respondent switched H.T. from Percocet to 

oxycodone, she did not notate her reasoning in the 

file. Id. At that time H.T. was taking approximately 

nine tablets of Percocet a day, in excess of the 

prescribed amount. On March 14, when he 

returned, he was taking approximately 20 tablets/ 

day, ‘‘2/3 oxycodone at a time,’’ without any 

indication of improvement in his pain. Id. On April 

4, when Respondent noted that H.T. was ‘‘doubling 

up on OxyContin, even taking more than double,’’ 

Respondent wrote for OxyContin 40 mg., one each 

eight hours. Id. Dr. Hare noted that one week later, 

when H.T. indicated he would be going out of town 

for two weeks, Respondent again wrote for 90 

OxyContin 40 mg. Id. He noted that the ‘‘same 

information and the same physical examination is 

stated in the chart’’ for both April 23 and the 

subsequent visit on May 15. Id. 

Dr. Hare concluded that ‘‘the history and the 

physical were inadequate to allow prescribing of a 

control [sic] substance.’’ Id. at 3. Respondent 

‘‘rapidly escalated the dose’’ without any 

documentation that the pain responded to opioid 

medication, and the patient ‘‘consistently used the 

medication in excess of her prescriptions.’’ Id. For 

Dr. Hare, ‘‘[t]his should have been an indication to 

[Respondent] that the patient was non-compliant 

and using medication in excess, raising the 

likelihood of abuse or diversion.’’ Id. 

71The transcripts reflect, however, that 

Respondent frequently found H.T. to be amusing. 

would have remembered Respondent’s 

routine for performing a physical exam. 

Moreover, the transcripts of H.T.’s 

various visits do not contain even a 

trace of the prompting that a physician 

would use in performing a physical 

exam. As for Respondent’s further 

contention that H.T.’s laughter drowned 

out her directions when she performed 

an exam, the instances of laughter (and 

by whom) were noted in the transcripts 

and were quite limited. Finally, while 

Respondent maintains that ‘‘[t]he actual 

audio tape contains lots of loud 

laughing by H.T.,’’ she did not identify 

specific examples of this in her briefs. 

I thus conclude that Respondent failed 

to physically examine H.T. on March 4, 

14, and 25, April 4 and 23, and May 15, 

2002. I further find that Respondent 

falsified H.T.’s medical record for these 

six visits by indicating that she had 

performed a physical exam when she 

did not.70

The gist of Respondent’s testimony 

with respect to H.T. was that she was 

duped. For example, Respondent 

testified that H.T. ‘‘was always a very 

loud, obnoxious patient,’’ that he ‘‘was a 

three-time convicted felon who 

somehow made a deal with the FBI to 

become * * * [a] ‘mole,’’’ and that he 

carried a ‘‘Tri-Care insurance card, 

which identified him as E–8, enlisted 

man 8, which is a pretty high rank for 

an enlisted person.’’ Tr. 2068. According 

to the Respondent, ‘‘[d]octors being 

human, we give some credibility to a 

person based on their credentials.’’ Tr. 

2068–69. See also Tr. 2316 (‘‘In my 

mind [the prescriptions were] for a 

legitimate medical purpose, but 

obviously, when I’m confronted with 

the fact * * * that the person I thought 

I was prescribing to was lying to me and 

faking, then one can’t but help but then 

conclude based on that retrospectively 

that that was not for a legitimate 

medical purpose.’’). 

Continuing this theme, Respondent 

complained that H.T. presented ‘‘a true 

* * * a seemingly true insurance card’’ 

such that the insurance company would 

have received payments ‘‘[s]o there was 

no question, to us, that he was telling 

the truth * * * about who he was.’’ Tr. 

2071. She also testified that his visits 

followed September 11, 2001, and that 

there ‘‘was certainly a new-found 

respect for the military after 9/11’’ such 

that she ‘‘afforded him some deference.’’ 

Tr. 2072. 

Respondent further claimed that ‘‘we 

kept thinking that he was coming 

because he had back pain’’ and that ‘‘all 

of our documentation and our 

conversations with him were assuming 

that he was having back pain.’’ Id. at 

2073. Yet she also acknowledged that 

there were several times when she 

‘‘wanted to’’ put him on ‘‘maintenance 

care’’ and have him come less frequently 

because his back was ‘‘much better.’’ Id. 

at 2072. Respondent claimed that ‘‘it’s 

really hard for a doctor to just get rid of 

patients’’ and ‘‘the fact that we didn’t 

like him is not a reason to get rid of 

him.’’ Id. at 2072–73. 

Moreover, Respondent testified that at 

the visit when H.T. asked for Percocet, 

he did not present any ‘‘significant 

change’’ in his condition and that his 

‘‘physical exam was never very 

significant.’’ Id. at 2075. She claimed 

that she ‘‘trusted him’’ and that ‘‘when 

he asked [her] for Percocet * * * he 

needed it’’ even though he ‘‘was using 

words very unusually.’’ Tr. 2075–76. 

Respondent testified that ‘‘in 

retrospect’’ she ‘‘should have been 

suspicious because he’s laughing’’ as 

they talked.71 Id. at 2074. Respondent 

maintained, however, that medical 

professionals are ‘‘not trained to be 

suspicious of people’’ or ‘‘to figure out 

inconsistencies in what people tell us.’’ 

Id. at 2075. But she then acknowledged 

that H.T. never had neurological 

symptoms or that there was ‘‘any reason 

to suspect he had a herniated disc and 

needed to have surgery or any 

emergency procedure.’’ Id. at 2075–76. 

Finally, while Respondent admitted on 

cross-examination that the prescriptions 

she issued to H.T. lacked a legitimate 

medical purpose, this was because he 

‘‘was not a true chronic pain patient’’ 

and ‘‘the fact that everything he was 

presenting to me was not correct.’’ Id. at 

2322. 

The transcripts of H.T.’s visits make 

plain that Respondent’s testimony is 

self-serving and disingenuous. For 

example, at the March 4, 2002 visit 

when H.T. returned and requested 

Percocet, he indicated that he had had 

‘‘a sore back’’ only ‘‘sometimes,’’ and that 

was when he was working. He also 

made clear that he had ‘‘been feeling 

really good’’ and denied that the pain 

went down his leg. Moreover, he asked 

for a specific drug—Percocet 10/325. 

Finally, when Respondent counseled 

him about the risk of taking too many 

tablets because of the drug’s 

acetaminophen content, which she 

characterized as ‘‘a bad thing,’’ she then 

added that ‘‘the other stuff [the 

oxycodone] is a fun thing.’’ Moreover, 

Respondent did not physically examine 

him even though she had not seen him 

in nearly two years. In short, 

Respondent knew that H.T. was not 

seeking the Percocet to treat a legitimate 

pain complaint. 

At subsequent visits, H.T. made 

additional comments which made clear 

that he was engaged in drug-seeking. 

For example, at the March 11 visit, H.T. 

told Respondent that changing his 

prescription to oxycodone would make 

him ‘‘pretty happy,’’ and when 

Respondent asked if he wanted 60 

tablets, H.T. told her that he ‘‘would 

love’’ to get 60. Moreover, H.T. told 

Respondent that he was eating the 

oxycodone 5 mg. tablets ‘‘like candy’’ 

and ‘‘M & Ms.’’ Moreover, Respondent 

did not perform a physical exam even 

though she indicated that she had in 

H.T.’s record. 

At the March 25 visit, H.T. told her 

that he was there to beg her to give him 

some OxyContin 40s. And when 

Respondent commented that it was o.k. 

that H.T. was taking six fifteenmilligram Roxicodone tablets a day 

because it was for his back, H.T. 

laughed and added that his back felt 

great but that he liked the drugs. 

Throughout these visits, H.T. also 

presented a pattern of seeking 

additional drugs, as well as more 

powerful drugs, well before the 

previously issued prescriptions would 

have run out. Moreover, after she gave 

H.T. a prescription for another 90 tablets 

of OxyContin 40 mg. (merely a week 

after a previous prescription for the 

same strength and quantity, which 

should have lasted thirty days based on 

the dosing instruction), H.T. told her 

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72According to Respondent, the earlier records 

had been archived. Tr. 2097. 73Lumbar punctures. 

‘‘You’re okay, Doc,’’ to which 

Respondent replied: ‘‘I know * * * You 

caught me at a soft moment.’’ 

When H.T. sought more OxyContin at 

the next visit (April 23), H.T. did not 

claim that he was in pain and told her 

that he never made up any stories about 

losing the drugs and that he was telling 

the truth and just wanted to get ‘‘a few 

more.’’ Moreover, Respondent told H.T. 

that she could not write another 

prescription so soon because the State 

Board was investigating her. 

Furthermore, later in this visit H.T. told 

Respondent that he did not have pain 

(‘‘the only pain in my life is the ache in 

my heart when I’m around you visions 

of loveliness that work here’’). 

At the next visit, H.T. once again 

made clear that his ‘‘pain level is nonexistent.’’ When Respondent questioned 

H.T. further as to why he wanted the 

drugs, H.T. made plain that he was 

seeking the drugs to abuse them and not 

to treat pain. Respondent further told 

H.T. that she could not give him a new 

prescription until at least a month had 

passed from the previous prescription 

and that he should wait until the 

investigation was over. 

Finally, at the last visit, H.T. once 

again made clear that he was seeking the 

drugs to abuse them and not to treat 

pain. Moreover, he also told Respondent 

that he had tried to buy OxyContin on 

the street in Mexico and even cited the 

price per milligram. Respondent 

nonetheless gave him another 

prescription for 90 tablets of OxyContin 

40 mg. 

It is thus clear that Respondent knew 

that H.T. was not seeking the drugs to 

treat a legitimate pain condition, but 

rather to abuse them. Respondent was in 

no sense duped by H.T. as to his reason 

for seeking the drugs; indeed, she 

clearly knew that he was seeking the 

drugs for an illicit purpose. 

K.Q. 

Respondent treated K.Q. as early as 

1992, but her patient record in evidence 

starts in 1997.72 Tr. 2097; GX 58, at 2. 

On March 17, 1997, K.Q., who was then 

a 37-year-old female, visited 

Respondent. Id. K.Q. complained of 

‘‘low back pain radiating to right lower 

extremity and numbness right lower 

extremity’’ after having fallen down in a 

grocery store some three to four days 

earlier. Id. 

K.Q. was on disability and had been 

in two prior motor vehicle accidents. Id. 

K.Q. had been diagnosed two years 

earlier with ‘‘pseudotumor cerebri’’ and 

was still being treated for this condition 

by another physician, Dr. S. Id. K.Q. had 

had ‘‘dozens of LPs 73 to drain CSF 

fluid.’’ Id. She was also still treating 

with Dr. L., who was prescribing 

Percocet to her, apparently for either a 

bulging or herniated disk at L2–3. Id. 

In her medical history, Respondent 

noted that K.Q. was taking Lorcet, a 

schedule III controlled substance which 

contains hydrocodone; Xanax, a 

schedule IV controlled substance; as 

well as two non-controlled drugs, 

Prozac and Mevacor. Id. There is, 

however, no indication in the progress 

note as to who was prescribing these 

other drugs. Id. 

Respondent performed a physical 

examination and diagnosed K.Q. as 

having chronic low back pain and 

muscle spasm, with a temporary 

exacerbation of pain, cervical pain, and 

muscle tenderness. Id. at 2–3. As part of 

the treatment plan, Respondent gave 

K.Q. a prescription for 20 Percocet. Id. 

at 3. She also recommended that K.Q. 

get ‘‘cervical and lumbar x-rays,’’ 

cervical and lumbar range of motion 

testing to accurately document ROM 

deficits and motion [K.Q.’s] progress 

through rehabilitation, and a 

‘‘[c]omprehensive program of joint 

mobilization and physiotherapy.’’ Id. 

There is no indication in the progress 

note, however, that Respondent 

contacted Dr. L., who reportedly was 

still treating her and prescribing 

Percocet, or Dr. S., to determine what 

drugs they were prescribing to K.Q. and 

to coordinate her prescribing. 

K.Q. underwent physical therapy the 

same day, as well as on the next two 

days. Id. at 4. During her March 19 visit, 

K.Q. sought a prescription for 90 

Percocet ‘‘because of a price break and 

because she got a check from the church 

made out for exact amount of 90 

Percocet.’’ Id. Respondent wrote a 

prescription for 90 Percocet. Id. After 

this, K.Q. did not appear for any more 

physical therapy sessions. Id. Moreover, 

there is no entry in the progress notes 

indicating that x-rays were done. Id. at 

3–4. 

On October 27, more than seven 

months after her last visit, K.Q. 

reappeared. Id. at 4. She complained of 

‘‘severe low back pain, mid back pain 

and headaches,’’ and reported that she 

was ‘‘on OxyContin and Duracet, as well 

as either Xanax or Valium.’’ Id. K.Q. said 

she saw Dr. L. every two weeks but had 

missed her October 1 appointment and 

had missed getting her prescriptions 

and that Dr. L. was out of town until 

November 3. Id. K.Q. and Respondent 

apparently did not discuss why, if K.Q. 

was seeing Dr. L. every two weeks, she 

had not seen him in the middle of 

October. Moreover, there is no 

indication that Respondent contacted 

Dr. L.’s office to verify whether he was 

away (or whether there was no one else 

in his practice who was covering for 

him). 

After a physical examination, 

Respondent diagnosed K.Q. as having 

chronic low back pain and myofascial 

pain. Respondent then prescribed 60 

OxyContin 20 mg. BID, 90 Xanax 1 mg. 

TID, and 30 Duracet 10 TID. Id. at 5. 

Respondent discussed the risks and 

benefits of long-acting opioids with 

K.Q., that any early renewals would be 

at her discretion, that ‘‘any doses 

changes need[ed] to be order[ed] by’’ 

her, that K.Q. should undergo a program 

of joint mobilization and physiotherapy 

two times per week with a recheck in 

three weeks. Id. Respondent also noted 

that K.Q. should ‘‘[c]ontinue care with 

Dr. [L].’’ Id. Notably, there is no 

explanation as to why Respondent 

prescribed Xanax other than that K.Q. 

told her that she was taking it. 

Later that day, the pharmacy called to 

tell Respondent that ‘‘[t]here is no 

medication Duracet.’’ Id. Moreover, 

there are no progress notes (as there 

were in March) indicating the dates, if 

any, on which K.Q. underwent physical 

therapy. Compare id. at 4 with id. at 5. 

On November 17, K.Q. returned and 

again complained of ‘‘severe low back 

pain’’ and a ‘‘shooting pain’’ in her right 

leg. Id. K.Q. indicated that she had neck 

pain associated with migraine 

headaches. Id. She also told Respondent 

that she was currently taking OxyContin 

40 mg. in the morning and OxyContin 

20 mg. in the evening, as well as ‘‘a 

muscle relaxant called ‘Durect.’ ’’ Id. 

Respondent gave K.Q. samples of 

Zanaflex 4 mg. and prescriptions for 90 

tablets of OxyContin 20 mg. ‘‘2 q AM 

and 1 q PM’’ (a thirty-day supply), and 

90 tablets of Xanax 1 mg. ‘‘TID’’ (also a 

thirty-day supply). Id. at 6. Again, 

notwithstanding that K.Q. had told 

Respondent that she was taking a drug 

that Respondent had not prescribed to 

her, there is no indication that 

Respondent contacted any of the others 

physicians whom K.Q. was seeing. 

Twelve days later, on November 29, 

Respondent phoned in a prescription for 

thirty Vicodin when KQ reported that 

her ‘‘purse was stolen.’’ Id. Respondent 

had not previously prescribed Vicodin 

(or any other medication containing 

hydrocodone) to K.Q. While this was 

another indication that K.Q. was 

obtaining drugs from multiple 

physicians or from the street, again 

there is no indication that Respondent 

even questioned K.Q. as to who the 

source of the Vicodin was. Id. Nor is 

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74At K.Q.’s March 17 visit, Respondent noted that 

she was taking Prozac, a non-controlled drug 

prescribed for depression. It does not appear that 

Respondent attempted to contact whoever had 

treated K.Q. with the Prozac. 

75Respondent also gave her a prescription for 

Zanaflex. 

there any indication that Respondent 

required K.Q. to present a police report. 

On December 8, K.Q. returned and 

complained of severe low back pain, 

neck pain, and headaches. Id. She also 

complained of numbness and of a 

shooting pain in her right lower 

extremity. Id. Following a physical 

exam which was limited to palpating 

her right upper trapezius muscle and 

lumbar area, Respondent wrote her 

prescriptions for another 90 tablets of 

both OxyContin 20 mg. (2 qam and 1 

qpm) and Xanax (1 tablet three times a 

day). Id. Notably, the prescriptions she 

issued on November 17 should have 

lasted another nine days (until 

December 17). Respondent also noted 

that she ‘‘need[ed] to discuss case with 

Dr. L.’’ Id. There is, however, no 

indication in the patient file that 

Respondent ever called Dr. L. 

On December 23, K.Q. needed a threemonth prescription for OxyContin and 

Xanax ‘‘to mail away for.’’ Id. 

Respondent obliged and wrote her 

prescriptions for 279 tablets of 

OxyContin and 270 tablets of Xanax. Id. 

at 7. 

About one month later, on January 20, 

1998, K.Q. returned, complained of 

severe low back pain, and indicated that 

she had ‘‘taken slightly more of 

OxyContin.’’ Id. K.Q. told Respondent 

that she had ‘‘never mailed away for the 

[three] month supply of the OxyContin’’ 

but apparently had for the Xanax, as she 

did not need another prescription for 

the latter. Id. Respondent did not 

perform a physical exam on K.Q. Nor 

did she question how she had managed 

to continue taking OxyContin and done 

so at an increased dose when the last 

prescription Respondent issued to her 

(prior to the one she claimed not to have 

filled) was on December 8, six weeks 

earlier. Nor did she ask K.Q. to return 

the OxyContin prescription she issued 

on December 23. Id. 

On February 2, Respondent 

discontinued the OxyContin and placed 

K.Q. on Duragesic patches. Id. at 8. She 

also noted that K.Q. was ‘‘very 

depressed,’’ diagnosed her as having 

depression, and gave her a prescription 

for 90 Valium 10 mg.74 Id. Respondent 

did not indicate in the record why she 

was switching K.Q. from Xanax, a drug 

which is in the same class as Valium. 

Moreover, given the size of the previous 

Xanax prescription (a three-month 

supply which was written in late 

December), the Xanax should have 

lasted until late March. 

On March 2, after a brief trial of the 

Duragesic patches, K.Q. complained that 

patches did not work well and 

‘‘want[ed] back on the OxyContin.’’ Id. at 

9. Respondent, who did not perform a 

physical exam, diagnosed K.Q. as 

having both chronic pain and 

fibromyalgia and gave her prescriptions 

for 60 OxyContin 40 mg. (BID) and 90 

Valium 10 mg. (TID).75 Id. 

Sixteen days later, on March 18, K.Q. 

returned and ‘‘complain[ed] of severe 

pain for past 2 weeks’’ and reported that 

she had been ‘‘taking extra medications, 

including extra Valium and OxyContin.’’ 

Id. Respondent’s physical exam found 

that she had ‘‘multiple areas [of] pain 

and tenderness to palpation.’’ Id. 

Respondent doubled the dosing of the 

OxyContin 40mg. to two tablets every 

twelve hours; the progress note does 

not, however, indicate how many tablets 

she prescribed. Id. Respondent also gave 

her a prescription for 120 tablets of 

Valium (TID and HS). Id. 

On March 27, K.Q. complained that 

she had not voided or had a bowel 

movement in three days. Id. Respondent 

found her bladder distended and 

referred her to an emergency room for 

a bladder catheterization and 

evaluation. Id. at 10. On March 31, K.Q. 

returned and told Respondent that she 

‘‘believe[d] that the nurse took her 

OxyContin.’’ Id. Respondent gave her a 

new prescription for 180 OxyContin 40 

mg. (q8h), as well as for 30 Halcion 

(triazolam), a schedule IV controlled 

substance. 21 CFR 1308.14(c). 

On April 14, K.Q. wanted to try a 

medication other than OxyContin 

because she thought it caused nausea, 

vomiting and headaches. Id. at 10. 

According to Dr. Hare, ‘‘it would be 

unusual for [a] patient to suddenly start 

having side-effects after 6 months of 

treatment with the medication.’’ GX 

46A, at 4. K.Q. also told Respondent 

that she was changing to an insurance 

plan that ‘‘would not pay for the 

OxyContin,’’ GX 58, at 11; and that she 

had previously taken methadone. Id. 

Respondent then wrote K.Q. a 

prescription for methadone 10 mg. ‘‘2 

tabs QID’’ (eight tablets a day) but did 

not indicate in the patient record the 

quantity. Id. Respondent also gave her a 

prescription for another 120 tablets of 

Valium. Id. There is no indication, 

however, that Respondent questioned 

K.Q. regarding her prior use of 

methadone; whether it was prescribed 

to her, and if so, who treated her; why 

was she taking it (methadone is 

prescribed both for pain and 

detoxification/maintenance treatment); 

and when she had previously taken it. 

K.Q. next visited on May 1, and 

reported that she was taking up to 120 

mg. methadone per day, one and onehalf times the prescribed daily dose. Id. 

Although K.Q. reported that she was 

‘‘doing better’’ on the methadone, and 

the physical exam found she had less 

distress, less pain with lumbar ranger of 

motion and ambulation, Respondent 

gave her a prescription for 300 tablets 

and doubled her dose to four tablets, 

four times a day. Id. She also wrote her 

a prescription for 120 Xanax 1 mg. ‘‘TID’’ 

(a forty-day supply if taken as directed) 

and noted that K.Q. would discontinue 

use of Valium. Id. 

On May 20 (nineteen days later), 

Respondent again wrote K.Q. a 

prescription for 120 tablets of Valium 10 

mg. ‘‘QID.’’ Id. at 12. Respondent did not 

indicate in the progress note why she 

was switching K.Q. back to Valium. Id. 

Respondent also wrote K.Q. another 

prescription for 300 methadone 10 mg. 

Id. 

On June 5, K.Q. reported that while 

she was taking the recommended dosage 

of four tablets, four times a day, she had 

only ten Methadone tablets remaining. 

Id. K.Q. told Respondent that ‘‘she 

believe[d] some workmen may have 

‘gotten into’ her medications.’’ Id. Once 

again, there is no indication that 

Respondent questioned K.Q. as to how 

this could have happened. Id. 

Respondent counseled K.Q. that ‘‘she 

needs to lock up her medications,’’ and 

K.Q. agreed to. Id. She then wrote K.Q. 

another prescription for 300 tablets of 

methadone 10 mg. ‘‘4 tabs QID.’’ Id. 

On June 19 (two weeks later), K.Q., 

who had recently twisted her ankle, 

wanted to switch off of methadone. Id. 

at 16. Apparently, another doctor told 

K.Q. that because she had pseudotumor 

cerebri, methadone could cause a side 

effect. Id. K.Q. also told Respondent that 

she would like to switch to MS Contin, 

because she could not afford OxyContin. 

Id. 

Respondent performed a physical 

exam and found that K.Q.’s right ankle 

had slight swelling and that she had 

‘‘severe numbness of [her] right lateral 

thigh and lateral calf.’’ Id. Respondent 

noted her impression as ‘‘post mild right 

ankle sprain.’’ Id. Respondent also 

diagnosed K.Q. as having ‘‘chronic 

numbness right lower extremity 

secondary to right lumbar radiculopathy 

vs myofascial pain,’’ id., but according 

to Dr. Hare, there was no evidence in 

the chart to support the diagnosis. GX 

46A, at 5. Respondent wrote K.Q. a 

prescription for 180 tablets of MS 

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76 During a physical exam, Respondent found that 

K.Q. showed eversion of her left eye and 

Respondent diagnosed her with an ‘‘exacerbation of 

pseudotumor’’ in addition to degenerative joint 

disease in her left knee. GX 58, at 18. Respondent 

sent her to the emergency room where she had a 

spinal tap. Id. 

77Respondent wrote K.Q. additional 

prescriptions for 270 tablets of MS Contin 100 mg. 

on September 2 and 25 with the same dosing of six 

tablets every eight hours. GX 58, at 20. 

Contin 60 mg. ‘‘2 tabs q8h,’’ a thirty-day 

supply. GX 58, at 16. 

Three days later, K.Q. told 

Respondent that ‘‘they only filled 100 of 

the MS Contin.’’ Id. Respondent did not, 

however, document the reason for the 

partial filling. Id. K.Q. also told 

Respondent that she was taking 3–4 

tablets every eight hours, one and onehalf to twice the prescribed dose. Id. 

There is no indication in the record that 

Respondent counseled K.Q. regarding 

her self-escalating the dose of the 

medication or that she questioned her as 

to whether it was necessary to address 

her pain. Id. Respondent then gave K.Q. 

another prescription for MS Contin 100 

mg. ‘‘2 tabs q8h #180,’’ a thirty-day 

supply. Id. at 16–17. 

On July 10, K.Q. returned to 

Respondent and told her that her left 

knee had gone out thirteen days earlier. 

Id. at 17. K.Q. told Respondent that she 

had seen Dr. H.’s physician assistant, 

who told her to wear a knee brace and 

stay on bedrest for four weeks. Id. K.Q. 

also told Respondent that she would see 

Dr. H. on July 20. Id. Respondent 

performed a physical exam on K.Q.’s 

knee and found slight swelling and that 

she had severe pain with knee range of 

motion. Id. Respondent concluded that 

K.Q. had possibly re-injured her 

meniscus and injected her knee with a 

combination of Marcaine and 

Depomedrol. Id. She also gave her new 

prescriptions for 240 tablets of MS 

Contin 100 mg., which increased the 

dosing to two tablets every six hours 

(from every eight hours) and a 

prescription for 120 Valium (one tablet 

four times a day). Id. 

Less than two weeks later, on July 23, 

K.Q. complained that she had had ‘‘a 

bad last few weeks and request[ed] 

increasing her MS Contin.’’ Id. 

Respondent gave her another 

prescription for 240 tablets of Ms Contin 

100 mg. and increased the dosing to 

three tablets every six hours. Id. Yet 

even at this increased dosing, the 

prescription issued on July 10 should 

have lasted another week. Id. 

The following day, K.Q. saw 

Respondent and complained of severe 

knee pain. Id. at 17–18. K.Q. told 

Respondent that she had been to the 

emergency room twice in the last three 

weeks because of the dislocation of her 

left patella (she had not mentioned an 

ER visit at her July 10 visit with 

Respondent). Id. at 17. K.Q. also told 

Respondent that Dr. L. had advised her 

that she was ‘‘not a candidate for [a] 

cartilage transplant.’’ 76 Id. at 18. Once 

again, there is no indication that 

Respondent contacted the doctor who 

had evaluated K.Q. to determine what 

treatment he had recommended and 

whether he had prescribed any 

controlled substances for her knee pain. 

On August 6, K.Q. called Respondent 

and complained of ‘‘severe headaches 

and pain’’ and requested an ‘‘increase in 

her MS Contin and [a] change to Xanax.’’ 

Id. at 17. She also ‘‘complain[ed] of 

symptoms of pseudotumor.’’ Id. 

Respondent wrote her a prescription for 

120 tablets of MS Contin 100 and 

increased the dosing to six tablets every 

eight hours (a fifty percent increase); she 

also wrote K.Q. a prescription for 150 

Xanax (1 mg. q6h and 2 mg. qhs). Id. at 

19. Respondent wrote K.Q. additional 

prescriptions for 120 MS Contin 100 

(with the same dosing) on August 14, 

20, and 27.77 Id. 

On the latter date (Aug. 27), 

Respondent also wrote K.Q. a 

prescription for 120 Valium (TID and 

HS) with one refill. Id. Respondent did 

not, however, indicate in the record 

why K.Q. was being switched back to 

Valium. Id. On September 25, 

Respondent wrote K.Q. another 

prescription for 120 Valium (QID—a 

thirty day supply) even though the 

August 27 prescription had included a 

refill. Id. at 20. Respondent did not 

indicate in the record why K.Q. already 

needed more Valium. 

On October 5, K.Q. indicated that she 

had ‘‘been taking extra MS Contin for 

her headaches.’’ Id. Respondent again 

increased her prescription to 336 tablets 

of MS Contin 100 mg., with a dosing of 

eight tablets every eight hours, a twoweek supply. Id. at 20. 

Nine days later, on October 14, K.Q. 

reported taking the MS Contin ‘‘every 6 

hours instead of every 8’’ and that she 

had ‘‘only 4 tabs left.’’ Id. at 21. As Dr. 

Hare observed, K.Q.’s consumption of 

MS Contin indicated that she was taking 

37 pills a day, and not the 24 tablets that 

Respondent had prescribed and was 

even in excess of what K.Q. had told her 

(32 per day). GX 46A, at 5. 

Respondent’s response to this 

information was to give K.Q. a 

prescription for 600 tablets of MS 

Contin 100 mg. and to increase the 

dosing to ten tablets every eight hours. 

GX 58, at 21. Moreover, while the 

previous Valium prescription (which 

Respondent wrote on September 25), 

should have lasted another eleven days, 

Respondent wrote K.Q. another 

prescription for 120 tablets (QID), 

increasing the dosing from four to six 

tablets per day. Id. 

Two weeks later, K.Q. was back and 

complaining of ‘‘severe headaches,’’ 

‘‘vomiting up the medications,’’ and 

severe knee pain because she had ‘‘hit 

her left knee against the dashboard.’’ Id. 

K.Q. also complained that she was 

taking generic MS Contin, and that it 

was ‘‘much weaker than the brand MS 

Contin’’ and that she had ‘‘to take much 

more of these to get any effect.’’ Id. 

Respondent issued her another 

prescription for 600 tablets of MS 

Contin 100 mg.; while the note states 

‘‘12 tabs,’’ it does not indicate the 

frequency. Id. Respondent also gave her 

a prescription for 90 tablets of Xanax 1 

mg. (TID). Id. Once again, there was no 

indication as to why Respondent was 

changing K.Q. back to Xanax. Id. 

On November 5, K.Q. was back and 

told Respondent that she had received 

only 400 tablets of MS Contin. Id. at 22. 

Respondent further noted that K.Q. had 

brought ‘‘in the bottle of the MS Contin 

and she has at least 100 left.’’ Id. 

Respondent wrote her a prescription for 

200 tablets of methadone 10 mg., with 

four tablets to be taken every six hours, 

to last ‘‘for approximately 11–12 days.’’ 

Id. Respondent also wrote a prescription 

for 120 tablets of Valium, with two 

tablets to be taken every eight hours, 

and with two refills. Id. Again, 

Respondent did not indicate why she 

was changing from MS Contin to 

methadone and from Xanax (which had 

been prescribed just a week earlier) back 

to Valium. 

On November 18, K.Q. returned and 

complained that the methadone did not 

‘‘help as much as the MS Contin’’ and 

made her more tired. Id. Respondent 

gave her two prescriptions for 300 

tablets of MS Contin 100 mg., one of 

which was dated November 18, the 

other being dated November 25. Id. 

Respondent gave K.Q. additional MS 

Contin prescriptions until December 31, 

when she told Respondent that ‘‘she 

would like to try the OxyContin again 

because it helps with the headaches.’’ Id. 

at 24. Respondent had not prescribed 

OxyContin since March 31st (nine 

months earlier) and on April 14, had 

discontinued prescribing the drug when 

K.Q. complained that it was causing 

headaches. See id. at 10. Respondent 

wrote K.Q. prescriptions for 180 tablets 

of OxyContin 40 mg (three tablets every 

eight hours); 300 tablets of a extendedrelease morphine 100 mg. (twelve 

tablets every eight hours), and 100 

Valium 10 mg., (two tablets TID) with 

two refills. Id. at 24. This represented a 

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8224 Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 

78On April 29, Respondent wrote K.Q. a 

prescription for 120 tablets of Xanax 1 mg., with 

two tablets to be taken twice a day (a thirty-day 

supply). GX 58, at 33. On May 12, Respondent was 

back to writing her a prescription for Valium 10 (2 

tabs TID) with 2 refills, but did not indicate the 

quantity. Id. at 34. 

On August 19, Respondent wrote an additional 

Valium prescription for 100 tablets (two tablets, 

three times a day) with three refills. Id. at 38. Two 

weeks later (on September 3), she wrote another 

prescription for 100 tablets of Valium 10, with the 

same dosing, with three refills. Id. On September 

13, Respondent went back to writing K.Q. a 

prescription for 120 tablets of Xanax 1mg. (two 

tablets, two times a day) with two refills. Id. Again, 

no reason was stated for changing from Valium to 

Xanax. See id. On September 29, a pharmacy called 

to clarify the dosing of the Xanax; Respondent told 

the pharmacist to change it back to two tablets, 

three times a day. Id. On October 25, Respondent 

was back to prescribing 100 Valium (two tablets, 

three times a day) with three refills. Id. at 39. Again, 

no reason was stated for the change. Id. While this 

prescription with refills should have lasted 66 days, 

on December 1, Respondent gave her a prescription 

for 100 Xanax 1 mg. (2 tablets TID) with two refills. 

Id. at 40, 138. 

On December 21, Respondent wrote K.Q. a 

prescription for 180 tablets of Valium 10 mg. (2 tabs 

TID), with three refills. Id. While on January 7 K.Q. 

told Respondent that she had not filled the 

prescription and obtained a prescription for another 

180 tablets (2 TID) with three refills, even if this 

was true, no explanation was given for why the 

prescription was issued given that she had issued 

a Xanax prescription three weeks earlier. Id. at 41, 

138–39. 

On February 16, notwithstanding that the January 

7 prescription and refills should have lasted four 

months, Respondent gave K.Q. another prescription 

for 180 tablets of Valium at the same dosing with 

the three refills. Id. at 48. Moreover, on April 25, 

Respondent gave K.Q. another prescription for 180 

tablets of Valium at the same dosing with three 

refills even though the February 16 prescription 

should have lasted until the middle of June. Id. at 

50. This was followed by a May 12 prescription for 

180 Valium (2 TID), id., and a July 14 prescription 

for 100 tablets with a dosing of 1–2 tablets twice 

a day and three refills. Id. at 50–51. On September 

18, Respondent wrote K.Q. another prescription 

with the same quantity, dosing and refills, as the 

July 14 prescription. Id. at 52. 

fifty-percent increase in K.Q.’s intake of 

morphine alone (not to mention the 

oxycodone), and yet there is no 

indication in the progress note that K.Q. 

had complained that her pain was 

worse. Id. 

On January 11, 1999, Respondent gave 

K.Q. two additional prescriptions for 

300 tablets of extended release 

morphine 100 mg. (with the same 

dosing), as well as a trial 100 milligrams 

of morphine elixir for headaches. Id. 

Notwithstanding that only eleven days 

earlier she had given K.Q. a prescription 

for 100 Valium with two refills, she also 

wrote a prescription for 100 Xanax 1 

mg. (two tablets, three times a day) with 

one refill. Id. 

Respondent issued K.Q. additional 

prescriptions for extended release 

morphine on January 26 and February 3, 

and for 60 OxyContin on the latter date. 

Id. at 24–25. On February 11, 

Respondent wrote additional 

prescriptions (dated Feb. 11 and 18) for 

300 tablets of MS Contin 100 mg. 

(twelve tablets every eight hours) and 

for 100 tablets of Xanax 1–2 tablets three 

times a day PRN with one refill. Id. at 

25. On March 4, Respondent switched 

K.Q. back to Valium but did not indicate 

how many tablets she prescribed. Id. at 

26. She also wrote two more 

prescriptions for 300 tablets MS Contin. 

Id. 

On March 18, Respondent wrote K.Q. 

two more prescriptions for 300 MS 

Contin 100 mg., as well as 100 tablets 

of OxyContin 40 mg. (one tablet every 

twelve hours). Id. at 27. While 

Respondent indicated at this visit that 

K.Q. ‘‘had a bad headache,’’ the progress 

note does not state that this was medical 

justification for the new OxyContin 

prescription. Id. at 26–27. K.Q. was not, 

however, able to fill the prescription 

‘‘because of insurance’’ and returned it 

to Respondent at her next visit (March 

30). Id. at 27. On this date, Respondent 

wrote her two more prescriptions for 

300 tablets of MS Contin 100 mg. (12 

q8h, or 36 tablets per day), and a 

prescription for 50 milliliters of 

morphine elixir 20mg./5ml. Id. As Dr. 

Hare noted, by this point K.Q. was 

taking 50 tablets per day of MS Contin. 

GX 46A, at 6. 

Respondent continued to prescribe 

both MS Contin and morphine elixir to 

K.Q. over the ensuing months, along 

with additional prescriptions for either 

Xanax or Valium. See GX 58, at 33–38.78

On September 30, however, Respondent 

began prescribing methadone 10 mg. 

again (three to four tablets, four times a 

day) when K.Q. claimed that she could 

not find generic MS Contin because it 

was no longer being manufactured. Id. 

at 38. 

On October 7, K.Q. reported that she 

was ‘‘[d]oing better’’ and ‘‘without side 

effects,’’ id. at 39, even though the 

methadone was prescribed at ‘‘a dose far 

less than that of MS Contin.’’ GX 46A, 

at 6. While K.Q. had reported that she 

was ‘‘[d]oing better,’’ Respondent 

increased the dosing to four to five 

tablets, four times a day. GX 58, at 39. 

However, on November 8, K.Q. 

complained that the methadone made 

‘‘her too fatigued.’’ Id. Respondent went 

back to prescribing MS Contin 100 mg. 

(300 tablets, with twelve tablets to be 

taken every eight hours) and gave her 

prescriptions which were dated 

November 8 and 15. Id. at 40. According 

to the Government’s expert, the MS 

Contin dose ‘‘would have 6 times the 

analgesic effect as the methadone’’ K.Q. 

had been switched from. GX 46A, at 6. 

Nine days later, K.Q. complained of 

severe headaches and Respondent gave 

her more prescriptions for 300 tablets of 

MS Contin 100 mg., as well as for 100 

tablets of immediate-release morphine 

30 mg., one tablet every two hours as 

needed for breakthrough pain. Id. at 

137. Respondent wrote additional 

prescriptions for these drugs on 

December 1 and 21. Id. at 138. In 

addition, on December 21, Respondent 

wrote a prescription for 270 tablets of 

OxyContin 80 mg., with a dosing of 

three tablets every eight hours. Id. 

In early February, K.Q. told 

Respondent that her insurance would 

not cover the MS Contin. Id. at 48. 

Respondent resumed prescribing 

methadone 10 mg., and wrote her a 

prescription for 300 tablets with a 

dosing of four tablets, four times a day. 

Id. This again was at a dose that was 

‘‘much lower tha[n] that of the MS 

Contin.’’ GX 46A, at 7. At the next visit 

(Feb. 16), K.Q. was nonetheless ‘‘OK on 

the [m]ethadone now.’’ GX 58, at 48. 

Respondent gave her another 

prescription for 300 methadone (as well 

as one to be filled on March 2) and 

additional prescriptions for 200 

immediate-release morphine (1 q2h) and 

for 180 Valium (2 TID) with three refills. 

Id. 

At her next visit (March 13), K.Q. 

reported that she was taking eight 

tablets, three times a day, which was a 

fifty-percent increase over the 

prescribed daily dosing. Id. Respondent 

increased the dosing of her prescription 

to the amount she was taking and gave 

her two prescriptions for a total of 600 

tablets, as well as two prescriptions for 

a total of 200 tablets of immediaterelease morphine. Id. at 49. 

This basic pattern of prescribing 

methadone, Valium, and immediaterelease morphine continued until June 

19 when K.Q. told Respondent that ‘‘she 

is going to discontinue MS Contin and 

wants Percocet.’’ Id. at 50. K.Q. had not, 

however, received an MS Contin 

prescription from Respondent in four to 

five months. Id. at 48. Respondent did 

not further question K.Q. about whether 

she had continued to use MS Contin 

and wrote her a prescription for 100 

Percocet. Id. at 50. 

Over the next four months, 

Respondent continued to prescribe 

methadone, Percocet, and Valium to 

K.Q. Id. at 50–53. With respect to the 

Percocet, Respondent gave K.Q. 

prescriptions for 100 tablets on 

September 6, 11, 18, and 25, as well as 

on October 2, 9, 16, 23, and 30. Id. at 

51–53. The size and frequency of the 

prescriptions suggest that K.Q. was 

taking 100 tablets every seven days and 

fourteen tablets a day, and consuming 

4643 mgs. of acetaminophen a day, an 

amount well in excess of the 

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Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 8225 

79The psychiatrist diagnosed K.Q. as having 

‘‘[u]nresolved issues related to the death of her 

child,’’ ‘‘[n]oncompliance with treatment,’’ 

‘‘[u]ntreated depression,’’ and ‘‘[d]ramatic mood 

swings, probably secondary to untreated depression 

and PTSD in addition to opioids on extreme high 

doses.’’ RX Z, at 5. 

80On August 9, Respondent gave K.Q. a 

prescription for 100 Valium 10mg. (q4h) with five 

refills. GX 58, at 61. On October 9, four days after 

K.Q. reported that she had been in what appears to 

have been a minor automobile accident (given the 

limited findings of Respondent’s physical exam and 

the fact that she did not change the dosing of K.Q.’s 

pain medications), Respondent discontinued the 

Valium and gave her a prescription for 90 Xanax 

1 mg. (q8h) with three refills. Id. at 62–63. Only 

nine days later, Respondent gave K.Q. another 

Xanax 1mg. prescription, which was for 60 tablets 

with two refills and which doubled the dosing to 

two tablets every eight hours PRN. Id. at 63. There 

is no indication, however, as to whether she 

contacted the pharmacy that dispensed the October 

9 prescription to cancel the refills. Id. Moreover, 

while the October 18 prescription with its refills 

should have lasted thirty days, on November 6, 

Respondent wrote K.Q. another prescription for 180 

tablets (at the same dosing) with three refills. Id. at 

64. 

81Respondent also wrote K.Q. a prescription for 

200 Roxicodone (8–10 q4h) at this visit. Id. 

recommended daily maximum of 4000 

mgs. 

Moreover, on October 30, Respondent 

prescribed (in addition to the Percocet 

and methadone) 20 tablets of Demerol 

(meperidine), another schedule II 

opiate. See 21 CFR 1308.12(c)(18). GX 

58, at 53. The progress note, however, 

contains no explanation as to why the 

Demerol prescription was medically 

necessary. Id. 

Two days later on November 1, K.Q. 

was admitted to St. Mary’s Hospital 

behavioral health unit ‘‘for [a] psychotic 

episode’’ and was ‘‘manic, rambling, 

labile, tearful and with auditory 

hallucinations.’’ Id. According to the 

report documenting her admission, 

Catalina Behavioral Health had sent her 

to St. Mary’s and upon her admission, 

K.Q. ‘‘said [that] she cannot stop crying,’’ 

‘‘present[ed] with pressed speech, flight 

of ideas,’’ was ‘‘very difficult to 

interview,’’ and needed a psychiatric 

evaluation. RX Z, at 1. 

Relatedly, the discharge summary 

noted that K.Q. had been referred by 

Catalina because she ‘‘had been 

progressively becoming agitated, over 

talkative, confused, disorganize[ed] [in] 

thought, rambling in her speech, and 

unable to sleep.’’ Id. at 3. The report 

from Catalina was that K.Q. ‘‘has been 

self medicating and this is contributing 

to her mood transient problems.’’ Id. 

The discharge summary stated that 

K.Q. had ‘‘denie[d] previous psychiatric 

hospitalization except for one time that 

she was admitted at the Westchester 

when she had attempted to quit 

narcotics back in 1997.’’ Id. While K.Q. 

apparently denied the use of alcohol 

and recreational drugs and maintained 

that her opiates had been prescribed by 

Respondent and another doctor, she also 

reported ‘‘being seen in pain clinics and 

didn’t want to elaborate any further.’’ Id. 

at 4. 

The report further noted that while 

she was hospitalized, K.Q. engaged in 

‘‘some medication seeking behavior.’’ Id. 

at 5. In addition, the summary reported 

that ‘‘[t]he patient admits to being 

cognizant that her narcotics are a lot; 

she wants to try to get off of them, 

however not at the expense of being in 

pain.’’ 79 Id. at 4. 

As to this incident, Respondent 

testified that ‘‘the staff believ[ing] [K.Q.] 

was overmedicated’’ was not mentioned 

in the phone call from the unit or in the 

hospital’s record. Tr. 2106. Apparently, 

the statement at the bottom of the first 

page of the discharge summary ‘‘that the 

patient has been self medicating and 

this is contributing to her mood 

transient problems’’ and the diagnosis 

that her dramatic mood swings were 

‘‘probably secondary * * * to opioids 

on extreme high doses’’ did not express 

the staff’s belief with sufficient clarity. 

RX Z, at 1 & 5. 

Respondent also maintained that the 

hospital maintained K.Q. on her pain 

medications. Tr. 2106; but see RX Z, at 

5 (‘‘For the time being we will continue 

patient on similar narcotic 

medications,’’ and suggesting a ‘‘pain 

medical consult for issues regarding her 

pain management’’). Given the short 

amount of time K.Q. was hospitalized 

(approximately five days), it is not as if 

the hospital had the time to try to taper 

her intake of the drugs. 

On November 13, K.Q. went back to 

see Respondent. GX 58, at 53. While the 

progress note contains a brief discussion 

of her stay in the hospital, there is no 

indication that Respondent asked her 

about ‘‘the cause of the hospitalization 

even though the symptoms [she] 

experienced could have been caused by 

excessive medication or withdrawal 

from medication.’’ GX 46A, at 7. At the 

visit, Respondent prescribed Demerol 

(20 tablets), Percocet (100 tablets) and 

methadone 10 mg. (200 tablets) (when a 

prescription for 100 methadone 40mg. 

could not be filled). GX 58, at 53. 

Respondent prescribed these three 

drugs on November 21 and 29, as well 

as on December 6; on December 12, she 

wrote for 100 Percocet and more 

Demerol. Id. at 53–54. The next day, 

Respondent wrote K.Q. a prescription 

for 100 oxycodone. Id. The note does 

not indicate the reason for the 

prescription, the strength, or the dosing. 

Id. at 54. Moreover, on December 19, 

Respondent wrote K.Q. additional 

prescriptions for 100 tablets of Percocet 

and OxyContin. Id. Again, the note did 

not indicate the reason for the 

OxyContin, the strength, or the dosing. 

On January 15, Respondent noted that 

she had talked with K.Q.’s parents 

‘‘regarding [her] overuse of medications 

and * * * sedation.’’ Id. at 55. 

Respondent initially agreed to prescribe 

only two to four days of medication at 

a time. Id. 

On January 18, Respondent prescribed 

30 tablets of Dilaudid (QID), another 

schedule II drug, a seven-day supply 

based on the dosing. Id. at 56. Once 

again, Respondent did not indicate the 

reason for prescribing the drug. See also 

GX 46A, at 7. Moreover, on February 20, 

Respondent increased the dosing of the 

Dilaudid to four tablets, four times a 

day, a four-fold increase. Id. Again, 

there was no explanation for the 

increase in the dosing. GX 58, at 55. 

Respondent continued to prescribe 

methadone, Roxicodone, Dilaudid, 

Valium, and Xanax 80 throughout most 

of 2001. On October 3, K.Q. complained 

of increased neck pain and increased 

the dosing of the Roxicodone from four 

to six tablets to eight to ten tablets every 

four hours (and gave her two 

prescriptions for a total of 600 tablets) 

and added a prescription for 60 tablets 

of MSIR (morphine sulfate immediate 

release, one tablet every four hours 

PRN). Id. at 62. 

On October 9, K.Q. returned and 

reported that four days earlier she had 

been in an automobile accident in 

which her car’s ‘‘[a]irbags deployed.’’ Id. 

at 62. K.Q. complained of bruising of 

her upper extremities and that her pain 

had increased; K.Q. was wearing a knee 

brace. Id. at 63. Respondent performed 

a physical exam which found K.Q. 

‘‘awake and alert’’ and with ‘‘minimal 

stiffness with cervical range of motion.’’ 

Id. Respondent did not, however, 

indicate that she observed any bruising 

on K.Q. See id. Respondent concluded 

that K.Q. had an ‘‘exacerbation of pain’’ 

and wrote her prescriptions for 200 

methadone 10 mg. (eight tablets, three 

times a day) and for 120 tablets of MSIR 

39 mg. (one tablet every four hours as 

needed for pain), as well as for ninety 

Xanax (q8h) with three refills. Id. 

Three days later, Respondent gave 

K.Q. another prescription for 200 

methadone 10 mg., with the same 

dosing, even though the previous 

prescription should have lasted until 

October 17.81 Id. On October 18, K.Q. 

again saw Respondent, whose only 

finding on physical examination was 

that she had ‘‘slight pain and stiffness 

with cervical range of motion.’’ Id. 

Respondent gave K.Q. prescriptions for 

400 tablets of methadone 10 mg. (with 

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8226 Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 

82 Dr. Schneider testified that she had volunteered 

to mentor Respondent for three years in connection 

with a settlement offer that was made in the course 

of these proceedings and that she would be willing 

to mentor Respondent for three years as a condition 

of her receiving her DEA registration. Tr. 860–62. 

83Moreover, most of the patients’ records are not 

in the record and thus the circumstances prompting 

the firings (and whether Respondent ignored any 

earlier warning signs) are not established. 

Accordingly, to the extent Respondent offered this 

document as evidence that she is capable of 

properly monitoring her patients, it is of limited 

probative force. 

the same dosing of eight tablets, three 

times a day), 200 tablets of MSIR 30 mg. 

(with an increased dosing of one tablet 

every three hours), 400 tablets of 

Roxicodone, and another 60 tablets of 

Xanax (which doubled the dosing to 2 

q8h) with two refills. Id. Respondent 

did not indicate why she was increasing 

the dosing of the Xanax and the MSIR. 

Id. Nor did she indicate why it was 

medically necessary to issue another 

MSIR prescription when the previous 

prescription should have lasted until 

October 29. Id. 

On November 6 and 19, Respondent 

wrote K.Q. additional prescriptions for 

200 and 100 tablets of MSIR 30 mg. 

(q3h), respectively. Id. at 64. As the 

October 18 prescription should have 

lasted at least until November 12, the 

November 6 prescription was six days 

early. And as the November 6 

prescription should have lasted at least 

until December 1, the November 19 

prescription was twelve days early. 

On December 20, 2001, another of 

Respondent’s patients, who performed 

security at the apartment complex 

where K.Q. lived, told Respondent that 

K.Q. ‘‘is selling her meds to people in 

her apartment complex.’’ Id. at 65. This 

person further stated that ‘‘several 

people have told her that [K.Q.] has 

approached them with drugs to sell, and 

this is an ongoing problem.’’ Id. 

According to the patient record, ‘‘the 

complex [was] considering action.’’ Id. 

Later that day, Respondent wrote K.Q. a 

letter terminating her as a patient. Id. 

In summarizing his findings regarding 

Respondent’s treatment of K.Q., Dr. 

Hare observed that K.Q.: 

Was prescribed control[led] substances 

without adequate evaluation or followup. 

There were many indicators that she was 

consistently over-using her medication and 

yet [Respondent] took no steps to correct this. 

In fact she prescribed more medication. 

Despite warnings that the patient was over 

medicated, Respondent continued to 

prescribe[] unabated. Respondent never took 

steps to control K.Q.’s medication use or to 

even do blood or urine tests to establish that 

she was in fact taking the medication. 

Reports of diversion that [Respondent] 

received should have come as no surprise, 

yet [Respondent] seemed oblivious that 

[K.Q.] was misusing her medication. Clearly 

this is substandard care. [Respondent’s] 

prescribing encouraged overuse and/or 

diversion of medication. 

GX 46A, at 7–8. 

Respondent’s Efforts at Rehabilitation 

Pursuant to the consent agreement she 

entered into with the Arizona Medical 

Board, Respondent took ten hours of 

Continuing Medical Education (CME) in 

the principle and practice of pain 

management or addiction medicine. RX 

53, GX 73. Respondent also took an 

additional 51.25 hours of CME in a 

range of topics related to pain 

management. RX 53. 

In 2002, in response to the State’s 

Board investigation, Respondent also 

entered an arrangement under which Dr. 

Schneider mentored her. Tr. 808. More 

specifically, over a period of several 

months, Dr. Schneider met with 

Respondent on a weekly basis to review 

the medical records of those patients 

she had seen that week and to whom 

she had prescribed opioids. Id. Dr. 

Schneider advised her as to how to 

improve her documentation and 

management of these patients. RX K–1, 

at 2. Dr. Schneider testified that she 

now considered Respondent to be ‘‘one 

of the most knowledgeable people about 

addiction issues in the community.’’ Tr. 

812. 

Respondent testified that in the event 

she was granted a new registration, she 

would limit her practice to 

musculoskeletal pain and would use 

opioid risk assessment tools and 

addiction histories to evaluate her 

patients. Id. at 2412. Respondent also 

testified that she ‘‘intended to use urine 

drug screening a lot more frequently’’ 

and that she would continue to consult 

with Dr. Schneider regarding her 

patients.82 Id. 

At the hearing, Respondent also 

submitted a list of 29 patients she had 

fired. See RX 37. However, all but six 

of the patients were fired after the 

Medical Board began investigating 

her.83 See id. 

Moreover, substantial portions of 

Respondent’s testimony undercut her 

claim that she has reformed. For 

example, while Respondent testified 

that she was not saying ‘‘that each and 

every prescriptions I ever write is 100 

percent perfect,’’ that ‘‘my medical 

records are perfect or fully 

comprehensive,’’ and that ‘‘there wasn’t 

room for improvement on my part,’’ as 

noted above, she emphatically denied 

having done anything wrong with 

respect to any of the prescriptions she 

issued to H.T. Tr. 2305–06. Relatedly, 

she also denied that she falsified H.T.’s 

medical records. 

Moreover, her testimony regarding 

several other issues raises serious 

questions as to what she has learned 

from this experience. With respect to 

patient S.R., who admitted to taking her 

deceased husband’s controlled 

substance medications, Respondent 

testified that she ‘‘did not see that it 

would cause any potential harm to’’ her. 

Id. at 2353. Speaking generally of a 

person taking a controlled substance 

that had been prescribed not to them but 

to a spouse, she testified: 

There’s just continuing medical care, and 

to me, it seems no harm to the patient, I 

might add. I’ve never seen an example where 

bad came, any harmful outcome, but I see it 

time and time again, dozens of times. 

Id. at 2395. 

Later, Respondent added: 

Our party line as a physician is don’t take 

anyone else’s prescriptions, period, whether 

it’s controlled or not controlled. Of course, I 

know at issue here is only controlled, and 

then controlled has an extra layer on top of 

it, meaning it’s a felony to do it. But really 

as a physician, from a medical standpoint, it 

refers to all prescriptions. 

The party line is don’t use anyone else’s 

prescriptions, don’t use expired medications, 

et cetera, et cetera, but the fact is people do 

use each other’s prescription medications, 

and almost always there’s no harm because 

people know * * * They know what they are 

taking. People develop, certainly develop, an 

area of knowledge about their medications. 

Id. at 2400–01. 

Moreover, when asked by the 

Government whether she had ‘‘often 

issued early refills on prescriptions 

without documenting the reason why?,’’ 

Respondent answered: 

The record speaks for itself there, and there 

are many reasons why a prescription is not 

filled on, for instance, the thirtieth day on a 

30-day supply. The definition [of] early refill, 

if a persons says, well, if you go to the 

pharmacy on day 29, that’s considered an 

early refill, so the definition of early refill is 

questionable and not clear and not wellagreed upon. So it would be difficult for me 

to answer that question unless you are 

defining for me terms such as that. 

Id. at 2345. 

Relatedly, when asked a follow-up 

question as to whether she had a 

definition of the term ‘‘early refill,’’ 

Respondent answered: 

No, not really. It was a DEA term, early 

refill. With physicians, there never was any 

lesson about early refills in medical school. 

That’s not anything that was covered, so no, 

I have no definition. 

Id. at 2346. Apparently, Respondent had 

not asked Dr. Schneider to explain what 

the term means, even though the latter 

had noted with respect to six of the 

patient files she reviewed that they ‘‘all 

received early refills without adequate 

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Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 8227 

documentation and explanation.’’ RX 

K–1, at 6. 

Respondent also disagreed that she 

had ‘‘ignored the fact that some of [her] 

patients had addiction histories.’’ Id. at 

2348. Finally, she ‘‘absolutely disagreed’’ 

that she had ‘‘ignored warning signs that 

a patient might be’’ addicted to, or 

abusing drugs. Id. at 2348–49. 

Discussion 

Section 303(f) of the Controlled 

Substances Act (CSA) provides that 

‘‘[t]he Attorney General may deny an 

application for [a practitioner’s] 

registration if he determines that the 

issuance of such registration would be 

inconsistent with the public interest.’’ 

21 U.S.C. 823(f). In making the public 

interest determination, the Act requires 

the consideration of the following 

factors: 

(1) The recommendation of the 

appropriate State licensing board or 

professional disciplinary authority. 

(2) The applicant’s experience in 

dispensing * * * controlled substances. 

(3) The applicant’s conviction record 

under Federal or State laws relating to 

the manufacture, distribution, or 

dispensing of controlled substances. 

(4) Compliance with applicable State, 

Federal, or local laws relating to 

controlled substances. 

(5) Such other conduct which may 

threaten the public health and safety. 

Id. 

‘‘[T]hese factors are * * * considered 

in the disjunctive.’’ Robert A. Leslie, 

M.D., 68 FR 15227, 15230 (2003). I may 

rely on any one or a combination of 

factors, and may give each factor the 

weight I deem appropriate in 

determining whether an application for 

a registration should be denied. 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 (D.C. Cir. 2005). The 

Government bears the burden of proving 

that the requirements for registration are 

not satisfied. 21 CFR 1301.44(d). 

Having considered all of the factors, I 

conclude that the Government has made 

out a prima facie case that issuing 

Respondent a new registration would be 

inconsistent with the public interest. In 

particular, I conclude that the 

Government’s evidence with respect to 

Respondent’s experience in dispensing 

controlled substances (factor two) and 

record of compliance with applicable 

controlled substance laws (factor four), 

is far more extensive than the ALJ 

acknowledged it to be and establishes 

numerous instances in which 

Respondent improperly dispensed 

controlled substances. While in some 

instances, Respondent may have been 

only gullible or naive, in other instances 

(H.T.) she engaged in intentional 

diversion as well as falsified medical 

records or acted with deliberate 

ignorance of a patient’s real purpose in 

seeking the prescriptions. While I have 

carefully considered all of Respondent’s 

various contentions, including her 

evidence that she has reformed her 

prescribing practices, I conclude that 

Respondent has not rebutted the 

Agency’s prima facie showing because 

she has refused to acknowledge her 

wrongdoing with respect to her most 

egregious acts. 

Factor One—The Recommendation of 

the State Licensing Board 

While Respondent has twice been 

sanctioned by the Arizona Medical 

Board for unprofessional conduct 

including the improper prescribing of 

controlled substances, it is undisputed 

that she currently holds an active State 

license. The Agency has long held, 

however, that a practitioner’s 

reinstatement by a State board ‘‘is not 

dispositive’’ because ‘‘DEA maintains a 

separate oversight responsibility with 

respect to the handling of controlled 

substances and has a statutory 

obligation to make its independent 

determination as to whether the 

granting of [a registration] would be in 

the public interest.’’ Mortimer B. Levin, 

55 FR 8209, 8210 (1990); see also Jayam 

Krishna-Iyer, 74 FR 459, 461 (2009). 

Respondent also relies on a letter from 

a Senior Compliance Officer with the 

Arizona Board which states that she 

‘‘has the Board’s support to pursue her 

DEA reinstatement.’’ RX 53; see also 

Resp. Br. 157. Continuing, the letter 

stated that Respondent ‘‘at no time 

attempted to divert medications for nonmedical purposes.’’ RX 53. Even 

assuming that the letter represents the 

official view of the Board (and not 

simply the view of one of its 

employees), the evidence presented in 

this proceeding establishes that 

Respondent engaged in far more 

egregious conduct than the evidence 

which apparently was presented to the 

Board. I thus conclude that, at most, this 

factor is entitled to nominal weight in 

the public interest analysis. 

Factors Two and Four—Respondent’s 

Experience in Dispensing Controlled 

Substances and Record of Compliance 

With Applicable Controlled Substance 

Laws 

Under a longstanding DEA regulation, 

a prescription for a controlled substance 

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

a legitimate medical purpose by an 

individual practitioner acting in the 

usual course of his professional 

practice.’’ 21 CFR 1306.04(a). This 

regulation further provides that ‘‘[a]n 

order purporting to be a prescription 

issued not in the usual course of 

professional treatment * * * is not a 

prescription within the meaning and 

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

person issuing it, shall be subject to the 

penalties provided for violations of the 

provisions of law relating to controlled 

substances.’’ Id. As the Supreme Court 

recently explained, ‘‘the prescription 

requirement * * * ensures patients use 

controlled substances under the 

supervision of a doctor so as to prevent 

addiction and recreational abuse. As a 

corollary, [it] also bars doctors from 

peddling to patients who crave the 

drugs for those prohibited uses.’’ 

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

(2006) (citing United States v. Moore, 

423 U.S. 122, 135 & 143 (1975)). 

While many cases under the public 

interest standard involve practitioners 

who violated the prescription 

requirement and did so intentionally, 

the Agency’s authority to deny an 

application (or to revoke an existing 

registration) is not limited to those 

instances in which a practitioner 

intentionally diverts a controlled 

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

FR 51592, 51601 (1998). As my 

predecessor explained in Caragine: ‘‘Just 

because misconduct is unintentional, 

innocent or devoid of improper 

motivation, [it] does not preclude 

revocation or denial. Careless or 

negligent handling of controlled 

substances creates the opportunity for 

diversion and [can] justify’’ the 

revocation of an existing registration or 

the denial of an application for a 

registration. Id. at 51601. A 

practitioner’s failure to properly 

supervise her patients to prevent them 

from personally abusing controlled 

substances or selling them to others 

constitutes conduct ‘‘inconsistent with 

the public interest’’ and can support the 

denial of an application or the 

revocation of an existing registration. 

Id.; see also Gonzales, 546 U.S. at 274. 

The ALJ concluded that the 

Government had proved that 

Respondent’s prescriptions to H.T. were 

‘‘not issued for a legitimate medical 

purpose.’’ ALJ at 150. I agree and note 

that, at no time during any of his visits 

with Respondent occurring between 

February and April 2002, did H.T. 

complain that he was in pain. On six 

occasions, however, Respondent gave 

H.T. prescriptions for schedule II 

narcotics including Percocet 10, 

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84The ALJ also found that Respondent had issued 

refills to R.T. which lacked a legitimate medical 

purpose. ALJ at 150. In light of the extensive and 

more egregious evidence of Respondent’s 

prescribing to other patients, I conclude that it is 

not necessary to discuss R.T. further. 

and fifteen-mg. strength, and OxyContin 

in both twenty- and forty-mg. strength. 

Substantial evidence also supports the 

conclusion that Respondent knew that 

H.T. was not seeking the drugs to relieve 

pain but to abuse them. Respondent did 

not perform a physical exam of H.T. at 

any of the visits at which she issued the 

prescriptions, yet falsified H.T.’s 

medical records to indicate that she had 

done so. Moreover, in addition to his 

failure to ever complain of being in 

pain, H.T. made numerous statements 

which made clear that he was seeking 

the drugs to abuse them. 

These included, inter alia: (1) H.T.’s 

statements that he liked oxycodone but 

was eating them ‘‘like M & Ms’’ or 

‘‘candy’’; (2) that he would be ‘‘happier 

with fifteens’’; (3) that an acquaintance 

had told him that he had ‘‘gotta try and 

get her to give you some * * * 

OxyContin’’; (4) that he was ‘‘hopin[g] 

you’d give me a hundred’’ tablets of 

OxyContin; (5) ‘‘My back feels great, but 

I like these’’ and asking ‘‘is that a bad 

thing?’’; (6) ‘‘Doc, you know between 

you and me my pain level is nonexistent, but I really like them 

Oxy[C]ontin. They make me feel good’’; 

(7) ‘‘I’d never tell you none of them 

stories about losing ’em or anything. I 

just tell ya the truth. I’d just like a few 

more of those, okay?’’; (8) H.T. relating 

that he had asked someone on the street 

in Nogales, Mexico about buying 

OxyContin and stating the price per 

milligram. 

Finally, Respondent made numerous 

statements which show that she knew 

H.T. was seeking the prescriptions for 

non-medical reasons. These included, 

inter alia: (1) Respondent’s statement 

that Tylenol ‘‘is a bad thing’’ but ‘‘the 

other stuff [in Percocet, oxycodone] is a 

fun thing’’; (2) asking H.T. whether he 

‘‘like[d] the Oxy[C]ontin?’’; (3) asking 

H.T. ‘‘do you want the OxyContin?’’; (4) 

after giving H.T a prescription for ninety 

OxyContin 40 mg., responding to H.T.’s 

statement that ‘‘You’r[e] okay, Doc,’’ 

with ‘‘You caught me at a soft moment’’; 

(5) Respondent stating that the State 

Board was watching her and telling H.T. 

to wait ‘‘until my investigation is over’’; 

(6) Respondent stating that she could 

not keep prescribing to H.T. for the 

reasons he wanted the drugs and again 

telling him to wait until her 

investigation was over, yet prescribing 

90 tablets of OxyContin 40 mg. on a 

subsequent visit. 

As the evidence makes plain, 

Respondent issued H.T. six 

prescriptions for schedule II controlled 

substances which were outside of the 

usual course of professional practice 

and lacked a legitimate medical 

purpose. 21 CFR 1306.04(a). Moreover, 

Respondent clearly knew that H.T. was 

not seeking the drugs to treat pain, but 

rather to abuse them. 

The ALJ concluded, however, that 

H.T. (and R.T.84) were the only patients 

to whom Respondent issued unlawful 

prescriptions. As found above, however, 

the patient records establish numerous 

other instances in which Respondent 

violated the CSA’s prescription 

requirement. 

Respondent gave K.Q. numerous 

prescriptions for both schedule II 

narcotics as well as schedule IV 

benzodiazepines. Many of these 

prescriptions were issued well before 

previous prescriptions for either the 

same or similar drugs would have run 

out if K.Q. had taken them in 

accordance with Respondent’s dosing 

instructions. 

For example, on December 31, 1998, 

Respondent gave K.Q. a prescription for 

100 Valium with two refills. Based on 

the dosing of two tablets, three times per 

day, the prescription should have lasted 

50 days if taken as prescribed. Yet on 

January 11, 1999 (just eleven days later), 

Respondent issued K.Q. prescriptions 

for 100 Xanax with one refill. 

Moreover, as discussed in footnote 79, 

on August 19, 1999, Respondent wrote 

K.Q. a prescription for 100 tablets of 

Valium with three refills and thus 

authorized the dispensing of 400 tablets. 

Based on the dosing of two tablets, three 

times a day, the prescription with refills 

should have lasted approximately 66 

days. Yet on September 3 (only fifteen 

days later), Respondent wrote K.Q. 

another prescription for 100 tablets of 

Valium with three refills and the 

previous dosing. Ten days later, 

Respondent wrote K.Q. a prescription 

for 120 tablets of Xanax with two refills 

and a dosing of two tablets, two times 

a day. Respondent did not indicate why 

she was switching from Valium to 

Xanax. While Respondent changed the 

dosing of the Xanax to two tablets, three 

times a day after being contacted by a 

pharmacist, even at this increased 

dosing the prescriptions with refills 

should have lasted 60 days. Yet on 

October 25, Respondent was back to 

prescribing Valium and issued K.Q. a 

prescription for 100 tablets (dosing at 

two tablets, three times per day) with 

three refills. 

Here again, the prescriptions should 

have lasted approximately 66 days if 

taken as prescribed. Yet on December 1 

(thirty-six days later), Respondent was 

back to prescribing 100 Xanax (two 

tablets, three times a day) with two 

refills. Not even three weeks later, 

however, Respondent returned to 

prescribing 180 tablets of Valium (two 

tablets, three times a day) with three 

refills. Again, Respondent provided no 

explanation for why she had changed 

drugs. 

On January 7, Respondent gave K.Q. 

a prescription for another 180 tablets of 

Valium with the same dosing and three 

refills after the latter claimed that she 

had not filled the December 21 

prescription. Respondent did not, 

however, inquire as to what had 

happened to the previous prescription. 

Moreover, even if K.Q. was not 

obtaining drugs pursuant to the 

December 21 prescription, the January 7 

prescription should have lasted four 

months or until early May. Yet on 

February 16, Respondent gave K.Q. 

another prescription for 180 Valium at 

the same dosing with three refills 

(which should have lasted until the 

middle of June), and on April 25, 

Respondent gave K.Q. an additional 

prescription for 180 tablets with the 

same dosing and three refills (which 

ignoring all the previous prescriptions 

should have lasted until late August). 

This was followed by a May 12 

prescription for 180 Valium at the same 

dosing, and a July 14 prescription for 

100 tablets with a lowered dosing (of 1– 

2 tablets twice a day) but also with three 

refills. 

Given Respondent’s repeated issuance 

of these prescriptions, frequently 

months before the previous 

prescriptions would have run out, her 

prescribings cannot be attributed to 

negligence in failing to check K.Q.’s 

record. Rather, the frequency of the 

prescribings supports the conclusion 

that Respondent was deliberately 

ignorant as to why K.Q. was seeking the 

prescriptions and thus can be charged 

with knowledge that the prescriptions 

were not for a legitimate medical 

purpose. See United States v. Katz, 445 

F.3d 1023, 1031 (8th Cir. 2006) 

(knowledge can be inferred when a 

practitioner is put ‘‘on notice that 

criminal activity was particularly likely 

and yet * * * failed to investigate those 

facts’’) (other citations and quotations 

omitted). 

Furthermore, Respondent had other 

reasons to know that K.Q. was engaged 

in drug-seeking behavior. At the first 

visit, K.Q. reported that she was being 

treated by two other physicians, one of 

whom was prescribing Percocet to her, 

and that she was also taking Lorcet and 

Xanax. Respondent gave her a 

prescription for twenty Percocet and yet 

did nothing to contact these other 

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85On another occasion, K.Q. reported that she 

had previously taken methadone, a drug which is 

used not only to treat pain but to treat addiction as 

well. Yet Respondent did not inquire as to who had 

prescribed it to her and why. On another occasion, 

K.Q. reported that ‘‘she believe[d] that some 

workmen may have gotten into her medications.’’ 

While Respondent did counsel her to lock up her 

medications, the incident did not prompt 

Respondent to institute any type of monitoring of 

K.Q. 

86There was no dosing instruction listed for the 

Percodan. 

physicians to determine what they were 

prescribing and to coordinate their 

prescribings. Moreover, two days later, 

Respondent gave K.Q. a prescription for 

90 Percocet based on K.Q.’s 

representation that there was a pricebreak on the drug and that she had 

gotten a check from a church made out 

for the exact amount of 90 Percocet. 

Respondent did not indicate in K.Q.’s 

record, however, why the prescription 

was medically necessary, and I 

conclude that prescription lacked a 

legitimate medical purpose. 

K.Q. engaged in other scams to obtain 

drugs, including claiming that she had 

missed an appointment with another 

physician (who was prescribing 

OxyContin to her and either Xanax or 

Valium) and that the physician was outof-town. Respondent did not, however, 

even bother to pick up the phone and 

call the doctor to determine if this was 

true. Respondent then prescribed 

OxyContin, Xanax and ‘‘Duracet,’’ the 

same drugs which K.Q. had told her she 

was currently taking only to be told by 

the pharmacy that there was no such 

drug as Duracet. Moreover, at the next 

visit, K.Q. told her that she was taking 

‘‘a muscle relaxant called Durect’’ even 

though Respondent had not prescribed 

a muscle relaxant to her. Yet this did 

not prompt Respondent to investigate 

further. 

This was followed not even two 

weeks later by a phone call from K.Q. 

reporting that her purse (which 

contained Vicodin) had been stolen. 

Respondent dutifully called in a 

prescription for 30 Vicodin even though 

Respondent had not prescribed this 

drug to K.Q. Nor did she question K.Q. 

as to who the source of the Vicodin was. 

Moreover, two months later, K.Q. 

claimed that she had not mailed away 

a prescription Respondent had issued to 

her at her last visit for a three-month’s 

supply of OxyContin, even though the 

last prescription before the three-month 

one was for a thirty-day supply, had 

been issued six weeks earlier, and K.Q. 

had reported that she taking more than 

the recommended dosing.85

Respondent thus had ample reason to 

know early on in her treatment of K.Q. 

that the latter was engaging in drugseeking behavior. Moreover, on various 

occasions throughout her treatment, 

K.Q. reported that she had self-escalated 

the dosing of various narcotics. 

Typically, Respondent did not question 

K.Q. as to whether it was necessary to 

do so to address her pain. Notably, 

much of K.Q.’s problematic behavior 

had occurred prior to Respondent’s 

issuance of the Xanax and Valium 

prescriptions discussed above. 

During another period of her 

prescribing, Respondent gave K.Q. nine 

prescriptions at approximately weekly 

intervals for 100 tablets of Percocet, a 

drug which contains a minimum of 325 

mg. of acetaminophen no matter what 

strength of oxycodone it contains. If 

K.Q. had consumed 100 tablets every 

week, she would have been taking 

approximately fourteen tablets and 

consuming 4643 mgs. of 

acetaminophen, an amount well in 

excess of the recommended daily 

maximum of 4000 mgs. because of its 

potential to cause liver toxicity. 

Respondent did not, however, direct 

that K.Q. undergo liver function tests. 

Moreover, after K.Q. was hospitalized 

for a psychotic episode, Respondent 

received reports which indicated that 

she had seen not only Respondent and 

another doctor, but was also going to 

pain clinics and did not want to 

elaborate further. The discharge 

summary also stated that K.Q. was ‘‘self 

medicating’’ and was engaging in ‘‘some 

medication seeking behavior.’’ Even 

after receiving this information, as well 

as a subsequent phone call from K.Q.’s 

parents reporting that she was overusing 

her medications, Respondent continued 

to prescribe to her and did nothing to 

monitor her use of the drugs. 

Respondent also gave her early refills on 

various drugs including methadone, 

MSIR, and Xanax (including a 

prescription which was issued for 60 

tablets with two refills only nine days 

after giving her a prescription for 90 

Xanax (q8h) with three refills). She also 

prescribed additional drugs (such as 

Dilaudid) and increased the dosing of 

various drugs (including increasing the 

dosing of Dilaudid four-fold at a single 

visit) without any medical justification. 

While Respondent eventually 

terminated K.Q. (more than a year after 

her hospitalization) after being told by 

another patient that she was selling her 

medications, it is clear that many of the 

controlled substance prescriptions 

which Respondent issued to K.Q. lacked 

a legitimate medical purpose and were 

issued outside of the usual course of 

professional practice. 21 CFR 

1306.04(a); GX 46A, at 8. 

Respondent also issued numerous 

prescriptions to J.R., who had 

previously been convicted for 

distributing marijuana, for schedule II 

drugs including methadone, 360 tablets 

of OxyContin 40 mg., 180 tablets of 

Oxycodone IR, and 200 tablets of 

Percodan. The medical purpose for the 

prescriptions was initially to treat J.R.’s 

migraine headaches; subsequently J.R. 

also complained of lower back pain. 

While at the first visit in the patient 

file (8/25/99), Respondent issued 

prescriptions for OxyContin and 

Oxycodone IR86 which should have 

lasted thirty days based on the dosing 

instructions, only twenty-one days later, 

Respondent issued additional 

prescriptions for the same quantities 

and dosing of both OxyContin 40 mg. 

and Oxycodone IR, and for the same 

quantity of Percodan. A week later, 

Respondent gave J.R. replacement 

prescriptions but gave no reason for 

doing so. 

On October 20, Respondent issued 

additional prescriptions for thirty-day 

supplies of OxyContin 40 mg. (360 tabs) 

and Oxycodone IR (180 tabs), which 

were re-issued eight days early on 

November 11. While the latter 

prescriptions were to be sent to a Patient 

Assistance Program (PAP), Respondent 

added a separate prescription for 100 

OxyContin to be filled locally while J.R. 

waited for the PAP prescription to 

arrive. Respondent wrote additional 

prescriptions for 360 Oxycontin 40 mg. 

and 180 Oxycodone IR (and 200 

Percodan) on December 13 and January 

4 of the following year. 

Only seventeen days after the latter 

prescription, on January 21, Respondent 

gave J.R. two more prescriptions, each of 

which was for 360 tablets of OxyContin 

40, one to be filled locally and one to 

be filled by the PAP. On both February 

7 (again after only seventeen days) and 

February 22 (after only fifteen days), 

Respondent issued J.R. two more 

prescriptions (one to be filled locally, 

the other by the PAP), each for 360 

tablets of OxyContin 40 mg. Thus, 

during February alone, Respondent gave 

prescriptions which authorized the 

dispensing of 1440 tablets, which was 

four times the quantity required based 

on her dosing instruction. At the visits, 

Respondent also issued additional 

prescriptions for 180 Oxycodone and 

200 Percodan, which were invariably 

early, typically by nearly two weeks. 

On March 13, based on J.R.’s report of 

a severe headache, Respondent wrote 

two prescriptions for both 450 tablets of 

OxyContin 40 mg. and 360 Oxycodone 

IR and increased the dosing of both 

drugs (including doubling the dosing of 

the Oxycodone IR). Moreover, the next 

day, Respondent wrote J.R. further 

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87 It is noted that Respondent did not document 

the prescriptions she indicated that she would write 

on May 3 for the PAP. However, during this period, 

the prescriptions Respondent gave J.R. for the PAP 

were typically for 360 tablets of Oxycodone IR, and 

for either 270 tablets of OxyContin 80 mg. or 450 

tablets of OxyContin 40 mg. Given the total 

quantities of drugs she was dispensing, whether 

Respondent wrote the former or latter OxyContin 

prescription is not significant. 

prescriptions for 450 OxyContin 40 mg. 

and 360 Oxycodone IR, which she 

backdated to March 5 with no 

explanation. See 21 CFR 1306.05(a) 

(‘‘All prescriptions for controlled 

substances shall be dated as of, and 

signed on, the day when issued 

* * *.’’). Thus, in the month of March, 

Respondent gave J.R. prescriptions 

which authorized the dispensing of 

three times the amount of both 

OxyContin and Oxycodone IR that her 

dosing instructions called for. 

Respondent’s pattern of early and 

duplicative prescribing did not end 

there. On April 12, Respondent wrote 

J.R. two more prescriptions for 450 

OxyContin 40 mg. and 360 Oxycodone 

IR. While these drugs should have 

lasted until the middle of June, on May 

2 (twenty days later), Respondent gave 

J.R. a prescription for 270 OxyContin 80 

mg. and noted that the next day, she 

would write additional prescriptions for 

OxyContin and Oxycodone IR. 

Six days later, Respondent wrote J.R. 

two more prescriptions for OxyContin: 

one for 270 tablets of 80-mg. strength for 

the PAP and one for 450 tablets of 40- 

mg. strength presumably to be filled 

locally; both of the prescriptions were 

for a thirty-day supply. Moreover, 

Respondent wrote prescriptions for 360 

Oxycodone IR for the PAP (a sixty-day 

supply) and 180 Oxycodone IR (a thirtyday supply). Yet on May 15, Respondent 

wrote two more prescriptions 

(purportedly to be re-mailed) which 

were to be filled by the PAP—one for 

270 tablets of OxyContin 80 mg. and one 

for 360 tablets of Oxycodone IR. This 

was followed two days later by 

prescriptions for 126 tablets of 

OxyContin 40 mg. (a further one-week 

supply) and 84 tablets of Oxycodone IR. 

Finally, on May 31, Respondent wrote 

J.R. prescriptions for 540 tablets of 

OxyContin 40 mg. (a thirty-six day 

supply based on the dosing), and 360 

tablets of Oxycodone IR (a thirty-day 

supply based on the dosing). 

Accordingly, in this month alone, 

Respondent gave J.R. prescriptions 

authorizing the dispensing of 1080 

tablets of OxyContin 80 mg. and 

approximately 1116 tablets of 

OxyContin 40 mg. While Respondent’s 

dosing instructions varied between a 

total of 600 and 720 milligrams a day, 

even using the larger figure, a single 270 

tablet prescription of 80 mg. strength 

was enough to provide J.R. with a thirtyday supply. Yet Respondent gave J.R. 

prescriptions for 80-milligram tablets 

totaling four times this amount (120- 

days supply) and the prescriptions for 

40-milligram tablets provided another 

sixty-two day supply. 

Similarly, during this month, 

Respondent gave J.R. multiple 

prescriptions for Oxycodone IR which 

likely totaled 1700 dosage units.87 Here 

again, even using the largest dosing she 

prescribed for this drug during the 

month (four tablets, every eight hours or 

twelve tablets a day), a single 360-tablet 

prescription was enough to provide J.R. 

with a thirty-day supply. Respondent’s 

prescriptions thus provided J.R. with 

more than 4.5 times the amount of drugs 

he was to take. Similar patterns of 

prescribing continued throughout the 

course of Respondent’s treatment of J.R. 

In her brief, Respondent cites a 

written report from her pharmacy expert 

to contend that her prescribings to J.R. 

complied with the prescription 

requirement. Resp. Br. at 132 (quoting 

RX 33, at 6). More specifically, 

Respondent’s expert noted that ‘‘patient 

assistance programs are riddled with 

problems and delays, and it is common 

practice for physicians to write the 

patient extra medications to avoid the 

more significant problem of the patient 

going without medications.’’ RX 33, at 6. 

Continuing, the expert asserted that 

Respondent ‘‘did the medically 

responsible thing by writing enough to 

ensure that [J.R.] would not run out of 

medications, and she accounted for all 

of the medications she prescribed, and 

they were all part of his overall dose.’’ 

Id. 

I reject these arguments for several 

reasons. First, J.R. repeatedly came in at 

intervals well short of thirty days and 

thus there was little risk that he would 

run out of medication. Second, even 

assuming that it is medically 

appropriate for a physician to initially 

issue two prescriptions to a patient, 

when, due to legitimate financial or 

insurance considerations, that patient 

must use a PAP, a physician who issues 

multiple prescriptions still has the duty 

to ensure that the issuance of the 

prescriptions in this manner does not 

create an undue risk of diversion and 

abuse by accounting for her previous 

prescriptions. Put another away, before 

she issues additional prescriptions, the 

physician must ensure that the new 

prescriptions are in fact then necessary 

to treat a legitimate medical condition. 

Moreover, the evidence does not 

support her expert’s contention that she 

‘‘accounted for all of the medications 

she prescribed, and they were all part of 

his overall dose.’’ Id. at 6. As explained 

above, the evidence shows that 

Respondent repeatedly issued J.R. 

prescriptions which authorized him to 

obtain drugs in quantities far in excess 

of what was necessary for a thirty-day 

supply based on her own dosing 

instructions. Nor is there evidence that 

Respondent even questioned J.R. 

regarding whether he had obtained his 

PAP prescriptions. For that matter, even 

the prescriptions Respondent issued J.R. 

for local filling were several times what 

was necessary for a thirty-day supply. 

Accordingly, even if the initial 

prescriptions Respondent gave to J.R. to 

treat his migraine headaches were 

issued for a legitimate medical purpose, 

many of the subsequent prescriptions 

were not. Here again, Respondent acted 

with deliberate ignorance of the likely 

purpose of the prescriptions. 

With respect to other patients, even 

Respondent’s expert (Dr. Schneider) 

observed that they had engaged in 

‘‘ ‘aberrant drug-related behaviors,’ 

‘which should have been pursued but 

weren’t,’ ’’ including ‘‘early refills 

without adequate documentation and 

explanations.’’ RX K–1, at 6. These 

patients included J.N., N.F., W.F., and 

C.O. 

With respect to J.N., the evidence 

establishes that Respondent did not ask 

her about her substance abuse history 

even though both Drs. Hare and 

Schneider agreed that a physician needs 

to do ‘‘a careful history.’’ Tr. 881. 

Moreover, at the first visit, Respondent 

prescribed Xanax to J.N. even though 

she had not diagnosed her as having 

anxiety. At the next visit, which was 

only four days later, Respondent 

increased the dosing of the OxyContin 

four-fold even though J.N. had reported 

less pain. Moreover, this increase in 

dosing far exceeded what both Drs. Hare 

and O’Connor testified to as the 

acceptable titration rate (50 to 100 

percent). At the same visit, Respondent 

also increased four-fold the dosing of 

J.N.’s Xanax even though she made no 

findings as to why the drug was 

medically necessary. 

Two months later, J.N. was 

hospitalized. While in the hospital, J.N. 

admitted that she had a ‘‘history of IV 

heroin abuse’’ and that she had started 

using the drug a week earlier. Moreover, 

a urine toxicology screen found that J.N. 

was ‘‘positive for opiates, barbiturates, 

benzodiazepines, and marijuana,’’ and 

the discharge summary stated that she 

was pre-occupied with her pain 

medications. (In addition, J.N.’s 

boyfriend told investigators that she did 

not have veins, a classic sign of IV drug 

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88As for the expert’s claim that patients 

legitimately seek early refills for their own 

convenience, the physician is still obligated to 

properly supervise her patient’s use of a controlled 

substance and can accommodate both interests by 

indicating a fill date on the prescription (e.g., ‘‘Do 

Not Fill Until [Date]’’). 

abuse, and that it was very difficult to 

draw blood from her.) 

The information regarding J.N.’s 

admission of IV heroin abuse and the 

positive urine screens for both illicit 

drugs (marijuana) and drugs Respondent 

had not prescribed to her (barbiturates) 

was contained in the discharge 

summary which Respondent eventually 

received. According to Respondent, she 

did not notice this information because 

the summary ‘‘was a lot of pages’’ to read 

(even though the medical information 

was limited to four pages), and the 

reference to J.N.’s IV heroin abuse was 

‘‘buried in’’ the report (even though it 

was printed on the bottom of the first 

page). Relatedly, Respondent offered no 

credible explanation as to why she had 

not noticed the condition of J.N.’s veins. 

Examined in isolation, Respondent’s 

failure to read the discharge summary 

might be viewed as simply evidence of 

medical malpractice. However, after 

J.N.’s release from the hospital she 

sought numerous early refills of both 

Dilaudid and MS Contin, with some 

being sought and obtained as early as 

eight or nine days before previous 

prescriptions should have run out. 

Again, however, Respondent did not 

notice. The evidence taken as a whole 

(including the failure to take J.N.’s 

substance abuse history, the increase in 

OxyContin dosing at a rate far in excess 

of the acceptable titration rate, the 

increase in Xanax dosing without any 

indication as to why it was medically 

necessary, the failure to contact other 

physicians who were treating her to 

coordinate prescribing, and the early 

refills), supports the conclusion that 

many of Respondent’s prescriptions for 

J.N. were issued outside of the ‘‘usual 

course of * * * professional practice’’ 

and lacked a ‘‘legitimate medical 

purpose.’’ 21 CFR 1306.04(a). 

In a written submission, Respondent’s 

pharmacy expert opined that people 

refill prescriptions early for such 

legitimate reasons as ‘‘vacations,’’ not 

‘‘run[ning] out * * * over the weekend,’’ 

‘‘because it is much more convenient to 

pick it up then, and because they are 

undermedicated.’’ RX 33, at 4. 

Respondent’s expert also maintains that 

‘‘just because a chronic pain patient is 

receiving their medication early does 

not necessarily mean that they have 

taken all of their medication.’’ Id. 

As for the last contention, while that 

may be true, even Dr. Schneider has 

written that ‘‘[f]requent requests for 

early refills’’ are a ‘‘sign[ ] of possible 

drug addiction.’’ RX 36, at 3. Moreover, 

Respondent never requested that J.N. 

bring in her prescriptions for a pill 

count. Furthermore, with respect to 

J.N.’s early refills, one does not need to 

refill a prescription eight days (or even 

five days) early to avoid running out on 

a weekend. Nor is there any indication 

that Respondent issued any of the early 

refills because J.N. was going on 

vacation. Finally, while it is 

acknowledged that a patient may run 

out of medications because the 

prescribed quantity and dosing are not 

adequate to address a patient’s pain, 

Respondent made no such contention 

with respect to J.N., who, of course, was 

abusing drugs by injecting them.88

As for N.F., on the date of her first 

visit, Respondent was told by a 

pharmacist that N.F. was a doctor 

shopper. While Respondent cancelled 

the refills she had authorized, four days 

later Respondent gave her another 

prescription for Vicodin with two 

refills. Thereafter, N.F. began seeking 

early refills, with many of them being 

sought more than a week early. 

Respondent repeatedly complied with 

N.F.’s requests for drugs, escalated the 

strength and dosing of the prescriptions, 

and ignored numerous warning signs 

that N.F. was addicted. 

For example, at one visit, N.F. 

reported that she had burned herself but 

did not remember how she had done so. 

Later on, N.F. told Respondent that she 

was moving to Illinois. Yet even after 

telling Respondent this, N.F. continued 

to return multiple times each month for 

the next seven months. While N.F. 

initially told Respondent such stories as 

she was back to pick up her truck, or 

that she was in town to testify for the 

State but that she had moved, 

Respondent apparently never 

questioned N.F. as to why she was still 

coming in months later. During this 

period, Respondent also wrote N.F. 

prescriptions and allowed N.F.’s 

purported family members to pick up 

the prescriptions. In the month of 

October alone, Respondent wrote 

prescriptions on October 2 (100 

Roxicodone 30 mg. q4h—a sixteen-day 

supply), October 5 (same Rx), October 9 

(30 Roxicodone 30 mg.—another fiveday supply), October 15 (200 

Roxicodone 5 mg. 2–3 q4h—an elevenday supply), October 17 (100 

Roxicodone 15 mg. 2–3 q4h—a five-day 

supply), October 19 (200 Roxicodone 15 

mg. 1–2 q4h—a sixteen-day supply), 

October 24 (200 Roxicodone 5 mg. 3–4 

q4h—an eight-day supply), October 26 

(50 Roxicodone 30 mg. 1⁄2 q4—a sixteenday supply), October 29 (100 

Roxicodone 30 mg. q4h—a sixteen-day 

supply). 

This pattern continued in the ensuing 

months with N.F. engaging in additional 

scams, such as claiming that she had 

lost her prescription and that her 

neighbors had beaten her up and stolen 

her drugs. Moreover, during the October 

17 visit, N.F. complained of dental pain 

and Respondent issued her an 

additional prescription for 30 tablets of 

Vicodin. Notably, she did not refer N.F. 

to a dentist who could properly 

diagnose and treat her condition. Nor 

did Respondent explain why a Vicodin 

prescription was necessary given the 

Roxicodone prescriptions. 

While Dr. Schneider opined that 

N.F.’s chart showed that Respondent 

needed additional education about 

‘‘careful monitoring’’ of patients and 

reviewing ‘‘the big picture,’’ this ignores 

that Respondent knew from the date of 

N.F.’s first visit that she had engaged in 

drug-seeking behavior. Respondent 

therefore cannot credibly claim that she 

was duped by N.F. Moreover, even 

ignoring the early refills N.F. sought and 

obtained for the Vicodin prescriptions 

in the first months of her seeking drugs 

from Respondent, the size and 

frequency in relation to the dosing 

instructions of the subsequent 

Roxicodone prescriptions amply 

demonstrated that N.F. was engaged in 

drug-seeking behavior and that the 

prescriptions were not for a legitimate 

medical purpose and violated the CSA. 

21 CFR 1306.04(a). Moreover, the size 

and frequency of the prescriptions 

support the further conclusion that 

Respondent was deliberately ignorant as 

to the likely purpose of the 

prescriptions. 

W.F. was treated by Respondent for 

only approximately five months before 

his death. At the initial visit, W.F. 

brought in an impairment rating from 

the Veterans Administration, and yet 

Respondent did not contact the VA to 

obtain W.F.’s treatment records. She 

also did not inquire with W.F. regarding 

his past substance abuse before 

prescribing various narcotics to him 

including Percocet, OxyContin, and 

Dilaudid. 

Respondent, however, was 

subsequently informed on two 

occasions by a psychiatrist who was 

treating W.F. that the latter had a history 

of narcotic addiction problems. 

Respondent was also notified by a case 

manager who worked at the 

psychiatrist’s practice that the practice 

had received a phone call from a family 

member expressing concern that W.F. 

might be abusing his pain medicines. 

While Respondent indicated in his 

medical record that she had discussed 

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W.F.’s addiction issues with him (who 

told her that the drugs helped with the 

pain), she continued to prescribe 

narcotics to him including both 

methadone and Roxicodone 30 mg. and 

yet his record contains no indication 

that Respondent planned to institute 

such measures as pill counts or 

toxicology screens to monitor his use of 

the drugs. Finally, the Government’s 

Expert not only noted Respondent’s 

failure to contact the VA to obtain other 

records and to take a substance abuse 

history, but also that her physical exam 

was minimal and was not adequate to 

diagnose his various pain complaints. 

Respondent admitted that she did not 

do a substance abuse history (testifying 

that at the time she did not know what 

questions to ask, Tr. 2382), and offered 

no testimony on the issue of the 

adequacy of her physical examination. 

While Respondent’s conduct in 

prescribing to W.F. may not have been 

as egregious as it was with respect to the 

patients above, she still acted outside of 

the usual course of professional practice 

in prescribing controlled substances to 

him and thus violated the CSA’s 

prescription requirement in doing so. 

With respect to C.O., who was also 

identified by Respondent’s Expert as a 

patient who had engaged in aberrant 

drug-related behavior, the Government’s 

Expert acknowledged that Respondent’s 

initial physical exam was adequate. 

However, Respondent again failed to 

inquire as to his past substance abuse. 

C.O. rapidly escalated his use of drugs 

and engaged in drug-seeking behavior; 

once again, Respondent did nothing to 

control him. For example at the first 

visit, Respondent gave him a 

prescription for 40 Lortab 7.5/500 with 

two refills, a prescription which thus 

authorized the dispensing of 120 tablets 

and which, based on the maximum 

daily dose of acetaminophen of 4000 

mg., should have lasted fifteen days. 

Five days later, Respondent, however, 

gave him another prescription for 40 

Lortab 10/500 with two refills. A week 

later when C.O. saw a nurse 

practitioner, he reported that he was out 

of medication and needed more even 

though he had at least two refills left. 

C.O. swore, however, that he did not 

have any refills. Two days later, C.O. 

told Respondent that he was taking up 

to twelve Lortab per day. 

Three days later, Respondent 

performed a physical exam finding no 

obvious pain with ambulation but noted 

generalized tenderness and that he 

complained of mid-back pain with range 

of motion of his shoulders. Respondent 

changed his prescription to 30 

OxyContin 20 mg., with one tablet every 

eight hours. Four days later, C.O. 

returned, saw the nurse practitioner and 

claimed his back pain was worse. His 

speech was slurred, and he indicated 

that he had recently taken twice the 

prescribed dose. Upon finding nothing 

abnormal in her physical exam, the 

Nurse Practitioner spoke with 

Respondent about refilling C.O.’s 

OxyContin prescription; Respondent 

then wrote C.O. a new prescription for 

60 tablets and doubled the dosing and 

apparently did so without even seeing 

C.O. C.O. repeatedly escalated his use of 

OxyContin (although Respondent briefly 

reduced his dose, only to increase it 

again). 

Subsequently, C.O. claimed that he 

had gotten a job on a cruise ship and 

that he would be going on the ship in 

a few days for thirteen weeks. While 

Respondent gave him prescriptions for 

60 OxyContin 40 mg. and 360 Lortab 10/ 

500 with three refills, he was back three 

days later (at which visit he obtained 

another prescription for 60 OxyContin 

40 mg.) and again only five days later, 

at which visit he obtained four 

additional OxyContin prescriptions (for 

372, 280, 144 and 92 tablets) and one 

prescription for 350 Lortab, with no 

refills. 

After only six weeks (and six weeks 

before the thirteen-week period on the 

ship would have ended), C.O. returned, 

showed very slurred speech, and sought 

another prescription for OxyContin 

because he had run out. While 

Respondent referred him to get a drug 

test, there is no indication that he 

complied. Respondent also did not 

question C.O. as to why he was back so 

soon from the ship. C.O. had, however, 

filled prescriptions at Tucson 

pharmacies on multiple occasions 

during the period in which he claimed 

that he would be on the cruise ship. 

While Respondent decided to taper 

down C.O.’s OxyContin, she continued 

to prescribe Lortab and eventually 

started prescribing Roxicodone to him. 

Notably, while Respondent briefly 

reduced the dosing of Roxicodone to 

240 mg. per day, fifteen days later she 

was back to prescribing 480 mg. a day, 

which was the same dose as the 

OxyContin she had previously 

prescribed. Moreover, at one of these 

visits, Respondent had given him a 

prescription for 100 Lortab (10/500) 

with five refills, which thus authorized 

the dispensing of 600 tablets. While this 

prescription should have lasted at least 

75 days, after only six weeks 

Respondent gave C.O. another Lortab 

prescription for the same quantity and 

refills. C.O. used up (whether by taking 

or selling is irrelevant) this prescription 

and the refills in a month’s time. 

Although Respondent then temporarily 

stopped prescribing Lortab to him 

(because of its acetaminophen content), 

she continued to prescribe Roxicodone 

to C.O. Approximately two months 

later, C.O. entered drug treatment. 

Here again, early on in the course of 

C.O.’s seeing Respondent, there was 

evidence that he had rapidly selfescalated his use, had sought early 

refills, and engaged in other scams to 

obtain more drugs. When Respondent 

referred him for a drug test, there is no 

evidence that he complied or that she 

even sought to determine whether he 

had gone for the test. Moreover, after 

C.O. had represented that he was going 

to be away for thirteen weeks, 

Respondent did not question him as to 

why he was back to see her after only 

six weeks and continued prescribing to 

him. Later, she refilled his Lortab 

prescription approximately six weeks 

early, and, even though C.O. used up 

this prescription in a month’s time, she 

continued to prescribe to him. As Dr. 

Hare noted, Respondent did little to 

supervise and control C.O.’s use of 

controlled substances. Accordingly, 

even if it was medically appropriate 

initially to prescribe controlled 

substances to C.O., it is clear that many 

of the prescriptions she wrote were not 

issued for a legitimate medical purpose 

and thus violated the CSA. 

N.S. was an eighteen-year-old college 

student who complained of lower-back 

pain since enrolling at the University of 

Arizona. Even though N.S. rated his 

pain as only a four on a scale of one to 

ten, Respondent’s physical exam found 

that he had a normal neurological exam 

and could perform a variety of 

movements without pain, with the 

exception of his incurring minimal low 

back pain with lumbar flexion, and 

Respondent had concluded that the 

cause of his back pain was a ‘‘poor 

mattress and poor positioning,’’ at N.S.’s 

first visit, Respondent gave him a 

prescription for OxyContin 20 mg. (with 

one tablet to be taken every twelve 

hours). Moreover, two days later, N.S. 

returned and told Respondent that he 

had doubled up on the dose but that 

hadn’t worked. Respondent then told 

him to take three tablets at a time. This 

was followed four days later by 

Respondent’s issuance of a prescription 

for 180 tablets of OxyContin 20 mg., as 

well as 50 tablets of oxycodone 5 mg. 

(one tablet every four hours) after he 

asked for something for breakthrough 

pain. 

Approximately a week later, 

Respondent gave N.S. an additional 

prescription for 50 tablets of 

Roxicodone which increased the 

strength from five to fifteen milligrams 

and the dosing to one tablet every three 

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Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 8233 

hours, a four-fold increase in the daily 

amount of this drug. Moreover, she did 

so even though N.S. had reported a 

substantially lower pain level from the 

visit at which she had added the two 

previous prescriptions. 

With respect to N.S., Dr. Hare 

observed that, while Respondent had 

reasonably evaluated N.S., her findings 

did not support prescribing opioids 

‘‘and certainly not * * * in the 

aggressive doses she prescribed.’’ GX 46, 

at 15. Dr. Hare further observed that 

N.S. had rapidly self-escalated his 

dosing ‘‘to a large amount,’’ and the fact 

that he tolerated these doses suggested 

that he was either ‘‘not opioid-naı ̈ve, or 

[that] he was not taking the medication.’’ 

Id. I further note that Respondent 

increased N.S.’s dosing nearly four-fold 

(from 40 mg. to 150 mg. a day) in only 

four days, a rate which exceeded by 

several times the acceptable rate of 

titration as testified to by both parties’ 

experts. See RX 8, at 2 (testimony of 

Respondent’s expert that ‘‘no more than 

50% to 100% every 5 or more days’’ is 

acceptable). Dr. Hare also noted that 

Respondent had further increased the 

amount of Roxicodone at the subsequent 

visit even though N.S. was reporting 

less pain. Finally, Respondent did not 

specifically address any of Dr. Hare’s 

findings with respect to N.S. Based on 

the above, I conclude that, even if 

Respondent was duped by N.S. and 

believed that he was in pain, she acted 

outside of the usual course of 

professional practice in prescribing 

controlled substances to him. 

Respondent also prescribed to both 

M.D. and S.R., who lived together. At 

his first visit, M.D. complained that he 

had fallen off a bicycle and injured his 

back and leg. He also reported that 

another physician had previously 

prescribed to him OxyContin 80 mg., 

Oxyfast and methadone, but that he had 

been off these medications for several 

months because the prescribing 

physician had ‘‘left the office.’’ 

Respondent did not attempt to contact 

the office of M.D.’s previous physician 

to determine whether his statement was 

true and/or to obtain his treatment 

records. Nor did she obtain a pain rating 

and indeed, during the physical found 

that he was not in acute distress. 

Following a physical exam, 

Respondent issued M.D. prescriptions 

for 60 OxyContin 80 mg. (q12h) (the 

second strongest formulation of the 

drug), 30 oxycodone 5 mg., and Oxyfast. 

Later that day, a pharmacist called and 

told Respondent that M.D. was known 

to forge prescriptions and had been 

arrested; Respondent told the 

pharmacist not to fill the prescriptions. 

M.D., however, had managed to get the 

OxyContin filled at another pharmacy. 

At M.D.’s next visit, he again sought 

OxyContin. Respondent did, however, 

question Respondent about the incident 

at the pharmacy and as to why he had 

gone to a different pharmacy than the 

one he had put on his pain contract. 

Respondent then refused to give him a 

new prescription, and, after that, M.D. 

did not go back to her. 

Subsequently, Respondent received a 

phone call reporting that a week earlier, 

M.D. had been admitted to a local 

hospital in a coma and, upon his 

admission, had in his possession a 

prescription vial which contained 

methadone 40 mg. tablets; the vial’s 

label indicated that it had originally 

contained Dilaudid which Respondent 

had prescribed to S.R. 

Respondent had first treated S.R. 

approximately nine weeks earlier when 

she complained of abdominal and 

pelvic pain and reported that she had a 

history of cystitis and active hepatitis C. 

S.R. also indicated that another 

physician had prescribed Xanax and 

Vicodin for her and that she was taking 

her late husband’s leftover OxyContin 

and Dilaudid. Respondent’s physical 

exam was limited to noting that she had 

pain with ambulation, that she limped, 

and that she had tenderness over her 

abdomen. As the Government’s expert 

noted, Respondent’s physical exam was 

minimal, she did not obtain records 

from other physicians who had treated 

S.R. before prescribing, and her 

evaluation was inadequate to justify 

prescribing the controlled substances 

which she did (OxyContin, Dilaudid, 

and Xanax). Apparently, Respondent 

did not find troubling S.R.’s use of drugs 

which had not been prescribed to her 

(OxyContin and Dilaudid). 

Two weeks later, Respondent gave 

S.R. new prescriptions for all three 

drugs even though the original Xanax 

prescription (90 tablets TID PRN) 

should have lasted thirty days and S.R. 

was to come in for a recheck in two 

weeks. Moreover, the Xanax 

prescriptions she issued on this date 

provided for 90 tablets with two refills 

(a total of 270 tablets—a ninety-day 

supply if taken as directed). Yet six 

weeks later, S.R. claimed that her Xanax 

had gotten wet and that the pills had 

dissolved and could not be taken. Even 

if the story was true, S.R. should still 

have had a refill for 90 tablets left. 

Respondent nonetheless gave her a new 

prescription for 100 tablets of Xanax 

with two refills. 

Respondent subsequently counseled 

S.R. about the incident involving M.D., 

and S.R. denied that he could have 

gotten her medications. Moreover, after 

S.R. failed to go to another doctor on a 

referral, Respondent refused to write 

any more prescriptions for her until she 

obtained more documentation of her 

condition. 

While Respondent’s conduct in 

prescribing to M.D. and S.R. was not as 

egregious as her prescribing to the 

patients discussed above, I nonetheless 

conclude that the prescriptions were 

issued outside of the usual course of 

professional practice and lacked a 

legitimate medical purpose. While Dr. 

Hare did not offer an opinion specific to 

M.D., both parties’ experts were in 

agreement that when a patient is not 

currently on opioids, they should be 

started at a low dose and titrated up 

gradually to achieve pain relief while 

minimizing adverse side effects. At his 

first visit, M.D. admitted that he had not 

been on opioids for several months. Yet 

Respondent started him out with a daily 

dose of 160 mg. of OxyContin plus other 

drugs, which was the same dose that 

M.D.’s previous doctor had supposedly 

prescribed although whether this was in 

fact the case is unknown because 

Respondent never even attempted to 

contact this physician. While M.D. 

claimed to have back and leg injuries, 

Respondent did not even obtain pain 

ratings from him. While I note that 

Respondent told the pharmacy not to fill 

his prescriptions upon being informed 

that he was known to forge 

prescriptions, the prescriptions should 

never have been written in the first 

place. 

As for S.R., Respondent did not find 

it troubling that she was taking two 

powerful and highly abused narcotics— 

Dilaudid and OxyContin—for which she 

did not have prescriptions. Not only 

was Respondent’s physical examination 

minimal, she did not obtain records 

from other treating physicians including 

the one who supposedly had prescribed 

Xanax and Vicodin to S.R. before she 

prescribed Dilaudid, Oxycontin, and 

Xanax for her. Indeed, it appears that 

her diagnosis was based largely on 

S.R.’s representation as to her condition. 

Respondent also gave S.R. early refills. 

While Respondent eventually refused to 

write more prescriptions for her, it 

should not have taken three months to 

conclude that S.R. was seeking drugs to 

abuse them. 

Respondent also prescribed to W.O. 

and J.O., a married couple, each of 

whom claimed to have been injured in 

various (but different) motor vehicle 

accidents. As found above, Respondent 

issued both persons numerous 

prescriptions for schedule II drugs 

including OxyContin, Roxicodone and 

Percocet well before previously issued 

prescriptions would have run out, with 

some prescriptions being issued only 

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8234 Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Notices 

89 In one instance, A.B. sought a refill of 

OxyContin and oxycodone a week after having 

undergone back surgery. A.B. complained that she 

had only been given 20 Percocet and was in severe 

pain, and Respondent wrote prescriptions for 60 

Oxycontin 40 mg. and 200 oxycodone 5 mg. Here, 

again, she did not coordinate her prescribing with 

A.B.’s surgeon. 

It is acknowledged that a patient may seek an 

early refill because a previous prescription does not 

adequately address legitimate pain. But as 

Respondent’s own records indicate (and as Dr. 

Schneider testified), it is the physician—and not the 

patient—who is responsible for deciding whether a 

change in the dose is medically necessary. See GX 

56, at 3 (Respondent writing in A.B.’s chart: ‘‘Any 

dose changes need to be ordered by me.’’). 

Notwithstanding the above statement (which 

appeared in numerous other charts), Respondent 

rarely exercised control over her patients and 

repeatedly acceded to the self-escalation they 

engaged in. 

days after earlier prescriptions were 

issued and weeks early. Moreover, on 

various occasions, Respondent 

increased the dosing of both persons’ 

medications without providing any 

explanation in their respective medical 

records. Indeed, at one visit, 

Respondent doubled the dosing of 

W.O.’s OxyContin prescription even 

though he had rated his lower back pain 

as ‘‘zero.’’ 

Moreover, W.O. and J.O. engaged in 

other problematic behavior including 

J.O.’s claiming that their house had been 

burglarized and that all of their 

medications had been stolen, W.O.’s 

attempt to alter a Percocet prescription 

issued to J.O. by tearing out the fill date, 

J.O.’s reported selling of Percocet, and 

J.O.’s giving 300 tablets of methadone to 

W.O. although she had previously told 

Respondent that she had left W.O. 

Finally, during the course of treating 

J.O., Respondent received information 

from the State Nursing Board that J.O. 

had been subjected to disciplinary 

proceedings because she had abused 

medications and taken some from a 

nursing home where she worked; 

Respondent received this information 

before J.O. gave W.O. half of her 

methadone prescription. Yet 

Respondent continued to prescribe to 

her for several months thereafter. 

Finally, notwithstanding the various 

reports she had received, Respondent 

falsely wrote the State Nursing Board 

that there was ‘‘no evidence’’ that J.O. 

was continuing to divert drugs. 

Accordingly, even if Respondent’s 

initial prescriptions to J.O. and W.O. 

were issued in the usual course of 

professional practice and for a 

legitimate medical purpose, it is clear 

that many of the subsequent 

prescriptions she issued to J.O. and 

W.O. did not comply with the 

prescription requirement. Moreover, 

whether Respondent’s conduct in 

writing the letter to the State Board is 

considered under factor two (the 

experience factor) or under factor five 

(such other conduct which may threaten 

public health and safety), it does not 

reflect well on her candor. 

Respondent also ignored evidence of 

problematic behavior engaged in by 

P.H., M.H. (P.H.’s mother) and A.B. 

(who lived with P.H.). For example, 

several months after Respondent started 

treating P.H., the latter reported that her 

Percocet had been stolen two weeks 

earlier and that she had only Darvocet 

N100 to take following the theft. 

Respondent had not, however, 

prescribed this drug to P.H., yet 

Respondent did not question her as to 

how she had obtained this drug. Several 

months later, P.H. complained that the 

OxyContin she was taking made her 

nauseous. P.H.’s medical record 

contained no indication that 

Respondent had previously prescribed 

OxyContin to P.H. Yet Respondent did 

not question P.H. as to how she had 

gotten this drug. 

Eight months after this incident, 

Respondent was called by a pharmacist 

and told that P.H. had filled a 

prescription for Percocet (which 

Respondent was then prescribing to her) 

which had been issued by another 

doctor. While Respondent questioned 

P.H. about the incident, she did not 

contact the other doctor to discuss the 

extent to which P.H. was obtaining 

other prescriptions and to coordinate 

their prescribing. Five months later, 

Respondent received another phone call 

from a pharmacist and was told that 

P.H. was obtaining 84 Vicodin tablets 

every two weeks from the same doctor 

who had prescribed Percocet to her. 

Again, however, there is no indication 

that Respondent contacted this doctor. 

Subsequently, P.H. was diagnosed by 

an emergency room physician as having 

a skin condition and told Respondent 

that she had an appointment to see a 

dermatologist in two weeks. According 

to the Government’s Expert, the 

condition did not justify ‘‘anything other 

than mild analgesics,’’ yet Respondent 

nearly doubled the dosing of 

Roxicodone from 480 mg. to 900 mg. a 

day. Moreover, there is no evidence that 

Respondent ever contacted the 

dermatologist to coordinate any 

prescribing that might be necessary to 

treat the condition. Furthermore, during 

this period, Respondent issued Percocet 

prescriptions to P.H. in amounts and at 

a frequency that would be toxic if P.H. 

was actually taking the drug according 

to Respondent’s own evidence regarding 

the maximum daily dose. P.H. was 

subsequently identified by her own 

mother (M.H.) as the person who had 

passed the OxyContin which had been 

prescribed to M.H. to the latter’s 

nephew during the July 29, 2001 

diversion incident. 

At A.B.’s initial visit, she reported 

that she was taking Percocet and a noncontrolled drug. Here again, Respondent 

did not contact the physician who had 

prescribed the drugs to her. Moreover, 

while A.B. reported that an MRI had 

shown that she had a herniated disk, 

there is no evidence that Respondent 

attempted to obtain the MRI report. 

Shortly thereafter, A.B. began to seek 

early refills which Respondent typically 

approved without any documentation of 

her questioning A.B. as to why she 

needed the refills, which in some 

instances were as many as seventeen 

days (on a thirty-day Rx) early.89

At M.H.’s first visit, Respondent 

diagnosed her with shingles and gave 

her a prescription for 60 tablets of 

OxyContin 20 mg. While four days later 

M.H. returned and told Respondent that 

her insurance wouldn’t cover the drug, 

Respondent did not ask her to return or 

destroy the prescription. Two days later, 

either P.H. or A.B. picked up the 

prescription and passed it to M.H.’s 

nephew who was in another car. While 

Respondent counseled M.H. about the 

incident at a subsequent visit (which 

was a criminal act), there is no credible 

evidence that she ever discussed the 

incident with P.H. and A.B. Moreover, 

while three weeks later the same 

pharmacist who reported the July 29 

incident again told Respondent that he 

believed P.H. and A.B. were selling their 

drugs, once again there is no indication 

that Respondent questioned either P.H. 

or A.B. after receiving this additional 

report. Respondent, however, continued 

to prescribe to them and instituted no 

measures such as pill counts and drug 

screens to monitor them. 

Following the incident, Respondent 

continued to prescribe Percocet and 

Roxicodone to P.H. Several months 

later, Respondent again received 

information suggesting that P.H. had 

either obtained or was attempting to 

obtain Vicodin from another physician 

(P.H.’s dermatologist). Yet the same day 

she received this information, 

Respondent again prescribed 200 tablets 

of Percocet and 500 tablets of 

Roxicodone and did not question P.H. 

about whether she was obtaining 

additional controlled substance 

prescriptions from other doctors. Nor 

did she contact the other physician. 

Subsequently, Respondent added 

Dilaudid and continued to prescribe the 

other drugs to her as well. Respondent 

did not have P.H. sign a pain contract 

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90To make clear, while F.L.’s prescriptions were 

very large, there is no evidence establishing that the 

prescriptions were issued in violation of 21 CFR 

1306.04. 

91While the progress notes indicate that 

Respondent was treating B.L. for weight gain and 

an eating disorder, there is no indication in any of 

the progress notes as to his height and weight. 

92As support for this proposition, Respondent 

also cited a document entitled: Prescription Pain 

Medicines: Frequently Asked Questions and 

Answers for HealthCare Professionals, and Law 

Enforcement Personnel. RX T. DEA never published 

the document in the Federal Register, because it 

‘‘was not an official statement of the agency,’’ and 

‘‘withdrew the document because it contained 

misstatements.’’ 69 FR 67170 (2004). 

93This is not a close case and therefore I need not 

consider whether a practitioner’s failure to report 

an act of diversion by a patient is grounds for 

denying an application. 

until May 2002, at which time she was 

aware that she was being investigated. 

Here again, even assuming that these 

three patients initially presented with 

legitimate medical conditions which 

required treatment with controlled 

substances and that Respondent had a 

legitimate medical purpose in 

prescribing to them, Respondent 

nonetheless violated the prescription 

requirement because she failed to 

properly supervise her patients in their 

use of controlled substances. See 

Gonzales, 546 U.S. at 274 (‘‘the 

prescription requirement * * * ensures 

patients use controlled substances 

under the supervision of a doctor so as 

to prevent addiction and recreational 

abuse’’). She repeatedly ignored that 

these patients were obtaining drugs 

from other doctors or the street; she 

prescribed drugs for conditions that 

were putatively being treated by other 

physicians and yet did not contact the 

other physicians to coordinate their 

prescribings; she issued new 

prescriptions well before previous 

prescriptions should have run out and 

did so without even questioning the 

patients as to why they already needed 

additional medication; she did not even 

counsel A.B. and P.H. after receiving 

reports that they had engaged in 

criminal acts and were selling their 

medications; she prescribed Percocet to 

P.H. in quantities that would have been 

toxic if she was actually taking the drug 

(as opposed to selling it); and she did 

nothing to monitor P.H., A.B. and 

M.H.’s use of their medications. Thus, 

even if these patients initially presented 

to Respondent legitimate medical 

complaints, Respondent repeatedly 

acted outside of the usual course of 

professional practice in the course of 

prescribing to them. 

As the forgoing demonstrates, in 

numerous instances beyond those 

identified by the ALJ, Respondent 

issued prescriptions which violated the 

CSA’s prescription requirement. With 

respect to several of the patients, 

Respondent did so either knowing or 

having reason to know that the 

prescriptions were not being sought for 

a legitimate medical purpose. 

This conduct was more than enough 

to establish the Government’s prima 

facie case to deny Respondent’s 

application. Indeed, DEA has revoked a 

practitioner’s registration for as few as 

two incidents of diversion and has done 

so where the conduct was far less 

egregious than that in which 

Respondent engaged. See, e.g., Alan H. 

Olefsky, 57 FR 928 (1992) (revoking 

registration of practitioner who 

presented two fraudulent prescriptions); 

see also Sokoloff v. Saxbe, 501 F.2d 571, 

574 (2d. Cir. 1974) (upholding 

revocation based on three acts of 

unlawful distribution). 

The ALJ’s reasoning that the 

Government had only shown that 

Respondent’s prescribing to ‘‘two 

patients out of more than 900’’ lacked a 

legitimate medical purpose, and that her 

‘‘overall medical practices are not 

consistently lacking in legitimate 

purpose,’’ ALJ at 150, is thus erroneous. 

More disturbingly, this reasoning has 

been previously—and expressly— 

rejected by the Agency. See, e.g., 

Medicine Shoppe—Jonesborough, 73 FR 

364, 386 & n.56 (2008) (noting that 

pharmacy ‘‘had 17,000 patients,’’ but 

that ‘‘[n]o amount of legitimate 

dispensings can render * * * flagrant 

violations [acts which are] ‘consistent 

with the public interest.’ ’’); Caragine, 63 

FR at 51600 (‘‘[E]ven though the patients 

at issue are only a small portion of 

Respondent’s patient population, his 

prescribing of controlled substances to 

these individuals raises serious 

concerns regarding [his] ability to 

responsibly handle controlled 

substances in the future.’’). 

I therefore conclude that the evidence 

relevant to Respondent’s experience in 

dispensing controlled substances and 

her record of compliance with 

applicable laws related to controlled 

substances establishes prima facie that 

granting Respondent’s application 

would be ‘‘inconsistent with the public 

interest.’’ 21 U.S.C. 823(f). 

Factor Five—Such Other Conduct 

Which May Threaten Public Health or 

Safety 

Respondent also prescribed controlled 

substances to F.L. and B.L., who were 

father and son. As found above, F.L., 

who suffered from chronic pancreatitis, 

lower back pain and diabetes (which led 

to the amputation of one of his lower 

legs) was receiving approximately 7000 

dosage units a month of schedule II 

drugs including OxyContin 40 mg., 

OxyIR, Percocet and Percodan, and was 

obtaining some of the drugs through the 

Purdue Frederick (who manufactured 

both OxyContin and Oxy IR) Patient 

Assistance Program. At the last visit 

before his death, Respondent issued him 

prescriptions for 1320 tablets of 

OxyContin 40 mg. and 4800 Oxycodone 

IR, which were to be filled through the 

PAP program.90

Six days after F.L.’s death, B.L., who 

was obtaining Dexedrine—a schedule II 

amphetamine and stimulant, 

presumably for fatigue and to prevent 

weight gain,91 saw Respondent and 

obtained another prescription for 

Dexedrine. Moreover, as found above, 

during this visit, B.L. admitted to 

Respondent that he had accepted the 

delivery of the 1320 OxyContin 40 mg. 

tablets dispensed pursuant to his 

father’s prescription. Respondent 

admitted to this fact in her plea 

agreement and that she had also failed 

to rescind the Dexedrine prescription 

she issued to B.L. Based in part on this 

conduct, Respondent ultimately pled 

guilty to violating 18 U.S.C. 3. 

In this proceeding, Respondent 

vigorously contested whether she 

committed any crime in failing to report 

B.L.’s diverting of the prescription to 

law enforcement authorities. In this 

regard, Respondent put forward 

evidence that there is no requirement 

that a physician report a patient’s act of 

diversion to the authorities. See RX O.92

Whether her conduct constituted a 

crime was an issue that should have and 

could have been litigated in the criminal 

proceeding (and with respect to B.L., it 

was not just her failure to report but also 

her failure to rescind the prescription 

which was the basis for conviction).93 In 

any event, in light of the extensive and 

egregious evidence found under factors 

two and four, Respondent’s conviction 

with respect to this incident adds very 

little to the Government’s case. 

Sanction 

Under longstanding Agency 

precedent, where, as here, ‘‘the 

Government has proved that a registrant 

has committed acts inconsistent with 

the public interest, a registrant must 

‘‘present sufficient mitigating evidence 

to assure the Administrator that [she] 

can be entrusted with the responsibility 

carried by such a registration.’’ Medicine 

Shoppe, 73 FR at 387 (quoting Samuel 

S. Jackson, 72 FR 23848, 23853 (2007) 

(quoting Leo R. Miller, 53 FR 21931, 

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

performance is the best predictor of 

future performance,’ ALRA Labs, Inc. v. 

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

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94On the issue of Respondent’s propensity for 

truthfulness, I further note Respondent’s letter to 

the Arizona Nursing Board in which she falsely 

stated that there was ‘‘no evidence’’ that J.O. was 

continuing to divert drugs. Respondent made this 

statement notwithstanding that J.O. had previously 

admitted to giving 300 tablets of methadone to her 

husband, that Respondent had received reports that 

J.O. was selling Percocet, and the incident in which 

her prescription had been altered. 

95Respondent also contends that her practices 

between the service of a search warrant in May 

2002 and November 2002, when she lost her 

registration, ‘‘are very significant and highly 

relevant in determining whether my having a 

registration is in the public interest.’’ Resp. Prop. 

Findings at 200. As I have previously explained, 

evidence of one’s compliance with Federal law may 

‘‘be entitled to some weight in assessing whether a 

registrant/applicant has demonstrated that she can 

be entrusted with a new registration where the 

Government’s proof is limited to relatively few acts 

and a registrant puts forward credible evidence that 

she has accepted responsibility for her misconduct.’’ 

Krishna-Iyer, 74 FR at 464. 

Here, however, the record establishes that 

Respondent committed not merely a few, but rather 

numerous acts that were inconsistent with the 

public interest and that she has not accepted 

responsibility for her misconduct. Of further note, 

while Respondent was clearly aware that the State 

Board was investigating her, she nonetheless 

prescribed more Oxycontin to H.T. and falsified his 

[DEA] has repeatedly held that where a 

registrant has committed acts 

inconsistent with the public interest, the 

registrant must accept responsibility for 

[her] actions and demonstrate that [she] 

will not engage in future misconduct.’’ 

Medicine Shoppe, 73 FR at 387; see also 

Jackson, 72 FR at 23853; John H. 

Kennedy, 71 FR 35705, 35709 (2006); 

Prince George Daniels, 60 FR 62884, 

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

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

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

‘‘important factor[]’’ in the public 

interest determination). 

Relatedly, a respondent’s lack of 

candor is an important and typically 

dispositive consideration in 

determining whether she has accepted 

responsibility for her misconduct. See 

id. (‘‘Candor during DEA investigations, 

regardless of the severity of the 

violations alleged, is considered by the 

DEA to be an important factor when 

assessing whether a physician’s 

registration is consistent with the public 

interest’’ and noting that physician’s 

‘‘lack of candor and failure to take 

responsibility for his past legal troubles 

* * * provide substantial evidence that 

that his registration is inconsistent with 

the public interest.’’). See, e.g., Prince 

George Daniels, 60 FR at 62887. 

Finally, to rebut the Government’s 

prima facie case, an applicant/registrant 

is required not only to accept 

responsibility for her misconduct, but 

also to demonstrate what corrective 

measures she has undertaken to prevent 

the re-occurrence of similar acts. Jayam 

Krishna-Iyer, 74 FR 459, 464 & n.8 

(2009). Both conditions are essential 

requirements for rebutting the 

Government’s prima facie showing that 

granting an application or continuing an 

existing registration would be 

‘‘consistent with the public interest.’’ 21 

U.S.C. 823(f). 

In her recommended decision, the 

ALJ asserted that Respondent ‘‘took full 

responsibility for her actions and the 

consequences that followed those 

actions.’’ ALJ at 155. Not so. Indeed, 

with respect to her most egregious 

misconduct as established on this 

record—her six prescribings of various 

schedule II narcotics to H.T., knowing 

that he was not seeking the drugs to 

treat a legitimate medical condition but 

rather to abuse them—Respondent 

denied any failing on her part and 

maintained that she was duped. 

Relatedly, Respondent also denied that 

she had falsified H.T.’s medical records 

(which she did on six occasions) to 

indicate that she had done a physical 

exam when she had not. 

With respect to her falsification of 

H.T.’s patient record, the ALJ explained 

that although this ‘‘does not reflect well 

upon Respondent’s propensity for 

truthfulness, * * * a single instance 

does not rise to the level of the 

pervasive pattern of falsification that 

was present in’’ another DEA 

proceeding, see ALJ at 155 (citing Jayam 

Krishna-Iyer, 71 FR 52148, 52155–56 

(2006)), ‘‘particularly in light of the 

Respondent’s substantial rehabilitation 

since then.’’ Id. 

The ALJ’s reasoning ignores that 

Respondent falsified H.T.’s record six 

different times in order to provide a 

justification for prescribing controlled 

substances. Thus, Respondent’s acts of 

falsification were, in fact, even more 

extensive than that engaged in by 

Krishna-Iyer, who was shown to have 

falsified patient records on three 

separate occasions. Whether a 

practitioner’s falsifications involve a 

single patient multiple times or multiple 

patients a single time is irrelevant. 

Moreover, throughout this 

proceeding, Respondent has continued 

to deny that she falsified H.T.’s records. 

In her brief, she contends that she 

performed physical exams but that the 

transcripts do not reflect them because 

H.T. ‘‘was quite familiar with the routine 

of bending over to touch his toes, 

allowing me to palpate his lumbar 

muscles, sitting on the exam table and 

lifting his legs, having me test his ankle 

strength and allowing me to lift his leg 

in a straight leg raising test’’ and that 

after all of the exams she had performed 

on him (when she had not examined 

him in nearly two years), ‘‘there are 

necessarily fewer specific directions to 

the patient’’ (in fact, there were no 

directions to H.T. related to any of the 

above parts of the exam). Respondent’s 

Resp. to Gov.’s Exc. at 2. As found 

above, Respondent’s contention is 

patently absurd and disingenuous. 

Given the scope of the falsifications, it 

buttresses the conclusion that 

Respondent has failed to accept 

responsibility for her misconduct.94

Nor is this the only evidence that 

supports the conclusion that 

Respondent has failed to accept 

responsibility. With respect to patient 

J.N., whose admission of IV heroin 

abuse and positive-drug-test results for 

various illicit drugs were contained in a 

discharge summary, Respondent offered 

nothing but excuses for failing to read 

the report. See Tr. 2367–68 (contending 

that four-page report ‘‘was a lot of pages’’ 

and that the reference to J.N.’s heroin 

abuse was ‘‘buried in’’ the report when 

it was at the bottom of the first page). 

In other instances, Respondent did 

not even address the propriety of her 

prescribings to other patients even 

though the prescribings were clearly at 

issue. For example, on the first day she 

prescribed to N.F., a patient who 

engaged in a variety of obvious scams 

including claiming that she had moved 

to Illinois, Respondent was told by a 

pharmacist that N.F. was a doctor 

shopper. Yet in her testimony, 

Respondent did not even address why 

she prescribed to her. 

While one of Respondent’s generic 

arguments is that she was duped by her 

patients, see Resp. Proposed Findings at 

192 (‘‘Being duped by professional conmen does not indicate that I am a threat 

to the public interest’’), she cannot 

credibly contend that she was duped by 

N.F. when she was told by a pharmacist 

on day one that N.F. was a doctor 

shopper and yet continued to prescribe 

to her. Nor can Respondent credibly 

claim to have been duped in the case of 

K.Q., who repeatedly sought and 

obtained prescriptions for Xanax and 

Valium not merely days, but months 

early. 

As the forgoing demonstrates, 

Respondent has failed to accept 

responsibility for many of her most 

egregious acts of misconduct. As I 

recently explained, even where the 

Government’s proof establishes that a 

practitioner has committed only a few 

acts of diversion—and in this case the 

record demonstrates that Respondent 

committed numerous acts inconsistent 

with the public interest—an applicant/ 

registrant is not entitled to be registered 

absent a substantial showing that she 

has accepted responsibility. See 

Krishna-Iyer, 74 FR at 464.95

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records. Respondent’s willingness to violate Federal 

law, even at a time when she knew she was under 

investigation, and falsify records to provide a 

medical reason to justify a drug deal, provides 

ample reason to give no weight to this evidence. 96See, e.g., Krishna-Iyer, 74 FR at 464; Southwood 

Pharmaceuticals, Inc., 72 FR 36487, 36504 (2007). 

97 I also take official notice of the findings of the 

SAMSHA Survey. 

Finally, while Respondent maintains 

that she has undergone extensive 

remedial training including CME and 

working with a mentor to improve her 

record-keeping and management of 

patients, her testimony suggests that she 

has learned little from the experience. 

For example, even though Respondent’s 

mentor had specifically identified 

various patients as having ‘‘received 

early refills without adequate 

documentation and explanation,’’ RX K– 

1, at 6, Respondent testified that she 

could not answer the question as to 

whether she had issued early refills 

without documenting the reason why, 

because the definition of the term is ‘‘not 

clear and not well agreed upon.’’ Tr. 

2345. Even more disturbing is her 

testimony that it is not harmful for a 

patient to use a controlled substance (in 

the case of this patient, no less than 

OxyContin) which had not been 

prescribed to them but to a family 

member. Amplifying her views, 

Respondent claimed that this is ‘‘just 

continuing medical care’’ and causes ‘‘no 

harm to the patient’’ because people 

‘‘develop an area of knowledge about 

their medications.’’ Id. at 2395 & 2401. 

In her view, the notion that a person 

should not take a controlled substance 

that has not been prescribed to her is 

simply ‘‘our party line as a physician,’’ 

and that there is ‘‘almost always * * * 

no harm because people know * * * 

what they are taking.’’ Id. at 2400–01. 

As I have noted in other cases,96 the 

diversion of controlled substances has 

become an increasingly grave threat to 

this nation’s public health and safety. 

According to The National Center on 

Addiction and Substance Abuse 

(CASA), ‘‘[t]he number of people who 

admit abusing controlled prescription 

drugs increased from 7.8 million in 

1992 to 15.1 million in 2003.’’ National 

Center on Addiction and Substance 

Abuse, Under the Counter: The 

Diversion and Abuse of Controlled 

Prescription Drugs in the U.S. 3 (2005). 

Moreover, ‘‘[a]pproximately six percent 

of the U.S. population (15.1 million 

people) admitted abusing controlled 

prescription drugs in 2003, 23 percent 

more than the combined number 

abusing cocaine (5.9 million), 

hallucinogens (4.0 million), inhalants 

(2.1 million) and heroin (328,000).’’ Id. 

Relatedly, ‘‘[b]etween 1992 and 2003, 

there has been a * * * 140.5 percent 

increase in the self-reported abuse of 

prescription opioids,’’ and in the same 

period, the ‘‘abuse of controlled 

prescription drugs has been growing at 

a rate twice that of marijuana abuse, five 

times greater than cocaine abuse and 60 

times greater than heroin abuse.’’ Id. at 

4. 

Moreover, according to the Substance 

Abuse and Mental Health Services 

Administration’s (SAMHSA) 2007 

National Survey on Drug Use and 

Health, more than half (56.5%) of 

‘‘individuals aged 12 or older who used 

prescription opioid pain relievers 

nonmedically in the past year * * * 

acquired these drugs from a friend or 

relative for free.’’ U.S. Dept. of Justice, 

National Prescription Drug Threat 

Assessment 2009 6 (April 2009).97

Furthermore, ‘‘data from a 2006 study 

released in the June 2008 edition of the 

American Journal of Public Health 

indicated that 22.9 percent of 700 

participants in the study ‘loaned’ their 

medications to someone else, and 26.9 

percent ‘borrowed’ someone else’s 

prescriptions medication.’’ Id. at 15–16. 

Finally, ‘‘[n]early 22 percent of’’ the 

participants in this study ‘‘reported 

sharing prescription pain medications.’’ 

Id. at 16. 

Intra-family diversion is thus an 

important contributor to the diversion 

and abuse of controlled substances. It is 

manifest that notwithstanding her 

remedial efforts, Respondent still does 

not comprehend the seriousness of this 

problem. Because Respondent has 

utterly failed to demonstrate that she 

can be entrusted with a new 

registration, I am compelled to reject the 

ALJ’s conclusion that granting her 

application would be consistent with 

the public interest. Respondent’s 

application will therefore be denied. 

Order 

Pursuant to the authority vested in me 

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

0.100(b) & 0.104, I order that the 

application of Jeri B. Hassman, M.D., for 

a DEA Certificate of Registration as a 

practitioner be, and it hereby is, denied. 

This order is effective March 25, 2010. 

Dated: February 2, 2010. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. 2010–3305 Filed 2–22–10; 8:45 am] 

BILLING CODE 4410–09–P 

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